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efcd7942-3980-4389-b408-bbb8d24949a4 | Nola L. Wolf v. Jocelyn Pierce | N/A | 1200508 | Alabama | Alabama Supreme Court | Rel: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200508
Nola L. Wolf v. Jocelyn Pierce (Appeal from Mobile Probate Court:
19-2024).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur. | November 12, 2021 |
b31f033e-2a8d-46f1-94c1-2e0869a8bd62 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200105 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200105
Ex parte Michael Todd Scoggins and M atthew 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 M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900100).
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 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. 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 |
10c8a088-fb3d-4e13-a084-0ca3d085bfda | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200103 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200103
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 M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900098).
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 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. 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 |
1666946a-8ffd-40cc-a0ec-707c9e932d61 | Ex parte Tim Powell et al. | N/A | 1200805 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200805
Ex parte Tim Powell et al. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Tim Powell et al. v. Alabama
Credit Union Administration et al.) (Tuscaloosa Circuit Court:
CV-15-900960; Civil Appeals :
2200198).
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. Stewart, J. -
Parker, C.J., and Bolin, Bryan,
and Sellers, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 |
e9b54f69-a5c8-4cf6-b7cf-2923ec88b19b | William Miller v. Alabama State Bar | N/A | 1200555 | Alabama | Alabama Supreme Court | Rel: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200555
William Miller v. Alabama State Bar (Appeal from Alabama State Bar
Character and Fitness Committee: No. 19-1190).
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. | November 12, 2021 |
ecb4632b-eeff-4884-a393-6c251f31eeca | Ex parte Connery Keith Charles II. | N/A | 1200853 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200853
Ex parte Connery Keith Charles II. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Connery
Keith Charles II v. State of Alabama) (Madison Circuit Court:
CC-18-4715.70; Criminal Appeals :
CR-19-0866).
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. Parker, C.J. -
Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as 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 |
8e049ed3-ba2e-443f-9039-341f68a3774d | Bronner, et al. v. Barlow et al. | N/A | 1200570 | Alabama | Alabama Supreme Court | rel: November 19, 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
____________________
1200570
____________________
David G. Bronner, as secretary-treasurer of the Public
Education Employees' Health Insurance Plan, et al.
v.
Chris Barlow et al.
Appeal from Montgomery Circuit Court
(CV-14-900964)
SELLERS, Justice.
David G. Bronner, as secretary-treasurer of the Public Education
Employees' Health Insurance Plan ("PEEHIP"), and individual members
1200570
of the Board of Control of PEEHIP ("the PEEHIP Board"), the remaining
defendants in this action ("the defendants"), appeal from a summary
judgment entered in favor of the plaintiffs and members of a purported
class, who are all active public-education employees and PEEHIP
participants married to other active public-education employees and
PEEHIP participants and who have dependent children.1 We reverse and
remand.
I. Facts and Procedural History
This is the third time this dispute involving benefits under PEEHIP
has been before this Court.2 In Ex parte Retirement Systems of Alabama,
1In May 2014, James B. Burks II, Eugenia Burks, Martin A. Hester,
Jacqueline Hester, Thomas Highfield, Carol Ann Highfield, Jake Jackson,
and Melinda Jackson, individually and on behalf of a class of similarly
situated individuals, commenced a purported class action against, among
others, the defendants pursuant to 42 U.S.C. § 1983. As of February 1,
2021, all the original named plaintiffs either had retired or had a spouse
who had retired. As discussed in more detail herein, the trial court, in its
summary judgment, granted the original named plaintiffs' motion to "add"
or, in the alternative, to "substitute" as plaintiffs Chris Barlow, Jessica
Barlow, Bryan Gustafson, and Holly Gustafson, all of whom fell within the
purported class and had justiciable claims against the defendants.
2See Ex parte Retirement Systems of Alabama, 182 So. 3d 527 (Ala.
2015) (dismissing all claims except for the plaintiffs' claims for injunctive
relief, pursuant to 42 U.S.C. §1983, against the defendants); and Bronner
2
1200570
182 So. 3d 527, 530 (Ala. 2015), this Court set forth the relevant facts
regarding PEEHIP:
"PEEHIP, which is managed by the PEEHIP Board,
provides group health-insurance benefits to public-education
employees in Alabama. Each year, the PEEHIP Board submits
'to the Governor and to the Legislature the amount or amounts
necessary to fund coverage for benefits authorized by this
article [i.e., Ala. Code 1975, Title 16, Chapter 25A, Article 1]
for the following fiscal year for employees and for retired
employees as a monthly premium per active member per
month.' § 16-25A-8(b), Ala. Code 1975. That monthly premium
is paid by employers for each of their active members ('the
employer contribution'). See § 16-25A-8(a), Ala. Code 1975.
"In addition, '[e]ach employee and retired employee [is]
entitled to have his or her spouse and dependent children, as
defined by the rules and regulations of the [PEEHIP] board,
included in the coverage provided upon agreeing to pay the
employee's contribution of the health insurance premium for
such dependents.' § 16-25A-8(e), Ala. Code 1975. Section 16-
25A-1(8), Ala. Code 1975, provides, in pertinent part, that
'[i]ndividual premiums may include adjustments and
surcharges for ... family size including, but not limited to, a
husband and wife both being covered by a health insurance
plan as defined herein.' The employer contribution, as well as
'all premiums paid by employees and retired employees under
the provisions of this section and any other premiums paid
under the provisions of this article,' are deposited into [the
v. Burks, 270 So. 3d 262 (Ala. 2017) (dismissing the defendants' Rule 5,
Ala. R. App. P., permissive appeal on the basis that permission to appeal
had been improvidently granted).
3
1200570
Public Education Employees' Health Insurance Fund]. § 16-
25A-8(f), Ala. Code 1975."
Before October 1, 2010, all public-education employees participating
in PEEHIP earned a monthly "allocation" or benefit, which could be used
to obtain certain coverage alternatives under PEEHIP. The plaintiffs
describe that benefit as the difference between the "State's cost of
insurance" and the premiums public-education employees are charged for
the insurance. Under a program referred to as "the combining allocation
program," a public-education employee married to another public-
education employee could "combine" their monthly benefits and receive
"family coverage," which would also cover their dependent children,
without paying any additional monthly premium.
On May 6, 2010, the PEEHIP Board voted to eliminate "the
combining allocation program" and to phase in a new premium rate
structure ("the 2010 policy"), which requires a public-education employee
married to another public-education employee to gradually begin paying
the same monthly premiums for family hospital-medical coverage that
other PEEHIP participants were required to pay. When the 2010 policy
4
1200570
was implemented, all public-education employees participating in
PEEHIP were required to pay a $15 premium for individual coverage and
a $117 premium for family coverage.
In May 2014, the original named plaintiffs, individually and on
behalf of a class of similarly situated individuals, see note 1, supra,
commenced in the Montgomery Circuit Court a purported class action
against the defendants, among others, pursuant to 42 U.S.C. § 1983.3 In
their complaint, the original named plaintiffs sought a judgment declaring
that the 2010 policy was unconstitutional under the Due Process Clause
and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution because, they claimed, the 2010 policy denied
them and the members of the purported class a benefit for the payment
of insurance accorded every other PEEHIP participant. The original
named plaintiffs sought an order enjoining the defendants from denying
them and the members of the purported class the use of that benefit,
342 U.S.C. § 1983 creates a cause of action against any person who,
acting under color of state law, deprives someone else of "rights,
privileges, or immunities secured by the Constitution and laws."
5
1200570
which, they claimed, would permit them and the members of the
purported class to obtain family coverage at no cost. The defendants
thereafter moved for a summary judgment, which the trial court denied.
In Bronner v. Burks, 270 So. 3d 262 (Ala. 2017), this Court granted
the defendants' Rule 5, Ala. R. App. P., petition to appeal the trial court's
denial of their motion for a summary judgment. Although this Court
ultimately dismissed the appeal on the basis that permission to appeal
had been improvidently granted, we nonetheless described the disparity
alleged by the original named plaintiffs regarding the denial of a benefit:
"It appears from the materials before us that public-education
employees 'earned' or were 'eligible' for monthly coverage and
could use that benefit, at their option, to select certain
coverage alternatives. Whether described as allotments,
allocations, or units of monthly eligibility, each public-
education employee accrues a monthly insurance benefit. Each
public-education employee may use this benefit to purchase
family coverage. But, as the plaintiffs allege and the materials
before the Court confirm, when two PEEHIP participants are
married to each other, they may not use one of their accrued
benefits to purchase family coverage -- they must use both.
When compared to individual PEEHIP participants -- where
only one accrued monthly benefit can be used to purchase
family coverage -- one spouse is effectively denied the monthly
insurance benefit that accrued. In such a case, it does not
matter that the money represented by the employer
contribution is paid to [the Public Education Employees'
6
1200570
Health Insurance Fund] -- one spouse is denied the benefit of
the coverage he or she earned. It is true that, ultimately, the
premium paid for the family coverage is the same.
Nevertheless, the benefits provided are different -- the couple
is treated as though they receive only one monthly eligibility
benefit instead of two."
270 So. 3d at 269.4
Following the issuance of our opinion in Bronner, the plaintiffs filed
a motion for a summary judgment; the defendants filed a renewed motion
for a summary judgment. Following a hearing, the trial court entered a
summary judgment in favor of the plaintiffs and the purported class
members on their § 1983 claims. The trial court specifically declared that
the 2010 policy discriminated against active public-education employees
married to another active public-education employee, thus denying them
equal protection under the law. The trial court thus ordered the
defendants to "cease and desist their discriminatory conduct" to the extent
that such conduct denies the plaintiffs and the purported class members
4This Court agreed with the defendants that the allocations did not
represent a sum of money PEEHIP participants were entitled to receive
to purchase insurance. Rather, this Court noted, "the 'allocations' simply
represented a public-education employee's monthly eligibility for
insurance coverage." Bronner, 270 So. 2d at 269.
7
1200570
a benefit made available to other active public-education employees
participating in PEEHIP. 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
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. Subject-Matter Jurisdiction
Before considering the merits of this appeal, we address the
defendants' argument that this purported class action became moot as of
8
1200570
February 1, 2021, when the last of the original named plaintiffs either had
retired or had a spouse who had retired. See note 1, supra. As indicated,
the original named plaintiffs, individually and on behalf a class of
similarly situated individuals, filed a class-action complaint against the
defendants, among others. In conjunction with that complaint, the
original named plaintiffs filed a motion for class certification pursuant to
Rule 23, Ala. R. Civ. P. The defendants did not oppose that motion, nor
did they allege that class certification would be improper. Rather,
according to the trial court's summary judgment, the defendants orally
represented that, if the original named plaintiffs prevailed on the merits,
the defendants would provide the relief sought to those plaintiffs, as well
as all similarly situated individuals. Based on that representation, the
trial court deemed the motion for class certification to be moot.
As of February 1, 2021, before the entry of the summary judgment,
the last of the original named plaintiffs either had retired or had a spouse
who had retired. The defendants, thus, filed a motion to dismiss the
entire action as moot, arguing that the original named plaintiffs no longer
had a "live" claim. In response, the original named plaintiffs moved to
9
1200570
"add" or, in the alternative, to "substitute" new plaintiffs, all of whom fell
within the purported class and had justiciable claims against the
defendants. In the summary judgment, the trial court granted that
motion, explaining that, because the defendants had committed to
providing class-wide relief if the original named plaintiffs prevailed on the
merits, it retained jurisdiction to allow the "addition and/or substitution"
of plaintiffs to ensure that class-wide relief remained available even
though the original named plaintiffs may not benefit from that relief.
The defendants argue that the lack of class certification of the action
and the change in status of the original named plaintiffs since the
commencement of the action have rendered the action moot. Under the
circumstances presented, we conclude that this action is in the nature of
a class action despite the lack of a formal certification order. This case was
commenced as a class action and has proceeded accordingly for at least
seven years. The class-action complaint provides, among other things, a
description of the class affected by the alleged discrimination and the
scope of the relief requested, clearly indicating that the action was
intended to benefit a class of similarly situated public-education
10
1200570
employees. The defendants raised no objection to the propriety of this case
proceeding as a class action; rather, as indicated, they expressly
acquiesced to providing class-wide relief if the original named plaintiffs
prevailed on the merits. Finally, the issues in this case have been fully
briefed, the trial court has ordered class-wide injunctive relief, and the
case is now before this Court for appellate review.5 See, e.g., Wyatt ex rel.
Rawlins v. Poundstone, 169 F.R.D. 155, 159 (M.D. Ala. 1995) ("Where a
lawsuit has proceeded to trial as a class action, the class has been clearly
defined and redefined over the years, injunctive relief has been ordered as
to the class, all parties and the court have treated the lawsuit as a class
action, and for over 20 years no party has suggested that certification was
an issue, as is all true in this lawsuit, the case is for all intents and
5We note that the United States Court of Appeals for the Second
Circuit has held that it is unnecessary to certify a class when doing so
would be a mere formality, e.g., when plaintiffs seek only declaratory and
injunctive relief and state defendants explicitly indicate a willingness to
comply with a trial court's order regarding that relief. See Davis v. Smith,
607 F.2d 535, 540 (2d Cir.1978) ("Where retroactive monetary relief is not
at issue and the prospective benefits of declaratory and injunctive relief
will benefit all members of a proposed class to such an extent that the
certification of a class would not further the implementation of the
judgment, a district court may decline certification.").
11
1200570
purposes a class action even though no formal certification order has been
entered ...."). Because this action is in the nature of a class action, we
conclude that the trial court properly granted the original named
plaintiffs' motion to "add" or "substitute" new plaintiffs to represent the
class. See Graves v. Walton Cnty. Bd. of Educ., 686 F.2d 1135, 1138 (5th
Cir. Unit B 1982) ("It is firmly established that where a class action exists,
members of the class may intervene or be substituted as named plaintiffs
in order to keep the action alive after the claims of the original named
plaintiffs are rendered moot.").6 Accordingly, this Court will address the
propriety of the trial court's summary judgment providing the plaintiffs
and the class members (collectively referred to as "the public-education
plaintiffs") injunctive relief pursuant to § 1983.
IV. Discussion
6Cf. Jones v. Southern United Life Ins. Co., 392 So. 2d 822, 823 (Ala.
1981) ("Notwithstanding the mootness of the suit as to Mary Jones [by
accepting an offer of settlement], it is not moot as to other members of the
class, and she can continue to litigate the issues as a representative of the
class.").
12
1200570
The Equal Protection Clause of the Fourteenth Amendment provides
that no state shall "deny to any person within its jurisdiction the equal
protection of laws." U.S. Const., Amend. XIV, § 1. The import of that
clause is that a state must treat similarly situated individuals in a similar
manner. Plyler v. Doe, 457 U.S. 202, 216 (1982). The Due Process Clause
of the Fourteenth Amendment prohibits state governments from depriving
"any person of life, liberty, or property, without due process of law ...."
U.S. Const., Amend. XIV, § 1.
The public-education plaintiffs claim that the 2010 policy,
eliminating the combing allocation program, violates principles of equal
protection and due process and that the 2010 policy cannot withstand
judicial scrutiny. Because the 2010 policy neither implicates a
constitutionally protected fundamental right nor targets a suspect class,
the rational-basis test governs our analysis.7 In Northington v. Alabama
7The public-education plaintiffs assert that the 2010 policy must be
analyzed under the more stringent strict-scrutiny test because, they say,
the 2010 policy discriminates against them solely on the basis of who they
married and on the fact that they have children. Although the rights to
marry and to have children are protected fundamental rights, the 2010
policy in no way impinges on the public-education plaintiffs' rights to
13
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Department of Conservation & Natural Resources, 33 So. 3d 560, 564
(Ala. 2009), this Court stated the following regarding the rational-basis
test:
"[T]he rational-basis test is the proper test to apply to either
a substantive-due-process challenge or an equal-protection
challenge when neither a suspect class nor a fundamental
right is involved. Gideon v. Alabama State Ethics Comm'n, 379
So. 2d 570 (Ala. 1980). 'Under the rational basis test the Court
asks: (a) Whether the classification furthers a proper
governmental purpose, and (b) whether the classification is
rationally related to that purpose.' 379 So. 2d at 574.
"The law is clear that a party attacking the
constitutionality of a statute has the burden of negating every
conceivable or reasonable basis that might support the
constitutionality of the statute. Thorn v. Jefferson County, 375
So. 2d 780 (Ala.1979). Moreover, this Court will uphold a
statute as long as the statute implements any rational
purpose. State v. Colonial Pipeline Co., 471 So. 2d 408 (Ala.
Civ. App. 1984). '[A] statutory discrimination will not be set
aside if any set of facts reasonably may be conceived to justify
it.' 471 So. 2d at 412. 'Unless clearly and patently arbitrary,
oppressive and capricious on its face, such classification is not
subject to judicial review. Mere inequality under such
marry or to have children. See Parks v. City of Warner Robins, 43 F.3d
609, 614-15 (11th Cir. 1996) ("While the [anti-nepotism] policy may place
increased economic burdens on certain city employees who wish to marry
one another, the policy does not forbid them from marrying.").
14
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classification is not sufficient to invalidate a statute.' State v.
Spann, 270 Ala. 396, 400, 118 So. 2d 740, 743 (1959)."8
Finally, in addressing the equal-protection and due-process
challenges under a rational-basis analysis, this Court must presume that
the 2010 policy is valid and construe it in favor of its constitutionality. Id.
Based on the record before us, we, unlike the trial court, conclude that the
2010 policy easily passes the rational-basis test and is not
unconstitutional.
In support of their motion for a summary judgment, the defendants
submitted the affidavit of Diane Scott, the chief financial officer of
PEEHIP and of the Retirement Systems of Alabama ("the RSA"). Scott
explained that the defendants have the statutory authority and discretion
to change the terms of PEEHIP benefits, including premium rates, from
year to year. Scott stated that, because of rising health-care costs and a
$255 million funding shortfall in 2010, the defendants made the decision
8The parties do not dispute that the same principles of law regarding
our review of statutes under the rational-basis test would apply to our
review of policies implemented by an administrative agency such as the
PEEHIP Board.
15
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to eliminate the combining allocation program and to phase in a new
premium rate structure that required active public-education employees
married to another active public-education employee to gradually begin
paying the same premiums for family coverage that other PEEHIP
participants were required to pay. Scott stated that the defendants
always recognized that the combined allocation program would have to
end at some point as the result of PEEHIP's having become a group
health-insurance plan rather than remaining as the pre-1983 state
program that had given a specific dollar amount to each individual public-
education employee to purchase insurance. Scott explained that the
"benefit" accorded to each public-education employee under PEEHIP is the
right to obtain coverage upon payment of the premiums set by the
PEEHIP Board. See, e.g., § 16-25A-8(e), Ala. Code 1975 ("Each employee
... shall be entitled to have his or her spouse and dependent children, as
defined by the rules and regulations of the [PEEHIP] board, included in
the coverage provided upon agreeing to pay the employee's contribution
of the health insurance premium for such dependents." (emphasis added)).
Scott also stated that, in conjunction with approving the 2010 policy, the
16
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defendants also approved other cost-saving measures that affected all
PEEHIP participants, including increased premiums, co-payments, and
deductibles. Scott stated that the premium rates currently in effect are
among the lowest in the nation for the "robust" health coverage that
PEEHIP provides its participants. Scott finally stated that, when the
defendants considered and approved the 2010 policy, they were unaware
of any other health-insurance plan in the industry that provided premium-
free family coverage. The defendants further supported their rationale by
pointing out that the June 2010 edition (Vol. VI -- No. 3) of The Advisor,
a newsletter published by the RSA, informed PEEHIP participants that
the decision to eliminate the combining allocation program was made "to
address a real funding crisis and to ensure the sustainability of the plan
in the fairest way possible considering the overall group of 290,000
covered lives."
The public-education plaintiffs offered no evidence to rebut the
defendants' reasons for implementing the 2010 policy. The public-
education plaintiffs do not contest the defendants' statutory right to
regulate PEEHIP, nor do they dispute that the defendants have the
17
1200570
discretion to change PEEHIP's terms and benefits from year to year.
More importantly, the public-education plaintiffs do not dispute that the
defendants must provide for the financial stability of PEEHIP. In essence,
the public-education plaintiffs have maintained throughout this litigation
that they seek "only that portion of the allocation or differential that
would permit [them] to receive family coverage at no cost." Public-
education plaintiffs' brief at 40. In reality, the public-education plaintiffs
seek reinstatement of the combining allocation program, despite the fact
that the defendants exercised their discretion to eliminate that program.
Based on the evidence before us, we agree that, as a result of PEEHIP's
having become a group health-insurance plan and the need to ensure the
sustainability of PEEHIP, the defendants had to begin a process to
eliminate the combining allocation program. Although the elimination of
the combining allocation program may have financially impacted the
public-education plaintiffs more than it impacted other PEEHIP
participants, it is well settled that mere inequality resulting from such a
change is insufficient to invalidate the 2010 policy. Northington.
Furthermore, PEEHIP provides an annual plan covering certain health-
18
1200570
care costs incurred by participants during that year. That annual plan,
unlike some other employee benefits, is not a vested right that accrues
immediately upon employment, the terms of which can never be changed
for the duration of employment. To the contrary, the nature of health-
insurance coverage changes each year based on any number of factors that
the PEEHIP Board in its discretion must consider to maintain the
viability of the plan. Changing the plan, the coverage, and the nature of
the costs and benefits are annual considerations appropriately addressed
and implemented by the PEEHIP Board based on prevailing actuarial
costs as predicted for the coming year. In short, the PEEHIP Board is
constrained by financial factors existing in the market for health-care
coverage without reference to the amount of an employees' previous
premium or other options. Any board charged with obtaining health-care
coverage for such a large group must be given the discretion to annually
consider all pertinent factors and determine the terms of the plan that
will provide the greatest benefit at the lowest cost to all participants
because maximizing health-care coverage, not maximizing the benefits or
minimizing the costs to a specific group of individuals, is such a board's
19
1200570
annual goal. In this case, the evidence presented by the defendants
supports the conclusion that the 2010 policy furthers one or more
legitimate purposes and that the classifications in the 2010 policy are
rationally related to those purposes. There is nothing before us to indicate
that the defendants intended to single out the public-education plaintiffs
for disparate treatment under the 2010 policy. Accordingly, we conclude
that the 2010 policy is neither arbitrary nor discriminatory and that it
does not violate either the Equal Protection Clause or the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.
V. Conclusion
The summary judgment entered in favor of the public-education
plaintiffs on their 1983 claims and ordering injunctive relief is reversed,
and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Bolin and Wise, JJ., concur.
Parker, C.J., and Stewart, J., concur in the result.
20 | November 19, 2021 |
39747849-bc9c-4875-8418-2a787bc31680 | Ex parte Kordero Rashad Brackin. | N/A | 1210105 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210105
Ex parte Kordero Rashad Brackin. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Kordero Rashad Brackin
v. State of Alabama) (Houston Circuit Court: CC-18-48; Criminal Appeals :
CR-20-0397).
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 |
14a2b675-9588-4e10-ae0e-b4f7681d03c6 | Ex parte Porter Allen Batts. | N/A | 1200844 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200844
Ex parte Porter Allen Batts. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Porter Allen Batts v. State of
Alabama) (Madison Circuit Court: CC-90-279.61; CC-90-280.61;
CC-90-423.61; Criminal Appeals :
CR-19-0968).
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. Shaw, J. -
Shaw, J.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed 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 |
438d1b26-d420-46e7-a388-135ccb3d2979 | Ex parte Anthony Keith Williams. | N/A | 1210087 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1210087
Ex parte Anthony Keith Williams. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Anthony Keith Williams
v. Alabama Department of Corrections) (Montgomery Circuit Court:
CV-20-727; Criminal Appeals : CR-20-0558).
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 |
e85efa15-0872-46b7-b043-e255a4ae68ca | Elizabeth Wood and Leo Nagle v. Jeff Green and Sophia Green | N/A | 1200411 | Alabama | Alabama Supreme Court | Rel: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200411
Elizabeth Wood and Leo Nagle v. Jeff Green and Sophia Green (Appeal
from Jefferson Circuit Court, Bessemer Division: CV-18-900935).
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. | November 12, 2021 |
31dcfbec-a980-4caf-a8e9-b30d4bb1afd7 | Ex parte Courtney Larrell Lockhart. | N/A | 1200719 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200719
Ex parte Courtney Larrell Lockhart. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Courtney
Larrell Lockhart v. State of Alabama) (Lee Circuit Court: CC-08-197.60;
Criminal Appeals :
CR-19-0703).
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 19, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Bolin, Shaw, Wise,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 |
772cf25c-e297-4d50-bbe8-c1d354f335a1 | Ex parte Martie Patton. | N/A | 1200804 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200804
Ex parte Martie Patton. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Martie Patton v. Alabama Credit Union
Administration et al.) (Tuscaloosa Circuit Court: CV-15-900960; Civil
Appeals :
2200197).
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. Stewart, J. -
Parker, C.J., and Bolin, Bryan,
and Sellers, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 |
2d28f3eb-ae4c-452b-8ea4-63636d249db4 | Ex parte Andrew Arthur Duerr. | N/A | 1200879 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1200879
Ex parte Andrew Arthur Duerr. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: Andrew Arthur Duerr v. Anne
Marie Duerr) (Montgomery Circuit Court: DR-09-768.05; Civil Appeals :
2200288).
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 |
382725ee-97d1-41d2-8f5b-9706756bbd99 | Ex parte Michael Todd Scoggins and Matthew Tyler-Crimson Scoggins. | N/A | 1200104 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
Novem ber 19, 2021
1200104
Ex parte Michael Todd Scoggins and M atthew 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 M atthew Tyler-Crimson Scoggins,
minors) (Calhoun Circuit Court: CV-12-900099).
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 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. 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 |
e305f1c8-7076-4b6b-9efe-f8b80fbef7f5 | Pamela Haase Meisler v. Rime Construction Company, Inc. | N/A | 1200584 | Alabama | Alabama Supreme Court | REL: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200584
Pamela Haase Meisler v. Rime Construction Company, Inc. (Appeal from
Jefferson Circuit Court: CV-14-904906).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | November 12, 2021 |
907e26d2-4314-4f08-9363-a6953d0b8160 | Ex parte Gregory Wynn. | N/A | 1200848 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200848
Ex parte Gregory Wynn. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Gregory Wynn v. State of
Alabama) (Calhoun Circuit Court: CC-98-934.80; Criminal Appeals :
CR-19-0589).
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 19, 2021:
Writ Denied. No Opinion. Bolin, J. -
Shaw, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.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 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 |
555b494d-a2c8-4903-82d9-55869adfbbc4 | Ex parte S.C. | N/A | 1200820 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200820
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-19-652.02; Civil Appeals :
2200346).
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 |
e3a8ce44-237b-4392-a570-98cafe299f28 | Ex parte Endo Health Solutions Inc. et al. | N/A | 1200470 | Alabama | Alabama Supreme Court | Rel: November 19, 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
_________________________
1200470
_________________________
Ex parte Endo Health Solutions Inc. et al.
PETITION FOR WRIT OF MANDAMUS
(In re: The DCH Health Care Authority et al.
v.
Purdue Pharma L.P. et al.)
(Conecuh Circuit Court, CV-19-7)
SELLERS, Justice.
Several entities that own or operate hospitals in Alabama ("the
plaintiffs") commenced an action in the Conecuh Circuit Court ("the trial
1200470
court") against manufacturers of prescription opioid medications,
distributors of those medications, and retail pharmacies ("the
defendants"), alleging that the defendants' marketing or selling of the
medications resulted in an epidemic of opioid abuse in Alabama.1 The
1According to the complaint filed in the trial court, the plaintiffs,
who are the respondents in this mandamus proceeding, are the DCH
Health Care Authority; the Healthcare Authority for Baptist Health, an
affiliate of UAB Health System; Medical West Hospital Authority, an
affiliate of UAB Health System; Evergreen Medical Center, LLC; Gilliard
Health Services, Inc.; Crestwood Healthcare, L.P.; Triad of Alabama, LLC;
QHG of Enterprise, Inc.; Affinity Hospital, LLC; Gadsden Regional
Medical Center, LLC; Foley Hospital Corporation; the Health Care
Authority of Clarke County; BBH PBMC, LLC; BBH, WBMC, LLC; BBH
SBMC, LLC; BBH CBMC, LLC; and BBH BMC, LLC.
The defendants identified as petitioners in this mandamus
proceeding are Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.;
Par Pharmaceutical, Inc.; Par Pharmaceutical Companies, Inc.; Abbott
Laboratories; Abbott Laboratories, Inc.; Allergan Finance, LLC; Allergan
Sales,
LLC;
AmerisourceBergen
Drug
Corporation;
Amneal
Pharmaceuticals LLC; Anda, Inc.; Assertio Therapeutics, Inc., f/k/a
Depomed, Inc.; Cardinal Health, Inc.; CVS Pharmacy, Inc.; CVS Indiana,
L.L.C.; Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Kroger Co.;
Kroger Limited Partnership, II; Noramco, Inc.; Rite Aid of Alabama, Inc.;
Rite Aid of Maryland, Inc.; Henry Schein, Inc.; H.D. Smith, LLC, f/k/a
H.D. Smith Wholesale Drug Co.; Teva Pharmaceuticals USA, Inc.;
Cephalon, Inc.; Watson Laboratories, Inc.; Actavis LLC; Actavis Pharma,
Inc.; Walgreen Co.; Walgreen Eastern Co., Inc.; Walmart Inc.; and
Wal-Mart Stores East, LP.
2
1200470
plaintiffs sought to recover unreimbursed medical expenses incurred in
treating individuals with opioid-related medical conditions. Among other
theories of liability, the plaintiffs asserted that the defendants had created
a public nuisance in the form of the epidemic.
The trial court entered a case-management order directing the
parties to try each of the plaintiffs' causes of action separately. The
public-nuisance claim is to be tried first and is itself to be bifurcated into
two separate trials. The first trial on the public-nuisance claim is to
involve "liability," and the second trial is to involve "special damage." The
defendants, asserting that the trial court had erred in bifurcating the
public-nuisance claim, petitioned this Court for a writ of mandamus
directing the trial court to vacate the relevant portion of the case-
management order. We grant the petition and issue the writ.2
2The defendants' mandamus petition also challenges the portion of
the case-management order directing the parties to try each of the
plaintiffs' causes of action separately. This Court, however, by a separate
order issued on July 19, 2021, summarily denied all aspects of the
mandamus petition other than the portion directed at bifurcation of the
public-nuisance claim.
3
1200470
"Nuisances are either public or private. A public nuisance
is one which damages all persons who come within the sphere
of its operation, though it may vary in its effects on
individuals. A private nuisance is one limited in its injurious
effects to one or a few individuals. Generally, a public nuisance
gives no right of action to any individual, but must be abated
by a process instituted in the name of the state. A private
nuisance gives a right of action to the person injured."
§ 6-5-121, Ala. Code 1975 (emphasis added). However, "[i]f a public
nuisance causes a special damage to an individual in which the public
does not participate, such special damage gives a right of action." §
6-5-123, Ala. Code 1975. Thus, a nuisance that can be considered public
in nature can nevertheless be the basis of a cause of action brought by an
individual plaintiff if the plaintiff incurs " 'special damage' that is different
in 'kind and degree from [the damage] suffered by the public in general.'
City of Birmingham v. City of Fairfield, 375 So. 2d 438, 441 (Ala. 1979);
Ala. Code 1975 § 6-5-123." Russell Corp. v. Sullivan, 790 So. 2d 940, 951
(Ala. 2001). See also First Ave. Coal & Lumber Co. v. Johnson, 171 Ala.
470, 475, 54 So. 598, 600 (1911) ("A nuisance may be at the same time
both of a public and of a private character."). In their complaint, the
plaintiffs asserted that they had "suffered a special injury, different from
4
1200470
that suffered by the public at large, by individual users [of the opioid
medications] and by governmental entities, namely that Plaintiffs have
provided uncompensated care for patients suffering from opioid-related
conditions and incurred elevated operational costs."
The trial court's case-management order provides:
"Pursuant to Rule 42(b)[, Ala. R. Civ. P.], the Court is
scheduling as Track 1 claims by the plaintiffs under the public
nuisance count of the complaint. To avoid unduly burdening
the jury, this issue will be bifurcated and tried in two separate
and distinct phases. On May 16, 2022, this matter is
scheduled for a jury trial on the issue of the defendants'
liability for public nuisance. Special damage claims caused by
the public nuisance, if any, shall be set for a separate jury trial
upon conclusion of the initial trial phase, if necessary. All
other claims brought by the Plaintiffs are stayed pending
resolution of the initial public nuisance trial."
After entry of the case-management order, the defendants timely filed
their petition for a writ of mandamus.3
3Before filing their mandamus petition, the defendants filed a motion
requesting that the trial court reconsider and vacate the case-
management order. There is no order before us on the motion to
reconsider and vacate. However, after the mandamus petition was filed,
the trial court entered another case-management order setting forth a
discovery schedule with respect to the public-nuisance claim. The
plaintiffs, in their brief to this Court, assert that the mandamus petition
should be dismissed because the defendants did not supplement their
5
1200470
" '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). A petition for a writ of
mandamus is an appropriate means of seeking review of an order calling
for separate trials. Ex parte Brookwood Med. Ctr., 994 So. 2d 264, 268
(Ala. 2008); Ex parte Skelton, 459 So. 2d 825 (Ala. 1984).
petition to challenge the latest case-management order. However, nothing
in the latest case-management order alters the portion of the earlier case-
management order directing that the public-nuisance claim be tried in
separate phases. In fact, the latest case-management order notes that,
pursuant to the earlier case-management order, "the [trial court] has
scheduled a bifurcated trial on the Plaintiffs' public nuisance claim." That
aspect of the earlier case-management order has not been superseded and
is still controlling in the trial court.
6
1200470
The defendants describe the requirement that an individual prove
"special damage" to obtain a remedy for an otherwise public nuisance as
implicating the individual's "standing" to seek a remedy for the nuisance.
And, because "[t]he question of standing implicates the subject-matter
jurisdiction of the court," Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.
3d 315, 319 (Ala. 2011), and because subject-matter jurisdiction has been
described as a "threshold" issue, Moore v. City of Center Point, 319 So. 3d
1223, 1228 (Ala. 2020), the defendants assert that the plaintiffs should be
required to establish first that they suffered special damage from the
alleged public nuisance. Thus, they argue, the trial court erred in
directing that the issue of special damage be tried after the issue of the
defendants' "liability."
In support of their jurisdiction-based argument, the defendants point
to Russell Corp. v. Sullivan, 790 So. 2d 940, 951 (Ala. 2001), which simply
acknowledges that an individual who has incurred special damage can
seek to remedy a nuisance that would otherwise be considered a purely
public nuisance. Russell Corp. makes no mention of standing or subject-
matter jurisdiction. The defendants also point to Sloss-Sheffield Steel &
7
1200470
Iron Co. v. Johnson, 147 Ala. 384, 386, 41 So. 907, 908 (1906), which
states:
"The general rule is that a private individual, who suffers
no damage different from that sustained by the public at large,
has no standing in court for the abatement of a public
nuisance; but, if he sustains an individual or specific damage
in addition to that suffered by the public, he may sue to have
the same abated if the remedy at law is inadequate."
Although the Court in Sloss-Sheffield did state that an individual without
special damage "has no standing in court for the abatement of a public
nuisance," id., the opinion in that case makes no express mention of
subject-matter jurisdiction. Sloss-Sheffield does not clearly hold that an
individual who brings a public-nuisance action and alleges facts that are
claimed to constitute special damage, but ultimately is unable to prove
those facts, lacks standing and, thus, that the trial court never acquired
subject-matter jurisdiction over the action. Russell Corp. and Sloss-
Sheffield are the only cases cited in the mandamus petition in support of
the defendants' assertion that the plaintiffs must prove special damage to
8
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demonstrate the "standing" necessary for the trial court to acquire
subject-matter jurisdiction over the public-nuisance claim.4
In Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31 (Ala.
2013), this Court considered two trial-court rulings in separate ejectment
actions commenced pursuant to § 6-6-280(b), Ala. Code 1975, which
requires a plaintiff in such an action to establish that he or she "was
possessed of the premises or has the legal title thereto." The Court held
that arguments asserting that the plaintiffs had failed to establish that
they had possession or legal title to the properties at issue did not
4In their reply brief, the defendants cite Lower Commerce Insurance,
Inc. v. Halliday, 636 So. 2d 430, 432 (Ala. Civ. App. 1994), which held that
a plaintiff seeking to enjoin an alleged public nuisance had failed to allege
and prove special damage and therefore "did not meet her burden to show
that she ha[d] standing as an individual to maintain an action to enjoin
a public nuisance." Like the other cases upon which the defendants rely,
there was no mention of the trial court's subject-matter jurisdiction in
Lower Commerce Insurance. Likewise, two unreported cases from federal
district courts applying Alabama nuisance law, although they used the
term "standing" when concluding that the plaintiffs did not incur special
damage, did not discuss subject-matter jurisdiction. In any event, the
opinions in those cases are not binding on this Court. The other opinions
in cases cited by the defendants in their reply brief that refer to an
individual's "standing" to pursue a public-nuisance claim were issued by
courts in other jurisdictions, are not binding here, and did not involve
public-nuisance actions under Alabama law.
9
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implicate standing and subject-matter jurisdiction. Rather, this Court
held, establishing possession or legal title was simply an element of the
plaintiffs' ejectment claims. In other words, if the plaintiffs in BAC Home
Loans had failed to demonstrate that they had possession or legal title,
they did not "have a 'standing' problem" but, instead, "a 'failure to prove
one's cause of action' problem." 159 So. 3d at 46. In so holding, the Court
noted that, in past decisions, the Court had "been too 'loose' in its use of
the term 'standing.' " Id. at 39. The Court indicated that the concept of
standing, as it affects subject-matter jurisdiction, is generally relevant
only in public-law cases as opposed to private-law cases:
"[T]he concept [of standing] appears to have no necessary role
to play in respect to private-law actions, which, unlike public-
law cases (for example, a suit against the Secretary of Interior
to construe and enforce an environmental regulation designed
to protect wildlife), come with established elements that define
an adversarial relationship and 'controversy' sufficient to
justify judicial intervention. In private-law actions (e.g., a
claim of negligence or, as here, a statutory claim for
ejectment), if the elements are met, the plaintiff is entitled to
judicial intervention; if they are not met, then the plaintiff is
not entitled to judicial intervention."
10
1200470
Id. at 44. See also Ex parte Skelton, 275 So. 3d 144, 151 (Ala. 2018)
("[T]he doctrine of standing (particularly as a jurisdictional concept) has
no application in this private-law case.").
The defendants, as the petitioners, bear the burden here. We are
not convinced by their arguments that the special-damage requirement is
a prerequisite to an individual's obtaining standing or the court's
obtaining subject-matter jurisdiction rather than simply being one of the
requirements necessary for an individual to state a valid claim seeking to
remedy an alleged public nuisance. See BAC Home Loans, 159 So. 3d at
45 (noting that " '[t]he question whether the law recognizes the cause of
action stated by a plaintiff is frequently transformed into inappropriate
standing terms' " (quoting 13A Charles Alan Wright et al., Federal
Practice & Procedure § 3531 (2008))). The defendants have not
demonstrated that if the plaintiffs ultimately fail to prove that they have
suffered special damage, then they lack standing, as opposed to simply
having failed to prove an element of their claim. Id. at 46 (overruling
precedent to the extent it held "that a plaintiff in an ejectment action
lacks 'standing' if it cannot prove one of the elements of its claim (namely,
11
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legal title or the right to possession of the property) and that the trial
court in turn lacks subject-matter jurisdiction over that claim").5
The defendants assert that, even if the special-damage requirement
does not implicate what they describe as "threshold" issues of standing
and subject-matter jurisdiction, the trial court nevertheless erred in
ordering separate trials on "liability" and "special damage" because, they
assert, the two trials will involve significant overlapping issues and
evidence. We agree.
The defendants assert that "injury is an essential element on the
nuisance count" and that the plaintiffs therefore "will need to prove in the
liability phase that they incurred uncompensated costs [of providing
medical care] proximately caused by Defendants' alleged wrongful
conduct." Petition at 21. They assert that doing so will require evidence
demonstrating that unreimbursed medical costs were incurred by the
plaintiffs as a result of their patients' use of opioid medications, evidence
of the circumstances under which patients obtained the medications, and
5We are not tasked in this mandamus proceeding with determining
whether the plaintiffs have indeed suffered special damage.
12
1200470
evidence demonstrating that the defendants' conduct caused the plaintiffs
to incur the costs. In their reply brief, the defendants make a related
assertion that, because a defendant is liable to an individual seeking to
remedy a public nuisance only if the individual can show the existence of
special damage, "any trial to adjudicate Defendants' alleged liability on
the public nuisance claim would have to include an adjudication of all
elements of that claim, including special damages." Defendants reply
brief at 8. Regarding the second trial, which, according to the case-
management order at issue, will involve "[s]pecial damage claims caused
by the public nuisance," the defendants assert that the plaintiffs will
again be required to prove that they incurred uncompensated costs of
providing medical care. Thus, according to the defendants, the two trials
will essentially require presentation of the same evidence to two different
juries and will result in "having two different juries consider the same
question." Petition at 18.
For their part, the plaintiffs appear to suggest that the first trial will
involve only the issue whether the defendants created a public nuisance,
while the second trial will involve whether the plaintiffs suffered special
13
1200470
damage as a result of that nuisance and, if so, the amount of their
damages. Although statements made by the trial-court judge during the
hearing on the defendants' motion to reconsider and vacate the case-
management order, see note 3, supra, could be construed as offering some
support for the plaintiffs' interpretation of that order, the actual language
used in the order to describe the topic of the first trial -- namely, "the
defendants' liability for public nuisance" -- is certainly broad enough to
include the issue of special damage. See Black's Law Dictionary 1097
(11th ed. 2019) (defining "liability" as "[t]he quality, state, or condition of
being legally obligated or accountable; legal responsibility to another or
to society, enforceable by civil remedy or criminal punishment"). It is
uncontested that, for an individual plaintiff to establish that a defendant
is legally accountable to, or has legal responsibility to, the plaintiff for a
public nuisance, the plaintiff must prove special damage. In other words,
the parties agree that the existence of special damage is an element of
liability. As the defendants assert, their "liability" depends on proof that
their conduct proximately caused the plaintiffs to incur uncompensated
costs in treating opioid-related medical conditions and that that damage
14
1200470
is different in kind and degree than the damage suffered by the general
public.
This Court's precedent indicates that we should construe the trial
court's order based on the literal meaning of its language. See Deutsche
Bank Nat'l Tr. Co. v. Karr, 306 So. 3d 882, 888 (Ala. 2020) ("In
interpreting the substance of [an] order, we must examine the language
used in that order. 'Judgments and decrees are to be construed like other
written 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)."). Based on the literal meaning of the language used in the trial
court's order, the first trial necessarily must involve the issue of special
damage proximately caused by the defendants' conduct.
The plaintiffs rely in part on Coburn v. American Liberty Insurance
Co., 341 So. 2d 717 (Ala. 1977), in which this Court held that a trial court
had not exceeded its discretion in ordering separate trials on the issues of
liability and the amount of damages in a personal-injury action involving
15
1200470
multiple parties and multiple theories of liability. In doing so, however,
the Court offered the following word of caution:
"Nothing contained in this opinion should be construed as
approving the separation of the issues of liability and damages
in personal injury cases as a matter of routine. Ordinarily,
these issues are not to be separated for purposes of trial; and
any speculative savings of time and expense, which may result
from routine bifurcation of jury negligence trials, does not
constitute sufficient grounds for exercise of the severance
prerogatives of Rule 42(b)[, Ala. R. Civ. P.]. Within the spirit
of Rule 42(b), separation of issues of liability from those
relating to damages, while authorized, is to be ordered
sparingly and in those rare and exceptional cases of which the
instant case should serve as an example."
341 So. 2d at 719. Moreover, Coburn did not involve an attempt by an
individual to remedy a public nuisance when the issues of liability and
damages are so closely intertwined.
Rule 42(b) authorizes separate trials "in furtherance of convenience
or to avoid prejudice, or when separate trials will be conducive to
expedition and economy." See generally Ex parte Skelton, 459 So. 2d at
826 ("In a case such as this, a separate trial should be granted only if it
appears prejudice to a defendant or inconvenience to the trial court
demands such treatment."). "Although we have recognized that a trial
16
1200470
court has broad discretion to 'shape the order of trial' and to order
severance or separate trials, Ex parte Humana Medical Corp., 597 So. 2d
670 (Ala. 1992), that discretion is not unbounded." Ex parte Daniels, 264
So. 3d 865, 870 (Ala. 2018).
In sum, for an individual plaintiff to hold a defendant liable in a
public-nuisance case, the plaintiff must show the existence of special
damage. This will require the plaintiffs in this case to identify and
quantify all the damage caused by the defendants and the damage
incurred by the plaintiffs to establish that the damage to the plaintiffs is
different in kind and degree than the damage experienced by the general
public. Sophisticated testimony regarding uncompensated medical costs
and how those costs damaged each plaintiff in a way that was not felt by
the general public must be adduced. And, the evidence needed to prove
special damage that will establish "liability" in the first trial would be the
same evidence required in the second trial, resulting in a duplication of
effort and the squandering of judicial resources. Accordingly, conducting
a trial on the issue of the defendants' "liability" for a public nuisance and
a second trial on "special damage" neither avoids prejudice nor furthers
17
1200470
convenience, expedition, or economy. See Rule 42(b). We can only
conclude that the trial court exceeded its discretion. We therefore grant
the defendants' petition and issue a writ of mandamus. The trial court is
directed to vacate the relevant portion of the case-management order in
a manner consistent with this opinion.
PETITION GRANTED; WRIT ISSUED.
Shaw and Bryan, JJ., concur.
Bolin, J., concurs specially.
Wise and Stewart, JJ., concur in the result.
Parker, C.J., and Mendheim, J., dissent.
Mitchell, J., recuses himself.
18
1200470
BOLIN, Justice (concurring specially).
I agree with the main opinion that the defendants (manufacturers
of prescription opioid medications, distributors of those medications, and
retail pharmacies) are entitled a writ of mandamus ordering the trial
court to vacate its case-management order insofar as it provides for
bifurcated trials on liability for a public nuisance and, if necessary, on
"special damage."
In their complaint, the plaintiffs (entities that own or operate
hospitals in Alabama) alleged that they had suffered special damage from
the alleged public nuisance caused by the defendants:
"As a result of Defendants' actions, Plaintiffs have
suffered a special injury, different from that suffered by the
public at large, by individual users and by governmental
entities, namely that Plaintiffs have provided uncompensated
care for patients suffering from opioid-related conditions and
incurred elevated operational costs.
"The public nuisance -- i.e., the opioid epidemic -- created,
perpetuated, and maintained by Defendants can be abated and
further recurrence of such harm and inconvenience can be
abated.
"Defendants should be required to pay the expenses
Plaintiffs have incurred or will incur in the future to fully
abate the nuisance.
19
1200470
"....
"The acts forming the basis of the nuisance claim against
the Defendants were wanton, malicious and/or attended with
circumstances of aggravation.
"Therefore, Plaintiffs demand judgment in their favor
against the Defendants for injunctive relief, abatement of the
public nuisance, and for damages in an amount to be
determined by a jury, together with all cost of this action,
including prejudgment interest, post-judgment interest, costs
and expenses, attorney fees, and such other relief as this
Court deems just and equitable."
I recognize that the trial court, in its case-management order,
sought to avoid overwhelming the jury with the possibility of the specter
of voluminous special damages incurred by the plaintiffs. I write specially
to opine that the use of a special master appointed pursuant to Rule 53,
Ala. R. Civ. P., could aid the trial court and the jury in this complicated
case.
"The appointment of a special master lies within the
sound discretion of the trial court, and its decision to appoint
a special master should not be reversed unless the trial court
clearly exceeds that discretion. Hall v. Mazzone, 540 So. 2d
1353 (Ala.1988). In a jury trial, a case should be referred to a
special master only if the issues are 'complicated'; those
matters to be tried without a jury are to be referred to a
special master only upon finding of 'some exceptional
condition' requiring such referral, unless a claim requires an
20
1200470
accounting or a difficult computation of damages. We
emphasize the sentence in Rule 53(b)[, Ala. R. Civ. P.,] that
precedes the applicable standard (jury or nonjury) that tells us
that the reference to a special master is the exception not the
rule."
Ex parte Alabama State Pers. Bd., 54 So. 3d 886, 892-93 (Ala. 2010).
Assuming that a jury finds in favor of the plaintiffs on their alleged
causes of action, a court-appointed special master may well be of benefit
to the trial court in conserving the finite judicial resources available to it,
as well as in relieving the jury of the substantial burden of hearing
testimony or reviewing records pertaining to an accounting of the costs of
treatment of each individual patient found to be affected.
I applaud the trial-court judge for trying to conduct the proceedings
in this case in a manner that fully secures the rights of each party to this
litigation while fairly limiting the jurors' time and the court's time in
reaching a verdict and a judgment in this matter.
21 | November 19, 2021 |
4d408b75-ced3-450b-8ee9-d8f533f58410 | Ex parte John Dee Carruth. | N/A | 1200808 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200808
Ex parte John Dee Carruth. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: John Dee Carruth v. Alabama
Credit Union Administration et al.) (Tuscaloosa Circuit Court:
CV-15-900964; Civil Appeals :
2200206).
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. Stewart, J. -
Parker, C.J., and Bolin, Bryan,
and Sellers, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 |
6f1e2f20-e575-49cd-96e5-70529eeadd34 | Ex parte D.K. | N/A | 1200898 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200898
Ex parte D.K. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: D.K. v. Madison County Department of Human
Resources) (Madison Juvenile Court: JU-19-888.02; Civil Appeals :
2200336).
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. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
6a37c65a-e7f0-4a25-bb44-efc4c048799a | Ex parte Joseph Ryan Carter. | N/A | 1200897 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200897
Ex parte Joseph Ryan Carter. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Joseph Ryan Carter v. State
of Alabama) (Mobile Circuit Court: CC-17-5263; Criminal Appeals :
CR-19-0852).
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. 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. 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 |
a83fbeea-7650-48f0-ba3b-2205b4c97396 | Ex parte Karen H. Jackson, as guardian ad litem for H.S. | N/A | 1210023 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210023
Ex parte Karen H. Jackson, as guardian ad litem for H.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for H.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-384.01; Civil Appeals :
2200278).
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. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
a4dd4ea7-83a0-43a4-bdd4-ab4fc9a4e552 | Cedric Sewer and Monster Mulching, LLC v. Gwendolyn Mosley | N/A | 1190774 | Alabama | Alabama Supreme Court | Rel: November 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1190774
Cedric Sewer and Monster Mulching, LLC v. Gwendolyn Mosley (Appeal
from Mobile Circuit Court: CV-18-902139).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur. | November 12, 2021 |
9fd242a2-869a-4202-856a-0f4767d6fc6f | Ex parte A.M. | N/A | 1190516 | 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
1190516
Ex parte AM. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
(In re: A.M. v. Lauderdale County Department of Human Resources) (Lauderdale Juvenile
Court: JU-15-558.03; Civil Appeals :
2180988).
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 |
03b57e93-3152-4cd4-b470-a5ccf9f824a6 | Ex parte Virginia O'Melia Macpherson. | N/A | 1200797 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200797
Ex parte Virginia O'Melia Macpherson. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Virginia
O'Melia Macpherson v. John Ritchie Macpherson III) (Baldwin Circuit
Court: DR-13-901143.02; Civil Appeals :
2200006).
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. 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. 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 |
1aa9df2b-95eb-4c51-95c2-746576c5230f | Ex parte Carla Gray and Randall Lipscomb. | N/A | 1200691 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 19, 2021
1200691
Ex parte Carla Gray and Randall Lipscomb. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re:
State of Alabama v. Carla Gray and Randall Lipscomb) (Lee Circuit Court:
CC-19-878; CC-19-935; Criminal Appeals :
CR-19-1110).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 19, 2021:
Writ Quashed. No Opinion. Bolin, J. -
Parker, C.J., and Shaw, Wise,
Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 19, 2021 |
1182a963-447e-429d-8d60-438a2af6a366 | Ex parte K.V.D. | N/A | 1200837 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200837
Ex parte K.V.D. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: K.V.D. v. State of Alabama) (Montgomery
Juvenile Court: JU-07-895.07; JU-07-895.08; Criminal Appeals :
CR-20-0159).
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. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
d1584ed0-2838-42c3-97d8-484fd33508df | Dolgencorp, LLC, d/b/a Dollar General, and Martin Sauceda v. Sakeena Rena Smith | N/A | 1190570 | Alabama | Alabama Supreme Court | REL: November 5, 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
____________________
1190570
____________________
Dolgencorp, LLC, d/b/a Dollar General, and Martin Sauceda
v.
Sakeena Rena Smith
Appeal from Calhoun Circuit Court
(CV-16-900444.80)
MENDHEIM, Justice.1
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Mendheim on August 26, 2021.
1190570
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(B) and (F), Ala. R. App. P.
Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
Parker, C.J., and Bolin and Shaw, JJ., dissent.
2
1190570
SHAW, Justice (dissenting).
Dolgencorp, LLC, d/b/a Dollar General ("Dollar General"), and
Martin Sauceda, the defendants in a tort action below, appeal from a
judgment entered on a jury verdict in favor of the plaintiff, Sakeena Rena
Smith. Because I would reverse the trial court's judgment and remand the
case, I respectfully dissent.
In July 2016, Smith went to a Dollar General store in Anniston to
purchase a beverage and a can of chili. While in the store, an altercation
occurred between Smith and Sauceda, the assistant store manager. Smith
and Sauceda provided differing accounts regarding the altercation.
According to Sauceda, Smith passed by him while walking through
the store cursing as Sauceda was stocking shelves. When he asked Smith
if she needed help finding anything, Smith cursed at him in saying that
she did not need his help. Sauceda stated that he "let her go on her way"
and that he went back to stocking the shelves.
After locating her items to purchase, Smith proceeded to the front
of the store to check out. When Sauceda got to the front of the store, he
told Smith that she could check out at his register, but Smith responded
3
1190570
with curses and indicated that she was fine where she was. Sauceda then
told Smith that "that's no way to speak in the store" and asked her to
"calm down." According to Sauceda, at that point, Smith "became more
agitated and aggravated" and "just kept cussing, throwing a lot of F words
here and there." As their exchange continued, Smith threatened to "knock
the hell out of [Sauceda] with [her] can of chili" and that she was going to
"whoop [his] ass."
Sauceda told Smith that if she did not calm down, she would have
to leave the store or he would call the police. At some point, Smith
grabbed a store telephone that was near the register and threatened to
call the police herself. According to Sauceda, this scared him because that
telephone was his only means of contacting law-enforcement officers if
Smith attempted to harm him. Sauceda eventually walked around the
register and tried to retrieve the telephone from Smith. As he did so,
Sauceda stated, Smith grabbed him by the hair and began repeatedly
hitting him in the face and head with the can of chili. Evidence in the
record clearly indicates that Sauceda was beaten on the face with the can.
Sauceda admitted to hitting Smith back but said that he felt that he had
4
1190570
to do so to defend himself. At some point, Sauceda's coworker tried to
separate Smith and Sauceda but was unable to do so. The altercation
ended with all three of them falling on the ground.
Shortly thereafter, Smith got up and left the store, and Sauceda
called the police. While he was on the phone, Sauceda said, Smith came
back into the store acting like "she was ready for round two" and told him
that he was "in f*****g trouble." She then left. When law-enforcement
officers arrived, Sauceda told them what had occurred, but Smith was no
longer there. Smith did not contact law-enforcement officers after she left.
Smith testified that, when she first entered the store, she recognized
Sauceda as a store employee who had previously accused her of
shoplifting, and Smith decided to avoid him. After locating the items she
needed, Smith proceeded to the front of the store to check out. When
Sauceda opened another register and told her to check out there, Smith
told Sauceda that she was fine where she was. Smith claimed that
Sauceda then walked over to where she was and began moving her items
to his register. Smith said that Sauceda also told her that if she did not
come to his register, she would need to leave the store. According to
5
1190570
Smith, Sauceda's actions "made [her] feel angry," and she told him that he
could not make her leave. At that point, Smith said that Sauceda pointed
his finger in her face and told her, once more, to either come to his register
or leave the store. Smith also indicated that he called her a "b***h." She
told Sauceda that if he did not leave her alone she would "knock the hell
out of him with [her] can of chili."
Smith said that she felt uncomfortable, so she took the store phone
so that she could call the police. Sauceda then tried to grab the phone from
Smith's hands. As he did so, Smith said, she turned her back toward him.
Smith testified that Sauceda eventually put all of his weight on her, which
resulted in her falling to the ground. As she tried to push Sauceda off of
her, Smith said, he started hitting and kicking her. In an effort to defend
herself, Smith said, she hit Sauceda with her can of chili. At that point,
Smith said, she hit her head on the floor and Sauceda continued to hit and
kick her. When the altercation finally ended, Smith said, she got up and
left.
Smith later commenced a tort action against Dollar General and
Sauceda ("the defendants"). Following a jury trial, Smith received a
6
1190570
verdict in her favor and was awarded $75,000 in compensatory damages
and $225,000 in punitive damages. After the trial court entered judgment
on the jury's verdict, the defendants filed a postjudgment motion in which
they argued, among other things, that they were entitled to a new trial
because one of the jurors, Q.M., had failed to give a necessary response to
a question during voir dire. That motion was denied by operation of law
pursuant to Rule 59.1, Ala. R. Civ. P. The defendants appealed.
A challenge alleging juror misconduct because of a juror's failure to
properly answer a question during voir dire may be raised for the first
time in a motion for a new trial. See, e.g., Hood v. McElroy, 127 So. 3d
325, 327 (Ala. 2011), and Holly v. Huntsville Hosp., 925 So. 2d 160, 161
(Ala. 2005). In addressing the standard for determining whether juror
misconduct warrants a new trial, this Court has previously stated:
"The proper standard ..., as set out by this Court's
precedent, is whether the misconduct might have prejudiced,
not whether it actually did prejudice, the [complaining party].
See Ex parte Stewart, 659 So. 2d 12 (Ala. 1993). ... The
'might-have-been-prejudiced' standard, of course, casts a
'lighter' burden on the [complaining party] than the
actual-prejudice standard. See Tomlin v. State, ... 695 So. 2d
[157] at 170 [(Ala. Crim. App. 1996)]. ...
7
1190570
"It is true that the parties in a case are entitled to true
and honest answers to their questions on voir dire, so that they
may exercise their peremptory strikes wisely. ... However, not
every failure to respond properly to questions propounded
during voir dire 'automatically entitles [the complaining party]
to a new trial or reversal of the cause on appeal.' Freeman v.
Hall, 286 Ala. 161, 166, 238 So. 2d 330, 335 (1970). ... As
stated previously, the proper standard to apply in determining
whether a party is entitled to a new trial in this circumstance
is 'whether the [the complaining party] might have been
prejudiced by a veniremember's failure to make a proper
response.' Ex parte Stewart, 659 So. 2d at 124."
Ex parte Dobyne, 805 So. 2d 763, 771-72 (Ala. 2001). " 'The determination
of whether the complaining party was prejudiced by a juror's failure to
answer voir dire questions is a matter within the discretion of the trial
court and will not be reversed unless the court has abused its discretion.' "
Holly, 925 So. 2d at 162 (quoting Union Mortg. Co. v. Barlow, 595 So. 2d
1335, 1342 (Ala. 1992)).
In the present case, during voir dire, Smith's counsel posed the
following question to the veniremembers:
"Now, as far as the altercation in this case, it was something
that started as a verbal altercation, and then it became
physical. I am going to ask the question if anybody in here has
ever been in a physical fight. If it is something that you don't
want to talk about ... then we can talk about it at the end. But
8
1190570
has anyone ever been in a physical fight, and are you okay to
talk about it?"
One veniremember responded that he had gotten into many physical
fights with his siblings when he was growing up. Another veniremember
admitted that she had been in a physical altercation with her mother and
sister. Both of those veniremembers were ultimately struck from the jury.
Q.M., however, did not respond to the question.
After the jury rendered its verdict and the trial ended, defense
counsel discovered an online newspaper article from November 2014 that
stated that Q.M. was among six high-school football players who had been
suspended from playing in a high-school playoff game because they had
been involved in an "incident" during a previous game. According to the
article, the incident had occurred toward the end of the game, when the
final play ended near one team's bench, which resulted in both teams
running onto the field and players confronting each other. Witnesses
described the six players that were ultimately suspended as having been
"under attack" by players from the other team, with one of Q.M.'s
teammates stating: "I didn't want to go out and fight with [the other
9
1190570
team's players] .... [But when] they came off their sideline and got into it
with my teammates, I [wasn't] going to let that happen."
In light of that newspaper article, the defendants argued that Q.M.'s
failure to disclose information about the fight had denied them the
opportunity to exercise a peremptory challenge to strike him from the
venire. In support of their motion, the defendants attached a copy of the
November 2014 article along with affidavits from their trial counsel. In
each of their affidavits, the defendants' attorneys confirmed that Q.M. did
not respond when asked if any of the jurors had ever been involved in a
physical fight and explained that, had they known about the fight
discussed in the November 2014 article, they would have used a
peremptory strike to remove Q.M. from the jury. As stated previously,
that motion was denied by operation of law.
On appeal, the defendants maintain their position that Q.M.'s failure
to disclose his involvement in the fight at his high-school football game
requires a new trial. Smith contends, however, that, although the
defendants included with their motion for a new trial a copy of the online
article and affidavits from their trial counsel, the evidence on the motion
10
1190570
for a new trial was neither presented to the trial court in a hearing on
that motion nor properly "verified" by the defendants' trial counsel.
Our appellate courts have previously recognized:
" 'Assertions of counsel in an unverified[ or unsupported]
motion for new trial are bare allegations and cannot be
considered as evidence or proof of the facts alleged.' Smith v.
State, 364 So. 2d 1, 14 (Ala. Cr. App. 1978). 'A motion for a
new trial must be heard and determined on the evidence
submitted on that motion and on the evidence heard on the
main trial, though not reintroduced.' Taylor v. State, 222 Ala.
140, 141, 131 So. 236[, 238] (1930)."
Daniels v. State, 416 So. 2d 760, 762 (Ala. Crim. App. 1982) (emphasis
added). It is when nothing is offered in support of a motion for a new trial
-- by verification or evidence -- that the assertions contained in the motion
are deemed unsupported "bare allegations" requiring the denial of the
motion. Id.
Affidavits may be used to support a motion for a new trial. See Loera
v. Loera, 553 So. 2d 128, 128 (Ala. Civ. App. 1989), and Rule 43(e), Ala. R.
Civ. P. The defendants' trial counsel each submitted affidavits in which
they stated that, had they known that Q.M. was involved in the fight
11
1190570
following the high-school football game, they would have struck him from
the jury, just as had been done with other similarly situated jurors.
This Court has previously stated that affidavits in support of a
motion for a new trial " 'should be based on the knowledge of the affiant,
and not on hearsay, ' " and that " 'hearsay evidence is not admissible in
support of a motion for new trial.' " Jefferson Cnty. v. Kellum, 630 So. 2d
426, 427-28 (Ala. 1993) (quoting 66 C.J.S. New Trial § 172 (1970)).
Generally, newspaper articles, like the one in the present case, constitute
hearsay. See Ex parte Monsanto Co., 862 So. 2d 595, 627 (Ala. 2003).
Nevertheless, this Court has held that "an affidavit containing hearsay ...
is competent evidence in support of a motion for a new trial" when no
objection to that affidavit is made. Petty-Fitzmaurice v. Steen, 871 So. 2d
771, 775 (Ala. 2003). Nothing in the record indicates that Smith objected
either to the November 2014 article or to the contents of the affidavits
submitted in support of the motion for a new trial. Thus, contrary to
Smith's contention, the defendants provided "competent evidence" in
support of their motion for a new trial. Id.
12
1190570
Smith also argues, however, that the defendants still have not
established that they were prejudiced by Q.M.'s failure to disclose the
information at issue.
" 'Although the factors upon which the trial court's
determination of prejudice is made must necessarily vary from
case to case, some of the factors which other courts have
considered pertinent are: temporal remoteness of the matter
inquired about, the ambiguity of the question propounded, the
prospective juror's inadvertence or willfulness in falsifying or
failing to answer, the failure of the juror to recollect, and the
materiality of the matter inquired about.' "
Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 5 (Ala. 2007)
(quoting Freeman v. Hall, 286 Ala. 161, 167, 238 So. 2d 330, 336 (1970)).
First, with regard to temporal remoteness, the matter about which
juror Q.M. failed to respond -- the fight at his high-school football game --
took place in November 2014. The trial in the present case began in
November 2019. Smith points to that length of time, states that the
incident occurred when Q.M. "was a school boy," and concludes that the
remoteness of the incident "does not weigh in favor a new trial." Smith's
brief at 42. The defendants, however, note that because Q.M. was
suspended from participating in a postseason football game, which they
13
1190570
describe as "a highlight of the season for a football player," the defendants'
brief at 46-47, it "is unlikely to have slipped his mind. Certainly, it was
not so temporally remote that one could reasonably conclude that it could
not affect his decision-making as a juror in the instant case." Id. at 46.
I see nothing indicating that the period between the fight and the trial is
too remote as a matter law. Given the unique nature of the fight, this
factor weighs in favor of the defendants' arguments.
With regard to the "ambiguity of the question propounded" during
voir dire, the defendants contend that there "is nothing ambiguous about
the question" because other jurors understood it, responded, and were
ultimately struck as a result of their responses. Id. Smith argues,
however, that the question was ambiguous because the article that the
defendants attached to their motion did not explicitly state that the
"incident" in which Q.M. and his teammates became involved was in fact
a "physical fight." I disagree. The article relates that witnesses described
Q.M. and his teammates as being "under attack," and one of Q.M.'s
suspended teammates even stated that he "didn't want to go out and fight
with [the other team's players]" but that, "when they came off their
14
1190570
sideline and got into it with my teammates, I [wasn't] going to let that
happen." These facts indicate that a fight took place. Further, the
question contained no legal jargon that might confuse a nonattorney.
Thus, under these circumstances, I see nothing ambiguous or unclear
about the question.
Next, with regard to the possibility of the "inadvertence or
willfulness" of a prospective juror's failure to disclose certain information
and the failure of the juror to recollect the information not disclosed, this
Court has previously stated that the "concealment by a juror of
information called for in voir dire examination need not be deliberate in
order to justify a reversal, for it may be unintentional, but insofar as the
resultant prejudice to a party is concerned it is the same." Sanders v.
Scarvey, 284 Ala. 215, 219, 224 So. 2d 247, 251 (1969) (finding prejudice
when jurors failed to reveal that they had commenced a personal-injury
case). See also Dunaway v. State, 198 So. 3d 567, 583 (Ala. 2014).
Similarly, in Alabama Gas Corp. v. American Furniture Galleries, Inc.,
439 So. 2d 33, 36 (Ala. 1983), this Court stated: "Nevertheless, if the
15
1190570
failure to answer was prejudicial to the inquiring party, the result is the
same as if it had been deliberate."
The defendants contend that, "[b]ecause the fight [Q.M.] was
involved in resulted in his suspension from participating in his high school
football team's post-season playoff game, a highlight of the season for a
football player, one cannot reasonably conclude that he simply failed to
recollect the event." The defendants' brief at 46-47. Smith contends,
however, that there is no evidence indicating that Q.M. was "intentionally
dishonest" about the incident. Although it may be unclear if Q.M.
deliberately failed to respond to the question at issue, as shown by the
caselaw discussed above, any inadvertence in a prospective juror's failure
to respond to questioning on voir dire does not foreclose the probability of
prejudice resulting from the nondisclosure.
Finally, with regard to the materiality of the matter inquired about
during voir dire, this Court has previously stated:
"In the context of a juror's failure to disclose requested
information, 'a material fact [is] " 'one which an attorney[,]
acting as a reasonably competent attorney, would consider
important in making the decision whether or not to excuse a
prospective
juror.' " '
Conference
America,
Inc.
v.
16
1190570
Telecommunications Coop. Network, Inc., 885 So. 2d 772, 777
(Ala. 2003)(quoting Gold Kist v. Brown, 495 So. 2d 540, 545
(Ala. 1986))."
Jimmy Day Plumbing, 964 So. 2d at 5.
"If the party establishes that the juror's disclosure of the truth
would have caused the party either to (successfully) challenge
the juror for cause or to exercise a peremptory challenge to
strike the juror, then the party has made a prima facie
showing of prejudice. ... Such prejudice can be established by
the obvious tendency of the true facts to bias the juror ... or by
direct testimony of trial counsel that the true facts would have
prompted a challenge against the juror, as in State v.
Freeman, 605 So. 2d 1258 (Ala. Crim. App. 1992)."
Ex parte Dobyne, 805 So. 2d at 773 (emphasis added).
The defendants' attorneys testified by affidavit that, had they known
about Q.M.'s participation in the fight after the football game, they would
have struck him from the jury. Moreover, in the newspaper article,
witnesses described the players that were ultimately suspended, which
included Q.M., as having been "under attack," and one of Q.M.'s
suspended teammates stated that he "didn't want to go out and fight with
[the other team's players]" but that, "when they came off their sideline
and got into it with my teammates, I [wasn't] going to let that happen."
Q.M.'s actions caused him and five teammates to be suspended from
17
1190570
playing in a postseason playoff football game a few days later. The fact
that Q.M. was the victim of an attack indicates an "obvious tendency" to
bias Q.M. in favor of a plaintiff, like Smith, who also claimed to have been
attacked. Dobyne, 805 So. 2d at 773. Thus, under the legal principles
discussed above, the defendants demonstrated probable prejudice
warranting a new trial. Smith offered nothing to rebut the defendants'
arguments or evidence.
As stated previously, to prevail on their juror-misconduct claim, the
defendants were required to demonstrate that Q.M.'s misconduct "might
have prejudiced" them. Id. at 771. Given that all the factors above are
met, they satisfied that burden and are entitled to a new trial. Based on
the foregoing, I believe that the trial court exceeded its discretion in
failing to grant their motion for a new trial. Therefore, I respectfully
dissent.
Parker, C.J., and Bolin, J., concur.
18 | November 5, 2021 |
d41d248e-f71d-440c-9ae7-d839733d4ca5 | Ex parte Karen H. Jackson, as guardian ad litem for M.S. | N/A | 1210026 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210026
Ex parte Karen H. Jackson, as guardian ad litem for M.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for M.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-385.02; Civil Appeals :
2200281).
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. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
03c6601f-dc39-45fb-8aac-8df034aecde8 | Everett W. Wess v. Kechia Davis | N/A | 1200290 | Alabama | Alabama Supreme Court | Rel: October 15, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200290
Everett W. Wess v. Kechia Davis (Appeal from Jefferson Probate Court:
20-BHM-02413).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Wise, and Sellers, JJ., concur. | October 15, 2021 |
0afa4b0e-2fe1-4b64-a44a-4785c676d44b | Ex parte William Dale Watson. | N/A | 1200745 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200745
Ex parte William Dale Watson. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: William Dale Watson v.
State of Alabama) (Limestone Circuit Court: CC-13-57.60; Criminal Appeals
:
CR-20-0078).
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. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
b53581eb-936d-49e3-84fe-cf77df17b12f | Ex parte Karen H. Jackson, as guardian ad litem for H.S. | N/A | 1210024 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210024
Ex parte Karen H. Jackson, as guardian ad litem for H.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for H.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-384.02; Civil Appeals :
2200279).
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. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
80abc171-7396-4665-a9a8-05ca772fb774 | Ex parte Tony Eugene Grimes. | N/A | 1200780 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200780
Ex parte Tony Eugene Grimes. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Tony Eugene Grimes v. State
of Alabama) (Mobile Circuit Court: CC-87-1766.65; CC-87-1767.65; Criminal
Appeals :
CR-19-0751).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 2021:
Writ Denied. No Opinion. PER CURIAM -
Parker, C.J., and Shaw, Bryan,
Mendheim, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
be016564-c3a2-4de6-a308-376f3427cdd0 | Ex parte SE Property Holdings, LLC | N/A | 1190814, 1190816 | Alabama | Alabama Supreme Court | Rel: November 5, 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
____________________
1190814
____________________
Ex parte SE Property Holdings, LLC
PETITION FOR WRIT OF CERTIORARI
TO THE BALDWIN CIRCUIT COURT
(In re: SE Property Holdings, LLC
v.
David L. Harrell)
(Baldwin Circuit Court, CV-10-901862)
____________________
1190816
____________________
SE Property Holdings, LLC
v.
David L. Harrell
Appeal from Baldwin Circuit Court
(CV-10-901862)
SHAW, Justice.
In case no. 1190816, the appellant and plaintiff below, SE Property
Holdings, LLC ("SEPH"), has appealed the Baldwin Circuit Court's denial
of its petition seeking to hold the appellee and defendant below, David L.
Harrell, in contempt for failing to comply with the trial court's
postjudgment charging order entered in a previous action involving the
parties and its failure to hold a hearing on its contempt petition. In case
no. 1190814, SEPH has also petitioned this Court for a writ of certiorari,
seeking the same relief. This Court consolidated the proceedings ex mero
motu. In case no. 1190816, we reverse the trial court's decision and
remand the case; in case no. 1190814, we dismiss the certiorari petition.
Facts and Procedural History
In December 2006, Water's Edge, LLC ("Water's Edge"), a real-estate
development company, entered into a construction-loan agreement ("the
2
1190814, 1190816
agreement") with a bank that later merged into SEPH for two
construction loans totaling $17,000,000. Some of Water's Edge's members,
including Harrell, served as guarantors on the loans and, pursuant to the
agreement, guaranteed timely payment of the two loans by November 30,
2010. According to SEPH, the last payment made by Water's Edge on both
loans occurred in May 2010.
In October 2010, SEPH sued Water's Edge and the loan guarantors,
including Harrell. Following years of litigation, the trial court entered a
judgment against Water's Edge for $13,863,052.94. The trial court also
entered a judgment against the guarantors, including Harrell, for
$9,084,076.14 on one loan and for different amounts totaling $2,297,431 --
including $84,392 against Harrell -- on the other loan.
In February 2015, SEPH filed a motion in the previous action
seeking a charging order pursuant to § 10A-5A-5.03, Ala. Code 1975, on
the basis that Harrell had not satisfied the judgment against him.
According to SEPH, Harrell owned a membership interest in various
companies, including Southern Land Brokers, LLC ("SLB"), formerly
3
1190814, 1190816
known as Alabama Land Brokers. Thus, under § 10A-5A-5.03, SEPH
contended, it was entitled to an order
"charging the membership interest of Harrell in the subject
Companies with payment of the unsatisfied amount of
[SEPH's] judgment, with accrued interest and costs. Under the
Charging Order, a lien is created on Harrell's interest, and the
Companies would be required to report and distribute to
[SEPH] any amounts that become due or distributable."
The trial court granted SEPH's request and issued a charging order
directing SLB and the other companies to "distribute to the Clerk of Court
any income, officer's fees, bonuses, distributions, salaries or dividends
paid or otherwise conveyed to [Harrell] by reason of any interest [he]
own[s] in the Limited Liability Companies until [SEPH's] judgment is
satisfied in full." According to SEPH, despite the entry of the trial court's
charging order, the judgment has not been fully satisfied.
On June 12, 2020, SEPH filed a petition asking the trial court to
hold Harrell in contempt and to sanction him for violating the charging
order. According to SEPH, Harrell and his wife, Carolyn, each owned 50%
of SLB. SLB's operating agreement required that all distributions,
profits, and income be distributed to each member based on their
4
1190814, 1190816
ownership interest in the company.1 SEPH alleged that, after the trial
court had entered its charging order, Harrell, as SLB's managing member,
began making distributions solely to Carolyn in violation of SLB's
operating agreement. Those distributions to Carolyn, SEPH alleged,
included distributions actually owed to Harrell, thereby violating the trial
court's charging order.
SEPH also alleged that SLB had been making payments on Harrell's
American Express account for his personal expenses. Because those
expenses were not related to the business, SEPH alleged, those payments
were "de facto distributions" to Harrell that should have been paid to the
clerk of court in accordance with the charging order. In support of its
petition, SEPH attached numerous financial documents that it had
obtained from Harrell and SLB, including Schedule K-1 federal tax forms
on which Harrell declared that he had received distributions from SLB in
the years following the trial court's issuance of its charging order.
1A copy of the operating agreement was included in the record on
appeal.
5
1190814, 1190816
Harrell filed an objection to SEPH's petition in which he
acknowledged that, pursuant to § 10A-5A-5.03(a), the charging order
issued by the trial court gave SEPH the right to receive any distributions
from SLB to which Harrell would otherwise be entitled as a result of any
transferrable interest held by him in the company. He also acknowledged
that, pursuant to § 10A-5A-5.03(c), the charging order constituted a lien
on his transferrable interests and that § 10A-5A-5.03(f) provided the
exclusive remedy by which a judgment creditor of a member or transferee
could satisfy a judgment out of his transferrable interests. He asserted,
however, that SEPH's petition was due to be denied because, he said, he
had not transferred "any transferrable interest he maintains in and to
[SLB] and [he had] not received an actual cash distribution (K-1) from the
profits, if any, earned by [SLB]." No documentary evidence or affidavits
were filed with Harrell's objection.
After SEPH filed a response to Harrell's objection, the trial court,
without holding a hearing, issued an order on July 1, 2020, denying
SEPH's petition.
6
1190814, 1190816
As noted above, SEPH filed both an appeal and a petition for
certiorari review. Before the adoption of Rule 70A(g), Ala. R. Civ. P., and
Rule 33.6, Ala. R. Crim. P., a trial court's contempt ruling was subject to
appellate review by a petition for a writ of certiorari. Ex parte Dearman,
322 So. 3d 5, 9 n.5 (Ala. 2020) ("Before the adoption of Rule 33, Ala. R.
Crim. P., and its provision for the appeal of contempt findings, all
contempt findings were reviewed by petition for the writ of certiorari.").2
Rule 70A(g), which was adopted in 1994 and is applicable in civil cases,
provides that an adjudication or finding of contempt is subject to direct
appeal.3 As SEPH correctly points out, the language of the rule
2Even when a party purported to appeal a trial court's contempt
ruling, our appellate courts treated those appeals as petitions for the writ
of certiorari. See, e.g., Thomas v. Thomas, 406 So. 2d 939, 941 (Ala. Civ.
App. 1981) ("Although the appropriate method of review of a contempt
order is by way of extraordinary writ, ... this court will treat the husband's
appeal as a petition for certiorari and consider his arguments
accordingly."). The same was true when a party appealed the denial of a
request for a finding of contempt, as was done in this case. See, e.g.,
Citicorp Person to Person Fin. Ctr., Inc. v. Sanderson, 421 So. 2d 1293,
1295 (Ala. Civ. App. 1982) ("Certiorari, and not an appeal, is the proper
method to review a trial court's action in refusing to hold a party in
contempt of court.").
3Rule 70A(g) provides:
7
1190814, 1190816
contemplates an appeal only when a party has been found in contempt; it
does not provide that an aggrieved party may appeal a trial court's order
denying a finding of contempt.
However, our appellate courts have since clarified that, in many
cases, a petition seeking the imposition of sanctions based on a finding of
contempt initiates an independent proceeding that requires payment of a
filing fee. See, e.g., Morgan v. Morgan, 183 So. 3d 945 (Ala. Civ. App.
2014) (recognizing that an action for contempt requires the payment of a
new filing fee, new service of process, and the addition of a new suffix to
the case number); Kyle v. Kyle, 128 So. 3d 766, 772 (Ala. Civ. App. 2013)
(recognizing that " '[a] motion or petition seeking the imposition of
sanctions based on a finding of contempt initiates an independent
"(1) Where Contemnor Is in Custody. An adjudication of
contempt is reviewable by appeal if the person found in
contempt is being held in custody pursuant to that
adjudication, unless the writ of habeas corpus is an available
remedy.
"(2) Where Contemnor Is Not in Custody. If the person
found in contempt is not being held in custody pursuant to the
adjudication of contempt, the adjudication is reviewable by
appeal."
8
1190814, 1190816
proceeding that requires the payment of a filing fee.' " (quoting Kaufman
v. Kaufman, 934 So. 2d 1073, 1082 (Ala. Civ. App. 2005))); and Wilcoxen
v. Wilcoxen, 907 So. 2d 447, 449 n.1 (Ala. Civ. App. 2005) (recognizing that
the filing of a contempt petition initiated a separate and independent
proceeding from the underlying action). Under § 12-22-2, Ala. Code 1975,
an appeal lies from "any" final judgment of a circuit court or a probate
court. See, e.g., Richburg v. Richburg, 895 So. 2d 311 (Ala. Civ. App. 2004)
(recognizing that a judgment is final and appealable if it disposes of all the
claims and controversies between the parties). Our appellate courts have
previously reviewed denials of contempt petitions on appeal -- instead of
by certiorari petition -- in cases in which those denials were part of final
judgments. See, e.g., J.S.S. v. D.P.S., 281 So. 3d 434 (Ala. Civ. App. 2019);
Hummer v. Loftis, 276 So. 3d 215 (Ala. Civ. App. 2018); and Seymour v.
Seymour, 241 So. 3d 733 (Ala. Civ. App. 2017).Therefore, the denial of a
petition for contempt that initiates an independent proceeding and is
adjudicated in a final judgment is subject to appeal.
In the present case, SEPH filed the underlying petition for contempt
and paid a filing fee, thereby initiating an independent action below. The
9
1190814, 1190816
trial court's judgment adjudicated all the claims against all the parties
and was a final judgment for purposes of Rule 54, Ala. R. Civ. P.
Therefore, the trial court's ruling is properly reviewed by appeal;
therefore, we dismiss SEPH's separately filed certiorari petition in case
no. 1190814 as superfluous.
Standard of Review
" 'The issue whether to hold a party in contempt is solely
within the discretion of the trial court, and a trial court's
contempt determination will not be reversed on appeal absent
a showing that the trial court acted outside its discretion or
that its judgment is not supported by the evidence.' "
J.S.S. v. D.P.S., 281 So. 3d at 437-38 (quoting Poh v. Poh, 64 So. 3d 49, 61
(Ala. Civ. App. 2010)). See also Hummer v. Loftis, 276 So. 3d at 225.
Discussion
SEPH argues that the trial court, in denying its petition to hold
Harrell in contempt for failing to comply with the charging order,
exceeded its discretion because, it says, the record contains undisputed
evidence establishing that Harrell violated the charging order. It also
argues that the trial court erred in denying its petition without first
holding a hearing on that petition.
10
1190814, 1190816
Under Alabama law,
"[o]n application to a court of competent jurisdiction by any
judgment creditor of a member or transferee, the court may
charge the transferable interest of the judgment debtor with
payment of the unsatisfied amount of the judgment with
interest. To the extent so charged and after the limited
liability company has been served with the charging order, the
judgment creditor has only the right to receive any
distribution or distributions to which the judgment debtor
would otherwise be entitled in respect of the transferable
interest."
§ 10A-5A-5.03(a). A "transferrable interest" is "a member's right to receive
distributions from a limited liability company or a series thereof." § 10A-
5A-1.02(t), Ala. Code 1975. "Distribution" is defined as "a transfer of
money or other property from a limited liability company, or series
thereof, to another person on account of a transferable interest." § 10A-5A-
1.02(h). A "distribution" does not include "amounts constituting
reasonable compensation for present or past services or reasonable
payments made in the ordinary course of the limited liability company's
activities and affairs under a bona fide retirement plan or other benefits
program." § 10A-5A-4.06(e), Ala. Code 1975.
11
1190814, 1190816
As noted previously, SEPH applied for and was granted a charging
order in 2015 after Harrell had failed to satisfy the judgment issued
against him. The trial court's charging order stated, in pertinent part:
"[A] lien is charged against the financial interests of David L.
Harrell in [SLB, Crystal Waters, LLC, Lowmar Properties,
LLC, and Harrell Development, LLC (the 'Limited Liability
Companies')] in the amount of $9,084,076.14 and $84,392.00,
being the unsatisfied judgment of December 17, 2014, plus
accrued interest on the judgment and that said [Limited
Liability] Companies are ORDERED to distribute to the Clerk
of Court any income, officer's fees, bonuses, distributions,
salaries or dividends paid or otherwise conveyed to [Harrell]
by reason of any interest [he] own[s] in the Limited Liability
Companies until [SEPH's] judgment is satisfied in full."
The record before us indicates that Harrell and his wife, Carolyn,
each own 50% of SLB. SLB's operating agreement makes clear that the
profits and income earned by SLB must be distributed to Harrell and
Carolyn in proportion to their membership interests.
Despite the trial court's charging order requiring SLB to pay any
income or distributions that would normally be directed to Harrell to the
clerk of court until SEPH's judgment is satisfied in full, SEPH alleged
that, after the trial court entered its charging order, Harrell, as SLB's
managing member, began making distributions solely to Carolyn in
12
1190814, 1190816
violation of SLB's operating agreement. SEPH further alleged that the
distributions Carolyn received included distributions owed to Harrell and,
thus, violated the trial court's charging order. Indeed, copies of Schedule
K-1 federal tax forms included in the record on appeal show that Harrell
and Carolyn each declared income and distributions from SLB for tax
years 2015-2017 -- the years following the issuance of the charging order --
in the total amount of approximately $415,000 each.
SEPH contends that this evidence demonstrates that Harrell and
SLB are intentionally evading the trial court's charging order and must,
therefore, be held in contempt. In his objection filed below, Harrell argued
that SEPH's petition was due to be denied because, he asserted, he had
not "received an actual cash distribution (K-1) from the profits, if any,
earned by [SLB]." However, Harrell did not provide any additional
information in support of that assertion. He also did not attach any
documentation or evidence to his objection showing that to be the case,
and there is nothing in the record before us, other than his conclusory
denial, supporting his assertion. There is nothing before us demonstrating
that he did not intentionally avoid otherwise required disbursements. In
13
1190814, 1190816
fact, as demonstrated above, the evidence before us indicates that the
opposite is true.
In addressing civil-contempt issues, the Court of Civil Appeals
recently stated:
" ' " 'Civil contempt' is defined as a
'willful, continuing failure or refusal of
any person to comply with a court's
lawful writ, subpoena, process, order,
rule, or command that by its nature is
still capable of being complied with.'
Rule 70A(a)(2)(D), Ala. R. Civ. P...."
" 'Routzong v. Baker, 20 So. 3d 802, 810 (Ala. Civ.
App. 2009). " 'The failure to perform an act
required by the court for the benefit of an opposing
party constitutes civil contempt.' Carter v. State ex
rel. Bullock County, 393 So. 2d 1368, 1370 (Ala.
1981)." J.K.L.B. Farms, LLC v. Phillips, 975 So. 2d
1001, 1012 (Ala. Civ. App. 2007). Furthermore,
" '[t]he purpose of a civil contempt proceeding is to
effectuate compliance with court orders and not to
punish the contemnor.' Watts v. Watts, 706 So. 2d
749, 751 (Ala. Civ. App. 1997)." Hall v. Hall, 892
So. 2d 958, 962 (Ala. Civ. App. 2004).'
"Reed v. Dyas, 28 So. 3d 6, 8 (Ala. Civ. App. 2009) (emphasis
added)."
Cheshire v. Cheshire, 296 So. 3d 851, 862 (Ala. Civ. App. 2019). In the
present case, the evidence in the record demonstrates that Harrell
14
1190814, 1190816
"fail[ed] to perform an act required by the court for the benefit of an
opposing party." Carter v. State ex rel. Bullock Cnty., 393 So. 2d 1368,
1370 (Ala. 1981). Thus, the trial court exceeded its discretion in denying
SEPH's petition based on the materials in the record.
Further, our caselaw makes clear that "[a] person cannot be found
in contempt without a hearing." Thompson v. Thompson, 649 So. 2d 208,
210 (Ala. Civ. App. 1994) (citing Rule 70A(c)(2), Ala. R. Civ. P.) . Indeed,
Rule 70A(c)(2) provides:
"Upon the filing of a contempt petition, the clerk shall issue
process in accordance with these rules, unless the petition is
initiated by a counterclaim or cross-claim authorized under
Rule 13[, Ala. R. Civ. P.]. In any case, the person against
whom the petition is directed shall be notified (1) of the time
and place for the hearing on the petition and (2) that failure to
appear at the hearing may result in the issuance of a writ of
arrest pursuant to Rule 70A(d), to compel the presence of the
alleged contemnor."
Nothing in the record before us indicates that a hearing was held or that,
if one was held, Harrell was "notified ... of the time and place for the
hearing on the petition." Thus, in case no. 1190816, we reverse the trial
court's judgment and remand the case for further proceedings consistent
15
1190814, 1190816
with this decision, including a hearing pursuant to Rule 70A(c)(2), at
which the parties may present their evidence.
1190814 -- PETITION DISMISSED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
1190816 -- REVERSED AND REMANDED.
Bryan, Mendheim, and Mitchell, JJ., concur.
Parker, C.J., concurs in part and concurs in the result.
16
1190814, 1190816
PARKER, Chief Justice (concurring in part and concurring in the result
in case no. 1190816).
I agree that we have jurisdiction and that the judgment must be
reversed. SE Property Holdings, LLC ("SEPH"), filed legally sufficient
allegations of contempt, so the circuit court could not deny the claim
without holding the hearing required by Rule 70A(c)(2), Ala. R. Civ. P.
Thus, the circuit court's error was not holding David L. Harrell in
contempt without a hearing or proper notice, as the main opinion seems
to suggest, but denying the contempt claim without a hearing.
Moreover, within the context of contempt procedure, I believe that
Rule 70A(c)(2) contemplates an evidentiary hearing -- essentially a trial
on the contempt claim. As this Court has said,
"[w]here an individual is charged with indirect or constructive
contempt [(which is now governed by Rule 70A(c))], due
process requires that he be given ... the right to call witnesses
and confront his accuser[] and the right to give testimony
relevant either to complete exculpation or to extenuation of the
offense and evidence in mitigation of the penalty to be
imposed."
State v. Thomas, 550 So. 2d 1067, 1073 (Ala. 1989). See, e.g.,
Augmentation, Inc. v. Harris, 225 So. 3d 103, 104-10 (Ala. Civ. App. 2016)
17
1190814, 1190816
(illustrating evidentiary nature of hearing). Thus, to be in evidence,
documents supporting or opposing a finding of contempt must be
presented at that hearing.4 Therefore, contrary to the main opinion's
characterization, the documents filed in support of SEPH's contempt claim
were not evidence, and Harrell had no duty to respond by filing contrary
documents before a hearing. Accordingly, I disagree with the main opinion
where it indicates that the "evidence" established that Harrell was in
contempt and also faults Harrell for not filing contrary documents.
4Conceivably, at the evidentiary hearing a trial court could consider
previously filed documents as evidence if the opposing party does not
object, but that did not happen here because there was no evidentiary
hearing.
18 | November 5, 2021 |
984d8332-0d7e-4b78-997d-14dcfa7dc185 | Ex parte Jordan Andrew Thomas. | N/A | 1200878 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200878
Ex parte Jordan Andrew Thomas. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jordan Andrew Thomas
v. State of Alabama) (Montgomery Circuit Court: CC-14-290.80; Criminal
Appeals :
CR-19-0361).
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. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
7c91806a-0650-4791-b18d-c6cabd818b0b | Alabama Insurance Underwriting Association v. Skinner | N/A | 1200132 | Alabama | Alabama Supreme Court | REL: October 22, 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
____________________
1200132
____________________
Alabama Insurance Underwriting Association
v.
Suzanne Peoples Skinner
Appeal from Mobile Circuit Court
(CV-17-901787)
MITCHELL, Justice.
After a fire at James and Suzanne Skinner's house, their insurer
sought a judgment declaring that it did not owe either of them coverage.
1200132
The circuit court entered summary judgment for Suzanne while the claim
against James remained pending. A year later, with the claim against
James still pending, the circuit court certified the judgment in Suzanne's
favor as final and thus immediately appealable under Rule 54(b), Ala. R.
Civ. P. Because the circuit court exceeded its discretion in doing so, we
set aside the Rule 54(b) certification and dismiss this appeal.
Facts and Procedural History
In November 2016, a fire damaged the Skinners' house in
Chunchula. The Alabama Insurance Underwriting Association ("AIUA"),
which insured the house, investigated the fire and came to believe that it
was caused by arson. AIUA further concluded that James Skinner and
Don Dockery were the only two people in the house when the fire began,
and thus the only two possible arsonists.
AIUA filed a complaint in the Mobile Circuit Court against the
Skinners and Dockery, claiming alternatively that: (1) if James started
the fire, neither Suzanne nor James was owed coverage under their
insurance policy; and (2) if Dockery started the fire, he owed damages to
2
1200132
AIUA to compensate it for its outlay in covering the Skinners' loss. The
parties later agreed to dismiss Dockery from the case.
Suzanne moved for summary judgment, contending that even if her
husband James had started the fire, his guilt had no bearing on AIUA's
coverage obligation to her. The circuit court agreed, ruling that: (1) the
language of the insurance policy did not exclude coverage to Suzanne
based on the alleged arson of James acting alone; and (2) to the extent the
policy purported to do so, that exclusion was void as against public policy
under Hosey v. Seibels Bruce Group, 363 So. 2d 751 (Ala. 1978).
Accordingly, the circuit court entered summary judgment for Suzanne. A
year later, with the claim against James's estate still pending,1 the circuit
court -- on its own initiative and without explanation -- certified the
summary judgment in favor of Suzanne as final under Rule 54(b). AIUA
timely appealed to this Court.
1James died during the course of this litigation. His estate was
substituted for him as a defendant.
3
1200132
Standard of Review
We review the certification of a judgment as final under Rule 54(b)
to determine whether the trial court exceeded its discretion. Cox v.
Parrish, 292 So. 3d 312, 315 (Ala. 2019).
Analysis
As a threshold matter, we must address whether the circuit court
exceeded its discretion in authorizing this appeal. This Court will
scrutinize the propriety of Rule 54(b) certifications even in cases where no
party addresses this "fundamental issue." Summerlin v. Summerlin, 962
So. 2d 170, 172 (Ala. 2007); see also Cox, 292 So. 3d at 315; Wright v.
Harris, 280 So. 3d 1040, 1043 (Ala. 2019); Richardson v. Chambless, 266
So. 3d 684, 686 (Ala. 2018). Here, Suzanne argues that the certification
was improper, and AIUA offers no defense of the circuit court's action.
We agree with Suzanne. A trial court may certify as final a
judgment disposing of one or more, but fewer than all, claims or parties
in an action, if it determines that there is no just reason for delay in
enabling an appeal. Rule 54(b). But, as this Court has repeatedly
emphasized, Rule 54(b) provides only a narrow exception to the "policy
4
1200132
disfavoring appellate review in a piecemeal fashion." Smith v. Slack Alost
Dev. Servs. of Alabama, LLC, 32 So. 3d 556, 562-63 (Ala. 2009).
Accordingly, "Rule 54(b) certifications should be entered only in
exceptional cases." Wright, 280 So. 3d at 1047 (citing Dzwonkowski v.
Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004)).
Piecemeal appeals are particularly inappropriate when the issues on
appeal may be mooted by resolution of the remaining claims. See, e.g.,
Cox, 292 So. 3d at 315-16; Richardson, 266 So. 3d at 687-88; Lighting Fair,
Inc. v. Rosenberg, 63 So. 3d 1256, 1264-65 (Ala. 2010). And that is the
case here. The circuit court's summary judgment holds that Suzanne is
owed coverage even if James started the fire. That holding makes a
difference only if, in its still-pending claim against James's estate, AIUA
establishes that James did start the fire. On the other hand, if AIUA
cannot prove that, then it will not matter if the circuit court erred in
granting Suzanne's motion for summary judgment; Suzanne will be owed
coverage anyway.
In Richardson, this Court held that a near-identical relationship
between claims was "dispositive" against Rule 54(b) certification. 266
5
1200132
So. 2d at 689. There, the plaintiff had originally sued one defendant on
claims arising from an allegedly faulty home inspection and later
amended his complaint to add a fraudulent-transfer claim against another
defendant. See id. at 685-86. The circuit court entered summary
judgment for the latter defendant and certified it under Rule 54(b). Id. at
686. But this Court set the certification aside and dismissed the appeal,
reasoning that if the original defendant later prevailed against the
plaintiff on the claims against him, the fraudulent-transfer claim would
necessarily fail too. Id. at 689-90.
Here, as in Richardson, "it is readily apparent that future
developments in the trial court" could moot the issues presented in this
appeal. Id. at 689-90. Neither the circuit court nor the parties have
pointed to any considerations to overcome this " 'major negative in the
Rule 54(b) equation.' " Lighting Fair, 63 So. 3d at 1265 (quoting Spiegel
v. Trustees of Tufts Coll., 843 F.2d 38, 45 (1st Cir. 1988)). Indeed, as
mentioned, the circuit court gave no reasons for its sua sponte
certification, and no party offers any reasons in defense of that action. We
see nothing in the record to suggest that this case is one of the exceptional
6
1200132
instances in which a piecemeal appeal might be appropriate. We therefore
conclude that the circuit court exceeded its discretion in certifying the
summary judgment for Suzanne as final for purposes of appeal.
Conclusion
We set aside the Rule 54(b) certification of the summary judgment
and dismiss this appeal for lack of jurisdiction. See Dzwonkowski, 892
So. 2d at 363 ("A nonfinal judgment will not support an appeal."). In
doing so, we express no opinion about the merits of the judgment or the
legal issues involved.
APPEAL DISMISSED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
7 | October 22, 2021 |
f908b1a8-2c8f-4aad-97e9-c9ded0b7b688 | Ex parte Nathaniel Collins. | N/A | 1210035 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210035
Ex parte Nathaniel Collins. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Nathaniel Collins v. State of
Alabama) (Etowah Circuit Court: CC-11-477.72; CC-13-1071.70; Criminal
Appeals :
CR-20-0237).
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. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
c3bc13ca-9dc4-4675-8157-3ca1d8b165f4 | Wynlake Residential Association, Inc, et al. v. Hulsey et al. | N/A | 1200242 | Alabama | Alabama Supreme Court | Rel: October 22, 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
____________________
1200242
____________________
Wynlake Residential Association, Inc.; Wynlake Development,
LLC; SERMA Holdings, LLC; Builder1.com, LLC; J. Michael
White; Shandi Nickell; and Mary P. White
v.
Timothy O. Hulsey, individually and in a representative
capacity as a member of Wynlake Residential Association, Inc.
Appeal from Shelby Circuit Court
(CV-17-901186)
BRYAN, Justice.
1200242
Wynlake
Residential
Association,
Inc.
("the
homeowners'
association"), Wynlake Development, LLC, SERMA Holdings, LLC,
Builder1.com, LLC, J. Michael White, Shandi Nickell, and Mary P. White
("the defendants") appeal from the Shelby Circuit Court's judgment on an
arbitration award entered against them. Because the defendants' appeal
is untimely, we dismiss the appeal.
In December 2017, Timothy O. Hulsey, acting individually and in a
representative capacity as a member of the homeowners' association,
sued the defendants.1 Hulsey alleged several claims against the
defendants regarding various issues, including assessments levied against
homeowners by the homeowners' association. The defendants moved the
circuit court to compel arbitration pursuant to an arbitration agreement,
and the circuit court granted the motion to compel arbitration. The case
proceeded to arbitration, and the arbitrator issued an award in favor of
Hulsey, awarding monetary and injunctive relief. The defendants sought
1Hulsey also sued Jim Wheat, a former president of the homeowners'
association. However, the arbitration award was not entered against
Wheat, and he is not a party to this appeal.
2
1200242
review of the award in the circuit court, where, as we will explain below,
Hulsey again prevailed. The defendants then appealed to this Court.
We take this opportunity to emphasize that Rule 71B, Ala. R. Civ.
P., establishes a unique procedure for appealing an arbitration award.
Rule 71B provides:
"(a) Who May Appeal. Any party to an arbitration may
file a notice of appeal from the award entered as a result of the
arbitration.
"(b) When Filed. The notice of appeal 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.
"(c) Where Filed. The notice of appeal 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. With the notice of appeal, the appellant
shall file a copy of the award, signed by the arbitrator, if there
is only one, or by a majority of the arbitrators, along with the
submission to the arbitrator or arbitrators and any supporting
documents or record of the proceedings, if available. If no
record is available, the appellant shall so state. If a record is
to be prepared but is not completed within the time provided
in paragraph (b) of this rule, the appellant shall so state in the
notice of appeal and shall file the record within thirty (30) days
3
1200242
after the filing of the notice of appeal, unless the court for good
cause shown shall allow additional time.
"(e) How Served. If the arbitration arose out of a pending
action, service shall be made as provided in Rule 5[, Ala. R.
Civ. P.]. If there is no action pending, service shall be made as
provided in Rules 4 through 4.4[, Ala. R. Civ. P.,] and upon any
counsel who appeared in the arbitration for the party being
served.
"(f) Procedure After Filing. The clerk of the circuit court
promptly shall enter the award as the final judgment of the
court. Thereafter, as a condition precedent to further review
by any appellate court, any party opposed to the award may
file, in accordance with Rule 59, [Ala. R. Civ. P.,] a motion to
set aside or vacate the judgment based upon one or more of the
grounds specified in Ala. Code 1975, § 6-6-14, or other
applicable law. The court shall not grant any such motion
until a reasonable time after all parties are served pursuant to
paragraph (e) of this rule. The disposition of any such motion
is subject to civil and appellate rules applicable to orders and
judgments in civil actions.
"(g) Appellate Review. An appeal may be taken from the
grant or denial of any Rule 59 motion challenging the award
by filing a notice of appeal to the appropriate appellate court
pursuant to Rule 4,[Ala. R. App. P.].
"(dc) District Court Rule. Rule 71B applies to appeals
from arbitration awards arising from actions initially filed in
the district court. As provided above, the appeal is to the
circuit court."
Thus, in summary,
4
1200242
"Rule 71B establishes the following procedure for the appeal
of an arbitration award: (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
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).
In this case, notice of the arbitration award was served on October
4, 2019. On October 30, 2019, the defendants filed a timely notice of
appeal to the circuit court. That same day, the defendants filed a Rule 59,
Ala. R. Civ. P., motion, which is a condition precedent for further review
of the award by any appellate court. Upon the defendants' filing of the
notice of appeal, the clerk of the circuit court should have promptly
entered the arbitration award as the final judgment of the circuit court,
pursuant to Rule 71B(f). However, the arbitration award was not entered
as the final judgment of the circuit court until September 2, 2020.
Although the defendants' Rule 59 motion was filed before the entry of the
5
1200242
award as the judgment of the circuit court, that irregularity was not
procedurally fatal. In the context of the procedure set out in Rule 71B,
when a Rule 59 motion is filed before the clerk's entry of the award as the
judgment of the circuit court, the Rule 59 motion quickens upon the entry
of the judgment. See Alabama Psychiatric Servs., P.C. v. Lazenby, 292 So.
3d 295, 298 (Ala. 2019) (stating that, in an appeal from an arbitration
award, a premature Rule 59 motion quickened when the clerk of the
circuit court later entered the award as the judgment of the circuit court);
and Ex parte Cavalier Home Builders, LLC, 275 So. 3d 1110, 1112 (Ala.
2018) (same). Thus, when the clerk of the circuit court entered the
arbitration award as the final judgment of the circuit court on September
2, 2020, the Rule 59 motion quickened and was ripe for a decision by the
circuit court. Id.
The quickening of the Rule 59 motion on September 2, 2020, was a
crucial event, because it initiated the 90-day period in which the circuit
court had to rule on the Rule 59 motion under Rule 59.1, Ala. R. Civ. P.
We emphasize that "Rule 59.1 applies to a Rule 59 motion filed under the
provisions of Rule 71B. See Rule 71B(f) ('The disposition of any such [Rule
6
1200242
59] motion is subject to civil and appellate rules applicable to orders and
judgments in civil actions.')." Ex parte Cavalier Home Builders, 275 So.
3d at 1112 n.3. Rule 59.1 provides, in pertinent part:
"No postjudgment motion filed pursuant to Rules 50, 52,
55, or 59[, Ala. R. Civ. P.,] 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. Consent to extend the time for
a hearing on the postjudgment motion beyond the 90 days is
deemed to include consent to extend the time for the trial court
to rule on and dispose of the postjudgment motion. 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."2
In this case, the 90-day period during which the circuit court could
have ruled on the Rule 59 motion expired on December 1, 2020. There is
no indication that the 90-day period was extended under Rule 59.1. Thus,
the defendants' Rule 59 motion was deemed denied by operation of law on
2We note that Rule 59.1 was amended effective October 1, 2020, to
add the second sentence of Rule 59.1 quoted above: "Consent to extend the
time for a hearing on the postjudgment motion beyond the 90 days is
deemed to include consent to extend the time for the trial court to rule on
and dispose of the postjudgment motion."
7
1200242
December 1, 2020. See Rule 59.1; Ex parte Davidson, 782 So. 2d 237, 241
(Ala. 2000) ("If a trial judge allows a postjudgment motion to remain
pending and not ruled upon for 90 days, then the motion is denied by
operation of law at the end of the 90th day and the trial judge then loses
jurisdiction to rule on the motion."). The circuit court purported to deny
the Rule 59 motion on January 20, 2021, 50 days after it was denied by
operation of law.3 However, the circuit court lost jurisdiction to rule on
3The circuit court's order purporting to deny the Rule 59 motion
addressed other matters, including stays during the pendency of an appeal
and the enforcement and execution of the award that had been entered as
the judgment of the court. For example, the circuit court declined to stay
the injunctive relief ordered in the award pending an appeal; regarding
the monetary relief awarded, the circuit court directed the defendants to
pay a supersedeas bond and stated that, if the bond was not paid, Hulsey
would be allowed to directly execute on the monetary portion of the award.
See Rules 62(c) and (d), Ala. R. Civ. P. (concerning injunctions and stays
pending an appeal). The circuit court also stated that the defendants
could not "transfer, sell, convey, lease, mortgage, or otherwise dispose of
any property which may be the subject of execution to satisfy the
Arbitration Award." In addition to challenging the circuit court's denial
of their Rule 59 motion seeking to set aside or vacate the award, the
defendants also challenge the provision in the circuit court's order
concerning property that could be subject to Hulsey's efforts to satisfy the
judgment. The defendants briefly argue that that provision provides relief
not contained in the award and, thus, that the circuit court exceeded its
authority. Therefore, the defendants essentially argue, the circuit court
not only denied their motion seeking to set aside or vacate the award but
8
1200242
the Rule 59 motion once it was denied by operation of law. See Ex parte
Davidson, 782 So. 2d at 241; and Ex parte Caterpillar, Inc., 708 So. 2d
142, 143 (Ala. 1997) ("If a trial court does not rule on a post-judgment
motion within 90 days, it loses jurisdiction to rule on the motion.").
When a Rule 59 motion "is deemed denied under the provisions of
Rule 59.1[,] ... the 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), Ala. R. App. P. Thus, the defendants had 42
days from the date the postjudgment motion was denied by operation of
law on December 1, 2020, to file a notice of appeal. See, e.g., Williamson
v. Fourth Ave. Supermarket, Inc., 12 So. 3d 1200, 1204 (Ala. 2009)
(stating that the 42-day period for filing a notice of appeal is computed
from the date of denial of such motion by operation of law under Rule
also modified the award. However, it appears that the circuit court simply
purported to deny the Rule 59 motion and at the same time took steps
regarding the enforcement and execution of the judgment. "A trial court
has the inherent power to enforce its judgments 'and to make such orders
and issue such process as may be necessary to render [the judgments]
effective.' " Goetsch v. Goetsch, 990 So. 2d 403, 413 (Ala. Civ. App. 2008)
(quoting Dial v. Morgan, 515 So. 2d 14, 15 (Ala. Civ. App. 1987)).
9
1200242
59.1). Accordingly, the defendants had until January 12, 2021, to file a
notice of appeal. However, the defendants did not file the notice of appeal
to this Court until January 20, 2021, the same day the circuit court
purported to rule on the Rule 59 motion, after the time for filing a notice
of appeal had expired. "An appeal shall be dismissed if the notice of
appeal was not timely filed to invoke the jurisdiction of the appellate
court." Rule 2(a)(1), Ala. R. App. P. Thus, because the defendants' notice
of appeal was untimely, we lack jurisdiction and must dismiss the appeal.
Although no party has questioned this Court's jurisdiction, "jurisdictional
matters are of such magnitude that we take notice of them at any time
and do so even ex mero motu." Nunn v. Baker, 518 So. 2d 711, 712 (Ala.
1987). Accordingly, we dismiss the appeal.
APPEAL DISMISSED.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur.
10 | October 22, 2021 |
4431ad36-49cc-49dc-895d-1bb7e55a51aa | Paradigm Investment Group, LLC and HR IV, LLC v. Dewey H. Brazelton | N/A | 1200137 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200137 Paradigm Investment Group, LLC and HR IV, LLC v. Dewey H.
Brazelton (Appeal from Madison Circuit Court: CV-20-900334).
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. 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 September 17, 2021:
Affirmed. 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, Ann D. Wilson, as Acting Clerk of the Supreme Court of Alabama, do hereby certify that
the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same
appear(s) of record in said Court.
Witness my hand this 12th day of November, 2021.
Acting Clerk, Supreme Court of Alabama | November 12, 2021 |
4af015bb-c5f2-42b3-b88f-3cf8dc17d7b7 | Kenneth S. Traywick v. Jefferson Dunn | N/A | 1200549 | Alabama | Alabama Supreme Court | Rel: October 15, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200549
Kenneth S. Traywick v. Jefferson Dunn (Appeal from Montgomery Circuit
Court: CV-20-153).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur. | October 15, 2021 |
12dc1f31-593b-4530-9c01-648cadcb23c4 | Ex parte M.B. | N/A | 1200586 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200586
Ex parte M.B. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: M.B. v. Shelby County
Department of Human Resources) (Shelby Juvenile Court: JU-18-613.06;
Civil Appeals :
2200140).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on October 15, 2021:
Writ Quashed. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
7616c06e-7a46-46e6-b4dd-46df766f5119 | Ex parte Colby Dewight Tucker. | N/A | 1200047 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200047
Ex parte Colby Dewight Tucker. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Colby
Dewight Tucker v. State of Alabama) (Madison Circuit Court: CC-16-270.70;
Criminal Appeals :
CR-18-1244).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on October 15, 2021:
Writ Quashed. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise,
and Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
589c0e20-3b5f-4263-988e-af2b162ecbe4 | Ex parte Young, Jr.; Martin; Lindley; and May. | N/A | 1200184 | Alabama | Alabama Supreme Court | Rel: October 29, 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
____________________
1200184
____________________
Ex parte Tom F. Young, Jr.; Ray D. Martin; Marlene Lindley;
and Chris May
PETITION FOR WRIT OF MANDAMUS
(In re: Danny Foster
v.
Tom F. Young, Jr.; Ray D. Martin; Steven A. Perryman; Melanie
H. Gardner; Marlene Lindley; and Chris May)
(Randolph Circuit Court, CV-19-29)
1200184
STEWART, Justice.
Tom F. Young, Jr., a former circuit judge for the Fifth Judicial
Circuit; Ray D. Martin, a circuit judge for the Fifth Judicial Circuit; Chris
May, the Randolph Circuit Clerk; and Marlene Lindley, a former employee
in May's office, petition this Court for a writ of mandamus directing the
Randolph Circuit Court ("the trial court") to dismiss a complaint filed by
Danny Foster, an inmate at the Ventress Correctional Facility, on the
grounds that they are immune from suit, that Foster lacks standing to
sue, and that Foster's claims are precluded by the applicable statute of
limitations. For the reasons stated below, we grant the petition in part
and deny it in part.
I. Facts and Procedural History
Foster filed a complaint in the trial court on May 6, 2019, naming
as defendants the following: Judge Young; Judge Martin; May; Lindley;
Steven Perryman, a circuit judge for the Fifth Judicial Circuit; and
Melanie H. Gardner, a court reporter.1 The complaint, which Foster filed
1After all the eligible judges for the Fifth Judicial Circuit, which
includes Randolph County, recused themselves from the case, this Court
2
1200184
without the assistance of counsel, is inartfully pleaded. As best as this
Court can tell, Foster alleged that, in violation of 42 U.S.C. § 1983, 42
U.S.C. § 1985(3), and 42 U.S.C. § 1986, the aforementioned judicial
officials and employees conspired to violate his civil rights in relation to
criminal proceedings in which he had been adjudicated guilty. In the
complaint, Foster alleged that, during a hearing in a criminal case, Judge
Young used disparaging language toward him and instructed Gardner, the
court reporter, not to transcribe those statements. Foster further alleged
that Judge Young, Judge Martin, and Judge Perryman had conspired to
deny his requests to modify the sentences in his criminal cases. He also
alleged that those judges had conspired with Gardner to fabricate the trial
transcripts in his criminal cases. He further contended that May and
Lindley had failed to provide him with copies of documents from his
criminal cases that he had requested from the Randolph Circuit Clerk's
Office ("the clerk's office"), although his complaint does not identify the
dates on which he made those requests.
assigned the case to Judge John H. Graham of the 38th Judicial Circuit.
3
1200184
As relief, Foster sought an injunction against the judicial officials
and employees directing them to refrain from violating his civil rights. He
also sought an order compelling Judge Young, Judge Martin, and Judge
Perryman to modify the sentences in his criminal cases to run
concurrently and an order directing the judges to explain the reasons for
their refusal to order his sentences to run concurrently. In addition, Foster
sought an order compelling May and Lindley to produce records from his
criminal cases, including the presentence-investigation reports, arrest
warrants, and other documents that he had requested, and he contended
that he had offered to prepay the costs associated with the production of
the requested documents. Foster specifically stated in his complaint that
he was seeking only equitable relief and that he did not seek an award of
damages. According to the case-action summary, the trial court entered
an order dismissing, with prejudice, the claims asserted against Judge
Perryman and Gardner, although the reasons for the dismissal of those
claims is not provided in the materials submitted to this Court.
Judge Young, Judge Martin, May, and Lindley (hereinafter referred
to collectively as "the defendants") filed a motion to dismiss under Rule
4
1200184
12(b)(6), Ala. R. Civ. P., in which they asserted that Foster's claims
against them were barred by the doctrines of judicial immunity, State or
sovereign immunity, and State-agent immunity; that Foster lacked
standing to sue them; and that Foster's claims were barred by the
applicable statute of limitations. Foster filed a response to the motion.
Although matters outside the pleadings had not been submitted in
support of or in opposition to the motion to dismiss, the trial court, ex
mero motu, entered an order converting the defendants' motion to dismiss
to a motion for a summary judgment under Rule 56, Ala. R. Civ. P. The
trial court's order allowed the defendants 30 days to file evidentiary
support for their motion and, thereafter, allowed Foster 30 days to file
additional evidentiary support in opposition to the defendants' motion.
The defendants did not file any evidentiary materials in support of
their motion within the time allotted by the trial court. Foster, however,
filed an additional response, to which he attached his own affidavit
attesting to the events occurring at a hearing before Judge Young on April
18, 2020, in one of his criminal cases. He also attached an order entered
by Judge Young on April 18, 2014, entering a plea of not guilty, ex mero
5
1200184
motu, for Foster in case no. CC-14-123, in the Randolph Circuit Court (see
note 1, supra), citing Foster's failure to cooperate during a hearing; letters
that he had sent to Judge Perryman and Judge Martin, in which he
requested the entry of orders in his criminal cases directing his sentences
to run concurrently; and an order entered by Judge Martin on November
5, 2018, in case no. CC-96-48.60, in the Randolph Circuit Court (see note
1, supra), denying Foster's motion for a nunc pro tunc order, which,
presumably, was related to Foster's request for the entry of orders
directing that his criminal sentences run concurrently. Foster further
attached copies of several records requests he purportedly sent to the
clerk's office requesting specific documents from case nos. CC-96-48.60
and CC-14-123. Foster's records requests included an offer to prepay the
cost for production of the records.
The trial court entered an order denying the defendants' motion for
a summary judgment, stating that, because the defendants did not file any
evidentiary materials in support of their motion, the only evidence before
the trial court was the evidentiary material submitted by Foster in
opposition to the defendants' motion. The trial court, therefore, concluded
6
1200184
that the defendants had not met their evidentiary burden in support of
their summary-judgment motion.
The defendants filed a petition to this Court seeking a writ of
mandamus compelling the trial court to dismiss Foster's complaint on the
basis that they are entitled to immunity from Foster's claims, that Foster
lacks standing to sue the defendants, and that Foster's claims are subject
to dismissal under the applicable statute of limitations.
II. Standard of Review
" 'Mandamus is a drastic and extraordinary
writ, to be issued only where there is (1) a clear
legal right in the petitioner to the order sought; (2)
an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the
lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court.'
"Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). The
question of subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus. See Ex parte Flint Constr.
Co., 775 So. 2d 805, 808 (Ala. 2000)."
Ex parte Marshall, 323 So. 3d 1188, 1194-95 (Ala. 2020). Although " 'the
general rule [is] that interlocutory denials of motions to dismiss and
motions for a summary judgment cannot be reviewed by way of a petition
7
1200184
for a writ of mandamus,' " this Court has acknowledged " 'limited
exceptions' " to that general rule for motions asserting " 'certain defenses
(e.g., immunity, subject-matter jurisdiction, in personam jurisdiction,
venue and some statute-of-limitations defenses)' " because those defenses,
if applicable, " 'are of such a nature that a party simply ought not to be put
to the expense and effort of litigation.' " Ex parte Hodge, 153 So. 3d 734,
748 (Ala. 2014)(quoting Ex parte Alamo Title Co., 128 So. 3d 700, 716
(Ala. 2013)(Murdock, J., concurring specially)).
The trial court converted the defendants' motion to dismiss to a
motion for a summary judgment. This Court is not aware of any authority
allowing a trial court to convert a motion to dismiss to a motion for a
summary judgment, ex mero motu, absent the submission of materials
outside the pleadings. In so converting their motion, the defendants
contend, the trial court exceeded its discretion. The defendants, however,
did not object to the trial court's order converting their motion to dismiss
to a motion for a summary judgment. This Court has stated that, "on
mandamus review, 'we look only to the factors actually argued before the
trial court.' " Ex parte Staats-Sidwell, 16 So. 3d 789, 792 (Ala.
8
1200184
2008)(quoting Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005), citing
in turn Ex parte Ebbers, 871 So. 2d 776, 792 (Ala. 2003)). The defendants
also fail to adequately expound upon their contention that the trial court
erroneously converted their motion to dismiss, and they fail to cite any
authority in support of their contention. See Rule 21(a)(1)(E), Ala. R. App.
P. (requiring "[a] statement of the reasons why the writ should issue, with
citations to the authorities and the statutes relied on"). See also Rule
28(a)(10), Ala. R. App. P. (requiring arguments in appellate briefs to
contain "citations to the cases, statutes, other authorities, and parts of the
record relied on"). This Court has stated that, "[i]f anything, the
extraordinary nature of a writ of mandamus makes the Rule 21
requirement of citation to authority even more compelling than the Rule
28 requirement of citation to authority in a brief on appeal." Ex parte
Showers, 812 So. 2d 277, 281 (Ala. 2001). The defendants, thus, have
waived any argument concerning the purported impropriety of the trial
court's order converting their motion to dismiss to a motion for a summary
judgment. Accordingly, we will analyze this case applying the summary-
judgment standard of review.
9
1200184
As to this Court's review of a denial of a motion for a summary
judgment, this Court has stated:
" '[W]hether
review
of
the
denial
of
a
summary-judgment motion is by a petition for a
writ of mandamus or by permissive appeal, the
appellate court's standard of review remains the
same. If there is a genuine issue as to any material
fact on the question whether the movant is entitled
to [the pertinent defense], then the moving party is
not entitled to a summary judgment. Rule 56, Ala.
R. Civ. P. In determining whether there is a
[genuine issue of] material fact on the question
whether the movant is entitled to [the pertinent
defense], courts, both trial and appellate, must
view the record in the light most favorable to the
nonmoving party, accord the nonmoving party all
reasonable favorable inferences from the evidence,
and resolve all reasonable doubts against the
moving party, considering only the evidence before
the trial court at the time it denied the motion for
a summary judgment. Ex parte Rizk, 791 So. 2d
911, 912 (Ala. 2000).'
"Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).
" ' "When the movant makes a prima facie showing
that there is no genuine issue of material fact, the
burden shifts to the nonmovant to present
substantial evidence creating such an issue. Bass
v. SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989). Evidence is 'substantial' if
it is of 'such weight and quality that fair-minded
persons in the exercise of impartial judgment can
10
1200184
reasonably infer the existence of the fact sought to
be proved.' Wright [v. Wright], 654 So. 2d [542,]
543 [(Ala. 1995)] (quoting West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989))." '
"Wilson v. Manning, 880 So. 2d 1101, 1102 (Ala. 2003) (quoting
Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344
(Ala. 1997))."
Ex parte City of Montgomery, 272 So. 3d 155, 159 (Ala. 2018). Moreover,
"we review de novo questions of law arising in the context of a summary
judgment." Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007).
III. Discussion
A.
The defendants contend that the doctrine of judicial immunity bars
Foster's claims against them because the actions on which Foster bases
his claims were taken by the defendants while acting in a judicial
capacity. The defendants also contend that they are immune from suit
under the State or sovereign immunity provided in Art. I, § 14, Ala. Const.
1901 (Off. Recomp.). The denial of a motion for a summary judgment
predicated on the defense of immunity is reviewable by way of a petition
11
1200184
for a writ of mandamus. See Ex parte Hodge, supra; Ex parte City of
Greensboro, 948 So. 2d 540 (Ala. 2006)(addressing the denial of a
summary-judgment motion predicated on the defense of judicial
immunity). This Court has stated that the availability of immunity "is
ultimately a question of law to be determined by the court." Suttles v. Roy,
75 So. 3d 90, 100 (Ala. 2010).
The doctrine of judicial immunity shields judicial officers from
liability for actions taken while acting in their judicial capacity, and it
extends even to actions taken by judicial officers that are done in error,
maliciously, or in excess of their authority. See Stump v. Sparkman, 435
U.S. 349, 356 (1978); Ex parte City of Greensboro, 948 So. 2d at 542; and
Almon v. Gibbs, 545 So. 2d 18, 20 (Ala. 1989). As this Court has stated,
"[a] judge acting in his or her judicial capacity must enjoy freedom from
risk of a lawsuit, lest the administration of justice be inhibited by fear of
personal liability." City of Bayou La Batre v. Robinson, 785 So. 2d 1128,
1133 (Ala. 2000)(citing Dennis v. Sparks, 449 U.S. 24, 31 (1980)). Judicial
officers, however, do not enjoy the benefit of judicial immunity when they
are performing administrative or ministerial duties that do not involve the
12
1200184
exercise of discretion. City of Bayou La Batre, 785 So. 2d at 1132 (citing
Mireles v. Waco, 502 U.S. 9, 11 (1991), citing in turn Forrester v. White,
484 U.S. 219 (1988)).
Moreover, judicial immunity precludes an action for injunctive relief
under 42 U.S.C. § 1983 against a judicial officer acting within his or her
judicial capacity unless a declaratory judgment has been violated or
declaratory relief is unavailable. Justice Mendheim, writing for a
majority of the Justices of this Court, recently summarized this concept
in a special concurrence in Ex parte Marshall, supra:
"Congress, in the Federal Courts Improvement Act of 1996,
amended 42 U.S.C. § 1983 such that 'injunctive relief against
a judicial officer for an act or omission in his judicial capacity
shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable.' Bauer v. Texas, 341 F.3d
352, 357 (5th Cir. 2003). See also Pub. L. No. 104-317, § 309(c),
110 Stat. 3847 (codified at 42 U.S.C. § 1983); Kuhn v.
Thompson, 304 F. Supp. 2d 1313, 1322-23 (M.D. Ala. 2004)
(noting that, '[w]here a plaintiff does not allege and the record
does not suggest that the judicial defendant violated a
declaratory decree or that declaratory relief was unavailable,
judicial immunity requires dismissal of claims against judicial
officers for actions taken in their judicial capacity even when
the claims seek prospective injunctive relief'); Ray v. Judicial
Corr. Servs., Inc., No. 2:12-CV-02819-RDP, Oct. 9, 2014 (N.D.
Ala. 2014) (not selected for publication in F. Supp.) (stating
that '[i]t cannot be seriously disputed that, after the [Federal
13
1200184
Courts Improvement Act], judicial immunity typically bars
claims for prospective injunctive relief against judicial officials
acting in their judicial capacity. Only when a declaratory
decree is violated or declaratory relief is unavailable would
plaintiffs have an end-run around judicial immunity'). Thus,
even under the authority relied upon by the respondents, their
claim for injunctive relief against the petitioner circuit judges
is barred by judicial immunity."
323 So. 3d at 1202-03 (Mendheim, J., concurring specially, joined by four
Justices).
Here, the claims against Judge Young and Judge Martin stem from
actions that those judges took in their official judicial capacities while
presiding over proceedings in Foster's criminal cases and while they were
performing judicial functions, i.e., presiding over hearings or entering
orders denying motions to modify sentences of incarceration. Foster does
not contend otherwise. Further, Foster does not allege that a declaratory
judgment was violated or that declaratory relief is unavailable, and, thus,
his request for injunctive relief under 42 U.S.C. § 1983 is barred by
judicial immunity. Accordingly, Judge Young and Judge Martin are
immune from all Foster's claims and are entitled to a summary judgment
14
1200184
on that basis.2 See Almon v. Battles, 541 So. 2d 519, 521 (Ala.
1989)(concluding that judicial immunity barred claims asserted under 42
U.S.C. §§ 1983, 1985, and 1986 against a judge for actions taken in his
official capacity).
May and Lindley contend that they are entitled to judicial immunity
because, they assert, they, like judges, are judicial officers who perform
judicial functions. May and Lindley correctly note that judicial immunity
extends to the discretionary judicial acts of clerks of court and
magistrates. City of Bayou La Batre, 785 So. 2d at 1133. As this Court has
stated, "where a clerk of court is performing a duty that requires the
exercise of judgment and discretion in its performance, it is considered a
judicial act entitling the clerk to judicial immunity." Gibbs, 545 So. 2d at
2Notwithstanding our conclusion that the claims against Judge
Young and Judge Martin are barred by judicial immunity, we also note
that "[t]he general rule is that a court may not interfere with the
enforcement of criminal laws through a civil action ...." Tyson v. Macon
Cnty. Greyhound Park, Inc., 43 So. 3d 587, 589 (Ala. 2010). Insofar as
Foster seeks an order compelling Judge Young and Judge Martin to
modify the sentencing orders in his criminal cases, Foster's complaint is
an impermissible attempt to modify the rulings in his criminal case via a
civil action.
15
1200184
20. See also § 12-17-5, Ala. Code 1975 (providing that circuit clerks have
judicial immunity from any liability arising from the execution of their
duties, which are statutorily prescribed in § 12-17-94(a), Ala. Code 1975).
As noted above, however, when a clerk or magistrate performs a
ministerial or administrative duty, judicial immunity has no application.
City of Bayou La Batre, 785 So. 2d at 1132 (concluding that a municipal
magistrate's failure to properly fax a warrant-recall order did not involve
the type of judgment contemplated that would invoke judicial immunity
and, instead, involved the performance of an administrative function).
Foster's claim against May and Lindley is not a model of clarity.
Adhering to the rules governing the liberal construction of pleadings, we
construe Foster's claim to be one seeking a remedy under the Open
Records Act, § 36-12-40 et seq., Ala. Code 1975. See Ex parte Perch, 17 So.
3d 649, 650 (Ala. 2009)(concluding that a state inmate's request for
documents from his criminal case amounted to a request for public
writings under the Open Records Act).3 Thus, whether judicial immunity
3We note that, although Foster purports to lump his claims against
May or Lindley within his civil-rights claims under 42 U.S.C. §§ 1983,
16
1200184
applies would depend on whether May's and Lindley's alleged actions or
inactions in relation to Foster's records requests amounted to judicial
functions or administrative functions.
In Graham v. Alabama State Employees Ass'n, 991 So. 2d 710 (Ala.
Civ. App. 2007), the Court Civil Appeals considered, among other things,
whether the denial of a request under the Open Records Act amounted to
a discretionary act. In Graham, the Alabama State Employees Association
("the ASEA") made a request under the Open Records Act to the Alabama
State Personnel Department ("the SPD") for the production of certain
documents. After the SPD did not produce the documents, the ASEA filed
a petition for a writ of mandamus in a circuit court seeking an order
1985, and 1986, he does not specifically assert that May or Lindley have
violated any federally protected right under the United States
Constitution or a federal statute. The United States Supreme Court has
stated that "Section 1983 provides a federal remedy for 'the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws.' As the language of the statute plainly indicates, the remedy
encompasses violations of federal statutory as well as constitutional
rights." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103,
105 (1989). As observed above, we have construed Foster's claim against
May and Lindley as seeking relief only under the Open Records Act, which
is a claim arising from alleged violations of state law.
17
1200184
compelling the SPD to produce the requested records. The circuit court
issued a writ directing the SPD to produce most of the documents the
ASEA had requested. On appeal, the Court of Civil Appeals stated:
" ' " ' "Alabama law has defined 'discretionary acts' as
' "[t]hose acts [as to which] there is no hard and fast rule as to
course of conduct that one must or must not take" and those
requiring "exercise in judgment and choice and [involving]
what is just and proper under the circumstances." ' " ' " ' Hollis
v. City of Brighton, 950 So. 2d 300, 307 (Ala. 2006) (quoting
Blackwood v. City of Hanceville, 936 So. 2d 495, 504 (Ala.
2006), quoting in turn Norris v. City of Montgomery, 821 So.
2d 149, 153 (Ala. 2001), quoting in turn Montgomery v. City of
Montgomery, 732 So. 2d 305, 310 (Ala. Civ. App. 1999)). In
contrast, ' " '[o]fficial action, the result of performing a certain
and specific duty arising from fixed and designated facts, is a
ministerial act.' " ' O'Barr v. Feist, 292 Ala. 440, 445, 296 So.
2d 152, 156 (1974) (quoting Perkins v. United States Fidelity
& Guaranty Co., 433 F.2d 1303, 1305 [(5th Cir. 1970)], quoting
in turn Rainey v. Ridgeway, 151 Ala. 532, 535, 43 So. 843, 844
(1907))."
Graham, 991 So. 2d at 718. The court concluded, in pertinent part, that,
"[o]nce a citizen expresses a legitimate reason for seeking public SPD
records that have not been deemed confidential, neither the SPD nor its
director has discretion with regard to whether they will produce the
document." Id. The court further held that, "[b]ecause the operative
statutes unequivocally direct the SPD to produce nonconfidential public
18
1200184
documents, any production would be considered a ministerial act that a
circuit court may properly compel by a writ of mandamus. Therefore, the
trial court did not err in issuing the requested writ of mandamus in this
case." Id.
Consistent with the Court of Civil Appeals' decision in Graham, we
conclude that Foster's claim against May and Lindley seeks to compel the
performance of an administrative duty. Although May and Lindley
contend that Foster's allegations pertain to actions or inactions that they
took in their official capacities, they have not made any assertion that
they exercised any judgment or discretion in regard to processing Foster's
requests for records. Judicial immunity, therefore, cannot serve as a bar
to Foster's claim against May and Lindley for relief under the Open
Records Act.
May and Lindley also contend that they are entitled to State or
sovereign immunity under Art. I, § 14, Ala. Const. 1901 (Off. Recomp.),
which provides that "the State of Alabama shall never be made a
defendant in any court of law or equity." Immunity under § 14 extends to
state officers sued in their official capacities; however, it is not unlimited.
19
1200184
See Ex parte Moulton, 116 So. 3d 1119, 1130-31 (Ala. 2013). Specifically,
this Court has held that § 14 will not prohibit actions brought to compel
State officials to perform their legal duties and actions to compel State
officials to perform a ministerial act. See Ex parte Alabama Dep't of Fin.,
991 So. 2d 1254, 1256-57 (Ala. 2008)(identifying the six general categories
of actions that do not come within the prohibition of § 14). Foster's claim
seeks an order compelling May and Lindley to perform the
nondiscretionary, ministerial duty of providing him with the records he
requested from his criminal cases. Section 14, therefore, does not prohibit
the claim under the Open Records Act against May and Lindley.
B.
May and Lindley contend that Foster lacks standing to sue because,
they contend, he fails to allege a particularized injury in his complaint.
We first note that Foster is a private individual asserting a claim against
May and Lindley, a public official and a public employee, respectively,
under the Open Records Act. Because this is a public-law case, the concept
of standing applies. See Poiroux v. Rich, 150 So. 3d 1027, 1039 (Ala.
2014)(determining that the case was brought by private individuals
20
1200184
against various state officials and involved the constitutionality of fees
imposed pursuant to statute and concluding, therefore, that the case fell
within the definition of a public-law case and that the concept of standing
applied).
"The question of standing implicates the subject-matter jurisdiction
of the court." Bernals, Inc. v. Kessler-Greystone, LLC, 70 So. 3d 315, 319
(Ala. 2011). "A challenge to a trial court's subject-matter jurisdiction based
on the plaintiff's alleged lack of standing is reviewable by a petition for a
writ of mandamus." Ex parte Merrill, 264 So. 3d 855, 862 (Ala.
2018)(citing Ex parte HealthSouth Corp., 974 So. 2d 288, 292 (Ala. 2007));
see also Ex parte Hodge, supra. A party has established standing when
they can show " ' "(1) an actual, concrete and particularized 'injury in fact'
-- 'an invasion of a legally protected interest'; (2) a 'causal connection
between the injury and the conduct complained of'; and (3) a likelihood
that the injury will be 'redressed by a favorable decision.' " ' " Gann v. City
of Gulf Shores, 29 So. 3d 244, 248 (Ala. Crim. App. 2009) (quoting Town
of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1256-57
(Ala. 2004), quoting in turn Alabama Alcoholic Beverage Control Bd. v.
21
1200184
Henri-Duval Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003), quoting in turn
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))(emphasis
omitted). Moreover,
" ' " '[i]njury will not be presumed; it must be shown.' "
Town of Cedar Bluff[ v. Citizens Caring for Children], 904 So.
2d [1253,] 1256 [(Ala. 2004)](quoting Jones v. Black, 48 Ala.
540, 543 (1872)). "A party's injury must be 'tangible,' see Reid
v. City of Birmingham, 274 Ala. 629, 639, 150 So. 2d 735, 744
(Ala. 1963); and a party must have 'a concrete stake in the
outcome of the court's decision.' " Kid's Care, Inc. v. Alabama
Dep't of Human Res., 843 So. 2d 164, 167 (Ala. 2002)(quoting
Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.
2d 932, 937 (Ala. 1983)). The plaintiffs "must allege 'specific
concrete facts demonstrating that the challenged practices
harm [them], and that [they] personally would benefit in a
tangible way from the court's intervention.' " Ex parte
HealthSouth [Corp.], 974 So. 2d [288,] 293 [(Ala. 2007)]
(quoting Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45
L.Ed. 2d 343 (1975) (footnote omitted)). At a minimum, they
must show that they personally have suffered some actual or
threatened injury as a result of the purportedly illegal conduct.
Stiff v. Alabama Alcoholic Beverage Control Bd., 878 So. 2d
1138, 1141 (Ala. 2003).' "
Ex parte LeFleur, [Ms. 1190191, Nov. 6, 2020] ____ So. 3d ____, ____(Ala.
2020) (quoting Ex parte Merrill, 264 So. 3d 855, 862-63 (Ala. 2018)).
As observed above, Foster's claim against May and Lindley is a
request for relief under the Open Records Act. This Court has routinely
22
1200184
recognized that "[t]he Open Records Act is remedial and should therefore
be liberally construed in favor of the public." Water Works & Sewer Bd.
of Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 862 (Ala. 2004).
The Open Records Act provides that "[e]very citizen has a right to inspect
and take a copy of any public writing of this state, except as otherwise
expressly provided by statute." § 36-12-40, Ala. Code 1975 (emphasis
added). In Ex parte Perch, 17 So. 3d at 650, this Court reaffirmed the
proposition that " '[n]o statute denies this right to inmates or felons.' "
(Quoting Ex parte Gill, 841 So. 2d 1231, 1233 (Ala. 2002)).
Here, aside from citing general principles relating to the doctrine of
standing, the petition for a writ of mandamus fails to articulate any
cognizable argument applicable to the facts in support of the proposition
that Foster has not alleged that he suffered a concrete injury under the
Open Records Act. Although the defendants opted not to supply any
evidentiary proof to substantiate their assertion that Foster did not have
standing, Foster provided unrebutted evidence in opposition to the motion
for a summary judgment indicating that he had made numerous records
requests to the clerk's office and that his requests included an offer to
23
1200184
prepay the costs associated with responding to the requests. See Ex parte
Gill, 841 So. 2d at 1234 (concluding that § 36-12-40, a part of the Open
Records Act, "does not entitle inmates to any relief from their
incarceration or to any transportation to the custodian's office to
accomplish th[e] tasks [of identifying or copying the relevant records] and
does not entitle them to free copies or to funds to pay for copies"). May and
Lindley, therefore, have not demonstrated that they have a clear legal
right to a summary judgment on the basis that Foster lacks standing to
assert a claim under the Open Records Act.
C.
In the mandamus petition, May and Lindley argue that they were
entitled to a summary judgment because Foster's claim against them is
barred by the applicable statute of limitations. In support of their
contention, May and Lindley merely contend, without offering any
evidentiary support, that Foster's requests for records were fulfilled on
December 17, 2014, when the clerk's office sent him the complete file in
one of his criminal cases and that Foster, accordingly, had two years from
24
1200184
that date, i.e., December 17, 2016, to file suit under § 6-2-38(i), Ala. Code
1975.
This Court has stated:
"[A]side from the limited exceptions recognized by this Court
and those cases in which it is clear from the face of the
complaint that a defendant is entitled to a dismissal or a
judgment in its favor, the drastic and extraordinary remedy of
a writ of mandamus is not available merely to alleviate the
inconvenience and expense of litigation for a defendant whose
motion to dismiss or motion for a summary judgment has been
denied."
Ex parte Sanderson, 263 So. 3d 681, 688 (Ala. 2018). In Ex parte Hodge,
supra, this Court authorized review by way of a mandamus petition when
the defendants were "faced with the extraordinary circumstance of having
to further litigate this matter after having demonstrated from the face of
the plaintiff's complaint a clear legal right to have the action against them
dismissed based on the four-year period of repose found in § 6-5-482(a)[,
Ala. Code 1975]." 153 So. 3d at 749. This Court further stated in Hodge
that
"[t]his case is not to be read as a general extension of
mandamus practice in the context of a statute-of-limitations
defense; rather, it should be read simply as extending relief to
the defendants in this case where they have demonstrated,
25
1200184
from the face of the complaint, a clear legal right to relief and
the absence of another adequate remedy."
Id. (emphasis added).
Here, May and Lindley make no argument that, based on the face of
Foster's complaint, they have a clear legal right to a summary judgment
on the ground that the applicable statute of limitations bars Foster's claim
against them. Moreover, Foster's complaint is devoid of any information
from which this Court can determine that his claim against May and
Lindley is untimely. He does not provide the dates on which he submitted
his records requests. May and Lindley, therefore, "have not demonstrated
that this case falls within the exception recognized in Hodge to the general
rule against review by mandamus of the applicability of a
statute-of-limitations defense." Ex parte International Refin. & Mfg. Co.,
153 So. 3d 774, 782 n.3 (Ala. 2014).
IV. Conclusion
We grant the defendants' petition insofar as it seeks a writ of
mandamus directing the trial court to enter a summary judgment in favor
of Judge Young and Judge Martin on the ground that all the claims
26
1200184
asserted against them by Foster are barred by the doctrine of judicial
immunity. We deny the petition, however, insofar as it seeks a writ of
mandamus instructing the trial court to enter a summary judgment in
favor of May and Lindley regarding Foster's claim against them under the
Open Records Act.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT
ISSUED.
Parker, C.J., and Sellers, Mendheim, and Mitchell, JJ., concur.
Bolin, Shaw, Wise, and Bryan, JJ., concur in the result.
27 | October 29, 2021 |
35b6f096-8f9b-4921-b45d-fb1ef698fd6f | Ex parte State of Alabama. | N/A | 1200730 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 22, 2021
1200730
Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Steven Chalmers Varnado v.
State of Alabama) (Montgomery Circuit Court: CC-17-1604; Criminal
Appeals :
CR-18-0673).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 22, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Bolin, Shaw, Wise, Bryan,
Sellers, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 22nd day of October, 2021.
Clerk, Supreme Court of Alabama | October 22, 2021 |
a3c77eb3-9880-431f-96a1-f954f8c93287 | Ex parte Karen H. Jackson, as guardian ad litem for S.S. | N/A | 1210018 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1210018
Ex parte Karen H. Jackson, as guardian ad litem for S.S. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Karen H. Jackson, as guardian ad litem for S.S. v. Montgomery County
Department of Human Resources) (Montgomery Juvenile Court:
JU-19-383.01; Civil Appeals :
2200276).
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. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
81a86074-83e9-43d8-9e5a-b71aafa426fb | SE Property Holdings, LLC v. David L. Harrell | N/A | 1190816 | Alabama | Alabama Supreme Court | Rel: November 5, 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
____________________
1190814
____________________
Ex parte SE Property Holdings, LLC
PETITION FOR WRIT OF CERTIORARI
TO THE BALDWIN CIRCUIT COURT
(In re: SE Property Holdings, LLC
v.
David L. Harrell)
(Baldwin Circuit Court, CV-10-901862)
____________________
1190816
____________________
SE Property Holdings, LLC
v.
David L. Harrell
Appeal from Baldwin Circuit Court
(CV-10-901862)
SHAW, Justice.
In case no. 1190816, the appellant and plaintiff below, SE Property
Holdings, LLC ("SEPH"), has appealed the Baldwin Circuit Court's denial
of its petition seeking to hold the appellee and defendant below, David L.
Harrell, in contempt for failing to comply with the trial court's
postjudgment charging order entered in a previous action involving the
parties and its failure to hold a hearing on its contempt petition. In case
no. 1190814, SEPH has also petitioned this Court for a writ of certiorari,
seeking the same relief. This Court consolidated the proceedings ex mero
motu. In case no. 1190816, we reverse the trial court's decision and
remand the case; in case no. 1190814, we dismiss the certiorari petition.
Facts and Procedural History
In December 2006, Water's Edge, LLC ("Water's Edge"), a real-estate
development company, entered into a construction-loan agreement ("the
2
1190814, 1190816
agreement") with a bank that later merged into SEPH for two
construction loans totaling $17,000,000. Some of Water's Edge's members,
including Harrell, served as guarantors on the loans and, pursuant to the
agreement, guaranteed timely payment of the two loans by November 30,
2010. According to SEPH, the last payment made by Water's Edge on both
loans occurred in May 2010.
In October 2010, SEPH sued Water's Edge and the loan guarantors,
including Harrell. Following years of litigation, the trial court entered a
judgment against Water's Edge for $13,863,052.94. The trial court also
entered a judgment against the guarantors, including Harrell, for
$9,084,076.14 on one loan and for different amounts totaling $2,297,431 --
including $84,392 against Harrell -- on the other loan.
In February 2015, SEPH filed a motion in the previous action
seeking a charging order pursuant to § 10A-5A-5.03, Ala. Code 1975, on
the basis that Harrell had not satisfied the judgment against him.
According to SEPH, Harrell owned a membership interest in various
companies, including Southern Land Brokers, LLC ("SLB"), formerly
3
1190814, 1190816
known as Alabama Land Brokers. Thus, under § 10A-5A-5.03, SEPH
contended, it was entitled to an order
"charging the membership interest of Harrell in the subject
Companies with payment of the unsatisfied amount of
[SEPH's] judgment, with accrued interest and costs. Under the
Charging Order, a lien is created on Harrell's interest, and the
Companies would be required to report and distribute to
[SEPH] any amounts that become due or distributable."
The trial court granted SEPH's request and issued a charging order
directing SLB and the other companies to "distribute to the Clerk of Court
any income, officer's fees, bonuses, distributions, salaries or dividends
paid or otherwise conveyed to [Harrell] by reason of any interest [he]
own[s] in the Limited Liability Companies until [SEPH's] judgment is
satisfied in full." According to SEPH, despite the entry of the trial court's
charging order, the judgment has not been fully satisfied.
On June 12, 2020, SEPH filed a petition asking the trial court to
hold Harrell in contempt and to sanction him for violating the charging
order. According to SEPH, Harrell and his wife, Carolyn, each owned 50%
of SLB. SLB's operating agreement required that all distributions,
profits, and income be distributed to each member based on their
4
1190814, 1190816
ownership interest in the company.1 SEPH alleged that, after the trial
court had entered its charging order, Harrell, as SLB's managing member,
began making distributions solely to Carolyn in violation of SLB's
operating agreement. Those distributions to Carolyn, SEPH alleged,
included distributions actually owed to Harrell, thereby violating the trial
court's charging order.
SEPH also alleged that SLB had been making payments on Harrell's
American Express account for his personal expenses. Because those
expenses were not related to the business, SEPH alleged, those payments
were "de facto distributions" to Harrell that should have been paid to the
clerk of court in accordance with the charging order. In support of its
petition, SEPH attached numerous financial documents that it had
obtained from Harrell and SLB, including Schedule K-1 federal tax forms
on which Harrell declared that he had received distributions from SLB in
the years following the trial court's issuance of its charging order.
1A copy of the operating agreement was included in the record on
appeal.
5
1190814, 1190816
Harrell filed an objection to SEPH's petition in which he
acknowledged that, pursuant to § 10A-5A-5.03(a), the charging order
issued by the trial court gave SEPH the right to receive any distributions
from SLB to which Harrell would otherwise be entitled as a result of any
transferrable interest held by him in the company. He also acknowledged
that, pursuant to § 10A-5A-5.03(c), the charging order constituted a lien
on his transferrable interests and that § 10A-5A-5.03(f) provided the
exclusive remedy by which a judgment creditor of a member or transferee
could satisfy a judgment out of his transferrable interests. He asserted,
however, that SEPH's petition was due to be denied because, he said, he
had not transferred "any transferrable interest he maintains in and to
[SLB] and [he had] not received an actual cash distribution (K-1) from the
profits, if any, earned by [SLB]." No documentary evidence or affidavits
were filed with Harrell's objection.
After SEPH filed a response to Harrell's objection, the trial court,
without holding a hearing, issued an order on July 1, 2020, denying
SEPH's petition.
6
1190814, 1190816
As noted above, SEPH filed both an appeal and a petition for
certiorari review. Before the adoption of Rule 70A(g), Ala. R. Civ. P., and
Rule 33.6, Ala. R. Crim. P., a trial court's contempt ruling was subject to
appellate review by a petition for a writ of certiorari. Ex parte Dearman,
322 So. 3d 5, 9 n.5 (Ala. 2020) ("Before the adoption of Rule 33, Ala. R.
Crim. P., and its provision for the appeal of contempt findings, all
contempt findings were reviewed by petition for the writ of certiorari.").2
Rule 70A(g), which was adopted in 1994 and is applicable in civil cases,
provides that an adjudication or finding of contempt is subject to direct
appeal.3 As SEPH correctly points out, the language of the rule
2Even when a party purported to appeal a trial court's contempt
ruling, our appellate courts treated those appeals as petitions for the writ
of certiorari. See, e.g., Thomas v. Thomas, 406 So. 2d 939, 941 (Ala. Civ.
App. 1981) ("Although the appropriate method of review of a contempt
order is by way of extraordinary writ, ... this court will treat the husband's
appeal as a petition for certiorari and consider his arguments
accordingly."). The same was true when a party appealed the denial of a
request for a finding of contempt, as was done in this case. See, e.g.,
Citicorp Person to Person Fin. Ctr., Inc. v. Sanderson, 421 So. 2d 1293,
1295 (Ala. Civ. App. 1982) ("Certiorari, and not an appeal, is the proper
method to review a trial court's action in refusing to hold a party in
contempt of court.").
3Rule 70A(g) provides:
7
1190814, 1190816
contemplates an appeal only when a party has been found in contempt; it
does not provide that an aggrieved party may appeal a trial court's order
denying a finding of contempt.
However, our appellate courts have since clarified that, in many
cases, a petition seeking the imposition of sanctions based on a finding of
contempt initiates an independent proceeding that requires payment of a
filing fee. See, e.g., Morgan v. Morgan, 183 So. 3d 945 (Ala. Civ. App.
2014) (recognizing that an action for contempt requires the payment of a
new filing fee, new service of process, and the addition of a new suffix to
the case number); Kyle v. Kyle, 128 So. 3d 766, 772 (Ala. Civ. App. 2013)
(recognizing that " '[a] motion or petition seeking the imposition of
sanctions based on a finding of contempt initiates an independent
"(1) Where Contemnor Is in Custody. An adjudication of
contempt is reviewable by appeal if the person found in
contempt is being held in custody pursuant to that
adjudication, unless the writ of habeas corpus is an available
remedy.
"(2) Where Contemnor Is Not in Custody. If the person
found in contempt is not being held in custody pursuant to the
adjudication of contempt, the adjudication is reviewable by
appeal."
8
1190814, 1190816
proceeding that requires the payment of a filing fee.' " (quoting Kaufman
v. Kaufman, 934 So. 2d 1073, 1082 (Ala. Civ. App. 2005))); and Wilcoxen
v. Wilcoxen, 907 So. 2d 447, 449 n.1 (Ala. Civ. App. 2005) (recognizing that
the filing of a contempt petition initiated a separate and independent
proceeding from the underlying action). Under § 12-22-2, Ala. Code 1975,
an appeal lies from "any" final judgment of a circuit court or a probate
court. See, e.g., Richburg v. Richburg, 895 So. 2d 311 (Ala. Civ. App. 2004)
(recognizing that a judgment is final and appealable if it disposes of all the
claims and controversies between the parties). Our appellate courts have
previously reviewed denials of contempt petitions on appeal -- instead of
by certiorari petition -- in cases in which those denials were part of final
judgments. See, e.g., J.S.S. v. D.P.S., 281 So. 3d 434 (Ala. Civ. App. 2019);
Hummer v. Loftis, 276 So. 3d 215 (Ala. Civ. App. 2018); and Seymour v.
Seymour, 241 So. 3d 733 (Ala. Civ. App. 2017).Therefore, the denial of a
petition for contempt that initiates an independent proceeding and is
adjudicated in a final judgment is subject to appeal.
In the present case, SEPH filed the underlying petition for contempt
and paid a filing fee, thereby initiating an independent action below. The
9
1190814, 1190816
trial court's judgment adjudicated all the claims against all the parties
and was a final judgment for purposes of Rule 54, Ala. R. Civ. P.
Therefore, the trial court's ruling is properly reviewed by appeal;
therefore, we dismiss SEPH's separately filed certiorari petition in case
no. 1190814 as superfluous.
Standard of Review
" 'The issue whether to hold a party in contempt is solely
within the discretion of the trial court, and a trial court's
contempt determination will not be reversed on appeal absent
a showing that the trial court acted outside its discretion or
that its judgment is not supported by the evidence.' "
J.S.S. v. D.P.S., 281 So. 3d at 437-38 (quoting Poh v. Poh, 64 So. 3d 49, 61
(Ala. Civ. App. 2010)). See also Hummer v. Loftis, 276 So. 3d at 225.
Discussion
SEPH argues that the trial court, in denying its petition to hold
Harrell in contempt for failing to comply with the charging order,
exceeded its discretion because, it says, the record contains undisputed
evidence establishing that Harrell violated the charging order. It also
argues that the trial court erred in denying its petition without first
holding a hearing on that petition.
10
1190814, 1190816
Under Alabama law,
"[o]n application to a court of competent jurisdiction by any
judgment creditor of a member or transferee, the court may
charge the transferable interest of the judgment debtor with
payment of the unsatisfied amount of the judgment with
interest. To the extent so charged and after the limited
liability company has been served with the charging order, the
judgment creditor has only the right to receive any
distribution or distributions to which the judgment debtor
would otherwise be entitled in respect of the transferable
interest."
§ 10A-5A-5.03(a). A "transferrable interest" is "a member's right to receive
distributions from a limited liability company or a series thereof." § 10A-
5A-1.02(t), Ala. Code 1975. "Distribution" is defined as "a transfer of
money or other property from a limited liability company, or series
thereof, to another person on account of a transferable interest." § 10A-5A-
1.02(h). A "distribution" does not include "amounts constituting
reasonable compensation for present or past services or reasonable
payments made in the ordinary course of the limited liability company's
activities and affairs under a bona fide retirement plan or other benefits
program." § 10A-5A-4.06(e), Ala. Code 1975.
11
1190814, 1190816
As noted previously, SEPH applied for and was granted a charging
order in 2015 after Harrell had failed to satisfy the judgment issued
against him. The trial court's charging order stated, in pertinent part:
"[A] lien is charged against the financial interests of David L.
Harrell in [SLB, Crystal Waters, LLC, Lowmar Properties,
LLC, and Harrell Development, LLC (the 'Limited Liability
Companies')] in the amount of $9,084,076.14 and $84,392.00,
being the unsatisfied judgment of December 17, 2014, plus
accrued interest on the judgment and that said [Limited
Liability] Companies are ORDERED to distribute to the Clerk
of Court any income, officer's fees, bonuses, distributions,
salaries or dividends paid or otherwise conveyed to [Harrell]
by reason of any interest [he] own[s] in the Limited Liability
Companies until [SEPH's] judgment is satisfied in full."
The record before us indicates that Harrell and his wife, Carolyn,
each own 50% of SLB. SLB's operating agreement makes clear that the
profits and income earned by SLB must be distributed to Harrell and
Carolyn in proportion to their membership interests.
Despite the trial court's charging order requiring SLB to pay any
income or distributions that would normally be directed to Harrell to the
clerk of court until SEPH's judgment is satisfied in full, SEPH alleged
that, after the trial court entered its charging order, Harrell, as SLB's
managing member, began making distributions solely to Carolyn in
12
1190814, 1190816
violation of SLB's operating agreement. SEPH further alleged that the
distributions Carolyn received included distributions owed to Harrell and,
thus, violated the trial court's charging order. Indeed, copies of Schedule
K-1 federal tax forms included in the record on appeal show that Harrell
and Carolyn each declared income and distributions from SLB for tax
years 2015-2017 -- the years following the issuance of the charging order --
in the total amount of approximately $415,000 each.
SEPH contends that this evidence demonstrates that Harrell and
SLB are intentionally evading the trial court's charging order and must,
therefore, be held in contempt. In his objection filed below, Harrell argued
that SEPH's petition was due to be denied because, he asserted, he had
not "received an actual cash distribution (K-1) from the profits, if any,
earned by [SLB]." However, Harrell did not provide any additional
information in support of that assertion. He also did not attach any
documentation or evidence to his objection showing that to be the case,
and there is nothing in the record before us, other than his conclusory
denial, supporting his assertion. There is nothing before us demonstrating
that he did not intentionally avoid otherwise required disbursements. In
13
1190814, 1190816
fact, as demonstrated above, the evidence before us indicates that the
opposite is true.
In addressing civil-contempt issues, the Court of Civil Appeals
recently stated:
" ' " 'Civil contempt' is defined as a
'willful, continuing failure or refusal of
any person to comply with a court's
lawful writ, subpoena, process, order,
rule, or command that by its nature is
still capable of being complied with.'
Rule 70A(a)(2)(D), Ala. R. Civ. P...."
" 'Routzong v. Baker, 20 So. 3d 802, 810 (Ala. Civ.
App. 2009). " 'The failure to perform an act
required by the court for the benefit of an opposing
party constitutes civil contempt.' Carter v. State ex
rel. Bullock County, 393 So. 2d 1368, 1370 (Ala.
1981)." J.K.L.B. Farms, LLC v. Phillips, 975 So. 2d
1001, 1012 (Ala. Civ. App. 2007). Furthermore,
" '[t]he purpose of a civil contempt proceeding is to
effectuate compliance with court orders and not to
punish the contemnor.' Watts v. Watts, 706 So. 2d
749, 751 (Ala. Civ. App. 1997)." Hall v. Hall, 892
So. 2d 958, 962 (Ala. Civ. App. 2004).'
"Reed v. Dyas, 28 So. 3d 6, 8 (Ala. Civ. App. 2009) (emphasis
added)."
Cheshire v. Cheshire, 296 So. 3d 851, 862 (Ala. Civ. App. 2019). In the
present case, the evidence in the record demonstrates that Harrell
14
1190814, 1190816
"fail[ed] to perform an act required by the court for the benefit of an
opposing party." Carter v. State ex rel. Bullock Cnty., 393 So. 2d 1368,
1370 (Ala. 1981). Thus, the trial court exceeded its discretion in denying
SEPH's petition based on the materials in the record.
Further, our caselaw makes clear that "[a] person cannot be found
in contempt without a hearing." Thompson v. Thompson, 649 So. 2d 208,
210 (Ala. Civ. App. 1994) (citing Rule 70A(c)(2), Ala. R. Civ. P.) . Indeed,
Rule 70A(c)(2) provides:
"Upon the filing of a contempt petition, the clerk shall issue
process in accordance with these rules, unless the petition is
initiated by a counterclaim or cross-claim authorized under
Rule 13[, Ala. R. Civ. P.]. In any case, the person against
whom the petition is directed shall be notified (1) of the time
and place for the hearing on the petition and (2) that failure to
appear at the hearing may result in the issuance of a writ of
arrest pursuant to Rule 70A(d), to compel the presence of the
alleged contemnor."
Nothing in the record before us indicates that a hearing was held or that,
if one was held, Harrell was "notified ... of the time and place for the
hearing on the petition." Thus, in case no. 1190816, we reverse the trial
court's judgment and remand the case for further proceedings consistent
15
1190814, 1190816
with this decision, including a hearing pursuant to Rule 70A(c)(2), at
which the parties may present their evidence.
1190814 -- PETITION DISMISSED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
1190816 -- REVERSED AND REMANDED.
Bryan, Mendheim, and Mitchell, JJ., concur.
Parker, C.J., concurs in part and concurs in the result.
16
1190814, 1190816
PARKER, Chief Justice (concurring in part and concurring in the result
in case no. 1190816).
I agree that we have jurisdiction and that the judgment must be
reversed. SE Property Holdings, LLC ("SEPH"), filed legally sufficient
allegations of contempt, so the circuit court could not deny the claim
without holding the hearing required by Rule 70A(c)(2), Ala. R. Civ. P.
Thus, the circuit court's error was not holding David L. Harrell in
contempt without a hearing or proper notice, as the main opinion seems
to suggest, but denying the contempt claim without a hearing.
Moreover, within the context of contempt procedure, I believe that
Rule 70A(c)(2) contemplates an evidentiary hearing -- essentially a trial
on the contempt claim. As this Court has said,
"[w]here an individual is charged with indirect or constructive
contempt [(which is now governed by Rule 70A(c))], due
process requires that he be given ... the right to call witnesses
and confront his accuser[] and the right to give testimony
relevant either to complete exculpation or to extenuation of the
offense and evidence in mitigation of the penalty to be
imposed."
State v. Thomas, 550 So. 2d 1067, 1073 (Ala. 1989). See, e.g.,
Augmentation, Inc. v. Harris, 225 So. 3d 103, 104-10 (Ala. Civ. App. 2016)
17
1190814, 1190816
(illustrating evidentiary nature of hearing). Thus, to be in evidence,
documents supporting or opposing a finding of contempt must be
presented at that hearing.4 Therefore, contrary to the main opinion's
characterization, the documents filed in support of SEPH's contempt claim
were not evidence, and Harrell had no duty to respond by filing contrary
documents before a hearing. Accordingly, I disagree with the main opinion
where it indicates that the "evidence" established that Harrell was in
contempt and also faults Harrell for not filing contrary documents.
4Conceivably, at the evidentiary hearing a trial court could consider
previously filed documents as evidence if the opposing party does not
object, but that did not happen here because there was no evidentiary
hearing.
18 | November 5, 2021 |
566133c0-263d-4fb1-9795-b8c478f8dc89 | Ex parte A.C. | N/A | 1200801 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200801
Ex parte A.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.C. v. J.H.) (Clarke Juvenile Court:
CS-19-900013.01; Civil Appeals :
2190933).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
5a20b23a-0358-41f9-bfa9-e19e96da136b | Ex parte Mark Keith Glaster. | N/A | 1200803 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200803
Ex parte Mark Keith Glaster. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Mark Keith Glaster v. State
of Alabama) (Tuscaloosa Circuit Court: CC-93-1280.61; Criminal Appeals :
CR-20-0379).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
3fd30548-352a-49fa-a0a1-a6fa2d5bf0eb | Ex parte Shirley Taylor. | N/A | 1200857 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200857
Ex parte Shirley Taylor. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Shirley Taylor v. CitiMortgage, Inc.)
(Tuscaloosa Circuit Court: CV-18-900717; Civil Appeals :
2190690).
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. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
67902dda-0e48-47f3-aa65-171ae13edc75 | Johnson v. Ellis | N/A | 1180786 | 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
_________________________
1180786
_________________________
Costillo A. Johnson a/k/a Asume Bjambe Ausir Imhotep El
v.
Mary Ellis
Appeal from Montgomery Circuit Court
(CV-19-255)
SHAW, Justice.
Costillo
A.
Johnson,
who,
for
purposes
of
this
litigation, has identified himself as "Asume Bjambe Ausir
Imhotep El" ("Johnson"), acting pro se, appeals from the
Montgomery Circuit Court's order purporting to dismiss his
1180786
civil action alleging claims of assault and battery and
"retaliation" against "Ms. Ellis,"1 purportedly a nurse's aid
at Bibb Correctional Facility where Johnson is currently
incarcerated; Wexford Medical ("Wexford"), Ellis's purported
employer; and the Alabama Department of Corrections ("ADOC").
Because we
conclude that the trial court lacked subject-matter
jurisdiction, we vacate its judgment and dismiss the appeal.
Facts and Procedural History
On June 5, 2019, Johnson filed a pro se complaint in the
trial court against Ellis, Wexford, and ADOC as a result of
alleged mistreatment during a visit by Johnson to the prison
infirmary on February 6, 2019, for a routinely scheduled
physical examination. According to
Johnson, before his actual
examination, Ellis, while handing Johnson a specimen cup,
"intentionally bumped into [his] upper arm shoulder area, in
an insolent and vindictive manner." Johnson says that,
following the completion of his examination and subsequent to
leaving the infirmary, he was approached by a correctional
officer who questioned him regarding allegations that he had
1Ellis's first name is not included in Johnson's
pleadings; however, elsewhere in the record, he asserts that
he "believe[s] her name is Mary."
2
1180786
groped Ellis during their encounter in the infirmary,
allegations Johnson denied. According to Johnson, he was, as
the result of Ellis's allegations, placed in disciplinary
segregation during an ensuing investigation. Johnson's
complaint alleged that thereafter, despite allegedly being
"cleared" of any misconduct, Ellis's allegations resulted in
his termination from employment at the prison law library.
Based on the foregoing factual allegations, count one of
Johnson's complaint alleged assault and battery against Ellis
and sought to recover $50,000 in damages.
Count two of Johnson's complaint asserted that Ellis's
"false report[]" amounted to retaliation for Johnson's
provision of legal assistance to another inmate who had
alleged that another infirmary nurse had "molest[ed] him
during a physical."2 Johnson sought to recover an additional
$50,000 on this count.
Initial discovery requests and a motion to prevent his
"retaliatory transfer" or other "reprisals" accompanied
Johnson's complaint. At the time of filing, Johnson also
2Although not specifically referenced in Johnson's
complaint, this count was presumably filed pursuant to 42
U.S.C. § 1983.
3
1180786
submitted an "Affidavit of Substantial Hardship and Order,"
alleging that indigency prevented him from remitting the
required docketing and service fees. On June 12, 2019,
without either service to or a response by any named
defendant, the trial court entered the following order
purporting to dismiss Johnson's complaint with prejudice:
"After
reviewing
the
documents
filed
by
[Johnson], it appears to the Court that the ...
complaint states no cognizable cause of action over
which this Court has or could have jurisdiction.
Therefore, it is hereby ordered that this action be
dismissed, with prejudice, as this matter is
frivolous and malicious. Moreover, Costillo A.
Johnson (JOHNSON COSTILLA [sic] A C/0 ASUME BJAMBE
AUSIR IMHOTEP) has filed numerous lawsuits and most,
if not all, have been dismissed as frivolous or
because [Johnson] failed to state a claim upon which
relief could be granted. Thus, [Johnson] is
directed to seek leave of Court before filing
pleadings in any new or pending lawsuit. Also, a
prepayment of filing fee is also required."
(Emphasis in original.) The following day, the trial court
entered a follow-up order also denying Johnson's pending
motion seeking "immediate discovery."
Johnson timely filed, pursuant to Rule 59(e), Ala. R.
Civ. P., a postjudgment motion seeking reconsideration of the
trial court's dismissal.
On the same day, Johnson also
4
1180786
filed a notice of appeal to the Alabama Court of Civil
Appeals; the appeal was transferred to this Court.
Standard of Review
"On appeal, a dismissal is not entitled to a
presumption of correctness. Jones v. Lee County
Commission, 394 So. 2d 928, 930 (Ala. 1981); Allen
v. Johnny Baker Hauling, Inc., 545 So. 2d 771, 772
(Ala. Civ. App. 1989). The appropriate standard of
review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is
whether, when the allegations of the complaint are
viewed most strongly in the pleader's favor, it
appears that the pleader could prove any set of
circumstances that would entitle [him] to relief.
Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d
640, 641 (Ala. 1985); Hill v. Falletta, 589 So. 2d
746 (Ala. Civ. App. 1991). In making this
determination, this Court does not consider whether
the plaintiff will ultimately prevail, but only
whether [he] may possibly prevail. Fontenot v.
Bramlett, 470 So. 2d 669, 671 (Ala. 1985); Rice v.
United Ins. Co. of America, 465 So. 2d 1100, 1101
(Ala. 1984). We note that a Rule 12(b)(6) dismissal
is proper only when it appears beyond doubt that the
plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to
relief. Garrett v. Hadden, 495 So. 2d 616, 617 (Ala.
1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769
(Ala. 1986)."
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993).
Discussion
On appeal, Johnson challenges the trial court's order of
dismissal on several grounds. Among those grounds, Johnson
contends that the failure of the trial court to grant his
5
1180786
pending affidavit of substantial hardship before entering the
order of dismissal deprived the trial court of jurisdiction.
We agree, and this claim is determinative.3
In identical circumstances, the Court has previously
explained:
"Johnson has appealed the circuit court's
judgment of dismissal, arguing, in pertinent part,
that the circuit court never acquired jurisdiction
over his case because he did not pay the necessary
filing fee and the circuit court never approved
either of the affidavits of substantial hardship he
had filed. It is well established that '"[t]he
payment of a filing fee or the filing of a
court-approved verified statement of substantial
hardship is a jurisdictional prerequisite to the
commencement of an action."' Odom v. Odom, 89 So. 3d
121, 122 (Ala. Civ. App. 2011) (quoting Vann v.
Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008),
citing in turn De–Gas, Inc. v. Midland Res., 470 So.
2d 1218, 1222 (Ala. 1985)). See also Ex parte
Carter, 807 So. 2d 534, 536 (Ala. 2001) ('[T]he
circuit court never had jurisdiction to consider
Carter's Rule 32[, Ala. R. Crim. P.,] petition,
because it did not collect a filing fee or approve
Carter's affidavit of substantial hardship at the
time the petition was filed.').
3Because of the dispositive nature of this issue, we
pretermit discussion of
the
remaining issues Johnson raises on
appeal and also of the issue whether ADOC was properly named
as a party to Johnson's action. See Favorite Market Store v.
Waldrop, 924 So. 2d 719, 723 (Ala. Civ. App. 2005) (stating
that this Court would pretermit discussion of further issues
in light of the dispositive nature of another issue).
6
1180786
"The record in this case indicates that Johnson
filed two affidavits of substantial hardship -- one
in May 2011 and another in December 2011. However,
nothing in the record indicates that the circuit
court approved either of Johnson's affidavits or
that Johnson ever paid the required filing fee. ...
"Thus, for all that appears, the jurisdictional
prerequisite of the payment of the filing fee or the
filing of a court-approved verified statement of
substantial hardship was not met in this case. We
must conclude, therefore, that the circuit court did
not have jurisdiction to enter its judgment
dismissing Johnson's complaint; thus, that judgment
is void. See Odom, supra. '[B]ecause a void
judgment will not support an appeal, we vacate the
trial court's judgment and dismiss the appeal.'
Hunt Transition & Inaugural Fund, Inc. v. Grenier,
782 So. 2d 270, 274 (Ala. 2000)."
Johnson v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012) (footnote
omitted).
Similarly, in the present case, nothing in the record
establishes that Johnson paid a filing fee or that, before
entering its dismissal order, the trial court granted
Johnson's hardship affidavit. Therefore, the trial court
never obtained jurisdiction over Johnson's complaint, and its
subsequent order dismissing the action was void and will not
sustain the present appeal. See id.
JUDGMENT VACATED; APPEAL DISMISSED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ.,
concur.
7 | April 24, 2020 |
bf3b172d-2e18-498b-973b-fe1bb6ffd1de | Mackenzie Grace Cook v. The Estate of Patricia Louise Jerome, deceased | N/A | 1200557 | Alabama | Alabama Supreme Court | REL: October 15, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200557
Mackenzie Grace Cook v. The Estate of Patricia Louise Jerome, deceased
(Appeal from Etowah Circuit Court: CV-20-71).
PARKER, Chief Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Bolin, Wise, Sellers, and Stewart, JJ., concur. | October 15, 2021 |
2c9c63bd-a198-4fe1-9d43-50d867d3840c | Anita Bedwell v. Debbie Hiltz | N/A | 1200219 | Alabama | Alabama Supreme Court | Rel: October 29, 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
_________________________
1200217
_________________________
Debbie Hiltz
v.
Anita Bedwell
_______________________
1200219
_______________________
Anita Bedwell
v.
Debbie Hiltz
Appeals from Etowah Circuit Court
(CV-20-75)
BRYAN, Justice.
Debbie Hiltz appeals, and Anita Bedwell cross-appeals, from a
judgment of the Etowah Circuit Court ("the circuit court"), in an election
contest, declaring Bedwell, the contestee, the winner of an election for the
Office of City Council, Place 1, in Rainbow City. See § 11-46-70, Ala. Code
1975 ("If the party whose election is contested is found to have been duly
and legally elected, judgment must be entered declaring him entitled to
have and to hold the office to which he was so elected."). We affirm the
circuit court's judgment in Hiltz's appeal, and we dismiss Bedwell's cross-
appeal.
Background
Hiltz and Bedwell were candidates for the Office of City Council,
Place 1, in Rainbow City in an August 25, 2020, election. On September
1, 2020, the City Council of Rainbow City certified the results of the
election, with a final tally of 879 votes in favor of Hiltz and 880 votes in
favor of Bedwell. Bedwell was declared the winner of the election. See §
2
1200217; 1200219
11-46-55(a), Ala. Code 1975 ("If it appears that any candidate ... has
received a majority of the votes cast for that office ..., the municipal
governing body shall declare the candidate elected to the office ....").
On September 3, 2020, Hiltz filed in the circuit court an election
contest pursuant to § 11-46-69, Ala. Code 1975, which provides, in
relevant part:
"(b) Any contest of ... an election [for an office of a city or
town] must be commenced within five days after the result of
the election is declared. Such contest shall be instituted in the
manner prescribed by Section 17-15-29[, Ala. Code 1975,] and,
except as otherwise provided in this article [i.e., Article 2,
Chapter 46, Title 11, Ala. Code 1975], all proceedings relative
to contests of elections to municipal offices shall be governed
by the provisions of Articles 2 and 3, Chapter 15, Title 17 of
this Code, insofar as they are applicable."
"Section 17-15-29 is now codified at § 17-16-56. Articles 2 and 3, Chapter
15 of Title 17, are now codified at §§ 17-16-47 through -62 and §§ 17-16-63
through -76, respectively." Smith v. Burkhalter, 28 So. 3d 730, 735 n.5
(Ala. 2009); see also Long v. Bryant, 992 So. 2d 673, 685 n.5 (Ala. 2008).
In pertinent part, § 17-16-56, Ala. Code 1975, provides:
"If the contest is of an election to ... any office of a city or
town not in this article [i.e., Article 3, Chapter 16, Title 17,
Ala. Code 1975,] otherwise provided for, the party contesting
3
1200217; 1200219
must file in the office of the clerk of the circuit court of the
county in which the election was held, a statement in writing,
verified by affidavit, of the grounds of the contest as provided
in this article and must give good and sufficient security for
the costs of the contest, to be approved by the clerk. ... The
contest is triable by the court without the intervention of a
jury and must be heard and tried in precedence of all other
cases, civil or criminal, standing for trial in the court."
The verified statement filed by Hiltz in the circuit court asserted
that, during the canvassing of provisional ballots, a number of provisional
ballots were not counted "for various reasons." See § 11-46-55(a)("If the
certification results of provisional ballots cast at the election have been
received from the board of registrars prior to the first Tuesday next after
the election, ... the municipal governing body, at any special or regular
meeting, may canvas the results before the first Tuesday next after the
election."). Hiltz contended that she had reason to believe that multiple
provisional ballots that had not been counted should have been counted
and that the result of the election could have changed if those ballots had
been counted. See § 11-46-69(a)(4)(listing "[t]he rejection of legal votes"
as one cause for contesting an election to an office of a city or town). The
circuit court set a bond for the election contest in the amount of $5,000,
4
1200217; 1200219
which Hiltz posted.
On September 10, 2020, Bedwell filed a motion to dismiss the
election contest, asserting that Hiltz had failed to explain how not
counting the provisional ballots identified in her verified statement was
error. Hiltz filed a response to Bedwell's motion to dismiss, contending,
among other things, that Hiltz had complied with all the statutory
requirements to contest the election. On September 21, 2020, the circuit
court entered an order denying Bedwell's motion to dismiss.
On September 24, 2020, Bedwell filed an answer to Hiltz's verified
statement contesting the election. As a "first special defense," Bedwell
asserted that the decision reached by the Etowah County Board of
Registrars to reject nine provisional ballots "should be final." See § 11-46-
4(a), Ala. Code 1975 ("It shall be the duty of the various boards of
registrars to conduct an identification program of electors residing in the
municipality and eligible to vote in municipal elections ...."); and § 11-46-
55(a). As a "counterclaim," Bedwell asserted that two additional
provisional ballots -- respectively cast by K.T. and by J.T. -- were not
counted but should have been.
5
1200217; 1200219
Hiltz thereafter filed a motion to dismiss Bedwell's "counterclaim."
In summary, Hiltz argued that the request for relief styled in Bedwell's
answer as a "counterclaim" was, in actuality, an election contest. Hiltz
argued that Bedwell had not complied with the statutory requirements for
asserting an election contest and that her "counterclaim" should,
therefore, be dismissed. The circuit court denied Hiltz's motion to dismiss.
Hiltz then filed an answer to Bedwell's "counterclaim," essentially
asserting the same argument set out in her motion to dismiss. Thus,
altogether, Hiltz and Bedwell collectively challenged 11 provisional ballots
that had not been counted.
After conducting a trial, see § 17-16-56, the circuit court entered an
order on November 18, 2020, identifying 6 of the 11 challenged provisional
ballots that it determined should not be counted. Included in that group
was the ballot of G.D.C. The circuit court ordered that the five remaining
provisional ballots would be opened and counted the next day. On
November 19, 2020, the circuit court entered an order stating that five
provisional ballots had been opened and counted. Included in that group
were the ballots of K.T., J.T., and M.C., all of whom had voted for Bedwell.
6
1200217; 1200219
Also included in that group were the ballots of L.M. and G.C.,1 both of
whom had voted for Hiltz.
With the eligible provisional ballots included, the circuit court
determined that the final tally of votes was 881 votes in favor of Hiltz and
883 votes in favor of Bedwell. The circuit court declared Bedwell to be the
winner of the election. See § 11-46-70, Ala. Code 1975.
Hiltz thereafter filed a motion to alter, amend, or vacate the circuit
court's judgment. Among other things, Hiltz argued that the circuit court
had wrongfully excluded the provisional ballot of G.D.C. In response to
Hiltz's postjudgment motion, the circuit court entered an order stating
that G.D.C.'s ballot would be allowed but that the circuit court would not
open it because a single vote in favor of either Hiltz or Bedwell would not
change the outcome of the election. The circuit court denied all other
relief sought in Hiltz's postjudgment motion. Hiltz appealed, and Bedwell
cross-appealed.
Analysis
1The circuit court's judgment actually refers to this voter as "C.G."
It appears that the voter's initials were simply transposed.
7
1200217; 1200219
I. Hiltz's Appeal (case no. 1200217)
Hiltz asserts three primary arguments on appeal. We consider each
in turn.
A. Bedwell's "Counterclaim"
On appeal, Hiltz first argues that the circuit court erred by
permitting Bedwell to assert a "counterclaim." Hiltz contends that
Bedwell should not have been permitted to rely on the provisional ballots
of K.T. and J.T., which the circuit court ultimately determined should be
counted in the final tally of votes cast for Bedwell. In support of her
argument, Hiltz correctly asserts that, under this Court's precedent,
statutes governing election contests must be strictly construed. See
Fluker v. Wolff, 46 So. 3d 942, 950 (Ala. 2010)(" 'An election contest is a
statutory matter, and the statute governing the election must be strictly
observed and construed. Watters v. Lyons, 188 Ala. 525, 66 So. 436
(1914).' Long v. Bryant, 992 So. 2d 673, 680 (Ala. 2008).").
Hiltz argues that, by permitting Bedwell to identify two provisional
ballots that Bedwell believed should be counted as a "counterclaim" to
Hiltz's election contest, the circuit court effectively allowed Bedwell to
8
1200217; 1200219
bring her own election contest and that Bedwell's election contest
circumvented certain requirements set out in § 11-46-69 and § 17-16-56
because: (1) Bedwell did not file her "counterclaim" within five days of
when the results of the election were declared, (2) Bedwell's
"counterclaim" was not accompanied by a sworn statement specifying the
statutory grounds of her contest, and (3) Bedwell was not required to post
a bond as security for the contest. In her reply brief, Hiltz asserts that her
argument may present "a case of first impression." Hiltz's reply brief at
23.
However, as Bedwell points out in response, this Court has
previously explained that there is no statutory basis for the winner of an
election to initiate a contest to the votes received by a candidate who lost
an election. In Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999), the Court
considered a contest to an election for the office of sheriff of Jefferson
County, which contest had been dismissed by the Jefferson Circuit Court.
On appeal, the contestants argued, among other things, that this Court
should render a judgment in their favor because the contestee did not file
a "cross-contest." Id. at 1134. The Court stated: "[T]he contestee correctly
9
1200217; 1200219
points out that the statutes do not require that he file an independent
'cross-contest.' " Id.
In addressing the contestants' argument, this Court quoted from
former § 17-5-1, Ala. Code 1975, the precursor to § 17-16-40, Ala. Code
1975. Then, as now, the pertinent language of the relevant statute
provided: " 'The election of any person declared elected to ... any office
which is filled by the vote of a single county ... may be contested ....' "
Eubanks, 752 So. 2d at 1134. The Court reasoned as follows:
"Under the language of the statute, then, only the election of
a 'person declared elected' may be contested. Because
Woodward had not been declared the winner of the sheriff's
race, the statute did not authorize Hale[, who had been
declared the winner of the race,] to file an election contest."
Id.
Similar to the language used in § 17-16-40, § 11-46-69, contains the
following pertinent language with regard to municipal elections: "(a) The
election of any person declared elected to any office of a city or town may
be contested by any person who was at the time of the election a qualified
elector of such city or town ....' " Thus, this Court's decision in Eubanks
demonstrates that Bedwell was not statutorily authorized to initiate a
10
1200217; 1200219
contest to challenge the votes received by Hiltz because Hiltz was not
"declared elected to" the office of city council. § 11-46-69(a). Therefore,
the relevant provisions of § 11-46-69 and § 17-16-56 governing the
requirements for the initiation of an election contest did not apply to
Bedwell's "counterclaim," because the relief Bedwell sought was
categorically not a challenge to the "election of [the] person declared
elected to" the office of city council. § 11-46-69(a).
In her reply brief, Hiltz suggests that Eubanks is distinguishable
because the Eubanks Court specifically noted that the contestee in that
case had complied with the requirements of former § 17-15-21, Ala. Code
1975, the precursor to § 17-16-48, Ala. Code 1975, which states, in
relevant part:
"No testimony must be received of any illegal votes or of
the rejection of any legal votes in any contested election
commenced under the provisions of this article [i.e., Article 3,
Chapter 16, Title 17, Ala. Code 1975,] unless the party
complaining thereof has given to the adverse party notice in
writing of the number of illegal votes and by whom given and
for whom given, and at what precinct or voting place cast, or
the number of legal votes rejected, and by whom offered, and
at what precinct or voting place cast, which the party expects
to prove on the trial."
11
1200217; 1200219
See Eubanks, 752 So. 2d at 1133. However, Hiltz has not argued that
Bedwell did not comply with the requirements set out in § 17-16-48. As
explained above, Hiltz's argument is that Bedwell was obligated to satisfy
the identified provisions of § 11-46-69 and § 17-16-56 for initiating an
election contest as a prerequisite to identifying additional provisional
ballots that she believed should be counted. For the reasons already
explained, Hiltz's argument in that regard lacks merit, and Eubanks is
not materially distinguishable on this point.
The heart of the issue raised by Hiltz's argument is actually whether
Bedwell properly could, during the course of litigating the election contest
already initiated by Hiltz, identify as a "counterclaim" provisional ballots
that she believed should have been counted -- but were not -- in addition
to those provisional ballots Hiltz was already contending should be
counted. As explained above, Hiltz has identified no statute prohibiting
such a practice; the statutes Hiltz cites pertain only to the initiation of
election contests. Again, this Court's decision in Eubanks is instructive.
Specifically, the Eubanks Court also considered whether, in the
election contest at issue in that case, the declared winner of the election
12
1200217; 1200219
should also be permitted to present evidence. In resolving that question,
the Eubanks Court cited the precursor to § 17-16-59, Ala. Code 1975,
which provides, in relevant part:
"If, on the trial of the contest of any election, ... it shall
appear that any person other than the one whose election is
contested, received or would have received, had the ballots
intended for the person and illegally rejected been received,
the highest number of legal votes, judgment must be given
declaring such person duly elected ...."
The Eubanks Court stated: "[W]e conclude that the contestee is not
prohibited from introducing such evidence of votes cast illegally for
Woodward. Neither are the contestants foreclosed from offering any other
evidence of illegal votes that they claimed were cast for Hale." 752 So. 2d
at 1134.
With regard to municipal elections, § 11-46-70 contains nearly
identical language to that found in § 17-16-59:
"If, on the trial of the contest of any municipal election,
it shall appear that any person other than the one whose
election is contested, received or would have received, had the
ballots intended for him and illegally rejected been received,
the requisite number of votes for election, judgment must be
entered declaring such person duly elected ...."
Thus, this Court's decision in Eubanks indicates that, during the trial of
13
1200217; 1200219
Hiltz's election contest to determine whether the conditions of § 11-46-70
that could result in Hiltz's winning the election had been met, the circuit
court properly permitted Bedwell to present evidence of additional
provisional ballots that she believed should have been counted in response
to Hiltz's allegations.
Bedwell cites additional cases in support of her position that
contestees are permitted to raise issues of their own in election contests.
For instance, this Court's decision in Town of Mountainboro v. Griffin, 26
So. 3d 407 (Ala. 2009), involved an annexation election. The declared
result of the election was that a greater number of votes had been cast in
favor of annexation. Certain qualified electors initiated an election
contest. "In response to the ... election contest, [the Town of]
Mountainboro and [the City of] Boaz (sometimes collectively referred to
as 'the contestees') alleged, among other things, that illegal votes likewise
had been cast against annexation and that, if those votes were not
considered, the resulting vote totals would favor annexation." Griffin, 26
So. 3d at 408. The contestants argued that the contestees did not have
"legal standing to defend the pro-annexation election result by challenging
14
1200217; 1200219
the legality of votes cast against annexation." Griffin, 26 So. 3d at 408-09.
"[T]he trial court held that neither municipality was a 'qualified elector'
and, consequently, that neither was entitled to challenge the legality of
votes cast against annexation." Griffin, 26 So. 3d at 409. On appeal, this
Court reversed the trial court's judgment as it related to the Town of
Mountainboro, which, it appears, was the only contestee that had
appealed.
In so doing, the Griffin Court distinguished between initiating an
annexation election and defending the outcome of such an election. The
Griffin Court noted that § 11-42-2(8), Ala. Code 1975, provides, in
pertinent part, that "[t]he result of [an annexation] election may be
contested by any qualified elector voting at the election in the manner
provided for contest of general municipal elections, making the city or
town the contestee." See Griffin, 26 So. 3d at 409. In determining that
the Town of Mountainboro was not prohibited from defending the outcome
of the annexation election, the Griffin Court relied on this Court's decision
in Eubanks:
"As in Eubanks v. Hale, [752 So. 2d 1113 (Ala. 1999),] the
15
1200217; 1200219
applicable statutes in this case -- [Ala. Code 1975),] §§ 11-42-
2(8) and 11-46-69(a), which in all material respects is worded
the same as the statute at issue in Eubanks -- do not require
the filing of a cross-contest. As in that case, 'we conclude that
the contestee is not prohibited from introducing ... evidence of
votes cast illegally for [the losing side].' 752 So. 2d at 1134.
That is, we conclude that Mountainboro, as a properly named
contestee in this case, had standing to try to preserve the
declared outcome of the election both by rebutting the evidence
of illegal votes cast in favor of the proposed annexation offered
by the contestants and by submitting evidence of illegal votes
cast against the proposed annexation.
"Our conclusion finds support in common sense, reason,
and fairness."
Griffin, 26 So. 3d at 411. The Griffin Court continued:
"Moreover, we cannot conclude that the legislature, in
adapting § 11-46-69[, Ala. Code 1975,] to an annexation
election in § 11-42-2(8), [Ala. Code 1975,] intended to establish
a process by which a contestant can obtain a binding judgment
from a court of law establishing the legality or illegality of an
annexation election by naming someone as a 'contestee,' or
defendant, who cannot fully defend the outcome of that
election. If the otherwise properly named defendants in such
a proceeding lack the necessary standing to fully and fairly
defend the outcome of the election, one may question not only
the integrity of the outcome achieved in such a proceeding but,
indeed, whether the proceeding enjoys the necessary
adverseness of parties to make for a 'case' over which the court
has subject-matter jurisdiction in the first place."
26 So. 3d at 411 (footnote omitted). We conclude that the considerations
16
1200217; 1200219
articulated in Griffin regarding the ability of contestees to defend against
an election contest apply with equal measure to the circumstances of this
case and Bedwell's "counterclaim."
Hiltz argues in her reply brief that Griffin is distinguishable
because, she says, the contestees in that case did file a " 'counter-
contest[].' " 26 So. 3d at 408. However, the language from Griffin that
Hiltz cites indicates only that the contestants in that case had referred to
the contestees' responsive allegations as a " 'counter-contest[].' " Id. There
is no indication from this Court's decision in Griffin that the contestees in
that case had attempted to satisfy the pertinent provisions of § 11-46-69
or § 17-16-56 as a prerequisite to asserting their allegations, and, more
importantly, there was no holding by this Court that the contestees were
obligated to do so.
As another example, in Fluker, 46 So. 3d at 945, the declared winner
of a mayoral election "responded" to the allegations raised in an election
contest by "claiming that illegal votes were cast in favor of [the contestant]
and that legal votes in [the contestee]'s favor were rejected and that if
both were taken into account his vote tally would still exceed [the
17
1200217; 1200219
contestant]'s." The trial court ultimately determined that the contestant
had received the most legal votes, and the contestee appealed. Although
the Fluker Court rejected the contestee's appellate arguments and
affirmed the trial court's judgment, it did not do so on the ground that the
contestee was not permitted to challenge additional votes in the election
contest already initiated by the contestant.
Jacobs v. Ryals, 401 So. 2d 776 (Ala. 1981), also involved a mayoral
election. A losing candidate initiated an election contest, challenging
certain votes. The contestee "counterclaimed," challenging certain votes
that had been cast for the contestant. Jacobs, 401 So. 2d at 777. The trial
court conducted a trial and ultimately declared that the final tally of votes
resulted in a tie, after rejecting, among others, the two votes identified by
the contestee and adding certain others. The trial court ordered that a
new election should be conducted, and the contestant appealed. The
Jacobs Court affirmed the portion of the trial court's judgment ordering
that a new election should be conducted after holding, among other things,
that the trial court was correct in rejecting the votes identified in the
contestee's "counterclaim."
18
1200217; 1200219
In her reply brief, Hiltz argues that Fluker and Jacobs are
distinguishable primarily because, she says, the statutory-compliance
arguments that she asserts in this case were not asserted in those cases
and the contestees in those cases were permitted to raise the pertinent
issues without objections from the contestants. However, as explained
above, this Court's decision in Eubanks considered arguments
substantially similar to those asserted by Hiltz in this case and rejected
them. The practices described in Fluker and Jacobs are consistent with
the pertinent holding from Eubanks, and we agree with Bedwell that
Fluker and Jacobs further illustrate how Hiltz's position contradicts the
historical interpretation of the statutory scheme at issue.
As another example, Bedwell also cites Waltman v. Rowell, 913 So.
2d 1083 (Ala. 2005), which, like the present case, involved a city-council
election. The challenger lost the election and filed an election contest,
challenging certain ballots. The contestee, "responded by contesting
certain votes that [the contestee] sa[id] were illegal or ineligible and that
had been included in the tally for [the contestant]." Waltman, 913 So. 2d
at 1084. In its judgment, the trial court declared the contestant to be the
19
1200217; 1200219
winner of the election. The contestee appealed. After considering the
contestee's arguments on appeal, the Waltman Court reversed the trial
court's judgment and remanded the cause for the contestee to be declared
the winner of the election. Hiltz does not directly address the procedural
history of Waltman in her reply brief.
In light of the foregoing cases cited by Bedwell on appeal, we cannot
reverse the circuit court's judgment based on Hiltz's argument that
Bedwell could not properly identify as a "counterclaim" additional
provisional ballots that she believed should be counted in the election
contest initiated by Hiltz without first satisfying the pertinent
requirements of § 11-46-69 and § 17-16-56. As explained, the relevant
provisions of those statutes govern the initiation of election contests, and
Bedwell's "counterclaim" was not such a contest. Therefore, the portions
of those statutes that Hiltz invokes on appeal did not apply to Bedwell's
"counterclaim." Moreover, the cases cited by Bedwell demonstrate that
contestees should be, and have historically been, permitted to defend the
outcomes of elections by raising responsive issues in an election contest
initiated by another party.
20
1200217; 1200219
B. The Provisional Ballots of K.T. and J.T.
Hiltz next argues that the circuit court erred by counting the ballots
of K.T. and J.T. in the tally of votes cast for Bedwell. The basis of Hiltz's
argument appears to be that, during Bedwell's case-in-chief at trial,
Bedwell did not present specific evidence establishing that the provisional
ballots of K.T. and J.T. should have been counted. Hiltz appears to argue
that, by failing to do so, Bedwell did not make a prima facie showing
regarding the merits of her "counterclaim." See, e.g., Waltman, 913 So.
2d at 1089 ("[I]t is the responsibility of a party seeking to have a vote
excluded to make a prima facie showing that the vote was illegally cast.").
However, as Bedwell points out in response, Bedwell proffered evidence
during Hiltz's case-in-chief regarding the ballots of K.T. and J.T.
The provisional ballots of K.T. and J.T., who resided at the same
address, were not initially counted because it was determined by the
board of registrars that their address was not located within the city
limits of Rainbow City. During Hiltz's case-in-chief, Bedwell offered
copies of the provisional ballots, and they were admitted as evidence.
Bedwell's counsel also elicited testimony from Beth Lee, the Rainbow City
21
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Clerk, who testified that the address was, in fact, located within the city
limits of Rainbow City. Additionally, Bedwell called Lee to testify as the
only witness in her case-in-chief. Although Bedwell's counsel did not
revisit Lee's testimony concerning K.T. and J.T., Lee was asked about
other voters, and Bedwell offered as evidence a map demarcating the
corporate boundaries of Rainbow City, which was admitted.
Thus, based on the foregoing evidence, Bedwell made a prima facie
showing that K.T. and J.T. were eligible to vote in the city-council
election. See Hawkins v. Persons, 484 So. 2d 1072, 1074 (Ala. 1986)("A
person is eligible to vote in a municipal election if he is a qualified elector
of Alabama who has resided in the city in which he seeks to vote for at
least 30 days prior to the election and if he has properly registered to vote
in the county in which the city is located at least 10 days before the
election. See ... Section 11-46-38, Code of Alabama (1975)."). Hiltz cites
no authority indicating that Bedwell could meet her initial burden of
proving her "counterclaim" exclusively via the evidence presented in
Bedwell's case-in-chief.
Once Bedwell made a prima facie showing in support of her
22
1200217; 1200219
"counterclaim," the burden then shifted to Hiltz to rebut the evidence
presented by Bedwell. See, e.g., Fluker, 46 So. 3d at 955 ("As the
contestant, Wolff had the burden of showing that W.M.H.'s vote was
illegally cast. ... Wolff did so, and the burden then shifted to Fluker to
present evidence indicating that W.M.H.'s vote was legally cast."). On
appeal, Hiltz identifies no evidence indicating that K.T. and J.T. did not,
in fact, reside within the city limits of Rainbow City.
To the extent that Hiltz is challenging the credibility and weight of
the evidence presented by Bedwell, we note that the applicable standard
of review requires that this Court give a presumption of correctness to the
circuit court's findings based on ore tenus testimony and documentary
evidence. See Fluker, 46 So. 3d at 950 (" 'The [ore tenus] rule applies to
"disputed issues of fact," whether the dispute is based entirely upon oral
testimony or upon a combination of oral testimony and documentary
evidence.' Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791,
795 (Ala. 2000)(citing Born v. Clark, 662 So. 2d 669, 672 (Ala. 1995)).' ").
In light of the foregoing, we cannot reverse the circuit court's judgment
based on Hiltz's argument that Bedwell failed to make a prima facie
23
1200217; 1200219
showing that the provisional ballots of K.T. and J.T. should have been
counted.
C. The Provisional Ballot of G.D.C.
Next, Hiltz argues that the circuit court erred by deciding in its
postjudgment order that, although eligible, the ballot of G.D.C. should not
be opened. The circuit court concluded that a single vote in favor of either
Hiltz or Bedwell would not change the outcome of the election because
Bedwell had won the election by receiving 883 votes, as compared with the
881 votes received by Hiltz. Hiltz contends that it was impermissible for
the circuit court to declare Bedwell the winner of the election by an
"indeterminate" amount of votes. Hiltz's brief at 27. Hiltz asserts that
this Court considered a similar argument in Ex parte Vines, 456 So. 2d 26
(Ala. 1984). However, Hiltz's citation to this Court's decision in Ex parte
Vines does not demonstrate reversible error by the circuit court.
In Ex parte Vines, one of four voting machines malfunctioned during
a mayoral election. As a result, Ed Yeargan, the candidate who was
declared to have received the third most votes in the election, was
deprived in the certified results of the election of all the votes that had
24
1200217; 1200219
been cast for him on the malfunctioning machine. Yeargan initiated a
declaratory-judgment action, and the trial court set aside the election and
ordered that another election be conducted. However, the trial court
ordered that only the voters who had cast their votes on the
malfunctioning machine on the day of the election would recast their votes
in the new election.
The candidate who was declared to have received the second most
votes in the certified results of the original election, Robert Vines, then
filed a petition for the writ of prohibition in this Court, arguing that the
trial court had exceeded its discretion in ordering that a new election be
conducted, at which only a portion of the electorate would be permitted to
vote. This Court agreed after considering the various possible outcomes
of an election contest that are authorized under § 11-46-70:
"If, on the trial of the contest of any municipal election,
it shall appear that any person other than the one whose
election is contested, received or would have received, had the
ballots intended for him and illegally rejected been received,
the requisite number of votes for election, judgment must be
entered declaring such person duly elected, and such judgment
shall have the force and effect of investing the person thereby
declared elected with full right and title to have and to hold
the office to which he is declared elected.
25
1200217; 1200219
"If it appears that no person has or would have had, if
the ballots intended for him and illegally rejected had been
received, the requisite number of votes for election, judgment
must be entered declaring this fact, and such fact must be
certified to the municipal governing body and the vacancy in
the office, election to which had been contested, shall be filled
in the manner prescribed by law for filling the vacancy in such
office.
"If the person whose election is contested is found to be
ineligible to the office, judgment must be entered declaring the
election void, and the fact must be certified to the municipal
governing body. The vacancy in such office shall be filled in the
manner prescribed by law.
"If the party whose election is contested is found to have
been duly and legally elected, judgment must be entered
declaring him entitled to have and to hold the office to which
he was so elected."
The Ex parte Vines Court stated:
"Candidate Yeargan did not contend, nor could he, that
had the votes intended for him not been illegally rejected in
[the malfunctioning machine], he would have received the
requisite number of votes for election as mayor (one half of the
votes cast plus one). Instead, it was his contention that if he
received the number of votes to which he was entitled, he
would be eligible for a run-off position in the coming election.
"Therefore, the second paragraph of § 11-46-70[, Ala.
Code 1975,] controls, and, once it was shown that no person
'ha[d] or would have had, if the ballots intended for him and
illegally rejected had been received, the requisite number of
votes for election,' the trial court should have entered
26
1200217; 1200219
judgment 'declaring this fact.' Thereupon, the court should
have ordered another election held to fill the office of mayor.
"There is simply no statutory authority for holding an
election limited to [the votes cast on the malfunctioning
machine] and also limited to those electors who voted in the
July 10 election."
456 So. 2d at 29. The Court concluded that "[t]he only statutory remedy
... was to order another election," and it granted Vines's petition for the
writ of prohibition. Id.
In this case, however, the circuit court did not determine that no
person had received the requisite number of votes for election, as was the
case in Ex parte Vines. In this case, the circuit court determined that
Bedwell had received the requisite number of votes for election.
Therefore, the final paragraph of § 11-46-70 controls in this case, as
opposed to the second paragraph of § 11-46-70, which controlled in Ex
parte Vines.
Section 11-46-55(a) provides, in relevant part: "If it appears that any
candidate ... in the election has received a majority of the votes cast for
that office ... the municipal governing body shall declare the candidate
elected to the office ...." Thus, Bedwell was required to receive a majority
27
1200217; 1200219
of the legal votes cast to win the election. The circuit court's judgment
determined that 881 legal votes had been cast for Hiltz and that 883 legal
votes had been cast for Bedwell. The circuit court's postjudgment order
determined that one additional legal vote, G.D.C.'s vote, had been cast.
Thus, altogether, the circuit court determined that 1,765 (881 + 883 + 1)
legal votes had been cast in the election.
Therefore, 883 votes constituted a majority of the legal votes cast.
See § 11-46-55(b)("If a single office is to be filled at the election and there
is more than one candidate therefor, then the majority of the votes cast for
the office in the election shall be ascertained by dividing the total votes
cast for all candidates for the office by two, and any number of votes in
excess of one half of the total votes cast for all candidates for the office
shall be a majority within the meaning of subsection (a)."). Because the
circuit court determined that Bedwell had received 883 legal votes, it
properly concluded that "the party whose election [wa]s contested [wa]s
found to have been duly and legally elected." § 11-46-70.
Hiltz contends that Ex parte Vines stands for the proposition that
"a final vote tally must be certified." Hiltz's brief at 28. However, the
28
1200217; 1200219
relevant statement from Ex parte Vines, 456 So. 2d at 29, actually
provided: "If one of the candidates receives a majority as defined by § 11-
46-55(b), [Ala. Code 1975,] he shall be certified as elected thereunder,"
which, as explained, is what the circuit court did in this case. Hiltz cites
no authority demonstrating that the circuit court committed reversible
error by declining to open the provisional ballot of G.D.C. Although the
circuit court ultimately determined in its postjudgment order that
G.D.C.'s ballot had been lawfully cast, Bedwell had already met the
statutory requirements for winning the election under 11-46-55(a) and,
consequently, for prevailing in the election contest under § 11-46-70.
Therefore, there was no statutory reason to determine for whom G.D.C.
had voted, and we cannot reverse the circuit court's judgment based on
this argument.
II. Bedwell's Cross-Appeal (case no. 1200219)
In her cross-appeal, Bedwell argues that the circuit court erred by
determining that the provisional ballots of L.M., G.C., M.C., and G.D.C.
should be counted. G.C. and M.C. resided at the same address, and
G.D.C. was their son who had resided with them at some point but had
29
1200217; 1200219
also resided at a different address. With regard to L.M., G.C., and M.C.,
Bedwell argues that the circuit court incorrectly applied § 17-3-33, Ala.
Code 1975, which contains provisions concerning "liners," or voters who
reside on property that is intersected by territorial lines. With regard to
G.D.C., Bedwell argues that he did not register to vote with his current
address within 10 days of the election. See Hawkins, 484 So. 2d at 1074.
Hiltz responds to Bedwell's arguments in her reply brief. However,
Bedwell also states that the issues raised in her cross-appeal are moot if
this Court determines that the provisional ballots of K.T. and J.T., which
are discussed in Section I of this opinion addressing Hiltz's appeal, were
properly allowed by the circuit court. Bedwell's brief at 11. In other
words, Bedwell contends that, so long as the provisional ballots of K.T.
and J.T. are included in the tally of votes cast for Bedwell, the circuit
court properly declared her to be the winner of the election, regardless of
whether the circuit court incorrectly determined that the provisional
ballots of L.M., G.C., M.C., and G.D.C. should be counted. She states:
"The cross-appeal is relevant only in the event this Court should
determine that the ... votes [of K.T. and J.T.] for Bedwell were improperly
30
1200217; 1200219
added." Bedwell's brief at 21.
As explained in Section I of this opinion, Hiltz has failed to
demonstrate on appeal that the circuit court erred by counting the votes
of K.T. and J.T. that were cast in Bedwell's favor. Thus, the circuit court
properly declared Bedwell the winner of the August 25, 2020, election for
the Office of City Council, Place 1, in Rainbow City. Therefore, according
to the brief submitted in support of her cross-appeal, Bedwell's appellate
arguments are moot, and she seeks no further relief in this Court.
Conclusion
Although Hiltz indicates on appeal that one of her arguments might
present a question of first impression for this Court, the cases cited by
Bedwell in response demonstrate that the Court has already considered
and rejected in previous cases arguments that were substantially similar
to the alleged question of first impression raised by Hiltz. Moreover,
Hiltz's other arguments are not supported with adequate authority
demonstrating reversible error by the circuit court. In light of the
foregoing, the circuit court's judgment is affirmed in Hiltz's appeal.
According to Bedwell's appellate brief, the issues she raises in her
31
1200217; 1200219
cross-appeal are moot if this Court determines that Hiltz's appeal lacks
merit. Thus, because Hiltz's appellate arguments are not meritorious,
Bedwell's cross-appeal is moot. Therefore, Bedwell's cross-appeal is
dismissed.
1200217 -- AFFIRMED.
1200219 -- APPEAL DISMISSED.
Parker, C.J., and Bolin, Wise, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Shaw, J., concurs in the result.
32 | October 29, 2021 |
eff583cd-2739-4734-b02a-02a706b738b1 | Ex parte Jorge Ruiz. | N/A | 1200618 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 22, 2021
1200618
Ex parte Jorge Ruiz. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Jorge Ruiz v. State of Alabama)
(Autauga Circuit Court: CC-19-173; Criminal Appeals :
CR-19-0307).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 22, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, and Stewart, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 22nd day of October, 2021.
Clerk, Supreme Court of Alabama | October 22, 2021 |
45dc39a6-f774-4b2c-aaa7-f417af02c499 | Ex parte Steven Chalmers Varnado. | N/A | 1200734 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 22, 2021
1200734
Ex parte Steven Chalmers Varnado. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Steven
Chalmers Varnado v. State of Alabama) (Montgomery Circuit Court:
CC-17-1604; Criminal Appeals :
CR-18-0673).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 22, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 22nd day of October, 2021.
Clerk, Supreme Court of Alabama | October 22, 2021 |
e916c6b1-1afd-4fd1-b8b6-4cc1ea8a50d4 | Ex parte Steve Christopher Lawrence. | N/A | 1200875 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200875
Ex parte Steve Christopher Lawrence. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Steve
Christopher Lawrence v. State of Alabama) (Russell Circuit Court:
CC-06-792.61; Criminal Appeals :
CR-20-0633).
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. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
893380bf-7f69-49c5-8141-328acb11e4b4 | HERC, LLC, CERG, LLC, and Rayford Etherton v. Rankin Law, LLC, and Clay Rankin | N/A | 1180917 | Alabama | Alabama Supreme Court | Rel: April 10, 2020
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2019-2020
1180917
HERC, LLC; CERG, LLC; and Rayford Etherton v. Rankin Law, LLC,
and Clay Rankin (Appeal from Baldwin Circuit Court: CV-18-
900973).
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. | April 10, 2020 |
6836d45a-4f85-4615-a7a8-277176e41fcd | Hiltz v. Bedwell | N/A | 1200217, 1200219 | Alabama | Alabama Supreme Court | Rel: October 29, 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
_________________________
1200217
_________________________
Debbie Hiltz
v.
Anita Bedwell
_______________________
1200219
_______________________
Anita Bedwell
v.
Debbie Hiltz
Appeals from Etowah Circuit Court
(CV-20-75)
BRYAN, Justice.
Debbie Hiltz appeals, and Anita Bedwell cross-appeals, from a
judgment of the Etowah Circuit Court ("the circuit court"), in an election
contest, declaring Bedwell, the contestee, the winner of an election for the
Office of City Council, Place 1, in Rainbow City. See § 11-46-70, Ala. Code
1975 ("If the party whose election is contested is found to have been duly
and legally elected, judgment must be entered declaring him entitled to
have and to hold the office to which he was so elected."). We affirm the
circuit court's judgment in Hiltz's appeal, and we dismiss Bedwell's cross-
appeal.
Background
Hiltz and Bedwell were candidates for the Office of City Council,
Place 1, in Rainbow City in an August 25, 2020, election. On September
1, 2020, the City Council of Rainbow City certified the results of the
election, with a final tally of 879 votes in favor of Hiltz and 880 votes in
favor of Bedwell. Bedwell was declared the winner of the election. See §
2
1200217; 1200219
11-46-55(a), Ala. Code 1975 ("If it appears that any candidate ... has
received a majority of the votes cast for that office ..., the municipal
governing body shall declare the candidate elected to the office ....").
On September 3, 2020, Hiltz filed in the circuit court an election
contest pursuant to § 11-46-69, Ala. Code 1975, which provides, in
relevant part:
"(b) Any contest of ... an election [for an office of a city or
town] must be commenced within five days after the result of
the election is declared. Such contest shall be instituted in the
manner prescribed by Section 17-15-29[, Ala. Code 1975,] and,
except as otherwise provided in this article [i.e., Article 2,
Chapter 46, Title 11, Ala. Code 1975], all proceedings relative
to contests of elections to municipal offices shall be governed
by the provisions of Articles 2 and 3, Chapter 15, Title 17 of
this Code, insofar as they are applicable."
"Section 17-15-29 is now codified at § 17-16-56. Articles 2 and 3, Chapter
15 of Title 17, are now codified at §§ 17-16-47 through -62 and §§ 17-16-63
through -76, respectively." Smith v. Burkhalter, 28 So. 3d 730, 735 n.5
(Ala. 2009); see also Long v. Bryant, 992 So. 2d 673, 685 n.5 (Ala. 2008).
In pertinent part, § 17-16-56, Ala. Code 1975, provides:
"If the contest is of an election to ... any office of a city or
town not in this article [i.e., Article 3, Chapter 16, Title 17,
Ala. Code 1975,] otherwise provided for, the party contesting
3
1200217; 1200219
must file in the office of the clerk of the circuit court of the
county in which the election was held, a statement in writing,
verified by affidavit, of the grounds of the contest as provided
in this article and must give good and sufficient security for
the costs of the contest, to be approved by the clerk. ... The
contest is triable by the court without the intervention of a
jury and must be heard and tried in precedence of all other
cases, civil or criminal, standing for trial in the court."
The verified statement filed by Hiltz in the circuit court asserted
that, during the canvassing of provisional ballots, a number of provisional
ballots were not counted "for various reasons." See § 11-46-55(a)("If the
certification results of provisional ballots cast at the election have been
received from the board of registrars prior to the first Tuesday next after
the election, ... the municipal governing body, at any special or regular
meeting, may canvas the results before the first Tuesday next after the
election."). Hiltz contended that she had reason to believe that multiple
provisional ballots that had not been counted should have been counted
and that the result of the election could have changed if those ballots had
been counted. See § 11-46-69(a)(4)(listing "[t]he rejection of legal votes"
as one cause for contesting an election to an office of a city or town). The
circuit court set a bond for the election contest in the amount of $5,000,
4
1200217; 1200219
which Hiltz posted.
On September 10, 2020, Bedwell filed a motion to dismiss the
election contest, asserting that Hiltz had failed to explain how not
counting the provisional ballots identified in her verified statement was
error. Hiltz filed a response to Bedwell's motion to dismiss, contending,
among other things, that Hiltz had complied with all the statutory
requirements to contest the election. On September 21, 2020, the circuit
court entered an order denying Bedwell's motion to dismiss.
On September 24, 2020, Bedwell filed an answer to Hiltz's verified
statement contesting the election. As a "first special defense," Bedwell
asserted that the decision reached by the Etowah County Board of
Registrars to reject nine provisional ballots "should be final." See § 11-46-
4(a), Ala. Code 1975 ("It shall be the duty of the various boards of
registrars to conduct an identification program of electors residing in the
municipality and eligible to vote in municipal elections ...."); and § 11-46-
55(a). As a "counterclaim," Bedwell asserted that two additional
provisional ballots -- respectively cast by K.T. and by J.T. -- were not
counted but should have been.
5
1200217; 1200219
Hiltz thereafter filed a motion to dismiss Bedwell's "counterclaim."
In summary, Hiltz argued that the request for relief styled in Bedwell's
answer as a "counterclaim" was, in actuality, an election contest. Hiltz
argued that Bedwell had not complied with the statutory requirements for
asserting an election contest and that her "counterclaim" should,
therefore, be dismissed. The circuit court denied Hiltz's motion to dismiss.
Hiltz then filed an answer to Bedwell's "counterclaim," essentially
asserting the same argument set out in her motion to dismiss. Thus,
altogether, Hiltz and Bedwell collectively challenged 11 provisional ballots
that had not been counted.
After conducting a trial, see § 17-16-56, the circuit court entered an
order on November 18, 2020, identifying 6 of the 11 challenged provisional
ballots that it determined should not be counted. Included in that group
was the ballot of G.D.C. The circuit court ordered that the five remaining
provisional ballots would be opened and counted the next day. On
November 19, 2020, the circuit court entered an order stating that five
provisional ballots had been opened and counted. Included in that group
were the ballots of K.T., J.T., and M.C., all of whom had voted for Bedwell.
6
1200217; 1200219
Also included in that group were the ballots of L.M. and G.C.,1 both of
whom had voted for Hiltz.
With the eligible provisional ballots included, the circuit court
determined that the final tally of votes was 881 votes in favor of Hiltz and
883 votes in favor of Bedwell. The circuit court declared Bedwell to be the
winner of the election. See § 11-46-70, Ala. Code 1975.
Hiltz thereafter filed a motion to alter, amend, or vacate the circuit
court's judgment. Among other things, Hiltz argued that the circuit court
had wrongfully excluded the provisional ballot of G.D.C. In response to
Hiltz's postjudgment motion, the circuit court entered an order stating
that G.D.C.'s ballot would be allowed but that the circuit court would not
open it because a single vote in favor of either Hiltz or Bedwell would not
change the outcome of the election. The circuit court denied all other
relief sought in Hiltz's postjudgment motion. Hiltz appealed, and Bedwell
cross-appealed.
Analysis
1The circuit court's judgment actually refers to this voter as "C.G."
It appears that the voter's initials were simply transposed.
7
1200217; 1200219
I. Hiltz's Appeal (case no. 1200217)
Hiltz asserts three primary arguments on appeal. We consider each
in turn.
A. Bedwell's "Counterclaim"
On appeal, Hiltz first argues that the circuit court erred by
permitting Bedwell to assert a "counterclaim." Hiltz contends that
Bedwell should not have been permitted to rely on the provisional ballots
of K.T. and J.T., which the circuit court ultimately determined should be
counted in the final tally of votes cast for Bedwell. In support of her
argument, Hiltz correctly asserts that, under this Court's precedent,
statutes governing election contests must be strictly construed. See
Fluker v. Wolff, 46 So. 3d 942, 950 (Ala. 2010)(" 'An election contest is a
statutory matter, and the statute governing the election must be strictly
observed and construed. Watters v. Lyons, 188 Ala. 525, 66 So. 436
(1914).' Long v. Bryant, 992 So. 2d 673, 680 (Ala. 2008).").
Hiltz argues that, by permitting Bedwell to identify two provisional
ballots that Bedwell believed should be counted as a "counterclaim" to
Hiltz's election contest, the circuit court effectively allowed Bedwell to
8
1200217; 1200219
bring her own election contest and that Bedwell's election contest
circumvented certain requirements set out in § 11-46-69 and § 17-16-56
because: (1) Bedwell did not file her "counterclaim" within five days of
when the results of the election were declared, (2) Bedwell's
"counterclaim" was not accompanied by a sworn statement specifying the
statutory grounds of her contest, and (3) Bedwell was not required to post
a bond as security for the contest. In her reply brief, Hiltz asserts that her
argument may present "a case of first impression." Hiltz's reply brief at
23.
However, as Bedwell points out in response, this Court has
previously explained that there is no statutory basis for the winner of an
election to initiate a contest to the votes received by a candidate who lost
an election. In Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999), the Court
considered a contest to an election for the office of sheriff of Jefferson
County, which contest had been dismissed by the Jefferson Circuit Court.
On appeal, the contestants argued, among other things, that this Court
should render a judgment in their favor because the contestee did not file
a "cross-contest." Id. at 1134. The Court stated: "[T]he contestee correctly
9
1200217; 1200219
points out that the statutes do not require that he file an independent
'cross-contest.' " Id.
In addressing the contestants' argument, this Court quoted from
former § 17-5-1, Ala. Code 1975, the precursor to § 17-16-40, Ala. Code
1975. Then, as now, the pertinent language of the relevant statute
provided: " 'The election of any person declared elected to ... any office
which is filled by the vote of a single county ... may be contested ....' "
Eubanks, 752 So. 2d at 1134. The Court reasoned as follows:
"Under the language of the statute, then, only the election of
a 'person declared elected' may be contested. Because
Woodward had not been declared the winner of the sheriff's
race, the statute did not authorize Hale[, who had been
declared the winner of the race,] to file an election contest."
Id.
Similar to the language used in § 17-16-40, § 11-46-69, contains the
following pertinent language with regard to municipal elections: "(a) The
election of any person declared elected to any office of a city or town may
be contested by any person who was at the time of the election a qualified
elector of such city or town ....' " Thus, this Court's decision in Eubanks
demonstrates that Bedwell was not statutorily authorized to initiate a
10
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contest to challenge the votes received by Hiltz because Hiltz was not
"declared elected to" the office of city council. § 11-46-69(a). Therefore,
the relevant provisions of § 11-46-69 and § 17-16-56 governing the
requirements for the initiation of an election contest did not apply to
Bedwell's "counterclaim," because the relief Bedwell sought was
categorically not a challenge to the "election of [the] person declared
elected to" the office of city council. § 11-46-69(a).
In her reply brief, Hiltz suggests that Eubanks is distinguishable
because the Eubanks Court specifically noted that the contestee in that
case had complied with the requirements of former § 17-15-21, Ala. Code
1975, the precursor to § 17-16-48, Ala. Code 1975, which states, in
relevant part:
"No testimony must be received of any illegal votes or of
the rejection of any legal votes in any contested election
commenced under the provisions of this article [i.e., Article 3,
Chapter 16, Title 17, Ala. Code 1975,] unless the party
complaining thereof has given to the adverse party notice in
writing of the number of illegal votes and by whom given and
for whom given, and at what precinct or voting place cast, or
the number of legal votes rejected, and by whom offered, and
at what precinct or voting place cast, which the party expects
to prove on the trial."
11
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See Eubanks, 752 So. 2d at 1133. However, Hiltz has not argued that
Bedwell did not comply with the requirements set out in § 17-16-48. As
explained above, Hiltz's argument is that Bedwell was obligated to satisfy
the identified provisions of § 11-46-69 and § 17-16-56 for initiating an
election contest as a prerequisite to identifying additional provisional
ballots that she believed should be counted. For the reasons already
explained, Hiltz's argument in that regard lacks merit, and Eubanks is
not materially distinguishable on this point.
The heart of the issue raised by Hiltz's argument is actually whether
Bedwell properly could, during the course of litigating the election contest
already initiated by Hiltz, identify as a "counterclaim" provisional ballots
that she believed should have been counted -- but were not -- in addition
to those provisional ballots Hiltz was already contending should be
counted. As explained above, Hiltz has identified no statute prohibiting
such a practice; the statutes Hiltz cites pertain only to the initiation of
election contests. Again, this Court's decision in Eubanks is instructive.
Specifically, the Eubanks Court also considered whether, in the
election contest at issue in that case, the declared winner of the election
12
1200217; 1200219
should also be permitted to present evidence. In resolving that question,
the Eubanks Court cited the precursor to § 17-16-59, Ala. Code 1975,
which provides, in relevant part:
"If, on the trial of the contest of any election, ... it shall
appear that any person other than the one whose election is
contested, received or would have received, had the ballots
intended for the person and illegally rejected been received,
the highest number of legal votes, judgment must be given
declaring such person duly elected ...."
The Eubanks Court stated: "[W]e conclude that the contestee is not
prohibited from introducing such evidence of votes cast illegally for
Woodward. Neither are the contestants foreclosed from offering any other
evidence of illegal votes that they claimed were cast for Hale." 752 So. 2d
at 1134.
With regard to municipal elections, § 11-46-70 contains nearly
identical language to that found in § 17-16-59:
"If, on the trial of the contest of any municipal election,
it shall appear that any person other than the one whose
election is contested, received or would have received, had the
ballots intended for him and illegally rejected been received,
the requisite number of votes for election, judgment must be
entered declaring such person duly elected ...."
Thus, this Court's decision in Eubanks indicates that, during the trial of
13
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Hiltz's election contest to determine whether the conditions of § 11-46-70
that could result in Hiltz's winning the election had been met, the circuit
court properly permitted Bedwell to present evidence of additional
provisional ballots that she believed should have been counted in response
to Hiltz's allegations.
Bedwell cites additional cases in support of her position that
contestees are permitted to raise issues of their own in election contests.
For instance, this Court's decision in Town of Mountainboro v. Griffin, 26
So. 3d 407 (Ala. 2009), involved an annexation election. The declared
result of the election was that a greater number of votes had been cast in
favor of annexation. Certain qualified electors initiated an election
contest. "In response to the ... election contest, [the Town of]
Mountainboro and [the City of] Boaz (sometimes collectively referred to
as 'the contestees') alleged, among other things, that illegal votes likewise
had been cast against annexation and that, if those votes were not
considered, the resulting vote totals would favor annexation." Griffin, 26
So. 3d at 408. The contestants argued that the contestees did not have
"legal standing to defend the pro-annexation election result by challenging
14
1200217; 1200219
the legality of votes cast against annexation." Griffin, 26 So. 3d at 408-09.
"[T]he trial court held that neither municipality was a 'qualified elector'
and, consequently, that neither was entitled to challenge the legality of
votes cast against annexation." Griffin, 26 So. 3d at 409. On appeal, this
Court reversed the trial court's judgment as it related to the Town of
Mountainboro, which, it appears, was the only contestee that had
appealed.
In so doing, the Griffin Court distinguished between initiating an
annexation election and defending the outcome of such an election. The
Griffin Court noted that § 11-42-2(8), Ala. Code 1975, provides, in
pertinent part, that "[t]he result of [an annexation] election may be
contested by any qualified elector voting at the election in the manner
provided for contest of general municipal elections, making the city or
town the contestee." See Griffin, 26 So. 3d at 409. In determining that
the Town of Mountainboro was not prohibited from defending the outcome
of the annexation election, the Griffin Court relied on this Court's decision
in Eubanks:
"As in Eubanks v. Hale, [752 So. 2d 1113 (Ala. 1999),] the
15
1200217; 1200219
applicable statutes in this case -- [Ala. Code 1975),] §§ 11-42-
2(8) and 11-46-69(a), which in all material respects is worded
the same as the statute at issue in Eubanks -- do not require
the filing of a cross-contest. As in that case, 'we conclude that
the contestee is not prohibited from introducing ... evidence of
votes cast illegally for [the losing side].' 752 So. 2d at 1134.
That is, we conclude that Mountainboro, as a properly named
contestee in this case, had standing to try to preserve the
declared outcome of the election both by rebutting the evidence
of illegal votes cast in favor of the proposed annexation offered
by the contestants and by submitting evidence of illegal votes
cast against the proposed annexation.
"Our conclusion finds support in common sense, reason,
and fairness."
Griffin, 26 So. 3d at 411. The Griffin Court continued:
"Moreover, we cannot conclude that the legislature, in
adapting § 11-46-69[, Ala. Code 1975,] to an annexation
election in § 11-42-2(8), [Ala. Code 1975,] intended to establish
a process by which a contestant can obtain a binding judgment
from a court of law establishing the legality or illegality of an
annexation election by naming someone as a 'contestee,' or
defendant, who cannot fully defend the outcome of that
election. If the otherwise properly named defendants in such
a proceeding lack the necessary standing to fully and fairly
defend the outcome of the election, one may question not only
the integrity of the outcome achieved in such a proceeding but,
indeed, whether the proceeding enjoys the necessary
adverseness of parties to make for a 'case' over which the court
has subject-matter jurisdiction in the first place."
26 So. 3d at 411 (footnote omitted). We conclude that the considerations
16
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articulated in Griffin regarding the ability of contestees to defend against
an election contest apply with equal measure to the circumstances of this
case and Bedwell's "counterclaim."
Hiltz argues in her reply brief that Griffin is distinguishable
because, she says, the contestees in that case did file a " 'counter-
contest[].' " 26 So. 3d at 408. However, the language from Griffin that
Hiltz cites indicates only that the contestants in that case had referred to
the contestees' responsive allegations as a " 'counter-contest[].' " Id. There
is no indication from this Court's decision in Griffin that the contestees in
that case had attempted to satisfy the pertinent provisions of § 11-46-69
or § 17-16-56 as a prerequisite to asserting their allegations, and, more
importantly, there was no holding by this Court that the contestees were
obligated to do so.
As another example, in Fluker, 46 So. 3d at 945, the declared winner
of a mayoral election "responded" to the allegations raised in an election
contest by "claiming that illegal votes were cast in favor of [the contestant]
and that legal votes in [the contestee]'s favor were rejected and that if
both were taken into account his vote tally would still exceed [the
17
1200217; 1200219
contestant]'s." The trial court ultimately determined that the contestant
had received the most legal votes, and the contestee appealed. Although
the Fluker Court rejected the contestee's appellate arguments and
affirmed the trial court's judgment, it did not do so on the ground that the
contestee was not permitted to challenge additional votes in the election
contest already initiated by the contestant.
Jacobs v. Ryals, 401 So. 2d 776 (Ala. 1981), also involved a mayoral
election. A losing candidate initiated an election contest, challenging
certain votes. The contestee "counterclaimed," challenging certain votes
that had been cast for the contestant. Jacobs, 401 So. 2d at 777. The trial
court conducted a trial and ultimately declared that the final tally of votes
resulted in a tie, after rejecting, among others, the two votes identified by
the contestee and adding certain others. The trial court ordered that a
new election should be conducted, and the contestant appealed. The
Jacobs Court affirmed the portion of the trial court's judgment ordering
that a new election should be conducted after holding, among other things,
that the trial court was correct in rejecting the votes identified in the
contestee's "counterclaim."
18
1200217; 1200219
In her reply brief, Hiltz argues that Fluker and Jacobs are
distinguishable primarily because, she says, the statutory-compliance
arguments that she asserts in this case were not asserted in those cases
and the contestees in those cases were permitted to raise the pertinent
issues without objections from the contestants. However, as explained
above, this Court's decision in Eubanks considered arguments
substantially similar to those asserted by Hiltz in this case and rejected
them. The practices described in Fluker and Jacobs are consistent with
the pertinent holding from Eubanks, and we agree with Bedwell that
Fluker and Jacobs further illustrate how Hiltz's position contradicts the
historical interpretation of the statutory scheme at issue.
As another example, Bedwell also cites Waltman v. Rowell, 913 So.
2d 1083 (Ala. 2005), which, like the present case, involved a city-council
election. The challenger lost the election and filed an election contest,
challenging certain ballots. The contestee, "responded by contesting
certain votes that [the contestee] sa[id] were illegal or ineligible and that
had been included in the tally for [the contestant]." Waltman, 913 So. 2d
at 1084. In its judgment, the trial court declared the contestant to be the
19
1200217; 1200219
winner of the election. The contestee appealed. After considering the
contestee's arguments on appeal, the Waltman Court reversed the trial
court's judgment and remanded the cause for the contestee to be declared
the winner of the election. Hiltz does not directly address the procedural
history of Waltman in her reply brief.
In light of the foregoing cases cited by Bedwell on appeal, we cannot
reverse the circuit court's judgment based on Hiltz's argument that
Bedwell could not properly identify as a "counterclaim" additional
provisional ballots that she believed should be counted in the election
contest initiated by Hiltz without first satisfying the pertinent
requirements of § 11-46-69 and § 17-16-56. As explained, the relevant
provisions of those statutes govern the initiation of election contests, and
Bedwell's "counterclaim" was not such a contest. Therefore, the portions
of those statutes that Hiltz invokes on appeal did not apply to Bedwell's
"counterclaim." Moreover, the cases cited by Bedwell demonstrate that
contestees should be, and have historically been, permitted to defend the
outcomes of elections by raising responsive issues in an election contest
initiated by another party.
20
1200217; 1200219
B. The Provisional Ballots of K.T. and J.T.
Hiltz next argues that the circuit court erred by counting the ballots
of K.T. and J.T. in the tally of votes cast for Bedwell. The basis of Hiltz's
argument appears to be that, during Bedwell's case-in-chief at trial,
Bedwell did not present specific evidence establishing that the provisional
ballots of K.T. and J.T. should have been counted. Hiltz appears to argue
that, by failing to do so, Bedwell did not make a prima facie showing
regarding the merits of her "counterclaim." See, e.g., Waltman, 913 So.
2d at 1089 ("[I]t is the responsibility of a party seeking to have a vote
excluded to make a prima facie showing that the vote was illegally cast.").
However, as Bedwell points out in response, Bedwell proffered evidence
during Hiltz's case-in-chief regarding the ballots of K.T. and J.T.
The provisional ballots of K.T. and J.T., who resided at the same
address, were not initially counted because it was determined by the
board of registrars that their address was not located within the city
limits of Rainbow City. During Hiltz's case-in-chief, Bedwell offered
copies of the provisional ballots, and they were admitted as evidence.
Bedwell's counsel also elicited testimony from Beth Lee, the Rainbow City
21
1200217; 1200219
Clerk, who testified that the address was, in fact, located within the city
limits of Rainbow City. Additionally, Bedwell called Lee to testify as the
only witness in her case-in-chief. Although Bedwell's counsel did not
revisit Lee's testimony concerning K.T. and J.T., Lee was asked about
other voters, and Bedwell offered as evidence a map demarcating the
corporate boundaries of Rainbow City, which was admitted.
Thus, based on the foregoing evidence, Bedwell made a prima facie
showing that K.T. and J.T. were eligible to vote in the city-council
election. See Hawkins v. Persons, 484 So. 2d 1072, 1074 (Ala. 1986)("A
person is eligible to vote in a municipal election if he is a qualified elector
of Alabama who has resided in the city in which he seeks to vote for at
least 30 days prior to the election and if he has properly registered to vote
in the county in which the city is located at least 10 days before the
election. See ... Section 11-46-38, Code of Alabama (1975)."). Hiltz cites
no authority indicating that Bedwell could meet her initial burden of
proving her "counterclaim" exclusively via the evidence presented in
Bedwell's case-in-chief.
Once Bedwell made a prima facie showing in support of her
22
1200217; 1200219
"counterclaim," the burden then shifted to Hiltz to rebut the evidence
presented by Bedwell. See, e.g., Fluker, 46 So. 3d at 955 ("As the
contestant, Wolff had the burden of showing that W.M.H.'s vote was
illegally cast. ... Wolff did so, and the burden then shifted to Fluker to
present evidence indicating that W.M.H.'s vote was legally cast."). On
appeal, Hiltz identifies no evidence indicating that K.T. and J.T. did not,
in fact, reside within the city limits of Rainbow City.
To the extent that Hiltz is challenging the credibility and weight of
the evidence presented by Bedwell, we note that the applicable standard
of review requires that this Court give a presumption of correctness to the
circuit court's findings based on ore tenus testimony and documentary
evidence. See Fluker, 46 So. 3d at 950 (" 'The [ore tenus] rule applies to
"disputed issues of fact," whether the dispute is based entirely upon oral
testimony or upon a combination of oral testimony and documentary
evidence.' Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791,
795 (Ala. 2000)(citing Born v. Clark, 662 So. 2d 669, 672 (Ala. 1995)).' ").
In light of the foregoing, we cannot reverse the circuit court's judgment
based on Hiltz's argument that Bedwell failed to make a prima facie
23
1200217; 1200219
showing that the provisional ballots of K.T. and J.T. should have been
counted.
C. The Provisional Ballot of G.D.C.
Next, Hiltz argues that the circuit court erred by deciding in its
postjudgment order that, although eligible, the ballot of G.D.C. should not
be opened. The circuit court concluded that a single vote in favor of either
Hiltz or Bedwell would not change the outcome of the election because
Bedwell had won the election by receiving 883 votes, as compared with the
881 votes received by Hiltz. Hiltz contends that it was impermissible for
the circuit court to declare Bedwell the winner of the election by an
"indeterminate" amount of votes. Hiltz's brief at 27. Hiltz asserts that
this Court considered a similar argument in Ex parte Vines, 456 So. 2d 26
(Ala. 1984). However, Hiltz's citation to this Court's decision in Ex parte
Vines does not demonstrate reversible error by the circuit court.
In Ex parte Vines, one of four voting machines malfunctioned during
a mayoral election. As a result, Ed Yeargan, the candidate who was
declared to have received the third most votes in the election, was
deprived in the certified results of the election of all the votes that had
24
1200217; 1200219
been cast for him on the malfunctioning machine. Yeargan initiated a
declaratory-judgment action, and the trial court set aside the election and
ordered that another election be conducted. However, the trial court
ordered that only the voters who had cast their votes on the
malfunctioning machine on the day of the election would recast their votes
in the new election.
The candidate who was declared to have received the second most
votes in the certified results of the original election, Robert Vines, then
filed a petition for the writ of prohibition in this Court, arguing that the
trial court had exceeded its discretion in ordering that a new election be
conducted, at which only a portion of the electorate would be permitted to
vote. This Court agreed after considering the various possible outcomes
of an election contest that are authorized under § 11-46-70:
"If, on the trial of the contest of any municipal election,
it shall appear that any person other than the one whose
election is contested, received or would have received, had the
ballots intended for him and illegally rejected been received,
the requisite number of votes for election, judgment must be
entered declaring such person duly elected, and such judgment
shall have the force and effect of investing the person thereby
declared elected with full right and title to have and to hold
the office to which he is declared elected.
25
1200217; 1200219
"If it appears that no person has or would have had, if
the ballots intended for him and illegally rejected had been
received, the requisite number of votes for election, judgment
must be entered declaring this fact, and such fact must be
certified to the municipal governing body and the vacancy in
the office, election to which had been contested, shall be filled
in the manner prescribed by law for filling the vacancy in such
office.
"If the person whose election is contested is found to be
ineligible to the office, judgment must be entered declaring the
election void, and the fact must be certified to the municipal
governing body. The vacancy in such office shall be filled in the
manner prescribed by law.
"If the party whose election is contested is found to have
been duly and legally elected, judgment must be entered
declaring him entitled to have and to hold the office to which
he was so elected."
The Ex parte Vines Court stated:
"Candidate Yeargan did not contend, nor could he, that
had the votes intended for him not been illegally rejected in
[the malfunctioning machine], he would have received the
requisite number of votes for election as mayor (one half of the
votes cast plus one). Instead, it was his contention that if he
received the number of votes to which he was entitled, he
would be eligible for a run-off position in the coming election.
"Therefore, the second paragraph of § 11-46-70[, Ala.
Code 1975,] controls, and, once it was shown that no person
'ha[d] or would have had, if the ballots intended for him and
illegally rejected had been received, the requisite number of
votes for election,' the trial court should have entered
26
1200217; 1200219
judgment 'declaring this fact.' Thereupon, the court should
have ordered another election held to fill the office of mayor.
"There is simply no statutory authority for holding an
election limited to [the votes cast on the malfunctioning
machine] and also limited to those electors who voted in the
July 10 election."
456 So. 2d at 29. The Court concluded that "[t]he only statutory remedy
... was to order another election," and it granted Vines's petition for the
writ of prohibition. Id.
In this case, however, the circuit court did not determine that no
person had received the requisite number of votes for election, as was the
case in Ex parte Vines. In this case, the circuit court determined that
Bedwell had received the requisite number of votes for election.
Therefore, the final paragraph of § 11-46-70 controls in this case, as
opposed to the second paragraph of § 11-46-70, which controlled in Ex
parte Vines.
Section 11-46-55(a) provides, in relevant part: "If it appears that any
candidate ... in the election has received a majority of the votes cast for
that office ... the municipal governing body shall declare the candidate
elected to the office ...." Thus, Bedwell was required to receive a majority
27
1200217; 1200219
of the legal votes cast to win the election. The circuit court's judgment
determined that 881 legal votes had been cast for Hiltz and that 883 legal
votes had been cast for Bedwell. The circuit court's postjudgment order
determined that one additional legal vote, G.D.C.'s vote, had been cast.
Thus, altogether, the circuit court determined that 1,765 (881 + 883 + 1)
legal votes had been cast in the election.
Therefore, 883 votes constituted a majority of the legal votes cast.
See § 11-46-55(b)("If a single office is to be filled at the election and there
is more than one candidate therefor, then the majority of the votes cast for
the office in the election shall be ascertained by dividing the total votes
cast for all candidates for the office by two, and any number of votes in
excess of one half of the total votes cast for all candidates for the office
shall be a majority within the meaning of subsection (a)."). Because the
circuit court determined that Bedwell had received 883 legal votes, it
properly concluded that "the party whose election [wa]s contested [wa]s
found to have been duly and legally elected." § 11-46-70.
Hiltz contends that Ex parte Vines stands for the proposition that
"a final vote tally must be certified." Hiltz's brief at 28. However, the
28
1200217; 1200219
relevant statement from Ex parte Vines, 456 So. 2d at 29, actually
provided: "If one of the candidates receives a majority as defined by § 11-
46-55(b), [Ala. Code 1975,] he shall be certified as elected thereunder,"
which, as explained, is what the circuit court did in this case. Hiltz cites
no authority demonstrating that the circuit court committed reversible
error by declining to open the provisional ballot of G.D.C. Although the
circuit court ultimately determined in its postjudgment order that
G.D.C.'s ballot had been lawfully cast, Bedwell had already met the
statutory requirements for winning the election under 11-46-55(a) and,
consequently, for prevailing in the election contest under § 11-46-70.
Therefore, there was no statutory reason to determine for whom G.D.C.
had voted, and we cannot reverse the circuit court's judgment based on
this argument.
II. Bedwell's Cross-Appeal (case no. 1200219)
In her cross-appeal, Bedwell argues that the circuit court erred by
determining that the provisional ballots of L.M., G.C., M.C., and G.D.C.
should be counted. G.C. and M.C. resided at the same address, and
G.D.C. was their son who had resided with them at some point but had
29
1200217; 1200219
also resided at a different address. With regard to L.M., G.C., and M.C.,
Bedwell argues that the circuit court incorrectly applied § 17-3-33, Ala.
Code 1975, which contains provisions concerning "liners," or voters who
reside on property that is intersected by territorial lines. With regard to
G.D.C., Bedwell argues that he did not register to vote with his current
address within 10 days of the election. See Hawkins, 484 So. 2d at 1074.
Hiltz responds to Bedwell's arguments in her reply brief. However,
Bedwell also states that the issues raised in her cross-appeal are moot if
this Court determines that the provisional ballots of K.T. and J.T., which
are discussed in Section I of this opinion addressing Hiltz's appeal, were
properly allowed by the circuit court. Bedwell's brief at 11. In other
words, Bedwell contends that, so long as the provisional ballots of K.T.
and J.T. are included in the tally of votes cast for Bedwell, the circuit
court properly declared her to be the winner of the election, regardless of
whether the circuit court incorrectly determined that the provisional
ballots of L.M., G.C., M.C., and G.D.C. should be counted. She states:
"The cross-appeal is relevant only in the event this Court should
determine that the ... votes [of K.T. and J.T.] for Bedwell were improperly
30
1200217; 1200219
added." Bedwell's brief at 21.
As explained in Section I of this opinion, Hiltz has failed to
demonstrate on appeal that the circuit court erred by counting the votes
of K.T. and J.T. that were cast in Bedwell's favor. Thus, the circuit court
properly declared Bedwell the winner of the August 25, 2020, election for
the Office of City Council, Place 1, in Rainbow City. Therefore, according
to the brief submitted in support of her cross-appeal, Bedwell's appellate
arguments are moot, and she seeks no further relief in this Court.
Conclusion
Although Hiltz indicates on appeal that one of her arguments might
present a question of first impression for this Court, the cases cited by
Bedwell in response demonstrate that the Court has already considered
and rejected in previous cases arguments that were substantially similar
to the alleged question of first impression raised by Hiltz. Moreover,
Hiltz's other arguments are not supported with adequate authority
demonstrating reversible error by the circuit court. In light of the
foregoing, the circuit court's judgment is affirmed in Hiltz's appeal.
According to Bedwell's appellate brief, the issues she raises in her
31
1200217; 1200219
cross-appeal are moot if this Court determines that Hiltz's appeal lacks
merit. Thus, because Hiltz's appellate arguments are not meritorious,
Bedwell's cross-appeal is moot. Therefore, Bedwell's cross-appeal is
dismissed.
1200217 -- AFFIRMED.
1200219 -- APPEAL DISMISSED.
Parker, C.J., and Bolin, Wise, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Shaw, J., concurs in the result.
32 | October 29, 2021 |
7dc36eef-5488-4738-bcfd-e4caf1e9e620 | Ex parte Luis A. Ortiz. | N/A | 1200836 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200836
Ex parte Luis A. Ortiz. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Luis A. Ortiz v. State of Alabama)
(Coffee Circuit Court: DC-18-283.70; CC-19-38.70; Criminal Appeals :
CR-20-0461).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
feb0e606-e96e-4c53-bdea-dc73576bd6c2 | Ex parte Tiffina McQueen. | N/A | 1200594 | Alabama | Alabama Supreme Court | Rel: October 29, 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
_________________________
1200594
_________________________
Ex parte Tiffina McQueen
PETITION FOR WRIT OF MANDAMUS
(In re: Yukita A. Johnson
v.
R&L Foods, LLC, Tiffina McQueen, Michael McQueen, Michael
London, and Joe Fortner)
(Montgomery Circuit Court, CV-20-901022)
WISE, Justice.
1200594
Tiffina McQueen ("the petitioner"), a defendant below, petitions this
Court for a writ of mandamus directing the Montgomery Circuit Court to
vacate its April 12, 2021, order directing that her compulsory
counterclaims would be tried separately from the claims raised by Yukita
A. Johnson, the plaintiff below. We grant the petition and issue the writ.
Procedural History
On August 14, 2020, Johnson sued R&L Foods, LLC, the petitioner,
Michael McQueen ("McQueen"), Michael London, and Joe Fortner in the
Montgomery Circuit Court. In her complaint, Johnson alleged that R&L
Foods was "a franchisee of 'Wendy's' -- a fast food chain"; that she had
worked at Wendy's restaurants for approximately 23 years; and that she
had been employed by R&L Foods for approximately 17 years. Johnson
alleged that, on February 4, 2020, she was working at a particular
Wendy's restaurant operated by R&L Foods in Montgomery ("the
restaurant"); that McQueen was the shift manger of the restaurant that
day; that the petitioner was the general manager of the restaurant; and
that McQueen and the petitioner were brother and sister. Johnson
further alleged that, on February 4, 2020, McQueen "directed a verbal
2
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assault of profanity and threats of violence" toward her because he
believed that she was not providing adequate assistance in the restaurant;
that, in response, she went outside to the parking lot of the restaurant
and telephoned Joe Fortner, R&L Foods' regional manger; that she
reported McQueen's behavior to Fortner; and that, because of McQueen's
increasing hostility and threats of violence, she asked Fortner if she could
leave and go home. Johnson alleged that Fortner told her to end the
telephone call so he could call McQueen; that, a few minutes later, Fortner
telephoned her and told her that he had spoken to McQueen, that it was
safe for her to go back inside the restaurant, and that McQueen would not
continue to threaten her or attempt to harm her; that Fortner refused to
allow her to leave and go home; and that Fortner required her to go back
inside the restaurant. Johnson averred that she went back inside the
restaurant; that, subsequently, the petitioner arrived at the restaurant;
that, when the petitioner arrived, McQueen was still berating Johnson,
yelling profanity at her, and threatening her with violence; and that she
reported McQueen's behavior to the petitioner. Johnson alleged that,
after she reported McQueen, the petitioner started yelling profanities at
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her, retrieved a handgun from a bag she was carrying, and gave the gun
to McQueen. Johnson further alleged that McQueen fired several shots
at her while inside the restaurant; that, as she fled from the restaurant,
McQueen gave the gun to London, another employee who was working at
the restaurant; and that London then fired several more shots at her from
inside the restaurant. Johnson averred that customers of the restaurant
and of a nearby business notified law-enforcement officers of the incident.
Johnson alleged that, after the shooting, she telephoned Fortner and told
him about the incident and that Fortner telephoned the petitioner and
then drove to the restaurant. Law-enforcement officers arrested McQueen
and London. Johnson alleged that law-enforcement officers caught the
petitioner attempting to destroy video-surveillance footage of the incident
and attempting to hide the handgun that was used in the incident and
that the petitioner was arrested for tampering with evidence. Johnson
further alleged that, unbeknownst to the law-enforcement officers,
Fortner had instructed the petitioner to delete the video-surveillance
footage of the incident. Johnson also alleged that, on February 6, 2020,
R&L Foods terminated her employment but did not terminate the
4
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petitioner's employment. Johnson further alleged that, in 2014, while
working at a different Wendy's restaurant, the petitioner had been
involved in an incident in which she had pulled a gun on a coworker after
a verbal altercation and that Fortner and R&L Foods had covered up that
previous incident and had transferred the petitioner to the restaurant.
In her complaint, Johnson asserted assault claims against R&L
Foods, the petitioner, McQueen, and London; misrepresentation and
fraudulent-inducement claims against R&L Foods and Fortner;
misrepresentation and suppression claims against R&L Foods and
Fortner; negligent and wanton hiring, supervision, training, and/or
retention claims against R&L Foods; and tort-of-outrage claims against
R&L Foods, Fortner, the petitioner, McQueen, and London. On October
21, 2020, the petitioner filed her answer to the complaint. Her answer did
not include a counterclaim. However, on February 2, 2021, the petitioner
filed a pleading denominated as a "counterclaim" against Johnson. In
her counterclaim, the petitioner alleged her version of the events that took
place at the restaurant on February 4, 2020. Specifically, the petitioner
alleged that Johnson was working at the restaurant as an assistant
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manger; that Johnson became involved in a verbal altercation with
another employee at the restaurant; that, after her work shift ended,
Johnson left the restaurant and went outside to the parking lot; that
Johnson contacted other individuals believed to be relatives and/or friends
of Johnson, whom the petitioner referred to as "the trespassers"; that
Johnson made false statements to "the trespassers" to incite them to
threaten and/or physically harm one or more of the employees working at
the restaurant; that Johnson "encouraged, incited and/or directed the
trespassers to improperly enter into the subject restaurant to threaten
and/or physically harm one or more of the employees working at the
restaurant"; that, as general manger, the petitioner was informed of the
incident involving Johnson; that the petitioner drove to the restaurant
and went inside; that Johnson and "the trespassers" entered the
restaurant from the parking lot and acted in an abusive and threatening
manner toward the petitioner and the employees who were present at the
restaurant; that, on at least two occasions that day, "some or all of the
trespassers entered the restaurant and acted in a abusive and threatening
manner towards the employees present"; that the petitioner and others
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asked Johnson and "the trespassers" to leave the restaurant; that Johnson
and "the trespassers" refused to leave and continued to act in an abusive
and threatening manner; that the petitioner and the other employees
believed that they were in physical danger due to the conduct of Johnson
and "the trespassers"; that, during an altercation, the petitioner was
assaulted and struck violently multiple times; and that the petitioner
sustained an injury to her shoulder. In her counterclaim, the petitioner
asserted assault, negligence, wantonness, tort-of-outrage, and civil-
conspiracy claims against Johnson, which were compulsory counterclaims
under Rule 13(a), Ala. R. Civ. P.
On March 12, 2021, Johnson filed a motion to dismiss the
petitioner's compulsory counterclaims against her because the petitioner
did not include the counterclaims in her answer and because the
petitioner had not filed a motion for leave to amend her answer to add the
counterclaims. See Rule 13(a) and (f). Johnson further asserted that the
petitioner was not entitled to amend her answer to add the counterclaims.
The petitioner filed a response to the motion to dismiss, which included
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a request for leave to amend her answer to add the compulsory
counterclaims.
On April 1, 2021, the trial court conducted a hearing on Johnson's
motion to dismiss. During the hearing, Johnson's counsel stated that, if
the court was inclined to allow the petitioner to amend her answer to add
the compulsory counterclaims, he would seek leave from the court to
amend Johnson's complaint to add an abuse-of-process claim against the
petitioner. Johnson's counsel further stated:
"But we would be seeking leave to do that, and we would
just ask that the Court would sever out [the petitioner's]
counterclaim and our abuse of process claim against her, that
you would sever those out for a separate trial, not for discovery
purposes."
On April 12, 2021, the trial court entered an order denying Johnson's
motion to dismiss the compulsory counterclaims. That order further
stated: "Moreover, the compulsory counterclaim is Hereby ORDERED to
be severed from the above styled case and shall be tried separately."1
1In its order, the trial court stated that the counterclaim was
"severed from the above styled case and shall be tried separately."
However, that order did not direct the clerk to docket the counterclaim as
a new civil action and did not order the petitioner to pay a separate filing
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(Capitalization in original.) The petitioner subsequently filed her petition
for a writ of mandamus in this Court.
Discussion
The petitioner argues that the trial court erred when it ordered a
separate trial on her compulsory counterclaims because, she says, the
compulsory counterclaims are intertwined with Johnson's claims and the
petitioner's defenses to those claims.2
Rule 42(b), Ala. R. Civ. P., provides:
"The court, in furtherance of convenience or to avoid prejudice,
or when separate trials will be conducive to expedition and
economy, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or
fee. Thus, it does not appear that the trial court actually severed the
counterclaim pursuant to Rule 21, Ala. Civ. P. Rather, it appears that the
substance of the trial court's action was to order separate trials of
Johnson's claims and the compulsory counterclaims pursuant to Rule
42(b), Ala. R. Civ. P. See Stephens v. Fines Recycling, Inc., 84 So. 3d 867
(Ala. 2011).
2The petitioner asserts: "Without explanation, the Trial Court sua
sponte severed [her] compulsory counterclaims from Ms. Johnson's
underlying action." However, the transcript of the hearing on Johnson's
motion to dismiss clearly indicates that Johnson's counsel requested that,
in the event the trial court allowed the petitioner to amend her answer to
add the counterclaims, the trial court order separate trials of Johnson's
claims and the counterclaims.
9
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of any number of claims, cross-claims, counterclaims,
third-party claims, or issues, always preserving inviolate the
right of trial by jury as declared by Article 1, Section 11 of the
Alabama Constitution of 1901."
(Emphasis added.)
"It is well established that mandamus is a 'drastic' and
'extraordinary' remedy that will be granted only upon a
showing that the petitioner has a clear right to it. Ex parte
W.Y., [605 So. 2d 1175] (Ala.1992). The trial court has wide
discretion in ordering separate trials and in severing claims,
and the trial court's decision in that regard will be reversed
only if it abused that discretion. Ex parte R.B. Ethridge &
Associates, Inc., 494 So. 2d 54 (Ala. 1986). '[A]bsent an abuse
of discretion, the trial court will be allowed to "shape the order
of trial" through the provisions of Rule 42, [Ala. R. Civ. P.]' Ex
parte Marcrum, 372 So. 2d 313, 315 (Ala. 1979). See, also,
Black v. Boyd, 251 F.2d 843 (6th Cir. 1958). Likewise, when
claims have been severed pursuant to Rule 21, [Ala.] R. Civ. P.,
the trial judge has even more discretion to 'shape the order of
trial.' "
Ex parte Humana Med. Corp., 597 So. 2d 670, 671 (Ala. 1992).
It is undisputed that the events that give rise to the claims asserted
by Johnson in her complaint and the claims asserted by the petitioner in
her counterclaim all relate to the incident that occurred at the restaurant
on February 4, 2020. In their pleadings, Johnson and the petitioner each
assert conflicting accounts as to what actually happened on that day,
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which will require a factual resolution by a jury. Separate trials as to the
claims Johnson raised in her complaint and the claims the petitioner
raised in her counterclaim have the potential to result in inconsistent
verdicts.
In Ex parte Skelton, 459 So. 2d 825 (Ala. 1984), this Court addressed
the issue whether a circuit court had erred in ordering a separate trial of
the claims asserted against one of several defendants in a personal-injury
action. In addressing that issue, this Court noted:
"Rule 42(b), [Ala. R. Civ. P.], provides that the trial court
can order separate trials 'in the furtherance of convenience or
to avoid prejudice, or when separate trials will be conducive to
expedition and economy.' The trial court does not cite
prejudice to Thomas as a ground for its order granting his
motion for a separate trial. The Committee Comments to Rule
42 state that separate trials are not to be granted merely
because the parties involved might prefer separate trials.
Rather, '[i]t is the interest of efficient judicial administration
which is to be considered.' Committee Comments, Rule 42,
[Ala. R. Civ. P.] (Emphasis added.)"
459 So. 2d at 826.
Similarly, in this case, the trial court did not cite prejudice to the
parties as a ground for ordering separate trials. Also, the trial court did
not state that it was ordering separate trials for the convenience of the
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parties or because separate trials would be "conducive to expedition and
economy." Rule 42(b). Additionally, during the hearing, Johnson's
counsel asserted that Johnson was seeking separate trials because "that's
a lot of issues to be tried for one jury, and all kinds of confusion and
prejudice and misleading things can be put out before the jury in such a
case with that many moving parts."3 That is the extent of Johnson's
3In her response to this Court, Johnson argues that the trial court
did not exceed its discretion in ordering separate trials because, she says,
separate trials are necessary to avoid prejudice to the parties.
Specifically, she asserts that she would be required to present evidence of
the petitioner's prior bad acts to prove the negligent and wanton hiring,
supervision, training, and/or retention claims she raised against R&L
Foods in her complaint. She goes on to argue that she raised various
defenses in her reply to the counterclaim and that the prior-bad-act
evidence would not be admissible as to those defenses. However, Johnson
did not file her reply to the counterclaim until well after the trial court
had issued its order directing separate trials.
"This Court has repeatedly recognized that in
'mandamus proceedings, "[t]his Court does not review evidence
presented for the first time" ' in a mandamus petition. [Ex
parte] Ebbers, 871 So. 2d [776,] 794 [(Ala. 2003)] (quoting Ex
parte Ephraim, 806 So. 2d 352, 357 (Ala. 2001)). In reviewing
a mandamus petition, this Court considers 'only those facts
before the trial court.' Ex parte Ford Motor Credit Co., 772 So.
2d 437, 442 (Ala. 2000). Further, in ruling on a mandamus
petition, we will not consider 'evidence in a party's brief that
was not before the trial court.' Ex parte Pike Fabrication, Inc.,
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argument regarding prejudice to the parties. Nothing in the facts before
this Court demonstrates that separate trials on the claims in Johnson's
complaint and the claims in the counterclaim would further the
convenience of the parties, would avoid prejudice to the parties, or would
be "conducive to expedition and economy." Rule 42(b). Accordingly, the
trial court exceeded its discretion when it ordered separate trials in this
case.
Conclusion
Based on the foregoing, we grant the petition for the writ of
mandamus and direct the trial court to vacate its April 12, 2021, order to
the extent that it ordered separate trials as to the claims in Johnson's
complaint and the claims in the petitioner's counterclaim.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur.
Bolin, Sellers, Mendheim, and Stewart, JJ., concur in the result.
859 So. 2d 1089, 1091 (Ala. 2002)."
Ex parte McDaniel, 291 So. 3d 847, 852 (Ala. 2019). Because Johnson's
reply to the petitioner's counterclaim was not filed before the trial court
entered its order directing separate trials, we will not consider that reply.
13 | October 29, 2021 |
cb1ae6a4-9cc6-4eca-8675-c4334feee2b5 | Charles Gregory Lambert and William Christopher Lambert v. Jennifer Lambert Herrin | N/A | 1200484 | Alabama | Alabama Supreme Court | REL: October 15, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2021-2022
1200484
Charles Gregory Lambert and William Christopher Lambert v. Jennifer
Lambert Herrin (Appeal from Limestone Probate Court: 30-291).
MENDHEIM, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | October 15, 2021 |
5e28ae4e-6a10-4b39-8b87-6af87e83c64f | Bednarski v. Johnson | N/A | 1200183 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2021
__________________________________
1200183
_________________________
Duchi Alexandra Bednarski and John Bednarski, as
administrators of the Estate of Zenon Bednarski, M.D.,
deceased, and Auburn Urgent Care, Inc.
v.
Cortney Johnson, as administrator of the Estate of Hope
Johnson, deceased
Appeal from Lee Circuit Court
(CV-16-9002004)
PER CURIAM.
Dr. Zenon Bednarski and his practice, Auburn Urgent Care, Inc.
("AUC"), appealed from a judgment entered by the Lee Circuit Court ("the
trial court") awarding Cortney Johnson ("Cortney"), as the administrator
1200183
of the estate of Hope Johnson ("Hope"), deceased, $6.5 million.1 We
affirm.
Background
In October 2014, Hope and her mother visited Dr. Kerri Hensarling
for evaluation and the prescription of a birth-control method. Hope's
mother informed Dr. Hensarling that she had personally experienced
multiple blood clots, and Dr. Hensarling ordered tests to determine if
Hope was also at risk of experiencing blood clots. The test results
revealed the presence of factor V Leiden, which contributes to the
possibility of blood clotting.
However, Dr. Hensarling failed to accurately determine the results
of the test, and Hope and her mother were informed that the test results
were negative for blood-clotting factors. Dr. Hensarling prescribed
hormonal birth-control pills for Hope, the taking of which in combination
1Dr. Bednarski died during the pendency of this appeal, and Duchi
Alexandra Bednarski and John Bednarski, as the administrators of his
estate, were substituted as appellants, and the style of the appeal has
been changed accordingly. However, throughout the body of this opinion,
we make no further distinction between Dr. Bednarski and his estate.
2
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with the presence of factor V Leiden would increase her risk of
experiencing blood clots. Hope began taking the birth-control pills as
prescribed, without knowledge of her increased risk for blood clots.
On December 1, 2014, Hope visited the AUC clinic, complaining of
shortness of breath, chest pains, coughing, a headache, and a sore throat.
Dr. Bednarski diagnosed Hope with bronchitis and prescribed an
antibiotic medication. On December 3, 2014, Hope returned to the AUC
clinic, complaining of a much worsened condition, with sharp chest pains
and extreme shortness of breath. A blood test was conducted, and Hope
was diagnosed with leukocytosis and dyspnea and was prescribed an
inhaler. The next morning, Hope died of a pulmonary blood clot.
In May 2016, Hope's father, Cortney, as the administrator of her
estate, commenced this action in the trial court. In his initial complaint,
Cortney named as defendants Dr. Hensarling and her practice, Lee
Obstetrics and Gynecology, P.A. ("Lee OBGYN"). Cortney also named as
defendants Dr. Bednarski and AUC ("the Bednarski defendants").
Cortney's initial complaint also included several fictitiously named
defendants. In an amended complaint, Cortney substituted Dr. David
3
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Willis for fictitiously named defendants. Cortney alleged that Dr. Willis
had treated Hope at the AUC clinic on December 3, 2014. Cortney later
reached a settlement agreement with Dr. Hensarling and Lee OBGYN.
Cortney's final amended complaint alleged a count of "Breach of the
Standard of Care" against the Bednarski defendants and Dr. Willis; a
count of "Legal Status: Respondeat Superior/Agency -- Corporate
Defendants" against AUC; and a new count -- "Direct Liability" -- against
the Bednarski defendants. In summary, count one alleged various
negligent and wanton failures by the Bednarski defendants and Dr. Willis
in their treatment of Hope, count two alleged that AUC was vicariously
liable for the actions and inactions of Dr. Bednarski and Dr. Willis, and
count three, the new count, alleged that the Bednarski defendants had
been negligent "and/or" wanton in their training and supervision of Dr.
Willis.
The Bednarski defendants filed a motion for a summary judgment,
and Dr. Willis also later filed a motion for a summary judgment. On
September 11, 2018, the trial court entered an order denying the
summary-judgment motions. The Bednarski defendants filed a petition
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for the writ of mandamus in this Court, seeking an order directing the
trial court to dismiss certain of Cortney's claims against them, based on
an argument that the claims were barred by the applicable statute of
limitations. This Court denied the petition, without an opinion. Ex parte
Bednarski (No. 1180076, Apr. 19, 2019), 305 So. 3d 200 (Ala. 2019)(table).
Cortney's claims against the Bednarski defendants and Dr. Willis
proceeded to trial.
The Bednarski defendants moved for a judgment as a matter of law
at the close of Cortney's case-in-chief and at the close of all the evidence,
which motions the trial court denied. The jury returned a general verdict
in favor of Cortney against the Bednarski defendants and Dr. Willis,
awarding Cortney damages in the amount of $9 million. The trial court
thereafter entered a judgment on the jury's verdict, awarding Cortney $9
million in punitive damages.
The Bednarski defendants filed a renewed motion for a judgment as
a matter of law. In their motion, the Bednarski defendants requested in
the alternative various other forms of relief, including a remittitur of the
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damages award. On November 12, 2020,2 the trial court entered a lengthy
order regarding the postjudgment motion filed by the Bednarski
defendants. The trial court denied all the relief sought by the Bednarski
defendants, except for their request for a remittitur, which the trial court
granted, and reduced the damages award to $6.5 million. The Bednarski
defendants appealed.
Analysis
On appeal, the Bednarski defendants assert several arguments. We
address each in turn.
I. Statute of Limitations
The Bednarski defendants first argue that certain of Cortney's
claims are barred by § 6-5-410, Ala. Code 1975. Section 6-5-410(d)
provides that a wrongful-death claim "must be commenced within two
years from and after the death of the testator or intestate." Hope died on
December 4, 2014. Cortney filed his initial complaint on May 5, 2016.
Therefore, the action was commenced within two years of Hope's death.
2The time for ruling on the postjudgment motion was extended
several times. See Rule 59.1, Ala. R. Civ. P.
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However, Dr. Willis was not added to the case as a named defendant
until Cortney filed his first amended complaint on July 18, 2017,
substituting Dr. Willis for fictitiously named defendants listed in the
initial complaint. Because Dr. Willis was not substituted as a defendant
until more than two years after Hope's death, the Bednarski defendants
argue, the limitations period in § 6-5-410 expired with respect to any
claims predicated on Dr. Willis's conduct before those claims were
asserted. Therefore, the Bednarski defendants contend, they are entitled
to a judgment as a matter of law concerning Cortney's claims that they
negligently "and/or" wantonly trained and supervised Dr. Willis and
Cortney's claim that AUC is vicariously liable for Dr. Willis's conduct.
The Bednarski defendants further contend that Cortney's failure-to-
train/supervise claim was also barred because it was not added until
Cortney's final amended complaint, which was also filed after the
limitations period had expired. We consider each of the Bednarski
defendants' arguments in turn.
A. Ignorance and Due Diligence
The first issue raised by the Bednarski defendants is whether
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1200183
Cortney's first amendment of his complaint to substitute Dr. Willis for
fictitiously named defendants can be properly said to "relate back" to the
date Cortney filed his initial complaint, thereby rendering his claims
predicated on Dr. Willis's conduct timely for the purposes of § 6-5-410. In
Ex parte Nationwide Insurance Co., 991 So. 2d 1287, 1290-91 (Ala. 2008),
this Court stated:
"Fictitious-party pleading is governed by Rule 9(h), Ala.
R. Civ. P., which provides:
" 'When a party is ignorant of the name of an
opposing party and so alleges in the party's
pleading, the opposing party may be designated by
any name, and when that party's true name is
discovered, the process and all pleadings and
proceedings in the action may be amended by
substituting the true name.'
"Rule 15(c)(4), Ala. R. Civ. P., provides that '[a]n amendment
of a pleading relates back to the date of the original pleading
when ... relation back is permitted by principles applicable to
fictitious party practice pursuant to Rule 9(h)[, Ala. R. Civ.
P.].'
"This Court has elaborated on the interplay between
Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., stating that these
two rules 'allow a plaintiff to avoid the bar of a statute of
limitations by fictitiously naming defendants for which actual
parties can later be substituted.' Ex parte Chemical Lime of
Alabama, Inc., 916 So. 2d [594,] 597 [(Ala. 2005)](quoting
8
1200183
Fulmer v. Clark Equip. Co., 654 So. 2d 45, 46 (Ala. 1995)). In
order to invoke the relation-back principle and proceed under
the fictitious-party rule, the original complaint must
'adequately describe[] the fictitiously named defendant and
state[] a claim against such a defendant.' Fulmer, 654 So. 2d
at 46 (citing Jones v. Resorcon, Inc., 604 So. 2d 370 (Ala.
1992)). In addition, a party ' " 'must have been ignorant of the
true identity of the defendant and must have used due
diligence in attempting to discover it.' " ' Pearson v. Brooks,
883 So. 2d 185, 191 (Ala. 2003) (quoting Crowl v. Kayo Oil Co.,
848 So. 2d 930, 937 (Ala. 2002), quoting in turn Fulmer, 654
So. 2d at 46 (emphasis omitted))."
The Bednarski defendants argue that Cortney knew Dr. Willis's
identity before the limitations period expired. The Bednarski defendants'
argument is based on two pieces of evidence that Cortney undisputedly
possessed before commencing this action: (1) a CVS Pharmacy Patient
Prescription Record ("the CVS record") showing that "Willis David R"
prescribed Hope an inhaler on December 3, 2014, and (2) a "triage sheet"
that Hope was given during her December 3, 2014, visit to the AUC clinic
("the AUC triage sheet") showing that she was prescribed an inhaler that
day. In response to the Bednarski defendants' argument, Cortney argues
that he had no knowledge, before the limitations period expired, that Dr.
Willis had treated Hope on December 3, 2014. In support of his position,
9
1200183
Cortney points out that the records he obtained from AUC before filing his
complaint ("the AUC medical records") indicated that Dr. Bednarski -- not
Dr. Willis -- had treated Hope on December 3, 2014.
In its order denying the Bednarski defendants' summary-judgment
motion, the trial court rejected the Bednarski defendants' statute-of-
limitations argument by reasoning as follows:
"1. [Cortney] requested from [AUC] a complete copy of
the records for [Hope]. The information regarding Dr. ... Willis
was not included in [the AUC medical] records. It appears
that this is because Dr. ... Willis was not properly trained in
how to log-in to the clinic's charting system. Had he been
properly trained, his name would have been recorded as a
person that provided care to Hope ... on December 3, 2014.
"2. [Cortney] submitted interrogatories to the [Bednarski
defendants] requesting the names of any person that may have
treated [Hope]. The [Bednarski defendants] did not disclose
the name Dr. ... Willis in their answers. Further, they didn't
update their interrogatories prior to the disclosure during
depositions that Dr. ... Willis may have been a treatment
provider.
"3. The Court finds that a CVS Pharmacy record that
simply lists 'Willis, David' and doesn't indicate that he is a
doctor is not sufficient to provide notice to [Cortney] when they
asked for the record from [AUC] and there was no indication
that Dr. ... Willis was employed there or treated [Hope].
"4. Furthermore, the doctor's note from [Hope's] last visit
10
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to [the AUC clinic] identifies Dr. ... Bednarski and Dr. Edvin
Larson as the treating doctors at [the AUC clinic]. Nowhere
does the doctor's note indicate the name Dr. ... Willis as a
doctor at [the AUC clinic]. The doctor's note from the
December 3, 2014, visit is from the same date as the CVS ...
record. In examining these documents, one would easily
conclude that Dr. ... Bednarski was the treating physician on
December 3, 2014.
"....
"This Court cannot in good conscious grant a Motion for
Summary Judgment when the [Bednarski defendants] for
months seemed to be totally unaware that Dr. ... Willis treated
[Hope]. [Cortney] effectively related back [his] pleadings in
following ... Rule 15[, Ala. R. Civ. P.,] and made appropriate
use of fictitious parties in [his] pleadings under ... Rule 9(h)[,
Ala. R. Civ. P.]. Further, [Cortney] did [his] due diligence in
identifying Dr. ... Willis."3
Thus, before filing his initial complaint in this action, Cortney had
3In its postjudgment order, the trial court stated:
"This Court has already denied summary judgment on
the statute of limitations issue. ... As to the [Bednarski
d]efendants' argument that the claims relating to Dr. Willis
are barred by the statute of limitations, [the Bednarski
defendants] presented the same argument, the same facts, and
the same case law that has already been presented fully to this
Court by briefs and oral argument .... In the absence of any
new arguments, facts or law, this Court adopts its prior ruling
and again denies [the Bednarski defendants]' Motion for
Judgment as a Matter of Law."
11
1200183
reason to know, via the CVS record, that "Willis, David R" had prescribed
Hope an inhaler on December 3, 2014, and had reason to know, via the
AUC triage sheet, that Hope had been prescribed an inhaler on December
3, 2014, at the AUC clinic. However, it is undisputed that the AUC triage
sheet nowhere reflected Dr. Willis's name and that, instead, Dr. Bednarski
and Dr. Edvin Larson were the only physicians noted on that document
as practicing at the AUC clinic. Moreover, it is undisputed that the AUC
medical records given to Cortney by AUC nowhere mentioned Dr. Willis's
name and, on the contrary, affirmatively and expressly indicated that Dr.
Bednarski -- not Dr. Willis -- had treated Hope on December 3, 2014.
Under the circumstances of this case, we cannot conclude that, as a
matter of law, Cortney should be deemed to have been aware of Dr.
Willis's identity as the doctor who had treated Hope at the AUC clinic on
December 3, 2014, based on the various medical records in Cortney's
possession before filing his complaint. In short, the records given to
Cortney by AUC upon his request identified a different party as the doctor
who had treated Hope that day, and none of the medical records in
Cortney's possession even identified Dr. Willis as a doctor who had ever
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worked at the AUC clinic -- where the allegedly negligent or wanton
conduct occurred. These facts distinguish the circumstances of this case
from the cases cited by the Bednarski defendants dealing with this issue;
the plaintiffs in those cases had access to concrete information
demonstrating that the substituted parties were the proper defendants
before the pertinent limitations periods lapsed. See Ex parte VEL, LLC,
225 So. 3d 591, 602 (Ala. 2016)("The undisputed evidence indicates that
[the plaintiff] was not ignorant of [the proper defendant] at the time that
she filed the original complaint. [A] letter [from an employee of the proper
defendant's insurer] specifically named [the proper defendant] as the
insured on whose behalf [the insurer] was acting. Further, [a] letter [from
the plaintiff's counsel] ... specifically identified [the proper defendant].
That evidence indicates that [the plaintiff] actually 'knew, or should have
known,' of [the proper defendant]'s identity at the time that she filed the
original complaint."); Weber v. Freeman, 3 So. 3d 825, 833 (Ala.
2008)("[The plaintiff] was not 'ignorant' of a relationship that gave rise to
a duty. [The plaintiff] knew of the identit[ies] of [the substituted parties]
and knew that [the substituted doctor] had interpreted [the decedent]'s
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abdominal radiographs (the only diagnostic test performed on [the
decedent] during his visit to the emergency room) before she filed her
action."(emphasis added)); and Marsh v. Wenzel, 732 So. 2d 985, 990 (Ala.
1998)("[O]ne could not reasonably conclude that [the plaintiff] was
ignorant of matters -- such as the name of the pathologist who examined
the tissue samples [at issue] -- that clearly were set forth in her medical
records." (emphasis added)).
Next, the Bednarski defendants argue that, even if Cortney was, in
fact, ignorant of Dr. Willis's identity, Cortney did not exercise due
diligence in attempting to ascertain who had treated Hope at the AUC
clinic on December 3, 2014.
"The correct standard for determining whether a party
exercised due diligence in attempting to ascertain the identity
of the fictitiously named defendant 'is whether the plaintiff
knew, or should have known, or was on notice, that the
substituted defendants were in fact the parties described
fictitiously.' Davis v. Mims, 510 So. 2d 227, 229 (Ala. 1987)."
Ex parte Nationwide Ins. Co., 991 So. 2d at 1291.
The Bednarski defendants specifically argue that, before filing his
initial complaint and before the limitations period expired, Cortney should
14
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have asked either CVS or the Bednarski defendants themselves: " 'Who
was Willis, David R.?' " The Bednarski defendants' brief at 32. However,
the Bednarski defendants' argument in this regard appears somewhat
hollow, because, on the next page of their principal appellate brief, they
concede that even they did not know, before the limitations period expired,
that Dr. Willis had treated Hope on December 3, 2014. This concession is
supported by the record, which reflects that Cortney did, in fact, ask the
Bednarski defendants who had treated Hope on December 3, 2014, before
the limitations period expired and that Dr. Willis's identity was still not
uncovered.
In particular, as the trial court noted in its order denying the
Bednarski defendants' summary-judgment motion, Cortney submitted the
following interrogatories to the Bednarski defendants on October 25, 2016,
which was before the limitations period expired:
"2. State the name, address, and telephone number of
each person having any knowledge of relevant facts relating to
the occurrences made the basis of this litigation, and give a
summary of each person’s knowledge. ...
"....
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"13. State the name and job title of every person who, on
behalf of Defendants Zenon Bednarski and/or Auburn Urgent
Care, Inc., spoke to or contacted Hope Johnson, or any family
member of Hope Johnson, and:
"a. A brief description of the substance of the
conversation;
"b. The identity of parties to the conversation;
"c. The date(s) of any conversation; and
"d.
Identify
any
witnesses
to
the
conversation."
In response to interrogatory number 2, the Bednarski defendants
stated only: "Dr. Zenon Bednarski, Aubryn Tharp, and Tracey Swader."
In response to interrogatory number 13, the Bednarski defendants stated:
"Hope Johnson would have spoken to someone at the
reception desk on December 1, 2014, and December 3, 2014.
It is not known who that specific person was on those
occasions. It is also unknown the full nature of any
discussions. On December 1, 2014, there would also have been
conversations with Dr. Bednarski, Aubryn Tharp, and possibly
Tracey Swader. On December 3, 2014, there would have been
a conversation with the triage nurse, Tracey Swader[,] and
possibly Aubryn Tharp."
The Bednarski defendants' ignorance concerning the identity of the
doctor who had treated Hope on December 3, 2014, like Cortney's
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ignorance in that regard, was also apparently due to the inaccuracies in
their own records. Incidentally, these deficiencies formed a part of the
conduct made the basis of Cortney's claims against the Bednarski
defendants. The Bednarski defendants cite no evidence indicating that
CVS would have fared any better in attempting identify Dr. Willis as the
doctor who had treated Hope at the AUC clinic on December 3, 2014, had
Cortney asked CVS to undertake such an endeavor. In short, the
Bednarski defendants appear to be arguing that Cortney should have been
able to uncover what they themselves did not, while simultaneously
suggesting that all Cortney had to do was ask. We find this contention
internally contradictory and inconsistent with the concept of "due
diligence."
" 'Due diligence means ordinary, rather than extraordinary,
diligence.' United States v. Walker, 546 F. Supp. 805, 811
(D.C. Hawai'i 1982) (emphasis added); see also State v.
Gonzales, 151 Ohio App. 3d 160, 171, 783 N.E.2d 903, 911-12
(2002). Short of what would amount to 'detective work,' the
adversarial process renders the [Bednarski defendants']
contentions unrealistic."
Ex parte Nail, 111 So. 3d 125, 131 (Ala. 2012).
The circumstances of the cases cited by the Bednarski defendants
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dealing with the concept of "due diligence" are distinguishable from the
circumstances of this case because, in those cases, information regarding
the identities of the substituted defendants was either already in the
plaintiffs' possession or was readily available to them before the
limitations periods expired, as opposed to being effectively hidden by the
defendants' actions. See Ex parte Integra LifeSciences Corp., 271 So. 3d
814 (Ala. 2018)(concluding that the plaintiff did not exercise due diligence
in ascertaining a substituted defendant's identity when a report in the
plaintiff's possession before filing her original complaint identified the
defendant's product as having been used in the plaintiff's surgical
procedure and a simple Internet search would have revealed the
defendant as the manufacturer of the product in question); Ex parte
American Sweeping, Inc., 272 So. 3d 640 (Ala. 2018)(concluding that the
plaintiffs had not exercised due diligence in ascertaining the substituted
defendant's identity when, among many other things, one of the plaintiffs
had talked on multiple occasions before the original complaint was filed
with a witness to the vehicular accident in question about the involvement
of the defendant's vehicle in the accident); Ex parte Lucas, 212 So. 3d 921
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(Ala. 2016)(concluding that the plaintiff had not exercised due diligence
in identifying the substituted defendant when the defendant's identity
was disclosed in a second police report that was a public record and the
plaintiff had reason to know that the first police report in her possession
was incomplete); Ex parte Nicholson Mfg. Ltd., 182 So. 3d 510 (Ala.
2015)(concluding that the plaintiff had failed to exercise due diligence in
identifying the substituted defendant when the defendant's identity was
disclosed on the product alleged to have caused the plaintiff's injury and
in publically available documents); Ex parte General Motors of Canada
Ltd., 144 So. 3d 236, 242 (Ala. 2013)("Here, nothing prevented [the
plaintiff]'s identification of [the party at issue] as a defendant other than
his failure to conduct an inspection of the allegedly defective vehicle."
"Because the label on the vehicle, which was required by law, was
conspicuous, legible, and in the possession of [the plaintiff]'s agents or his
family, he should have readily discovered it, and his failure to do so
amounted to a failure to act with due diligence."); McGathey v. Brookwood
Health Servs., Inc., 143 So. 3d 95, 108 (Ala. 2013)("Because of the medical
records [the plaintiff] obtained, [she] knew [the substituted parties']
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names shortly after her surgery and knew that they were involved in her
treatment during the surgery. Despite this knowledge, there is no
indication that, in the nearly two years between the time [the plaintiff]
received the medical records and the time she filed her complaint, [the
plaintiff] performed any investigation to determine whether either of
those individuals was responsible for her injury. Even after [the plaintiff]
filed her complaint in September 2010, it was not until late 2011 that she
ascertained the roles of the two individuals in the surgery." (emphasis
added)); Ex parte Mobile Infirmary Ass'n, 74 So. 3d 424 (Ala.
2011)(concluding that the plaintiff did not exercise due diligence in
ascertaining the identity of the corporation doing business as the medical
center where the decedent was treated when the medical records in the
plaintiff's possession before the original complaint was filed clearly
identified the medical center as the place where the decedent was
treated); Ex parte Ismail, 78 So. 3d 399, 409 (Ala. 2011)("The plaintiffs
requested and obtained [the injured plaintiff]'s medical records from [the
medical center] before filing their original complaint, and those records
revealed the names of two treating physicians, one of whom was [the
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substituted defendant]. Nonetheless, the plaintiffs did not present any
evidence to show that they made any attempt to ascertain the extent of
[the substituted defendant]'s participation before they filed the original
complaint[, which was four days before the limitations period expired]."
(emphasis added)); Ex parte Snow, 764 So. 2d 531 (Ala. 1999)(concluding
that the plaintiffs had not diligently investigated their claim when it was
undisputed that the plaintiffs had known, within four months of the
surgery at issue, that the substituted defendants had performed the
procedure); and Ex parte Klemawesch, 549 So. 2d 62, 64-65 (Ala.
1989)(concluding that the plaintiff had not acted diligently to ascertain
the identity of the physician who treated the decedent when the plaintiff
had not filed a single interrogatory, had failed to initiate any other
discovery until more than two years after commencing the action, an
unidentified signature in the decedent's medical records was that of the
attending physician, and the physician originally sued as the decedent's
attending physician had produced an affidavit averring that he was not
on duty at the time of the decedent's treatment and death).
We further note that the failure of the Bednarski defendants to shed
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any additional light on Dr. Willis's identity as the physician who had
treated Hope on December 3, 2014, in response to Cortney's discovery
requests renders the circumstances of this case similar to those recently
addressed by the Court in Ex parte Russell, 314 So. 3d 192, 202-03 (Ala.
2020)("[T]he trial court could have reasonably concluded that [the
plaintiff] had diligently pursued discovery targeted toward identifying [a
nurse] but had been hindered by [the hospital]'s failure to timely disclose
a requested record that would have clearly revealed a connection between
[the nurse] and [the decedent]."); 314 So. 3d at 204 ("Despite th[e
plaintiff's] interrogatories and repeated informal requests by [the
plaintiff]'s counsel for more specific information ... [an emergency-room
secretary] was not identified as an individual who interacted with [the
decedent] on December 28, 2013, until five and a half months after the
statute of limitations expired.").
In light of the foregoing, we conclude that the Bednarski defendants
have failed to demonstrate that the trial court's judgment is due to be
reversed based on their argument that Cortney's substitution of Dr. Willis
for fictitiously named defendants did not relate back to his original
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complaint. Accordingly, the trial court's judgment is affirmed concerning
this issue.4
B. Negligent "and/or" Wanton Training
Next, the Bednarski defendants argue that the new count added in
Cortney’s final amended complaint, "Direct Liability," is likewise barred
by the applicable statute of limitations because, they say, it cannot
properly be said to "relate back" to the date Cortney filed his initial
complaint. As noted in the "Background" section above, the new count,
in summary, alleged that the Bednarski defendants had been negligent
"and/or" wanton in their training and supervision of Dr. Willis. Rule
15(c)(2) provides, in pertinent part:
"(c) Relation Back of Amendments. An amendment of a
pleading relates back to the date of the original pleading when
"....
4The Bednarski defendants briefly argue that, because Cortney's
claim against Dr. Willis was barred by the applicable statute of
limitations, any claim against the Bednarski defendants that is predicated
on Dr. Willis's conduct, such as the vicarious-liability claim against AUC,
is likewise barred as a matter of law. Because the first argument fails,
the second argument also fails.
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"(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
...."
This Court set forth the following summary of the applicable law
concerning the application of Rule 15(c)(2) in Prior v. Cancer Surgery of
Mobile, P.C., 959 So. 2d 1092, 1095 (Ala. 2006):
"The Alabama Rules of Civil Procedure allow parties to
amend their complaints. Rule 15(a), Ala. R. Civ. P. Even if
otherwise barred by the applicable statute of limitations, an
amendment to a complaint may be allowed if it 'arose out of
the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading....' Rule 15(c)(2), Ala. R.
Civ. P. However, if allowing the plaintiff to amend his or her
complaint would prejudice the opposing party, the amendment
should be denied. Ex parte Johnston-Tombigbee Furniture
Mfg. Co., 937 So. 2d 1035 (Ala. 2005). ...
"An amended complaint relates back to the original
complaint under Rule 15(c)(2), Ala. R. Civ. P., when ' "the same
substantial facts are pleaded merely in a different form." ' Ex
parte Johnston-Tombigbee Furniture, 937 So. 2d at 1038
(quoting Court of Civil Appeals' opinion in Johnston-
Tombigbee Furniture Mfg. Co. v. Berry, 937 So. 2d 1029, 1032
(Ala. Civ. App. 2004), quoting other cases)."
(Footnote omitted.)
The Bednarski defendants argue that Cortney's failure-to-
train/supervise claim asserted in his final amended complaint did not
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relate back to the date of his initial complaint because, they say, it
consisted of new and distinct factual allegations rather than pleading the
same substantial facts in different form. In his initial complaint, Cortney
alleged that the Bednarski defendants had breached the applicable
standard of care, as follows:
"27. On or about December 1 and 3, 2014, Dr. Bednarski,
[AUC], and/or one or more fictitious defendants, assumed
responsibility to assess and prescribe treatment to Hope
Johnson for complaints of worsening chest pain and shortness
of breath. Defendants were under the legal duty to possess
and exercise that degree of care, skill and diligence commonly
possessed and exercised by same or similar healthcare
providers in the national medical community, acting under the
same or similar circumstances as hereinafter described.
"28. In the course of assessing and treating Hope
Johnson, Dr. Bednarski, [AUC], and/or one or more fictitious
defendants, negligently and/or wantonly failed to exercise such
reasonable care, skill, and diligence that similarly situated
health care providers in the national medical community and
in the same general line of practice, would have exercised in a
like case.
"29. Dr. Bednarski, [AUC], and/or one or more fictitious
defendants, negligently and/or wantonly breached the
standard of care in their treatment of Hope Johnson on or
about December 3, 2014, by: 1) failing to diagnose Hope
Johnson with pulmonary emboli; 2) failing to properly assess
Hope Johnson's risk for pulmonary emboli and failing to
perform, recommend and/or refer her for diagnostic testing,
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further treatment and intervention; 3) failing to perform a
physical examination and proper evaluation for worsening
symptoms; 4) failing to perform an adequate evaluation of
worsening respiratory symptoms and thereby missing the
diagnosis of pulmonary emboli; 5) failing to care for and treat
Hope Johnson; and 6) failing to possess the medical knowledge
and/or skills necessary to provide treatment for Hope
Johnson."
As noted, in his final amended complaint, Cortney added a claim of
"direct liability" against the Bednarski defendants, which stated, in
pertinent part:
"Defendants Dr. Zenon Bednarski, acting as employee, agent,
servant and/or sole owner of [AUC], and [AUC] are directly
liable for the following actions and inactions:
"a. Negligently and/or wantonly directing, instructing,
allowing, encouraging, sustaining, ratifying, and otherwise
permitting Dr. David Willis to bypass the electronic medical
record system at [the AUC clinic] on December 3, 2014;
"b. Negligently and/or wantonly failing to train, instruct,
require, and otherwise permit Dr. David Willis to bypass the
electronic medical record system at [the AUC clinic] on
December 3, 2014;
"c. Negligently and/or wantonly failing to provide Dr.
David Willis with login credentials on the electronic medical
record system at [the AUC clinic] on December 3, 2014,
thereby depriving him of access to patient records with
information about prior patient visits, including laboratory
data, diagnoses, treatments and physical examination
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information;
"Thereby leading to incomplete and/or total loss of access
to vital medical information necessary for Hope Johnson to be
adequately, properly and correctly diagnosed and treated on
December 3, 2014, thereby leading to her death on December
4, 2014.
"36. [AUC], by and through its employees, agents and
servants, including but not limited to Dr. Zenon Bednarski,
senior partner, owner and supervising physician at [the AUC
clinic], negligently and/or wantonly failed to properly train and
supervise Dr. David Willis on his first day at work for [AUC],
by the following actions and inactions, for which [AUC] and
Dr. Zenon Bednarski are directly responsible:
"a. Failing to provide Dr. David Willis with login
credentials on the electronic medical record system at [the
AUC clinic] on December 3, 2014, thereby depriving him of
access to patient records with information about prior patient
visits, including laboratory data, diagnoses, treatments and
physical examination information;
"b. Requiring Dr. David Willis to examine, diagnose and
treat 50-90 patients on December 3, 2014, thereby creating the
potential for Dr. Willis to deliver inadequate, inappropriate
and substandard care and treatment to Hope Johnson;
"c. Failing to instruct, train, and orient Dr. David Willis
on the established [AUC clinic] processes, procedures, and
protocols that ensured the proper flow of patients seeking
medical attention at [the AUC clinic] so that every patient who
needed medical attention would be examined, diagnosed and
treated by a physician for their immediate medical needs[;]
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"[d].
Allowing
prescriptions
to
be
submitted,
administered, and/or dispensed without a doctor ever seeing a
patient, evaluating a patient's vitals, or taking and/or charting
a physical exam[;]
"Thereby contributing and leading to the incorrect,
incomplete, improper and/or complete absence of a physical
examination and assessment, diagnoses and treatment for
Hope Johnson on December 3, 2014, thereby leading to her
death on December 4, 2014."
The Bednarski defendants cite Prior, 959 So. 2d at 1092, in support
of their argument. In Prior, the personal representative of a deceased
cancer patient's estate filed a medical-malpractice and wrongful-death
action against Dr. Bradley Scott Davidson and the surgery center that
employed Dr. Davidson; Dr. Davidson had performed surgery on the
patient and had provided pre- and post-surgical care. The personal
representative also asserted a vicarious-liability claim against the surgery
center based on Dr. Davidson's actions.
Subsequently, after the applicable limitations period had expired,
the personal representative filed an amended complaint seeking to hold
the surgery center vicariously liable for the conduct of Dr. Gaylord T.
Walker, another employee of the surgery center; Dr. Walker had provided
28
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post-surgical care to the patient on one occasion. Dr. Davidson and Dr.
Walker independently had provided care to the patient on different dates.
The surgery center filed a motion to dismiss the personal representative's
amended complaint, arguing that the claims against the surgery center
based on Dr. Walker's conduct did not relate back to the date of the
original complaint under Rule 15(c)(2). Accordingly, the surgery center
argued, the claims added in the amended complaint were barred by the
applicable two-year statute of limitations. The trial court granted the
surgery center's motion.
On appeal, this Court affirmed the trial court's decision, concluding
that the personal representative
"seeks to amend her complaint to add new facts and to add the
claim that [the] [s]urgery [center] is vicariously liable for the
actions of a different doctor on a different day from those
actions that formed the basis of the claims asserted in the
original complaint .... She is not entitled to add a separate
claim of vicarious liability against [the] [s]urgery [center] for
the acts of a new party by the expedient of an amendment to
the complaint under Rule 15(c)(2)."
Prior, 959 So. 2d at 1097. Significant to this Court's holding was the fact
that "the two doctors provided medical care to [the patient] at different
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times" and that "the allegedly negligent behavior of the two doctors was
different." Prior, 959 So. 2d at 1095.
In considering the personal representative's argument in Prior, this
Court considered two analogous cases, Callens v. Jefferson County
Nursing Home, 769 So. 2d 273 (Ala. 2000), and Sonnier v. Talley, 806 So.
2d 381 (Ala. 2001). Those cases provide a contrast to the facts presented
in Prior and are helpful to our analysis of the issues currently before us.
This Court stated in Prior:
"[The personal representative] relies, in part, on Callens
v. Jefferson County Nursing Home, 769 So. 2d 273 (Ala. 2000),
to establish that her second amended complaint relates back
under Rule 15(c)(2), Ala. R. Civ. P. In Callens, the plaintiff's
mother suffered severe injuries allegedly causing her
subsequent death when a group of nursing-home employees
was attempting to insert a Foley catheter. Callens originally
sued the nursing home and others, alleging 'wrongful death,
civil conspiracy, breach of contract, and the tort of outrage.'
Callens, 769 So. 2d at 278. In her amended complaint, Callens
alleged 'negligent hiring, training and supervision that ...
resulted in personal injury to [her mother].' Id. This Court
held that Callens's amended complaint related back to her
original complaint under Rule 15(c)(2), Ala. R. Civ. P. This
Court noted that both the original and the amended
complaints 'arose out of events of December 11, 1995.' 769 So.
2d at 278. The amended complaint related back to the original
complaint because it 'arose out of the same "conduct,
transaction, or occurrence" as that alleged in the original
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complaint, that is, the December 11, 1995, injury to [Callens's
mother].' 769 So. 2d at 278. Both the claims in the original
complaint and those in the amended complaint were based on
a specific incident that occurred on a specific date. The claims
and allegations in [the personal representative's] ... amended
complaint, on the other hand, involve different conduct that
took place at a different time, and by a different doctor, than
that alleged in her earlier complaints.
"Sonnier v. Talley, 806 So. 2d 381 (Ala. 2001), cited by
[the personal representative], likewise does not support her
position. In Sonnier, Tammy Talley sued Flowers Hospital
and Dr. Sonnier and Dr. van der Meer for performing an
unnecessary hysterectomy. She alleged general negligence
and malpractice 'during the period June 1990 through October
1991' and failure to obtain informed consent and sought
damages for an alleged loss of consortium. Sonnier, 806 So. 2d
at 383. Talley then filed an amended complaint alleging that
the same defendants 'had made misrepresentations of fact
related to the surgery, the cancer, and her health during the
period from June 1991 through October 1991.' Id. This Court
held that Talley's amended complaint related back to her
original complaint under Rule 15(c)(2), Ala. R. Civ. P. Even
though the amended complaint alleged a new cause of action,
it was limited to the same time period and the same parties.
This Court held that the reason the amended complaint
related back was that the amendment had ' "ma[de] more
specific what ha[d] already been alleged." ' Sonnier, 806 So. 2d
at 386-87 (quoting National Distillers & Chem. Corp. v.
American Laubscher Corp., 338 So. 2d 1269, 1273 (Ala. 1976)).
Talley initially alleged that the doctors had been negligent
over a specified time period. Her amended complaint alleged
a closely related cause of action against the same defendants
stemming from the same operative facts."
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959 So. 2d at 1096-97 (emphasis added).
In the present case, Cortney's initial complaint sought to hold the
Bednarski defendants liable for conduct that had occurred on December
1 and 3, 2014. Specifically, Cortney alleged in his initial complaint that
the Bednarski defendants had breached the applicable standard of care in
providing care to Hope. Similarly, the claim added against the Bednarski
defendants in Cortney's final amended complaint sought to hold the
Bednarski defendants liable for conduct that also had occurred on
December 3, 2014, related to the medical care that Hope had received. As
a result of the Bednarski defendants' failure to properly train Dr. Willis
and provide him with access to AUC's medical-records system, Cortney
alleged in his failure-to-train/supervise claim, Dr. Willis, based on Dr.
Bednarski's and/or AUC's negligence and/or wantonness, was not able to
access Hope's medical records, which would have included "information
about prior patient visits, including laboratory data, diagnoses,
treatments and physical examination information." This allegation was
a further refinement of the allegations in Cortney's initial complaint that
the Bednarski defendants had breached the applicable standard of care.
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Unlike in Prior, Cortney did not seek to hold a different party liable
for conduct that occurred on different dates. Instead, as in Callens and
Sonnier, the claim asserted in Cortney's final amended complaint "arose
out of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading." Rule 15(c)(2). Cortney sought to hold
the Bednarski defendants liable for conduct that arose out of the same
occurrence set forth in his initial complaint. In other words, Cortney's
final amended complaint related back to the original complaint under
Rule 15(c)(2) because " ' "the same substantial facts [we]re pleaded merely
in a different form." ' Ex parte Johnston-Tombigbee Furniture, 937 So. 2d
at 1038 (quoting Court of Civil Appeals' opinion in Johnston-Tombigbee
Furniture Mfg. Co. v. Berry, 937 So. 2d 1029, 1032 (Ala. Civ. App. 2004),
quoting other cases)." Prior, 959 So. 2d at 1095.
Cortney's final amended complaint related back to the date on which
the initial complaint was filed. The Bednarski defendants have not
demonstrated that the trial court erred in holding that the new claim
asserted in Cortney's final amended complaint was not barred by the
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applicable statute of limitations.5
II. "Negligent Hiring"
The Bednarski defendants argue that the trial court improperly
permitted Cortney to submit an unpleaded claim to the jury, namely, a
claim that the Bednarski defendants "negligently hired" Dr. Willis. In so
doing, the Bednarski defendants argue, the trial court violated § 6-5-551,
Ala. Code 1975, which provides the following pertinent requirements for
medical-malpractice actions:
"The plaintiff shall include in the complaint filed in the action
a detailed specification and factual description of each act and
omission alleged by plaintiff to render the health care provider
liable to plaintiff and shall include when feasible and
ascertainable the date, time, and place of the act or acts. ...
Any party shall be prohibited from conducting discovery with
regard to any other act or omission or from introducing at trial
evidence of any other act or omission."
It is undisputed that Cortney's complaint did not include a claim of
5The Bednarski defendants also cite Weber v. Freeman, 3 So. 3d 825
(Ala. 2008), in support of their argument. Weber is also distinguishable
from the present case. As in Prior, the plaintiff in Weber sought to add a
claim against a hospital owner for vicarious liability based on the conduct
of a new party regarding a different occurrence than was alleged in the
original complaint. See Weber, 3 So. 3d at 834-35.
34
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"negligent hiring" against the Bednarski defendants. As Cortney points
out, the Bednarski defendants' argument can be summarized as a
contention that "evidence was injected improperly into the trial at three
points: 1) Dr. Bednarski's testimony; 2) [Cortney]'s closing argument; and
3) the jury instructions." Cortney's brief at 46. We consider each
contention in turn.
A. Testimony
With regard to Dr. Bednarski's testimony, the only portions of the
testimony with which the Bednarski defendants take issue are statements
elicited from Cortney's counsel indicating that Dr. Willis had covered a
couple of shifts for Dr. Bednarski at a different medical facility; that Dr.
Bednarski knew of Dr. Willis's background; and that Dr. Bednarski was
the person who hired Dr. Willis. Dr. Willis also testified in his deposition,
a video of which testimony was played at trial, that he had filled out an
application and was ultimately hired to work for AUC. The Bednarski
defendants cite no authority indicating that the admission of this evidence
constituted reversible error as a violation of § 6-5-551. As Cortney notes
in his brief, the evidence cited provided background for the claims
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asserted in his complaint, namely, that Dr. Willis was an agent of AUC,
which was an aspect of Cortney's claim that AUC was vicariously liable
for Dr. Willis's conduct.
B. Closing Arguments
The Bednarski defendants also take issue with statements made by
Cortney's counsel during closing arguments that, they say, demonstrate
that an unpleaded claim of "negligent hiring" was submitted to the jury.
Specifically, Cortney's counsel stated the following during closing
arguments:
"So the second way that Dr. Bednarski is liable to the plaintiffs
in this case is because he was the medical director of Auburn
Urgent Care at the time that all of these things occurred. As
the medical director, he, and only he, hired Dr. Willis. He said
he had met him a couple times over the years. A couple of
times over the years. He hires him. He puts him in his clinic
on the first day."
He also stated:
"It is a completely separate claim for the -- the medical
director piece. Was negligent training. Even negligent hiring.
Somebody saying he knew the guy for two days and just threw
him in there? I mean, what do you know about him? What
else did you do? He couldn't give us an explanation. I asked
Dr. Willis about it and I asked Dr. Bednarski about it. He
didn't have a clue. I mean, for all he knew, he could be an axe
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murderer and he would have never known. He just threw him
in there. And then negligent hiring. And then negligent
training. Yes. Okay. He is a doctor. I get it. He is a
professional. We are not -- you know -- but you have got to
know the processes. You have got to know things work. I
mean, I still think he is confused frankly about what the
process is."
In response to the Bednarski defendants' argument, Cortney does
not directly address all the statements quoted above, but he characterizes
the final reference to "negligent hiring" as "a blunder or misstatement."
Cortney's brief at 47. However, more significantly, Cortney goes on to
point out that the Bednarski defendants did not object to the statements
quoted above during trial. Cortney cites Baptist Medical Center Montclair
v. Whitfield, 950 So. 2d 1121, 1127 (Ala. 2006), for the standard of review
applicable to allegedly improper arguments of counsel:
"Generally, unless there is an objection and it is overruled,
'improper argument of counsel is not ground for new trial.'
Southern Life & Health [Ins. Co. v. Smith], 518 So. 2d [77,] 81
[(Ala. 1987)](citing Alabama Power Co. v. Henderson, 342 So.
2d 323, 327 (Ala. 1976), and Hill v. Sherwood, 488 So. 2d 1357,
1359 (Ala. 1986)). However, there is an exception to the
requirement that an objection must have been overruled in
order for improper argument of counsel to serve as the basis
for a new trial. A new trial may be granted based on improper
argument of counsel, even where no objection to the statement
was made, 'where it can be shown that counsel's remarks were
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so grossly improper and highly prejudicial as to be beyond
corrective action by the trial court.' Southern Life & Health,
518 So. 2d at 81. Thus, where the party seeking a new trial
does not object to allegedly improper argument by opposing
counsel, opposing counsel's statements can still serve as the
basis for a new trial if, in the trial court's opinion, those
statements are 'grossly improper and highly prejudicial.'
Southern Life & Health, 518 So. 2d at 81."
The Bednarski defendants do not address the standard of review
applicable to this alleged error in their principal appellate brief. In their
reply brief, the Bednarski defendants briefly respond to Cortney's
invocation of the foregoing standard of review by contending that, because
§ 6-5-551 provides a "broad privilege," the statements of Cortney's counsel
during closing arguments satisfied the "grossly improper" standard quoted
from Whitfield. The Bednarski defendants' reply brief at 23. They cite
Baptist Health System, Inc. v. Cantu, 264 So. 3d 41 (Ala. 2018), in support
of their argument.
Cantu, however, involved the presentation of evidence that was
expressly prohibited under the plain language of § 6-5-551. Cantu did not
involve statements of counsel made during closing arguments, and the
standard of review set out in the portion of Whitfield quoted above was
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not at issue in Cantu. Moreover, even assuming that Cantu is otherwise
applicable, the defendant in Cantu objected to the admission of the
evidence at issue. See 264 So. 3d at 49 ("[T]he trial court again granted
[the defendant] a continuing objection to the admission of each instance
of other-claims evidence ....").
Statements made during closing arguments are not evidence. See
Allstate Ins. Co. v. Ogletree, [Ms. 1180896, Feb. 5, 2021] ____ So. 3d ____,
____ n.3 (Ala. 2021). The record reflects that the trial court so instructed
the jury before Cortney's counsel began his closing argument in this case.
Because the Bednarski defendants did not object to the statements of
Cortney's counsel during closing arguments and because they have failed
to demonstrate that the statements were grossly improper, they have not
demonstrated that the trial court's judgment should be reversed based on
the statements.
C. Jury Instructions
Next, the Bednarski defendants argue that the trial court's
instructions to the jury reveal that a claim of "negligent hiring" was
submitted for the jury's consideration. In particular, the Bednarski
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defendants note that the trial court stated the following:
"The standard of care for an Urgent Care medical clinic
like Auburn Urgent Care is that level of reasonable care, skill,
and diligence or -- as other similarly situated Urgent Care
medical clinics in the same general line of practice, usually
following the same or similar circumstances. ...
"I think I have probably covered it, but the same -- the
same standard of care of -- for Dr. Bednarski and as Medical --
and as Medical Director of Auburn Urgent Care and charged
with hiring, supervising physicians of Auburn Urgent Care is
that level of reasonable care, skill, and diligence as similarly
situated medical directors in hiring and/or supervising
physicians and urgent medical cares in the same general line
of
practice
usually
following
the
same
or
similar
circumstances.
"Now, Cortney ... must prove by -- must prove by expert
testimony and -- expert testimony the standard that Dr.
Bednarski as Medical Director in hiring, supervising position
did not follow the standard of care in establishing processes,
procedures and protocols to insure patients that needed
medical attention would be examined, diagnosed and treated
by physicians [and that] the death of Hope ... was probably
caused by Dr. Bednarski's failure to follow that standard of
care."
In response to the Bednarski defendants' argument, Cortney asserts,
among other things, that the Bednarski defendants did not object to the
foregoing instructions. Specifically, after the trial court concluded its
instructions and before the jury retired to begin its deliberations, the trial
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court gave the parties an opportunity to object, and the Bednarski
defendants' counsel responded: "Satisfied."
Among other authority, Cortney cites Rule 51, Ala. R. Civ. P., which
states, in relevant part:
"No party may assign as error the giving or failing to give a
written instruction, or the giving of an erroneous, misleading,
incomplete, or otherwise improper oral charge unless that
party objects thereto before the jury retires to consider its
verdict, stating the matter objected to and the grounds of the
objection."
Thus, Cortney argues, the Bednarski defendants waived any challenge to
the trial court's instructions to the jury.
In response to Cortney's argument , the Bednarski defendants argue
in their reply brief that they adequately preserved their challenge to the
trial court's jury instructions because they challenged the sufficiency of
the evidence supporting all of Cortney's claims in their various motions for
a judgment as a matter of law. They contend that the inclusion of an
unpleaded "negligent hiring" claim in the jury instructions presented a
"good count/bad count" situation under § 6-5-551 and Long v. Wade, 980
So. 2d 378 (Ala. 2007), and that, under Long, a challenge to the sufficiency
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of the evidence was adequate to preserve their challenge to the jury
instructions.
Assuming for argument's sake that a "good count/bad count"
situation might have otherwise been presented under the circumstances
of this case, the Bednarski defendants overlook the fact that, in Long, the
defendants objected to the jury instructions at issue. See 980 So. 2d at
382 ("The defendants objected to these instructions ...."); 980 So. 2d at 387
("The defendants properly challenged the sufficiency of the evidence as to
each of the monitoring/delivery claims. The trial court erred, therefore,
in giving the jury -- over the defendants' objections -- the option of basing
liability upon an act or omission for which there was not substantial
evidence." (emphasis added)). Thus, the Bednarski defendants have failed
to demonstrate that their challenge to the trial court's jury instructions
was properly preserved for our review. Therefore, we cannot reverse the
trial court's judgment on this basis.
III. Expert-Witness Testimony
Next, the Bednarski defendants argue that the testimony of
Cortney's expert witness, Dr. Nicholas Bird, did not satisfy the
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requirements of § 6-5-548, Ala. Code 1975, which, among other things,
places upon plaintiffs in medical-malpractice cases the burden of proving
their claims by substantial evidence, which evidence generally must
include testimony from a health-care provider who is "similarly situated"
to the defendant or defendants. In particular, the Bednarski defendants
argue that Cortney failed to present substantial evidence indicating that
Dr. Bird had practiced hands-on urgent care "during the year preceding
the date that the alleged breach of the standard of care occurred," which,
they say, he was required to do. § 6-5-548(c)(4).
Among other things, Cortney argues in response that the Bednarski
defendants have waived any challenge to Dr. Bird's qualifications as an
expert witness because they did not object to the admission of his
testimony at the time it was offered during trial. In its postjudgment
order, the trial court stated: "[The Bednarski defendants] did not object to
[Cortney's] tendering Dr. Bird as an expert before the jury." See
HealthTrust, Inc v. Cantrell, 689 So. 2d 822, 826 (Ala. 1997)("Objections
must be 'raised at the point during trial when the offering of improper
evidence is clear,' see Charles W. Gamble, McElroy's Alabama Evidence
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§ 426.01(3) (5th ed. 1996)."); Youngblood v. Martin, 298 So. 3d 1056, 1060
(Ala. 2020)(" ' "[S]pecific objections or motions are generally necessary
before the ruling of the trial judge is subject to review, unless the ground
is so obvious that the trial court's failure to act constitutes prejudicial
error." ' ")(quoting Ex parte Works, 640 So. 2d 1056, 1058 (Ala. 1994),
quoting in turn Lawrence v. State, 409 So. 2d 987, 989 (Ala. Crim. App.
1982))); and Tracker Marine Retail, LLC v. Oakley Land. Co., 190 So. 3d
512, 520 (Ala. 2015)(" 'The trial court is not in error if inadmissible
testimony comes in without objection and without a ruling thereon
appearing in the record. The testimony is thus generally admissible and
not limited as to weight or purpose.' " (quoting Ex parte Neal, 423 So. 2d
850, 852 (Ala. 1982))).
When Cortney's counsel tendered Dr. Bird as an expert witness, the
trial court asked the Bednarski defendants' counsel: "Any voir dire or
anything? Any objection?" The Bednarski defendants' counsel responded:
"I don't have any objection based on what we have heard so far." Thus, it
appears that the Bednarski defendants expressly waived any challenge to
Dr. Bird's qualifications as an expert witness.
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In their reply brief, the Bednarski defendants argue that, by
challenging Dr. Bird's qualifications in their various motions for a
judgment as a matter of law, they adequately preserved their challenge
to Dr. Bird's qualifications. They rely primarily on Youngblood, 298 So.
3d at 1056, and Ex parte Garrett, 608 So. 2d 337 (Ala. 1992), in support
of their argument. However, unlike the Bednarski defendants, the
pertinent parties in those cases asserted at least some objection to the
evidence at issue when it was offered. See Youngblood, 298 So. 3d at 1060
("Dr. Youngblood objected multiple times to Dr. Doblar's testimony. When
Mr. Martin's counsel began to elicit testimony from Dr. Doblar during the
trial, Dr. Youngblood specifically argued that Mr. Martin's counsel had not
'laid the right predicate for [Dr. Doblar] to talk about his opinions or
concerns under [§] 6-5-548.' "); and Ex parte Garrett, 608 So. 2d at 338 n.2
("The dissent points out that only the most general objection was made at
the time the evidence was offered. ... Because the court ruled on the
merits of the objection rather than treating it as untimely or as too
general when initially made, we shall do so also." (emphasis added)).
Therefore, the Bednarski defendants have failed to demonstrate that they
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properly preserved for our review their challenge to Dr. Bird's
qualifications as an expert witness, and we cannot reverse the trial court's
judgment based on this argument.6
IV. Damages
The Bednarski defendants' last argument is that this Court should
reduce the trial court's punitive-damages award from $6.5 million to $1
million. In its postjudgment order, the trial court stated: "The jury
returned a verdict against Dr. ... Bednarski, [AUC], and Dr. David Willis
for $9 [million]. This award was [reached] after considering and
subtracting the $1 [million] settlement [Cortney] received from Dr.
Hensarling prior to trial." After conducting lengthy and detailed analyses
concerning the Bednarski defendants' various postjudgment arguments,
the trial court granted their motion for a remittitur and reduced the
damages awarded from $9 million to $6.5 million.
6The Bednarski defendants' principal appellate brief includes
separate sections arguing that this Court should render a judgment in
their favor or, in the alternative, order a new trial based on the arguments
addressed thus far. Because the foregoing arguments do not demonstrate
reversible error, we do not address the Bednarski defendants' separate
arguments concerning the relief they say is warranted.
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" 'In reviewing a punitive-damages award, we
apply the factors set forth in Green Oil [Co. v.
Hornsby, 539 So. 2d 218 (Ala. 1989)], within the
framework of the "guideposts" set forth in BMW of
North America, Inc. v. Gore, 517 U.S. 559, 116 S.
Ct. 1589, 134 L. Ed. 2d 809 (1996), and restated in
State Farm Mutual Automobile Insurance Co. v.
Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513, 155
L. Ed. 2d 585 (2003). See AutoZone, Inc. v.
Leonard, 812 So. 2d 1179, 1187 (Ala. 2001) (Green
Oil factors remain valid after Gore).
" 'The Gore guideposts are: "(1) the degree of
reprehensibility of the defendant's misconduct;
(2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the
punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable
cases." Campbell, 538 U.S. at 418, 123 S. Ct. 1513.
The Green Oil factors, which are similar, and
auxiliary in many respects, to the Gore guideposts,
are:
" ' "(1) the reprehensibility of [the
defendant's]
conduct;
(2)
the
relationship of the punitive-damages
award to the harm that actually
occurred, or is likely to occur, from [the
defendant's]
conduct;
(3)
[the
defendant's]
profit
from
[his]
misconduct;
(4)
[the
defendant's]
financial position; (5) the cost to [the
plaintiff] of the litigation; (6) whether
[the defendant] has been subject to
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criminal sanctions for similar conduct;
and
(7)
other
civil
actions
[the
defendant] has been involved in arising
out of similar conduct."
" 'Shiv-Ram, Inc. v. McCaleb, 892 So. 2d 299, 317
(Ala. 2003)(paraphrasing the Green Oil factors).'
"Ross v. Rosen-Rager, 67 So. 3d 29, 41-42 (Ala. 2010). ...
"....
" ' " '[T]he most important indicium of the
reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant's
conduct.' " [State Farm Mut. Auto. Ins. Co. v.]
Campbell, 538 U.S. [408] at 419[, 123 S. Ct. 1513,
155 L. Ed. 2d 585 (2003)](quoting Gore, 517 U.S. at
575[, 116 S. Ct. 1589]). ...
" ' "...."
" '....'
"Alabama River [Grp., Inc. v. Conecuh Timber, Inc.], 261 So.
3d [226,] 272 [(Ala. 2017)]."
Merchants FoodService v. Rice, 286 So. 3d 681, 708-09 (Ala. 2019). " 'This
Court reviews an award of punitive damages de novo.' Flint Constr. Co.
v. Hall, 904 So. 2d 236, 254 (Ala. 2004)." Rice, 286 So. 3d at 695.
On appeal, the Bednarski defendants argue that almost all the
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guideposts set out in BMW of North America, Inc. v. Gore, 517 U.S. 559
(1996), and almost all the factors set out in Green Oil Co. v. Hornsby, 539
So. 2d 218 (Ala. 1989), support a further remittitur of the punitive-
damages award, but they primarily focus on three: (1) reprehensibility, (2)
comparable cases, and (3) their financial position. We consider each in
turn.
A. Reprehensibility
The Bednarski defendants argue that "[t]here is no evidence of any
reprehensible conduct." The Bednarski defendants' brief at 64. In its
postjudgment order, the trial court spent almost five full pages explaining
the evidence supporting its conclusion that the Bednarski defendants'
conduct in this case was reprehensible. The Bednarski defendants do not
directly address the trial court's analysis, but, in summary, they generally
contend: (1) that their conduct was less reprehensible than that of Dr.
Hensarling and Dr. Willis because, they say, the care Dr. Bednarski
rendered to Hope on her first visit to the AUC clinic was adequate and
they had no reason to expect any problems with Dr. Willis's care on Hope's
second visit; (2) that Dr. Willis could have used Dr. Bednarski's login
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credentials to access AUC's electronic medical-records system on
December 3, 2014; (3) that Dr. Willis knew on December 3, 2014, that Dr.
Bednarski had treated Hope two days earlier; and (4) that what happened
with Hope was an isolated incident.
To summarize the trial court's findings, it determined that the
conduct of the Bednarski defendants was more reprehensible than the
conduct of either Dr. Hensarling or Dr. Willis because Dr. Hensarling's
breach of the standard of care could properly be classified as a " 'mere
accident' " and Dr. Willis's medical malpractice was the result of being
bewildered and overwhelmed on the first day of his job at the AUC clinic,
where he was asked to follow the established system or be discharged. By
contrast, the trial court found that the Bednarski defendants' conduct
contributing to Hope's death was the result of deliberate decisions
designed to maximize financial gain.
Specifically, the trial court found that the Bednarski defendants had
deliberately implemented a system that assigned only one doctor to the
AUC clinic and did not limit the number of patients that doctor could see
per shift, often resulting in one doctor seeing between 50 and 90 patients
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in one 12-hour shift. The trial court found that this system encouraged
doctors to take shortcuts and to make diagnostic guesses. It further found
that Dr. Bednarski had taken shortcuts when he had treated Hope on
December 1, 2014, by failing to properly document her medical record.
The trial court also found that Dr. Bednarski had instructed Dr. Willis not
to access the electronic medical-records system and that he had not given
Dr. Willis a code to do so because Dr. Bednarski did not want to pay for an
additional code. The trial court stated: "Dr. Bednarski created a business
model, not a healthcare model. It is a reasonable inference that the
business model was reckless and thus endangered the safety of patients."
The trial court further stated:
"This Court finds from the evidence and all reasonable
inferences to be drawn from the evidence that the degree of
reprehensibility is quite high. The case arose from a
healthcare setting, in which the patient must rely upon the
defendant doctor because the patient has no ability to make a
diagnosis, determine a treatment plan, and prescribe
appropriate medications. On December 1, 2014, Dr. Bednarski
told Hope to return to Auburn Urgent Care if she was worse in
a few days. [S]he returned, unbeknownst to her, with blood
clots in her lungs[,] and still she was not evaluated, diagnosed,
and treated. She came back to [the AUC clinic] because she
was told to come back for follow-up medical care. What she got
was anything but follow-up medical care. If she had been
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properly taken care of, she likely would be alive today."
We conclude that the trial court's findings with regard to the
reprehensibility of the Bednarski defendants' conduct are supported by
the record, and we conclude that, based on those findings, this factor
weighs in favor of affirming the damages awarded.
B. Comparable Cases
The Bednarski defendants argue that this Court is "constrained" to
view Cortney's $1 million settlement with Dr. Hensarling and Lee
OBGYN as a "highly credible benchmark" for the damages that should be
assessed against them. See Lance, Inc. v. Ramanauskas, 731 So. 2d 1204,
1220 (Ala. 1999)("We are constrained to observe that the opinions of able
counsel in an adversarial system as to the proper measure of damages, as
evidenced by the amounts paid in the pro tanto settlements, are highly
credible benchmarks upon which to rely in this case in attempting the
difficult task of fixing the appropriate amount of punitive damages.").
However, the Bednarski defendants' argument in this regard assumes
that the reprehensibility of their conduct was comparatively equal to, or
less than, that of Dr. Hensarling and Lee OBGYN. See Lance, 731 So. 2d
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at 1219-20 ("Lance's codefendants, who entered into pro tanto settlements
with the parents, paid a total of $10 million, $3 million less than the $13-
million jury verdict against Lance. The motel, the most culpable of the
defendants ..., settled for $7 million. Montgomery Coca-Cola, although
culpable because it admitted that it knew its machines at many locations
shocked people every year, which is more than Lance indicated it knew,
paid the substantially lesser sum of $3 million.").
In its postjudgment order, the trial court stated: "Under Lance ... the
Alabama Supreme Court seems to hold that defendants of lesser
reprehensibility should pay less of the punitive-damages award than those
whose conduct is found to be more reprehensible." As noted above, the
trial court found that Dr. Hensarling's conduct was "far less reprehensible
tha[n] the conduct" of the Bednarski defendants. Near the end of its
postjudgment order, the trial court elaborated:
"This Court finds upon consideration of all the evidence and
drawing all reasonable inferences from the evidence, and
watching all the witnesses and judging for itself the credibility
of each witness and the weight to be given the testimony of
each witness, the oral and written arguments of the parties,
and review of the applicable case law, that there is a very high
degree of reprehensibility of [the Bednarski defendants]'
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conduct that led to the death of Hope Johnson."
In light of the disparate conduct involved, the Bednarski defendants have
failed to demonstrate that the trial court was, or that this Court is,
obligated to view Cortney's $1 million settlement with Dr. Hensarling and
Lee OBGYN as a highly credible benchmark for determining the proper
amount of damages that should be awarded against the Bednarski
defendants.
Next, the Bednarski defendants argue that the $6.5 million in
damages awarded to Cortney by the trial court is impermissibly greater
than amounts awarded in comparable cases. They argue that the largest
wrongful-death judgment this Court has affirmed in a medical-malpractice
case since Gore is $4 million, in Boudreaux v. Pettaway, 108 So. 3d 486
(Ala. 2012). They further contend that the largest wrongful-death
judgment this Court has affirmed in any case since Gore is $6 million, in
Mack Trucks, Inc. v. Witherspoon, 867 So. 2d 307 (Ala. 2003). They assert
that this case should not be the one to " 'raise the bar.' " The Bednarski
defendants' brief at 68.
In its postjudgment order, the trial court considered the amounts
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awarded in comparable cases. In particular, the trial court found that the
circumstances of this case were "very similar" to those of Atkins v. Lee,
603 So. 2d 937 (Ala. 1992), in which this Court determined that an award
of $6.875 million was not impermissibly excessive. Specifically, the trial
court stated:
"This Court has already made findings of fact that Dr.
Bednarski created a health care system at [the] AUC [clinic]
that included one doctor for all patients, no orientation of
doctors, placement of doctors without training in the busiest
clinic setting without access to the [electronic medical records].
This is very similar to Atkins, where doctors with very little
training are allowed by the Hospital 'policy of no policy' to
handle very complicated patients, or in this case, more
patients than Dr. Willis was prepared and oriented to handle.
The degree of reprehensibility and the harm caused (death in
both cases) as a result the reprehensible conduct in a
healthcare delivery system are very similar. The Alabama
Supreme Court affirmed the Atkins jury verdict of [$6.875
million]. This Court is persuaded by the similarities between
Atkins and this case and the degree of reprehensibility."7
7The Bednarski defendants also argue that Atkins is factually
distinguishable because, in that case, evidence was presented indicating
that one of the defendants was aware of the impropriety of a procedure he
had performed and had attempted to conceal it. See Atkins, 603 So. 2d at
948. However, the defendant in Atkins referenced by the Bednarski
defendants was one of the doctors in that case. As noted above, in this
case, the trial court found that the conduct of the hospital in Atkins was
similar to that of the Bednarski defendants because their tortious policies
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The Bednarski defendants argue that Atkins is inapplicable because
it was decided before the United States Supreme Court's decision in Gore.
They cite Robbins v. Sanders, 927 So. 2d 777, 790 (Ala. 2005), in support
of this contention. However, the statement they quote from Robbins was
not a holding by this Court that all decisions released by this Court before
Gore was decided are irrelevant for the purpose of applying the
"comparable cases" guidepost. Rather, the portion of Robbins quoted on
page 68 of their principal appellate brief was a comment regarding a
statement from this Court's previous decision in Central Alabama Electric
Cooperative v. Tapley, 546 So. 2d 371, 377 (Ala. 1989), concerning
punitive damages, defendants' net worth, and how Gore had impacted
those considerations. See Robbins, 927 So. 2d at 790.
The trial court also considered the Bednarski defendants' argument
that Atkins was irrelevant to its assessment of comparable cases. It
reasoned as follows:
"[The Bednarski defendants] argue that pre-Gore
and practices were analogous, not because of similar attempts at
concealing tortious conduct.
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decisions should not be considered. However, Gore was not
even a wrongful death case, and there is no indication that
Gore would have changed the appellate court's decision in
Atkins or any other pre-Gore decision including Burlington No.
R.R. v. Whitt, 575 So. 2d 1011 (Ala. 1990)(remitting a $15
million-dollar wrongful death verdict to $5 million), and G.M.
v. Johnston, 582 So. 2d 1054 (Ala. 1992)(remitting a $15
million wrongful death product liability verdict to $7.5
million). What Gore did was impose the reprehensibility
guidepost in the verdict review process. However, Alabama
under Green Oil, decided in 1989 before the Gore decision in
1996, was already considering this factor in its verdict review."
The Bednarski defendants have failed to demonstrate that the trial court's
judgment should be reversed for considering Atkins in its analysis of cases
comparable to this case.8
C. Financial Position
The Bednarski defendants next argue that their financial condition
"warrants a massive reduction" of the trial court's damages award. The
8On appeal, Cortney includes in his brief a table of cases ranging
from 1986 to 2003 and argues that, for the purpose of applying the
"comparable cases" guidepost, the awards in those cases should be
adjusted for inflation, after which, he says, the $6.5 million award in this
case "is absolutely consistent with prior awards." Cortney's brief at 62-63.
According to Cortney's calculations, the award in this case would actually
be the lowest of the awards noted. Because the Bednarski defendants
have failed to demonstrate reversible error by the trial court on this issue,
we need not decide whether to adopt Cortney's inflation argument.
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Bednarski defendants' brief at 69. They assert that their financial
condition "was the subject of extensive post-trial discovery and briefing"
and that approximately 6,000 pages of financial documents were filed
under seal in the trial court. Id. Those documents are not contained
within the record on appeal, but the Bednarski defendants contend that
they are "available to this Court," apparently upon direct request to the
trial court. Id. According to the Bednarski defendants, their net worth is
approximately $1.3 million. They note that they have a $1 million
liability-insurance policy. The Bednarski defendants' brief at 69.
The trial court's postjudgment order contains approximately three
pages addressing the Bednarski defendants' financial position. After
summarizing the evidence presented, the trial court stated:
"[T]he evidence before the Court is highly disputed, and there
seems no way to resolve the dispute. Therefore, after
consideration of all this evidence, without better financial
reports, the Court is uncertain as to the actual net worth of Dr.
Bednarski and [AUC], individually and collectively. The Court
is certain that these defendants do not have net worths enough
to pay this judgment and probably have less than $5 [million]
but more than $1 [million] in net worths. Beyond estimating
this range, it is very difficult to make a finding more exact
than this."
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The Bednarski defendants cite Wilson v. Dukona Corp, N.V., 547 So.
2d 70 (Ala. 1989), for the proposition that " 'any punitive damages award'
that results in a negative net worth 'would do nothing to further society's
goals of punishment and deterrence.' Id. at 72, 74." The Bednarski
defendants' brief at 71. Wilson, however, was not a wrongful-death case;
it involved the wrongful cutting of timber. In a medical-malpractice
wrongful-death case, this Court has previously affirmed a punitive-
damages award that exceeded the defendant's present net worth. See
Campbell v. Williams, 638 So. 2d 804, 818 (Ala. 1994)("[A]fter deducting
from the $4 million verdict the $1 million settlement between the Hospital
and the plaintiff and the $1 million in insurance coverage held by Dr.
Campbell, Dr. Campbell would be personally liable for $2 million. Dr.
Campbell's financial statements submitted to the court indicated that his
net worth in 1992 was over $1 million and that his annual income
exceeded $525,000. The trial court, stating in its order that 'the purpose
of punitive damages is not to destroy but rather to meet societal goals [of
punishment and deterrence],' concluded that the impact of the verdict on
Dr. Campbell was not sufficient to overcome the presumption of
59
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correctness in favor of the jury's verdict.").
This Court has indicated that the purpose of a punitive-damages
award should generally be to deter, but not financially "destroy," the
wrongdoer. Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1260 (Ala.
2008). However, "[a] verdict awarding punitive damages is not considered
to be unconstitutionally excessive until the defendant against whom it has
been rendered produces evidence that the amount is greater than a sum
necessary to accomplish society's goals of punishment and deterrence."
Fraser v. Reynolds, 588 So. 2d 448, 452 (Ala. 1991).
"[O]ur cases have held that a defendant's failure to produce
evidence of its net worth effectively negates the benefit to the
defendant of the relationship factor. In other words, a
defendant cannot argue as a basis for reducing the
punitive-damages award that the award 'stings' too much, in
the absence of evidence of the defendant's financial status."
Ex parte Vulcan Materials Co., 992 So. 2d at 1261.
Although
the
Bednarski
defendants
apparently
presented
voluminous financial documentation to the trial court, the trial court's
postjudgment order indicates that, on the whole, it did not find the
evidence presented to be particularly probative in accurately ascertaining
60
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their current financial position. Therefore, it is unclear from the trial
court's postjudgment order whether the $6.5 million award will actually
financially "destroy" the Bednarski defendants.
Notably, although the trial court appears to have been certain that
the Bednarski defendants did not possess assets totaling $6.5 million at
the time of the entry of the postjudgment order, the actual value of AUC
as a going concern is unclear. See Boudreaux v. Pettaway, 108 So. 3d 486,
505 (Ala. 2012)("[B]oth Boudreaux and Coastal appear to have sufficient
assets and/or income to allow them to pay the remitted award." (emphasis
added)), overruled on other grounds, Gillis v. Frazier, 214 So. 3d 1127,
1133 (Ala. 2014). In its postjudgment order, the trial court also noted
that, at some point, Dr. Bednarski had reported the value of AUC as $10
million in conjunction with a business-loan application, although the
Bednarski defendants' accountant had "assessed the value as being much
lower." Additionally, the trial court also noted that, after Hope's death,
AUC had reported a significant reduction in revenue in 2019 "that was
only ever explained to the Court during hearings as being due to increased
competition." The trial court further stated that it "did find some of the
61
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raw documents provided helpful."
The burden of clearly establishing their financial position fell on the
Bednarski defendants, and we have been presented with no basis to
conclude that the trial court erred in its determination that they did not
meet that burden. See Ross v. Rosen-Rager, 67 So. 3d 29, 44-45 (Ala.
2010)(stating the following with regard to this factor: "Although Ross
values his assets at $1,167,000, his testimony at the ... hearing regarding
his financial condition was confusing, at best, and failed to establish
anything definitive regarding his status. (Green Oil factor (4).) In that
connection, the circuit court stated: 'Ross has not provided this court
credible evidence upon which to fully judge his financial condition.' ").
At the conclusion of its postjudgment order, the trial court stated:
"[T]he Court cannot reduce this verdict below $5 [million]
because to do so would give greater weight to the low net
worths over the extreme reprehensibility of the [Bednarski
defendants]' conduct.
"WHEREFORE, all the evidence and above premises
considered, this Court grants the Motions for Remittitur and
remits the jury verdict to $6.5 [million]."
(Emphasis in original.) Without a more definitive showing by the
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Bednarski defendants that the trial court's punitive-damages award will
actually financially "destroy" them, we conclude that a further remittitur
of the award is not warranted based on this factor alone, especially in
light of the trial court's findings with regard to the reprehensibility of the
conduct forming the basis of this action.
D. Other Factors
Finally, the Bednarski defendants argue that other Gore guideposts
and Green Oil factors are inapplicable in this case. Specifically, they
argue that, because this is a wrongful-death case, any comparison of the
ratio between compensatory damages and punitive damages is
inapplicable because an award of compensatory damages for a death is
impermissible in Alabama. See Tillis Trucking Co. v. Moses, 748 So. 2d
874, 890 (Ala. 1999). They also note that there have been no other civil
actions or criminal sanctions for their conduct and that Cortney's costs in
litigating this case were $121,621.29, which is obviously far less than the
$6.5 million in damages awarded by the trial court.
The Bednarski defendants also argue that they did not profit from
their conduct. In so doing, they ignore another finding reached by the
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trial court in its postjudgment order:
"This Court finds that there is a significant financial
motive in this business model. Following this business model,
instead of doing the math of how many patients per doctor the
standard of care dictates, [AUC] profits at least as much as Dr.
Willis was paid, or $1,200 for a 12-hour shift. It is also clear
that the more patients that can be seen in one day, the more
profitable the clinic, assuming the clinic payroll expenses
remain steady. Not paying for logins has an additional cost
savings.
"The Court also finds that this was not a new business
model for [AUC]. This was a business model that continued
throughout the time that Dr. Willis worked there. Ultimately,
Dr. Willis was fired because he did not fit into that model -- he
simply worked too slow. The amount of profit that was made
by continuation of the model for that duration is significant --
at least $1,200 per day for the duration of flu season would be
just a rough estimate."
In light of the evidence referenced in the trial court's postjudgment order
concerning the Gore guideposts and Green Oil factors, we deny the
Bednarski defendants' request for a further remittitur of the damages
awarded by the trial court from $6.5 million to $1 million.
Conclusion
For the reasons explained above, the trial court's judgment is
affirmed. The Bednarski defendants have failed to demonstrate that they
64
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are entitled to a judgment as a matter of law, based on the applicable
statute of limitations, with regard to Cortney's claim predicated on Dr.
Willis's conduct or his failure-to-train/supervise claim. Moreover, the
Bednarski defendants have failed to demonstrate that evidence concerning
an unpleaded claim of "negligent hiring" was permitted in violation of §
6-5-551. Regarding the allegedly erroneous statements made by Cortney's
counsel during closing arguments and the trial court's allegedly erroneous
instructions to the jury, the Bednarski defendants have failed to
demonstrate that objections to those alleged errors were adequately
preserved for this Court's review on appeal. Likewise, the Bednarski
defendants have failed to demonstrate that they adequately preserved for
our review their challenge to the qualifications of Cortney's expert
witness. Finally, the Bednarski defendants have failed to demonstrate
that the $6.5 million in damages awarded by the trial court, after granting
a remittitur, remained impermissibly excessive.
AFFIRMED.
Shaw, Bryan, Mendheim, and Stewart, JJ., concur.
Parker, C.J., concurs specially.
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Bolin and Mitchell, JJ., concur in part and dissent in part.
Sellers, J., dissents.
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PARKER, Chief Justice (concurring specially).
In concurring in the main opinion, I understand the opinion's
discussion of "the actual value of AUC as a going concern" as referring to
the potential relevance of AUC's present and potential future income,
which may or may not have been factored into Dr. Bednarski's and the
accountant's reported values. I agree that, for purposes of determining a
defendant's financial position, the analysis should not be limited to net
worth but should include the defendant's whole financial picture,
including present and potential future income.
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MITCHELL, Justice (concurring in part and dissenting in part).
I concur in sections I, II, and III of the analysis in the majority
opinion, which reject the arguments made by Dr. Zenon Bednarski and
Auburn Urgent Care, Inc. ("AUC") (collectively referred to as "the
Bednarski defendants"), that they are entitled to judgment as a matter of
law or a new trial. But I respectfully dissent from section IV, which
denies the Bednarski defendants' request for a further remittitur of the
punitive damages awarded by the trial court. In my view, the $6.5 million
awarded here is excessive and is inconsistent with our caselaw applying
the guideposts prescribed by BMW of North America, Inc. v. Gore, 517
U.S. 559 (1996), and the factors set out in Green Oil Co. v. Hornsby, 539
So. 2d 218 (Ala. 1989), that must be considered when a court reviews an
award of punitive damages. Specifically, I believe the trial court erred in
its analysis concerning: (1) the reprehensibility of the Bednarski
defendants' conduct and (2) the amount of punitive damages awarded in
comparable cases.
Reprehensibility
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A court reviewing a punitive-damages award is required under both
Gore and Green Oil to consider the reprehensibility of the defendant's
conduct. Gore, 517 U.S. at 575; Green Oil, 539 So. 2d at 223. Indeed, this
Court has recognized that reprehensibility "is the single most important
factor in the remittitur analysis." Pensacola Motor Sales, Inc. v. Daphne
Auto., LLC, 155 So. 3d 930, 949 (Ala. 2013).
The trial court's consideration of the reprehensibility of the
Bednarski defendants' conduct focused almost entirely on evidence
indicating that there were too few employees at the AUC clinic relative to
the number of patients being treated. Under this view of the evidence,
those employees -- including a single physician new to the practice -- were
required to attend to too many patients too quickly, increasing the
possibility that any single patient would not be properly evaluated,
diagnosed, and treated. The trial court reasoned that Dr. Bednarski had
created "a business model, not a healthcare model," and that this business
model "was reckless and thus endangered the safety of patients." In
conclusion, the trial court found "from the evidence and all reasonable
69
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inferences to be drawn from the evidence that the degree of
reprehensibility is quite high." I disagree with that characterization.
When assessing reprehensibility under Gore, courts must consider
whether: (1) the harm caused was physical as opposed to economic; (2) the
tortious conduct evinced an indifference to or a reckless disregard of the
health or safety of others; (3) the target of the conduct was financially
vulnerable; (4) the conduct involved repeated actions or was an isolated
incident; and (5) the harm was the result of intentional malice, trickery,
deceit, or mere accident. State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 419 (2003). And, under Green Oil, a court evaluates
reprehensibility by considering: (1) the duration of the conduct; (2) the
defendant's awareness of any hazard that conduct has caused or is likely
to cause; (3) any concealment or "cover-up" of the hazard; and (4) the
existence and frequency of similar past conduct. 539 So. 2d at 223. The
overarching principle here is that the reprehensibility of a defendant's
conduct is directly related to the defendant's degree of culpability. And
punitive damages may increase in accordance with that degree of
culpability. See Gore, 517 U.S. at 580 (explaining, at the conclusion of the
70
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reprehensibility analysis, that a "high degree of culpability" is needed to
justify "a substantial punitive damages award").
This view is consistent with our longstanding caselaw deciding
wrongful-death actions. See, e.g., Patrick v. Mitchell, 242 Ala. 414, 416,
6 So. 2d 889, 890 (1942) (stating that "all damages allowed in cases of this
character are punitive and should be measured by the quality of the
wrongful act, and the degree of culpability involved"); Parke v. Dennard,
218 Ala. 209, 215, 118 So. 396, 401 (1928) (explaining that in wrongful-
death cases "[t]he admeasurement of the recovery must be by reference to
the quality of the wrongful act and the degree of culpability involved");
see also Lowe v. General Motors Corp., 624 F.2d 1373, 1382 (5th Cir.
1980) ("The damages recoverable under [Alabama's wrongful-death
statute, § 6-5-410, Ala. Code 1975], therefore, depend upon the 'quality of
the wrongful act and the degree of culpability involved.' " (citation
omitted)).9
9The link between punitive damages and the defendant's degree of
culpability is further evidenced by the fact that, outside wrongful-death
actions, punitive damages are available only in tort actions in which the
defendant has a heightened degree of culpability. See § 6-11-20, Ala. Code
71
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The trial court here concluded that the Bednarski defendants had
acted recklessly:
"Based on the testimony and all the inferences that can
reasonably be drawn, this court finds that [the Bednarski
defendants'] conduct, while not rising to the level of intentional
malice, was no mere accident, and in fact, displayed reckless
disregard for the health and safety of all patients seen at [the]
AUC [clinic]."
Thus, the degree of culpability attributed to the Bednarski defendants by
the trial court is higher than if they had simply been negligent -- but less
than if they had acted with malice or the specific intent to cause injury.
In the absence of any evidence of "intentional malice, trickery, or deceit,"
see Campbell, 538 U.S. at 419 (citing Gore, 517 U.S. at 576-77), I cannot
agree with the trial court's conclusion that "the degree of reprehensibility
1975 (authorizing punitive damages only if it is proven that "the
defendant consciously or deliberately engaged in oppression, fraud,
wantonness, or malice with regard to the plaintiff"). See also Lafarge
North America, Inc. v. Nord, 86 So. 3d 326, 335 (Ala. 2011) ("Punitive
damages cannot be awarded on a negligence claim."). Wrongful-death
actions are unique because punitive damages may be awarded " 'without
regard to the degree of culpability,' " Tillis Trucking Co. v. Moses, 748 So.
2d 874, 899 (Ala. 1999) (citation omitted), but, as explained above, the
amount of punitive damages awarded must still be related to the degree
of culpability.
72
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is quite high." Such a conclusion should be reserved for the most
egregious cases and is unjustified here in light of the Bednarski
defendants' degree of culpability.10 Accordingly, I believe the Bednarski
defendants are entitled to a further remittitur of the award entered
against them -- if a "quite high" level of reprehensibility merits a $6.5
million award, a lesser level of reprehensibility surely merits a reduced
award.
Comparable Cases
In accordance with the third Gore guidepost, a court reviewing a
punitive-damages award must also consider "the difference between the
punitive damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases." Campbell, 538 U.S. at 418. This Court
has previously explained that this guidepost requires a court to "compare
the damages awarded in [the case before it] to damages awarded in
10In certain instances, it might be appropriate based on other factors
in the reprehensibility analysis to find a higher level of reprehensibility,
even without the highest degree of culpability. But that's not the case
here. Notably, there is no evidence that the Bednarski defendants'
conduct resulted in other deaths or that they were deceitful and tried to
conceal their conduct.
73
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similar cases." Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1219 (Ala.
1999). The Bednarski defendants make a compelling argument that this
guidepost points to further remittitur of the $6.5 million award.
The Bednarski defendants first note that, post-Gore, the largest
award of damages this Court has affirmed in a medical-malpractice
wrongful-death action is $4 million. See Boudreaux v. Pettaway, 108 So.
3d 486 (Ala. 2012).11 They further state that the largest award of damages
that this Court has affirmed in any wrongful-death action since Gore is $6
million. See Mack Trucks, Inc. v. Witherspoon, 867 So. 2d 307 (Ala. 2003).
Finally, they argue that, considering the facts of the case and the Gore
guideposts and Green Oil factors, this is not the case that should " 'raise
the bar.' " Bednarski defendants' brief at 68.
The appellee Cortney Johnson, as the administrator of the estate of
Hope Johnson, does not dispute the Bednarski defendants' presentation
11Although this Court affirmed a $4 million award in Boudreaux, it
held two years later in Gillis v. Frazier, 214 So. 2d 1127, 1133-34 (Ala.
2014), that its analysis of the Green Oil factor concerning the relationship
between the punitive damages awarded and the defendant's financial
position in Boudreaux was flawed.
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of our post-Gore caselaw. Instead, Cortney includes in his brief a chart of
eight wrongful-death cases in which this Court affirmed punitive-damages
awards.12 Cortney's brief at 63. This chart lists the amount of punitive
damages awarded in each case, along with the present-day value of that
award after being adjusted for inflation.13 The present-day value of those
eight awards ranges from $7 million to $13.9 million; thus, Cortney
asserts, the $6.5 million award in this case is "absolutely consistent" with
those awards and is due to be affirmed. Id. at 64. I disagree.
The third Gore guidepost requires us to consider the $6.5 million
award before us in relation to awards entered in comparable cases. Yet
seven of the eight cases Cortney cites predate Gore and the eighth -- Mack
12See Black Belt Wood Co. v. Sessions, 514 So. 2d 1249 (Ala. 1986);
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.
1989); Burlington N. R.R. v. Whitt, 575 So. 2d 1011 (Ala. 1990); General
Motors Corp. v. Johnson, 592 So. 2d 1054 (Ala. 1992); Atkins v. Lee, 603
So. 2d 937 (Ala. 1992); Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018
(Ala. 1993); Campbell v. Williams, 638 So. 2d 804 (Ala. 1994); Mack
Trucks.
13To calculate the inflation-adjusted values, Cortney states that he
used a calculator developed for that purpose by the United States
Department of Labor, which is currently available to the public at:
https://www.bls.gov/data/inflation_calculator.htm.
75
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Trucks -- is not a medical-malpractice case. With regard to those seven
pre-Gore cases, this Court has previously questioned the continued
relevance of caselaw that "antedates the more definitive pronouncements
by the United States Supreme Court concerning considerations that must
attend an assessment of the possible excessiveness of punitive damages,
beginning with [Gore]." Robbins v. Sanders, 927 So. 2d 777, 790 (Ala.
2005). Nevertheless, the trial court decided to consider pre-Gore decisions
when looking at comparable cases, stating that "Gore was not even a
wrongful death case, and there is no indication that Gore would have
changed the appellate court's decision in Atkins [v. Lee, 603 So. 2d 937
(Ala. 1992),] or any other pre-Gore decision."
This ignores the reality that Gore came about only because punitive-
damages awards in Alabama had been increasing both in frequency and
magnitude -- out of step with the rest of the country -- in the years
preceding that decision. See generally George L. Priest, Punitive
Damages Reform: The Case of Alabama, 56 La. L. Rev. 825, 825 (1996)
("[B]eginning in the early 1990s, punitive damages verdicts increased in
Alabama both in frequency and magnitude."); Nathan C. Prater, Punitive
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Damages in Alabama: A Proposal for Reform, 26 Cumb. L. Rev. 1005
(1996). Indeed, it has been noted that, "[f]rom 1990 to 1994, Alabama
juries awarded punitive damages nearly ten times more often than the
national average." David E. Hogg, Alabama Adopts De Novo Review for
Punitive Damage Appeals: Another Landmark Decision Or Much Ado
About Nothing, 54 Ala. L. Rev. 223, 224 (2002).
Five of the eight cases identified by Cortney as comparable cases
were decided within that early 1990s period when punitive-damages
awards were at their apex in Alabama. After the United States Supreme
Court explained in Gore that such awards violated the due-process rights
of defendants, it cannot reasonably be disputed that this Court -- applying
the framework set forth in Gore -- began to more closely review and rein
in excessive awards. See Hogg, Alabama Adopts De Novo Review for
Punitive Damage Appeals, 54 Ala. L. Rev. at 227 (noting that "the impact
of the Gore decision was soon apparent in Alabama in the magnitude of
awards and their remittitur" and that "[t]he first ten cases decided on
appeal after Gore (including Gore on remand) proved the Alabama
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Supreme Court's readiness to limit damages it considered excessive").14
Thus, the pre-Gore cases cited by Cortney are, at best, of limited relevance
when comparing the $6.5 million award here to awards made in other
cases.15 Rather, our analysis of comparable cases under the third Gore
guidepost should be focused on cases decided after Gore that properly
apply the framework developed in that case.
Conclusion
The majority today affirms a $6.5 million award of punitive
damages, setting a new post-Gore high-water mark for a punitive-
damages award in a medical-malpractice wrongful-death case -- or any
14The fact that Cortney has chosen to emphasize almost exclusively
pre-Gore decisions when discussing the comparable-case guidepost is itself
evidence that our jurisprudence has meaningfully evolved post-Gore.
15The trial court's emphasis on Atkins v. Lee, 603 So. 2d 937 (Ala.
1992), is particularly problematic. In that 1992 opinion, authored by
former Chief Justice Sonny Hornsby, the Court affirmed a $6.875 million
award of punitive damages. 603 So. 2d at 939. That decision came
squarely within the period when punitive-damage awards in Alabama
were at their highest. And there was evidence in Atkins that the
physician whose negligent act had injured the victim had later tried to
conceal his conduct and that this deception might have been what
ultimately led to the victim's eventual death. Id. at 948. By contrast,
there was no comparable evidence of deceit or concealment in this case
that might justify a higher level of punitive damages. See note 10, supra.
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wrongful-death case for that matter. That is more than 60% above the $4
million award affirmed in Boudreaux.16 In my view, such an award is not
justified by the facts of this case, nor is it consistent with the principles
articulated in Gore and Green Oil. I would instead remand this case to
the trial court with instructions to consider a further remittitur after
reevaluating the evidence of reprehensibility and assessing truly
comparable cases.
Bolin, J., concurs.
16Even adjusting the $4 million award in Boudreaux by using the
same inflation calculator used by Cortney, the award being affirmed today
is 37% higher than the award affirmed in Boudreaux.
79 | September 30, 2021 |
fd53e1e3-d108-4074-b75a-e6d4b4b9ce85 | Ex parte J.A.W. | N/A | 1200868 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200868
Ex parte J.A.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.A.W. v. C.M.K.) (Mobile Juvenile Court:
JU-16-141.02; Civil Appeals :
2200333).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
1912a127-4713-4459-8c3b-433ab2a22534 | Cardell Coachman, a deceased minor, by and through his mother and next friend Johnitia Coachman v. Rucker Place, LLC, and Savoie Catering, LLC | N/A | 1190102 | Alabama | Alabama Supreme Court | 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 |
72d81097-1bda-41f9-a886-c377963ce215 | Ex parte M. C. | N/A | 1200830 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200830
Ex parte M. C. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: M. C. v. State of Alabama) (Shelby Circuit
Court: CC-17-476; CC-17-477; CC-17-480; Criminal Appeals :
CR-20-0034).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
2a7d3c56-8a9d-49f7-9e83-9824645d5b52 | Ex parte American Builders & Contractors Supply Co., Inc. | N/A | 1200046 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 5, 2021
1200046
Ex parte American Builders & Contractors Supply Co., Inc. PETITION FOR WRIT
OF MANDAMUS: CIVIL (In re: Alabama Municipal Insurance Corporation, as
subrogee of the City of Florala v. American Builders & Contractors Supply Co., Inc.)
(Covington Circuit Court: CV-20-900040).
ORDER
The petition for writ of mandamus in this cause is denied.
STEWART, J. - Bolin, Wise, Bryan, Sellers, and Mendheim, JJ., concur.
Parker, C.J., and Shaw, and Mitchell, JJ., dissent.
Witness my hand this 5th day of November, 2021.
/ra | November 5, 2021 |
795b5211-7b61-42c8-9879-63f4ceb42bcd | Ex parte John Jones. | N/A | 1200895 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
December 3, 2021
1200895
Ex parte John Jones. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: John Jones v. State of Alabama)
(Dallas Circuit Court: CC-14-193; Criminal Appeals : CR-19-0485).
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 |
d1d3d17b-84eb-4f30-ad30-94c020fccb7b | Ex parte Sherman Collins | N/A | 1200443 | Alabama | Alabama Supreme Court | REL: November 5, 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
____________________
1200443
____________________
Ex parte Sherman Collins
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Sherman Collins
v.
State of Alabama)
(Sumter Circuit Court, CC-12-109;
Court of Criminal Appeals, CR-14-0753)
1200443
MENDHEIM, Justice.
Sherman Collins petitioned this Court for a writ of certiorari to
review the Court of Criminal Appeals' decision in Collins v. State, [Ms.
CR-14-0753, Oct. 13, 2017] ___ So. 3d ___ (Ala. Crim. App. 2017) (opinion
on original submission); [Ms. CR-14-0753, July 13, 2018] ___ So. 3d at ___
(opinion on return to remand); [Ms. CR-14-0753, Oct. 25, 2019] ___ So. 3d
at ___ (opinion on return to second remand); and [Ms. CR-14-0753,
Mar. 12, 2021] ___ So. 3d at ___ (on application for rehearing), affirming
Collins's convictions in the Sumter Circuit Court for capital murder for the
intentional killing of Detrick Bell for pecuniary gain, a violation of
§ 13A-5-40(a)(7), Ala. Code 1975, and for criminal conspiracy, a violation
of § 13A-4-3, Ala. Code 1975, and affirming his resulting sentences of
death for his capital-murder conviction and of 120 months' imprisonment
for his criminal-conspiracy conviction. We granted certiorari review to
consider whether the Court of Criminal Appeals' decision is in conflict
with Blockburger v. United States, 284 U.S. 299 (1932); we conclude that
it is. As a result, we affirm the Court of Criminal Appeals' decision
insofar as it affirms Collins's capital-murder conviction and his resulting
2
1200443
sentence to death and we reverse the Court of Criminal Appeals' decision
insofar as it affirms Collins's criminal-conspiracy conviction and his
resulting sentence to 120 months' imprisonment. We also remand this
cause to the Court of Criminal Appeals to remand the cause to the trial
court to set aside Collins's criminal-conspiracy conviction and resulting
sentence.
Facts and Procedural History
An extensive recitation of the facts, which is not necessary for our
purposes in this case, is set forth in Collins. In short, on June 17, 2012,
Collins entered into an agreement with Kelvin Wrenn to kill Detrick
"Speedy" Bell in exchange for $2,000, and, in accordance with the
agreement, Collins shot and killed Bell. Collins confessed to entering into
an agreement with Wrenn to kill Bell and to killing Bell. Collins was
charged and, following a jury trial, convicted of capital murder for the
intentional killing of Bell for pecuniary gain, a violation of
§ 13A-5-40(a)(7), and of criminal conspiracy, a violation of § 13A-4-3.
Collins was sentenced to death for his capital-murder conviction and to
3
1200443
120 months' imprisonment for his criminal-conspiracy conviction. Collins
appealed.
In affirming Collins's convictions on appeal, the Court of Criminal
Appeals noted the following:
"Collins's convictions for capital murder and conspiracy
to commit murder do not violate the Double Jeopardy Clause.
As this Court stated in Williams v. State, 830 So. 2d 45 (Ala.
Crim. App. 2001), when considering whether Williams's
convictions for robbery/murder and conspiracy to commit first-
degree robbery constituted a double-jeopardy violation:
" 'Under § 13A-4-3, [Ala. Code 1975,] "[a]
person is guilty of criminal conspiracy if, with the
intent that conduct constituting an offense be
performed, he agrees with one or more persons to
engage in or cause the performance of such
conduct, and any one or more of such persons does
an overt act to effect an objective of the
agreement." On the other hand, an objective of
murder made capital pursuant to § 13A-5-40(a)(2),
[Ala. Code 1975,] requires no agreement to effect
that offense. See §§ 13A-6-2(A)(1); 13A-8-41; and
13A-8-43, Ala. Code 1975. Likewise, the offense of
murder made capital pursuant to § 13A-5-40(a)(2)
requires proof of an intentional killing; § 13A-4-3
requires no such proof. Clearly, the two offenses
for which the appellant was convicted and
sentenced are not the same under the Blockburger
[v. United States, 284 U.S. 299 (1932),] test.
Therefore, we find no merit in the appellant's
4
1200443
argument that his rights under the Double
Jeopardy Clause were violated.'
"Williams, 830 So. 2d at 48."
Collins, ___ So. 3d at ___ n.6 (opinion on original submission).
Standard of Review
" ' "This Court reviews pure questions of law in criminal cases
de novo." ' " Ex parte Knox, 201 So. 3d 1213, 1216 (Ala. 2015) (quoting
Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004), quoting in turn
Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003)).
Discussion
As noted above, this Court granted certiorari review to consider
whether the above-quoted portion of the Court of Criminal Appeals'
decision is in conflict with Blockburger, supra. In his brief before this
Court, Collins argues that the Court of Criminal Appeals' decision is in
conflict with Blockburger because, he argues, "[t]he offense of capital
murder for hire, as charged in this case under Ala. Code [1975,]
§ 13A-5-40(a)(7), encapsulates the offense of conspiracy to commit
murder." Collins's brief at p. 12. Collins argues that the crime of criminal
5
1200443
conspiracy defined in § 13A-4-3(a) is a lesser-included offense of murder
for hire as defined in § 13A-5-40(a)(7). Collins argues that his convictions
and sentences for murder for hire and for criminal conspiracy violate
double-jeopardy principles. Collins is correct.
In Williams v. State, 830 So. 2d 45 (Ala. Crim. App. 2001), the case
relied upon by the Court of Criminal Appeals below, the Court of Criminal
Appeals provided the following explanation of the Blockburger test:
"The established test for determining whether two
offenses are sufficiently distinguishable to permit the
imposition of cumulative punishment was stated in
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76
L. Ed. 306 (1932). Where the same act or transaction
constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses
or only one is whether each provision requires proof of an
additional fact that the other does not. The test emphasizes
the elements of the two offenses. If each offense requires proof
of a fact that the other does not, then the Blockburger test is
satisfied, notwithstanding a substantial overlap in the proof
offered to establish the offenses. In essence, the Blockburger
rule is one of statutory construction. The assumption
underlying the rule is that the legislative branch of
government ordinarily does not intend to punish for the same
offense under two different statutes. Therefore, where two
statutory provisions proscribe the 'same offense,' they are
construed not to authorize cumulative punishments, at least
in the absence of a clear indication of contrary legislative
intent. See Ex parte Rice, 766 So. 2d 143 (Ala. 1999)."
6
1200443
830 So. 2d at 47-48.
Under § 13A-4-3(a),
"[a] person is guilty of criminal conspiracy if, with the intent
that conduct constituting an offense be performed, he agrees
with one or more persons to engage in or cause the
performance of such conduct, and any one or more of such
persons does an overt act to effect an objective of the
agreement."
Section 13A-5-40(a)(7) makes a capital offense "[m]urder done for a
pecuniary or other valuable consideration or pursuant to a contract or for
hire." In the present case, the State charged Collins with violating
§ 13A-5-40(a)(7), alleging that he had entered into an agreement with
Wrenn, whereby Collins agreed to murder Bell in exchange for Wrenn's
paying Collins $2,000, and that Collins did, in fact, murder Bell. The
State also charged Collins with violating § 13A-4-3(a), alleging that
Collins had entered into an agreement with Wrenn, whereby Collins
agreed to murder Bell in exchange for Wrenn's paying Collins $2,000, and
that Collins took some overt act to effect an objective of the agreement.
Obviously, murder made capital pursuant to § 13A-5-40(a)(7) requires
proof of an intentional killing; § 13A-4-3(a) requires no such proof. This
7
1200443
is something that distinguishes the crimes. However, in this case, the
State relied upon the same facts to prove that Collins violated § 13A-4-3(a)
in proving that Collins violated § 13A-5-40(a)(7). Stated differently, once
the State proved that Collins had violated §13-5-40(a)(7), it did not need
to prove any additional fact to prove that Collins had also violated
§ 13A-4-3(a). We conclude that, as charged in this case, criminal
conspiracy is a lesser-included offense of murder made capital pursuant
to § 13A-5-40(a)(7). See § 13A-1-9(a)(1), Ala. Code 1975 ("A defendant may
be convicted of an offense included in an offense charged. An offense is an
included one if ... [i]t is established by proof of the same or fewer than all
the facts required to establish the commission of the offense charged.").
Although we have not heretofore made such a conclusion,
Mississippi, which has laws similar to our own concerning murder for hire
and criminal conspiracy, has determined that criminal conspiracy is a
lesser-included offense of murder for hire. In Stewart v. State, 662 So. 2d
552, 561 (Miss. 1995), the Mississippi Supreme Court stated:
"Conspiracy and the underlying substantive offense are
normally distinct and separate offenses. Pinkerton v. United
States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1181, 90 L. Ed. 1489
8
1200443
(1946); Griffin v. State, 545 So. 2d 729, 730 (Miss. 1989).
Nevertheless, there are times when a defendant may not be
charged with both conspiracy and the substantive offense.
Pinkerton, 328 U.S. at 643, 66 S. Ct. at 1181. 'One is where the
agreement of two persons is necessary for the completion of
the substantive crime and there is no ingredient in the
conspiracy which is not present in the completed crime.' Id.
"Miss. Code Ann. § 97-3-19(2)(d) (1972) capital murder
provision reads as follows:
" '(2) The killing of a human being without the
authority of law by any means or in any manner
shall be capital murder in the following cases:
" '(d) Murder which is perpetrated
by any person who has been offered or
has received anything of value for
committing the murder, and all parties
to such a murder, are guilty as
principals.'
"We find that once the State has proven murder under this
definition, no other evidence must be produced in order to
establish the crime of conspiracy. Conspiracy to commit
murder-for-hire is completely enveloped by our definition of
murder-for-hire found in § 97-3-19(2)(d) of the capital murder
statute."
We find convincing the reasoning set forth in Stewart by the Mississippi
Supreme Court and conclude that criminal conspiracy is a lesser-included
offense of murder for hire.
9
1200443
It is significant to note Stewart's reliance upon Pinkerton v. United
States, 328 U.S. 640 (1946). Pinkerton is a significant case in double-
jeopardy precedent -- relied upon by many other federal cases (some of
which the State relies upon in its brief before this Court) -- that sets forth
well-established principles concerning a criminal defendant's convictions
for both a substantive offense and a conspiracy to commit that substantive
offense. Pinkerton states, in pertinent part:
"It has been long and consistently recognized by the Court that
the commission of the substantive offense and a conspiracy to
commit it are separate and distinct offenses. The power of
Congress to separate the two and to affix to each a different
penalty is well established. Clune v. United States, 159 U.S.
590, 594, 595 [(1895)]. A conviction for the conspiracy may be
had though the substantive offense was completed. See Heike
v. United States, 227 U.S. 131, 144 [(1913)]. And the plea of
double jeopardy is no defense to a conviction for both offenses.
Carter v. McClaughry, 183 U.S. 365, 395 [(1902)]. It is only an
identity of offenses which is fatal. See Gavieres v. United
States, 220 U.S. 338, 342 [(1911)]. Cf. Freeman v. United
States, 6 Cir., 146 F.2d 978 [(1945)]. A conspiracy is a
partnership in crime. United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 253 [(1940)]. It has ingredients, as well as
implications, distinct from the completion of the unlawful
project. As stated in United States v. Rabinowich, 238 U.S. 78,
88 [(1915)]:
" 'For two or more to confederate and combine
together to commit or cause to be committed a
10
1200443
breach of the criminal laws is an offense of the
gravest character, sometimes quite outweighing, in
injury to the public, the mere commission of the
contemplated crime. It involves deliberate plotting
to subvert the laws, educating and preparing the
conspirators for further and habitual criminal
practices. And it is characterized by secrecy,
rendering it difficult of detection, requiring more
time for its discovery, and adding to the importance
of punishing it when discovered.'
"And see Sneed v. United States, 5 Cir., 298 F. 911, 912, 913
[(1924)]; Banghart v. United States, 4 Cir., 148 F.2d 521
[(1945)].
"Moreover, it is not material that overt acts charged in
the conspiracy counts were also charged and proved as
substantive offenses. As stated in Sneed v. United States,
supra, 298 F. at page 913, 'If the overt act be the offense which
was the object of the conspiracy, and is also punished, there is
not a double punishment of it.' The agreement to do an
unlawful act is even then distinct from the doing of the act."
Pinkerton, 328 U.S. at 643-44. Therefore, under federal law, it is well
established that a substantive crime and a conspiracy to commit that
substantive crime are generally separate and distinct offenses. However,
the Pinkerton Court expressly recognized an exception to the above-
quoted general principles:
"There are, of course, instances where a conspiracy charge may
not be added to the substantive charge. One is where the
11
1200443
agreement of two persons is necessary for the completion of
the substantive crime and there is no ingredient in the
conspiracy which is not present in the completed crime. See
United States v. Katz, 271 U.S. 354, 355, 356 [(1926)]; Gebardi
v. United States, 287 U.S. 112, 121, 122 [(1932)]."
Pinkerton, 328 U.S. at 643 (emphasis added). This makes clear that,
under federal law, if the conspiracy to commit a substantive crime is a
lesser-included offense of the substantive crime, then the "conspiracy
charge may not be added to the substantive charge." Id. This is exactly
what the Mississippi Supreme Court recognized in Stewart, and that
exception applies to the facts of the present case.
Despite the exception stated in Pinkerton, the State notes that some
federal cases involving the federal murder-for-hire statute, 18 U.S.C.
§ 1958, have concluded that a federal criminal defendant charged with
violating § 1958 may be convicted of and sentenced for both the
substantive offense of murder for hire and conspiring to commit the
substantive offense of murder for hire. See, e.g., United States v.
Lingenfelter, 473 F. App'x 303 (4th Cir. 2012), United States v. Bicaksiz,
194 F.3d 390 (2d Cir. 1999), Plunkett v. United States, Criminal Action
No. 4:04-cr-70083, June 6, 2011 (W.D. Va. 2011) (not reported in Federal
12
1200443
Supplement), and United States v. Gomez, 644 F. Supp. 2d 362 (S.D.N.Y.
2009). The State urges this Court to adopt the approach taken by these
federal cases rather than that taken by the Mississippi Supreme Court in
Stewart. The federal cases relied upon by the State, however, are
inapposite to the present case and Alabama law.
The United States Supreme Court has explained that
"Blockburger [v. United States, 284 U.S. 299 (1932),]
established a rule of statutory construction in these terms:
" 'The assumption underlying the rule is that
Congress ordinarily does not intend to punish the
same offense under two different statutes.
Accordingly, where two statutory provisions
proscribe the "same offense," they are construed
not to authorize cumulative punishments in the
absence of a clear indication of contrary legislative
intent.' [Whalen v. United States,] 445 U.S. [684,]
691-692 [(1980)] (emphasis added).
"We went on to emphasize the qualification on that rule:
" '[W]here the offenses are the same ... cumulative
sentences are not permitted, unless elsewhere
specially authorized by Congress.' Id., at 693
(emphasis added)."
Missouri v. Hunter, 459 U.S. 359, 366 (1983). In short, the United States
Supreme Court has stated that the Blockburger test is a rule of statutory
13
1200443
construction that, if met, indicates that Congress did not intend to
authorize cumulative punishments for the same offense, but such
intention derived from applying the Blockburger test may be controverted
by a special authorization of Congress indicating its intention otherwise.
Congress's intent is the significant factor.
Collins notes that, in Alabama, the legislature has passed a law
expressly stating its intent in situations such as the one presented in this
case where a criminal defendant is charged with a substantive offense and
a lesser-included offense. Collins directs this Court's attention to § 13A-1-
8(b)(1), Ala. Code 1975, which states, in pertinent part: "When the same
conduct of a defendant may establish the commission of more than one
offense, the defendant may be prosecuted for each such offense. He may
not, however, be convicted of more than one offense if ... [o]ne offense is
included in the other, as defined in Section 13A-1-9[, Ala. Code 1975]."
(Emphasis added.) As set forth above, criminal conspiracy is a lesser-
included offense of murder for hire. In § 13A-1-8(b)(1), the legislature
makes clear that a criminal defendant may not be convicted of both of
those crimes based on the same conduct. See also § 13A-4-5(b)(3), Ala.
14
1200443
Code 1975 ("A person may not be convicted on the basis of the same course
of conduct of both the actual commission of an offense and ... [c]riminal
conspiracy of the offense.") Accordingly, unlike federal law, Alabama law
makes abundantly clear that the legislature does not intend for a criminal
defendant to be convicted of both murder for hire and the lesser-included
offense of criminal conspiracy; the federal cases concerning § 1958 have
no application in the present case and are not persuasive.
Lastly, we note that, in the present case, the Court of Criminal
Appeals relied upon Williams, supra, in concluding that Collins's double-
jeopardy rights were not violated. Williams, however, is a distinguishable
case. In Williams, the criminal defendant was convicted of criminal
conspiracy and murder made capital because it was committed during the
course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975. The Court of
Criminal Appeals stated in Williams that "the offense of murder made
capital pursuant to § 13A-5-40(a)(2)[] requires no agreement to effect that
offense." Williams, 830 So. 2d at 48. Accordingly, the Court of Criminal
Appeals concluded that "the two offenses for which [Williams] was
convicted and sentenced are not the same under the Blockburger test.
15
1200443
Therefore, we find no merit in [Williams]'s argument that his rights under
the Double Jeopardy Clause were violated." Id. As explained above,
however, the two offenses for which Collins was convicted and sentenced
are the same under the Blockburger test; the crime of criminal conspiracy
does not require proof of a fact that the crime of murder for hire does not.1
Conclusion
Based on the foregoing, Collins has established a conflict between
the Court of Criminal Appeals' decision and Blockburger; the Court of
Criminal Appeals erred in concluding that Collins's convictions and
sentences for murder for hire and criminal conspiracy do not violate the
1As he did before the Court of Criminal Appeals, Collins also argues
before this Court that the trial court's admission of a confession made by
Wrenn, Collins's codefendant, allegedly violated Collins's right of cross-
examination secured by the Confrontation Clause of the Sixth Amendment
to the United States Constitution. We need not address this argument,
however, because we specifically denied certiorari review of this issue. In
his petition for certiorari review, Collins, citing Rule 39(a)(1)(D), Ala. R.
App. P., alleged that the Court of Criminal Appeals' determination of this
Confrontation Clause issue conflicted with prior decisions of the United
States Supreme Court. We did not find Collins's allegation of conflict
convincing and denied certiorari review of that particular issue.
Accordingly, that issue is not properly before us, and, thus, we need not
consider Collins's argument.
16
1200443
Double Jeopardy Clause. As a result, we affirm the Court of Criminal
Appeals' decision insofar as it affirms Collins's capital-murder conviction
and his resulting sentence to death and reverse the Court of Criminal
Appeals' decision insofar as it affirms Collins's criminal-conspiracy
conviction and his resulting sentence to 120 months' imprisonment. See
Heard v. State, 999 So. 2d 992, 1009 (Ala. 2007) ("[W]hen a jury returns
a verdict finding a defendant guilty of capital murder on one count and
guilty of a lesser-included offense of another count, if that lesser-included
offense is also a lesser-included offense of the offense resulting in the
capital-murder conviction, under § 13A-1-8(b) and § 13A-1-9, Ala. Code
1975, the conviction for the lesser-included [offense] cannot stand."). We
also remand this cause to the Court of Criminal Appeals with instructions
for it to remand this cause to the circuit court for it to set aside Collins's
conviction for criminal conspiracy and his resulting sentence therefrom.
No return to remand need be filed.
17
1200443
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Stewart,
JJ., concur.
Mitchell, J., concurs specially.
18
1200443
MITCHELL, Justice (concurring specially).
Often overlooked is the fact that state law can provide greater
protections of individual rights than protections under federal law.2 This
case offers an example.
Here, Sherman Collins cited three provisions in support of his
argument that the two offenses for which he was convicted constitute the
"same offense": (1) the Fifth Amendment to the United States
Constitution, as analyzed under the test set out in Blockburger v. United
States, 284 U.S. 299 (1932); (2) § 13A-1-8(b), Ala. Code 1975; and (3)
§ 13A-4-5(b), Ala. Code 1975. The majority opinion primarily rules in
2In this case, we have an Alabama statute that provides superior
protection. But we are beginning to see the emergence of cases across the
country where litigants correctly recognize that state constitutions may
better protect individual rights than the United States Constitution. See,
e.g., Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017) (holding that the
Georgia
state
constitution's
protection
against compelled
self-
incrimination extends beyond testimony -- as the federal right has been
interpreted -- to incriminating acts, such as breath tests); see also Jeffrey
S. Sutton, 51 Imperfect Solutions: States and the Making of American
Constitutional Law 16-20, 76 (Oxford Univ. Press 2018). The Alabama
Constitution, like other state constitutions, is a relatively untapped source
of law for the protection of individual rights, and it may hold promise for
future litigants in a variety of contexts.
19
1200443
favor of Collins based on Blockburger and § 13A-1-8(b)(1), and I fully
concur in the opinion.
I write separately to point out that in enacting § 13A-4-5(b)(3), Ala.
Code 1975, which provides that "[a] person may not be convicted on the
basis of the same course of conduct of both the actual commission of an
offense and ... [c]riminal conspiracy of the offense,"3 the Legislature has
provided even greater protections for criminal defendants than under
federal law. Whereas federal law recognizes that "the commission of [a]
substantive offense and a conspiracy to commit it are separate and
distinct offenses," Pinkerton v. United States, 328 U.S. 640, 643 (1946),
and that convictions for both may stand so long as the Blockburger "same
elements" test is satisfied, the Alabama statute sweeps more broadly and
definitively, protecting a criminal defendant from being convicted based
on the same course of conduct of both "criminal conspiracy of the offense"
3The Commentary to § 13A-4-5 explains that subsection (b) "deal[s]
only with convictions, not with multiple charges or counts in an
indictment or complaint." That is, a defendant may be charged with both
criminal conspiracy of an offense and the actual commission of the offense,
but not convicted of both.
20
1200443
(an inchoate crime) and "the actual commission of an offense" (a
substantive crime).
To some, it may seem counterintuitive that state law can contain
greater rights protections than federal law -- causing some litigants to cite
state-law provisions but not develop any arguments around them or,
worse, to bypass state law entirely. That is a mistake. I encourage
parties in future cases involving counterpart rights under state and
federal law not to assume either that the state-law right is inferior and
unworthy of attention or that the state-law right is simply a carbon copy
of the federal right. Making those assumptions could cause a litigant to
lose his or her case or to obtain less relief than he or she is due.
21 | November 5, 2021 |
6837d1f7-6f89-42a5-a3d3-d9fead054855 | Ex parte Danny Lewis Smith. | N/A | 1200845 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200845
Ex parte Danny Lewis Smith. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Danny Lewis Smith v. State
of Alabama) (Russell Circuit Court: CC-93-688.65; Criminal Appeals :
CR-19-0880).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
1e31a2c9-9c31-4953-b42b-c2fc3650df7c | Ex parte City of Birmingham. | N/A | 1200639 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 29, 2021
1200639
Ex parte City of Birmingham. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Diamond Rawls v. Arphelia N. George and The City of Birmingham) (Jefferson
Circuit Court: CV-20-901351).
ORDER
The petition for writ of mandamus in this cause is denied.
SHAW, J. - Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 29th day of October, 2021.
/tw | October 29, 2021 |
681560c6-af35-4885-b514-8e5424a32dc4 | Ex parte Board of Zoning Adjustment of the City of Auburn. | N/A | 1200790 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 24, 2021
1200790
Ex parte Board of Zoning Adjustment of the City of Auburn. PETITION FOR
WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Board
of Zoning Adjustment of the City of Auburn v. Ray Huff and Auburn Realty,
LLC) (Lee Circuit Court: CV-19-213; Civil Appeals : 2200393).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 24, 2021:
Writ Denied. No Opinion. Wise, J. - Bolin, Bryan, Sellers, Mendheim,
Stewart, and Mitchell, JJ., concur. Shaw, J., dissents. Parker, C.J., concurs
in part and dissents in part.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, 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 September, 2021.
Clerk, Supreme Court of Alabama | September 24, 2021 |
c6ada285-714c-4854-9108-fbcc588983e5 | Ex parte V.D.H. | N/A | 1200822 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200822
Ex parte V.D.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: V.D.H. v. State of Alabama) (Jefferson
Circuit Court: CC-18-826; CC-18-827; CC-18-1051; CC-18-1052; Criminal
Appeals :
CR-19-0730).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
553f8d2e-8195-4e44-ae4e-073238c45451 | Brett/Robinson Gulf Corporation; Claudette Brett, as the personal representative of the estate of Tillis M. Brett; Thomas Brett; William T. Robinson, Jr.; and Brett Real Estate and Robinson Development Company, Inc. v. Phoenix on the Bay II Owners Associat | N/A | 1180945 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1180945 Brett/Robinson Gulf Corporation; Claudette Brett, as the personal
representative of the estate of Tillis M. Brett; Thomas Brett; William T.
Robinson, Jr.; and Brett Real Estate and Robinson Development Company, Inc.
v. Phoenix on the Bay II Owners Association, Inc., and Pamela A. Montgomery
(Appeal from Baldwin Circuit Court: CV-15-900942).
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 17, 2021:
Application Overruled. No Opinion. PER CURIAM - Bolin, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.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 June 30, 2021:
Reversed And Remanded with Instructions. PER CURIAM - Bolin, Wise,
Bryan, Sellers, and Mitchell, JJ., concur specially. Mendheim and Stewart, JJ.,
concur in the result. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
54676ddc-578c-4d90-8be5-b525eda2596b | Ex parte Guy Maxamillion Taylor. | N/A | 1200806 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200806
Ex parte Guy Maxamillion Taylor. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Guy Maxamillion Taylor
v. State of Alabama) (St. Clair Circuit Court: CC-04-317.64; Criminal
Appeals :
CR-20-0183).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
761d9278-52b1-47d2-8bbb-d0da957842c0 | Ex parte Jeremy Jamal Cattage. | N/A | 1200855 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200855
Ex parte Jeremy Jamal Cattage. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jeremy Jamal Cattage v.
State of Alabama) (Madison Circuit Court: CC17-2173.60; Criminal Appeals
:
CR-20-0405).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
2a463743-4d70-411c-8cad-6d28e79cdcfe | Ex parte B.W. | N/A | 1200768 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200768
Ex parte B.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: B.W. v. Etowah County Department of Human
Resources) (Etowah Juvenile Court: JU-18-128.03; Civil Appeals : 2200069).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 17, 2021:
Writ Denied. No Opinion. Wise, J. - Shaw, Bryan, Sellers, and Stewart,
JJ., concur. Parker, C.J., and Bolin, Mendheim, and Mitchell, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
4647b820-d2b7-4c75-92c8-596e6b60683c | Builder Systems, LLC v. Klamer | N/A | 1200433 | Alabama | Alabama Supreme Court | Rel: September 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2021
____________________
1200433
____________________
Builder Systems, LLC
v.
George "Jerry" Klamer and Lisa Klamer
Appeal from Shelby Circuit Court
(CV-17-900440)
BOLIN, Justice.
1200433
Builder Systems, LLC, appeals from an order, certified as final
pursuant to Rule 54(b), Ala. R. Civ. P., entered in favor of George "Jerry"
Klamer and his wife Lisa Klamer arising from a remediation and new-
construction project performed by Builder Systems on the Klamers' house.
Because we determine that the order was not appropriate for Rule 54(b)
certification, we dismiss the appeal.
Facts and Procedural History
In May 2006, the Klamers purchased a house that contained toxic
and defective drywall that had been manufactured in China. In 2011, the
Klamers joined a class action against the manufacturers of the drywall
that was being overseen by the United States District Court for the
Eastern District of Louisiana. The class action settled in December 2012.
As part of the class settlement, the Klamers had two options for
remediation of the drywall: (1) they could use Moss & Associates,1 or a
Moss authorized contractor, to remediate the defective drywall or (2) they
1Moss & Associates appears to be the contractor chosen by the class-
action-settlement administrators to be the lead contractor for the
remediation program.
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could choose self-remediation, in which case they would choose their own
contractor to remediate the defective drywall according to protocol
established in the settlement agreement, and the chosen contractor would
be paid from the remediation settlement fund based on a work-scope
model provided by Moss. The Klamers chose the self-remediation option.
On January 25, 2013, the Klamers entered into an "Agreement for
Renovation of a Residential Dwelling" with Builder Systems both to
remediate the defective drywall in the Klamers' house and to renovate
portions of their house. Both the Klamers and Builder Systems
acknowledged in the renovation agreement that the class-action
defendants had agreed to fund up to $378,380.36 of the costs to complete
the the drywall remediation. Builder Systems determined that the
remediation costs would total $301,684 based on the Moss work-scope
model. The Klamers, fearing that the remediation costs would exceed
Builder Systems' proposed budget for the remediation project, suggested
that $325,000 of the $378,380.36 be allocated for the remediation project,
with the difference between the $325,000 and the $378,380.36 funded
from the class-action settlement being used for upgrades to other items
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that fell within the work scope of the renovation project, including such
items as fixtures, materials, and the HVAC unit. The renovation
agreement contained an arbitration provision.
After Builder Systems began the remediation and renovation project,
disputes arose between the parties as to the work performed by Builder
Systems. The Klamers contend that the work performed by Builder
Systems was defective, fell well below industry standards, and violated
various building-code provisions. The Klamers contend that, ultimately,
Builder Systems failed or refused to perform the work required by the
renovation agreement. The Klamers further contend that Builder
Systems' defective and incomplete performance of the work plagued the
house with various problems and issues that caused damage to other
portions of the house. For example, the Klamers state that the house
suffered extensive mold damage due to incomplete and defective HVAC-
related work performed by Builder Systems. Additionally, the Klamers
state that Builder Systems damaged other property in the house while
doing the remediation and renovation work, that the plumbing work failed
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to meet applicable code standards, and that electrical work violated code
standards and created safety hazards.
Builder Systems states that, once it undertook the work on the
remediation and renovation project, disputes arose between the parties as
to what work was to be performed, whether the requested work was
within the Moss work-scope model, and payment for the work performed
that was outside the Moss work-scope model. Builder Systems states that
by "September 2013 and into 2014," it had completed over $400,000 worth
of remediation and renovation work on the house. On May 21, 2014, the
disputes arising from the remediation and renovation project were
submitted to arbitration pursuant to the arbitration provision contained
in the renovation agreement.
During the course of the remediation and renovation project, Inline
Electric Supply Co., Inc. ("Inline"), entered into a subcontract with Builder
Systems to provide certain materials and services for the remediation and
renovation project on the house. On July 28, 2014, Inline sued Builder
Systems and its owner Chuck Kitchen, both individually and as guarantor
for Builder Systems, as well as the Klamers, alleging that Builder
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Systems had failed and/or refused to pay for materials and services that
Inline had provided for the remediation and renovation project pursuant
to the contract entered into between Inline and Builder Systems. Inline
claimed a lien against the Klamers' property in the amount of $14,965.72.2
On October 6, 2014, the Klamers answered Inline's complaint and filed
a cross-claim against Builder Systems, asserting a breach of the
renovation agreement for Builder Systems' alleged failure to perform the
remediation and renovation services. On January 22, 2015, after Builder
Systems and Kitchen had failed to answer Inline's complaint, Inline
moved the trial court in that action for a default judgment pursuant to
Rule 55(b)(2), Ala. R. Civ. P. On March 3, 2015, the trial court in that
action granted Inline's motion for a default judgment and entered a
2" 'Generally, when a person has provided labor or materials or has
supplied services on a private construction project, the person is entitled
under § 35-11-210, Ala. Code 1975, the mechanic's or materialman's lien
statute, to file a lien against the private property and subsequently to
foreclose on the property, if not paid for those services.' " Finish Line v.
J.F. Pate & Assocs. Contractors, Inc., 90 So. 3d 749, 753 (Ala. Civ. App.
2012) (quoting Safeco Ins. Co. of America v. Graybar Elec. Co., 59 So. 3d
649, 655 (Ala. 2010)).
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judgment against Builder Systems and Kitchen on Inline's claims in the
amount of $22,372.89.
On April 1, 2015, following the arbitration proceedings between the
Klamers and Builder Systems, the arbitrator entered an arbitration
award, which provides, in relevant part:
"The [Klamers] chose Option Two and engaged [Builder
Systems] to remediate the drywall using the protocol from the
settlement agreement. [Builder Systems] provided a budget
based on the Moss work scope totaling $301,684.00. The
[Klamers], fearing that the remedial costs would exceed the
proposed budget from [Builder Systems], suggested that the
remediation costs would be set at $325,000.00 and the
difference between the orally agreed upon $325,000.00 and the
written agreement amount of $378,380.36 would be used for
additions and upgrades ....
"Since the offer was made, accepted, consideration
provided and there was mutual assent, the Parties, from the
onset, acted on the oral agreement, which preceded the written
agreement. The written agreement was used as a framework
for the drywall remediation and for the distribution of funds
with an understanding that when those funds were exhausted,
the [Klamers] would pay any overages for the additional work.
The misunderstanding of the opportunity for supplements
would appear to be the core of the dispute as it relates to cost.
"....
"The action of the Parties as the project advanced shows
that the written agreement was reduced to an instrument of
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convenience to access the $378,380.36 provided by the
settlement fund and all cost above this amount, regardless of
the cause, was to be paid by the [Klamers].
"Testimony and documentation presented by the
[Klamers] throughout the hearing was that [Builder Systems]
exhibited a lack of workmanship relative to the tile work,
painting and trim as well as a failure to maintain a standard
of care relative to cabinets, granite tops, hardwood flooring,
windows, doors and stored materials. The [Klamers'] solution,
as presented by witnesses and estimates of the cost to cure,
appears to be a near wholesale removal and replacement of
components. [Builder Systems'] position is that the job is
incomplete and is being judged before the final punch is
performed. A site visit was conducted on September 23, 2014
and attended by Counsel for both Parties and this Arbitrator.
The site visit revealed a job site that was out of sequence and
incomplete. Items purported to be complete did not meet the
industry standard for workmanship. The tile work in the
Master Bath is one such item, there are others, as testimony
revealed, that are beyond 'Punch' items. Mold was present in
the lower portion of the house and the HVAC was not
operational. Therefore, there is validity in both positions, but
not at the extremes of those positions. The site certainly needs
more attention to detail and there is a definite need for some
order to the process with protective coverings in place for
completed tasks, but the cost to cure as presented by the
[Klamers] and [Builder Systems] would appear to be
respectively excessive and understated.
"The Award regarding Claims:
"....
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"... [Builder Systems] will complete the
project, or cause the project to be completed with
an outside contractor, in its entirety including all
protocol items listed in the Chinese Drywall
Remediation Settlement as well as all additions,
upgrades, damaged components and punch list
items for all categories. Before this work
commences, the [Klamers] will make [Builder
Systems] whole by issuing a check for $24,107.07.
Subsequently, [Builder Systems], or an outside
contractor, is due to receive from the settlement
fund the balance of $37,383.04 upon successful
completion of the drywall remediation as
determined
by
the
settlement
protocol.
Furthermore, [Builder Systems], or the outside
contractor, is due to receive from the [Klamers] the
hard cost plus 10% Profit and 10% Overhead for all
future valid, verifiable invoices above the combined
total of $24,107.07 and $37,383.04 or $61,490.11.
The [Klamers] will pay this amount upon the
satisfactory completion of the entire project. It is
understood that 'Punch Items' and the repair of
damaged components will carry no additional cost
to the [Klamers] including, but not limited to
anything that has been installed or applied that
does not meet Industry Standards. The elements of
'Satisfactory Completion' will be based on the
approval of the governing inspection service and
compliance to Industry Standards for high end
residential construction. In the event of a
disagreement regarding the latter, the Parties will
agree on an independent Construction Professional
to resolve the question of compliance to the
'Industry Standard,' the cost of which will be
divided equally. If the eventual cost to complete is
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less than $61,490.11, the surplus funds will be
returned to [the Klamers].
"....
"... Inline claim and lawsuit for lighting
$14,965.00 -- Granted [i.e., to be paid by Builder
Systems]....
"....
"....
"[I]f the if the completion of the residence
extends beyond 60 calendar days from the time
work commences, [Builder Systems] will pay the
[Klamers] a housing allowance of $150.00 per day.
"[I]f the completion of the residence extends
beyond 60 calendar days from the time work
commences, [Builder Systems] will pay the
[Klamers] a storage allowance of $53.33 per day.
"[I]f the completion of the residence extends
beyond 60 calendar days from the time work
commences, [Builder Systems] will pay the
[Klamers] a utility allowance of $15.83 per day.
"[I]f the completion of the residence extends
beyond 60 calendar days from the time work
commences, [Builder Systems] will pay the
[Klamers] a yard care allowance of $5.00 per day."
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The arbitrator also awarded to the Klamers $27,027 for mold remediation
and for damage to some blinds that were improperly stored by Builder
Systems.
The Klamers state that, after the arbitration award had been
entered, they attempted to work with Builder Systems to identify what
needed to be repaired or completed in the house. On May 7, 2015, the
Klamers provided to Builder Systems a list of items they claimed needed
to be corrected in the house. According to the Klamers, Builder Systems
was supposed to evaluate that list of items and respond with its
agreement or disagreement with respect to the items on the list. Builder
Systems visited the house on May 27, 2015, but failed to respond with its
agreement or disagreement regarding the items on the list.
On June 9, 2015, counsel for the Klamers informed Builder Systems
that, because of Builders Systems' inaction and unresponsiveness to its
request regarding the list, the Klamers took the position that Builder
Systems did not intend to perform the work provided for in the arbitration
award. The Klamers explained in the letter the urgency of commencing
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the work, particularly with respect to the HVAC system and the electrical
work. The Klamers further stated:
"The Award outlines a payment of $24,107.07 due from the
Klamers to Builder Systems. The Award also makes Builder
Systems liable for payment to InLine Electrical. In-Line
obtained a default judgment against Builder Systems and
Chuck Kitchen for $22,372.89 that we are told has not been
paid. In-Line claims a lien against the Klamers property in the
amount of $14,965.12. The Klamers believe that if they pay
Builder Systems the $24,107.07, Builder Systems will not
satisfy and remove the In-Line lien and will not perform the
work required by the Award, which the Klamers believe
exceeds $150,000 to $200,000.
"Because of Builder Systems' inaction and the unpaid lien, the
Klamers demand written assurance of performance by Builder
Systems and Chuck Kitchen and reasonable assurance and
evidence of its financial ability to perform."
Builder Systems stated that the primary issue between the parties
after the entry of the arbitration award was the Klamers' refusal to make
payment of the $24,107.07 awarded to it during arbitration. Builder
Systems contended that the payment of the $24,107.07 was a prerequisite
to it performing any additional work on the remediation and renovation
project. Builder Systems refused to begin work until the payment was
made.
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On July 9, 2015, the Klamers sought a modification of the
arbitration award to address the requirement that they pay $24,107.07
to Builder Systems. On August 5, 2015, the arbitrator entered the
following disposition regarding the Klamers' application to modify the
arbitration award:
"Pursuant R-48 'Modification of Award' in the Rules Amended
and Effective October 1, 2009 being the rules which governed
this Arbitration, the Award cannot be modified as requested by
Item 17 in [the Klamers'] Request for Enforcement and/or
Modification. Instead, the Award is clear as to the duties
imposed on both parties and in the fact that certain funds shall
be paid before work commences, furthermore, a mechanism is
in place to assure quality finishes as well as code compliance.
I will be willing to clarify the points in paragraph 1(b) under
the Award regarding the Claims. To that end:
"1. [Builder Systems] will be paid $24,107.07
before work resumes. This amount must be paid in
order to make [Builder Systems] whole. It is a
condition of the Award that this precedes any work
being performed by [Builder Systems].
"2. Any tasks or components that are not brought
to satisfactory completion or would be considered
code non-compliant that have been installed and
charged in previous invoices must be corrected by
[Builder Systems] to code or industry standards
without additional charge to the [Klamers], '...The
elements of "Satisfactory Completion" will be
based on the approval of the governing inspection
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service and compliance to Industry Standards for
high end residential construction. In the event of
a disagreement regarding the latter, the Parties
will agree on an independent Construction
Professional to resolve the question of compliance
to the "Industry Standard," the cost of which will
be divided equally.'
"3. Any Chinese Drywall remediation work that is
part of the original scope but has not yet been
performed will be paid from the remaining
settlement funds totaling $37,838.04. Therefore,
the total amount due from the [Klamers] to
[Builder Systems] relative to Paragraph 1(b) is
$61,945.11. Of that, $24,107.07 is due prior to work
resuming, if the eventual cost to complete is less
than $61,945.11, the surplus funds will be returned
to [the Klamers].3
"4. Any work requested by the [Klamers] of
[Builder Systems] that is not part of the original
scope, inclusive of additions and upgrades, will
carry a charge as determined by [Builder Systems]
and accepted by the [Klamers] prior to the work
being performed.
"5. In summary, [Builder Systems] will receive
$24,107.07 before resuming work, and another
3We note that the figures used in this paragraph do not match the
figures used in the arbitration award. In the arbitration award, the
amount of the remaining settlement funds was listed as $37,383.04, not
$37,838.04, and the total due from the Klamers was listed as $61,490.11,
not $61,945.11.
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$37,838.04 upon completion of the settlement
scope. All items presented at the hearing will be
addressed to satisfactory completion. All required
components will be inspected or re-inspected by the
local authorities for code compliance, and any
dispute between the parties regardless of the
component, cosmetic issue, code issue or major
system (Plumbing, HVAC or Electrical ) will be
settled by an agreed upon construction professional
(Architect, Engineer, High End House Builder).
"In all other respects the Award dated April 1, 2015, is
reaffirmed and remains in full force and effect."
In the meantime, the Klamers had, on June 4, 2015, moved the trial
court in Inline's action to enforce the arbitration award as it related to
Builder Systems' payment of Inline. On August 17, 2015, the trial court
in that action entered an order enforcing the terms of the arbitration
award against Builder Systems as it related to Builder Systems' obligation
to satisfy the award of $14,965 to the Klamers in order to remove the
Inline lien on the Klamers' property.4
4On January 11, 2016, the trial court in Inline's action entered an
order disposing of all remaining claims and cross-claims, stating that the
"arbitration award on April [1], 2015, represented a full settlement of all
claims and counterclaims submitted to that arbitration. All claims not
expressly granted therein are denied." On February 23, 2016, a certificate
of judgment releasing Inline's lien on the Klamer property was issued and
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On August 25, 2015, the Klamers paid Builder Systems $24,107.07,
as specified by the arbitration award. After the $24,107.07 was paid to
Builder Systems, the Klamers contend, Builder Systems performed some
minor corrective work on the house, which they say was as faulty and
defective as the original work. On October 13, 2015, the Klamers issued
a notice of nonconformance of work to Builder Systems, outlining the work
the Klamers contended failed to conform to the project requirements and
failed to meet industry standards for high-end residential construction.
The Klamers issued additional notices of nonconformance of work to
Builder Systems on October 23, 2015, and November 17, 2015.
On November 24, 2015, the Klamers filed a notice to the arbitrator
and a request for inspection and award, alleging that Builder Systems was
in breach of the arbitration award and requesting an inspection of the
house by the arbitrator and an award compensating them for Builder
Systems' alleged damage to the house. The Klamers asserted the
following:
recorded in the Shelby Probate Court.
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"Builder Systems' work does not meet 'Industry Standards for
high end residential construction'; the work was not completed
within 60 days; Builder Systems refuses to engage a
Construction Consultant to resolve disputes about work
quality;[5] and Builder Systems has illustrated no intention of
completing the work to the required standard. [The Klamers]
request an inspection by the Arbitrator, a determination of
damages due to Builder Systems' failure to comply with the
Award and an assessment of liquidated damages. In the
alternative, the Klamers request that the Arbitrator inspect
the house and rule on whether the work being performed
satisfies the conditions in the Award and issue a ruling for
damages."
On December 16, 2015, the arbitrator entered the following order denying
the Klamers' request for inspection and award:
"Regarding Counsel for the [Klamers] and his request
that the Arbitrator inspect the ongoing work at the [Klamers']
house, I will decline the request on the basis of the AAA
[American Arbitration Association] Rules that read in part:
" '... The AAA's role in the arbitration process
generally ends at the time that the award is
transmitted to the parties. If a party to an
arbitration wishes to challenge an award for any
reason, they need to make an application to a court
except in the rare case where the parties'
5The record indicates that the Klamers had suggested on a number
of occasions that the parties engage a professional construction
consultant, as required by the arbitration award, to resolve any disputes
that might arise once work on the house resumed.
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agreement provides for some type of appellate
proceeding within the arbitration....'
"I am not aware that this rare exception is provided in this
case."
The Klamers allege that on January 8, 2016, as a last ditch effort to
implore Builder Systems to complete the remediation and renovation
project, they, along with their counsel, met representatives of Builder
Systems and its counsel at the house to identify the work that needed to
be performed. The Klamers contend that Builder Systems promised to
complete the work. However, after the meeting, Builder Systems never
performed any further work on the house.
On January 14, 2016, counsel for the Klamers wrote counsel for
Builder Systems and reiterated that Builder Systems must comply with
the arbitration award and complete the remediation and renovation
project on the house. The Klamers demanded written assurance that
Builder Systems would return to the house and complete the work.
Builder Systems never responded to that communication. On January
26, 2016, counsel for the Klamers wrote counsel for Builder Systems,
pointing out that the Klamers had received no response to the January
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14, 2016, letter and that no further work had been performed at the
house. The Klamers notified Builder Systems that they were going to
move forward to mitigate their damages by hiring another contractor to
complete the work and that they would hold Builder Systems responsible
for all damages and costs. Builder Systems did not respond to that letter.
The Klamers hired a replacement contractor to complete the work on the
house and to repair the allegedly substandard work that had been
performed by Builder Systems. The Klamers state that they paid the
replacement contractor $127,990.78 to complete the work on the house.
On May 16, 2017, the Klamers sued Builder Systems; Kitchen;
Jason Haupt, who the Klamers alleged had an equity interest in Builder
Systems; and Employers Mutual Casualty Co., Builder Systems' general-
liability insurance provider, in the Shelby Circuit Court, alleging that
Builder Systems had breached the arbitration award. The Klamers also
asserted a claim against Employers Mutual pursuant to § 27-23-2, Ala.
Code 1975, alleging that they were entitled to receive insurance proceeds
from the general-liability policy issued to Builder Systems by Employers
Mutual to satisfy the arbitration award entered against Builder Systems.
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The Klamers sought to enforce the arbitration award and sought an award
of money damages in the amount of $198,498.90.
On July 24, 2017, Builder Systems and Kitchen answered the
Klamers' complaint, and Builder Systems filed a counterclaim against the
Klamers, asserting claims of unjust enrichment and quantum meruit and
alleging that, following the payment of the $24,107.07 by the Klamers to
Builder Systems, Builder Systems completed work on the Klamers house
at a cost of $20,000 to Builder Systems. Builder Systems sought the
$20,000 cost of the services provided, plus 10% overhead and 10% profit.
On August 23, 2017, the Klamers answered the counterclaim, generally
denying the allegations and asserting certain affirmative defenses.
On November 20, 2017, Builder Systems, Kitchens, and Haupt ("the
Builder Systems defendants") moved the trial court to dismiss the
complaint pursuant to Rule 12(b)(1) and (6), Ala. R. Civ. P., arguing that
it was barred by the doctrine of res judicata, because, they said, many
issues raised in the complaint were previously litigated in the arbitration
proceeding; that the Klamers had not satisfied the contractual
prerequisites to bringing the action; and that the arbitration award had
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specifically vested the sole authority to resolve the disputes raised in the
complaint in an independent construction professional, thus divesting the
trial court of subject-matter jurisdiction. On January 1, 2018, the
Klamers filed a response in opposition to the motion to dismiss, arguing
that the trial court had jurisdiction over the matter, that the issue of
breach of the arbitration award had never been litigated, and that all
prerequisites to bringing the action had been satisfied or had been waived
by Builder Systems.
On May 9, 2018, Employers Mutual moved the trial court to dismiss,
in part, the claim against it, arguing that the Klamers could assert a
direct action against it, pursuant to § 27-23-2, only after they had
obtained a judgment against Builder Systems.6 On May 21, 2018, the
Klamers filed a response in opposition to Employers Mutual's motion to
dismiss, arguing that they had obtained a judgment against Builder
Systems in the arbitration proceeding and could therefore maintain the
6Employers Mutual conceded that the $27,027 awarded by the
arbitrator to the Klamers had been reduced to a judgment and
acknowledged that the Klamers could pursue their claim against it for
that amount.
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present action against Employers Mutual to recover the money they had
expended to complete the work on the house and to repair damage
allegedly caused by Builder Systems.
On February 26, 2019, the Builder Systems defendants filed a cross-
claim against Employers Mutual, asserting claims of breach of contract
and bad-faith refusal to pay an insurance claim, alleging that the claims
asserted against them by the Klamers fell within the general-liability
coverage provided to Builder Systems by Employers Mutual and that
Employers Mutual had refused to provide them a defense and
indemnification. On March 28, 2019, Employers Mutual answered the
cross-claim.
On July 23, 2019, Employers Mutual filed a cross-claim against the
Builder Systems defendants asserting claims of a breach of contract and
unjust enrichment and alleging that it had paid $27,027 to Builder
Systems to satisfy the arbitration award for the mold remediation and
damaged blinds and that the money had been used by Builder Systems for
some other purpose.
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On July 31, 2019, the trial court entered an order setting the case
for a trial on October 15 and 16, 2019. Following a bench trial, the trial
court, on November 15, 2019, entered an order against Builder Systems,
finding that Builder Systems had failed to perform its obligations under
the arbitration award and awarding the Klamers $172,561.64, which
included, in part, liquidated damages. The judgment did not address
Builder Systems' counterclaims alleging unjust enrichment and quantum
meruit.
On December 12, 2019, Builder Systems moved the trial court to
reconsider its order, arguing that the trial court had failed to apply credit
for $37,838.08 it alleged it was owed under the arbitration award, see note
3, supra, and that its motion to dismiss was due to be granted. On
December 12, 2019, the Klamers filed a response in opposition to Builder
Systems' motion.
On December 13, 2019, Builder Systems moved the trial court for a
summary judgment as to the breach-of-contract claim asserted in its cross-
claim against Employers Mutual, arguing that the Klamers had presented
undisputed evidence demonstrating that Builder Systems had damaged
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existing components of the Klamers' house in the course of its remediation
and renovation activities and that such damage fell within the coverage
of the general-liability policy issued by Employers Mutual.
On January 3, 2020, Builder Systems moved the trial court for leave
to amend its cross-claim asserted against Employers Mutual to seek
additional damages against Employers Mutual based on the damage
Builder Systems had allegedly suffered as a result of collection efforts
that had been instituted by the Klamers.7 On February 19, 2020, the trial
court entered an order granting Builder Systems' motion for leave to
amend its cross-claim.
On April 15, 2020, Employers Mutual filed its response in opposition
to Builder Systems' motion for a summary judgment on the breach-of-
contract claim asserted by Builder Systems in its cross-claim and also
7The Klamers had initiated collection proceedings against Builder
Systems to collect on the order entered by the trial court on November 15,
2019. Builder Systems opposed those efforts, and the trial court ultimately
entered an order granting Builder Systems' motion to halt those collection
proceedings.
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moved the trial court for a summary judgment in its favor as to Builder
Systems' cross-claims.
Also on April 15, 2020, Employers Mutual moved the trial court for
a summary judgment as to the claims asserted against it by the Klamers.
Employers Mutual argued that the $27,027 awarded to the Klamers for
mold remediation and damaged blinds was not covered by its general-
liability policy with Builders Systems. Therefore, Employers Mutual
argued, the Klamers could not collect the $27,027 from Employers Mutual.
Employers Mutual further argued that a direct action to obtain specific
performance against Builder Systems by requiring Employers Mutual to
pay the costs for hiring a second contractor to complete the work on the
house and to cure Builder Systems' defective work is prohibited by §
27-23-2. Finally, Employers Mutual argued that the damages sought by
the Klamers and awarded by the trial court were not covered by Builder
Systems' insurance policy with Employers Mutual.
On July 31, 2020, the Klamers filed a response in opposition to
Employers Mutual's motion for a summary judgment and also moved the
trial court for a partial summary judgment as to the claims asserted by
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them against Employers Mutual. The Klamers argued that Employers
Mutual was legally obligated under its general-liability policy issued to
Builder Systems to pay for the damage to their house caused by the
covered occurrence attributable to Builder Systems' actions.
On August 12, 2020, the trial court entered an amended order,
reducing the amount originally awarded the Klamers to $134,723.50 as
requested by Builder Systems in its motion to reconsider.8 The amended
order did not address Builder Systems' counterclaims alleging unjust
enrichment and quantum meruit.
On November 10, 2020, the Klamers moved the trial court to certify
the August 12, 2020, amended order as final pursuant to Rule 54(b), Ala.
R. Civ. P. The Klamers contended that the amended order addressed their
claim to enforce the arbitration award against Builder Systems and that
Employers Mutual had not been a party to the arbitration proceedings and
8In its motion to reconsider, Builder Systems requested that the trial
court reduce the award to the Klamers by $37,838.04; the trial court
actually reduced the award by $37,838.14.
26
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the arbitration award. The Klamers further stated that the amended
order resolved all issues and claims between them and Builder Systems.
On February 11, 2021, the trial court entered a second amended order,
granting the Klamers' motion, finding that there was no just reason for
delay, and certifying that order as final pursuant to Rule 54(b). The trial
court stated:
"This constitutes enforcement of the Award only. It does not
adjudicate claims in this action that are outside of [the
Klamers'] claim for enforcement of the Award against Builder
Systems, LLC.
"Upon [the Klamers'] Motion for Entry of Final Judgment, the
court clarifies in this Second Amended Order that it
determines that there is no just reason for delay and directs
the entry of a final judgment in favor of [the Klamers] against
Defendant Builder Systems, LLC as set forth herein pursuant
to Ala. R. Civ. P. 54(b)."
The second amended order did not adjudicate Builder Systems' counter-
claims alleging unjust enrichment and quantum meruit.
On February 12, 2021, Builder Systems moved the trial court for
a ruling on its initial motion to dismiss filed on November 20, 2017. On
February 25, 2021, the trial court entered an order denying Builder
Systems' motion to dismiss.
27
1200433
On March 12, 2021, Builder Systems moved the trial court to alter,
amend, or vacate its second amended order. On March 25, 2021, Builder
Systems appealed the trial court's second amended order awarding the
Klamers $134,723.50. On April 19, 2021, the trial court entered an order
denying Builder Systems' motion to alter, amend, or vacate the second
amended order. 9
Discussion
9A notice of appeal will be held in abeyance until a postjudgment
motion is ruled upon by the trial court or denied by operation of law. Rule
4(a)(5), Ala. R. App. P. Further, although Builder Systems specifically
identified the second amended order awarding the Klamers $134,723.50
as the order being challenged on appeal, it has raised and argued issues
on appeal relating to the denial of its motion to dismiss. Rule 3(c), Ala. R.
App. P., provides, in part, that a notice of appeal "shall designate the
judgment, order, or part thereof appealed from." Rule 2(a)(2)(D), Ala. R.
App. P., provides that "[a]n appeal may be dismissed ...when a party fails
to comply substantially with these rules." Although Builder Systems
identified the second amended order awarding the Klamers $134,723.50
as the order being challenged on appeal, it did include in a statement of
issues attached to the notice of appeal issues relating to the denial of the
motion to dismiss. We find that Builder Systems has substantially
complied with Rule 3(c), Ala. R. App. P.
28
1200433
Builder Systems raises a number of issues on appeal, including the
propriety of the trial court's certification of the second amended order as
final pursuant to Rule 54(b). We find that issue dispositive of this appeal.
This Court has stated the following with regard to Rule 54(b)
certification:
" ' "Rule 54(b) certifications 'should be made only in
exceptional cases.' " ' Posey v. Mollohan, 991 So. 2d 253, 258-59
(Ala. Civ. App. 2008) (quoting Wallace v. Tee Jays Mfg. Co.,
689 So. 2d 210, 212 (Ala. Civ. App. 1997)).
" 'Rule 54(b) provides, in 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."
" 'This
Court
recently
explained
the
appropriate standard for reviewing Rule 54(b)
certifications, stating:
" ' " 'If a trial court certifies a judgment
as final pursuant to Rule 54(b), an
29
1200433
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 circuit 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 [has] explained that certifications under
Rule 54(b) are disfavored[.]
" '....
" '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." ' "
30
1200433
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 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).
" '... In MCI Constructors, LLC v. City of
Greensboro, 610 F. 3d 849[, 855] (4th Cir. 2010),
the United States Court of Appeals for the Fourth
Circuit explained:
" ' "In determining whether there is no
just reason for delay in the entry of
judgment, factors the district court
should consider, if applicable, include:
" ' " '(1)
the
relationship
between the adjudicated
31
1200433
and unadjudicated claims;
(2) the possibility that the
need for review might or
might not be mooted by
future developments in the
district
court;
(3)
the
possibility
that
the
reviewing court might be
obliged to consider the same
issue a second time; (4) the
presence or absence of a
claim or counterclaim which
could result in a set-off
against the judgment sought
to
be
made
final;
(5)
miscellaneous factors such
as delay, economic and
solvency
considerations,
shortening
the
time
of
circuit,
frivolity
o f
competing claims, expense,
and the like.'
" ' "Braswell [Shipyards, Inc. v. Beazer
E., Inc.], 2 F. 3d [1331,] 1335-36 [(4th
Cir.1993)] ... (quoting Allis-Chalmers
Corp. v. Phila. Elec. Co., 521 F.2d 360,
364 (3d Cir. 1975) [overruled on other
grounds by Curtiss-Wright Corp. v.
Gen. Elec. Co., 446 U.S. 1 (1980)])." '
"Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263-64 (Ala.
2010) (footnotes and emphasis omitted)."
32
1200433
Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 875-76 (Ala. 2011).
Appellate review in piecemeal fashion is not favored. Howard v. Allstate
Ins. Co., 9 So. 3d 1213 (Ala. 2008).
After the trial court certified its second amended order on the
Klamers' claim against Builder Systems as final pursuant to Rule 54(b),
there was left pending in the trial court the Klamers' claim against
Employers Mutual brought pursuant to § 27-23-2 to recover insurance
proceeds from the general-liability policy to satisfy the arbitration award
entered against Builder Systems; Builder Systems' counterclaims against
the Klamers alleging unjust enrichment and quantum meruit; Builder
Systems' cross-claim against Employers Mutual seeking a defense and
indemnification for the Klamers' claim asserted against it; and Employers
Mutual's cross-claim against Builder Systems alleging that it had paid
$27,027 to Builder Systems to satisfy the arbitration award for the mold
remediation and damaged blinds and that the money had been used by
Builder Systems for some other purpose.
Builder Systems alleged in its counterclaim against the Klamers
that, once the Klamers paid the $24,107.07 as required by the arbitration
33
1200433
award, it had completed some work on the house at a cost of $20,000 to
it, in furtherance of its obligations under the arbitration award to
complete the remediation and renovation project on the house to meet
industry standards. The Klamers alleged in their complaint that Builder
Systems had failed to perform the work on their house as required by the
arbitration award and sought to enforce the arbitration award by
recouping the costs incurred by them in hiring a replacement contractor
to complete the work on the house and to repair the damage caused by
Builder Systems. Builder Systems' unadjudicated counterclaims pending
in the trial court and the Klamers' adjudicated claim pending on appeal
are closely related, because they both arise directly from the parties'
obligations under the arbitration award and seek to hold each other
accountable for their performance or nonperformance under the
arbitration award. Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256,
1263-64 (Ala. 2010). The resolution of Builder Systems' counter-claims
seeking payment for the $20,000 worth of work it performed on the
Klamers' house necessarily requires resolution of issues that are common
to issues resolved in the second amended order addressing the Klamers'
34
1200433
claim seeking to enforce the arbitration award. See Howard, 9 So. 3d at
1215 (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).
We note also that there exists the distinct possibility that this Court
would be required to consider the same issues between the parties arising
from their respective obligations under the arbitration award should this
Court be asked to review a subsequent judgment entered on Builder
Systems' counterclaims. Rosenberg, 63 So. 3d at 1263-64. Finally, if
Builder Systems is successful on its counterclaims seeking payment for
the $20,000 worth of work it performed on the Klamers' house pursuant
to its obligations under the arbitration award, that amount recovered by
Builder Systems could be set off against the award obtained by the
Klamers in the second amended order certified as final. Rosenberg, 63 So.
3d at 1263-64.
Because the issues presented by the Klamers' claim and Builder
Systems' counterclaims are so closely intertwined, we conclude that the
35
1200433
trial court exceeded its discretion in certifying the second amended order
entered in favor of the Klamers as final pursuant to Rule 54(b). Further,
because a "nonfinal judgment will not support an appeal," Dzwonkowski
v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004), we must
dismiss this appeal. Because we dismiss the appeal based on our
determination that the issues presented by Builder Systems'
counterclaims are closely intertwined with the issues presented by the
Klamers' claim pending on appeal, we pretermit discussion of the
remaining claims pending in the trial court.
APPEAL DISMISSED.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur.
36 | September 30, 2021 |
5de4b780-febf-4e5a-af05-203178a1ab88 | Owens v. Ganga Hospitality LLC | N/A | 1200449 | Alabama | Alabama Supreme Court | Rel: October 29, 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
_________________________
1200449
_________________________
Janene Owens
v.
Ganga Hospitality, LLC
Appeal from Montgomery Circuit Court
(CV-19-900030)
SELLERS, Justice.
Janene Owens fell outside a hotel owned and operated by Ganga
Hospitality, LLC ("Ganga"). Owens sued Ganga in the Montgomery
Circuit Court, alleging negligence and wantonness. The trial court
1200449
entered a summary judgment in favor of Ganga, and Owens appealed. We
affirm the trial court's judgment.1
On the night of January 4, 2017, Owens, her husband, her daughter,
and her son-in-law arrived at the hotel. Her son-in-law, Mike Martini,
parked their vehicle in a covered area next to the front door of the hotel,
where hotel guests park temporarily while loading or unloading luggage.
Photographs in the record show that there is a raised concrete platform
on the side of the loading and unloading area that is farthest from the
front door of the hotel, which the parties refer to as a "curb." The platform
is painted red, in clear contrast to the surrounding area. There is a bench
on top of the platform.
Owens was seated in the back seat of the vehicle, behind the driver.
It was dark when Owens and her family arrived at the hotel, and Owens's
sight is extremely limited. She is completely blind in her left eye and has
1In her complaint, Owens also named "Ganga Hospitality d/b/a
Baymont Inn & Suites" as a defendant. However, Ganga's answer to
Owens's complaint, and the parties' briefs to this Court, indicate that
there is no separate entity known as Ganga Hospitality d/b/a Baymont Inn
& Suites and that the proper defendant is simply Ganga Hospitality, LLC.
2
1200449
20/200 vision in her right eye. She describes herself in her brief to this
Court as "blind." At the time of the accident, she also had trouble walking
and typically used a cane for mobility. Her agility was further hampered
from the affects of a stroke that impacted her cognitive skills.
Owens testified that, after Martini parked the vehicle in the covered
loading and unloading area, Owens opened the back driver's side door of
the vehicle and placed her left foot on the ground. She then placed her
right foot on the ground while turning around to face the vehicle, with her
back to the raised platform. She then began to back away from the
vehicle. While moving backward, her right foot contacted the edge of the
platform and "she fell into a very hard object."2
Owens claimed in her complaint that the presence of the concrete
platform was unreasonably dangerous and that Ganga acted negligently
and wantonly in failing to remove it and in failing to provide adequate
lighting in the area. She also alleged that Ganga negligently and
wantonly failed to warn Owens of the alleged hazard. Ganga moved for
2Owens does not explain whether the object she fell into was the
bench or something else.
3
1200449
a summary judgment, arguing that the allegedly dangerous condition was
open and obvious, that Owens was contributorily negligent, and that there
is no evidence indicating that Ganga acted wantonly. The trial court
granted Ganga's summary-judgment motion; Owens appealed. On appeal,
Owens has abandoned her wantonness claim and proceeds only with her
negligence claim.3
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is no
genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
3Owens also abandoned a claim, set out in an untimely amended
complaint, purporting to assert a private cause of action under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
4
1200449
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
"The scope of the duty owed by an invitor to a business
invitee is as follows:
" 'Alabama law is well-settled regarding the
scope of the duty an invitor owes a business
invitee. "The owner of premises owes a duty to
business invitees to use reasonable care and
diligence to keep the premises in a safe condition,
or, if the premises are in a dangerous condition, to
give sufficient warning so that, by the use of
ordinary care, the danger can be avoided."
Armstrong v. Georgia Marble Co., 575 So. 2d 1051,
1053 (Ala. 1991) ....'
"South Alabama Brick Co. v. Carwie, 214 So. 3d 1169, 1176
(Ala. 2016) (emphasis omitted)."
Unger v. Wal-Mart Stores E., L.P., 279 So. 3d 546, 550 (Ala. 2018).
" 'The duty to keep premises safe for invitees applies only to
defects or conditions which are in the nature of hidden
dangers, traps, snares, pitfalls, and the like, in that they are
not known to the invitee, and would not be observed by him in
the exercise of ordinary care. The invitee assumes all normal
or ordinary risks attendant upon the use of the premises, and
the owner or occupant is under no duty to reconstruct or alter
the premises so as to obviate known and obvious dangers, nor
is he liable for injury to an invitee resulting from a danger
5
1200449
which was obvious or should have been observed in the
exercise of reasonable care.' "
Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391
(1937) (quoting 45 C.J. § 244, p. 837). There is no duty to remedy, or to
warn about, open and obvious hazards. Dolgencorp, Inc. v. Taylor, 28 So.
3d 737, 742 (Ala. 2009). Whether an alleged danger is open or obvious is
an objective inquiry. Id. A hazard is open and obvious if it would be
apparent to, and recognized by, a reasonable person in the position of the
invitee. Hines v. Hardy, 567 So. 2d 1283, 1284 (Ala. 1990). The existence
of a duty is a question for the court. Unger, 279 So. 3d at 550.
The evidence clearly establishes that the platform was open and
obvious to people without significant visual impairment. Owens does not
point to any testimony from her family members indicating that they did
not see the platform or that they tripped on it. Martini agreed during his
deposition that he probably stepped onto the platform or walked around
it after exiting the vehicle. Owens's expert witness did not opine that the
existence and condition of the platform presented a danger that was not
open and obvious to someone who is not visually impaired. Photographs
6
1200449
in the record depict the platform at night and indicate that the area is
brightly lit and that the platform is painted red, which clearly contrasts
with the surrounding area. The difference in elevation between the
platform and the surrounding area is obvious from the photographs.
Although Owens alleged in her complaint that the area was not
adequately illuminated, the only evidence she points to on appeal is her
own deposition testimony that the area was "dark." But she relies upon
that same testimony in support of an averment that she is "blind."
Elsewhere in her brief, she asserts that her "visual impairment is so
severe she cannot see." Testimony from someone who is blind is not
sufficient evidence to establish that the loading and unloading area was
not properly illuminated. Indeed, when shown the above-referenced
photographs, which demonstrate that the raised platform is open and
obvious and well illuminated, Owens could not identify the content of the
photographs.4
4Woodward v. Health Care Authority of Huntsville, 727 So. 2d 814
(Ala. Civ. App. 1998), upon which Owens relies, is distinguishable. In that
case, the plaintiff fell off a curb outside a parking garage. But the plaintiff
in Woodward presented expert testimony that the curb presented a
7
1200449
The primary dispute in this case appears to be whether Owens's
visual impairment affects the rule that a premises owner has no duty to
eliminate, or to warn about, dangers that are open and obvious. Owens
notes that a hazard is open and obvious if the risk "would be recognized
by a reasonable person in the position of the invitee," and she asserts that
"[a] person in the position of [Owens] is blind and cannot see." In other
words, she contends that the issue of openness and obviousness should be
evaluated from the point of view of a person with Owens's level of visual
impairment and not from the point of view of a typical person with typical
vision.
Owens has not directed the Court's attention to any precedent from
Alabama or any other jurisdiction considering whether an invitee's
impaired vision affects the open-and-obvious analysis. At least some
tripping hazard that was not open and obvious and was essentially
hidden. According to the Court of Civil Appeals, "[t]he testimony
indicate[d] that, because of the existing lighting at the time, and the color
of the sidewalk and driveway, the curb, or change in height from the
sidewalk to the driveway, was not visible, but, rather, gave the
appearance of one flat mass of concrete." Id. at 817.
8
1200449
courts have suggested that it does not. See, e.g., Prostran v. City of
Chicago, 349 Ill. App. 3d 81, 86, 811 N.E.2d 364, 368, 285 Ill. Dec. 123,
127 (2004) (noting that "[w]hether a condition is open and obvious depends
on the objective knowledge of a reasonable person, not the plaintiff's
subjective knowledge," and that "[c]ourts in other jurisdictions have
applied this objective standard even where the plaintiff is visually
impaired" (citing, among other cases, Lauff v. Wal-Mart Stores, Inc., No.
1:01-CV-777, Oct. 2, 2002 (W.D. Mich. 2002) (not reported in Federal
Supplement); and Sidorowicz v. Chicken Shack, Inc., 469 Mich. 912, 673
N.W.2d 106 (2003)(table))). See also Lugo v. Ameritech Corp., 464 Mich.
512, 518 n.2, 629 N.W.2d 384, 387 n.2 (2001) (holding that whether a
plaintiff has "a particular susceptibility to injury" is "immaterial to
whether an open and obvious danger is nevertheless unreasonably
dangerous"). But see Harris v. Boh Bros. Constr. Co., 322 So. 3d 397, 413
(La. Ct. App. 2021) (concluding that Louisiana's "open and obvious to all"
doctrine did not apply in a negligence action brought by a blind plaintiff).5
5In its summary-judgment motion and in its brief to this Court,
Ganga cites Sidorowicz v. Chicken Shack, Inc., No. 239627, Jan. 17, 2003
9
1200449
As noted, "[i]n a premises-liability setting, we use an objective
standard to assess whether a hazard is open and obvious." Jones Food Co.
v. Shipman, 981 So. 2d 355, 362 (Ala. 2006).
"[I]n order for a defendant-invitor in a premises-liability case
to win a summary judgment or a judgment as a matter of law
grounded on the absence of a duty on the invitor to eliminate
open and obvious hazards or to warn the invitee about them,
the record need not contain undisputed evidence that the
plaintiff-invitee consciously appreciated the danger at the
moment of the mishap."
Sessions v. Nonnenmann, 842 So. 2d 649, 653 (Ala. 2002). " ' "Obvious"
means that the condition and risk are apparent to, and would be
recognized by, a reasonable person in the position of the invitee.
Therefore, the "obvious" test is an objective one.' " Hines v. Hardy, 567 So.
2d 1283, 1284 (Ala. 1990) (quoting Terry v. Life Ins. Co. of Georgia, 551
So. 2d 385, 386 (Ala. 1989)). See also Restatement (Second) of Torts §
(Mich. Ct. App. 2003) (unpublished opinion). In that case, the Michigan
Court of Appeals held that a legally blind plaintiff could not recover in a
premises-liability action after he slipped in a puddle of water in a
restroom because, although the plaintiff was unable to see the water
because of his visual impairment, the water would have been open and
obvious to "an ordinarily prudent person." In the Sidorowicz decision cited
in Prostran, the Michigan Supreme Court denied leave to appeal the
decision of the Michigan Court of Appeals. Owens ignores Sidorowicz.
10
1200449
343A cmt. b. (Am. L. Inst. 1965) (" 'Obvious' means that both the condition
and the risk are apparent to and would be recognized by a reasonable
man, in the position of the visitor, exercising ordinary perception,
intelligence, and judgment.").
There are a number of ways a person with Owens's level of visual
impairment could be injured by alleged hazards that are otherwise open
and obvious and, in fact, pose almost no danger at all to people with
normal vision. Deciding whether an allegedly dangerous condition is open
and obvious based on the point of view of a blind plaintiff might transform
premises owners into insurers against all injuries suffered by people with
significant visual impairment, no matter how harmless the condition is to
people without that impairment. See generally Ex parte Mountain Top
Indoor Flea Mkt., Inc., 699 So. 2d 158, 161 (Ala. 1997) (noting that
premises owners are not insurers of the safety of invitees).6 Ingress to and
6We note that this case does not involve an injury to a child invitee.
See generally Collier v. Necaise, 522 So. 2d 275, 279 (Ala. 1988) ("Surely,
one may postulate many cases in which a child invitee might not be able
to appreciate the perils presented by a dangerous condition that would
appear 'open and obvious' to an adult. The child's ignorance of the danger
in such a case would trigger the duty to warn on the part of the occupier
11
1200449
egress from premises could be deemed unreasonably hazardous based on
any number of factors completely outside the control of a business invitor.
Adopting various and competing common-law standards of care based on
the disability of a particular invitee would impose too great a duty on
premises owners by requiring specific accommodations to alleviate
conditions that are not inherently hazardous or dangerous.
It is not, however, necessary to decide in this case whether a
plaintiff's visual impairment should or should not be ignored in
determining if an allegedly dangerous condition is open and obvious. This
is so because, even taking into consideration Owens's level of visual
impairment, the raised platform was open and obvious. As noted, the
inquiry is an objective one. The question is whether a reasonable person
exercising reasonable care should have discovered the dangerous
condition. Owens alleges that she is completely blind in one eye and
of the land, even though there might be no duty to warn an adult in the
same position. Each of these cases must be examined individually, taking
into account the child's age, experience, and maturity in determining
whether the child invitee is 'ignorant' of the danger so that the duty to
warn remains extant.").
12
1200449
nearly completely blind in the other. She chose to walk backward after
exiting the vehicle in which she was a passenger. Although she typically
uses a cane, she did not do so in this particular instance. There were
family members present who could have helped her, but she chose not to
ask for help. In Coker v. McDonald's Corp., 537 A.2d 549, 551 (Del. Super.
Ct. 1987), the Delaware Superior Court stated that "what is an open and
obvious condition to a blind person depends upon what, if any, tools or
aids the blind person utilizes to discover the condition, and the degree to
which such aids are used." Owens used no tools or aids to discover
obstructions that might have been in her path. Had she taken reasonable
care, she would have discovered the concrete platform. Accordingly, even
considering her particular disability, the alleged danger was open and
obvious.
In a final argument, Owens asserts that Ganga violated the
Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101 et seq.
Although she expressly denies seeking a private civil remedy under the
ADA, she cites opinions from other jurisdictions that, she asserts, indicate
that ADA requirements are relevant to establishing the standard of care
13
1200449
applicable in a state-law premises-liability action. None of the precedent
Owens cites is binding on this Court.
In any event, there appears to be no relevant ADA standard or
violation in the present case. Owens does not actually direct us to any
particular portion of the ADA or a regulation promulgated thereunder.
Instead, she summarizes her expert witness's opinion that having a bench
on top of the raised concrete platform violates the ADA. But, according to
the expert's testimony, that alleged violation is based on a regulatory
standard that prohibits discrimination against disabled persons in the
form of a lack of access to amenities like the bench. In other words, the
alleged ADA violation is based on discrimination against disabled people
who are unable to step onto the platform and reach the bench. Owens's
expert did not opine that the mere presence of the concrete platform itself,
without regard to the bench, constituted a violation of any regulation
promulgated under the ADA aimed at promoting safety for the visually
impaired. To the contrary, he admitted that, if the bench were not
present, there would have been no discrimination and no ADA violation
at all. Thus, Owens has not persuasively demonstrated that the alleged
14
1200449
ADA violation, in the form of a failure to provide equal access to the
bench, was the proximate cause of her fall. Moreover, Owens fails to
clearly and cogently address Ganga's alternative argument that, even if
her negligence claim could possibly be supported by ADA standards, it
nevertheless fails in the event this Court concludes, as we have, that the
alleged danger created by the concrete platform was open and obvious.
In sum, Owens has not demonstrated that the trial court erred in
granting Ganga's motion for a summary judgment, which argued
primarily that Ganga owed Owens no duty because the raised concrete
platform was open and obvious. Accordingly, we affirm the trial court's
judgment.
AFFIRMED.
Bolin, Wise, and Stewart, JJ., concur.
Parker, C.J., concurs in part and concurs in the result.
15
1200449
PARKER, Chief Justice (concurring in part and concurring in the result).
I agree that Ganga Hospitality, LLC, is not liable for the injuries
suffered by Janene Owens when she tripped on the raised concrete
platform. The platform was an open and obvious hazard because a
reasonable person exercising ordinary care under the circumstances,
including the circumstance of being blind, would have perceived it.
Because a premises owner has no duty to remedy or warn invitees about
open and obvious hazards, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 742
(Ala. 2009), and because Owens's argument based on the Americans with
Disability Act, 42 U.S.C. § 12101 et seq., fails for the reasons explained in
the main opinion, her negligence claim must fail.
However, I have a few reservations about the main opinion that
prevent me from concurring fully. First, after correctly explaining that the
open-and-obvious inquiry is an objective one, the main opinion appears to
analyze the obviousness of the platform subjectively, by reference to what
Owens did and failed to do. See ___ So. 3d at ___. To the extent that
evidence of Owens's available means of perception was evidence of what
a reasonable person in her position could have perceived, it was evidence
16
1200449
that the hazard was open and obvious. But the hazard was not open and
obvious merely because Owens could have perceived it. Evidence of what
a particular plaintiff could have done for self-preservation is neither
necessary nor sufficient to determine that a hazard was open and obvious,
because such evidence does not itself establish what would be ordinary
care under the circumstances. It is not difficult to imagine examples
where reasonable care might not require utilizing every available means
of perception. Conversely, a plaintiff might use some means to assist her
perception but still negligently fail to perceive a hazard. By focusing on
Owens's acts and omissions, the opinion seems to stray from the objective
test for obviousness.
In addition, I question the opinion's suggestion that the objectivity
of the open-and-obvious standard requires it to always be based on a
person without visual impairment. I'm not sure that premises owners'
duty to keep premises safe from unreasonably hazardous conditions would
never require a premises owner to account for an invitee's impairment,
visual or otherwise. The open-and-obvious rule is simply a particular
application of the duty of reasonable care. See Restatement (Third) of
17
1200449
Torts: Liability for Physical and Emotional Harm § 51 (Am. L. Inst. 2012)
("[A] land possessor owes a duty of reasonable care to entrants on the land
with regard to ... artificial conditions on the land that pose risks to
entrants on the land ...."); Jenelle Mims Marsh, Alabama Law of Damages
§ 33:13 (6th ed. 2012) (similar); see generally 1 Michael L. Roberts,
Alabama Tort Law § 8.03[7] (6th ed. 2015) (discussing relationship
between land possessor's duty of reasonable care and open-and-obvious
rule). Normally, a premises owner need not remove or warn about hazards
that invitees would ordinarily perceive, because reasonable care, by
definition, does not involve taking extraordinary precautions against
improbable injuries. See 1 Dan B. Dobbs et al., The Law of Torts § 127 (2d
ed. 2011) (explaining that a reasonable person "uses care only to avoid
inflicting risks that are sufficiently great to require precaution"). But
there may be particular situations in which reasonable care does require
a premises owner to account for known or likely impairments of invitees.
Reasonable care by a hotel may not be the same as reasonable care by a
school for the blind; reasonable care by one hosting a visual-arts exhibit
may not be the same as reasonable care by one hosting a convention for
18
1200449
the blind. Accordingly, I do not necessarily share the main opinion's
concern about "[a]dopting various and competing common-law standards
of care," ___ So. 3d at ___. There is one standard -- reasonableness -- but
what is reasonable may depend partly on whether a premises owner has
reason to believe that invitees will have diminished ability to perceive and
avoid hazards.
19 | October 29, 2021 |
3bdd1b7a-332e-4e5a-8df4-5ec82449e21c | Sumter County Board of Education v. University of West Alabama, et al. | N/A | 1190343 | Alabama | Alabama Supreme Court | REL: September 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
SPECIAL TERM, 2021
____________________
1190343
____________________
Sumter County Board of Education
v.
University of West Alabama; Dr. Richard Holland, individually
and in his official capacity as former president of the
University of West Alabama; and Dr. Kenneth Tucker,
individually and in his official capacity as president of the
University of West Alabama
Appeal from Sumter Circuit Court
(CV-18-900027)
MENDHEIM, Justice.
1190343
The Sumter County Board of Education ("the SCBE") appeals from
the Sumter Circuit Court's dismissal of its complaint asserting claims of
reformation of a deed, breach of contract, and fraud, as well as seeking
declaratory and injunctive relief, against the University of West Alabama
("UWA"); UWA's president Dr. Kenneth Tucker, in his individual and
official capacities; and UWA's former president, Dr. Richard Holland, in
his individual and official capacities. We affirm the judgment of the
circuit court.
I. Facts
At the outset of this rendition of the facts, we observe that in their
briefs the parties reference some facts gleaned from the preliminary-
injunction hearing. Although some of those facts shed further light on this
dispute, we cannot consider them in assessing the circuit court's
disposition of the motion to dismiss because, "[i]n considering whether a
complaint is sufficient to withstand a motion to dismiss, this Court must
accept the allegations of the complaint as true." Creola Land Dev., Inc. v.
Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
2
1190343
On a related note, the SCBE attached to its operative third amended
complaint several exhibits containing authenticated documents referenced
in the complaint, including a copy of the sales contract for the property
transaction at the heart of this dispute and an affidavit from the former
superintendent of the SCBE, who was the superintendent at the time the
transaction occurred. In its judgment granting the motion to dismiss, the
circuit court expressly stated that it had considered the attachments to
the SCBE's complaint in rendering its judgment. "Exhibits attached to a
pleading become part of the pleading. See Rule 10(c), Ala. R. Civ. P. ('A
copy of any written instrument which is an exhibit to a pleading is a part
thereof for all purposes.')." Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017).
Moreover, "[a] trial court does not treat a Rule 12(b)(6)[, Ala. R. Civ. P.,]
motion [to dismiss] as a summary-judgment motion by considering
authenticated documents that are attached to the motion to dismiss if
' " 'the document[s are] referred to in the complaint and [are] central to the
plaintiff[s'] claim[s].' " ' " Newson v. Protective Indus. Ins. Co. of Alabama,
890 So. 2d 81, 86 (Ala. 2003) (quoting Donoghue v. American Nat'l Ins.
Co., 838 So. 2d 1032, 1035 (Ala. 2002), quoting in turn other cases).
3
1190343
Therefore, the facts included in the SCBE's attachments to its complaint
are incorporated into our rendition of the facts, and our consideration of
them does not alter the standard of review we apply. With those
observations in mind, we turn to relating the facts before us.
Because a new high school had been built, in early 2010 the SCBE
closed Livingston High School ("LHS"). Shortly thereafter, officials from
UWA approached the SCBE about the possibility of purchasing the LHS
property. On May 17, 2010, then UWA president Dr. Holland sent then
SCBE superintendent Dr. Fred Primm a letter concerning the possible
purchase:
"I am writing on behalf of the University of West
Alabama to express our desire to purchase the Livingston High
School property on School Street in Livingston, Alabama,
when and if it becomes available. ...
"The University plans to use the Livingston High School
Property to house the faculty and students of the Julia
Strudwick College of Education and the administrative offices
for the School of Graduate Studies, the Division of Online
Programs, and the Office of Teacher Certification. As I have
stated on numerous occasions, the University of West Alabama
will not open a charter school or K-12 program in this facility.
The University has no intention of operating such programs
through the University."
4
1190343
(Emphasis added.)
In his affidavit discussing the LHS-property transaction, Dr. Primm
stated that he had "prepared a memo entitled Discussion Terms for Sale
Transaction of Livingston High School," and he attached a copy of that
memo to his affidavit. A portion of the memo labeled "K-12 Competition"
stated that "[t]he university will not start any lab, campus or charter K-12
school in the facility" and that
"[t]he Sumter County Board of Education will not consider any
offer that would allow the property currently housing
Livingston High School to be utilized for any private, charter,
or other pre-K-12 school entity that is not under the control or
supervision of the Sumter County Board of Education, or a
part of the school system that the Sumter County Board of
Education controls, supervises, or manages. Therefore, any
sale of the subject property will be done pursuant to a deed
that contains a covenant that runs with the land, and which
shall last so long as there continues to be a Sumter County
Board of Education, or any successor to the Sumter County
Board of Education, that may be created by the State of
Alabama to control, supervise, or manage public education in
Sumter County, Alabama, or any successor political
subdivision of the State of Alabama, which encompasses the
geographical region now organized as Sumter County,
Alabama."
The memo also contained terms concerning facilities and maintenance as
well as financing for the sale of the LHS property. The last entry in the
5
1190343
memo stated: "Special Note: These terms have not been approved by the
[Alabama State] Board of Education. As we have more in-depth
discussions, there may be additional proposals by the Board."
The "special note" in Dr. Primm's memo hinted at the fact that in
July 2010, per the power invested in the Alabama State Board of
Education ("the ASBE") by § 16-6B-4, Ala. Code 1975, the ASBE had
intervened and had assumed control of the Sumter County school system
due to the SCBE's financial difficulties.1 As a result, when the SCBE
1Section 16-6B-4, Ala. Code 1975, provides, in part:
"Following the analysis of the financial integrity of each
local board of education as provided in subsection (a) or (b) of
Section 16-13A-2, [Ala. Code 1975,] if a local board of
education is determined to have submitted fiscally unsound
financial reports, the State Department of Education shall
provide assistance and advice. ... If after a reasonable period
of time the State Superintendent of Education determines that
the local board of education is still in an unsound fiscal
condition, a request shall be made to the State Board of
Education for the direct control of the fiscal operation of the
local board of education. If the request is granted, the State
Superintendent of Education shall present to the State Board
of Education a proposal for the implementation of
management controls necessary to restore the local school
system to a sound financial condition. Upon approval by the
State Board of Education, the State Superintendent of
6
1190343
executed a "Sales Contract" with UWA on May 19, 2011, for the purchase
of the LHS property, the contract was signed on the SCBE's behalf by then
State Superintendent of Education Dr. Joseph Morton. The total
purchase price for the LHS property was $4 million. The sales contract
contained a section addressing restrictive covenants that provided, in
part:
Education shall appoint an individual to be chief financial
officer to manage the fiscal operation of the local board of
education, until such time as the fiscal condition of the system
is restored. The chief financial officer shall perform his or her
duties in accordance with rules and regulations established by
the State Board of Education in concert with applicable
Alabama law. Any person appointed by the State
Superintendent of Education to serve as chief financial officer
to manage the fiscal operation of a local board of education ...
shall not be required to receive approval of the local
superintendent to expend monies. ... The State
Superintendent of Education, directly or indirectly through the
chief financial officer, may direct or approve such actions as
may in his or her judgment be necessary to: (1) Prevent
further deterioration in the financial condition of the local
board; (2) restore the local board of education to financial
stability; and (3) enforce compliance with statutory,
regulatory, or other binding legal standards or requirements
relating to the fiscal operation of the local board of education.
..."
7
1190343
"6. CONVEYANCE
The Seller agrees to convey the
Property to Purchaser by statutory warranty deed, free of
encumbrances, except as herein set forth, and Seller agrees
that encumbrances not herein exempted as assumed will be
cleared at the time of Closing. The Property is sold and is to
be conveyed subject to:
"....
"(d)
the following covenants, which shall be
included as covenants in the statutory
warranty deed from Seller to Purchaser:
"i.
The University of West Alabama
shall not permit the Property to
be utilized for any private,
charter, or other school entity
serving students in kindergarten
through twelfth grade or in pre-
kindergarten
educational
programs, unless said school or
programs are under the control or
supervision of the Sumter County
Board of Education, or are a part
of the school system that the
Sumter
County
Board
of
Education controls, supervises, or
manages."
(Emphasis added.) Section 6(d)(i) of the sales contract is hereinafter
referred to as "the restrictive covenant." In his affidavit, Dr. Primm
stated that he received a copy of the sales contract in May 2011.
8
1190343
On May 24, 2011, a "Statutory Warranty Deed" conveying the LHS
property from the SCBE to UWA ("the deed") was executed, and it was
signed on the SCBE's behalf by Dr. Morton. The deed did not contain any
restrictions on the LHS property or its use. The deed was recorded in the
Sumter Probate Court on June 27, 2011. The deed indicated that it was
prepared by attorney James H. Patrenos, Jr. The SCBE alleged in its
complaint that Patrenos "was hired by UWA to draft the Sales Contract
and the Deed for the old Livingston High School property." After UWA
acquired the LHS property, it renamed the LHS building Lyon Hall. It is
undisputed that in July 2011 the ASBE returned control of the Sumter
County school system to the SCBE.
In March 2015, the Alabama Legislature enacted the Alabama
School Choice and Student Opportunity Act ("the Act"), § 16-6F-1 et seq.,
Ala. Code 1975.
"Generally speaking, the [Act], for the first time, established
state authority for the creation of 'public charter schools,'
which, unlike 'non-charter public schools' that are 'under the
direct management, governance, and control of a local school
board or the state,' are governed by 'independent governing
board[s]' and exercise 'autonomy over ... decisions concerning
finance, personnel, scheduling, curriculum, instruction, and
9
1190343
procurement.' Compare Ala. Code 1975, § 16-6F-4(14), with
Ala. Code 1975, § 16-6F-4(16), Ala. Code 1975. The [Act]
provides, however, that a public charter school 'shall not be
established in this state' unless duly authorized by either
(a) '[a] local school board, for chartering of schools within the
boundaries of the school system under its jurisdiction,' if such
a local school board registers itself as an 'authorizer' under the
[Act], or (b) the [Alabama Public Charter School] Commission.
Ala. Code 1975, § 16-6F-6(a)."
Ex parte Alabama Pub. Charter Sch. Comm'n, 256 So. 3d 98, 99-100 (Ala.
Civ. App. 2018).
In its complaint, the SCBE alleged: "On April 3, 2017, Defendant
UWA's counsel James Hiram Patrenos, Jr. recorded a 'Scrivener's
Affidavit' in the Probate Court of Sumter County. In the Affidavit,
Mr. Patrenos declared ... that the private/charter school restrictive
covenant[s] were inadvertently omitted from the Deed."2 The "scrivener's
affidavit" stated that it was "given to correct the omission of these
covenants in the Deed ...."
2The second restrictive covenant referred to in the "scrivener's
affidavit" stated that "[t]he University of West Alabama's Campus School
will not be moved to the Property." That covenant is not in issue in this
appeal.
10
1190343
In May 2017, the University Charter School ("UCS") filed an
application with the Alabama Public Charter School Commission
("the APCSC") to establish a charter school in Sumter County. In its
application, UCS stated that the LHS property was its first choice for the
location of the school. The APCSC approved UCS's application in
July 2017. In October 2017, it was publicly announced that UWA had an
agreement with UCS for UCS to use the LHS property to house its school.3
The SCBE's complaint alleged that in November 2017 the SCBE contacted
UWA president Dr. Tucker and "requested that Defendant UWA honor its
covenant not to use Livingston High School property as a K-12 charter
3We note that in its complaint the SCBE alleged that, "[i]n October
2017, UWA publicly announced that it would open a K-12 charter school
on the old Livingston High School property." The SCBE also makes
several references in its brief to UWA's operating a charter school on the
LHS property. However, UCS is a separate entity from UWA. Section 16-
6F-4(16)b. & f.1., Ala. Code 1975, of the Act specifically state that "[a]
public school formed pursuant to [the Act]" must be "governed by an
independent governing board that is a 501(c)(3) tax-exempt organization"
and "[p]rovide[] an educational program" that "[i]ncludes any grade or
grades from prekindergarten to 12th grade." In contrast, UWA is an
institution of higher learning created by a different statutory scheme. See
§ 16-53-1 et seq., Ala. Code 1975. Under the Act, UWA cannot operate or
control UCS.
11
1190343
school." However, UCS continued its preparations, and in August 2018
UCS opened its charter school on the LHS property with over 300
students attending.
On May 17, 2018, the SCBE filed a complaint in the Sumter Circuit
Court against UWA; Dr. Tucker, in his individual and official capacities;
Dr. Holland, in his individual and official capacities; each of the members
of the UWA Board of Trustees; UCS; and each member of UCS's
Governing Board. The original complaint alleged a claim of fraud and
sought preliminary and permanent injunctive relief preventing the
operation of the UCS charter school on the LHS property.
On June 22, 2018, UCS and its board members ("the UCS
defendants") filed a motion to dismiss the complaint for a number of
reasons. On July 11, 2018, the SCBE filed a notice of dismissal of the
UCS defendants from the action. On July 12, 2018, UWA, Dr. Tucker,
Dr. Holland, and the UWA board members ("the UWA defendants") filed
a motion to dismiss the complaint. The motion contended that the UWA
board members were due to be dismissed for several reasons and that the
action as a whole was due to be dismissed for failing to join an
12
1190343
indispensable party -- namely, UCS. On the same date, the SCBE filed a
withdrawal of its notice of dismissal of the UCS defendants.
On July 12, 2018, a hearing was held on the SCBE's application for
a preliminary injunction in which testimony was taken from several
witnesses and evidence was submitted by the SCBE and UWA. On
July 13, 2018, the circuit court entered two orders. In the first order, the
circuit denied the SCBE's application for a preliminary injunction. In the
second order, the circuit court recognized that, based upon an agreement
between the SCBE and the UCS defendants, the SCBE's fraud claim
against the UCS defendants was dismissed. The SCBE did not appeal the
circuit court's denial of its application for a preliminary injunction.
On October 26, 2018, the SCBE filed an "Amended Complaint" that
listed the same defendants as in the original complaint, but it asserted
claims of breach of contract against most of the UWA defendants, fraud
against some of the UWA defendants, and unjust enrichment against
some of the UWA defendants and sought a permanent injunction against
all the defendants preventing them "from allowing and/or operating a
K-12 school on the [LHS] property." On January 25, 2019, the SCBE filed
13
1190343
a "Second Amended Complaint" that again listed the same defendants and
the same claims, except that it added a claim seeking reformation of the
deed because of a "mutual mistake" based on the "scrivener's affidavit."
On February 27, 2019, the SCBE filed a "Third Amended Complaint
for Reformation of Deed and Declaratory Judgment." That complaint,
which is the operative one for this appeal, significantly pared down the
defendants, alleging claims against only UWA; Dr. Tucker, in his
individual and official capacities; and Dr. Holland, in his individual and
official capacities ("the University defendants"). The complaint alleged
claims of reformation of the deed because of a mutual mistake, fraud, and
breach of contract. Additionally, the SCBE sought a judgment declaring
"that there was a mutual mistake in failing to include the restrictive
covenant in the Deed conveying the old Livingston High School property
to the University of West Alabama" and a permanent injunction "to
immediately cease and desist from operating a private, charter, or any K-
12 school on the site of the old Livingston High School without the
approval of the Sumter County Board of Education." On March 7, 2019,
the University defendants filed a Rule 12(b)(6), Ala. R. Civ. P., motion to
14
1190343
dismiss the third amended complaint, arguing, among other things, that
the restrictive covenant prohibiting the operation of a charter school on
the LHS property was void based on the public policy advanced in the Act.
On April 5, 2019, the University defendants filed a Rule 12(b)(7) motion
to dismiss for failing to join indispensable parties because the UCS
defendants were no longer named as defendants in the action.
On April 5, 2019, the circuit court held a hearing on all pending
motions to dismiss. In the hearing, the SCBE agreed to voluntarily
dismiss all defendants not named in the third amended complaint. On
April 26, 2019, the circuit court entered an order recognizing that "all
parties and all claims not named in the Third Amended Complaint ... have
been voluntarily dismissed by [the SCBE]."
On April 26, 2019, the circuit court entered a judgment granting the
University defendants' motions to dismiss the SCBE's action with
prejudice. Specifically, the circuit court stated:
"UWA, Dr. Tucker, and Dr. Holland moved for dismissal
of the Third Amended Complaint on multiple grounds. Each
of these grounds, standing alone, are sufficient reason for
dismissal of all or part of the Third Amended Complaint's
claims. One ground for dismissal is that the relief sought by
15
1190343
the Sumter County Board of Education violates the public
policy of the State of Alabama described in the Alabama School
Choice and Student Opportunity Act, Alabama Code
§§ 16-6F-1 (1975) et seq., and particularly Alabama Code
§ 16-6F-11(b)(1).
"Additionally, U WA, Dr. Holland, and Dr. Tucker are the
sole remaining Defendants in the Third Amended Complaint.
Considering the relief sought by the Sumter County Board of
Education, an injunction, a party needed for a just
adjudication, the University Charter School, is no longer a
party in the Third Amended Complaint. See Ala. R. Civ. P.
19."
On May 24, 2019, the SCBE filed a postjudgment motion to alter,
amend, or vacate the circuit court's judgment. On August 22, 2019, the
SCBE's postjudgment motion was denied by operation of law pursuant to
Rule 59.1, Ala. R. Civ. P. The SCBE appealed the circuit court's judgment
on October 3, 2019.
II. Standard of Review
" 'On appeal, a dismissal is not entitled to a presumption
of correctness. The appropriate standard of review under Rule
12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of
the complaint are viewed most strongly in the pleader's favor,
it appears that the pleader could prove any set of
circumstances that would entitle her to relief. In making this
determination, this Court does not consider whether the
plaintiff will ultimately prevail, but only whether she may
possibly prevail. We note that a Rule 12(b)(6) dismissal is
16
1190343
proper only when it appears beyond doubt that the plaintiff
can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.' "
Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 791 (Ala.
2007) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).
III. Analysis
The SCBE contends that the circuit court erred in accepting each of
the University defendants' arguments for dismissal of the action. The
University defendants' primary argument -- and the first one expressly
mentioned in the circuit court's dismissal order -- was that the restrictive
covenant is void based on the public policy expressed in the Act that
charter schools should be encouraged and promoted in Alabama. In
particular, the circuit court noted § 16-6F-11(b), Ala. Code 1975, which
provides:
"(b) Access to local school system facilities and land.
"(1) A public charter school shall have a right
of first refusal to purchase or lease at or below fair
market value a closed or unused public school
facility or property located in a school system from
which it draws its students if the school system
decides to sell or lease the public school facility or
property.
17
1190343
"(2) Unused facility means a school building
or other local board of education owned building
that is or could be appropriate for school use, in
which more than 60 percent of the building is not
being used for direct student instruction or critical
administration purposes and for which no offer to
purchase has been executed.
"(3) The department shall publish the names
and addresses of unused facilities on its website in
a list that is searchable at least by each facility's
name and address. This list shall be updated at
least once a year by May 1."
(Emphasis added.) In addition to § 16-6F-11(b), the University defendants
highlighted in their argument to the circuit court, and reiterate to this
Court, several other sections of the Act. Subsection (a) of § 16-6F-2, Ala.
Code 1975, declares that the purpose of the Act is that "[p]ublic charter
schools may be established in Alabama in accordance with [the Act]," and
subsection (b) provides that "[the Act] shall be interpreted to support the
findings and purposes of [the Act] and to advance the continued
commitment of the state to the mission and goals of public education."
Section 16-6F-3, Ala. Code 1975, titled "Legislative findings," states, in
part:
"The Legislature finds and declares all of the following:
18
1190343
"(1) It is in the best interests of the people of
Alabama to provide all children with access to high
quality public schools.
"(2) It is necessary to continue to search for
ways to strengthen the academic performance of
elementary and secondary public school students.
"....
"(6) Public school programs, whenever
possible, should be customized to fit the needs of
individual children.
"(7) Students of all backgrounds are entitled
to access to a high quality education.
"(8) Therefore, with [the Act], the Legislature
intends to accomplish all of the following:
"a. Provide school systems and
communities with additional tools that
may be used to better meet the
educational needs of a diverse student
population.
"b.
Encourage
innovative
educational ideas that improve student
learning for students at all academic
levels.
"c. Empower educators to be
nimble and strategic in their decisions
on behalf of students.
19
1190343
"d. Provide additional high quality
educational options for all students,
especially students in low performing
schools.
"e. Create public schools with
freedom and flexibility in exchange for
exceptional results.
"f. Foster tools and strategies to
close
achievement
gaps
between
high-performing and low-performing
groups of public school students."
Section 16-6F-6(c)(2), Ala. Code 1975, provides that the mission of the
APCSC, which approved UCS's application to establish a charter school
in Sumter County, "is to authorize high quality public charter schools, in
accordance with the powers expressly conferred on the [APCSC] in [the
Act]." Subsection (e) of § 16-6F-6 explains:
"If a local school board chooses not to register as an authorizer,
all applications seeking to open a start-up public charter
school within that local school board's boundaries shall be
denied. Applicants wishing to open a public charter school
physically located in that local school system may apply
directly to the [APCSC]."
UCS filed its application directly with the APCSC, meaning that the
SCBE has chosen not to register as an authorizer of charter schools within
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the boundaries of the school system it oversees. Subsections (p)(1) and
(p)(2) of § 16-6F-6 state that among the "essential powers and duties" of
all "authorizers" of public charter schools are "[s]oliciting and evaluating
charter applications based on nationally recognized standards" and
"[a]pproving quality charter applications that meet identified educational
needs and promote a diversity of high-quality educational choices."
Similarly, § 16-6F-7(a)(1), Ala. Code 1975, provides:
"To solicit, encourage, and guide the development of quality
public charter school applications, every local school board, in
its role as public charter school authorizer, shall issue and
broadly publicize a request for proposals for public charter
school applications by July 17, 2015, and by November 1 in
each subsequent year. The content and dissemination of the
request for proposals shall be consistent with the purposes and
requirements of [the Act]."
Thus, authorizers not only are to accept and consider charter-school
applications, but also are to actively encourage and solicit qualified
organizations to apply for establishing public charter schools in Alabama.
The SCBE's primary response to the University defendants' public-
policy argument is not to question the nature of the public policies
advanced by the Act -- the SCBE repeatedly states in its brief that "the
21
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Legislature's intent" in enacting the Act was "to encourage [the] creation
and growth of public charter schools." The SCBE's brief, p. 15; see also
id., pp. 17 and 39. Instead, the SCBE argues that the circuit court's
application of those public policies to the restrictive covenant constitutes
an improper retroactive application of the Act to the sales contract. "In
Alabama, retrospective application of a statute is generally not favored,
absent an express statutory provision or clear legislative intent that the
enactment apply retroactively as well as prospectively." Jones v. Casey,
445 So. 2d 873, 875 (Ala. 1983). The SCBE observes that the Act does not
contain any language indicating that it should apply retroactively. As we
noted in the rendition of the facts, the sales contract was executed on
May 19, 2011, and the Act became effective in March 2015. Thus, the
SCBE argues that the circuit court erred in applying the public policies of
the Act to void the restrictive covenant in the sales contract.
However, the SCBE misunderstands what the circuit court was
being asked to do in this case. The circuit court was not being asked to
assess the meaning of the sales contract at the time it was executed or to
determine whether actions taken at the time of the sale conformed to the
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law at that time, i.e., in 2011. Instead, the circuit court was being asked
to assess whether a provision of the sales contract that the SCBE sought
to enforce against the University defendants at the time the judgment was
rendered was contrary to Alabama public policy at that time, i.e., in 2019.
Black's Law Dictionary states that the term "retroactive," in reference to
a statute, concerns "extending [a law's] scope or effect to matters that
have occurred in the past." Black's Law Dictionary 1575 (11th ed. 2019).
The SCBE's lawsuit does not concern matters that occurred in the past
but, rather, seeks enforcement of the restrictive covenant at the present
time. As the University defendants observe, this Court previously has
stressed that when the void-for-public-policy defense is invoked with
respect to a contract, we are concerned with the law at the time of the
contract's enforcement, not its formation. See the University defendants'
brief, pp. 28-29. For example, in Ex parte PT Solutions Holdings, LLC,
225 So. 3d 37, 43 (Ala. 2016), the Court stated:
"The problem with this argument is that White
misunderstands the statement in M/S Bremen[ v. Zapata Off-
Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513
(1972)]. The Supreme Court stated that a forum-selection
clause 'should be held unenforceable if enforcement [of the
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clause] would contravene a strong public policy of the forum in
which suit is brought.' Id. In other words, the Court was
saying that enforcement of the forum-selection clause must
contravene a state's public policy, not that the clause should be
held unenforceable if enforcement of the contract that contains
the clause would contravene a state's public policy."
(Emphasis altered.) See generally Limestone Creek Devs., LLC v. Trapp,
107 So. 3d 189, 193 (Ala. 2012) ("[T]he judicial system may not be used to
enforce illegal contracts.").
The United States Supreme Court highlighted the importance of
judicial enforcement of restrictive covenants in Shelley v. Kraemer, 334
U.S. 1 (1948), when it declared that judicial enforcement of racially
discriminatory restrictive covenants violated the Fourteenth Amendment
to the United States Constitution.
"These are not cases, as has been suggested, in which the
States have merely abstained from action, leaving private
individuals free to impose such discriminations as they see fit.
Rather, these are cases in which the States have made
available to such individuals the full coercive power of
government to deny to petitioners, on the grounds of race or
color, the enjoyment of property rights in premises which
petitioners are willing and financially able to acquire and
which the grantors are willing to sell. The difference between
judicial enforcement and nonenforcement of the restrictive
covenants is the difference to petitioners between being denied
rights of property available to other members of the
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community and being accorded full enjoyment of those rights
on an equal footing."
Shelley, 334 U.S. at 19 (emphasis added). In other words, judicial
enforcement of a racially discriminatory restrictive covenant was the state
action that produced a conflict with the Fourteenth Amendment, i.e., the
racially discriminatory restrictive covenants had no force absent judicial
enforcement of them. See Hutton v. Shamrock Ridge Homeowners Ass'n,
No. 3:09-CV-1413-O, Dec. 14, 2009 (N.D. Tex. 2009) (not reported in
Federal Supplement) (explaining that the Shelley Court had held that
"[t]he state action was found in the judicial enforcement that gave life to
the covenants' threatened discrimination" (emphasis added)). See also
Callahan v. Weiland, 291 Ala. 183, 190, 279 So. 2d 451, 457 (1973) (noting
that a "racially restrictive covenant is unenforceable since Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 [(1948)] ...."). Thus, the
law at the time of the judicial enforcement of a restrictive covenant is
what matters with respect to the viability of the covenant in relation to
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state public policy.4 See generally Farshad Ghodoosi, The Concept of
Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in
the Enforcement of Private Legal Arrangements, 94 Neb. L. Rev. 685, 696
(2016) (noting that "[t]he public policy exception .... does not bear on the
formation of contracts but on their effects").
This understanding is in keeping with the principle that when a
contract is legal at the time of formation, and a subsequent enactment of
law renders the subject of the contract illegal before the time for
performance expires, the contract is void.
"The general rule is that, where the performance of a contract
becomes impossible subsequent to the making of same, the
promisor is not thereby discharged. ... But this rule has its
exceptions, and these exceptions are where the performance
becomes impossible by law, either by reason of a change in the
law, or by some action or authority of the government. ... It
is generally held that, where the act or thing contracted to be
done is subsequently made unlawful by an act of the
4That the law at the time of enforcement of the restrictive covenant
is what is relevant is also reflected in applications of the change-in-the-
neighborhood test. See, e.g., AmSouth Bank, N.A. v. British W. Fla.,
L.L.C., 988 So. 2d 545, 550 (Ala. Civ. App. 2007) (explaining that, "[u]nder
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").
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Legislature, the promise is avoided. Likewise, where the
performance depends upon the continued existence of a thing
which is assumed as a basis of the agreement, the destruction
of the thing by the enactment of a law terminates the
obligation."
Greil Bros. v. Mabson, 179 Ala. 444, 450-51, 60 So. 876, 878 (1912). See
also Garrett v. Colbert Cnty. Bd. of Educ., 255 Ala. 86, 92, 50 So. 2d 275,
279 (1950) (explaining that "[w]hile the law as it now stands would enter
into the contract, ... it would do so subject to the reserved power of the
State to legislate, which would be a part of it as well as its terms"). Greil
Brothers is an excellent example, a situation in which
"the plaintiff leased premises in the City of Montgomery to the
defendant, ' "for occupation as a bar, and not otherwise." '
Thereafter, on November 23, 1907, the General Assembly of
Alabama enacted a prohibition law, making it unlawful to sell
liquor. The defendant abandoned the premises, and refused to
pay rent. The plaintiff brought an action to collect on rent
notes, and had judgment.
"On appeal, this court reversed, holding that the bar
operator was excused from performance of his contract because
such performance had been prohibited by the Legislature."
Hawkins v. First Fed. Sav. & Loan Ass'n, 291 Ala. 257, 261, 280 So. 2d 93,
96 (1973). Thus, in Greil Brothers the landlord could not obtain judicial
enforcement of the lease agreement's rental-payment obligation against
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the tenant because the purpose for which the premises had been rented
was rendered illegal by a legislative enactment subsequent to when the
contract was executed.
In this case, the restrictive covenant was permissible under the law
when the sales contract was executed in 2011, but subsequently the
legislature enacted the Act, and the SCBE now seeks to enforce the
restrictive covenant at a time when the Act governs public policy with
respect to charter schools. Under that scenario, the University defendants
are correct that the law at the time of enforcement of the restrictive
covenant is what governs, and applying the public policies of the Act to the
restrictive covenant does not constitute retroactive application of the law.5
5No argument has been raised concerning whether the application
of the Act to the restrictive covenant constitutes an improper impairment
of the obligation of contracts. See, e.g., U.S. Const., Art. I, § 10, cl. 1;
Art. I, § 22 & Art. IV, § 95, Ala. Const. of 1901. We note, however, that
the state's general police powers are not inhibited by those constitutional
provisions. See, e.g., Energy Rsrvs. Grp., Inc. v. Kansas Power & Light
Co., 459 U.S. 400, 410 (1983) ("Although the language of the Contract
Clause is facially absolute, its prohibition must be accommodated to the
inherent police power of the State 'to safeguard the vital interests of its
people.' " (quoting Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 434
(1934))); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 108-09 (1938)
("[E]very contract is made subject to the implied condition that its
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Having addressed the SCBE's objection on retroactivity, we come to
the central issue of whether the public policies of the Act render
enforcement of the restrictive covenant void. On that question, we
recognize that "[p]ublic policy is a phrase of exceeding great generality,
and in every case needs definition with reference to the facts involved."
Anderson v. Blair, 202 Ala. 209, 211, 80 So. 31, 33 (1918). In that regard,
we find it compelling that the University defendants heavily rely upon
fulfillment may be frustrated by a proper exercise of the police power, but
we have repeatedly said that, in order to have this effect, the exercise of
the power must be for an end which is in fact public and the means
adopted must be reasonably adapted to that end ...."); First Nat'l Bank of
Birmingham v. Jaffe, 239 Ala. 567, 571, 196 So. 103, 106 (1940) ("The
police power which will enable the legislature to impair a vested or
contract right, does not exist unless it be for an end which is in fact public,
and the means adopted must be reasonably adapted to that end."); City of
Mobile v. Mobile Elec. Co., 203 Ala. 574, 577, 84 So. 816, 818 (1919) ("[A]
legitimate use of th[e] police power does not impair the obligation of a
contract"), overruled on other grounds by Alford v. City of Gadsden, 349
So. 2d 1132 (Ala. 1977). It is axiomatic that the establishment and
regulation of public schools is included within the state's police powers.
See, e.g., Barbier v. Connolly, 113 U.S. 27, 31 (1884) (defining the "police
power" in part as "the power of the state ... to prescribe regulations to
promote the health, peace, morals, education, and good order of the
people" (emphasis added)); City of Bessemer v. Bessemer Theatres, Inc.,
252 Ala. 117, 120-21, 39 So. 2d 658, 661 (1949) (holding that an ordinance
apportioning tax revenues for " 'the operation and maintenance of public
schools' " was permissible "under the police power").
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Cincinnati City School District Board of Education v. Conners, 132 Ohio
St. 3d 468, 974 N.E.2d 78 (2012), a case that -- aside from the fact that it
was decided in another jurisdiction -- is nearly on all fours with the facts
of the present case. Indeed, the only distinction the SCBE draws between
Conners and this case is that
"the deed restriction in the Cincinnati case was entered into
after the applicable statute was already in place. [132 Ohio St.
3d at 469, 974 N.E.2d] at 80. Here, [the SCBE] and UWA
freely entered into the Sales Contract with the restrictive
covenant before any legislation was enacted that encouraged
the growth and support of charter schools."
The SCBE's brief, p. 17. However, as we already have explained, the date
the sales contract was executed is irrelevant with respect to the current
enforcement of the restrictive covenant. Therefore, the SCBE's attempt
to distinguish Conners fails, and because Conners is so pivotal to the
University defendants' argument, we will quote at length from the Ohio
Supreme Court's decision.
The Conners court summarized the relevant facts as follows:
"In June 2009, CPS [the Cincinnati City School District
Board of Education] conducted a public auction for nine of its
vacant school buildings. The promotional materials for the
auction advised that the auctioned buildings 'may not be used
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as any type of educational facility.' In the June 9, 2009
purchase and sale agreement, the buyer agreed to 'use the
Property for "commercial development" ' and 'not to use the
Property for school purposes.' The buyer further agreed 'that
the deeds to the Property will be restricted to prohibit future
use of the Property for school purposes,' but the agreement
added that this provision does not apply to CPS, which would
be allowed to repurchase the property 'for school purposes.'
Because CPS had decided that the school buildings were 'not
suitable for use as classroom space' pursuant to former [Ohio
Rev. Code] 3313.41(G), 151 Ohio Laws, Part V, 8764, 8788-
8789, CPS did not offer them for sale to community[6] schools
before auction.
"The appellees, Dr. Roger Conners and his mother,
Deborah Conners, were the only bidders to bid at auction on
the former Roosevelt School located on Tremont Street in
Cincinnati. They bid $30,000 for the property and on June 9,
2009, entered into the purchase and sale agreement containing
the deed restriction. On an exhibit attached to the purchase
agreement entitled 'Intended use,' appellees were asked to
describe how they would use the property. They responded,
'Not sure' and 'possible re-sale to another interest buyer.' Title
was conveyed by a quitclaim deed on June 30, 2009. On
October 8, 2009, the appellees received conditional-use
approval from Cincinnati's Office of the Zoning Hearing
Examiner to 'reopen the school as a charter school.' The
following January, appellees, through counsel, notified the
CPS school board and its chief legal counsel that the deed
restriction was void as against public policy and that they
intended to open a charter school in August 2010."
6"Community school" is the term Ohio law uses to refer to charter
schools. Ohio Rev. Code Ann. § 3314.01(B).
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Conners, 132 Ohio St. 3d at 468-69, 974 N.E.2d at 79-80. The Conners
court then described some of the statutes pertaining to the right of Ohio's
public schools to sell their old school buildings.
"Ohio boards of education are creations of statute, and
their authority is derived from and strictly limited to powers
that are expressly granted by statute or clearly implied
therefrom. Schwing v. McClure, 120 Ohio St. 335, 166 N.E.
230 (1929), syllabus. A board of education is 'a mere
instrumentality of the state to accomplish its purpose in
establishing and carrying forward a system of common schools
throughout the state.' Cincinnati Bd. of Edn. v. Volk, 72 Ohio
St. 469, 485, 74 N.E. 646 (1905).
"In enacting [Ohio Rev. Code] 3313.17, the General
Assembly gave boards of education the discretionary authority
to contract with other parties in order to administer Ohio's
system of education. When a board of education is vested with
discretion, that discretion should not be disturbed by the
courts as long as the exercise of it is reasonable, in good faith,
and not clearly shown to be an abuse of discretion. Greco v.
Roper, 145 Ohio St. 243, 250, 61 N.E.2d 307 (1945). A board
of education, however, also has a duty 'to manage the schools
in the public interest.' Xenia City Bd. of Edn. v. Xenia Edn.
Assn., 52 Ohio App. 2d 373, 377, 370 N.E.2d 756 (2d
Dist.1977). Thus, while a board of education has the authority
to contract, it must do so with the public in mind.
"The General Assembly also enacted legislation that
placed restrictions on a board of education's authority to
dispose of property. [Ohio Rev. Code] 3313.41 governs school
districts' discretionary sale or donation of school buildings.
The statute in effect at the time this suit was filed, former
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[Ohio Rev. Code] 3313.41(G)(1), 151 Ohio Laws, at 8788-8789,
required that before a school district sells a school building
" 'suitable for use as classroom space, prior to
disposing of that property under divisions (A) to (F)
of this section it shall first offer that property for
sale to the governing authorities of the start-up
community schools established under Chapter 3314
... at a price that is not higher than the appraised
fair market value of that property.'
"....
"These statutes show that the General Assembly did not
intend that a board of education have an unfettered right to
dispose of its property. They also indicate a legislative
preference for giving charter schools the opportunity to operate
out of unused public school buildings, a rational choice because
charter schools are themselves ' "public schools ... and part of
the state's program of education." ' State ex rel. Ohio Congress
of Parents & Teachers v. State Bd. of Edn., 111 Ohio St. 3d
568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 26, quoting [Ohio
Rev. Code] 3314.01(B).
"Legislation on charter schools was adopted when the
General Assembly enacted [Ohio Rev. Code] Chapter 3314 in
1997, referred to as 'the Community Schools Act.' Am. Sub.
H.B. No. 215, 147 Ohio Laws, Part I, 909, 1187. In enacting
[Ohio Rev. Code] Chapter 3314, the General Assembly
declared that its purposes included 'providing parents a choice
of academic environments for their children and providing the
education community with the opportunity to establish limited
experimental educational programs in a deregulated setting.'
Am. Sub. H.B. No. 215, Section 50.52, Subsection 2(B), 147
Ohio Laws, Part I, 2043. The General Assembly defined what
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it meant by community schools and explained, 'A community
school created under this chapter is a public school,
independent of any school district, and is part of the state's
program of education.' [Ohio Rev. Code] 3314.01(B)."
Conners, 132 Ohio St. 3d at 470-72, 974 N.E.2d at 81-82 (emphasis
added). The Conners court then
"turn[ed] to the deed restriction to determine whether
including it in CPS's contracts violates a stated public policy.
"....
"Deed restrictions are generally disfavored and will be
'strictly construed against limitations upon ... use, and ... all
doubts should be resolved against a possible construction
thereof which would increase the restriction upon the use of
such real estate.' Loblaw, Inc. v. Warren Plaza, Inc., 163 Ohio
St. 581, 127 N.E.2d 754 (1955), paragraph two of the syllabus.
The restriction in Section 8 of the purchase and sale
agreement states:
" 'B. Buyer agrees not to use the Property for school
purposes, and that the deed to the Property will be
restricted to prohibit future use of the Property for
school purposes. Such deed restriction will not
apply to the Seller, and will not prevent the Seller
from repurchasing any portion of the Property in
the future and using the Property for school
purposes.'
"The restriction, on its face, prevents the free use of the
property for educational purposes. The language thus directly
frustrates the state's intention to make classroom space
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available to community schools, as evidenced by [Ohio Rev.
Code] 3313.41(G). Furthermore, the restriction is not neutral;
it seeks to thwart competition by providing that the restriction
applies to all buyers except CPS itself. This consequence
hinders the results that the General Assembly has created
under [Ohio Rev. Code] 3313.41, 3318.08, 3318.50, 3318.52,
and the Ohio Community Schools Act -- that is, allowing
unused school buildings to be transferred to community
schools that will use the building to provide school choice.
"In 2001, the state established the 'Community School
Classroom Facilities Loan Guarantee Program' and the
'Community School Classroom Facilities Loan Guarantee
Fund' to help charter schools acquire buildings at a lower cost.
[Ohio Rev. Code] 3318.50 and 3318.52. The program supplies
funds to charter schools to assist them with 'acquiring,
improving, or replacing classroom facilities for the community
school by lease, purchase, remodeling of existing facilities, or
any other means including new construction.' [Ohio Rev.
Code] 3318.50(B).
"In our view, the statutes reflect the General Assembly's
purpose of requiring boards of education to sell unused school
buildings to community schools by giving them first refusal,
ensuring that the price is fair, and financially assisting them
through a loan program to purchase adequate classroom space.
The General Assembly continues to clarify its intent that
unused public school buildings should be offered to community
schools without restriction, as evidenced by the recent changes
to the language of [Ohio Rev. Code] 3313.41(G), where the
General Assembly removed the term 'suitable for classroom
space' from the law. The deed restriction in this case is at odds
with these statutes. The restriction adds barriers to building
purchases that the legislature seeks to prevent.
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"....
"We emphasize that we continue to uphold the
importance of the freedom to contract and recognize the
narrowness of the doctrine on public policy. In this case,
however, involving a contract between a private party and a
political subdivision, there is a compelling reason to support
the application of the doctrine. We therefore hold that the
inclusion of a deed restriction preventing the use of property
for school purposes in the contract for sale of an unused school
building is unenforceable as against public policy."
Conners, 132 Ohio St. 3d at 472-75, 974 N.E.2d at 82-85 (emphasis
added).
We agree with the reasoning employed in Conners, and we find that
its reasoning straightforwardly applies to the similar facts in this case.
As it is in Ohio, in Alabama
"[t]he power to declare a contract void based on a violation of
public policy ' "is a very delicate and undefined power and, like
the power to declare a statute unconstitutional, should be
exercised only in cases free from doubt." ' Milton Constr. Co.
v. State Highway Dep't, 568 So. 2d 784, 788 (Ala. 1990)
(quoting 17 Am Jur. 2d Contracts § 178 (1964)). ' "The courts
are averse to holding contracts unenforceable on the ground of
public policy unless their illegality is clear and certain. ...
[T]he courts will not declare an agreement void on the ground
of public policy unless it clearly appears to be in violation of
the public policy of the state." ' Id. (emphasis omitted)."
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Poole v. Prince, 61 So. 3d 258, 281 (Ala. 2010). However, also in this
state, as in Ohio,
" '[i]t is ... well settled that restrictions on the use of land are
not favored in the law, and such restrictions are strictly
construed in favor of the free use of such property.' Hill v.
Rice, 505 So. 2d 382, 384 (Ala. 1987). Indeed, the construction
this Court gives a restrictive covenant 'will not be extended by
implication or include anything not plainly prohibited and all
doubts and ambiguities must be resolved against the party
seeking enforcement.' Bear v. Bernstein, 251 Ala. 230, 231, 36
So. 2d 483, 484 (1948)."
Bon Aventure, L.L.C. v. Craig Dyas L.L.C., 3 So. 3d 859, 864 (Ala. 2008).
As we detailed at the outset of this analysis -- and as the SCBE
concedes -- the Act clearly evinces a purpose of encouraging the
establishment and proliferation of charter schools to compete with
traditional public schools. The Act does this in part by providing two
different types of "authorizers" -- the APCSC and local school boards --
that have the responsibility to solicit and evaluate applications for charter
schools from qualified nonprofit organizations and by setting the basic
standards for charter schools. More specifically as it relates to this case,
and similar to the law at issue in Conners, the Act also contains a
provision encouraging the sale of old school buildings to charter-school
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organizations. See § 16-6F-11(b), Ala. Code 1975. The Act does all of this
because the legislature has expressed the belief that charter schools will,
among other things, "[e]ncourage innovative educational ideas that
improve student learning" and "[f]oster tools and strategies to close
achievement gaps between high-performing and low-performing groups of
public school students." § 16-6F-3(8)b. & f., Ala. Code 1975.
The restrictive covenant at issue specifically prohibits UWA from
permitting the LHS property "to be utilized for any private, charter, or
other school entity serving students in kindergarten through twelfth grade
or in pre-kindergarten educational programs, unless said school or
programs are under the control or supervision of the Sumter County
Board of Education ...." The restrictive covenant thus "frustrates the
state's intention to make classroom space available to [charter] schools"
in Sumter County. Conners, 132 Ohio St. 3d at 474, 974 N.E.2d at 84.
The SCBE counters:
"The covenant is not adverse to the Legislature's intent in its
enactment of the [Act] to encourage creation and growth of
public charter schools. The covenant in the Sales Contract
does not place an absolute restriction on use of the old
Livingston High School property as a public charter school, but
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merely limits use of the property as a charter school, unless it
is under SCBOE’s control or supervision."
The SCBE's brief, p. 15.
However, the covenant at issue in Conners contained a very similar
restriction, and, as the Ohio Supreme Court observed, such a provision
actually "seeks to thwart competition by providing that the restriction
applies to all buyers except [the school system] itself." Conners, 132 Ohio
St. 3d at 474, 974 N.E.2d at 84. Such singular control by the SCBE is
contrary to the Act's scheme that provides for charter-school authorization
from the APCSC, in addition to local schools boards that become
authorizers, and that allows a charter-school-organization applicant who
is rejected by a local-school-board authorizer to appeal that decision to the
APCSC. See § 16-6F-6(a)(1) & (4), Ala. Code 1975. Moreover, the
provision of the restrictive covenant that the SCBE insists keeps the
restriction from being absolute is not even capable of fulfillment because,
as we noted earlier in this analysis, UCS had to obtain its authorization
to establish a charter school directly from the APCSC because the SCBE
has not applied to be an authorizer within the boundaries of the school
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system it oversees. See § 16-6F-6(e), Ala. Code 1975. Thus, there is no
way for a charter school located at the LHS property to be "under the
control or supervision of the Sumter County Board of Education."
Therefore, the restrictive covenant effectively constitutes a complete
prohibition on housing a charter school at the LHS property.7
In short, by preventing the LHS property from being used by UCS,
the restrictive covenant contradicts the Act's stated policy of making a
"closed or unused public school facility or property located in a school
system from which [a public charter school] draws its students" available
to a qualified charter-school organization in Sumter County.
§ 16-6F-11(b), Ala. Code 1975. More broadly, the restrictive covenant
thwarts the overall purpose evinced by the Act, which is to foster
competition in public education by encouraging the establishment and
proliferation of charter schools, thereby improving the quality of education
services provided to students throughout Alabama -- including in Sumter
7The memo Dr. Primm composed during the negotiations for the sale
of the LHS property and that discussed the "Terms for Sale Transaction
of Livingston High School" confirms that the purpose of the restrictive
covenant was to protect the SCBE from "K-12 Competition."
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County. We therefore are compelled to conclude that the restrictive
covenant is void because it defies both the explicit and implicit public
policies of the Act. Accordingly, the circuit did not err in declining to
enforce the restrictive covenant and in dismissing all the claims against
the University defendants.8
IV. Conclusion
Because the restrictive covenant in the sales contract violates clear
public policies of the Act, the restrictive covenant is unenforceable.
Therefore, the circuit court's judgment dismissing all the claims against
the University defendants is affirmed.
AFFIRMED.
Parker, C.J., and Shaw, Sellers, Stewart, and Mitchell, JJ., concur.
Bolin, Wise, and Bryan, JJ., concur in the result.
8Because we conclude that the circuit court correctly entered a
dismissal of all the claims based on the University defendants' argument
that the restrictive covenant is void for contradicting the clear public
policies of the Act, we pretermit examination of the University defendants'
other grounds for dismissal of the action, such as the failure to join
indispensable parties.
41
1190343
BOLIN, Justice (concurring in the result).
I concur in the result of the main opinion; however, I would resolve
the issues presented by this appeal on grounds other than public-policy
grounds.
The Sumter County Board of Education ("the SCBE") asserted
claims in its third amended complaint -- the operative complaint for this
appeal -- of fraud, breach of contract, and reformation of the deed because
of a mutual mistake. The SCBE also sought a judgment declaring that
there was a mutual mistake in not including the contractual restrictive
covenant in the deed conveying the Livingston High School ("LHS")
property to the University of West Alabama ("UWA"), as well as a
permanent injunction requiring that "the University defendants" -- UWA
and Dr. Richard Holland and Dr. Kenneth Tucker, in their individual and
official capacities -- cease and desist from operating a private school, a
charter school, or any K-12 school on the LHS property without the
approval of the SCBE.
The University defendants have argued, for the first time on appeal,
that the circuit court lacked subject-matter jurisdiction to adjudicate any
42
1190343
claim for damages asserted by the SCBE based on a breach-of-contract
theory. Specifically, they contend that any claim for damages asserted by
the SCBE against UWA based on its alleged breach of contract must be
brought before the Alabama Board of Adjustment, not the circuit court.
" 'Subject-matter jurisdiction cannot be waived, and the lack of
subject-matter jurisdiction may be raised at any time by a party or by a
court ex mero motu.' " Ex parte Siderius, 144 So. 3d 319, 323 (Ala. 2013)
(quoting Ex parte Punturo, 928 So. 2d 1030, 1033 (Ala. 2002)).
"In Vaughan v. Sibley, 709 So. 2d 482, 486 (Ala. Civ.
App. 1997), the Court of Civil Appeals stated:
" 'Because of the sovereign immunity clause,
the courts of this state are without jurisdiction to
entertain a suit seeking damages, including back
pay, for breach of contract against the state. State
Bd. of Adjustment v. Department of Mental Health,
581 So. 2d 481 (Ala. Civ. App. 1991). Vaughan's
remedy, if any, is with the Board of Adjustment.
Sections 41-9-62(a)(4) and (a)(7), Code of Alabama
1975, provide:
" ' "(a) The Board of Adjustment
shall have the power and jurisdiction
and it shall be its duty to hear and
consider:
" ' "....
43
1190343
" ' "(4)
All
claims
against
the
State
of
Alabama or any of its
agencies,
commissions,
boards,
institutions
or
departments arising out of
any contract, express or
implied, to which the State
of Alabama or any of its
agencies,
commissions,
boards,
institutions
or
departments are parties,
where there is claimed a
legal or moral obligation
resting on the state;
" ' "....
" ' "(7) All claims for
underpayment by the State
of Alabama or any of its
agencies,
commissions,
boards,
institutions
or
departments
to
parties
having dealings with the
State of Alabama or any of
its agencies, commissions,
boards,
institutions
or
departments."
" '(Emphasis added.) The Board of Adjustment has
jurisdiction over claims against the state that are
not justiciable in the courts because of the state's
constitutional immunity from being made a
44
1190343
defendant. Lee v. Cunningham, 234 Ala. 639, 641,
176 So. 477 (1937).'
"Further, § 41-9-62(b), Ala. Code 1975, provides, in pertinent
part:
" '[T]he jurisdiction of the Board of Adjustment is
specifically limited to the consideration of the
claims enumerated in subsection (a) of this section
and no others; ... nothing contained in this
subdivision shall be construed to confer jurisdiction
upon the Board of Adjustment to settle or adjust
any matter or claim of which the courts of this
state have or had jurisdiction....'
"In Lee v. Cunningham, 234 Ala. 639, 176 So. 477 (1937), this
Court stated the following with regard to the original act
creating the Board of Adjustment:
" 'Our judgment, however, is that the
legislative purpose disclosed in the act ... was to
confer on said board jurisdiction over claims
against the state, colorable legally and morally well
grounded, not justiciable in the courts because of
the state's constitutional immunity from being
made a defendant (Const. 1901, § 14), and to
exclude from its jurisdiction claims well grounded
in law or equity, cognizable by the courts.'
"234 Ala. at 641, 176 So. at 479 (emphasis added)."
Ex parte Board of Dental Exam'rs of Alabama, 102 So. 3d 368, 387-88
(Ala. 2012). See also Vaughan v. Sibley, 709 So. 2d 482, 486 (Ala. Civ.
45
1190343
App. 1997) ("The Board of Adjustment has exclusive jurisdiction over a
contract claim against a state university.").
Because the Board of Adjustment has exclusive power and
jurisdiction over contract claims against the "State of Alabama or any of
its ... institutions ... arising out of any contract, express or implied," §41-9-
62(a)(4), Ala. Code 1975, I conclude that the circuit court was without
jurisdiction to consider the SCBE's contract claim to the extent that it
seeks damages for the alleged breach of the sales contract because that
claim should properly be brought before the State Board of Adjustment.
Accordingly, although I would affirm the circuit court's judgment
dismissing the SCBE's claim for damages based on UWA's alleged breach
of contract, I would do so because the circuit court lacked subject-matter
jurisdiction over that claim.
Further, as to all of SCBE's remaining claims, the University
defendants argued in the circuit court -- and the circuit court expressly
agreed -- that those claims should be dismissed for failing to include an
indispensable party, i.e., the University Charter School ("UCS"). As
mentioned in the main opinion, the SCBE twice actually did include UCS
46
1190343
as a defendant in the action, but both times it then voluntarily dismissed
UCS as a defendant. Concerning whether a party is "necessary" versus
"indispensable" to an action, this Court has stated:
"The provisions of Rule 19[, Ala. R. Civ. P.] provide a two-step
process. Note, Rule 19 in Alabama, 33 Ala. L. Rev. 439, 446
(1982). 'First, a court must determine whether the absentee is
a person who should be joined if feasible under Rule 19(a).'
Note, supra. If the court determines that the absentee is a
person who should be joined under Rule 19(a), '[r]ule 19(b) sets
forth four factors to consider in determining whether an action
should proceed in the absence of such a person.' Mead Corp. v.
City of Birmingham, 350 So. 2d 419, 421 (Ala.1977); Note,
supra."
Ross v. Luton, 456 So. 2d 249, 256 (Ala. 1984). In other words, Rule 19(a),
Ala. R. Civ. P., concerns whether a party is a "necessary" party, while
Rule 19(b) concerns whether that party is also an "indispensable" party,
without whom the litigation cannot continue. The SCBE conceded that
UCS was a necessary party, but it argued that UCS was not an
indispensable party whose absence would require dismissal of the action.
"Many courts have attempted to articulate the distinction
between indispensable and merely necessary parties. Champ
Lyons in his work, Alabama Practice, Rules of Civil Procedure
(1973), collects the following cases under Rule 19, defining
them thusly:
47
1190343
" ' "Indispensable parties" are persons who not
only have an interest in the controversy but an
interest of such a nature that a final decree cannot
be made without either affecting that interest or
leaving the controversy in such a condition that its
final determination may be wholly inconsistent
with equity and good conscience. Bennie v. Pastor,
C.A.N.M. 1968, 393 F.2d 1.
" '....
" ' "Necessary parties" are those affected by
the judgment and against which in fact it will
operate. West Coast Exploration Co. v. McKay,
1954, 93 U.S. App. D.C. 307, 213 F.2d 582,
certiorari denied, 347 U.S. 989, 74 S.Ct. 850, 98
L.Ed. 1123 [(1954)].'
"1 Lyons, Alabama Practice, at 389."
J.R. McClenney & Son, Inc. v. Reimer, 435 So. 2d 50, 52 (Ala. 1983).
"There is no prescribed formula to be mechanically
applied in every case to determine whether a party is an
indispensable party or merely a proper or necessary one. This
is a question to be decided in the context of the particular case.
Provident Tradesmens Bank & Trust Co. v. Patterson, 390
U.S. 102, 88 S.Ct. 733, 19 L.Ed. 2d 936 (1968). The issue is one
to be decided by applying equitable principles ...."
Id.
"The determination of whether a party is indispensable
under Rule 19(b) is based on equitable and pragmatic
considerations, Toney v. White, 476 F.2d 203, 207 (5th Cir.
48
1190343
1973), and includes the examination of the following factors
provided in the rule:
" 'first, to what extent a judgment rendered in the
person's absence might be prejudicial to him or
those already parties; second, the extent to which,
by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice
can be lessened or avoided; third, whether a
judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an
adequate remedy if the action is dismissed for
nonjoinder.'
"Mead Corp. [v. City of Birmingham], 350 So. 2d [419,] 421-22
[(Ala. 1977)]."
Ross, 456 So. 2d at 257.
UCS is the entity that currently occupies the LHS property and
operates as a charter school on that property. UCS has occupied and
operated its school on the LHS property for the three years that this
litigation has been pending. Obviously, UCS and its students not only
have an interest in the controversy presented, but that interest is of such
a nature that a final judgment in favor of the SCBE in this action seeking
a permanent injunction prohibiting operation of the charter school on the
LHS property could not be made without detrimentally affecting their
49
1190343
interests in the charter school. Accordingly, I would affirm the circuit
court's judgment dismissing the remaining claims on the basis that the
SCBE failed to join UCS as an indispensable party.
50 | September 17, 2021 |
adf24d3a-6bec-4e8a-b964-5477b93e8bbc | Frances Medlin and Roland Medlin v. Prime Healthcare Services-Gadsden, LLC | N/A | 1200304 | Alabama | Alabama Supreme Court | Rel: September 17, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200304
Frances
Medlin
and
Roland
Medlin
v.
Prime
Healthcare
Services-Gadsden, LLC (Appeal from Etowah Circuit Court:
CV-18-900690).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, Sellers, Mendheim, and Mitchell,
JJ., concur.
Wise and Stewart, JJ., concur in the result. | September 17, 2021 |
1b49758f-6e46-42d1-93e3-9353a2c9e855 | Ex parte R.W. | N/A | 1200324 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200324 Ex parte R.W. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: R.W. v. Tuscaloosa County
Department of Human Resources) (Tuscaloosa Juvenile Court:
JU-12-568.03; Civil Appeals : 2190679).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Writ Quashed. No Opinion. Stewart, J. - Shaw, Wise, Bryan, Mendheim,
and Mitchell, JJ., concur. Parker, C.J., and Bolin, and Sellers, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
6e476f7f-4864-4007-b4b9-82487595600b | Ex parte City of Gulf Shores. | N/A | 1200366 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2021
____________________
1200366
____________________
Ex parte City of Gulf Shores
PETITION FOR WRIT OF MANDAMUS
(In re: Ronald Paulinelli, as father and next friend of Sophia
Paulinelli, a minor
v.
City of Gulf Shores)
(Baldwin Circuit Court, CV-19-900718)
BRYAN, Justice.
1200366
The City of Gulf Shores ("the City") petitions this Court for a writ of
mandamus directing the Baldwin Circuit Court to dismiss tort claims
brought against the City. The City contends that the claims are barred
by the recreational-use statutes found at § 35-15-1 et seq., Ala. Code 1975.
We deny the petition.
In June 2018, Sophia Paulinelli ("Sophia"), who was a minor at the
time, was injured while walking on a wooden boardwalk owned by the
City. The boardwalk runs over beach property and allows pedestrians to
access the public beach from a point slightly south of the intersection of
West Beach Boulevard and 13th Street. In addition to owning the
boardwalk, the City owns the beach property on which the boardwalk sits.
Sophia was walking on the boardwalk behind a man when the man
stepped on a board, causing the board to spring up from the boardwalk.
The dislodged board had a screw protruding from it, and the board and
screw fell on Sophia's foot, impaling the screw in her big toe.
In May 2019, Ronald Paulinelli ("Ronald"), as Sophia's father and
next friend, sued the City and fictitiously named defendants. Against the
City, Ronald alleged claims of negligence and wantonness. On January
2
1200366
18, 2021, seven weeks before the case was set to go to trial, the City
moved for a summary judgment, arguing that it is entitled to immunity
under the recreational-use statutes found at § 35-15-1 et seq. Ronald filed
a response to the summary-judgment motion, arguing that the
recreational-use statutes do not control in this case. In support of his
argument, Ronald cited certain cases that we will discuss below. The
materials before us do not indicate that the City ever addressed in the
circuit court the cases relied on by Ronald. The circuit court denied the
summary-judgment motion without explanation, and the City then filed
its mandamus petition with this Court.
"The writ of mandamus is an extraordinary legal remedy.
Ex parte Mobile Fixture & Equip. Co., 630 So. 2d 358, 360
(Ala. 1993). Therefore, this Court will not grant mandamus
relief unless the petitioner shows: (1) a clear legal right to the
order sought; (2) an imperative duty upon the trial court to
perform, accompanied by its refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly invoked
jurisdiction of the Court. See Ex parte Wood, 852 So. 2d 705,
708 (Ala. 2002)."
Ex parte Davis, 930 So. 2d 497, 499 (Ala. 2005).
As noted, in moving for a summary judgment, the City argued that
it is entitled to immunity under the recreational-use statutes found at §
3
1200366
35-15-1 et seq. The City first cited protections given to landowners
allowing recreational use on their lands under Article 1 of the
recreational-use statutes, consisting of §§ 35-15-1 through -5, which was
enacted in 1965. The City mostly focused, however, on the broad
protections given to landowners allowing noncommercial public
recreational use on their lands under Article 2, consisting of §§ 35-15-20
through -28, which was enacted in 1981. The City observed that §
35-15-22, Ala. Code 1975, provides:
"Except as specifically recognized by or provided in this
article, an owner of outdoor recreational land who permits
non-commercial public recreational use of such land owes no
duty of care to inspect or keep such land safe for entry or use
by any person for any recreational purpose, or to give warning
of a dangerous condition, use, structure, or activity on such
land to persons entering for such purposes."
The City further noted that § 35-15-23, Ala. Code 1975, provides:
"Except as expressly provided in this article, an owner of
outdoor recreational land who either invites or permits
non-commercial public recreational use of such land does not
by invitation or permission thereby:
"(1) Extend any assurance that the outdoor
recreational land is safe for any purpose;
4
1200366
"(2) Assume responsibility for or incur legal
liability for any injury to the person or property
owned or controlled by a person as a result of the
entry on or use of such land by such person for any
recreational purpose; or
"(3) Confer upon such person the legal status
of an invitee or licensee to whom a duty of care is
owed."
The City argued that, as the owner of the outdoor recreational land
on which Sophia had been injured, it is entitled to immunity under the
recreational-use statutes. The City acknowledged that § 35-15-24, Ala.
Code 1975, provides an "actual-knowledge" exception to such immunity
but argued that there was no evidence indicating that the exception
applies here.1
1Section 35-15-24 provides, in part:
"(a) Nothing in this article limits in any way legal
liability which otherwise might exist when such owner has
actual knowledge:
"(1) That the outdoor recreational land is
being used for non-commercial recreational
purposes;
"(2) That a condition, use, structure, or
activity exists which involves an unreasonable risk
5
1200366
In response to the summary-judgment motion, Ronald argued that
the recreational-use statues do not control in this case. Ronald argued
that the boardwalk in this case is a "public way," like a sidewalk, that the
City has a duty to maintain regardless of the recreational-use statutes.
In support of his argument, Ronald cited a series of cases concerning
whether a city could be liable for injuries caused by falls on sidewalks
located in city parks. Ronald cited City of Birmingham v. Brasher, 359
So. 2d 1153 (Ala. 1978), which involved a plaintiff who tripped and fell on
a sidewalk in a city park. In Brasher, this Court concluded that the city
of death or serious bodily harm;
"(3) That the condition, use, structure, or
activity is not apparent to the person or persons
using the outdoor recreational land; and
"(4) That having this knowledge, the owner
chooses not to guard or warn, in disregard of the
possible consequences.
"(b) The test set forth in subsection (a) of this section
shall exclude constructive knowledge by the owner as a basis
of liability and does not create a duty to inspect the outdoor
recreational land."
6
1200366
was not immune from a claim alleging that the city had negligently
maintained the sidewalk located within the park. The Court in Brasher
relied on Walker v. City of Birmingham, 342 So. 2d 321 (Ala. 1976), which
Ronald also cited in his response. Noting the "somewhat atypical posture"
of the decision in Walker, the Court in Brasher clarified that the actual
opinion of the Court in Walker was Justice Bloodworth's opinion
concurring specially in that case. 359 So. 2d at 1155. In Walker, Justice
Bloodworth concluded that the city should not be immune to tort claims
based on the alleged failure to maintain a paved walkway in a public zoo.
Justice Bloodworth also stated that he would have overruled Jones v. City
of Birmingham, 284 Ala. 276, 224 So. 2d 632 (1969), which also involved
a fall in a public park; the Court in Brasher acknowledged that the Court
in Walker had in fact overruled Jones through Justice Bloodworth's
special writing. The Court in Jones acknowledged that "[a] municipal
corporation is liable for injuries suffered due to defects in sidewalks,
streets and public ways, where it has not exercised reasonable care." 284
Ala. at 278, 224 So. 2d at 633. However, in concluding that the city in
Jones was immune, the Court in that decision noted that "[i]t is also a
7
1200366
well-recognized rule in this state that the maintaining by a municipal
corporation of public squares, parks, playgrounds and recreational
facilities is a governmental function, and that a city is not liable for
injuries which result from the negligent operation of the same." Id.
Brasher and Walker are central to Ronald's argument that the City
is not entitled to immunity under the recreational-use statutes.2 The City
argues to this Court that those decisions are not controlling and that it is
entitled to immunity under the recreational-use statutes. The
applicability of the cases relied on by Ronald is a key issue before us.
However, nothing in the materials before us indicates that the City ever
presented to the circuit court the arguments that it now presents to us
regarding the applicability of those decisions. This Court will not grant
relief to a petitioner or an appellant based on an argument presented for
the first time to this Court. See State Farm Mut. Auto. Ins. Co. v. Motley,
2The City argues that Brasher and Walker predate the adoption of
the recreational-use statutes. As noted, Article 1 of the recreational-use
statutes, which the City cited in its summary-judgment motion, was
passed in 1965, see Act No. 463, Ala. Acts 1965, and Article 2 of the
recreational-use statutes, which the City also cited in its summary-
judgment motion, was passed in 1981, see Act No. 81-825, Ala. Acts 1981.
8
1200366
909 So. 2d 806, 821 (Ala. 2005) (stating that "[t]his Court cannot consider
arguments advanced for the purpose of reversing the judgment of a trial
court when those arguments were never presented to the trial court for
consideration"); and Ex parte Staats-Sidwell, 16 So. 3d 789, 792 (Ala.
2008) (stating that, "on mandamus review, 'we look only to the factors
actually argued before the trial court' " in considering a petitioner's
arguments (quoting Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005),
citing in turn Ex parte Ebbers, 871 So. 2d 776, 792 (Ala. 2003))).
"This Court has long held that it 'will not hold a trial court to
be in error unless that court has been apprised of its alleged
error and has been given the opportunity to act thereon.' Sea
Calm Shipping Co. v. Cooks, 565 So. 2d 212, 216 (Ala. 1990)
(citing Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846
(1958)). This is so, in part, because ' " 'there is something
unseemly about telling a lower court it was wrong when it
never was presented with the opportunity to be right.' " ' Ex
parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So. 2d 308,
314 (Ala. 2001) (quoting Cantu v. State, 660 So. 2d 1026,
1031-32 (Ala. 1995) (Maddox, J., concurring in part and
dissenting in part), quoting in turn State v. Applegate, 39 Or.
App. 17, 21, 591 P.2d 371, 373 (1979) (emphasis omitted))."
Moultrie v. Wall, 172 So. 3d 828, 840 (Ala. 2015).
Thus, we cannot consider the arguments made by the City regarding
the applicability of the cases relied on by Ronald in the circuit court.
9
1200366
Accordingly, we deny the City's petition. We express no opinion regarding
the merits of Ronald's claims; rather, our decision is based on the City's
failure to preserve key arguments before the circuit court.
PETITION DENIED.
Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, and
Stewart, JJ., concur.
Mitchell, J., dissents.
10
1200366
MITCHELL, Justice (dissenting).
The majority denies the City of Gulf Shores' petition for a writ of
mandamus because, it concludes, the City failed to challenge in the trial
court Ronald Paulinelli's argument for why the City was not entitled to
summary judgment. For the reasons that follow, I respectfully dissent.
The City is clearly right on the merits, and the course of proceedings
below does not support the majority's forfeiture holding.
I start with the merits. The City's petition, like its motion for
summary judgment below, rests on Alabama's recreational-use statutes.
See § 35-15-1 et seq., Ala. Code 1975. Those statutes embody the
Legislature's decision to encourage landowners to open their land to the
public for outdoor recreational use by limiting their potential tort liability.
See § 35-15-20. Relevant here, Article 2 of the recreational-use statutes
provides that, "[e]xcept as expressly provided in this article, an owner of
outdoor recreational land who either invites or permits non-commercial
public recreational use of such land" does not thereby warrant the safety
of the land and assumes no liability or duty of care as to anyone entering
or using the land "for any recreational purpose." § 35-15-23. "The lone
11
1200366
exception to this rule," set forth in § 35-15-24, kicks in when the owner
has actual knowledge of a latent danger and does nothing about it. Ex
parte Town of Dauphin Island, 274 So. 3d 237, 248 (Ala. 2018). Absent
that knowledge and neglect, the broad limitation of liability in § 35-15-23
governs all cases within its terms, "expressly abrogat[ing] the common
law" that would otherwise apply to such cases. Id.
Here, there's no real dispute that the boardwalk on which
Paulinelli's child was injured is "outdoor recreational land" devoted to
"non-commercial public recreational use," that the City is the land's
"owner," or that the child was on the boardwalk for a "recreational
purpose," as those key terms are used in Article 2. See § 35-15-21; see
also Poole v. City of Gadsden, 541 So. 2d 510, 512-13 (Ala. 1989) (holding
it to be "quite obvious" that Article 2 applied to a municipality-owned
boardwalk). Nor does anyone argue that the City had actual knowledge
of the danger that caused the injury (as needed to trigger Article 2's sole
exception). So it would seem clear that Article 2 shields the City from
liability and that the City was entitled to summary judgment on that
basis.
12
1200366
In opposing summary judgment, Paulinelli advanced just one
substantive counterargument: that the City had a duty of care under City
of Birmingham v. Brasher, 359 So. 2d 1153 (Ala. 1978), and Walker v. City
of Birmingham, 342 So. 2d 321 (Ala. 1976). It's clear why this argument
fails. Brasher and Walker concerned municipalities' common-law duties
to maintain sidewalks located within public parks. See Brasher, 359 So.
2d at 1154-55. They have nothing at all to do with the recreational-use
statutes. Indeed, the article of the recreational-use statutes that is
dispositive here, Article 2, was enacted in 1981 and did not even exist
when Brasher and Walker were decided. Accordingly, those cases have
nothing to do with the City's argument for summary judgment based on
the recreational-use statutes and on Article 2 in particular.
The City explains all of this in its mandamus petition. The majority
opinion, however, faults the City for not having explained it sooner. It
holds that the City may not dispute Paulinelli's "Brasher argument" (as
I'll call it for simplicity) in this Court because it did not do so in the trial
court. But that holding cannot be squared with the actual course of
proceedings below and the forfeiture principles generally applied by courts
13
1200366
of review.3 This is so for several interlocking yet ultimately independent
reasons.
First, it's hard to see when the City's forfeiture occurred. In its
motion for summary judgment, the City presented an analytically
complete argument for why it should prevail under Article 2 of the
recreational-use statutes. Paulinelli then raised the Brasher argument --
for the first time -- in his response to the City's motion. After that, there
were no further written submissions from either side; the trial court held
3I use the word "forfeiture" here to describe situations where a party
is held to have lost the opportunity to raise an issue through failure to do
so at the appropriate time. Although courts and litigants often apply the
term "waiver" in this context, this kind of inadvertent forfeiture is not a
"waiver" in the traditional, strict sense of that word because it is not a
knowing and voluntary abandonment of a legal right. See Kontrick v.
Ryan, 540 U.S. 443, 458 n.13 (2004) ("Although jurists often use the words
interchangeably, forfeiture is the failure to make the timely assertion of
a right; waiver is the intentional relinquishment or abandonment of a
known right." (cleaned up)); Black's Law Dictionary 1894 (11th ed. 2019)
(noting in the definition of "waiver" that "[t]he party alleged to have
waived a right must have had both knowledge of the existing right and the
intention of forgoing it"); see also United States v. Phillips, 834 F.3d 1176,
1183 (11th Cir. 2016); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.
2006).
14
1200366
a hearing only four days after Paulinelli filed his response, and it denied
the motion two days after the hearing.
Obviously, the City had no obligation to specifically anticipate and
refute the Brasher argument in its initial summary-judgment motion.
Nor can the City be faulted for overlooking the Brasher argument in a
later written submission, because there was none. We do not know what
was said at the hearing, but that should make no difference, because we
do not typically think of oral argument on a briefed motion as either
expanding or limiting the set of issues that the parties' written
submissions have placed before the court.4 In short, there is no point in
the course of proceedings below at which the City can justly be charged
with forfeiting its right to contest the Brasher argument.
Second, the parties' written submissions adequately teed up the
merits of the Brasher argument. Although the City's summary-judgment
motion did not specifically discuss Brasher and Walker (again, for the
4Of course, parties can expressly waive or abandon positions at oral
argument, if they choose. But there is nothing to suggest that the City did
so here.
15
1200366
obvious reason that Paulinelli had not yet raised the Brasher argument),
it unmistakably argued that the recreational-use statutes furnished the
only applicable framework and that, within that framework, the actual-
knowledge test in § 35-15-24 was the only potential exception to Article 2's
no-duty rule. Quoting directly from this Court's opinion in Dauphin
Island, 274 So. 3d at 248-49, the City emphasized that Article 2
"completely abrogates" common-law landowner duties in cases where it
applies, and that the actual-knowledge test is the "lone exception" within
the statutory framework.
This argument and authority were more than enough to apprise the
trial court of the City's position on the later-raised Brasher argument.
More pointedly, they were enough to apprise the trial court of why that
argument is wrong. The Brasher argument can be interpreted in two
ways. On one reading, it denies that the Article 2 framework completely
preempts other sources of duty in cases where it applies. On the other, it
asserts that Brasher and Walker stand for an exception within the
Article 2 framework, thus denying that the actual-knowledge test is the
only such exception. Either way, the argument fails, and for reasons that
16
1200366
follow directly and transparently from law already explained in the City's
summary-judgment motion. Thus, while the City had no obligation to
refute the Brasher argument in advance, it effectively did so anyway.
Third, even if the City had not given the trial court everything it
needed to understand the Brasher argument's shortcomings, those
shortcomings are not a discrete "issue," "question," or "theory" requiring
specific preservation. See Ex parte Knox, 201 So. 3d 1213, 1216-18 (Ala.
2015); Ex parte Jenkins, 26 So. 3d 464, 473 n.7 (Ala. 2009); Home Indem.
Co. v. Reed Equip. Co., 381 So. 2d 45, 50 (Ala. 1980). "[T]he rule of issue
preservation 'generally prevents an appellant [or a petitioner] from raising
on appeal [or in a mandamus petition] a question or theory that has not
been preserved for appellate review, not the provision to a higher court of
an additional specific reason or authority for a theory or position asserted
by the party in the lower court.' " Knox, 201 So. 3d at 1216 (quoting
Jenkins, 26 So. 3d at 473 n.7); see also Jenkins, 26 So. 3d at 473 n.7 ("In
other words, new arguments or authorities may be presented on appeal,
although no new questions can be raised." (cleaned up)). Here, the
discrete issue before the trial court was whether the City should prevail
17
1200366
under Article 2 of the recreational-use statutes.5 Within the confines of
that
issue,
the
Brasher
argument
represented
Paulinelli's
counterargument to the City's affirmative case. The majority opinion thus
holds that the City forfeited a counterargument to a counterargument.
That slices and dices way too finely.
Finally, at least in federal appellate courts, it is firmly established
that "there can be no forfeiture where the [lower] court nevertheless
addressed the merits of the issue. When a [lower] court resolves an issue,
the losing party can challenge it." Hi-Tech Pharms., Inc. v. HBS Int'l
Corp., 910 F.3d 1186, 1194 (11th Cir. 2018) (cleaned up); see also United
States v. Williams, 504 U.S. 36, 41-43 (1992). That rule makes sense -- if
the lower court reached the merits of an issue, there can be no concern
5Cf. Jenkins, 26 So. 3d at 473 n.7 (defining the preserved "issue" or
"question" as whether search warrant described thing to be seized with
sufficient particularity, permitting new reasons to be articulated on
appeal for why the description was adequate); Home Indem. Co., 381
So. 2d at 50 (defining the preserved "theory" as whether insurance policy
extended coverage, permitting appellant to point to new policy language
on appeal in support of its position); see also Citizens United v. FEC, 558
U.S. 310, 330-31 (2010) (defining the preserved "claim" as whether
campaign-finance statute violated the First Amendment, permitting new
argument that contrary precedent should be overruled).
18
1200366
about unfair surprise from the reviewing court doing so too -- and I would
apply it here. Although the order denying the City's summary-judgment
motion does not give reasons, the only interpretation that is plausible in
light of the parties' submissions is that the trial court accepted the
Brasher argument. Cf. Fogarty v. Southworth, 953 So. 2d 1225, 1231-32
(Ala. 2006) (presuming that an unexplained summary judgment rests on
at least one of the grounds urged by the movant). Accordingly, the City
should be permitted to contest the Brasher argument in this Court.
For these reasons, I would grant the City's petition and issue a writ
directing the trial court to grant the City's motion for summary judgment.
19 | September 30, 2021 |
194cc620-c6ab-4421-9fce-5db1b7ceee21 | Ex parte R.W. | N/A | 1200318 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200318 Ex parte R.W. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: R.W. v. Tuscaloosa County
Department of Human Resources) (Tuscaloosa Juvenile Court:
JU-12-565.03; Civil Appeals : 2190677).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Writ Quashed. No Opinion. Stewart, J. - Shaw, Wise, Bryan, Mendheim,
and Mitchell, JJ., concur. Parker, C.J., and Bolin, and Sellers, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
cf75e1b3-8b21-40c2-bbf4-fa456ce7e089 | Ex parte Ejikeme Amaku. | N/A | 1200809 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200809
Ex parte Ejikeme Amaku. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Ejikeme Amaku v. Nkechi U. Amaku)
(Madison Circuit Court: DR-18-900623; Civil Appeals :
2190995).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 2021:
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. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
3460d02a-6bed-4474-bda9-dee22a09e9ff | Peinhardt v. Peinhardt | N/A | 1200383 | Alabama | Alabama Supreme Court | REL: September 24, 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
SPECIAL TERM, 2021
____________________
1200383
____________________
Norma J. Peinhardt and Larry Wayne Todd
v.
Louise Peinhardt and Amelia Peinhardt
Appeal from Cullman Circuit Court
(CV-06-322)
MENDHEIM, Justice.
Norma J. Peinhardt and Larry Wayne Todd, who sought in the
Cullman Circuit Court a sale of certain real property and a division of the
1200383
sale proceeds, appeal from the January 25, 2021, summary judgment
entered against them and in favor of Louise Peinhardt and Amelia
Peinhardt. We reverse and remand.
I. Facts
Louis Peinhardt ("Louis") died on May 14, 1964. Louis had three
children by his first wife, Emma Kress Peinhardt: Amelia Peinhardt
("Amelia"), Herman Louis Peinhardt ("Louis Jr."), and Louise Peinhardt
("Louise"). Louis and his second wife, Marie Peinhardt ("Marie"), also had
a daughter, Linda P. Chambers ("Linda"), who is married to Leon
Chambers ("Leon"). On April 3, 1965, Marie, Linda, and Leon executed
a deed granting title to real property ("the subject property") to Louis Jr.,
Amelia, and Louise. A residence was located on the subject property,
situated on County Road 436 in Cullman. The deed was recorded in the
Cullman Probate Court the same day it was executed.
The April 3, 1965, deed, in pertinent part, provided:
"Know All Men By These Presents: That Marie
Peinhardt, a widow of Louis Peinhardt, deceased, Louise
Peinhardt, Amelia Peinhardt, Herman Louis Peinhardt, and
Linda P. Chambers who are all and the only heirs at law of
Louis Peinhardt, deceased, ...; and being as such heirs at law,
2
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joint owners and tenants in common of the premises
hereinafter described and they further being desirous of selling
said premises for the purposes of partition and division among
said joint owners and tenants in common, and Marie
Peinhardt, as the widow of Louis Peinhardt, Deceased, who
joins in this conveyance for the purpose of releasing any
interest of dower or otherwise in the following described
property; and Leon Chambers, as the husband of Linda P.
Chambers, who joins in this conveyance to transfer and convey
any and all the interest he might own in said property. And
that in consideration of the sum of Twenty Thousand and
00/100 ($20,000.00) Dollars, and other good and valuable
consideration to the undersigned grantors in hand paid by the
grantees herein, the receipt whereof is acknowledged, we,
Marie Peinhardt, a widow, Linda P. Chambers, in whom is the
legal title and her husband, Leon Chambers, who joins in to
convey any and all the interest he might own, do grant,
bargain, sell and convey unto Louise Peinhardt, Amelia
Peinhardt, and Herman Louis Peinhardt for and during their
joint lives and upon the death of either of them, then to the
survivor or survivors of them in fee simple together with every
contingent remainder and right of reversion all of their right,
title and interest in and to the following described real estate
situated, lying and being in Cullman County, Alabama, to-wit:
"[Description of the subject property that contains the
residence on County Road 436 in Cullman.]
"Further, that as part of the above consideration, the
grantors herein convey to Louise Peinhardt, Amelia Peinhardt
and Herman Louis Peinhardt for and during their joint lives,
and upon the death of either of them, then to the survivor, or
survivors of them in fee simple, together with every contingent
remainder and right of reversion all of their right, title and
interest in and to the personal estate owned by Louis
3
1200383
Peinhardt at the time of his decease, together with all of our
undivided interest inherited by said grantors under the laws
of descent and distribution of the State of Alabama from the
Estate of Louis Peinhardt, Deceased,
"TO HAVE AND TO HOLD, to the said grantees for and
during their joint lives and upon the death of either of them,
then to the survivor, or survivors of them in fee simple, and to
the heirs and assigns of such survivor or survivors forever,
together with every contingent remainder and right of
reversion."
(Capitalization in original; emphasis added.)
On June 21, 2006, Louis Jr. filed a complaint in the Cullman Circuit
Court, seeking a sale for division of the subject property, against Amelia
and Louise.1 In that complaint, Louis Jr. alleged that "[t]he parties are
1We note that the parties in this case have argued as if this dispute
concerns the entire subject property described in the April 3, 1965, deed.
However, it appears that because Louis died intestate, his children --
Amelia, Louise, Louis Jr., and Linda -- immediately upon his death each
inherited an undivided one-fourth share in the subject property as a
whole, subject to Marie's dower interest (a one-third choate dower interest
in Louis's real property as a whole). See Title 16, § 1(1) and § 9, and Title
34, § 41(3), Ala. Code 1940 (Recomp. 1958). Thus, in the April 3, 1965,
deed, Marie was granting her one-third choate dower interest in the
subject property, Leon was granting his curtesy/spousal rights as Linda's
husband (see Title 16, § 12, Ala. Code 1940 (Recomp. 1958)), and Linda
was granting her one-fourth undivided interest in the subject property
from intestate succession to Amelia, Louise, and Louis Jr.
4
1200383
tenants in common of" the subject property. Louis Jr. alleged that the
subject property could not be equitably divided among the parties, and
thus he sought a sale of the subject property for division of the proceeds.
Amelia and Louise filed an answer to the complaint in which they alleged
that "[t]he parties hold title to the property in a Joint Survivorship
capacity" and that therefore the subject property was not subject to
division.
For reasons that are not entirely clear from the record, the case
remained idle in the Cullman Circuit Court for several years.2 However,
on June 22, 2016, Louis Jr. executed a warranty deed in which he
2An order in the record dated January 20, 2010, states: "This case
came before the Court on January 19, 2010 for review. After conference
and upon oral motion, this case shall remain on the Administrative Docket
for yearly review. Same shall be returned to the active trial docket upon
motion of either party." On June 7, 2016, Louis Jr. filed a motion stating
that the parties had "reached an agreement whereby this case be placed
on the Court's administrative docket until such time as either party may
file a motion to set the case for trial." The circuit court granted that
motion the following day. On September 20, 2019, the circuit court
entered an order requiring the parties to go to mediation and stating that,
if the mediation was unsuccessful, the case would be set for trial. On
May 29, 2020, the circuit court set the case for a trial to be held on
June 22, 2020.
5
1200383
purported to convey his interest in the subject property to his wife, Norma
J. Peinhardt ("Norma"), and his stepson, Larry Wayne Todd ("Larry"), "as
joint tenants with a right of survivorship."3 That deed was recorded the
following day in the Cullman Probate Court.
On July 15, 2020, Louis Jr. filed a motion to amend his complaint
and to add additional plaintiffs. Specifically, Louis Jr. sought to add
Norma and Larry as plaintiffs to his complaint for a sale for division; the
amended complaint noted Louis Jr.'s conveyance of his interest in the
subject property to Norma and Larry, and it again alleged that Louis Jr.,
Amelia, and Louise "are tenants in common of the real property." On the
same date, July 15, 2020, the circuit court granted the motion to add
Norma and Larry as plaintiffs in the action.
On July 27, 2020, Louis Jr., Norma, and Larry filed an amended
complaint in the circuit court. The amended complaint alleged that all
3Louis Jr. had no constraints on what he chose to do with the one-
fourth interest in the subject property that he held from intestate
succession, so this dispute apparently concerns whether there were
restrictions on the share of the subject property he received from Marie,
Leon, and Linda, even though the parties do not argue it in those terms.
See note 1, supra.
6
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"[t]he parties are tenants in common of the real property." On July 28,
2020, Amelia and Louise filed an answer to the amended complaint in
which they again asserted that the subject property was not subject to
division because they "hold life estates to the real property sought to be
sold" and they "do not consent to the sale of the subject real property for
division." On December 2, 2020, Amelia and Louise filed an amended
answer in which they asserted that they "hold title to the property as
tenants in common in a joint survivorship capacity. Therefore, they are
not subject to a partition sale under the statutes cited and Alabama case
law."
On December 4, 2020, Amelia and Louise filed a summary-judgment
motion in which they contended that a survivorship provision was part of
the April 3, 1965, deed, and that
"[a] survivorship provision between cotenants is upheld in this
State pursuant to § 35-4-7, Code of Alabama, 1975, amended.
A tenancy in common for life with contingent remainder in fee
in the survivor differs from a joint tenancy in that the right of
survivorship in one tenant in common is not destructible by
the act of the other. Durant v. Hamrick, 409 So. 2d 731 (Ala.
1981)."
7
1200383
Amelia and Louise therefore argued that Louis Jr.'s June 22, 2016,
conveyance of his interest in the subject property to Norma and Larry was
a nullity because Amelia and Louise had not granted consent to the
conveyance. An affidavit from Amelia was attached to the summary-
judgment motion. In the affidavit, Amelia stated that the intent behind
the April 3, 1965, deed was for Louis Jr., Amelia, and Louise to "buy out
the interest of Marie Peinhardt and Linda P. Chambers [in the subject
property] for a total sum of $20,000.00" and that Louis Jr., Amelia, and
Louise
"specifically requested to own the property with right of
survivorship so that none of us would ever have to move off the
property as long as we lived and the property would remain
intact so that the last one of us living would be able to
continue to live on the property. We were told at that time
that the property could never be sold or divided without all
three of us agreeing to do so if we owned it with the right of
survivorship provision."
On December 9, 2020, Louis Jr. died, and on December 22, 2020, his
attorney filed a suggestion of death with the circuit court.4 On January 8,
4Louis Jr.'s death was not an impediment to the continuance of this
litigation. Rule 25(a)(1) & (2), Ala. R. Civ. P., provide:
8
1200383
"(a) Death.
"(1) If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper
parties. The motion for substitution may be made by any
party or by the successors or representatives of the deceased
party and, together with the notice of hearing, shall be served
on the parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon
persons not parties in the manner provided in Rule 4[, Ala. R.
Civ. P.,] for the service of a summons, and may be served in
any county. Unless the motion for substitution is made not
later than six months after the death is suggested upon the
record by service of a statement of the fact of the death as
provided herein for the service of the motion, the action shall
in the absence of a showing of excusable neglect be dismissed
as to the deceased party.
"(2) In the event of the death of one or more of the
plaintiffs or of one or more of the defendants in an action in
which the right sought to be enforced survives only to the
surviving plaintiffs or only against the surviving defendants,
the action does not abate. The death shall be suggested upon
the record and the action shall proceed in favor of or against
the surviving parties."
In this case, with the advent of Louis Jr.'s death, his rights in the
subject property were extinguished regardless of the outcome of the
litigation. If Louis Jr.'s conveyance of the subject property to Norma and
Larry is ruled to be permissible, then Louis Jr.'s former interest in the
subject property belongs to Norma and Larry, who were added as
plaintiffs to the action before Louis Jr.'s death. If Louis Jr.'s conveyance
is ruled to be impermissible, then his interest in the subject property was
extinguished upon his death and Amelia and Louise own all interest in the
9
1200383
2021, Norma and Larry filed a response to Amelia and Louise's summary-
judgment motion. In that response, they contended that the language of
the April 3, 1965, deed dictated that Louis Jr., Amelia, and Louise held
the subject property as joint tenants and that, therefore, the right of
survivorship was destructible through a conveyance or sale by one owner
of his or her interest in the subject property without the consent of the
other owners. Consequently, they argued that Louis Jr.'s June 22, 2016,
conveyance of his interest in the subject property to them was legally
permissible.
In reply to Norma and Larry's filing, Amelia and Louise filed with
the circuit court on January 12, 2021, a second affidavit from Amelia that
was substantially similar to her first one but added a few details from her
perspective about the day the April 3, 1965, deed was executed:
"Our attorney was Jim Berry. I, Amelia Peinhardt, along with
Louise Peinhardt, Herman Louis Peinhardt, Marie Peinhardt,
Linda P. Chambers, and Leon Chambers met at the law office
of James 'Jim' Berry which was located in the Plaza Building
close to the Court House in Cullman, Alabama to sign the deed
on April 3, 1965. Also with us at the time was our uncle,
property.
10
1200383
Walter Daniel. On that day and just before the deed was
executed, and in everyone's presence we were told by Attorney
Jim Berry that the property could never be sold or divided
without all three of us, me, Louise Peinhardt and Herman
Louis Peinhardt, agreeing to do so if we owned the property
with the right of survivorship provision. This is what we
wanted. The deed was then signed and was taken to the court
house by Walter Daniel to record."
On January 25, 2021, the circuit court entered a "Final Order"
granting a summary judgment in favor of Amelia and Louise. After
providing a rough outline of the facts and the summary-judgment
standard of review, the circuit court described what it believed to be the
core issue in the case and explained its rationale for ruling in Amelia and
Louise's favor:
"The dispositive issue in this case appears to be whether
the 1965 deed created a joint tenancy with a right of
survivorship, which could be destructible by the unilateral acts
of a single grantee, or whether it created a tenancy in common,
with a right of survivorship that is not destructible, except
with the unanimous agreement of all grantees. In this case,
the deed of conveyance clearly provided that upon the death of
one or more of the grantees, the interest of the deceased
grantee would pass to the survivor or survivors among them.
The question then, is whether a joint tenancy or tenancy in
common was created.
" ' "Where a conveyance provides for concurrent
ownership with the survivor to receive the fee, analysis of the
11
1200383
survivor's interest must begin with determining whether the
grantees took as tenants in common or as joint tenants. See
Durant v. Hamrick, 409 So. 2d 731, 738 (Ala. 1981). If they
took as tenants in common, then the estate created is
characterized as a tenancy in common with indestructible
cross-contingent remainders in fee to the survivor." ' [Ex Parte
Arvest Bank, 219 So. 3d 620, 625 (Ala. 2016) ([q]uoting,
Johnson v. Keener, 425 So. 2d 1108, 1109 (Ala. 1983)[)]. '[A]
joint tenancy with a right of survivorship can be unilaterally
destroyed by the acts of one of the owners, thereby defeating
the survivorship interest in the property.' Fadalla v. Fadalla,
929 So. 2d 429[, 434] (Ala. 2005). See, also, Nunn v. Keith, 289
Ala. 518, 268 So. 2d 792 (1972).
"After review of the motion for summary judgment, the
response of [Norma and Larry] and the submissions of the
parties, and after careful consideration of the relevant law, the
court finds that the 1965 deed created a tenancy in common for
life with a contingent remainder in favor of the survivor or
survivors. The right of survivorship interest created in 1965
cannot be destroyed by the unilateral acts of any one of them.
Durant v. Hamrick, 409 So. 2d 731, (Ala. 1981); Fadalla v.
Fadalla, 929 So. 2d 429 (Ala. 2005). Therefore, the purported
transfer by Louis Peinhardt, Jr. in 2016 is not effective to
defeat the rights of Louise and Amelia Peinhardt and the
property conveyed by the 1965 deed is not subject to a sale for
division. [Amelia and Louise] being entitled to a judgment as
a matter of law, it is therefore ORDERED and ADJUDGED
that the motion for summary judgment filed by [Amelia and
Louise] is hereby granted and this action is dismissed, costs
taxed as paid. Any other motion or request for relief that is
not specifically granted herein is denied. There being no
further legal issues pending before the court, this judgment is
a final judgment and the clerk shall enter a final disposition in
[the State Judicial Information System]."
12
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(Capitalization in original.)
On February 19, 2021, Norma and Larry filed a postjudgment
motion to alter, amend, or vacate the circuit court's January 25, 2021,
judgment. The circuit court denied the postjudgment motion by order the
following day. On March 8, 2021, Norma and Larry filed this appeal.
II. Standard of Review
"Our standard of review for a summary judgment is as
follows:
" '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 review the evidence in a light most
favorable to the nonmovant." 943 So. 2d at 795.
We review questions of law de novo. Davis v.
Hanson Aggregates Southeast, Inc., 952 So. 2d 330
(Ala. 2006).'
"Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346
(Ala. 2006)."
13
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Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 793 (Ala.
2007).
III. Analysis
The parties on both sides agree that the dispositive issue is whether
the April 3, 1965, deed created in grantees Louis Jr., Amelia, and Louise
a joint tenancy or a tenancy in common with a right of survivorship. See
notes 1 and 3, supra (noting that it appears that only a portion of
Louis Jr.'s interest in the subject property is at issue in this case). If the
estate created was a joint tenancy, then the right of survivorship was
destructible, and therefore Louis Jr.'s conveyance of the portion of his
interest in the subject property that is at issue in this case was
permissible. See, e.g., Durant v. Hamrick, 409 So. 2d 731, 735 (Ala. 1981)
("The conveyance by one joint tenant to a third party destroys the joint
tenancy and a tenancy in common among the new owners is created by
operation of law."). On the other hand, if the estate created was a tenancy
in common with a right of survivorship, then the right of survivorship was
not destructible, and Louis Jr.'s conveyance of the portion of his interest
in the subject property that is at issue in this case was not permissible
14
1200383
because he did not have consent from Amelia and Louise to execute the
conveyance. See Durant, 409 So. 2d at 737 ("A tenancy in common for life
with contingent remainder in fee in the survivor differs from a joint
tenancy in that the right of survivorship in one tenant in common is not
destructible by the act of the other.").
"The destructibility of joint tenancies has been termed 'one of the
most confused areas of Alabama law.' Nunn v. Keith, 289 Ala. 518, 520,
268 So. 2d 792, 794 (1972)." Porter v. Porter, 472 So. 2d 630, 632 (Ala.
1985). The confusion arose from this Court's decision in Bernhard v.
Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965). In In re Spain, 831 F.2d
236 (11th Cir. 1987), the United States Court of Appeals for the Eleventh
Circuit provided a fairly concise summary of the legal landscape that
unfolded from Bernhard:
"Alabama courts historically favored tenancies in
common over joint tenancies.[5] Alabama did not recognize a
5Alabama is far from alone in historically favoring tenancies in
common over joint tenancies, a favoritism that traces back to English
common law:
"The common-law judges, though not perhaps at first, at
15
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joint tenant's right of survivorship until 1940, when the
Alabama legislature provided that such rights must be
enforced where expressly provided for in the instrument of
conveyance.4 Construing this provision, the court in Bernhard
v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965), held that a
deed providing for concurrent ownership and rights of
survivorship did not create a joint tenancy, but rather created
a tenancy in common with cross contingent remainders to the
survivor (i.e. indestructible rights of survivorship).
"In 1972, Alabama courts began to soften their harsh
attitudes toward joint tenancies. Again construing the 1940
statute, the court in Nunn v. Keith, 289 Ala. 518, 268 So. 2d
a quite early period commenced to favor joint tenancy as
against tenancy in common, with the result that, by a
conveyance to two or more persons, with nothing to indicate a
contrary intention, a joint tenancy was regarded as created.
This leaning in favor of joint tenancy would seem to indicate
a desire to lessen the feudal burdens of the tenants, since only
one suit and service was due from all the joint tenants, and on
the death of one joint tenant the other acquired his share free
from the burdens in favor of the lord which ordinarily accrued
on the death of the tenant of land. With the practical abolition
of tenures, however, the reason for such policy ceased, and
thereafter courts of equity, regarding the right of survivorship
as productive of injustice, in making no provision for posterity,
showed a disposition to lay hold of any indication of intent in
order to construe an instrument as creating a tenancy in
common, and not a joint tenancy."
2 Herbert Thorndike Tiffany and Basil Jones, The Law of Real Property
§ 421 (3d ed. 1939) (footnotes omitted). See also Durant, 409 So. 2d at
736.
16
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792 (1972), overruled Bernhard and found that the Alabama
legislature merely intended to provide grantors with the
means to create a traditional joint tenancy. The court held that
a deed conveying real property to grantees 'as joint tenants,
with right of survivorship' did not create a tenancy in common
with indestructible rights of survivorship, but instead created
a joint tenancy (with its attendant destructible rights of
survivorship).
"After November 9, 1972, the date of the Nunn decision,
Alabama deeds purporting to create joint tenancies
successfully created joint tenancies, not tenancies in common
with cross contingent remainders in the survivor. Although the
court in Durant v. Hamrick, 409 So. 2d 731 (Ala. 1981),
indicated that a tenancy in common with cross contingent
remainders to the survivor could be created in this post-Nunn
period, this Bernhard-type interest could only be created if the
parties clearly state their intention not to create a joint
tenancy. Such an interest was created in Durant, where the
deed expressly referred to a 'tenancy in common' with rights of
survivorship."
____________________
"4Title 47, Ala. Code § 19 (1940) (current version at Ala.
Code § 35-4-7 (1975)):
" 'When one joint tenant dies before the severance,
his interest does not survive to the other joint
tenants but descends and vests as if his interest
had been severed and ascertained; provided, that in
the event it is stated in the instrument creating
such tenancy that such tenancy is with right of
survivorship or other words used therein showing
such intention, then, upon the death of one joint
tenant, his interest shall pass to the surviving joint
17
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tenant or tenants according to the intent of such
instrument. This shall include those instruments of
conveyance in which the grantor conveys to himself
and one or more other persons and in which
instruments it clearly appears that the intent is to
create such a survivorship between joint tenants as
is herein contemplated.' "
831 F.2d at 239. Spain does not, however, relate the whole picture.
"Although Nunn [v. Keith, 289 Ala. 518, 268 So. 2d 792
(1972),] was applied prospectively in Bringhurst v. Hardin, 387
So. 2d 186 (Ala. 1980), Nunn was also held to apply to deeds
created before the decision in Bernhard [v. Bernhard, 278 Ala.
240, 177 So. 2d 565 (1965)]. Thus, what has been called the
'Bernhard window' was created. The Bernhard rule was to
continue to apply to deeds creating joint tenancies with right
of survivorship executed between the release of the Bernhard
decision and the overruling of that decision by Nunn."
Nettles v. Matthews, 627 So. 2d 870, 871-72 (Ala. 1993). Bernhard was
released on July 15, 1965. The deed in question here was executed on
April 3, 1965. Thus, the deed was executed outside the so-called
"Bernhard window," and as such the rule from Nunn v. Keith, 289 Ala.
518, 268 So. 2d 792 (1972), applies to the deed.
In sum, the April 3, 1965, deed either created a joint tenancy or a
peculiar form of a tenancy in common that also carries a right of
survivorship.
18
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"In a joint tenancy at common law each tenant was
seized of some fractional share while at the same time each
owned the whole. The most significant feature of such a
tenancy was the right of survivorship. When one joint tenant
died, the deceased's share was owned by the surviving tenants
jointly, until only one remained, who then owned the fee. The
last survivor took nothing by survivorship as he had always
owned the whole. The deaths of the other joint tenants merely
removed impediments to the survivor's complete ownership. At
common law, a joint tenancy could be created only where the
four unities of time, title, interest, and possession were present
and the destruction of any of these would terminate the joint
tenancy. Thus, a conveyance by a joint tenant of his interest in
the property would destroy the joint tenancy."
Nunn, 289 Ala. at 520-21, 268 So. 2d at 794. " 'It has consistently been
stated that an instrument creating a joint tenancy with right of
survivorship must clearly express the incident of survivorship if such was
intended by the parties.' " Andrews v. Troy Bank & Trust Co., 529 So. 2d
987, 993 (Ala. 1988) (quoting with approval Parr v. Godwin, 463 So. 2d
129, 134-35 (Ala. 1984) (Torbert, C.J., dissenting)). Conversely, "[a]
tenancy in common does not ... have the incidence of survivorship: when
one tenant in common dies, his fractional interest in the right to
possession and use of the entire property passes to his or her heirs at law
-- not the other tenant in common." 2 Tiffany & Jones, The Law of Real
19
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Property § 426 (as updated as of September 2020). However, after
Bernhard, it was determined that a type of tenancy in common with a
right of survivorship could be created, but that type of tenancy in common
also must clearly express the incident of survivorship because it is
contrary to the ordinary nature of a tenancy in common. See Durant, 409
So. 2d at 738.
There is no question that the April 3, 1965, deed intended for a right
of survivorship to be part of the estate provided to the grantees because
the subject property was granted to Louis Jr., Amelia, and Louise "for and
during their joint lives and upon the death of either of them, then to the
survivor or survivors of them in fee simple together with every contingent
remainder and right of reversion ...." Thus, the right of survivorship was
expressly stated; the only question is whether the estate created was a
joint tenancy or a tenancy in common. "The nature of that estate
determines whether [Norma and Larry's] action for compulsory partition
will lie. To make this determination, we must consider the language of
the deed." Clemmons v. Veasey, 435 So. 2d 1253, 1255 (Ala. 1983).
20
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"In construing deeds, this Court stated in Financial
Investment Corp. v. Tukabatchee Area Council, Inc., 353
So. 2d 1389, 1391 (Ala. 1977):
" 'It is, of course, a fundamental rule of
construction that the real inquiry in construing the
terms of a deed is to ascertain the intention of the
parties, especially that of the grantor, and if that
intention can be ascertained from the entire
instrument,
resort
to
arbitrary
rules
of
construction is not required. Wilkins v. Ferguson,
294 Ala. 25, 310 So. 2d 879 (1975); Gulf Oil Corp. v.
Deese, 275 Ala. 178, 153 So. 2d 614 (1963).
" 'The courts, in construing conveyances, must
ascertain and give effect to the intention and
meaning of the parties, "to be collected from the
entire instrument." Brashier v. Burkett, 350 So. 2d
309 (Ala. 1977); Stratford v. Lattimer, 255 Ala.
201, 50 So. 2d 420 (1951).
" '... It is, of course, true that where a deed is
of doubtful meaning, or where the language of a
deed is ambiguous, the intent of the parties to the
deed as to what property is conveyed may be
ascertained by reference to facts existing when the
instrument was made, to which the parties may be
presumed to have had reference. Lietz v. Pfuehler,
283 Ala. 282, 215 So. 2d 723 (1968).
" 'However, if the language is plain and
certain, acts and declarations of the parties cannot
be resorted to, to aid construction. Id.; Hall v.
Long, 199 Ala. 97, 74 So. 56 (1916).
21
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" '....
" 'In ascertaining the intention of the parties,
the plain and clear meaning of the deed's terms
must be given effect, and parties must be legally
presumed to have intended what is plainly and
clearly set out. Camp v. Milam, 291 Ala. 12, 277
So. 2d 95 (1973).' "
Priest v. Ernest W. Ball & Assocs., Inc., 62 So. 3d 1013, 1017 (Ala. 2010).
Amelia and Louise rely on introductory language in the April 3,
1965, deed to support their contention that the deed granted a tenancy in
common with a right of survivorship. The deed begins by stating:
"That Marie Peinhardt, a widow of Louis Peinhardt, deceased,
Louise Peinhardt, Amelia Peinhardt, Herman Louis Peinhardt,
and Linda P. Chambers who are all and the only heirs at law
of Louis Peinhardt, deceased, ...; and being as such heirs at
law, joint owners and tenants in common of the premises
hereinafter described and they further being desirous of selling
said premises for the purposes of partition and division among
said joint owners and tenants in common ...."
(Emphasis added.) To Amelia and Louise, the direct references in the
deed to a tenancy in common settle the issue.
In contrast, Norma and Larry rely upon the language in the granting
clause of the April 3, 1965, deed, which states:
22
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"[W]e, Marie Peinhardt, a widow, Linda P. Chambers, in whom
is the legal title and her husband, Leon Chambers, who joins
in to convey any and all the interest he might own, do grant,
bargain, sell and convey unto Louise Peinhardt, Amelia
Peinhardt, and Herman Louis Peinhardt for and during their
joint lives and upon the death of either of them, then to the
survivor or survivors of them in fee simple together with every
contingent remainder and right of reversion all of their right,
title and interest in and to the following described real estate
situated, lying and being in Cullman County, Alabama, ...."
(Emphasis added.) This same language -- "for and during their joint lives
and upon the death of either of them, then to the survivor or survivors of
them in fee simple together with every contingent remainder and right of
reversion" -- is repeated in the deed, and much of it is also included in the
habendum clause. Norma and Larry argue that the foregoing language
grants a joint tenancy.
We agree with Norma and Larry's interpretation of the deed. Read
as a whole, the introductory language that mentions "tenants in common"
refers to the owners of the subject property following Louis's death, based
on intestate succession, i.e., Marie, Linda, Leon, Louis Jr., Amelia, and
23
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Louise.6 The deed states that the owners shared the subject property as
"joint owners and tenants in common" and that some of those "joint
owners and tenants in common" -- namely, Marie, Linda, and Leon -- were
"selling said premises for the purposes of partition and division among"
some of the other "joint owners and tenants in common" -- namely,
Louis Jr., Amelia, and Louise. In other words, the introductory language
discussing "joint owners and tenants in common" does not describe the
estate conveyed to the grantees but, rather, it describes the estate
possessed by the owners following Louis's death. The relevant language
for determining the type of estate conveyed to the grantees is the granting
clause, which we quoted above, the key portion of which provides that the
subject property was "grant[ed], bargain[ed], [sold] and convey[ed]" to
Louis Jr., Amelia, and Louise "for and during their joint lives and upon
the death of either of them, then to the survivor or survivors of them in fee
6See notes 1 and 3, supra. Title 16, § 9, Ala. Code 1940 (Recomp.
1958), provided that, "[w]hen an inheritance, or share of an inheritance,
descends to several persons, they take as tenants in common, in
proportion to their respective rights, unless it is otherwise provided by
law."
24
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simple together with every contingent remainder and right of reversion."
As Norma and Louise observe in their appellate brief, nearly identical
language -- "for and during their joint lives, and upon the death of either
of them, then to the survivor of them in fee simple, together with every
contingent remainder and right of reversion" -- was used in the granting
clause of the deed at issue in Johnson v. Keener, 425 So. 2d 1108, 1108
(Ala. 1983), and the Johnson Court unequivocally stated that by this
language "the parties took the property as joint tenants." Id. at 1109.
But Johnson is far from the only case in which this Court has
concluded that a deed using nearly identical granting language conveyed
a joint tenancy. In Ex parte Arvest Bank, 219 So. 3d 620 (Ala. 2016), this
Court reasoned:
"There is no dispute that the Nilands met the
requirement in § 35-4-7[, Ala. Code 1975,] of clear intent to
create a right of survivorship. The warranty deed by which
Evelyn conveyed the property to herself and Raymond was
titled 'Warranty Deed Jointly for Life with Remainder to
Survivor,' and the text of the deed stated that Evelyn conveyed
the property to Evelyn and Raymond 'for and during their joint
lives, and upon the death of either of them, then to the
survivor of them in fee simple, together with every contingent
remainder and right of reversion.'
25
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"....
"Because the warranty deed conveying the property to
Raymond and Evelyn contained a clear expression of intent to
create a joint tenancy with a right of survivorship that fulfilled
the unities of interest, title, and possession, Evelyn and
Raymond created a joint tenancy with a right of survivorship."
Id. at 626-27 (emphasis added). In Nettles v. Matthews, supra, the Court
related:
"In 1967, Lonnie E. Carter and his wife, Grace Nettles
Carter, were issued a warranty deed conveying property 'for
and during their joint lives and upon the death of either of
them, then to the survivor of them in fee simple, together with
every contingent remainder and right of reversion.' In other
words, the Carters owned the property in joint tenancy with
right of survivorship."
627 So. 2d at 871 (emphasis added). In Clemmons v. Veasey, supra, "[t]he
deed was a conveyance by Veasey as grantor to herself and the
Clemmonses as grantees 'for and during their joint lives and upon the
death of either of them, then to the survivor of them in fee simple ...
together with every contingent remainder and right of reversion.' " 435
So. 2d at 1254. The Clemmons Court observed: "The granting and
habendum clauses used here (the language quoted above is from the
granting clause) are identical to those used in Johnson v. Keener, 425
26
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So. 2d 1108 (Ala. 1983). We there determined that such language creates
not a tenancy in common, but a joint tenancy." Id. at 1255 (footnote
omitted). In Smith v. Smith, 418 So. 2d 898 (Ala. 1982), the Court
explained:
"The habendum clause of the deed before this Court explicitly
provides that the property was conveyed to 'Perry Smith and
Katie Lou Smith during their joint lives, and upon the death
of either of them, then to the survivor of them in fee simple
forever.' This is precisely the language necessary to establish
a concurrent ownership as joint tenants with right of
survivorship under Code 1975, § 35-4-7."
Id. at 900 (emphasis added). In Kempaner v. Thompson, 394 So. 2d 918
(Ala. 1981), the Court recounted:
"On April 12, 1974, each executed a deed conveying their
two houses and lots to themselves, 'for and during their joint
lives and upon the death of either of them, then to the survivor
of them in fee simple.' ...
"....
"There appears to be no dispute in this case that the
Thompsons intended to and did create a valid joint tenancy
with right of survivorship."
Id. at 919-20 (emphasis added). See also McClung v. Green, 80 So. 3d 213,
214, 219 (Ala. 2011).
27
1200383
In short, language nearly identical to that used in the granting and
habendum clauses of the April 3, 1965, deed has repeatedly been
interpreted as creating a joint tenancy. We see no reason to depart from
that understanding in this case. Even if it could be said that the
introductory language of the deed and the language in the granting clause
conflict, "the granting clause in a deed determines the interest conveyed,
and unless there is repugnancy, obscurity or ambiguity in that clause, it
prevails over introductory statements or recitals in conflict therewith, and
over the habendum, too, if that clause is contradictory or repugnant to it."
Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So. 2d 219, 220-21 (1968). In
other words, the language in the granting clause would control our
interpretation of the deed anyway. But, as we explained above, we do not
view the deed language mentioning "tenants in common" as conflicting
with the granting clause, which conveyed the subject property to the
grantees "for and during their joint lives and upon the death of either of
them, then to the survivor or survivors of them in fee simple," because the
introductory language refers to the grantors, while the granting clause
and the language that follows it refer to the grantees. Therefore, because
28
1200383
the intention of the parties to the deed " 'can be ascertained from the
entire instrument, resort to arbitrary rules of construction is not
required.' " Priest, 62 So. 3d at 1017 (quoting Financial Inv. Corp. v.
Tukabatchee Area Council, Inc., 353 So. 2d 1389, 1391 (Ala. 1997)).
Likewise, because " 'the language is plain and certain, acts and
declarations of the parties cannot be resorted to, to aid construction,' " id.,
and so we cannot consider Amelia's affidavit explanation of the parties'
intentions.
A careful reading of the April 3, 1965, deed and a consistent
interpretation of language nearly identical to that used in the granting
clause in previous cases dictates that Louis Jr., Amelia, and Louise were
conveyed a joint tenancy with a right of survivorship with respect to the
portion of the subject property at issue. In a joint tenancy, the right of
survivorship is destructible without consent from the joint owners. See,
e.g., Fadalla v. Fadalla, 929 So. 2d 429, 434 (Ala. 2005) (noting that "a
joint tenancy with a right of survivorship can be unilaterally destroyed by
the acts of one of the owners, thereby defeating the survivorship interest
in the property"). Consequently, Louis Jr.'s June 22, 2016, conveyance of
29
1200383
his interest in the subject property to Norma and Larry destroyed the
right of survivorship, and the result was an ordinary tenancy in common
between Norma, Larry, Amelia, and Louise. See Porter, 472 So. 2d at 633
("When one or all of the unities of time, title, and interest are destroyed
the joint tenancy is severed and a tenancy in common results.").
Therefore, the circuit court's summary judgment in favor of Amelia and
Louise, and against Norma and Larry, is due to be reversed.
IV. Conclusion
The April 3, 1965, deed conveyed a joint tenancy in the portion of the
subject property at issue rather than a tenancy in common with a right of
survivorship. As a result, Louis Jr.'s conveyance of his interest in the
portion of the subject property at issue was permissible. Accordingly, we
reverse the judgment of the circuit court and remand the cause for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Stewart, and Mitchell,
JJ., concur.
Sellers, J., concurs in the result.
30 | September 24, 2021 |
42b902e4-2c29-4c5e-91bf-362787be231c | City of Birmingham v. Metropolitan Management of Alabama, LLC | N/A | 1200080 | Alabama | Alabama Supreme Court | REL: September 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
SPECIAL TERM, 2021
____________________
1200080
____________________
City of Birmingham
v.
Metropolitan Management of Alabama, LLC
Appeal from Jefferson Circuit Court
(CV-19-301)
PARKER, Chief Justice.
The City of Birmingham ("the City") appeals from the Jefferson
1200080
Circuit Court's denial of its motion to vacate a quiet-title judgment in
favor of Metropolitan Management of Alabama, LLC ("Metropolitan"). We
reverse and remand.
I. Facts and Procedural History
In 1999, the State of Alabama purchased a parcel of property located
in Jefferson County ("the property") at a tax sale. According to the City,
in 2006 "the City's Director of Finance conducted a public sale, selling and
conveying a delinquent demolition assessment against the ... property."
The City purchased that assessment interest and, in February 2007,
recorded a deed showing the conveyance. In 2017, the property was sold
by the State, and Michael Froelich, who was the managing member of
Metropolitan, obtained title to the property by a tax deed. Froelich then
conveyed the property to Metropolitan by quitclaim deed.
In 2018, Metropolitan commenced an action in the Jefferson Circuit
Court to quiet title to the property. Metropolitan named Constance Renee
Miller Wambo as a defendant possessing an interest in the property and
identified as fictitiously named defendants "any individuals and/or entities
who may claim an interest now or in the future in the property ..., whose
2
1200080
true identity is currently unknown to [the] Plaintiff." Metropolitan filed
a motion under Rule 4.3, Ala. R. Civ. P., and § 6-6-564, Ala. Code 1975,
requesting to serve Wambo and all unknown defendants by publication.
In support of that motion, Metropolitan filed an affidavit of Froelich in
which Froelich averred that he, after a diligent search with the assistance
of an attorney, had been unable to identify any other interest holders. The
court granted Metropolitan's motion. Notice of the action was published
in the Alabama Messenger four times over four consecutive weeks. No one
responded to the notice. As required by statute, the court appointed a
guardian ad litem to represent and defend the interests of any unknown
interest holders. See § 6-6-562. The guardian ad litem filed a report
averring that he had been unable to locate any other interest holders. In
November 2019, the court entered a judgment quieting title to the
property in Metropolitan, conveying to Metropolitan fee-simple title to the
exclusion of all others, voiding any claims of the defendants, and making
Metropolitan's claim of interest superior to any other.
In January 2020, Metropolitan's attorney contacted counsel for the
City regarding the City's recorded assessment interest, which
3
1200080
Metropolitan later averred it had discovered after entry of the judgment.
In June 2020, the City filed a motion to intervene in the quiet-title action
and a motion to vacate the judgment as void under Rule 60(b)(4). The
court denied the City's motion to vacate without stating grounds. The City
appeals.
II. Standard of Review
We review de novo a trial court's ruling on a motion to vacate under
Rule 60(b)(4), Ala. R. Civ. P. Bank of Am. Corp. v. Edwards, 881 So. 2d
403, 405 (Ala. 2003).
III. Analysis
The City argues that the circuit court erred in denying the City's
motion to vacate the judgment because, it asserts, the judgment was void.
In particular, the City contends that the court lacked personal jurisdiction
to adjudicate the City's interest in the property because, the City asserts,
Metropolitan impermissibly served notice by publication. The City argues
that Rule 4.3(b), Ala. R. Civ. P., required Metropolitan to first attempt to
serve the City by some other method because the City's "residence" was
"known" by Metropolitan. Specifically, the City posits that Metropolitan
4
1200080
had constructive knowledge of the City's interest as well as its "residence"
(City Hall) because the deed reflecting the City's assessment interest was
recorded and contained a reference to that residence. We agree.
Rule 4.3(b) provides: "When the residence of a defendant is known
and the action is one in which service by publication is permitted, service
of process must first be attempted by one of the methods of service other
than publication as is provided by Rule 4 ...." (Emphasis added.) It is
undisputed that Metropolitan did not attempt to serve the City by any
method other than publication. And the City contends that its "residence"
was "known" by Metropolitan because Metropolitan had constructive
notice of the City's recorded deed that contained a reference to that
"residence."
Proper recording of an instrument reflecting an interest in real
property gives constructive notice of the instrument's contents to all
subsequent purchasers of the property. § 35-4-51, Ala. Code 1975; Brown
v. First Fed. Bank, 95 So. 3d 803, 814-16 (Ala. Civ. App. 2012). Put
another way, knowledge of those contents is imputed to purchasers.
Haines v. Tanning, 579 So. 2d 1308, 1310 (Ala. 1991). The City's deed was
5
1200080
recorded in 2007, about 10 years before Froelich conveyed the property to
Metropolitan. Therefore, Metropolitan had constructive notice of the
deed's contents when Metropolitan acquired the property. Although the
deed did not list a street address for the City, it specified that it was
prepared by a person whose location was "CITY HALL, BIRMINGHAM,
ALABAMA 35203." Moreover, the Rules of Civil Procedure establish that
a municipality may be served with process "by serving the chief executive
officer or the clerk" of the municipality, Rule 4(c)(8), whose offices would
ordinarily be at City Hall. Thus, the contents of the deed included
sufficient notice of the City's "residence."
Accordingly, the key issue presented by this case is whether a
quiet-title plaintiff's constructive notice of the residence of the holder of
an interest in the subject property, based on a recorded instrument
reflecting that interest, constitutes "know[ledge]" of the residence under
Rule 4.3(b). In resolving this issue, we recognize that due-process
principles underlie Rule 4.3's restrictions on service by publication. See
generally 16B Am. Jur. 2d Constitutional Law § 980 (2020) (discussing
due-process limitations on service by publication). And we are guided by
6
1200080
prior decisions of the United States Supreme Court and this Court
applying those due-process principles to similar facts.
In Schroeder v. City of New York, 371 U.S. 208 (1962), New York
City instituted a proceeding to divert a river at a point 25 miles upstream
from a particular landowner. The landowner's name and address were
"readily ascertainable from both deed records and tax rolls," id. at 210, but
the city only published notice of the proceeding in the city record and
newspapers and posted notices on trees and poles along the river (not on
the landowner's property). The published and posted notices did not
contain the landowner's name. The Supreme Court held that the city's
actions "did not measure up to the quality of notice which the Due Process
Clause of the Fourteenth Amendment requires." Id. at 211.
Closer to the facts of this case, in Mennonite Board of Missions v.
Adams, 462 U.S. 791 (1983), a county conducted a tax sale after
publishing an announcement of the sale and mailing notice to the property
owner. However, the county did not directly notify the holder of a
mortgage on the property, whose mortgage had been recorded in the local
records. Under state law, the purchaser at the tax sale obtained a lien
7
1200080
superior to the mortgage. The Supreme Court held that the county's
method of notice failed to satisfy due process as to the mortgagee,
explaining: "When the mortgagee is identified in a mortgage that is
publicly recorded, constructive notice by publication must be
supplemented by notice mailed to the mortgagee's last known available
address, or by personal service. ... [U]nless the mortgagee is not
reasonably identifiable, constructive notice alone does not satisfy" due
process. Id. at 798. Further, the Court noted that, although the deed did
not contain the mortgagee's address, it could presumably have been
ascertained by reasonably diligent efforts. Id. at 798 n.4.
This Court discussed the holding of Mennonite in a case with similar
facts, Special Assets, L.L.C. v. Chase Home Finance, L.L.C., 991 So. 2d
668 (Ala. 2007). There, fire districts held sales of two properties for unpaid
fire-service charges. Each property had a recorded mortgage on it, but the
fire districts made no attempt to provide notice of the impending sales to
the mortgagee by mail or personal service. (The mortgagee was the same
for both properties.) Instead, the fire districts published notice of the sales
in local newspapers. Relying on Mennonite, the trial court ruled that the
8
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fire districts' method of service failed to satisfy due process. On appeal to
this Court, the sale purchasers argued that the mortgagee had not been
"readily identifiable" because the mortgages did not contain an address for
the mortgagee. Id. at 672. We rejected that argument, noting that the
mortgagee's address was on file with the Secretary of State and that the
purchasers did not argue that that fact was insufficient to render the
mortgagee readily identifiable. Id. at 673-74. We also noted that the
purchasers did not point to any evidence that the mortgagee had failed to
properly record the mortgages or that a reasonable search of the probate
records would not have disclosed the mortgages. Id. at 674 n.8.
In light of the due-process holdings of Schroeder and Mennonite, as
well as the law's imputation to purchasers of knowledge of contents of
recorded documents, we conclude that such constructive notice of a
defendant's residence generally suffices for "know[ledge]" of that residence
under Rule 4.3(b). We emphasize, however, as we did in Special Assets,
that Metropolitan does not provide any reason why a reasonable
probate-records search would not have disclosed the City's deed. Likewise,
Metropolitan does not argue that the contents of the deed were
9
1200080
insufficient to put Metropolitan on notice of the City's "residence."
Because Metropolitan had knowledge of the City's residence,
Metropolitan's service by publication without first attempting another
means of service failed to comply with Rule 4.3(b). "Failure of proper
service under Rule 4 deprives a court of jurisdiction and renders its
judgment void." Ex parte Pate, 673 So. 2d 427, 428-29 (Ala. 1995); see also
Whitfield v. Sanders, 366 So. 2d 258 (Ala. 1978) (holding that improper
service by publication rendered judgment void); Shaddix v. Shaddix, 603
So.2d 1096 (Ala. Civ. App. 1992) (same).1 "[I]f [a] ... judgment is void
because the trial court lacked subject-matter or personal jurisdiction or
because the entry of the judgment violated the defendant's due-process
rights, then the trial court has no discretion and must grant relief under
Rule 60(b)(4)." Allsopp v. Bolding, 86 So. 3d 952, 957 (Ala. 2011).
In seeking affirmance of the circuit court's order, Metropolitan
argues that the City's motion to vacate was untimely. Metropolitan
asserts that a motion alleging a "mistake" by Metropolitan's counsel, the
1Metropolitan does not assert that the City had actual notice of the
quiet-title action before the judgment was entered.
10
1200080
guardian ad litem, or the circuit court had to be filed within the
four-month period applicable to motions under Rule 60(b)(1). However,
this argument is irrelevant because the City did not proceed on a theory
of mistake under 60(b)(1). Instead, the City's motion was brought under
Rule 60(b)(4), and, correspondingly, the substance of its argument was
that the judgment was void. Metropolitan does not develop any argument
showing that the City should have been limited to alleging mistake. And
because the motion was based on voidness of the judgment, it could be
filed at any time. Ex parte Full Circle Distrib., L.L.C., 883 So. 2d 638,
642-43 (Ala. 2003).
Accordingly, the circuit court erred by denying the City's motion to
vacate the judgment.2
IV. Conclusion
We reverse the circuit court's denial of the City's motion to vacate
the judgment and remand for further proceedings consistent with this
opinion.
2Because we reverse the judgment based on the City's argument
discussed above, we pretermit discussion of the City's other arguments.
11
1200080
REVERSED AND REMANDED.
Shaw, Bryan, Mendheim, and Mitchell, JJ., concur.
12 | September 17, 2021 |
89950ca7-60bd-4edf-8d73-144ba75e117e | Ronald C. Phillips, Cheryl P. Phillips, and Edith T. Cooper v. Lynn S. Vaughn and Allstate Insurance Company | N/A | 1200285 | Alabama | Alabama Supreme Court | Rel: September 10, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200285
Ronald C. Phillips, Cheryl P. Phillips, and Edith T. Cooper v. Lynn S.
Vaughn and Allstate Insurance Company (Appeal from Jefferson Circuit
Court: CV-17-905306).
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. | September 10, 2021 |
0b179ab9-83ae-4df5-b7a9-ecba13376cf2 | Barbara Hodge v. Christopher Tomlinson, as Administrator ad litem of the Estate of Mary Naomi Neeley | N/A | 1200302 | Alabama | Alabama Supreme Court | Rel: September 10, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200302
Barbara Hodge v. Christopher Tomlinson, as administrator ad litem of the
Estate of Mary Naomi Neeley, deceased (Appeal from Lee Circuit Court:
CV-19-900434).
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. | September 10, 2021 |
10f6aa26-d924-4d6e-8278-59f13ed879ca | Ex parte Robert Rogers III. | N/A | 1190165 | 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
1190165
Ex parte Robert Rogers III. 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 |
771cf89e-96cf-4152-8741-5a2f73788e44 | Ex parte Porter Allen Batts. | N/A | 1200388 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200388 Ex parte Porter Allen Batts. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Porter
Allen Batts v. State of Alabama) (Madison Circuit Court: CC-05-3439.60;
Criminal Appeals : CR-19-0970).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Writ Quashed. No Opinion. Bolin, J. - Parker, C.J., and Shaw, Wise,
Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
0084fda5-eb70-4b3c-a495-0f7ce5990188 | Ex parte Rodriquez D. Reed. | N/A | 1200358 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200358
Ex parte Rodriquez D. Reed. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Rodriquez D. Reed v. State of
Alabama) (Montgomery Circuit Court: CC17-460; Criminal Appeals :
CR-19-0007).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
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, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
7b2bf1fb-78c2-489c-8524-33f32f1ab464 | Ex parte R.W. | N/A | 1200325 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 17, 2021
1200325 Ex parte R.W. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: R.W. v. Tuscaloosa County
Department of Human Resources) (Tuscaloosa Juvenile Court:
JU-12-569.03; Civil Appeals : 2190680).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Writ Quashed. No Opinion. Stewart, J. - Shaw, Wise, Bryan, Mendheim,
and Mitchell, JJ., concur. Parker, C.J., and Bolin, and Sellers, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 17th day of September, 2021.
Clerk, Supreme Court of Alabama | September 17, 2021 |
469d0d88-9a9f-4798-a0db-6a610b071f7b | Ex parte James Carl York. | N/A | 1200662 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200662
Ex parte James Carl York. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: James Carl York v. Alabama
Board of Pardons and Paroles) (Montgomery Circuit Court: CV-20-526;
Criminal Appeals : CR-20-0284).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 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 10th day of September, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
7e23679d-4b56-4273-aba0-77d8a57bef7c | Ex parte Quinton Parhams. | N/A | 1200807 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
November 12, 2021
1200807
Ex parte Quinton Parhams. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Quinton Parhams v. Kay
Ivey, Governor, et al.) (Montgomery Circuit Court: CV-20-513; Criminal
Appeals :
CR-20-0229).
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. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of Novem ber, 2021.
Clerk, Supreme Court of Alabama | November 12, 2021 |
1ebe2638-5e88-497d-a1b7-b36522dcce31 | Wheeler v. Marvin | N/A | 1200282 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2021
_________________________
1200282
_________________________
Karen Wheeler, as administrator of the Estate of Eugene
Drayton, deceased
v.
Kristin Marvin
Appeal from Montgomery Probate Court
(No. 19-675)
SELLERS, Justice.
Karen Wheeler, as administrator of the estate of Eugene Drayton,
deceased, appeals from a judgment of the Montgomery Probate Court
declaring that Kristin Marvin is the biological child of Drayton and is
1200282
therefore an heir of Drayton for purposes of intestate succession. We
affirm the probate court's judgment.
Drayton died intestate in November 2019. The probate court
appointed Wheeler, who is Drayton's daughter, as the administrator of
Drayton's estate. In her filings with the probate court, Wheeler identified
herself and her brother as Drayton's only heirs. Marvin, however, later
filed a petition with the probate court in which she claimed to also be a
biological child of Drayton. She requested that the probate court consider
the results of a DNA test allegedly showing that Drayton's half brother is
Marvin's uncle and, therefore, indicating that Marvin is Drayton's
daughter.
The probate court held a trial, at which it considered the DNA test
result, testimony, and other evidence. After the trial, the probate court
entered a judgment setting forth findings of fact and declaring that
Marvin is Drayton's daughter and is therefore due to inherit from his
estate. Wheeler appealed pursuant to § 12-22-21(4), Ala. Code 1975,
which allows an appeal to this Court "[b]y a legatee or person entitled to
2
1200282
distribution, on the decision of the [probate] court, in proceedings
instituted to compel the payment of a legacy or distributive share."
Section 43-8-48, Ala. Code 1975, provides:
"If, for purposes of intestate succession, a relationship of
parent and child must be established to determine succession
by, through, or from a person:
"(1) An adopted person is the child of an
adopting parent and not of the natural parents
except that adoption of a child by the spouse of a
natural parent has no effect on the right of the
child to inherit from or through either natural
parent;
"(2) In cases not covered by subdivision (1) of
this section, a person born out of wedlock is a child
of the mother. That person is also a child of the
father, if:
"a.
The
natural
parents
participated in a marriage ceremony
before or after the birth of the child,
even though the attempted marriage is
void; or
"b. The paternity is established by
an adjudication before the death of the
father or is established thereafter by
clear and convincing proof, but the
paternity
established
under
this
paragraph is ineffective to qualify the
father or his kindred to inherit from or
3
1200282
through the child unless the father has
openly treated the child as his, and has
not refused to support the child."
(Emphasis added.)
There is no transcript of the trial in the record. Accordingly,
pursuant to Rule 10(d), Ala. R. App. P., Wheeler prepared a statement of
the evidence. It appears that Marvin did not object to that statement, and
the probate court approved it.
According to Wheeler's statement of the evidence, Drayton's half
brother, Curtis Drayton, testified that he had babysat Marvin when she
was a child and that Drayton had told him that Marvin was Drayton's
child.1 Like Curtis, Marvin testified that Drayton was her father. She
also presented the probate court with a copy of a "memento" birth
certificate issued by the hospital where she was born, which identifies
Drayton as her father. She also testified that Drayton had visited her at
1Curtis and Drayton shared the same mother but had different
fathers. According to Wheeler's statement of the evidence, Curtis testified
that Drayton "had another brother and two half brothers." It is not
entirely clear, but Wheeler appears to suggest that the "two half brothers"
are in addition to Curtis. There are no other details regarding these
additional siblings.
4
1200282
her mother's house when she was young and that she had visited
Drayton's mother's house. In addition, Marvin submitted multiple
"family" photographs depicting her with Drayton. Marvin also testified
that Drayton gave her a $2,500 check to help her buy a house, and she
submitted a copy of the check to the probate court. She also submitted a
copy of a letter from the United States Department of Veterans Affairs
indicating that she had made a request for benefits as Drayton's daughter.
According to Marvin, while he was in the hospital shortly before he died,
Drayton had given Marvin the keys to his house. Finally, Marvin
submitted a copy of Drayton's obituary, which had been written by
Wheeler, identifying Marvin as someone "special" to Drayton.
After Drayton died, Curtis and Marvin provided saliva samples at
the office of Marvin's attorney. The samples were placed in separate
containers and envelopes. Curtis and Marvin testified that they
separately traveled alone to a post office and mailed their respective
samples to a laboratory in Vancouver, British Columbia, for DNA testing.
The test resulted in a conclusion that, as to "the Putative Uncle, Curtis J.
Drayton and [the] Putative Nephew/Niece, Kristin Marvin, the probability
5
1200282
of relatedness is 99.6% as compared to an untested, unrelated random
individual." For her part, Wheeler presented the testimony of an expert
witness, who criticized the DNA test result because the DNA samples
were collected and submitted by Marvin and Curtis and not by
"disinterested" parties.
Wheeler testified that she was unaware that Drayton had any
children other than herself and her brother. She asserted that no one,
including Drayton, had ever stated to her that Marvin was Drayton's
child. Wheeler claimed to have met Marvin for the first time at a funeral
held after the death of Drayton's mother, but, she said, Drayton did not
introduce them. Wheeler also suggested that Drayton was "upset" that
Marvin had taken his house keys when he was in the hospital shortly
before he died. Finally, Wheeler claimed that she described Marvin as
"special" to Drayton in his obituary only because someone, she could not
remember whom, had told her she should.
On appeal, Wheeler argues primarily that the probate court erred
in considering the DNA test result. Section 36-18-30, Ala. Code 1975,
provides:
6
1200282
"Expert testimony or evidence relating to the use of
genetic markers contained in or derived from DNA for
identification purposes shall be admissible and accepted as
evidence in all cases arising in all courts of this state,
provided, however, the trial court shall be satisfied that the
expert testimony or evidence meets the criteria for
admissibility as set forth by the United States Supreme Court
in Daubert, et. ux., et. al., v. Merrell Dow Pharmaceuticals,
Inc., decided on June 28, 1993."
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
United States Supreme Court identified the following factors relevant to
deciding whether expert scientific evidence is sufficiently reliable to be
admitted into evidence:
"In assessing reliability, trial courts should look to
several guiding factors, including: (1) whether the 'theory or
technique ... has been ... tested'; (2) whether the 'theory or
technique has been subjected to peer review and publication';
(3) whether the technique's 'known or potential rate of error ...
and ... standards controlling the technique's operation' are
acceptable; and (4) whether the theory or technique has gained
'general acceptance' in the relevant scientific community."
Turner v. State, 746 So. 2d 355, 359 (Ala. 1998) (quoting Daubert, 509
U.S. at 593-94).2
2Expert scientific evidence must also be "relevant." Turner, 746 So.
2d at 359. Wheeler, however, does not seriously contend that a DNA test
purportedly showing that Marvin is the niece of Drayton's half brother is
7
1200282
Wheeler's primary attack on the DNA test is that the DNA samples
were collected not by disinterested parties but by Marvin and Curtis, who
then mailed them outside the presence of disinterested parties. Wheeler
asserts that "there is a possibility that the samples were switched because
they were in the exclusive possession of interested parties prior to being
mailed to [the laboratory that performed the test]." She points out that
the test result itself disclaims any responsibility for how the samples were
collected and is based on the assumption that they were collected
correctly.
"Only if a party challenges the performance of a reliable and
relevant technique and shows that the performance was so particularly
and critically deficient that it undermined the reliability of the technique,
will evidence that is otherwise reliable and relevant be deemed
inadmissible." Turner, 746 So. 2d at 361. Wheeler acknowledges that her
expert witness "agreed that, if the samples in this case were returned to
[the laboratory] as testified to by Curtis Drayton and [Marvin], ... the
not relevant to the issue whether Marvin is Drayton's daughter.
8
1200282
results do indicate a familial relationship between the two." Thus,
Wheeler's criticism of the DNA test is in essence an attack on Curtis's and
Marvin's credibility. In other words, the probate court was presented with
testimony that, if believed, indicated that the result of the DNA test was
reliable. Wheeler has not presented this Court with any authority
suggesting that the probate court could not admit and consider the DNA
test if it believed the testimony of Curtis and Marvin describing how the
DNA samples were collected and submitted. Accordingly, she has not
shown that the probate court erred in considering the DNA test result
based on how the samples were collected and submitted.
Wheeler also asserts that she "had no opportunity to cross examine
the person or persons who performed the DNA tests at [the laboratory]."
First, we note that the record does not demonstrate that Wheeler ever
argued to the trial court that she had a right to "confront" the person or
persons who conducted the DNA test. In any event, in support of this
argument, Wheeler points to precedent involving DNA tests in criminal
proceedings, the admissibility of which had been challenged under the
Confrontation Clause of the Sixth Amendment to the United States
9
1200282
Constitution, which by its own language applies in criminal matters.
Wheeler has not established that such precedent applies in this civil
matter. See generally Alabama State Pers. Bd. v. Miller, 66 So. 3d 757,
761 (Ala. Civ. App. 2010) (noting that, although the Confrontation Clause
is not applicable in civil cases, there can be a due-process right to confront
"an accuser" in a civil proceeding, but also noting that "the right to
confront an accuser [in a civil matter] is not an absolute right").
Moreover, Wheeler does not explain how she was, in fact, precluded from
obtaining the testimony of a representative of the laboratory that
performed the DNA test. See Miller, 66 So. 3d at 762 (holding that the
appellant in a civil matter had waived any right he may have had to
confront a witness because he had failed to subpoena that witness).3
3Wheeler also claims that the DNA test result was not properly
authenticated or supported by sufficient predicate. She does not, however,
support that assertion with a convincing discussion of legal authority. She
provides the following brief quotation from Ex parte Phillips, 962 So. 2d
159, 162 (Ala. 2006): "We agree with the Court of Criminal Appeals that
the two laboratory tests relied upon by [two expert witnesses] lacked the
appropriate predicates for admission into evidence so that the admission
of their testimony regarding the results of those tests over Phillips's
objection was error." Wheeler has the burden on appeal. Johnson v. Life
Ins. Co. of Alabama, 581 So. 2d 438, 444 (Ala. 1991). She has not
10
1200282
Marvin was required to establish paternity through "clear and
convincing proof." § 43-8-48(2)b., Ala. Code 1975. That said, "[t]he
judgment of a trial court based on ore tenus evidence is presumed correct,
and its findings on such evidence 'will not be disturbed on appeal unless
they are palpably wrong, manifestly unjust, or without supporting
evidence.' " Samek v. Sanders, 788 So. 2d 872, 876 (Ala. 2000) (quoting
McCoy v. McCoy, 549 So. 2d 53, 57 (Ala. 1989)). Wheeler points out that
the DNA test result, if admissible, established merely that Marvin is
Curtis's niece but not conclusively that she is Drayton's daughter.
Wheeler asserts that Drayton "had another brother and two half-brothers
who could potentially be the biological father of [Marvin]."
Wheeler's statement of the evidence provides that Drayton had
another unnamed "brother," who by implication would also be a half
brother of Curtis. Regarding two other "half-brothers" of Drayton
mentioned in the statement of the evidence, there is no express indication
established that the trial court erred in considering the DNA test result
because it was not sufficiently authenticated or because a sufficient
predicate was not established.
11
1200282
that Curtis is also related to them. Thus, at most, the record supports the
proposition that Marvin could possibly be the child of Drayton's other
brother, but not necessarily his other half brothers. There is no other
evidence indicating that Marvin's father is Drayton's brother or other half
brothers.
It is not this Court's role to reweigh the evidence. The DNA test
result, combined with the additional evidence accepted by the probate
court, is sufficient to support its judgment. Although Wheeler challenges
the persuasiveness of the evidence submitted, she has not established that
the probate court was plainly and palpably wrong in determining that
there was clear and convincing proof that Marvin is Drayton's daughter.
Accordingly, we affirm the probate court's judgment.4
4Wheeler relies on Reid v. Flournoy, 600 So. 2d 1024 (Ala. Civ. App.
1992), in which the Court of Civil Appeals affirmed a trial court's
judgment declaring that a petitioner was not a child of a decedent. But
the decision in Reid, like the decision in the present case, was based on
the deference afforded trial courts in ore tenus proceedings. Indeed, the
court in Reid specifically noted that the evidence presented to the trial
court in that case would have, if believed by the trial court, supported a
judgment that the petitioner was the decedent's child. Id. at 1026
("Evidence was offered which, if believed, was necessary to prove [the
petitioner's] case; however, the trial court heard and saw the witnesses
12
1200282
AFFIRMED.
Parker, C.J., and Wise and Stewart, JJ., concur.
Bolin, J., concurs in the result.
and had the opportunity to judge their demeanor and credibility."). Like
the court in Reid, we defer to the probate court that heard the evidence
ore tenus in the present case.
13 | September 17, 2021 |
b3f823c3-5628-46f9-812a-f07a333327f4 | Ex parte John Parhams. | N/A | 1200786 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
October 15, 2021
1200786
Ex parte John Parhams. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: John Parhams v. State of
Alabama) (Montgomery Circuit Court: CC-19-797.70; Criminal Appeals :
CR-20-0360).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
October 15, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Shaw, and
Sellers, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. 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 15th day of October, 2021.
Clerk, Supreme Court of Alabama | October 15, 2021 |
e7b1aa55-9cf2-4a24-a957-81f981e0db09 | Sirote & Permutt, P.C. v. Caldwell | N/A | 1200092 | Alabama | Alabama Supreme Court | REL: September 24, 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
SPECIAL TERM, 2021
____________________
1200092
____________________
Sirote & Permutt, P.C.
v.
C. Randall Caldwell, Jr.
Appeal from Mobile Circuit Court
(CV-18-902403)
MITCHELL, Justice.
The law firm of Sirote & Permutt, P.C., and attorney C. Randall
Caldwell, Jr., each claim that they are entitled to one-third of the
1200092
attorneys' fees that were owed for a BP oil spill settlement. Sirote and
Caldwell litigated their dispute against each other, and, following a bench
trial, the trial court ruled in favor of Caldwell and awarded the funds to
him. We affirm that judgment.
Facts and Procedural Background
George Woerner, Caldwell's ex-father-in-law, owned several
businesses along the Gulf Coast ("the Woerner entities"). From about
2008 to 2012, Caldwell worked for the Woerner entities. Although
Caldwell occasionally provided legal advice to the Woerner entities, he
primarily worked in a business role, including as president of Woerner
Landscape, Inc.
In April 2010, the Deepwater Horizon oil rig operated by BP entities
began leaking oil into the Gulf of Mexico. Like many businesses on the
Gulf Coast at the time, the Woerner entities considered asserting claims
against BP. During that evaluation process, Caldwell advised
representatives of the Woerner entities that the BP lawsuits would likely
result in federal multidistrict litigation and that it would be best to retain
a large law firm that might have representatives on the federal
2
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multidistrict-litigation committee. He researched law firms and
recommended Cunningham Bounds, LLC, to the Woerner entities'
representatives. The Woerner entities gave Caldwell permission to
proceed with contacting Cunningham Bounds about representing them.
Caldwell first spoke with Steve Olen, a partner at Cunningham
Bounds. Caldwell testified that, during that conversation, Olen confirmed
that Cunningham Bounds would pay Caldwell one-third of any attorneys'
fees earned and that they would set up an in-person meeting with other
representatives of the Woerner entities. That meeting -- which included
Olen, Caldwell, George, Roger Woerner (George's brother and part owner
of the Woerner entities), and Norm Moore (the Woerner entities' CFO) --
took place in April 2011. In that meeting, the Woerner entities'
representatives agreed to retain Cunningham Bounds as counsel for their
BP claims. Caldwell testified that the parties also discussed the referral
fees, that no one expressed any objection to the referral arrangement, and
that there was no discussion suggesting that Caldwell would be required
to assist Cunningham Bounds going forward to obtain the referral fees.
3
1200092
Shortly after the April 2011 meeting, the Woerner entities signed
representation agreements that entitled Cunningham Bounds to a
percentage of any funds recovered for the BP claims. In a paragraph
titled "Referral fees, if applicable," each of the representation agreements
provided: "I/We understand that my/our claims and case were referred to
you by Randall Caldwell (Referring Attorney) who may receive up to 1/3
of the attorneys fees set out in this Agreement." Olen testified that
Cunningham Bounds listed Caldwell as the referring attorney to "have a
record of what we have agreed to with the referring lawyer." Testimony
at trial indicated that no one objected to Caldwell's involvement or to his
receipt of referral fees before signing the representation agreements.
The following year, Caldwell filed for divorce from his wife -- who is
George's daughter. George then asked Caldwell to leave the Woerner
entities. Caldwell agreed and returned to his private legal practice.
In 2013, Cunningham Bounds notified Caldwell of the approximate
settlement amount for the BP claims. According to Caldwell, when his ex-
wife learned of that amount, she called him in an angry state and
threatened to prevent him from obtaining the referral fees. George later
4
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met with Olen and explained that there was "bad blood" in the family over
the divorce. He also asked Olen if Cunningham Bounds could split the
referral fees among the partners of the Woerner entities rather than pay
Caldwell.1 Olen explained that he could not grant George's request.
The next year, before they had recovered any funds for the BP
claims, the Woerner entities retained Sirote as "substitute" referral
counsel to assist Cunningham Bounds with certain elements of those
claims. As part of that process, each of the Woerner entities sent a letter
to Caldwell acknowledging that Caldwell had "previously assisted with a
BP oil-spill claim asserted on behalf of" each respective Woerner entity,
that the claim "had been principally handled by Cunningham Bounds,"
and that "at the time Caldwell provided assistance he was working as in-
house counsel for one or more" of the Woerner entities. Additionally, the
letters purported to terminate each of the Woerner entities'
attorney-client relationship with Caldwell. According to George's
testimony, the Woerner entities agreed to pay Sirote the referral fees
1According to George, he, Roger, Caldwell, and Allen Woerner
(George's son) had agreed to split the referral fees as bonuses.
5
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allocated to Caldwell in the representation agreements.2 Caldwell then
contacted Olen and asserted that he was entitled to the referral fees.
Once the Woerner entities' BP claims settled, Cunningham Bounds
filed this interpleader action in the Mobile Circuit Court against Caldwell
and Sirote to determine who was entitled to the referral fees. Caldwell
moved for summary judgment, asserting that the Woerner entities and
Cunningham Bounds had agreed through the representation agreements
to pay him those fees. The trial court granted Caldwell's motion, and
Sirote appealed. We reversed the trial court's judgment and remanded
the case for further proceedings because Caldwell had failed to
demonstrate that no genuine issue of material fact existed. See Sirote &
Permutt, P.C. v. Caldwell, 293 So. 3d 867, 874 (Ala. 2019). Specifically,
this Court held, Caldwell had not "present[ed] any evidence to establish
the existence of a contract between him and Cunningham Bounds." Id.
Instead, this Court determined, Caldwell had primarily relied on the
2Olen testified that Cunningham Bounds never contracted with
Sirote to work on the BP claims and never agreed to pay Sirote out of any
fees it earned from working on those claims.
6
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representation
agreements
between
the
Woerner
entities
and
Cunningham Bounds, which merely stated that Caldwell may be paid up
to one-third of the attorneys' fees. Id.
The trial court then held a bench trial in which it heard testimony
from Caldwell, George, Olen, Roger, and Thomas Motes, an attorney at
Sirote. It found that "there was a legally enforceable agreement between"
Caldwell and Cunningham Bounds to pay Caldwell referral fees and that,
because the "referral itself was the subject of" the representation
agreements, "the referral fee[s] w[ere] earned when the referral was
made." Thus, the trial court held, Caldwell was entitled to the referral
fees. Sirote again appealed.
Standard of Review
" 'Since this case was heard nonjury by the trial judge and decided
by [him] as factfinder, the ore tenus rule applies.' " Murphy Oil, USA, Inc.
v. English, [Ms. 1190610, Feb. 19, 2021] __ So. 3d __, __ (Ala. 2021)
(quoting Clardy v. Capital City Asphalt Co., 477 So. 2d 350, 352 (Ala.
1985)). " 'There is thus a presumption of correctness in the trial judge's
findings and [his] judgment based on those findings should not be
7
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disturbed unless palpably wrong, without supporting evidence, or
manifestly unjust.' " Id. at __ (citation omitted). "Nevertheless, we review
the trial court's 'conclusions of law or its application of law to the facts' de
novo." Id. at __ (citation omitted). Questions concerning the sufficiency
of the evidence are questions of law. See Sandoz, Inc. v. State, 100 So. 3d
514, 526 (Ala. 2012).
Analysis
Sirote raises multiple issues on appeal. First, it argues that there
was insufficient evidence for the trial court to find the existence of a
referral agreement between Caldwell and Cunningham Bounds. Second,
it argues that Caldwell is not entitled to the referral fees even if a referral
agreement exists. According to Sirote: (1) there was insufficient evidence
of an attorney-client relationship between Caldwell and the Woerner
entities; (2) there was insufficient evidence that the Woerner entities gave
informed consent to the referral agreement, as allegedly required by Rule
1.5(e), Ala. R. Prof. Cond.; (3) if the Woerner entities gave informed
consent, they withdrew it by discharging Caldwell; and (4) the trial court
erred by holding that Caldwell "earned" referral fees when he referred the
8
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Woerner entities' BP claims to Cunningham Bounds. Finally, Sirote
argues that the trial court erroneously awarded Caldwell postjudgment
interest. We address each argument below.
A. Was There Sufficient Evidence of a Referral Agreement?
We pick up where our decision in Sirote left off: Was there a contract
for the payment of referral fees between Caldwell and Cunningham
Bounds? A contract exists when there is an offer, acceptance,
consideration, and mutual assent to the essential terms of the agreement.
Sirote, 293 So. 3d at 873. Sirote argues that there was insufficient
evidence of the essential terms of the agreement.
First, Sirote contends that, during his testimony at trial, Olen could
not recall specific details about his conversations with Caldwell or the
Woerner entities' representatives; he testified about only Cunningham
Bounds' general policies and practices for referrals of BP claims.
Specifically, Olen testified that, rather than entering into separate written
agreements, Cunningham Bounds generally agreed to pay one-third of
attorneys' fees to the referring lawyer and to reflect that agreement with
the referring lawyer in the agreement it signed with clients. But, even
9
1200092
though Olen could not recall the specific telephone call or discussion with
Caldwell regarding referral fees, his testimony was unequivocal that they
did discuss fees and that it was his understanding that Cunningham
Bounds would pay Caldwell one-third of the attorneys' fees. Olen also
testified that, consistent with its general practice, Cunningham Bounds
"intended [the representation agreements] to show that we had agreed to
pay Mr. Caldwell that referral fee." In fact, Olen testified that his staff
inserted Caldwell's name in the referral section of the representation
agreements upon his "express[] instruction." Finally, Olen testified that,
once Caldwell referred the Woerner entities' BP claims, there was nothing
"left for Mr. Caldwell to perform" and that he had "perform[ed] everything
he was asked to perform."
Caldwell's testimony was consistent with Olen's. He testified that
he first called Cunningham Bounds and left a message and that he then
received a call back from Olen. During that conversation, Caldwell
testified, he and Olen discussed the fee arrangement -- including that it
was standard for Cunningham Bounds to pay one-third of attorneys' fees
for referrals of BP claims. Further, Caldwell testified that they discussed
10
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the fee arrangement -- including referral fees -- during the April 2011
meeting and that there was no discussion during that meeting about
requiring further work from Caldwell on the BP claims.
Sirote makes no attempt to explain away this testimony, which the
trial court was entitled to weigh. See Ex parte Caldwell, 104 So. 3d 901,
904 (Ala. 2012) (" 'When evidence is presented ore tenus, it is the duty of
the trial court, which had the opportunity to observe the witnesses and
their demeanors, and not the appellate court, to make credibility
determinations and to weigh the evidence presented.' " (citation omitted)).
Nor does Sirote cite any authority for the notion that Olen's testimony
about Cunningham Bounds' general practice for handling referrals of BP
claims is outside the bounds of the trial court's consideration. Thus, this
challenge to the sufficiency of the evidence fails.
Second, Sirote argues that the evidence Caldwell provided during
the summary-judgment proceedings was inconsistent with the evidence
he provided at trial. When he moved for summary judgment, Caldwell
asserted in an affidavit that, "[t]o formalize the employment agreement
between Cunningham Bounds and all of the Woerner businesses,
11
1200092
Representation Agreements were executed by each of the Woerner
businesses as well as Cunningham Bounds promising to pay me a referral
fee on each claim." Sirote argues that this is inconsistent with Caldwell's
evidence at trial -- that the contract between him and Cunningham
Bounds was oral. Thus, relying on Murphy Oil, Sirote argues that the
trial court should not have considered this allegedly new evidence at trial.
Caldwell's statement in his summary-judgment affidavit was, in
essence, a legal argument -- that the representation agreements created
an enforceable obligation on the part of Cunningham Bounds. We rejected
that argument based on the plain language of those agreements, which
stated that Caldwell was the referring attorney and that he " 'may receive
up to' " one-third of the attorneys' fees, without any indication as to "what
would trigger the payment of a referral fee to Caldwell or how the actual
amount of such a fee would be determined." Sirote, 293 So. 3d at 874
(emphasis altered). Caldwell also asserted at the summary-judgment
stage that he had a contract with Cunningham Bounds separate from but
formed at the same time as the representation agreements, which we
rejected for a lack of evidence. Id.
12
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During trial, Caldwell did not change any of his testimony. Rather,
he provided additional evidence to support his legal theories -- including
that Cunningham Bounds had inserted his name in the representation
agreements to memorialize the referral agreement it had reached with
him. Thus, even if Murphy Oil applied here,3 it does not bar the trial
court from considering Caldwell's evidence at trial.
It is clear there was sufficient evidence for the trial court to conclude
that a referral agreement existed between Caldwell and Cunningham
Bounds. No one disputes that there was an offer and an acceptance --
Caldwell offered to refer the Woerner entities' BP claims to Cunningham
Bounds, which accepted that offer. And there is evidence to conclude that
3In Murphy Oil, we applied the well-established rule that we will not
review the denial of a motion for summary judgment when there has been
a subsequent trial on the merits. In doing so, we referenced (but did not
apply) an exception to that rule: when a party changes testimony based
on experiences gained during the summary-judgment proceedings.
Murphy Oil, __ So. 3d at __. This exception applies when a
summary-judgment movant asserts on appeal that the judgment should
have been granted at the time it filed the motion. But it does not
necessarily follow that the exception applies when a nonmovant, like
Sirote, challenges additional evidence a movant submitted at trial after
the movant was denied summary judgment.
13
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consideration existed for both sides in the form of attorneys' fees. Finally,
the testimony of Caldwell and Olen was sufficient to establish the
essential terms of their agreement -- Caldwell's obligation was to refer the
Woerner entities' BP claims, and Cunningham Bounds' job was to
represent the Woerner entities and pay Caldwell one-third of its attorneys'
fees from any funds it recovered from the BP claims. Thus, the trial court
did not err by finding the existence of a contract between Caldwell and
Cunningham Bounds.
B. Is the Referral Agreement Void or Unenforceable?
Sirote advances several arguments that, if correct, could render the
referral agreement void or unenforceable. We find each of those
arguments unconvincing.
1. Was There Sufficient Evidence to Find an Attorney-Client
Relationship Between Caldwell and the Woerner Entities?
Sirote contends that the evidence at trial was insufficient to
establish an attorney-client relationship between Caldwell and the
Woerner entities. Because Caldwell "has no basis for receiving a fee based
on money recovered on behalf of a non-client," Sirote argues, he is not
14
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entitled to the referral fees. We disagree. Our review of the evidence
presented at trial reveals that the trial court had sufficient evidence to
conclude that an attorney-client relationship between Caldwell and the
Woerner entities existed and that the scope of that relationship was
limited to the initial advice Caldwell provided and his referral of the
Woerner entities' BP claims to Cunningham Bounds.4
"To create an attorney-client relationship, there must be an
employment contract ' "either express or implied" ' between an attorney
and ' "the party for whom he purports to act or some one authorized to
represent such party." ' " Bryant v. Robledo, 938 So. 2d 413, 418 (Ala. Civ.
App. 2005) (quoting Board of Comm'rs of the Alabama State Bar v. Jones,
291 Ala. 371, 377, 281 So. 2d 267, 273 (1973)). The testimony at trial
included the following:
4Although the trial court did not make any express factual finding
on these points, those findings are implicit in the trial court's conclusions
that an enforceable referral agreement existed between Caldwell and
Cunningham Bounds and that Caldwell "earned" the referral fees at the
time of the referral. See Ex parte Owen, 860 So. 2d 877, 880 (Ala. 2003)
("[W]hen the trial judge makes no specific findings of fact as to an issue,
we will assume that the judge has made the findings necessary to support
the judgment, unless those findings are clearly erroneous.").
15
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•
Caldwell was not hired as in-house legal counsel because the
Woerner entities did not "have enough ongoing legal issues to
acquire in-house counsel," but, as needed, he would "certainly review
contracts, things of that nature";
•
According to George, Caldwell's compensation from the Woerner
entities included payment for legal advice and services;
•
As of 2011, Caldwell "provide[d] expert legal knowledge" to the
Woerner entities and Caldwell believed he had an attorney-client
relationship with them regarding "lots of things";
•
Although George would not characterize Caldwell's relationship with
the Woerner entities as an attorney-client relationship generally, he
and other representatives of the Woerner entities would
"[a]bsolutely" ask Caldwell for legal advice, and Caldwell would
provide it;
•
Caldwell provided legal advice to the Woerner entities concerning
their potential BP claims by explaining the nature of federal
multidistrict litigation, by stating that they would want to hire a
large firm that might have someone directly involved in the federal
multidistrict-litigation
committee,
by
researching
and
recommending Cunningham Bounds, and by facilitating the
discussions with Cunningham Bounds;
•
Caldwell believed he had an attorney-client relationship with all the
Woerner entities regarding their BP claims from the point they
began discussing the possibility of filing claims against BP until he
referred those claims to Cunningham Bounds;
•
George characterized Caldwell's relationship with the Woerner
entities regarding the BP claims as an attorney-client relationship.
George said that he had expected Caldwell to continue working on
the BP claims even after the termination of his employment with the
16
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Woerner entities. He further testified that he had terminated that
relationship in favor of Sirote because he believed that Caldwell was
not performing well in that capacity.
In addition to that testimony, the documents introduced as evidence
at trial support the existence of an attorney-client relationship. Each of
the representation agreements list Caldwell as the "Referring Attorney,"
and each of the Woerner entities sent letters to Caldwell stating that he
had assisted with the BP claims as "in-house counsel for one or more of
the Woerner entities" and "terminating the attorney-client relationship
between [Caldwell] and/or your firm and [each Woerner entity] on the BP
oil spill claim." Taken together, there was sufficient testimonial and
documentary evidence from which the trial court could have found an
attorney-client relationship between Caldwell and the Woerner entities,
at least concerning the BP claims.
The trial court also had sufficient evidence to conclude that the scope
of that relationship consisted of Caldwell's initial advice and his referral
of the Woerner entities' BP claims to Cunningham Bounds. Of the four
individuals who testified about this issue -- George, Roger, Caldwell, and
Olen -- only George testified that he had expected Caldwell to continue
17
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working on the BP claims. But George's testimony arguably contradicted
itself. For example, he testified that he wanted to discharge Caldwell as
the Woerner entities' attorney for the BP claims because Caldwell was not
keeping George updated about the status of the BP litigation. Yet, despite
frequent news reports about the BP litigation, George testified that he
never contacted Caldwell in the years following Caldwell's departure from
the Woerner entities to express his dissatisfaction that Caldwell was not
keeping him updated. The trial court was entitled to weigh this testimony
and the witnesses' credibility. See Caldwell, 104 So. 3d at 904.
Finally, none of the authorities Sirote cites prohibit Caldwell from
receiving referral fees. Sirote cites Alabama State Bar Office of General
Counsel Formal Opinion 2013-01 for the proposition that Caldwell's status
as an employee of a nonlawyer corporation prevented him from receiving
referral fees for the Woerner entities' BP claims. But that opinion states
that it is impermissible to share referral fees for BP claims with
nonlawyers, such as accountants and other advisors. It says nothing
about referral fees for a lawyer who -- if not formally designated as in-
18
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house counsel -- provided legal advice concerning his employer's BP
claims.5
Sirote argues in the alternative that, even if an attorney-client
relationship existed, Caldwell was entitled to fees only under a quantum
meruit theory -- that is, Caldwell could recover fees only "for the
reasonable value of services [he] rendered." Gaines, Gaines & Gaines,
P.C. v. Hare, Wynn, Newell & Newton, 554 So. 2d 445, 447 (Ala. Civ. App.
1989). Sirote relies on Gaines and Pope, McGlamry, Kilpatrick, Morrison
& Norwood, P.C. v. DuBois, 266 So. 3d 1064 (Ala. Civ. App. 2017), both
decisions of the Court of Civil Appeals, in making this argument. But
both cases are distinguishable.
In Gaines, a law firm challenged the trial court's award of attorneys'
fees on a quantum meruit basis when the firm had been discharged before
the completion of a case, arguing that it was instead entitled to half the
contingency fees awarded under a joint-representation agreement with
5Similarly, Sirote refers to Rule 5.4(a), Ala. R. Prof. Cond., which
prohibits sharing fees with a "nonlawyer." That rule has no application
here because Caldwell was a licensed Alabama lawyer throughout the
relevant events in this case.
19
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another firm. Gaines, 554 So. 2d at 446. The Court of Civil Appeals
affirmed the trial court's quantum meruit award because the law firm's
contractual claim to a share of the contingency fees in Gaines "was
conditioned on active participation" by that firm, and the firm's
termination rendered participation "an impossibility and limited the
Gaines firm's recovery to the services it had performed." Id. at 449. In
fact, the Court of Civil Appeals held, "there was no case referral." Id.
Here, by contrast, the trial court reasonably found that a referral
agreement existed. And in Pope, a law firm intervened in a case in which
it sought attorneys' fees based on a quantum meruit theory, not because
it said it was entitled to referral fees. See Pope, 266 So. 3d at 1068.
Thus, neither case would preclude Caldwell from receiving referral fees.
2. Was There Sufficient Evidence that the Woerner Entities
Gave Informed Consent to the Referral Agreement?
Sirote argues that Rule 1.5(e), Ala. R. Prof. Cond., requires the
Woerner entities' informed consent to the referral agreement, which,
Sirote says, they did not give. And because George had expected Caldwell
to continue working on the Woerner entities' BP claims and Caldwell did
20
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not, Sirote argues, "there was no meeting of the minds between [George]
and Caldwell" and thus no informed consent.
We note at the outset that, by its express terms, Rule 1.5(e) does not
require informed consent. Rule 1.5(e) provides, in part:
"A division of fee between lawyers who are not in the same
firm, including a division of fees with a referring lawyer, may
be made only if:
"(1) ... (c) in a contingency fee case, the
division is between the referring or forwarding
lawyer and the receiving lawyer;
"(2) the client is advised of and does not object
to the participation of all the lawyers involved;
"(3) the client is advised that a division of fee
will occur; and
"(4) the total fee is not clearly excessive."
(Emphasis added.) Nor is there any requirement in Rule 1.5(e) -- and
Sirote cites no authority to support its argument -- that there be a
"meeting of the minds" between the client and the referring attorney.
Even if Rule 1.5(e) required informed consent, however, there is
sufficient evidence to conclude that the Woerner entities gave such
consent to the referral agreement. Each of the Woerner entities signed a
21
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representation agreement allowing Cunningham Bounds to pay Caldwell
one-third of the attorneys' fees. And there is no indication in the record
that the parties entered into those agreements involuntarily or were
unaware of the terms of those agreements. Further, Caldwell testified
that the referral-fee arrangement was discussed at the April 2011
meeting. Even George testified that he knew at that time that Caldwell
would receive one-third of the attorneys' fees.
Although the trial court made no specific findings concerning this
issue, "we will assume that the judge has made the findings necessary to
support the judgment, unless those findings are clearly erroneous." Ex
parte Owen, 860 So. 2d 877, 880 (Ala. 2003). Given the evidence
available, the trial court would not have been clearly wrong to find that
the Woerner entities were informed of the referral arrangement and that
they had consented to it.
3. Were the Woerner Entities Entitled to Withdraw Their
Consent to the Referral Agreement?
Attorneys who are not part of the same law firm may split
contingency fees as long as the client is "advised of and does not object to
22
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the participation of all the lawyers involved." Rule 1.5(e)(2), Ala. R. Prof.
Cond. Sirote argues that, when they terminated their attorney-client
relationship with Caldwell, the Woerner entities objected to Caldwell's
involvement, thereby rendering the referral agreement unenforceable
under Rule 1.5(e)(2).
Sirote's argument identifies a tension between a client's right to
choice of legal counsel and the rights of parties to enter into contracts.
See, e.g., Berkel & Co. Contractors v. Providence Hosp., 454 So. 2d 496,
505 (Ala. 1984) ("Alabama law firmly embraces the concept of freedom of
contract."); National Filtronics, Inc. v. Sherwood Land, Ltd., 428 So. 2d 11,
15 (Ala. 1983) ("The right of private counsel of one's own choice is virtually
absolute ...."). Indeed, "[a]pplying general contract law to contracts
governing the attorney-client relationship, especially with regard to the
termination of the attorney-client relationship, ignores the unique
relationship between an attorney and client." Fuston, Petway & French,
LLP v. Water Works Bd. of Birmingham, [Ms. 1180875, June 30, 2021] __
So. 3d __, __ (Ala. 2021). It appears that this Court has not addressed
whether a client may substitute referring counsel and effectively rewrite
23
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the original referring counsel's contract with the attorney to whom the
case was referred. But Sirote and Caldwell have identified several cases
from other jurisdictions that have discussed this issue.
Sirote relies on Woods v. Southwest Airlines Co., 523 F. Supp. 2d
812, 817 (N.D. Ill. 2007). In that case, a family hired two attorneys to
pursue a wrongful-death claim. Id. at 816-17. Several days later, the
clients and their attorneys met with a separate law firm to discuss
assisting the attorneys with the case, after which the clients executed a
representation agreement entitling the attorneys and the law firm to 50%
of the fees recovered from their claims. Id. at 817-18. Only a month later
-- before a complaint had been filed -- the family terminated its
relationship with the attorneys and signed a new representation
agreement that included the original law firm and a new, secondary firm.
Id. at 818. The attorneys then filed a petition seeking to enforce their
original contingency-fee agreement. The court found that the original
agreement was not a mere referral agreement because it "clearly
contemplate[d] continued involvement" by the attorneys and that "[a]ny
obligation to pay fees was contingent upon [their] continuing to perform
24
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their contractual obligations until recovery was obtained." Id. at 823. The
court noted that the nature of the agreement was not dispositive, however,
because the family "ceased to consent to the fee sharing and removed any
ability of the [attorneys] to maintain professional responsibility for the
representation," id. at 823, thereby rendering the agreement
unenforceable under the Illinois Rules of Professional Conduct. Id. at 824.
Thus, the court held that the attorneys could seek fees only on a quantum
meruit basis. Id. at 821, 827.
The Woods court relied in large part on Rule 1.5(g)(2) of the Illinois
Rules of Professional Conduct, which required a referring lawyer " 'to
assume the same legal responsibility for the performance of the services
in question as would a partner of the receiving lawyer.' " Id. at 821.
Importantly, however, there is no equivalent provision in the Alabama
Rules of Professional Conduct. Rather, Alabama attorneys may split
contingency fees so long as the client is "advised of and does not object to
the participation of all the lawyers involved." Rule 1.5(e)(2), Ala. R. Prof.
Cond.; see also Kessler v. Gillis, 911 So. 2d 1072, 1079 (Ala. Civ. App.
2004) (citing Rule 1.5, Ala. R. Prof. Cond., and noting that, "[u]nlike many
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other states, Alabama has historically allowed an unrestricted division of
fees between a referring lawyer and a receiving lawyer").
Caldwell, on the other hand, cites Burrell v. Sperry Rand Corp., 534
F. Supp. 680 (D. Mass. 1982), and Idalski v. Crouse Cartage Co., 229 F.
Supp. 2d 730 (E.D. Mich. 2002). In Burrell, a client hired attorneys on a
contingency-fee basis, who later agreed to refer certain claims to separate
counsel in return for one-third of any attorneys' fees earned. Burrell, 534
F. Supp. at 681. Then, before the parties reached a settlement, the client
terminated her relationship with the referring attorneys. Id. The
separate counsel and the client argued that, because the referring
attorneys had been discharged, they were entitled to fees only on a
quantum meruit basis. Id. at 682. The court rejected those arguments.
It reasoned that "it is clear that [the client] has no legally cognizable
interest in this dispute" because "[t]he amount of her recovery will remain
the same regardless of who gets the attorney's fees." Id. The court added
that, "[w]hile [the client] may have strong feelings on where the money
should go, I know of no authority which allows a client, at the conclusion
of a case, to alter the terms of a referral contract to suit her own desires"
26
1200092
and that the "reasons for not allowing the client such a prerogative appear
self-evident." Id. Because the referral contract "was made at arm's length
by experienced attorneys," and there were no allegations that the
referring attorneys had breached their obligations, the court held that
"[t]he contract should be enforced." Id.
The court in Idalski likewise rejected the clients' argument that the
referring attorney was not entitled to referral fees because the clients had
terminated the attorney-client relationship. It explained that "it would
be unwise as a matter of policy" and "inconsistent with basic contract law"
to "permit a client by whim or fancy, or perhaps more nefarious motives,
to undo a referral contract after the lawyers' work is finished but before
the final payment." Id. at 739. It also expressed concern that " '[i]t is easy
to conjecture situations where the attorney to whom a case has been
referred colludes with the client to deprive the referring attorney of the
benefit of his bargain, and later splits the referral fee.' " Id. (citation
omitted). Thus, the court concluded, "client consent to a referral
27
1200092
agreement is required only at the time the referral agreement is made and
not also immediately prior to payment." Id.6
We find the rationale of Burrell and Idalski persuasive and more
consistent with Alabama law. Even though there is a "virtually absolute"
right to terminate the attorney-client relationship in Alabama, National
Filtronics, 428 So. 2d at 15, that right does not allow the client to escape
its obligation to pay an attorney for services rendered. See Fuston, ___ So.
3d at __ ("[A] client has the unqualified right to hire and fire attorneys at
will with no obligation at all except to pay for completed services."). The
Woerner entities consented to Caldwell's referral of their BP claims to
Cunningham Bounds. And, as explained above, there was sufficient
evidence for the trial court to find that Caldwell fulfilled his duties under
the referral agreement. See Bassett Lumber Co. v. Hunter-Benn & Co.,
238 Ala. 671, 675, 193 So. 175, 178 (1939) ("It is elementary law that a
contract may be executed as to one of the parties and executory as to the
other, and where one of the parties to a contract has performed everything
6The court in Idalski ultimately held, for reasons not applicable here,
that the referring attorney was not entitled to referral fees. Id. at 732-33.
28
1200092
necessary to be done by him, according to the terms of the contract, the
contract, in so far as that party is concerned, is executed ...."). Allowing
the Woerner entities to alter the referral agreement at this stage would
undermine freedom of contract, do nothing to protect a client's right to
terminate the attorney-client relationship, and possibly create the kind of
"nefarious motives" and perverse incentives identified in Idalski. Thus,
although the Woerner entities were entitled to terminate their attorney-
client relationship with Caldwell, they have no right to erase Caldwell's
right to payment for contractual obligations he fulfilled.
4. Did the Trial Court Err by Holding that Caldwell "Earned"
the Referral Fees when He Referred the Woerner entities' BP
Claims?
The trial court held that, "[b]ecause the referral itself was the
subject of the legally enforceable agreement between Caldwell and
Cunningham Bounds as to the division of attorney fees only, the referral
fee[s] w[ere] earned when the referral was made." Sirote argues that the
trial court's judgment should be reversed because that court erred by
holding that Caldwell "earned" the referral fees when he referred the
Woerner entities' BP claims.
29
1200092
To the extent that Sirote construes "earned" to mean that Caldwell
was not entitled to payment of any fees under a contingency-fee
agreement until the funds were recovered, it is correct. See Pope, 266 So.
3d at 1079 ("[B]y definition, an attorney's contingent fee becomes payable
only upon the successful disposition of the client's case."). But we do not
read the trial court's order so narrowly. By the time the trial court issued
its judgment, funds from the settlement of the Woerner entities' BP claims
had been recovered and attorneys' fees were available for payment. And
Caldwell had done everything required of him under the referral
agreement to earn the referral fees as of the date he referred the Woerner
entities' BP claims to Cunningham Bounds. See Bassett, 238 Ala. at 675,
193 So. at 178 (explaining that "a contract may be executed as to one of
the parties and executory as to the other"). It is clear that the trial court
did not mean that Caldwell became entitled to payment of a hypothetical
amount of fees as soon as he referred the Woerner entities' BP claims.
Rather, it meant that he had completed his contractual obligations as of
that date and would now be entitled to payment of the referral fees. Thus,
the trial court's use of the word "earned" does not require reversal.
30
1200092
C. Did the Trial Court Improperly Award Postjudgment Interest to
Caldwell?
Sirote argues that the trial court erred by awarding postjudgment
interest to Caldwell under § 8-8-10, Ala. Code 1975. But Caldwell says
the trial court did not actually award such interest. Instead, Caldwell
says that the trial court required Sirote to pay a bond to stay execution of
the trial court's judgment pending appeal and that the trial court
calculated the bond amount as a percentage of the interpleaded funds
based on the statutory postjudgment-interest rate.
Caldwell is correct. In its posttrial order, the trial court made no
reference to postjudgment interest. It only awarded the payment of
interest that had accumulated on the interpleaded funds that sat in an
interest-bearing account maintained by Cunningham Bounds. Sirote then
sought to stay the execution of the judgment pending appeal, but the
parties disagreed about the amount of the bond. The trial court set the
bond at 6.65% of the amount of the interpleaded funds -- that is, an
amount equal to the statutory interest rate in § 8-8-10 minus the "blended
31
1200092
interest rate" that had been accruing in Cunningham Bounds' account
containing the interpleaded funds.
A bond to secure a stay pending appeal is just that -- a bond. It is
not an award of postjudgment interest. Sirote has not demonstrated that
the trial court erred by setting the bond at the amount it did. See Rule
8(a)(3), Ala. R. App. P. (providing that, when judgment is for "recovery or
sale of property or the possession thereof," the bond shall be "in such sum
as the trial court may in writing prescribe"). Because the trial court did
not award Caldwell postjudgment interest, Sirote's argument lacks merit.
Conclusion
The trial court had sufficient evidence to find the existence of a valid
referral agreement between Caldwell and Cunningham Bounds as well as
the existence of an attorney-client relationship between Caldwell and the
Woerner entities. Sirote is not entitled to replace Caldwell as referring
counsel merely because the Woerner entities terminated their attorney-
client relationship with Caldwell. And the trial court's finding that
Caldwell earned his referral fees at the time he referred the Woerner
entities' BP claims does not require reversal. Finally, it is clear that the
32
1200092
trial court did not award postjudgment interest. In all respects, the
judgment is due to be affirmed.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Mendheim,
JJ., concur.
33 | September 24, 2021 |
f1957dec-1e18-418f-abd3-969f52a61df5 | Ex parte Tyrone Stewart. | N/A | 1200420 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200420
Ex parte Tyrone Stewart. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Tyrone Stewart v. State of
Alabama) (Jefferson Circuit Court: CC-17-2994; Criminal Appeals :
CR-19-0541).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
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, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
6444bef9-146a-426d-8b4d-b421f8787b71 | Russell d/b/a Carl's Country v. Sedinger, et al. | N/A | 1200574 | Alabama | Alabama Supreme Court | Rel: September 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
SPECIAL TERM, 2021
____________________
1200574
____________________
George Harvey Russell d/b/a Carl's Country
v.
Joe Sedinger, in his capacity as sheriff of Autauga County;
Autauga County; Bill Gillespie, in his capacity as mayor of City
of Prattville; City of Prattville; and H. Mac Gipson, in his
capacity as administrator of the Alabama Alcoholic Beverage
Control Board
Appeal from Autauga Circuit Court
(CV-20-900159)
SELLERS, Justice.
1200574
George Harvey Russell, doing business as Carl's Country, appeals
from an order of the Autauga Circuit Court dismissing his declaratory-
judgment action, pursuant to Rule 12(b)(6), Ala. R. Civ. P., because the
action did not state a justiciable controversy. We affirm.
Facts and Procedural History
Russell operates a bar known as Carl's Country, pursuant to a Class
1 lounge liquor license issued by the Alcoholic Beverage Control Board
("the ABC Board"). The bar is located in Autauga County, outside the
corporate limits of the City of Prattville ("the City") but within the City's
police jurisdiction.
Section 28-3A-23(h), Ala. Code 1975, a part of the Alcoholic
Beverage Licensing Code, § 28-3A-1 et seq., Ala. Code 1975, provides, in
part:
"Draft or keg beer may be sold or dispensed within this State
within those counties in which and in the manner in which the
sale of draft or keg beer was authorized by law on September
30, 1980 or in which the sale of draft or keg beer is hereafter
authorized by law."
As of September 30, 1980, there was no law authorizing the sale of
draft beer in Autauga County, and, as of the date that Russell commenced
2
1200574
his declaratory-judgment action, there was no law or ordinance in effect
authorizing the sale of draft beer in Autauga County.
Effective May 2013, the legislature enacted § 45-1A-40.01, Ala. Code
1975, pertaining to the City's authority to regulate the sale and
distribution of draft beer:
"(a) This section shall apply to the regulation of the sale
and distribution of alcoholic beverages in the City of Prattville
in Autauga County and Elmore County.
"(b) The city council, by resolution or ordinance, may
authorize the sale and distribution of draft beer by retail
licensees of the Alcoholic Beverage Control Board. ..."
Pursuant to § 45-1A-40.01, the City enacted Ordinance No. 6-9,
which states, in relevant part: "The sale of draft beer for on-premises
consumption only by retail licensees of the Alabama Alcoholic Beverage
Control Board within the corporate limits and the police jurisdiction of the
City of Prattville is hereby authorized and shall be legal." (Emphasis
added.)
In May 2020, after the enactment of Ordinance No. 6-9, the sheriff
of Autauga County ordered Russell to cease and desist selling draft beer
at his bar; Russell did not comply. The ABC Board also contacted
3
1200574
Russell's draft-beer distributors and ordered them to cease delivering
draft beer to the bar. Thereafter, an attorney for the Autauga County
Commission, an attorney for the ABC Board, and the "City of Prattville-
Police Committee" discussed whether the City could enact an ordinance
authorizing the City to regulate the sale and distribution of draft beer
within its police jurisdiction in Autauga County. It was determined by
that assemblage that the City did not have the authority to regulate the
sale and distribution of draft beer in the portions of Autauga County
outside the City's corporate limits because such authority was reserved for
the local governing body of Autauga County, i.e., the County Commission,
and not the City. See § 45-1-20(b), Ala. Code 1975. The Prattville City
Council thereafter amended Ordinance No. 6-9 to exclude the language
"and the police jurisdiction" from the ordinance.
On August 24, 2020, after ordinance No. 6-9 had been amended,
Russell, acting pro se,1 commenced a declaratory-judgment action, naming
as defendants: Joe Sedinger, in his capacity as sheriff of Autauga County;
1Russell is represented by an attorney on appeal.
4
1200574
Autauga County; Bill Gillespie, in his capacity as mayor of the City of
Prattville; the City of Prattville; and H. Mac Gipson, in his capacity as
administrator of the ABC Board. In his complaint, Russell alleged that all
the defendants have engaged in a conspiracy to deny him the privilege of
selling draft beer at his bar. Russell sought a judgment declaring that the
City has the authority to enact an ordinance extending the sale of draft
beer to its police jurisdiction and, specifically, a judgment declaring the
legality of draft-beer sales at his bar. Russell also sought an injunction
prohibiting the defendants from interfering with his ability to sell draft
beer. All the defendants moved to dismiss the action pursuant to Rule
12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could
be granted. Following a hearing, the trial court entered an order
dismissing the declaratory-judgment action on the basis that there was
no justiciable controversy to be resolved . Russell filed a Rule 59, Ala. R.
Civ. P., motion to alter, amend, or vacate the order, which was denied by
operation of law. This appeal followed.
Standard of Review
5
1200574
The issue before us is whether Russell's declaratory-judgment action
alleges a bona fide justiciable controversy between him and the
defendants so as to withstand the trial court's order of dismissal. In
determining whether Russell has stated a bona fide justiciable
controversy, we must accept the allegations of his complaint as true, and
we must also view the allegations of the complaint most strongly in his
favor. Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220 (Ala.
2003). "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." Id. at 223. If there is no justiciable controversy at the
commencement of a declaratory-judgment action, a court lacks jurisdiction
over the action and it must be dismissed. Chapman v. Gooden, 974 So. 2d
972 (Ala. 2007).
Discussion
Russell operates his bar pursuant to a license issued by the ABC
Board; that license permits the sale of beer. However, the sale of "draft
beer" is not permitted by statute, ordinance, or otherwise in Autauga
6
1200574
County, where Russell's bar is located. Although the City originally
enacted Ordinance No. 6-9, making it legal for retail licensees of the ABC
Board to sell draft beer within the City's corporate limits and its police
jurisdiction, it was later determined by the City that it had no authority
to regulate the sale and distribution of draft beer outside its corporate
limits. Accordingly, the Prattville City Council amended Ordinance No. 6-
9 to remove the language "and the police jurisdiction" from the ordinance.
After Ordinance No. 6-9 was amended, Russell commenced this action
seeking a judgement declaring that the City has the authority to enact an
ordinance extending the sale of draft beer to its police jurisdiction and,
specifically, a judgment declaring the legality of draft-beer sales at his
bar. Russell, however, makes no claim that Ordinance No. 6-9, as
amended, is invalid or otherwise unreasonable. It is well settled that
"municipal ordinances are presumed to be valid and reasonable, to be
within the scope of the powers granted to municipalities to adopt such
ordinances, and are not to be struck down unless they are clearly
arbitrary and unreasonable." Cudd v. City of Homewood, 284 Ala. 268,
270, 224 So. 2d 625, 627 (1969). It is further settled that "an ordinance
7
1200574
enacted by a local governing body 'is presumed reasonable and valid, and
that the burden is on the one challenging the ordinance to clearly show its
invalidity.' " Brown v. Board of Educ. of Montgomery Cnty., 863 So. 2d 73,
75 (Ala. 2003). Because Ordinance No. 6-9, as amended, is presumed
reasonable and valid and because Russell does not claim otherwise, the
trial court had no choice but to dismiss Russell's action because it
presented no justiciable controversy to be settled.
As a last resort, Russell argued before the trial court, and argues on
appeal, that he is not prohibited from selling draft beer at his bar because,
he says, his liquor license permits the sale of beer and, he says, the
legislature has made no distinction between "beer" and "draft beer." We
disagree.
"It is this Court's responsibility to give effect to the
legislative intent whenever that intent is manifested. State v.
Union Tank Car Co., 281 Ala. 246, 248, 201 So. 2d 402, 403
(1967). When interpreting a statute, this Court must read the
statute as a whole because statutory language depends on
context; we will presume that the Legislature knew the
meaning of the words it used when it enacted the statute. Ex
parte Jackson, 614 So. 2d 405, 406-07 (Ala. 1993).
Additionally, when a term is not defined in a statute, the
commonly accepted definition of the term should be applied.
Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So. 2d
8
1200574
446, 447 (1958). Furthermore, we must give the words in a
statute their plain, ordinary, and commonly understood
meaning, and where plain language is used we must interpret
it to mean exactly what it says. Ex parte Shelby County
Health Care Auth., 850 So. 2d 332 (Ala. 2002)."
Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So. 2d 513, 517
(Ala. 2003).
Section 28-3-1, Ala. Code 1975, which provides definitions for terms
used in Title 28, Ala. Code 1975, defines "beer, or malt or brewed
beverages," as
"any beer, lager beer, ale, porter, malt or brewed beverage, or
similar fermented malt liquor containing one-half of one
percent or more of alcohol by volume and not in excess of
thirteen and nine-tenths percent by volume, by whatever name
the same may be called."
§ 28-3-1(3), Ala. Code 1975.
Even though draft beer would seem to fall within this definition for
"beer," it is nonetheless clear that our legislature has, by statute,
distinguished draft beer from other forms of beer by, for example, using
language such as "[a]ll beer, except draft or keg beer, sold by retailers ...."
§ 28-3A-23(g), Ala. Code 1975. Section 28-3A-23(h) pertains solely to
draft or keg beer and provides that it may be sold "within those counties
9
1200574
in which and in the manner in which the sale of draft or keg beer was
authorized by law on September 30, 1980," or "in which the sale of draft
or keg beer is hereafter authorized by law." The legislature then enacted
§ 45-1A-40.01 to specifically address the City's authority to regulate the
sale and distribution of "draft beer" by retail licensees of the ABC Board.
See also § 28-3A-17, Ala. Code 1975 ("Upon applicant's compliance with
the provisions of [the Alcoholic Beverage Licensing Code] ..., the [ABC
Board] shall issue to applicant a retail beer license which will authorize
the licensee to purchase beer, including draft beer in counties or
municipalities where the sale thereof is permitted ...." (emphasis added)).
Based on the foregoing, the legislature clearly intended to
distinguish draft beer from other forms of beer. To conclude otherwise
would have the effect of legalizing draft beer throughout the State of
Alabama despite existing law providing that it may be sold only in those
counties where permitted by law; in this case, none of the parties dispute
10
1200574
that there is no law or ordinance authorizing the sale of draft beer in
Autauga County.2
Conclusion
Based on the foregoing, there is no bona fide justiciable controversy
to be settled between Russell and the defendants. At the time Russell
commenced his action seeking declaratory and injunctive relief, Ordinance
No. 6-9 provided that the City could regulate the sale and distribution of
draft beer only within its corporate limits. Russell has not claimed that
the ordinance is either invalid or unreasonable, nor has he presented a
viable argument to support his theory that there is no distinction between
beer and draft beer. Accordingly, the trial court's order dismissing
Russell's declaratory-judgment action is affirmed.
AFFIRMED.
Bolin and Stewart, JJ., concur.
Parker, C.J., and Mitchell, J., concur specially.
2Draft beer, then, is regulated based on the means by which the beer
is sold, i.e., its delivery system. All beverages within the definition of
"beer" could be considered "draft or keg beer" if distributed that way. We
can only assume that the legislature was more interested in restricting
how beer was dispensed and not limiting sales of beverages that could be
generally defined as beer.
11
1200574
MITCHELL, Justice (concurring specially).
I join the Court's opinion, but I write separately to address a
confusion that has muddled the issues in this case. The circuit court
dismissed the complaint filed by George Harvey Russell d/b/a Carl's
Country for lack of a justiciable controversy -- which is a jurisdictional
ruling. See Moore v. City of Center Point, 319 So. 3d 1223, 1229 (Ala.
2020); Chapman v. Gooden, 974 So. 2d 972, 983-84 (Ala. 2007). But its
reasons for doing so -- that the amended Prattville ordinance is valid and
that Russell is wrong to think his liquor license covers the sale of draft
beer -- were essentially on the merits. In framing the issues, the circuit
court took its cue from the defendants, all of whom seem to have assumed
that the justiciability of Russell's complaint was intertwined with the
merits of his underlying legal positions. The parties' appellate briefs
largely reflect the same assumption.
The Court's opinion tacitly accepts this framing, and understandably
so. No party before us has drawn attention to this matter, and "it is
neither this Court's duty nor its function to perform all the legal research
for an appellant." Sea Calm Shipping Co. v. Cooks, 565 So. 2d 212, 216
12
1200574
(Ala. 1990). Rather, it is the appellant's job to "convince us that every
stated ground for the judgment against him is incorrect." Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). And
Russell makes no argument that the circuit court erred in its justiciability
analysis.
Nevertheless, the existence of a justiciable dispute and the merits of
that dispute are two distinct questions. When a court asks whether a
declaratory-judgment complaint presents a justiciable dispute, it is asking
whether the plaintiff has alleged "a definite and concrete controversy
regarding the legal relationship between" genuinely adverse parties.
Harper v. Brown, Stagner, Richardson, Inc., 873 So. 2d 220, 225 (Ala.
2003); see also MacKenzie v. First Alabama Bank, 598 So. 2d 1367, 1370
(Ala. 1992) (" 'It must be a controversy which is definite and concrete,
touching the legal relations of the parties in adverse legal interest, and it
must be a real and substantial controversy admitting of specific relief
through a decree.' " (quoting Copeland v. Jefferson Cnty., 284 Ala. 558,
561, 226 So. 2d 385, 387 (1969)). That question is jurisdictional -- if a
complaint fails to allege a justiciable controversy, the court must dismiss
13
1200574
it for lack of subject-matter jurisdiction. See Moore, 319 So. 3d at 1229;
City of Montgomery v. Hunter, 319 So. 3d 1213, 1222 (Ala. 2020);
Chapman, 974 So. 2d at 983-84; State ex rel. Baxley v. Johnson, 293 Ala.
69, 73-74, 300 So. 2d 106, 110 (1974); Jefferson Cnty. v. Johnson, 232 Ala.
406, 406-07, 168 So. 450, 451-52 (1936).3 On the other hand, if there is a
justiciable dispute, the court may proceed to resolve the merits of that
dispute, which simply means determining which of the parties is legally
in the right. Litigants in future cases should be mindful of the distinction.
With these observations, I concur in the Court's opinion.
Parker, C.J., concurs.
3Some of this Court's decisions have either assumed or stated in
passing that complaints not raising justiciable controversies should be
dismissed under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim
upon which relief can be granted. See, e.g., Moore, 319 So. 2d at 1226-27,
1231 (affirming lower court's dismissal under Rule 12(b)(6) for lack of a
justiciable controversy); Harper, 873 So. 2d at 223 (stating as much in
dicta). But given the well-settled, longstanding doctrine that justiciability
is jurisdictional, it seems clear that such dismissals are really for lack of
subject-matter jurisdiction and thus belong under Rule 12(b)(1). The
choice of label will not always make a practical difference, but it can.
Dismissals under Rules 12(b)(1) and (b)(6) are subject to different waiver
and preservation rules, compare Rule 12(h)(2), Ala. R. Civ. P., with Rule
12(h)(3), Ala. R. Civ. P., and have different res judicata consequences. See
Havis v. Marshall Cnty., 802 So. 2d 1101, 1103 n.2 (Ala. Civ. App. 2001)
(noting that Rule 12(b)(6) dismissals ordinarily "operate as adjudications
on the merits" under Rule 41(b), Ala. R. Civ. P.).
14 | September 17, 2021 |
c347478b-faba-43ee-b98b-768d83076ef6 | Ex parte Devan Bradley Scott. | N/A | 1200445 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200445
Ex parte Devan Bradley Scott. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Devan Bradley Scott v. State
of Alabama) (Mobile Circuit Court: CC-18-3755; Criminal Appeals :
CR-19-0211).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
September 10, 2021:
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, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 0 th d a y o f S ep tem b er, 2021.
Clerk, Supreme Court of Alabama | September 10, 2021 |
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