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94697c83-9d25-424f-b859-627388aeea4f | Ex parte P.J.E.S. | N/A | 1200632 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200632
Ex parte P.J.E.S. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: P.J.E.S. v. DeKalb County Department of
Human Resources) (DeKalb Juvenile Court: JU-19-25.02; Civil Appeals :
2200012).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 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 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
c0cdac90-4009-478f-9ec6-02b7f0d21e6e | Ex parte Marco Dane Acoff. | N/A | 1200005 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200005
Ex parte Marco Dane Acoff. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Marco Dane Acoff v. State of
Alabama) (Calhoun Circuit Court: CC-16-82; CC16-83; Criminal Appeals :
CR-19-0281).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
e78ce5c4-9822-4063-9293-b49a282f1d2b | Ex parte Ronald D. Veteto. | N/A | 1200556 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200556
Ex parte Ronald D. Veteto. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Ronald D. Veteto v. Ronald
David Veteto v. Warden Mary Cook et al) (Escambia Circuit Court:
CV-20-52; Criminal Appeals : CR-20-0289).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 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 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
3b382e3a-f47f-4b7f-9121-c4a29cb5d101 | Ex parte Christopher Allen McKinnie. | N/A | 1200709 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200709
Ex parte Christopher Allen McKinnie. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re:
Christopher Allen McKinnie v. State of Alabama) (Houston Circuit Court:
CC-10-946.70; Criminal Appeals : CR-18-0875).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 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 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
e6fcb8ad-2d71-4fe3-bcd9-3b4a753d4e4c | James v. Assurance America Insurance Company | N/A | 1200462 | Alabama | Alabama Supreme Court | Rel: August 20, 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
_________________________
1200462
_________________________
Melvin James
v.
Assurance America Insurance Company
Appeal from Montgomery Circuit Court
(CV-20-900265)
WISE, Justice.
Melvin James, one of the defendants below, appeals from an order
of the Montgomery Circuit Court entering a summary judgment in favor
of Assurance America Insurance Company ("Assurance"), the plaintiff
1200462
below, on its complaint for a declaratory judgment. We reverse and
remand.
Facts and Procedural History
On February 17, 2019, Bernardino Mejia and James were involved
in a motor-vehicle accident in Montgomery. Mejia was driving a 2003
Chrysler Town and Country minivan, and James was driving a 2004
Toyota Camry automobile. As a result of the accident, Mejia's three
children were ejected from the Town and Country. One of Mejia's children
died, and the other two were seriously injured. James was also injured as
a result of the accident. Mejia was arrested, and, on September 23, 2019,
he was indicted for one count of reckless murder and four counts of first-
degree assault as a result of the accident. He remains incarcerated on
those charges.
On April 30, 2019, James sued Mejia, ALFA Insurance Corporation,
USAA Casualty Insurance Company, and various fictitiously named
defendants in the Montgomery Circuit Court. The complaint stated
claims of negligence, negligence per se, wantonness, and breach of
contract. On February 3, 2020, citing his Fifth Amendment privilege
2
1200462
against self-incrimination, Mejia filed a motion to stay the civil proceeding
until the accident-related criminal proceedings against him were
concluded. On that same date, the trial court granted the motion for a
stay.
On February 17, 2020, Assurance filed a complaint for a declaratory
judgment against Mejia and James in the Montgomery Circuit Court. In
its complaint, Assurance included the following factual allegations:
"5. An actual controversy of a judicable nature exists
between the parties involving claims for injuries and damages
claimed by Melvin Alphonsa James and the possibility of
coverage available under [an] Assurance America insurance
Company policy ... under which Edgar Perez Domingo was the
named insured. Defendant Bernardino Mejia was not listed on
said policy; however, the 2003 Chevrolet Town & Country LX
... involved in the subject accident was listed on said policy.
"6. Defendant Melvin Alphonsa James has filed suit
against Bernardino Mejia, USAA, and ALFA Mutual Insurance
Company in the Circuit Court of Montgomery County,
Alabama, under Civil Action No.: CV-2019-900770.
"7. Bernardino Mejia was not the named insured under
the Assurance America insurance policy ... nor was he an
individual listed on said policy. At the time of the accident
giving rise to the aforementioned civil action, Bernardino
Mejia did not have any valid driver's license."
3
1200462
Assurance also asserted that the policy that covered the Town and
Country that Mejia was driving excludes coverage for injury or damage
caused by an insured vehicle when driven by a person who is not listed as
a driver on the declarations page of the policy and who does not have a
valid driver's license. Assurance requested a judgment declaring the
following:
"a. That [the] Assurance America insurance policy ... with
an effective coverage period of November 9, 2018 - May 9, 2019
does not afford liability coverage to Bernardino Mejia for the
February 17, 2019, motor vehicle accident which is the basis
of Melvin James['s] claims against Mr. Mejia in the
aforementioned civil action pending in Montgomery, Alabama;
"b. That in addition to the foregoing, ... the Court declare
that the subject policy excludes all awards for punitive
damages which may be awarded against Bernardino Mejia to
Melvin Alphonsa James in the aforementioned civil action; and
"c. That Assurance America does not owe defense or
indemnification to any of the parties in the Circuit Court civil
action pending in Montgomery County under case number CV-
2019-900770 in which Melvin Alphonsa James is the plaintiff
and Bernardino Mejia is one of the defendants."
On February 26, 2020, James filed an answer to the complaint. On
April 14, 2020, Assurance moved for the entry of a default against Mejia.
4
1200462
On April 16, 2020, James filed a response in opposition to Assurance's
motion for the entry of a default against Mejia.
On May 26, 2020, James served discovery requests on Assurance.
Assurance served its responses and/or objections to the discovery requests
on June 25, 2020.
On August 23, 2020, Assurance filed a motion for a summary
judgment. Among other things, it argued that, "because Bernardino Mejia
was an unlicensed driver and was not listed on [the] insurance policy[, he]
is therefore excluded from coverage for the subject vehicle accident." In
support of its contention that Mejia did not have a valid driver's license,
Assurance submitted an unofficial copy of an Alabama Uniform Traffic
Crash Report regarding the accident, a screenshot of the results from a
purported database search for a driver's license for Bernardino Francisco
Mejia, and an affidavit from Annekje Van de Water.
In her affidavit, Van de Water stated:
"1. My name is Annekje Van de Water, and I am over the
age of majority and competent to testify as to the matters
contained herein based on my own personal knowledge.
5
1200462
"2. I hold the title of Liability Supervisor for Assurance
America Insurance Company. I am the assigned claims
supervisor for a February 17, 2019 motor vehicle accident
occurring in Montgomery County, Alabama involving
Bernardino Mejia and Melvin Alphonsa James. ...
"3. At the time of the accident, Mr. Mejia was driving a
2003 Chrysler Town and Country which was listed on [an]
Assurance America Insurance Company [policy] under which
Edgar Perez Domingo was Named Insured and Edgar Perez
Domingo and Everilda Mejia Domingo were listed drivers.
Bernardino Mejia was neither a Named Insured under said
policy nor a listed driver. A true and correct reproduced copy
of said policy is attached hereto as Attachment 1.
"4. Assurance America received the Alabama Uniform
Traffic Crash Report which is attached hereto as Attachment
2, and this report noted that Bernardino Mejia did not have a
driver's license at the time of the accident.
"5. Assurance America also employed additional effort to
confirm whether or not Bernardino Mejia had a valid driver's
license at the time of the subject accident. Assurance America
hired an independent adjuster to make contact with
Bernardino Mejia and said adjuster traveled to the address
listed on the Alabama Uniform Traffic Crash Report. This
occurred on March 26, 2019. The independent adjuster was
unable to establish communications with Mr. Mejia as Mr.
Mejia had been arrested on February 26, 2019 and charged
with assault first degree and reckless murder. Mr. Mejia
remains incarcerated in the Mac Sim Butler Detention
Facility.
"6. Assurance America has also searched a reputable
database for the existence of any valid driver's license for
6
1200462
Bernardino
Mejia.
Said
database
is
named
TLOxp
TransUnion. Attachment 3 is a screenshot of the result from
Assurance America's search on the aforementioned database,
which shows that there were no results found for a driver's
license for anyone named Bernardino Francisco Mejia born on
February 22, 1988.
"7. Assurance America retained counsel to assist in the
coverage investigation and repeated attempts were made with
Mr. Mejia's assigned public defender attorney for a meeting
with Mr. Mejia for purposes of further discussing whether he
had a license at the time of the accident. Mr. Mejia later
changed attorneys, and Mr. Mejia's new attorney will not allow
Mr. Mejia to speak with anyone regarding the subject accident.
"8. Mr. Mejia's criminal prosecution for reckless murder
is pending in the Circuit Court of Montgomery County,
Alabama. Melvin Alphonsa James filed suit against
Bernardino Mejia, USAA, and Alfa Mutual Insurance
Company in the Circuit Court of Montgomery County,
Alabama under Civil Action Number CV-2019-900770.
Assurance America Insurance Company filed a Complaint for
Declaratory Judgment on February 17, 2020 in the Circuit
Court
of
Montgomery
County
under
case
number
CV-2020-900265. Bernardino Mejia was duly served by Deputy
Sheriff with the Summons and Complaint in the Declaratory
Judgment action on February [19], 2020. Bernardino Mejia
never filed a responsive pleading or otherwise appeared in the
Declaratory Judgment action, and a Motion for Entry of
Default was filed on April 14, 2020.
"9. Based on Assurance America's coverage investigation,
it was determined that Bernardino Mejia did not have a valid
driver's license at the time of the subject accident which
occurred on February 17, 2019. Moreover, Bernardino Mejia
7
1200462
was not a Named Insured under the subject policy ... and was
not a listed driver on said policy. Said policy contains the
following exclusions:
" 'Exclusions
" 'Coverage for Liability to Others and our duty to
defend do not apply to:
" '13. Bodily injury or property damage caused by
an insured car when it is driven by any person who:
" 'a. Is not a listed driver on the
Declarations Page; and
" 'b. Does not have a valid driver's
license.
" '21. Punitive damages of any kind other than
Punitive damages awarded pursuant to the
Alabama Wrongful Death Act.' "
On September 8, 2020, James filed a response in opposition to
Assurance's motion for a summary judgment. He argued, in part, that
Assurance had failed to prove that Mejia did not have a driver's license.
Specifically, James contended that both the accident report and the
computer screenshot were hearsay, that neither was admissible evidence,
and that neither established that Mejia did not have a driver's license.
8
1200462
On September 15, 2020, the trial court conducted a hearing on the
motion for a summary judgment and the opposition thereto.1 Afterward,
the trial court allowed the parties to present supplemental arguments in
support of their respective positions. Assurance and James submitted
supplemental filings that reiterated their previous arguments.
On October 22, 2020, Assurance filed a motion to continue the trial
setting and suggested that the matter should be continued until Mejia's
criminal proceedings had been completed so he could provide sworn
testimony. In that motion, Assurance noted:
"Mr. Mejia is presently under indictment and awaits trial for
murder (reckless) in connection with the automobile accident
at issue in this declaratory judgment action. Mr. Mejia's
lawyers will not allow him to be deposed and will not
otherwise provide any information on behalf of Mr. Mejia. This
refusal to provide information includes the parties' being
unable to obtain sworn testimony from Mr. Mejia in order to
confirm whether he had a valid driver's license at the time of
the accident. ... Mr. Mejia's criminal case is pending in the
Circuit Court of Montgomery County (CC-2019-1090)."
1The parties did not include a transcript of that hearing in the record
before this Court.
9
1200462
On October 27, 2020, the parties submitted a joint status report.
With respect to discovery, that report stated: "Assurance America desires
to depose the investigating officer prior to trial as well as Bernardino
Mejia. Mr. Mejia presently cannot be deposed as he is under indictment
for Murder-Reckless and awaits trial."
On October 28, 2020, the trial court canceled the bench trial that
had been scheduled for November 30, 2020. However, on December 17,
2020, the trial court entered an order in which it summarily granted
Assurance's motion for a summary judgment. On December 18, 2020,
James filed a motion to reconsider the order entering the summary
judgment in favor of Assurance.
On December 30, 2020, James filed a motion to vacate the summary
judgment, to continue the case until after the conclusion of his civil action,
and to conduct an expedited hearing on his motion. In that motion, he
argued, in part, that discovery was not complete, explaining: "Because
Judge Pool stayed the underlying [civil] action and Bernardino Mejia is
standing on his Fifth Amendment rights, the defendant has been unable
to obtain any discovery from Mejia on any issue, particularly whether he
10
1200462
had a valid driver's license at the time of the accident." James also
reiterated Assurance's argument from its motion to continue that the
parties had not been allowed to obtain sworn testimony or even
information from Mejia. He further cited to Rule 56(f), Ala. R. Civ. P., and
the affidavit of Van de Water, which Assurance had previously filed, to
support his request for a continuance. James subsequently renewed that
motion.
James's postjudgment motions were overruled by operation of law.
This appeal followed.
Standard of Review
" ' "This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut.
Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We
apply the same standard of review as the trial
court applied. Specifically, we must determine
whether the movant has made a prima facie
showing that no genuine issue of material fact
exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R.
Civ. P.; Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In
making such a determination, we must review the
evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
11
1200462
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence of
a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer
the existence of the fact sought to be proved.' West
v. Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
" 'The role of this Court in reviewing a summary
judgment is well established -- we review a summary judgment
de novo, " 'apply[ing] the same standard of review as the trial
court applied.' " ' Horn v. Fadal Machining Ctrs., LLC, 972 So.
2d 63, 69 (Ala. 2007) (quoting Stokes v. Ferguson, 952 So. 2d
355, 357 (Ala. 2006), quoting in turn Dow v. Alabama
Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004)). ' "If the
movant meets [its] burden of production by making a prima
facie showing that [it] is entitled to a summary judgment,
'then the burden shifts to the nonmovant to rebut the prima
facie showing of the movant.' " ' Horn, 972 So. 2d at 69
(quoting American Gen. Life & Accident Ins. Co. v.
Underwood, 886 So. 2d 807, 811-12 (Ala. 2004), quoting in turn
Lucas v. Alfa Mut. Ins. Co., 622 So. 2d 907, 909 (Ala. 1993)).
12
1200462
" ' " ' [ T ] h e
m a n n e r
i n
w h i c h
t he
[summary-judgment]
movant's
burden
of
production is met depends upon which party has
the burden of proof ... at trial.' " Ex parte General
Motors Corp., 769 So. 2d 903, 909 (Ala. 1999)
(quoting Berner v. Caldwell, 543 So. 2d 686, 691
(Ala. 1989) (Houston, J., concurring specially)). If
... " 'the movant has the burden of proof at trial, the
movant must support his motion with credible
evidence, using any of the material specified in
Rule 56(c), [Ala.] R. Civ. P. ("pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits").' " 769 So. 2d at 909.
" 'The movant's proof must be such that he would
be entitled to a directed verdict [now referred to as
a judgment as a matter of law, see Rule 50, Ala. R.
Civ. P.] if this evidence was not controverted at
trial.' " Id. In other words, "when the movant has
the burden [of proof at trial], its own submissions
in support of the motion must entitle it to judgment
as a matter of law." Albee Tomato, Inc. v. A.B.
Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.
1998) (emphasis added). See also Equal
Employment Opportunity Comm'n v. Union
Independiente de la Autoridad de Acueductos y
Alcantarillados de Puerto Rico, 279 F.3d 49 (1st
Cir. 2002); Rushing v. Kansas City Southern Ry.,
185 F.3d 496 (5th Cir. 1999); Fontenot v. Upjohn
Co., 780 F.2d 1190 (5th Cir. 1986); Calderone v.
United States, 799 F.2d 254 (6th Cir. 1986).'
"Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195 (Ala.
2002). Moreover, we review the evidence in the light most
favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756,
758 (Ala. 1986)."
13
1200462
White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 10-11 (Ala. 2009).
Discussion
James argues that the trial court erroneously granted Assurance's
motion for a summary judgment. Specifically, he contends that Assurance
did not produce substantial admissible evidence to establish that Mejia
did not have a valid driver's license at the time of the accident and
therefore did not shift the burden of proof to him. We agree.
With regard to summary-judgment motions, Rule 56, Ala. R. Civ. P.,
provides, in relevant part:
"(c) Motion and Proceedings Thereon.
"(1) Form of Motion and Statement in
Opposition Thereto. The motion shall be supported
by a narrative summary of what the movant
contends to be the undisputed material facts; that
narrative summary may be set forth in the motion
or may be attached as an exhibit. The narrative
summary shall be supported by specific references
to pleadings, portions of discovery materials, or
affidavits and may include citations to legal
authority. Any supporting documents that are not
on file shall be attached as exhibits. ...
"....
"....
14
1200462
"(e) Form of Affidavits; Further Testimony; Defense
Required. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred
to in an affidavit shall be attached thereto or served therewith.
..."
Also,
"[w]hile Rule 56, Ala. R. Civ. P., permits evidence in the
form of depositions, answers to interrogatories, admissions on
file, and affidavits to be submitted in support of, or in
opposition to, a summary judgment motion, that evidence
must, nevertheless, conform to the requirements of Rule 56(e)
and be admissible at trial. Welch v. Houston County Hosp.
Bd., 502 So. 2d 340 (Ala. 1987)."
Dunaway v. King, 510 So. 2d 543, 545 (Ala. 1987). Finally,
"[t]he contents of an affidavit filed in support of, or in
opposition to, a motion for summary judgment must be
asserted upon personal knowledge of the affiant, must set
forth facts that would be admissible in evidence, and must
show affirmatively that the affiant is competent to testify to
the matters asserted. These requirements are mandatory.
Arrington v. Working Woman's Home, 368 So. 2d 851, 854
(Ala.1979); Oliver v. Brock, 342 So. 2d 1, 4 (Ala. 1976)."
Crawford v. Hall, 531 So. 2d 874, 875 (Ala. 1988).
Although Assurance attempted to support its contention in its
summary-judgment motion that Mejia did not have a driver's license at
15
1200462
the time of the accident with Van de Water's affidavit, that affidavit did
not comply with the requirements of Rule 56(e), as set forth above. In her
affidavit, Van de Water primarily relied on an unofficial copy of the
accident report and a screenshot of a purported database search to
conclude that Mejia did not have a driver's license at the time of the
accident. However, neither the copy of the unofficial accident report nor
the copy of the screenshot was sworn or certified, as required by Rule
56(e), Ala. R. Civ. P. Also, many of the other allegations included in Van
de Water's affidavit about attempts to ascertain whether Mejia had a
valid driver's license at the time of the accident are based on actions that,
by her admission, were taken by other people instead of by her.
"[T]he attached documents did not conform to the
requirements of Rule 56(e), Ala. R. Civ. P., which states that
'[s]worn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served
therewith.' (Emphasis supplied.) See, Osborn v. Johns, 468 So.
2d 103 (Ala. 1985) (counter-affidavit restating allegations and
not accompanied by certified copies of documents referred to in
affidavit insufficient to preclude summary judgment); Guess
v. Snyder, 378 So. 2d 691 (Ala. 1979) (counter-affidavit with
unsworn letter attached insufficient to raise factual issue to
preclude summary judgment). See, also, Ala. R. Civ. P.
44(a)(1); United States v. Dibble, 429 F.2d 598, 602 (9th Cir.
1970) ('a writing is not authenticated merely by attaching it to
16
1200462
an affidavit' and '[a]n official record is authenticated by the
testimony of a witness who knows and attests to the facts
stated in Rule 44 of the Federal Rules of Civil Procedure').
"Moreover, much of what [Van de Water] stated in her
affidavit was not even mentioned in the uncertified documents
attached to the affidavit or in any affidavit or document that
is a part of the record on appeal. ... [S]he must have relied on
further, unspecified sources for her 'understanding' of the
facts. Under Welch v. Houston County Hospital Bd., 502 So. 2d
340 (Ala. 1987), such an affidavit is inadmissible."
Crawford, 531 So. 2d at 875.
Further, the unofficial copy of the accident report constituted
inadmissible hearsay.
"Alabama courts have acknowledged the general
principle that police reports, whether of accidents or other
events, may be excluded as hearsay. See Gardner v. Williams,
390 So. 2d 304, 307 (Ala. Civ. App. 1980) (noting that 'the
reports of investigating officers are not ordinarily admissible
as they are deemed hearsay'); Nettles v. Bishop, 289 Ala. 100,
105, 266 So. 2d 260, 264 (1972) (noting the apparent general
rule that 'the report of an investigating officer is not
admissible in evidence as being hearsay'); and Vest v. Gay, 275
Ala. 286, 290, 154 So. 2d 297, 300 (1963) (acknowledging 'the
settled rule in our jurisdiction that the reports of investigating
officers are not admissible in evidence, as being hearsay')."
17
1200462
Crusoe v. Davis, 176 So. 3d 1200, 1203 (Ala. 2015)(footnote omitted). Also,
in Mainor v. Hayneville Telephone Co., 715 So. 2d 800, 801-02 (Ala. Civ.
App. 1997), the Court of Civil Appeals explained:
"Mainor contends that the trial court erred in admitting
into evidence certified copies of four Alabama Uniform
Accident Reports. One of the reports concerned the accident
at issue; the other three concerned prior accidents involving
Mainor. The accident reports were admitted over Mainor's
objections.
"Both at trial and on appeal, Mainor argued that the
admission of the accident reports violated § 32-10-11, Ala.
Code 1975, which provides that police accident reports are
inadmissible in any civil or criminal trial arising out of an
accident. The statute provides:
" 'All accident reports made by persons
involved in accidents or by garages shall be without
prejudice to the individual so reporting and shall
be for the confidential use of the director [of the
Department of Public Safety] or of other state
agencies having use for the records for accident
prevention purposes; except, that the director may
disclose the identity of a person involved in an
accident when such identity is not otherwise known
or when such person denies his presence at such
accident. No such report shall be used as evidence
in any trial, civil or criminal, arising out of an
accident; except that the department shall furnish
upon demand of any person who has, or claims to
have made such a report, or upon demand of any
court, a certificate showing that a specified
18
1200462
accident report has or has not been made to the
director solely to prove compliance or a failure to
comply with the requirement that such a report be
made to the director.'
"§ 32-10-11, Ala. Code 1975 (emphasis added).
"In their brief to this court, Wood and Hayneville
Telephone cite Rule 101, Ala. R. Evid., which provides that the
recently adopted Rules of Evidence govern proceedings in the
courts of Alabama. That rule, they argue, shows that 'the
clear and unambiguous intent of the Alabama Supreme Court
in promulgating the Alabama Rules of Evidence is that the
Rules shall be deemed, for all purposes, to have superseded
any prior cases or statutes which are in conflict, in any way,
directly or indirectly,' with the Rules of Evidence. However,
the Rules of Evidence themselves tell us otherwise.
"Rule 402, Ala. R. Evid., provides in pertinent part that,
'All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States or that of the
State of Alabama, by statute, by these rules, or by other rules
applicable in the courts of this State.' In his book Gamble's
Alabama Rules of Evidence, § 402 (1995), Dean Gamble cites
§ 32-10-11 as an example of a statute that specifically excludes
evidence that would otherwise be admissible.
"Section 32-10-11 provides that no Alabama Uniform
Accident Report shall be used as evidence in any civil or
criminal trial arising out of an accident. The statute does not
allow for an exception that would be applicable in this case.
Therefore, we hold that the trial court erred in admitting the
police accident reports."
19
1200462
See also Stevens v. Stanford, 766 So. 2d 849, 852 (Ala. Civ. App.
1999)(holding that an accident report did not "set forth evidence that
would be admissible at trial").
Assurance offered the unofficial copy of the accident report to
establish that Mejia did not have a valid driver's license at the time of the
accident because the investigating officer used a code for "Not Applicable"
in the blank where Mejia's driver's license number was to be recorded. We
question whether that code meant that Mejia did not have a driver's
license or was used simply because the responding officer was not able to
determine whether Mejia actually had a driver's license. However, we
need not resolve that question because, based on the authorities cited
above, the accident report constituted hearsay and was not admissible to
support Assurance's motion for a summary judgment.
Finally, the screenshot of the purported database search, which
indicated that "there were no results found for driver's licenses for people
named BERNARDINO FRANCISCO MEJIA born on 2/22/1988 in the
United States," constituted inadmissible hearsay. Although Assurance
stated that the database was named TLOxp TransUnion and made the
20
1200462
bare assertion that that database was reputable, it did not offer any
evidence to authenticate the screenshot or to establish its relevance and
reliability. It did not make any attempt to establish what type of
organization TLOxp TransUnion was, where the organization was located,
who was in charge of the organization, who had access to the database,
what type of software the database used, the sources of the information
included in the database, the extent of the search capabilities of the
database, the accuracy of the database, or whether the database included
driver's licenses from every state in the United States and every country
in the world. Assurance also did not indicate who had conducted the
database search and did not include any explanation for including the
middle name "Francisco" in its search. At best, the screenshot constituted
hearsay and was not admissible to support Assurance's motion for a
summary judgment.
For these reasons, Assurance did not produce substantial admissible
evidence to establish that Mejia did not have a valid driver's license at the
time of the accident and therefore did not shift the burden of proof to
21
1200462
James. Accordingly, the trial court erred in granting Assurance's motion
for a summary judgment.
Conclusion
For the above-stated reasons, we reverse the trial court's judgment
and remand this case for proceedings that are consistent with this opinion.
REVERSED AND REMANDED.
Bolin, Sellers, and Stewart, JJ., concur.
Parker, C.J., concurs in the result.
22 | August 20, 2021 |
99e7b019-4e7c-4f4d-a59f-e154405e67ad | Ex parte T.C. | N/A | 1200511 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200511
Ex parte T.C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: T.C. v. Coffee County Department of Human
Resources) (Coffee Juvenile Court: JU-19-345.01; Civil Appeals :
2200090).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
eb16b926-5fc2-44b1-ab7d-26de4d4ce95c | Ex parte L.D.K. | N/A | 1200699 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200699
Ex parte L.D.K. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: L.D.K. v. V.K.) (Elmore Circuit Court:
JU-15-288.05; Civil Appeals : 2191000).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 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 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
7a15618b-1814-45b9-9bcf-f7348a410cdb | Ex parte John Henry Givens. | N/A | 1200309 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200309
Ex parte John Henry Givens. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: John Henry Givens v. State
of Alabama) (Montgomery Circuit Court: CC06-1087.61; Criminal Appeals :
CR-19-0653).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
7503e22e-4927-4c34-bd02-2ca6866a11a4 | Rosia M. Thomas v. Hollis, Wright, Clay & Vail, P.C. and John Spade | N/A | 1200385 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200385
Rosia M. Thomas v. Hollis, Wright, Clay & Vail, P.C., and John Spade
(Appeal from Jefferson Circuit Court: CV-19-362).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur. | July 9, 2021 |
ebc65f0a-7e6a-407a-85f1-025e78ed37a9 | Ex parte Paul Edward Acton Bowen. | N/A | 1200251 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200251
Ex parte Paul Edward Acton Bowen. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Paul
Edward Acton Bowen v. State of Alabama) (Etowah Circuit Court:
CC-18-856; CC-18-857; CC-18-858; CC-18-859; CC-18-860; CC-18-861;
Criminal Appeals :
CR-19-0398).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
2536fde7-adf4-4005-86f8-7921f52ed7fe | Ex parte Donald Ray Harvey. | N/A | 1200704 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200704
Ex parte Donald Ray Harvey. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Donald Ray Harvey v. State
of Alabama) (Etowah Circuit Court: CC-03-844; CC-05-439; CC-13-447;
CC-13-1093; Criminal Appeals : CR-20-0376).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 2021:
Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
9ff399a8-a010-4bbd-aa47-9f6b3f6b4a63 | Ex parte Austin Shane Bonner. | N/A | 1200314 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200314
Ex parte Austin Shane Bonner. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Austin Shane Bonner v.
State of Alabama) (Talladega Circuit Court: CC-16-397; Criminal Appeals :
CR-18-1186).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
18eb11f4-cf7f-4bab-a8e2-e4cd99cd3456 | Gregory A. Kennemer v. Jefferson County Board of Equalization and Adjustment | N/A | 1200071 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200071
Gregory A. Kennemer v. Jefferson County Board of Equalization and
Adjustment (Appeal from Jefferson Circuit Court: CV-19-900208).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | July 9, 2021 |
b9595906-4400-40e3-a8ba-19d4a2ea0659 | Ex parte Maurice Lamarr McAdory II. | N/A | 1200546 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200546
Ex parte Maurice Lamarr McAdory II. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Maurice
Lamarr McAdory II v. State of Alabama) (Montgomery Circuit Court:
CC-18-1377; Criminal Appeals :
CR-19-0401).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
69be9dbf-3143-437b-a0e4-d00bc952521e | Ex parte Richard Letray Wilson. | N/A | 1200016 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200016
Ex parte Richard Letray Wilson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Richard Letray Wilson v.
State of Alabama) (Montgomery Circuit Court: CC-16-1463; Criminal
Appeals :
CR-19-0292).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
25adb7dc-b6fc-4657-9464-04a7ea259caf | Jeremy Wright v. Joseph W. Clark, M.D. | N/A | 1191053 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1191053
Jeremy Wright v. Joseph W. Clark, M.D. (Appeal from Madison Circuit
Court: CV-19-901630).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | July 9, 2021 |
8a477440-8b78-4266-bd76-27178930df26 | Steven Fain v. Steven Jackson, D.O. | N/A | 1200117 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200117
Steven Fain v. Steven Jackson, D.O. (Appeal from Etowah Circuit Court:
CV-18-900693).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | July 9, 2021 |
9a6ad0c8-a718-4723-8917-42bce009f905 | Ex parte David John Hannaford. | N/A | 1200124 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200124
Ex parte David John Hannaford. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: David John Hannaford v.
State of Alabama) (Madison Circuit Court: CC-18-1161; Criminal Appeals :
CR-19-0490).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
51a143f7-6dc7-42b8-b7f1-a9b0f574b9a9 | Ex parte Demitrius Wayne Alexander. | N/A | 1200413 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200413
Ex parte Demitrius Wayne Alexander. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Demitrius
Wayne Alexander v. State of Alabama) (Jefferson Circuit Court:
CC-12-465.61; Criminal Appeals :
CR-19-0895).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
ca028584-d09f-4374-854b-3ab3683c5d23 | Plaintiff v. Defendant | N/A | 1200002 | Alabama | Alabama Supreme Court | REL: July 23, 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
____________________
1200002
____________________
David Roberson
v.
Balch & Bingham, LLP
Appeal from Jefferson Circuit Court
(CV-19-901210)
PER CURIAM.
David Roberson appeals from a judgment of the Jefferson Circuit
Court, which was certified as final pursuant to Rule 54(b), Ala. R. Civ. P.,
1200002
dismissing his claims against Balch & Bingham, LLP ("Balch"), on the
basis that those claims were barred by the limitations periods contained
in the Alabama Legal Services Liability Act ("the ALSLA"), § 6-5-570
et seq., Ala. Code 1975. We affirm the judgment of the circuit court,
although we do so on a different basis.
I. Facts
David Roberson filed his initial complaint on March 15, 2019,
against Balch and his former employer, Drummond Company, Inc.
("Drummond").1 The operative complaint for purposes of this appeal is
Roberson's third amended complaint, and the facts alleged in that
complaint, primarily as they relate to Balch, were as follows:
"1. At all times relevant to this case, Joel Gilbert
('Gilbert') was a registered lobbyist and the agent of Defendant
Balch & Bingham, LLP ('Balch'), and his acts and omissions
1Anna Roberson, David's wife, was listed as an appellant on the
notice of appeal. She was named as a plaintiff for the first time in the
third amended complaint. Anna was included as a party only with respect
to Count XII -- the last count listed in the complaint -- which asserted a
claim of promissory fraud. The promissory-fraud claim was pleaded
against only Drummond. Therefore, we treat David Roberson as the sole
appellant for purposes of this appeal, and we have restyled the appeal
accordingly.
2
1200002
described herein were committed pursuant to and in the
course of that agency relationship, or Balch has ratified,
approved, and adopted his acts. ...
"2. At all times relevant to this case, Defendant Balch
was the agent of Defendant Drummond Company, Inc.
('Drummond'), and its acts and omissions described herein
were committed pursuant to and in the course of that agency
relationship, or Drummond has ratified, approved, and
adopted Balch's acts. ...
"3. At all times relevant to this case, Blake Andrews
('Andrews' or 'General Counsel') was the General Counsel and
agent of Defendant Drummond ....
"4. At all times relevant to this case, Mike Tracy ('Tracy')
was the CEO and agent of Defendant Drummond ....
"5. At all times relevant to this case until February 7,
2019, David Roberson ... was a Vice-President with
Drummond. Roberson was subordinate to Andrews and Tracy,
and he was required to perform duties and responsibilities
assigned to him by Andrews and Tracy. [Roberson] is not a
lawyer and has no legal training concerning the matters
described herein.
"....
"7. In late 2013 the Environmental Protection Agency
('EPA') proposed placing a particular site in Jefferson County,
Alabama on a National Priorities List ('NPL'); this was a
prelude to designating Drummond as a [Potentially]
Responsible Party [('PRP')] for the cleanup costs at the site.
The cleanup costs were estimated at over $100 million ....
3
1200002
"8. Joel Gilbert was a registered lobbyist employed by
Balch & Bingham, LLP, and Drummond hired Balch &
Bingham to create and implement a public-relations campaign
that would prevent the placement of the site on the National
Priorities List and the designation of Drummond as a
Responsible Party. Balch & Bingham never functioned as
Roberson's attorney nor was Roberson or Drummond ever a
legal services client of Balch & Bingham for or concerning the
acts and omissions on which [Roberson's] claims are based. ...
Finally, Balch & Bingham was not functioning as Drummond's
legal counsel for or concerning the acts and omissions on which
[Roberson's] claims are based.
"9. Balch, as Drummond's agent, devised a public
relations plan ('the Plan') to employ a seemingly-legitimate
local foundation, the Oliver Robinson Foundation ('the
Foundation'), to conduct a seemingly-innocent campaign
directed toward the community, the State of Alabama, and the
EPA. Oliver Robinson was a respected state legislator, and he
controlled the Foundation.
"10. Under the Plan, Oliver Robinson and the
Foundation would (a) seek to convince the residents of North
Birmingham not to have their property tested for toxins, such
as lead and arsenic, and (b) Trey Glenn and Scott Phillips
would seek by lobbying ADEM to prevent the State of Alabama
from giving the legally required assurances to the EPA that
the state would cover the required 10% of the cleanup costs
that could not be recovered from PRPs.
"11. In November 2014, before implementation of the
Plan, [Roberson] asked Gilbert if he had inquired with the
ethics lawyers at Balch & Bingham whether the Plan was legal
and ethical. Gilbert represented to [Roberson] that Balch's
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in-house ethics attorneys had reviewed the Plan and
determined that it was legal.
"12. On or about February 12, 2015, Gilbert and Balch
prepared a contract between Balch and the Foundation.
[Roberson] did not participate in preparing the contract, and
he did not see the contract until the summer of 2018 -- during
his criminal trial.
"13. Balch thereafter made payments to the Foundation
under the contract and submitted invoices to Drummond for
reimbursement.
"14. Blake Andrews, General Counsel for Drummond ...,
represented to [Roberson] that he was 'confused' by having to
process the Balch invoices for the Foundation as well as other
Balch invoices. Consequently, he asked and directed
[Roberson] to process Balch's invoices for payments to the
Foundation.
"15. [Roberson], having been assured by Gilbert that
Balch's in-house ethics attorneys had reviewed the Plan and
determined that it was legal and ethical, did not know that the
payments were illegal. Consequently, he performed his duties
for Drummond exactly as instructed by Drummond's General
Counsel, and he approved reimbursements to Balch for
payments to the Foundation."
(Emphasis added.) In Count VII of the third amended complaint,
Roberson specifically alleged:
"66. In June 2016, after the conviction of State Representative
[Mike] Hubbard for ethics violations, [Roberson] again asked
Gilbert if Balch's in-house ethics attorneys had any 'problem'
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with the Plan or his association with it since [Roberson] is also
a registered lobbyist.
"67. Gilbert again represented to [Roberson] that he had
checked with [Balch ethics attorneys] Greg Butrus and Chad
Pilcher and there was no problem with what they were doing.
"68. Gilbert's representations were false, and he made
the misrepresentations willfully to deceive, recklessly without
knowledge, or by mistake, but with the intent that [Roberson]
act on the representations."
Continuing with the general factual allegations in the third amended
complaint, Roberson asserted:
"16. During Balch's implementation of the Plan, Balch's
in-house ethic's attorneys [in February 2017] had informed
Gilbert that, in fact, Robinson had and was acting illegally in
performing duties under the Plan. Both Balch and Drummond
failed to notify [Roberson] of these facts or take any remedial
or corrective action. ...
"17. On September 27, 2017, Balch attorney Gilbert and
[Roberson] were indicted for violating 18 U.S.C. §§ 371, 666(a),
1343, 1346, and 1956(h), but neither Drummond Corporation
nor Balch & Bingham, LLP, was indicted.
"18. The indictment charged that the payments to the
Foundation were bribes, and it charged that [Roberson] was
guilty of criminal conduct because he had 'caused Drummond
Company to pay' Balch's invoices for payments to the
Foundation -- as instructed by Drummond's General Counsel.
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"19. The case against [Roberson] and Gilbert was tried
in the United States District Court in Birmingham in
June-July 2018. As was his constitutional right, [Roberson]
elected not to testify at trial.
"20. During the trial, the prosecution read in evidence
the following sentence from a summary of [Roberson's]
statement to the FBI: 'After the Hubbard trial, Roberson
considered what they were doing, i.e., contracting with a state
representative, in light of the ethics law but determined that
the area targeted by the campaign was not in Robinson’s
district.'
"21. [Roberson] then sought to introduce the balance of
the summary, which included the following: Roberson stated
that they (Drummond) have always been very careful, and he
(Roberson) has a reputation to maintain. Roberson had a
conversation with Gilbert about ethics considerations.
Roberson wanted to know if it was a problem for him
(Roberson) to be associated with the effort because he was a
lobbyist. Gilbert later told Roberson that he had checked with
Greg Butrus and Chad Pilcher at Balch and there was no
problem with what they were doing.
"22. The indicted Balch attorneys blocked admission of
this evidence, arguing that it violated their Fifth and Sixth
Amendment rights. Exclusion of this evidence allowed the
U.S. Attorney to falsely argue at closing that [Roberson] had
never asked Joel Gilbert at Balch & Bingham whether the
Plan to pay the Foundation was legal.
"23. On July 20, 2018, the jury convicted [Roberson] and
Gilbert on all counts."
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On May 27, 2021, the United States Court of Appeals for the Eleventh
Circuit affirmed Roberson's convictions on all counts. See United States
v. Roberson, 998 F.3d 1237 (11th Cir. 2021).
As already noted, on March 15, 2019, Roberson commenced an action
against Balch and Drummond in the Jefferson Circuit Court. In his initial
complaint, Roberson asserted claims of negligence, fraud, suppression,
and "implied indemnity" against Balch and Drummond. On April 18,
2019, Balch filed a motion to dismiss the complaint in which it argued
that Roberson's claims were barred by the statute of limitations and the
rule of repose contained in the ALSLA, that Roberson's action was
prohibited under the rule first enunciated in Hinkle v. Railway Express
Agency, 242 Ala. 374, 6 So. 2d 417 (1942),2 that Roberson was collaterally
estopped from arguing that he had relied upon the advice of counsel
because that issue allegedly had been resolved in Roberson's federal
2This Court has explained: "We interpret the rule in Hinkle to bar
any action seeking damages based on injuries that were a direct result of
the injured party's knowing and intentional participation in a crime
involving moral turpitude." Oden v. Pepsi Cola Bottling Co. of Decatur,
621 So. 2d 953, 955 (Ala. 1993).
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criminal trial, and that Balch had owed no duty to Roberson because
Drummond, not Roberson, was Balch's client. Balch attached some
exhibits to its motion to dismiss, including transcript excerpts of witness
testimony from Roberson's criminal trial. Drummond also filed a motion
to dismiss the complaint, and it attached as exhibits to its motion a copy
of Roberson's appellate brief to the Eleventh Circuit Court of Appeals in
the federal criminal case and transcript excerpts from the criminal trial.
Roberson amended his initial complaint twice, expanding upon the
factual allegations and retooling the assertion of his claims against each
defendant. Balch filed motions to dismiss each of those complaints,
repeating the arguments from its original motion to dismiss, and
attaching more exhibits from Roberson's federal criminal trial.
On November 11, 2019, Roberson filed the operative third amended
complaint. With respect to Balch, Roberson repeated claims of
misrepresentation and concealment he had first asserted in his earlier
amended complaints. Specifically, Roberson asserted a claim of
misrepresentation and a claim of concealment based on his allegation that
in November 2014 he had asked Joel Gilbert, an attorney employed by
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Balch, whether Gilbert had asked Balch's in-house ethics attorneys if the
scheme described in Roberson's third amended complaint ("the plan") was
legal and that Gilbert allegedly had lied by responding that he had
checked and that the plan was legal. Similarly, Roberson asserted a claim
of misrepresentation and a claim of concealment based on his allegation
that he had asked Gilbert the same question in June 2016 and Gilbert
allegedly had replied with the same response. Finally, Roberson asserted
another claim of concealment based on his allegation that Gilbert had
learned from a Balch ethics attorney in February 2017 that at least one
action taken by state representative Oliver Robinson was illegal but had
failed to inform Roberson of that information. The third amended
complaint also contained two new concealment claims. Count X alleged
concealment by Balch:
"88. As part of its public relations campaign to defeat the
EPA in North Birmingham and at the request of Joel Gilbert
of Balch Bingham, David Roberson, on behalf of Drummond
Company, wrote a $5,000.00 check to be used to purchase 100
fifty dollar gift cards to Burlington Coat Factory to be used to
purchase winter coats for kids in North Birmingham.
"89. Unbeknownst to Plaintiff Roberson as Joel Gilbert
concealed this information from [Roberson], Balch and Oliver
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Robinson had agreed for [Robinson] to keep $2,500.00 out of
the $5,000.00. [Roberson] did not learn of this hidden fact
until his criminal trial in July of 2018. [Roberson] suffered
damages as a result of Balch's concealment of it allowing
[Robinson] to keep half of the $5,000.00 as the prosecution in
Roberson's criminal trial used this $2,500.00 payment to
Oliver Robinson as damaging evidence against Roberson in his
criminal trial to help it obtain a conviction against him.
Roberson did not even know that Robinson had kept half of the
coat money per his agreement with Balch attorney Gilbert
until this came out at the criminal trial."
Count XI alleged concealment by Balch and Drummond:
"90. Balch & Bingham, LLP contracted with Trey Glenn
(who invoiced Balch under the company name of Southeast
Engineering & Consulting, LLC and directed the payments to
Scott Phillips) to lobby the Alabama Department of
Environmental Management (or 'ADEM') to oppose the EPA in
listing the North Birmingham site on the National Priorities
List.
The
Balch
invoices
to
Drummond
seeking
reimbursement for the payments to Trey Glenn and Scott
Phillips were paid by Drummond General Counsel Blake
Andrews and approved by Drummond CEO Mike Tracy. At
the time that Scott Phillips and Trey Glenn were receiving
money from Balch via Drummond to lobby ADEM on a policy
matter involving the listing of North Birmingham as a
Superfund site, Scott Phillips was on the Alabama
Environmental Management Commission (or 'AEMC'). The
AEMC is the entity that oversees ADEM.
"91. Neither Glenn nor Phillips, while they were
lobbying ADEM about it opposing the EPA's listing of North
Birmingham as a Superfund site, disclosed to ADEM the
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existence of their contract with Balch & Bingham or that they
were indirectly being paid by Drummond Company.
"92. Balch and Drummond Company concealed from
Roberson that Drummond was paying Phillips (who was on the
AEMC), pursuant to a contract with Balch, to lobby the entity
in which the AEMC supervises (ADEM). Roberson suffered
damages as a result of Balch and Drummond's concealment of
their payments to Glenn and Phillips as their testimony that
Drummond was paying Phillips to lobby ADEM when he was
on the commission that supervises ADEM was very damaging
to Roberson at his criminal trial and was used in part by the
prosecution to convict Roberson even though he had no
knowledge of this scheme and even though Glenn’s and
Phillips' invoices were being paid by Balch and reimbursed by
Blake Andrews and Mike Tracy."
The third amended complaint also specifically alleged that Gilbert was a
registered lobbyist, that he had acted in that capacity in carrying out
Balch's responsibilities for the plan, that neither Roberson nor Drummond
was a legal-services client of Balch, and that Balch was not performing
legal services in carrying out its contract with Drummond concerning the
plan.
On November 22, 2019, Balch filed a motion to dismiss the third
amended complaint in which it repeated all the arguments it had
presented in its previous motions to dismiss. The motion relied on
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exhibits submitted in support of previously-filed motions to dismiss, and
Balch also submitted new exhibits. On November 25, 2019, Roberson filed
a motion to strike the exhibits Balch had filed in support of its motion to
dismiss the third amended complaint. On the same date, Roberson filed
his response in opposition to Balch's motion to dismiss the third amended
complaint. Similarly, Drummond filed a motion to dismiss the third
amended complaint, and Roberson filed a response in opposition and a
motion to strike the exhibits submitted in support of that motion to
dismiss.
On August 25, 2020, the circuit court entered an order ruling on all
outstanding motions except the defendants' motions to dismiss the third
amended complaint. In doing so, the circuit court concluded that the third
amended complaint properly replaced Roberson's previous complaints, and
the circuit court therefore determined that the defendants' motions to
dismiss the previous complaints were moot and that Drummond's motion
to strike the third amended complaint was due to be denied. The circuit
court also expressly ruled that "any matters presented to the Court
outside the pleadings are EXCLUDED for purposes of the Defendants'
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Motions to Dismiss." (Capitalization in original.) It therefore granted
Roberson's motions to strike exhibits submitted by Balch and Drummond
in support of their motions to dismiss. On August 27, 2020, the circuit
court held a hearing on the motions to dismiss.
On September 14, 2020, the circuit court entered a judgment
granting Balch's motion to dismiss all claims asserted against it in
Roberson's third amended complaint. The circuit court began its analysis
by observing that Roberson's
"complaint contains factual allegations and conclusory
statements, and the Court's analysis must necessarily include
whether the Alabama Legal Services Liability Act ('ALSLA')
applies to and governs the factual allegations ... and whether
[Roberson's] evolved classification of Gilbert's role, and
Defendant Balch's, was that of providing public-relations work
instead of and to the exclusion of legal work to Defendant
Drummond and its employee [Roberson]."
The circuit court noted that Roberson had conceded that Balch was, in
fact, a legal-services provider and that his complaint "refers to the ethics
attorneys at Defendant Balch, from whom [Roberson] wanted Gilbert to
inquire about the legality of the Plan." The circuit court therefore
concluded that "[w]hile [Roberson,] in his Third Amended Complaint,
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attempts to re-characterize the role of Joel Gilbert as that of a lobbyist,
rather than an attorney," Roberson
"by inquiring of Gilbert and Defendant Balch's ethics'
attorneys, via Gilbert, believed that he was consulting a
lawyer(s) [Gilbert and Balch's ethics' lawyers] in their capacity
as lawyers, and [Roberson], at that time, manifested his
intention to seek professional legal advice. The Court FINDS
that the herein alleged claims against Defendant Balch are
classified collectively as a legal service liability action,
pursuant to ALSLA, as defined in Section 6-5-572, and Section
6-5-573 ...."
(Capitalization in original.) The circuit court then applied the statute of
limitations relevant to "legal service liability actions" contained in
§ 6-5-574(a), Ala. Code 1975,3 to Roberson's claims against Balch:
3Section 6-5-574(a) provides:
"(a) All legal service liability actions against a legal
service provider must be commenced within two years after
the act or omission or failure giving rise to the claim, and not
afterwards; provided, that if the cause of action is not
discovered and could not reasonably have been discovered
within such period, then the action may be commenced within
six months from the date of such discovery or the date of
discovery of facts which would reasonably lead to such
discovery, whichever is earlier; provided, further, that in no
event may the action be commenced more than four years after
such act or omission or failure; except, that an act or omission
or failure giving rise to a claim which occurred before
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"The Court FINDS that the act or omission or failure
giving rise to the [Roberson's] claims against Defendant Balch
occurred in November 2014. The Court FINDS that, at the
latest, [Roberson] should have reasonably discovered the facts
giving rise to the alleged claims herein against Defendant
Balch at the time of [Roberson's] and Gilbert's indictments, to
wit: September 27, 2017. The Court FINDS that the herein
Complaint had to have been filed no later than March 27,
2018, to fall within the statute of limitations, pursuant to
ALSLA, Section 6-5-574. [Roberson's] original Complaint was
filed March 15, 2019."
(Capitalization in original.) Concerning the rule of repose contained in
§ 6-5-574(a), the circuit court also added that "certainly the herein claim[s]
could not have been commenced, in any event, later than November 30,
2018 (the Court uses the date November 30, since no specific day in
November [2014] was asserted)." Because the circuit court determined
that all of Roberson's claims against Balch were barred by the limitations
periods provided in the ALSLA, it dismissed all of Roberson's claims
against Balch. The circuit court also certified the judgment as a final
judgment pursuant to Rule 54(b), Ala. R. Civ. P., finding that the
August 1, 1987, shall not in any event be barred until the
expiration of one year from such date."
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judgment disposed of all the claims against Balch and that there was no
just reason for delay in entering a final judgment.
II. Standard of Review
As we noted in the rendition of facts, Balch filed, and the circuit
court granted, a motion to dismiss all the claims against Balch based on
the limitations periods in the ALSLA.
"The standard of review applicable to motions to dismiss
is well settled:
" 'It is a well-established principle of law in this
state that a complaint, like all other pleadings,
should be liberally construed, Rule 8(f), Ala. R. Civ.
P., and that a dismissal for failure to state a claim
is properly granted only when it appears beyond a
doubt that the plaintiff can prove no set of facts
entitling him to relief. Winn-Dixie Montgomery,
Inc. v. Henderson, 371 So. 2d 899 (Ala. 1979).
Stated another way, if under a provable set of facts,
upon any cognizable theory of law, a complaint
states a claim upon which relief could be granted,
the complaint should not be dismissed. Childs v.
Mississippi Valley Title Insurance Co., 359 So. 2d
1146 (Ala. 1978).
" 'Where a [Rule] 12(b)(6)[, Ala. R. Civ. P.,]
motion has been granted and this Court is called
upon to review the dismissal of the complaint, we
must examine the allegations contained therein
and construe them so as to resolve all doubts
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concerning the sufficiency of the complaint in favor
of the plaintiff. First National Bank v. Gilbert
Imported Hardwoods, Inc., 398 So. 2d 258 (Ala.
1981). In so doing, this Court does not consider
whether the plaintiff will ultimately prevail, only
whether he has stated a claim under which he may
possibly prevail. Karagan v. City of Mobile, 420
So. 2d 57 (Ala. 1982).'
"Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala. 1985)."
Pearce v. Schrimsher, 583 So. 2d 253, 253-54 (Ala. 1991).
In noting our standard of review for this appeal, we observe that in
its appellate brief Balch repeatedly urges this Court to consider the
exhibits that were attached to motions to dismiss filed in the circuit court.
We reject Balch's invitation to consider any of those exhibits given that
the circuit court expressly stated in its August 25, 2020, order that it was
excluding all materials outside of the pleadings in deciding the motions to
dismiss. Because the circuit court in its discretion elected not to consider
the exhibits, we will not do so in reviewing the circuit court's judgment.
See, e.g., Ex parte Price, 244 So. 3d 949, 955 (Ala. 2017).
On a related note, after briefing was completed in this appeal, Balch
filed with this Court what it styled as a "Letter of Supplemental
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Authority," invoking Rule 28B., Ala. R. App. P., as a basis for the filing.
That rule allows for a party to "promptly advise the clerk of the appellate
court in which the proceeding is pending by letter" if "pertinent and
significant authority comes to a party's attention after the party's brief
has been filed." Roberson has filed a motion to strike Balch's letter
because, he says, Balch does not present any new authority; rather,
Roberson asserts, Balch seeks to contend that a misquotation of a case in
Balch's appellate brief4 that Roberson highlighted in his reply brief5 was
an "accidental and unintentional ... mistake" rather than a deliberate
misquotation, even though Balch had employed the same misquotation in
its circuit court filings and Roberson had drawn attention to it at that
time as well. We agree with Roberson that Balch's letter is not a "notice
of supplemental authority" as allowed by Rule 28B., and Balch offers no
other authority for what actually appears to be, as Roberson says, an
attempt by Balch "to get the last word on issues argued in the [Roberson's]
4The opinion that is misquoted is San Francisco Residence Club, Inc.
v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 1179 (N.D. Ala. 2012). See
Balch's brief, p. 39.
5See Roberson's reply brief, p. 14.
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reply brief." Accordingly, we grant Roberson's motion to strike Balch's
letter filing.
We also observe that we do not believe that the circuit court's
certification of its judgment as final under Rule 54(b) was improper. It is
undeniable that Roberson's claims against Balch and Drummond are
substantially interrelated. This Court has noted:
"In considering whether a trial court has exceeded its
discretion in determining that there is no just reason for delay
in entering a judgment, this Court has considered whether 'the
issues in the claim being certified and a claim that will remain
pending in the trial court " 'are so closely intertwined that
separate adjudication would pose an unreasonable risk of
inconsistent results.' " ' Schlarb[ v. Lee], 955 So. 2d [418] at
419-20 [(Ala. 2006)] (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)."
Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263 (Ala. 2010). In this
instance, the circuit court's dismissal of all the claims against Balch was
based on the applicability of the ALSLA's limitations periods, a conclusion
that was, in turn, based on facts pertinent only to Balch, i.e., its status as
a legal-service provider and its alleged provision of legal advice to
Roberson. It is true that Drummond also argued in its motion to dismiss
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the third amended complaint that some claims against it were due to be
dismissed based on the applicability of the ALSLA's limitations periods,
but Drummond's arguments regarding the applicability of those
limitations periods were based on its own alleged actions, not those of
Balch. Thus, there is no risk of inconsistent results in this case because
the basis for the dismissal of the claims against Balch was truly
independent of the claims asserted against Drummond.
III. Analysis
Roberson contends that the circuit court made three fundamental
errors in dismissing his claims against Balch. First, he argues that the
circuit court erred by concluding that his claims were subject to the
ALSLA. Second, he argues that, even if the ALSLA applies to his claims,
the circuit court erred by concluding that the triggering date for the
running of ALSLA's limitations periods was the date of Gilbert's alleged
misrepresentation to Roberson in November 2014, rather than the date
Roberson sustained an injury from Balch's actions, which Roberson
contends was the date he was indicted on federal criminal charges. Third,
Roberson argues that, even if the triggering date for claims under the
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ALSLA is the date of the alleged act or omission of the legal-service
provider rather than the date of the plaintiff's injury, "each
misrepresentation or concealment creates a separate claim -- even if the
misrepresentation or concealment is identical to a prior misrepresentation
or concealment that is barred by the statute of limitations." Roberson's
brief, p. 21. If Roberson is correct, some of Balch's alleged misconduct
occurred within the ALSLA's statute-of-limitations period. However, we
consider it necessary to address only Roberson's first argument.
Roberson contends that, to invoke the ALSLA, a defendant must
demonstrate: (1) that it is a "legal service provider"; (2) that the plaintiff
is a "client" of the "legal service provider"; (3) that the "legal service
provider" provided "legal services" to the plaintiff; and (4) that the
plaintiff's claims "arise from" those services. Roberson concedes that
Balch is a "legal service provider," but he disputes that he was a "client"
of Balch or that Balch provided "legal services" to him.
The ALSLA defines a "legal service provider," in part, as "[a]nyone
licensed to practice law by the State of Alabama or engaged in the practice
of law in the State of Alabama." § 6-5-572(2), Ala. Code 1975. As the
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circuit court noted in its September 14, 2020, judgment of dismissal, Balch
is a law firm and Gilbert -- as well as Balch's in-house ethics attorneys --
were licensed to practice law in the State of Alabama.
The ALSLA defines a "legal service liability action" as:
"Any action against a legal service provider in which it is
alleged that some injury or damage was caused in whole or in
part by the legal service provider's violation of the standard of
care applicable to a legal service provider. A legal service
liability action embraces all claims for injuries or damages or
wrongful death whether in contract or in tort and whether
based on an intentional or unintentional act or omission. A
legal services liability action embraces any form of action in
which a litigant may seek legal redress for a wrong or an
injury and every legal theory of recovery, whether common law
or statutory, available to a litigant in a court in the State of
Alabama now or in the future."
§ 6-5-572(1).
Thus, if a plaintiff alleges that the plaintiff's injuries are the result
of the provision of substandard legal services, the plaintiff's action is a
"legal service liability action" governed by the ALSLA. Indeed, our cases
have repeatedly remarked that an ALSLA action is one that concerns the
provision and receipt of legal services. See, e.g., Line v. Ventura, 38
So. 3d 1, 11 (Ala. 2009) ("[T]he ALSLA applies only to claims against
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legal-service providers arising out of the provision of legal services.");
Fogarty v. Parker, Poe, Adams & Bernstein, L.L.P., 961 So. 2d 784, 788
(Ala. 2006) ("The ALSLA applies only to allegations of legal malpractice,
i.e., claims against legal-service providers that arise from the performance
of legal services ...."); Valentine v. Watters, 896 So. 2d 385, 390 (Ala. 2004)
("[T]he ALSLA ... does not apply to all actions filed against legal-service
providers by someone whose claim does not arise out of the receipt of legal
services."); Sessions v. Espy, 854 So. 2d 515, 522 (Ala. 2002) ("[T]he
ALSLA applies to all actions against 'legal service providers' alleging a
breach of their duties in providing legal services."); Cunningham v.
Langston, Frazer, Sweet & Freese, P.A., 727 So. 2d 800, 803 (Ala. 1999)
("The language of the ALSLA makes it clear that that Act refers to actions
against 'legal service providers' alleging breaches of their duties in
providing legal services. Conversely, from a plaintiff's perspective, the
ALSLA applies to any claim originating from his receipt of legal
services."). Accordingly, to determine whether the ALSLA governs
Roberson's claims against Balch, we first must address Roberson's
contention that Balch did not provide "legal services" to him.
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The circuit court concluded that Roberson was seeking legal advice
when he asked Gilbert if he had checked with Balch's in-house ethics
attorneys about whether the plan was legal. As Roberson notes, the
ALSLA does not specifically define the term "legal services," but Roberson
does not dispute that providing legal advice is a legal service.6 Instead,
Roberson argues that he was not seeking, and that Gilbert did not
provide, legal advice. In making this argument, Roberson looks to Rule
2.1, Ala. R. Pro. Cond., which provides, in part: "In representing a client,
a lawyer shall exercise independent professional judgment and render
candid advice." Roberson contends that he "did not ask Gilbert for
'judgment' or 'advice.' He asked to recall a historical event: whether 'he
had inquired [past tense] with the ethics lawyers ... whether the Plan was
legal and ethical.' Historical reminiscences are not 'legal services'; they
6Section 34-3-6, Ala. Code 1975, which concerns the unauthorized
practice of law, provides, in part, that "[w]hoever ... [f]or a consideration,
reward, or pecuniary benefit, present or anticipated, direct or indirect,
advises or counsels another as to secular law ... is practicing law."
§ 34-3-6(b)(2).
25
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do not require 'professional judgment,' and they are not 'candid advice.' "
Roberson's brief, p. 32 (quoting the third amended complaint).
This argument is meritless. Under the facts provided in Roberson's
third amended complaint, the obvious motive for Roberson's question to
Gilbert was to obtain from Balch attorneys an assessment of the legality
of the plan, whether directly from Gilbert or indirectly from Balch's ethics
attorneys, so that Roberson could decide whether he would feel
comfortable participating in the plan. Roberson specifically noted in his
third amended complaint that he "is not a lawyer and has no legal
training concerning the matters described herein," and he alleged that,
"having been assured by Gilbert that Balch's in-house ethics attorneys had
reviewed the Plan and determined that it was legal and ethical,
[Roberson] did not know that the payments were illegal. Consequently,
[Roberson] approved reimbursements to Balch for payments to the
Foundation." In other words, the gravamen of Roberson's claims against
Balch was that he had acted on the legal advice he believed Gilbert had
provided when Gilbert told Roberson that Balch's ethics attorneys had
concluded that the plan was legal. Thus, Roberson was not seeking
26
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"historical" information; he was seeking from Balch attorneys an
assessment of the legality of the plan.
The reality that Roberson was seeking legal advice becomes even
more apparent from the specific allegations of his concealment claim
based events that allegedly occurred in February 2017. In count IX of his
third amended complaint, Roberson alleged:
"79. In February 2017, Gilbert asked [ethics attorney]
Chad Pilcher of Balch whether he saw any 'issues' or problems
with the Plan or the relationship with Oliver Robinson and the
Foundation.
"80. As part his review, Pilcher discovered that Robinson
had written a letter on his House of Representatives
letterhead, and he advised Gilbert that Robinson's use of his
official letterhead in performing work under the contract was
illegal.
"81. The government later charged in [Roberson's]
indictment that Robinson committed this act in furtherance of
the alleged criminal conspiracy, for which [Roberson] was
convicted.
"82. Gilbert and Balch withheld, concealed, and failed to
disclose to [Roberson] that Gilbert himself was questioning the
legality of the Plan and the relationship with Robinson and his
foundation and that Pilcher had determined that Robinson had
acted illegally.
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"83. Gilbert and Balch had a duty to disclose this
information to [Roberson] based on a confidential relationship
between the parties, the particular facts of the case,
[Roberson's] specific questions to Gilbert, and Gilbert's
continuing representations that the Plan was 'legal and
ethical' and that there were no 'problems' with the Plan.
"84. [Roberson] reasonably relied on Balch and Gilbert
to disclose information about the legality of the Plan and its
relationship with Robinson.
"85. This failure to disclose by Gilbert and Balch denied
[Roberson] an opportunity to employ independent counsel to
evaluate his potential responsibility for Robinson’s conduct
and to avoid criminal prosecution based on Robinson’s conduct.
As a proximate result of this failure to disclose, [Roberson] was
indicted, prosecuted, and suffered the other damages described
above."
(Emphasis added.) Thus, under Roberson's own allegations, Roberson
was seeking advice from Balch attorneys about the legality of the plan, he
believed that Gilbert and Balch had a duty to inform him of any such
assessment of legality performed by Balch, in part because of the
existence of "a confidential relationship between the parties," and he
"reasonably relied" on Balch "to disclose information about the legality of
the Plan."
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Roberson also contends that Gilbert did not provide legal advice
because, Roberson says, Gilbert actually lied to him. According to the
third amended complaint, Gilbert did not, in fact, ask Balch's ethics
attorneys about the legality of the plan in either November 2014 or June
2016 when Roberson had questioned Gilbert; instead, Roberson contends,
those ethics attorneys were not asked to assess the legality of the plan --
and they did not determine any portion of the plan to be illegal -- until
February 2017. Thus, Roberson argues that Gilbert did not "exercise
independent professional judgment" or provide "advice" to Roberson. See
Rule 2.1, Ala. R. Pro. Cond.
However, this argument is simply a commentary on the accuracy or
quality of the advice Gilbert gave to Roberson; the fact that Gilbert may
have uttered an intentional misrepresentation in the course of providing
legal services to Roberson does not take Roberson's claims outside the
ambit of the ALSLA. The ALSLA specifically provides that "[t]here shall
be only one form and cause of action against legal service providers in
courts in the State of Alabama and it shall be known as the legal service
liability action and shall have the meaning as defined herein." § 6-5-573,
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Ala. Code 1975 (emphasis added). It further explains that "[a] legal
service liability action embraces all claims for injuries or damages or
wrongful death whether in contract or in tort and whether based on an
intentional or unintentional act or omission." § 6-5-572(1) (emphasis
added). A "legal service liability action" subsumes "[a]ny action against
a legal service provider in which it is alleged that some injury or damage
was caused in whole or in part by the legal service provider's violation of
the standard of care applicable to a legal service provider." Id. (emphasis
added). Roberson alleges that he suffered injuries -- namely indictment
and criminal conviction -- because of the actions he took after receiving
legal advice from Balch attorneys. Therefore, Roberson's claims are
governed by the ALSLA, regardless of whether the provision of the
allegedly faulty legal advice was intentional or negligent. See Bryant v.
Robledo, 938 So. 2d 413, 418 (Ala. Civ. App. 2005) (noting that the
Alabama Supreme Court has "interpreted the Alabama Legal Services
Liability Act ... to apply to all actions against legal-service providers that
allege a breach of their duties in providing legal services; both
common-law and statutory claims such as breach of a duty, negligence,
30
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misrepresentation, and the like are all subsumed into a single cause of
action under the ALSLA" (second emphasis added)).7
Roberson also argues that the circuit court erred by concluding that
he was a Balch "client." He notes that, in its motions to dismiss below,
Balch stated that Roberson was not a Balch client because Balch had a
contractual relationship with Drummond, not with Roberson. Indeed, in
its appellate brief, Balch repeats that Roberson was not its client, but it
7The fact that an ALSLA action is an all-encompassing one for
claims against legal-service providers concerning a breach of the standard
of care applicable to such providers also explains why the claims Roberson
added in his third amended complaint -- counts X and XI -- are subsumed
under the ALSLA even though the allegations in those counts involve the
concealment of bribes, not the direct provision of legal services. A "legal
service liability action" includes "[a]ny action against a legal service
provider in which it is alleged that some injury or damage was caused in
whole or in part by the legal service provider's violation of the standard
of care applicable to a legal service provider," and such an action
"embraces all claims for injuries or damages ...." § 6-5-572(1), Ala. Code
1975. Thus, because the gravamen of Roberson's action against Balch is
that Gilbert's misrepresentations about the legality of the plan caused
Roberson to commit the acts that led to his indictment and subsequent
conviction on federal criminal charges, counts X and XI are included in
this "legal service liability action." See Mississippi Valley Title Ins. Co.
v. Hooper, 707 So. 2d 209, 213 n.4 (Ala. 1997) ("Because the substance of
the claims against Hooper involves the provision of legal services 'in whole
or in part,' the limitations provisions of the ALSLA would apply.").
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argues that "[c]laims regarding the provision of legal services by a legal
service provider are governed by the ALSLA regardless of whether the
plaintiff had an attorney-client relationship with the defendant lawyer or
law firm." Balch's brief, p. 37. Roberson contends that it was error for the
circuit court to ignore both Balch's admission and the allegations in the
third amended complaint that Roberson was not a client of Balch.
Roberson adds that this Court has stated that being a "client" is an
essential element of an ALSLA action. See, e.g., Ex parte Daniels, 264
So. 3d 865, 869 (Ala. 2018) (" 'An attorney-client relationship is an
essential element of a claim under the [ALSLA]. ' " (quoting Brackin v.
Trimmier Law Firm, 897 So. 2d 207, 229 (Ala. 2004))); Line, 38 So. 3d at
10 (" '[T]he ALSLA applies only to lawsuits based on the relationship
between "legal service providers" and those who have received legal
services ....' " (quoting Cunningham, 727 So. 2d at 805 (emphasis added))).
Roberson argues that, because he was not Balch's client, Balch could not
demonstrate that an indispensable element of an ALSLA action existed
and that, therefore, the circuit court erred in applying the ALSLA to his
claims against Balch.
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Roberson is correct that, to the extent that the circuit court
concluded that Roberson had established an attorney-client relationship
with Balch merely by his having asked Gilbert whether he had checked
with Balch's ethics attorneys about the legality of the plan, the circuit
court mistakenly interpreted the facts before it. However, Roberson
misunderstands the import of cases such as Brackin upon his claims
against Balch. With respect to whether an action is a "legal services
liability action," Brackin contained facts very similar to the facts in this
case. In part, Brackin involved an appeal by Karen Brackin concerning
a trial court's summary judgment disposing of her claim against the
Trimmier Law Firm. "Brackin was the manager of lending, marketing,
and human resources at FSCU [Family Security Credit Union], second in
command only to Ron Fields, the president at FSCU." 897 So. 2d at 210.
"In April 1999, an audit of FSCU identified apparent improprieties in the
files at FSCU related to a former employee of FSCU, Mitchell Smith." Id.
at 209. The Alabama Credit Union Administration ("the ACUA") ordered
FSCU to " 'engage an outside firm' " to review the "potential lending
violations and other improprieties by Smith" and to submit the findings
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of the outside firm to the ACUA and the National Credit Union
Administration. Id. "FSCU retained Steve Trimmier, the senior partner
with the Trimmer Law Firm, to conduct the investigation. The Trimmier
Law Firm was FSCU's legal counsel." Id. The investigation by the
Trimmier Law Firm indicated that Brackin potentially could have been
involved in some of the improprieties tied to Smith. FSCU eventually
discharged Brackin, and Brackin sued FSCU and other entities and
individuals. "Brackin later added the Trimmier Law Firm as a defendant,
alleging that the law firm had violated the Legal Services Liability Act,
§ 6-5-570 et seq., Ala. Code 1975, by failing to properly and adequately
conduct the investigation at FSCU (count V)." 897 So. 2d at 215-16. This
Court affirmed the trial court's summary judgment disposing of Brackin's
ALSLA claim against the Trimmier Law Firm, explaining:
"The only claim allowed by the trial court against the
Trimmier Law Firm was the alleged violation of the Legal
Services Liability Act. An attorney-client relationship is an
essential element of a claim under the Legal Services Liability
Act, and in support of its motion for a summary judgment, the
Trimmier Law Firm submitted undisputed evidence that it
had never entered into an attorney-client relationship with
Brackin. See Sessions v. Espy, 854 So. 2d 515 (Ala. 2002)
(recognizing that claims against a lawyer that are alleged to
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have arisen out of the attorney-client relationship are all
subsumed under the Alabama Legal Services Liability Act);
Peterson v. Anderson, 719 So. 2d 216 (Ala. Civ. App. 1997)
(because the plaintiffs were not clients of the testator's
attorney, the plaintiffs lacked standing to pursue an action
against the attorney under the Alabama Legal Services
Liability Act).
"Therefore, the trial court had before it ample evidence
to properly dispose of Brackin's claim on the Trimmier Law
Firm's motion for a summary judgment; no amount of
discovery would have supported a different result. The trial
court did not err in refusing to continue the hearing on the
summary-judgment motions in order to allow Brackin to
complete discovery related to her pending claim against the
Trimmier Law Firm."
Id. at 229. In short, the Brackin Court concluded that, even though the
Trimmier Law Firm clearly had provided legal services to FSCU -- and
hence that Brackin was asserting an ALSLA action -- Brackin's lack of an
attorney-client relationship with the Trimmier Law Firm meant that she
could not maintain her claim against the law firm based on that provision
of legal services.
This Court has emphasized the foregoing point in several other
cases. Robinson v. Benton, 842 So. 2d 631 (Ala. 2002), concerned a
scenario similar to the one presented in Brackin. In Robinson, the devisee
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of a will, Wallace Robinson, commenced what Robinson labeled as an
ALSLA action against the attorney who drafted the will, asserting that
the attorney had failed to destroy a will as directed by the testatrix,
resulting in Robinson's having to share his inheritance with stepchildren
the testatrix allegedly had wanted to disinherit. Robinson consciously
sought a change in the rule of law that " 'an intended beneficiary cannot
bring a civil action against the attorney unless the duty arises from a
gratuitous undertaking by the attorney.' " 842 So. 2d at 634 (quoting the
appellant's brief). This Court "decline[d] to change the rule of law in this
state that bars an action for legal malpractice against a lawyer by a
plaintiff for whom the lawyer has not undertaken a duty, either by
contract or gratuitously," 842 So. 2d at 637, and, thus, affirmed the
dismissal of Robinson's action against the attorney. Robinson's action
clearly alleged that the attorney had provided legal services that had
harmed him -- thus his action was governed by the ALSLA -- but his
claims were barred because the attorney-client relationship existed
between the testatrix and the attorney, not between Robinson and the
attorney. See also Shows v. NCNB Nat'l Bank of North Carolina, 585
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So. 2d 880, 882 (Ala. 1991) (affirming the dismissal of the plaintiff
defaulting mortgagors' ALSLA claims against an attorney for negligently
preparing a deed of conveyance between the mortgagee and the
purchasers of the property at the foreclosure sale because "[a] person
authorized to practice law owes no duty except that arising from contract
or from a gratuitous undertaking").
In contrast to the situations in Brackin, Robinson, and Shows, in
Line v. Ventura, 38 So. 3d 1 (Ala. 2009), the Court upheld a judgment in
an action against an attorney because, it determined, the action was
outside the confines of the ALSLA. The primary plaintiff in Line, Ryan
Ventura, had been the conservatee of a conservatorship set up for his
benefit when he was 14 years old by his mother, Patricia Dutton, with
proceeds from the award in a wrongful-death action arising from the death
of Ventura's father. Dutton had engaged an Alabama attorney, Billie B.
Line, to establish the conservatorship. However, along with Dutton as
conservator, Line became the cosignatory on the conservatorship account.
Dutton had obtained a surety bond on the conservatorship account from
Hartford Fire Insurance Company ("Hartford"), which required all checks
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drawn from the account to be cosigned by a representative it designated,
and Line became that representative. Hartford eventually became a
coplaintiff in Ventura's action against Line. By the time Ventura reached
the age of majority, the funds in the conservatorship account had been
exhausted due to financial decisions by Dutton that were approved by
Line. Ventura then commenced an action against Line. Before the case
was submitted to the jury, Line filed a motion for a judgment as a matter
of law in which he argued that the ALSLA was the plaintiffs' only avenue
of relief.
"[T]he trial court accepted Line's argument that Ventura was
not Line's client and that Line had not performed legal
services for Ventura so that Ventura had no standing to assert
a legal-malpractice claim under the ALSLA. The claims
presented to the jury were Ventura's claims of negligence,
wantonness, and breach of fiduciary duty, and Hartford's
breach-of-fiduciary-duty and common-law indemnity claims
...."
38 So. 3d at 3-4. A jury awarded Ventura and Hartford compensatory and
punitive damages. Line appealed, arguing that, "under the circumstances
of this case, the ALSLA provides the only means for the plaintiffs to assert
claims against him" because, "even though neither Ventura nor Hartford
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was his client, their claims are related to the fact that he provided legal
services to Dutton in creating the conservatorship." 38 So. 3d at 4, 8. In
rejecting Line's argument, the Court reviewed the decisions in Fogarty
and Cunningham, and it concluded that "those cases hold that the ALSLA
applies only to claims against legal-service providers arising out of the
provision of legal services," and Ventura's claims based on Line's legal
malpractice had been struck by the trial court before the case had been
submitted to the jury. Id. at 11. The Court then concluded that "the
evidence is effectively uncontroverted that neither Ventura nor Hartford
was Line's client, and Line provided legal services to neither. Accordingly,
the ALSLA has no application to Ventura's and Hartford's claims against
Line." Id. In support of this conclusion, the Court noted that "the record
strongly supports the inference that Line undertook an entirely separate
fiduciary obligation to Ventura and Hartford by explicitly agreeing to
participate in the conservatorship by cosigning checks and being 'actively
involved' with the conservatorship funds." Id. Thus, in Line the plaintiffs'
surviving claims did not involve the provision of legal services, and so the
plaintiffs' lack of an attorney-client relationship with Line did not
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foreclose bringing claims on a basis other than the ALSLA. See, e.g.,
Ex parte Daniels, 264 So. 3d 865, 869 (Ala. 2018) (holding that "it is
undisputed that the Morris defendants did not provide legal services to
Daniels. Accordingly, his claims against the Morris defendants are not
governed by the ALSLA."); Fogarty, 961 So. 2d 789 (concluding that the
plaintiff's claims did "not allege tortious conduct resulting from the receipt
of legal services by the Fogartys from [the law firm] Parker Poe" and that,
"[t]herefore, it appears that the ALSLA does not apply to the Fogartys'
claims; thus, it cannot be, as Parker Poe asserts, their exclusive remedy");
Cunningham, 727 So. 2d at 805 (concluding in a fee-splitting dispute
between attorneys that, because the plaintiff's claims did not involve the
provision of legal services, the claims were not subsumed under the
ALSLA).
The underlying theme from all of the foregoing cases is that if the
gravamen of a plaintiff's action against a legal-service provider concerns
the provision of legal services, the action is governed by the ALSLA, but
to state a cognizable ALSLA claim an attorney-client relationship must
exist between the plaintiff and the defendant because there must be a
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duty owed by the defendant attorney or law firm to the plaintiff that can
be assessed "by the legal service provider's violation of the standard of
care applicable to a legal service provider."8 § 6-5-572(1), Ala. Code 1975.
8Roberson cites one case, Kinney v. Williams, 886 So. 2d 753 (Ala.
2003), that on the surface appears not to fit this pattern. In Kinney, the
Court reversed a summary judgment with respect to fraud claims asserted
by two of the four plaintiffs against an attorney and his law firm involving
the attorney's representation that a road adjacent to property the
plaintiffs purchased was "private" when, in fact, the road was a public one.
The plaintiff couple whose claims the Court addressed, Earl and Beverly
Adair, were family relations of the plaintiff couple that had hired the
attorney, Anthony and Nadine Kinney, and the attorney made the
representation about the private character of the road directly to both
couples. The Court permitted the Adairs' fraud claims against the
attorney and his law firm, even though the Adairs were not his clients, on
the basis of a general principle stated in Potter v. First Real Estate Co.,
844 So. 2d 540, 553 (Ala. 2002), that " ' "[i]t is not necessary to an action
for misrepresentation that there be a contractual relationship between the
representor and the person deceived." ' " (Quoting Doss v. Serra
Chevrolet, Inc., 781 So. 2d 973, 976 (Ala. Civ. App. 2000), quoting in turn
Mid-State Homes, Inc. v. Startley, 366 So. 2d 734, 735-36 (Ala. Civ. App.
1979).)
The Kinney opinion did not even mention, much less discuss, the
effect the ALSLA might have had on the Adairs' fraud claims. This is,
perhaps, because, before the Court addressed the Adairs' fraud claims, it
expressly noted that it was affirming the trial court's summary judgment
in favor of the attorney and his law firm "on all claims by the Kinneys and
on the legal malpractice claims by the Adairs" because "the summary
judgments on these specified claims are supported by well-established
law." Kinney, 886 So. 2d at 754. There is no indication in the Kinney
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We have already concluded that the gravamen of Roberson's claims
against Balch involved the provision of legal services. However, both
Roberson and Balch assert that Roberson was not Balch's client, and those
assertions are borne out in the third amended complaint, which indicates
that Balch was engaged by Drummond, not personally by Roberson.
Therefore, just as, in Brackin, former FSCU employee Brackin's ALSLA
claim against FSCU's law firm was barred because Brackin was not the
Trimmier Law Firm's client, here, former Drummond employee Roberson's
claims against the law firm Drummond engaged, Balch, are barred by the
ALSLA because Roberson cannot meet an essential element of an ALSLA
claim -- namely, he was not Balch's client -- and thus Balch owed no duty
opinion that any argument was presented that the Adairs' fraud claims
should have been subsumed by the ALSLA. Moreover, Potter, the case on
which the Kinney Court relied, was a fraud action brought by home
purchasers against a real-estate agent and his agency, and so it did not
involve claims against a legal-service provider for the receipt of legal
services. We therefore find Kinney distinguishable from the cases
discussed in this opinion, all of which expressly applied the ALSLA.
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to Roberson.9 Accordingly, we conclude that the circuit court's dismissal
of Roberson's claims against Balch is due to be affirmed.
We recognize that our basis for affirming the circuit court's judgment
differs from the circuit court's rationale, which was based on the
applicability of the ALSLA's limitations periods. However, it is well
established that this Court may "affirm the trial court on any valid legal
ground presented by the record, regardless of whether that ground was
considered, or even if it was rejected, by the trial court." Liberty Nat'l Life
Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d
1013, 1020 (Ala. 2003). This rule is, of course, subject to certain due-
9We acknowledge that in such cases as Bonner v. Lyons, Pipes &
Cook, P.C., 26 So. 3d 1115, 1120 (Ala. 2009), Line, 38 So. 3d at 3,
Robinson, 842 So. 2d at 634, Bryant v. Robledo, 938 So. 2d 413, 418 (Ala.
Civ. App. 2005), and Peterson v. Anderson, 719 So. 2d 216, 218 (Ala. Civ.
App. 1997), our courts have labeled the above-described deficiency of an
ALSLA claim as a lack of "standing" by the plaintiff. However, in a series
of cases that began with Wyeth, Inc. v. Blue Cross & Blue Shield of
Alabama, 42 So. 3d 1216 (Ala. 2010), this Court has explained that
"standing" is not a necessary or cognizable concept in private-law civil
actions and that the actual issue being raised is often, as in this case, that
of a failure to state a claim upon which relief can be granted.
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process constraints,10 but those constraints are not applicable here.
Indeed, in its motion to dismiss the third amended complaint, Balch
pointed out the issue on which we affirm the judgment of dismissal:
"On the one hand, Roberson alleges that he relied upon,
and was damaged by, Gilbert’s legal advice. ... On the other
hand, Roberson alleges that the ALSLA does not apply to his
claims because he was not Balch’s client, ... under either
theory, Roberson loses. If he relied on the allegedly bad legal
advice, the ALSLA applies, and his claims are time-barred. If
he was a non-client, Balch owed him no duty and he has failed
to establish a claim under the exclusive ALSLA statute. In
any event, Roberson’s common law fraud and suppression
claims fail because the ALSLA is the exclusive cause of action
against legal services providers based on allegedly deficient
provision of legal services. See Ala. Code § 6-5-572(1)."
10This Court will not affirm a trial court's judgment when
"due-process constraints require some notice at the trial level,
which was omitted, of the basis that would otherwise support
an affirmance, such as when a totally omitted affirmative
defense might, if available for consideration, suffice to affirm
a judgment, ... or where a summary-judgment movant has not
asserted before the trial court a failure of the nonmovant's
evidence on an element of a claim or defense and therefore has
not shifted the burden of producing substantial evidence in
support of that element ...."
Liberty Nat'l Life Ins. Co., 881 So. 2d at 1020.
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(Emphasis added.) Thus, in the circuit court Roberson was not unaware
of the deficiency of his ALSLA claims against Balch.
Finally, we note that Roberson seems to be under the impression
that if he cannot state a cognizable claim under the ALSLA for the
injuries he allegedly sustained due to Balch's conduct, then he must be
afforded another remedy for his injuries. See Roberson's reply brief, p. 16
("[I]f the ALSLA does not provide a remedy for a corporate employee, such
as Roberson, then it cannot be his 'exclusive remedy,' as Balch argues.").
However, the foregoing survey of our cases clearly indicates otherwise,
and the reason behind the limitations placed on such actions is the
legislature's design of a "legal service liability action." The legislature, in
expressing its intent concerning the purpose of the ALSLA, stated, in part:
"It is the declared intent of this Legislature to insure that
quality legal services continue to be available at reasonable
costs to the citizens of the State of Alabama. This Legislature
finds and declares that the increasing threat of legal actions
against legal service providers contributes to an increase in
the cost of legal services and places a heavy burden upon those
who can least afford such cost and that the threat of such legal
actions contributes to the expense of providing legal services
to be performed by legal service providers which otherwise
would not be considered necessary, and that the spiraling costs
and decreasing availability of essential legal services caused
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by the threat of such litigation constitutes a danger to the
welfare of the citizens of this state, and that [the ALSLA]
should be given effect immediately to help control the spiraling
cost of legal services and to insure the continued availability
of vital legal services. ... It is the intent of the Legislature to
establish a comprehensive system governing all legal actions
against legal service providers. The Legislature finds that in
order to protect the rights and welfare of all Alabama citizens
and in order to provide for the fair, orderly, and efficient
administration of legal actions against legal service providers
in the courts of this state, [the ALSLA] provides a complete
and unified approach to legal actions against legal service
providers and creates a new and single form of action and
cause of action exclusively governing the liability of legal
service providers known as a legal service liability action and
provides for the time in which a legal service liability action
may be brought and maintained is required."
§ 6-5-570, Ala. Code 1975 (emphasis added). Roberson's claims against
Balch concern the provision of legal advice, and so the claims fall within
the ALSLA's "comprehensive system governing all legal actions against
legal service providers." § 6-5-570. However, Roberson lacked the
element of an attorney-client relationship necessary to assert cognizable
ALSLA claims. Therefore, Roberson's claims against Balch were properly
dismissed by the circuit court.
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IV. Conclusion
Roberson failed to state cognizable ALSLA claims upon which relief
could be granted. Accordingly, the circuit court's judgment dismissing
Roberson's claims against Balch is affirmed.
MOTION
TO
STRIKE
"LETTER
OF
SUPPLEMENTAL
AUTHORITY" GRANTED; AFFIRMED.
Parker, C.J., and Mendheim and Stewart, JJ., and Baschab,* Special
Justice, concur.
Lyons,* Main,* and Welch,* Special Justices, concur in part and
dissent in part.
Bolin, Shaw, Wise, Bryan, Sellers, and Mitchell, JJ., recuse
themselves.
*Retired Associate Justice Champ Lyons, Jr., Retired Associate
Justice James Allen Main, Retired Judge Samuel Henry Welch, and
Retired Judge Pamela Willis Baschab were appointed to serve as Special
Justices in regard to this appeal.
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LYONS, Special Justice (concurring in part and dissenting in part).
I concur to grant the motion to strike the "letter of supplemental
authority" filed by Balch & Bingham, LLP ("Balch"). I also agree with the
main opinion to the extent that it determines that, because David
Roberson was not a client of Balch, the Alabama Legal Services Liability
Act ("the ALSLA"), § 6-5-570 et seq., Ala. Code 1975, is inapplicable to this
proceeding. I respectfully dissent from the affirmance of the trial court's
judgment dismissing Roberson's claims against Balch on a ground not
relied upon by the trial court. Although the main opinion recognizes that
due-process concerns can override the general rule that this Court can
affirm a judgment on any valid legal ground presented by the record, it
expressly holds that that constraint is inapplicable. I disagree. My due-
process concern stems from the main opinion's attempt to distinguish a
case that I believe we must expressly overrule in order to affirm the trial
court's judgment on the alternative ground relied upon in the main
opinion. Balch has not asked us to overrule any precedent. We have
heretofore held such request to be essential. See, e.g., American Bankers
Ins. Co. of Florida v. Tellis, 192 So. 3d 386, 392 n.3 (Ala. 2015) (noting
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that the Court follows " 'controlling precedent' " unless " 'invited to' "
overrule it (citations omitted)). I would reverse the trial court's judgment
and remand the cause to the trial court for further proceedings on the
question whether Roberson has a remedy for common-law fraud outside
the ALSLA. What follows is a discussion that supports my conclusion that
further proceedings below on the issue resolved by the main opinion in
favor of Balch is appropriate. I express no opinion as to what conclusion
should be reached in such further proceedings.
This appeal arises from a judgment granting Balch's motion to
dismiss. In considering whether a complaint is sufficient to withstand a
motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a 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). See also Smith
v. National Sec. Ins. Co., 860 So. 2d 343, 345 (Ala. 2003). " 'The
appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is
whether, when the allegations of the complaint are viewed most strongly
in the pleader's favor, it appears that the pleader could prove any set of
circumstances that would entitle [it] to relief.' " Smith v. National Sec.
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Ins. Co., 860 So. 2d 343, 345 (Ala. 2003) (quoting Nance v. Matthews, 622
So. 2d 297, 299 (Ala. 1993)).
For the purposes of this appeal, the following facts must be taken as
true:
(1) Roberson is not a client of Balch.
(2) Roberson never asked Joel Gilbert, an attorney employed by
Balch, for an opinion on the legality of his conduct.
(3) Roberson asked Gilbert if certain attorneys employed by Balch
had rendered an opinion on the legality of his conduct.
(4) Balch never rendered an opinion on the legality of Roberson's
conduct.
(5) Gilbert lied about the existence of a favorable opinion having
been reached by such attorneys.
(6) Gilbert accepted a check for $5,000 from Roberson's employer,
Drummond Company, Inc., which Roberson approved and which was
payable to Balch, for the purpose of a fund-raising campaign to purchase
"winter coats for kids," and Gilbert, without the knowledge of Roberson,
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had agreed that Oliver Robinson, a member of the Alabama Legislature,
could keep half the proceeds of the check.
A majority of this Court, by affirming the judgment of the trial court
on the alternative ground that Roberson, as a nonclient, has no remedy
against Balch outside the ALSLA, relies upon cases disallowing a remedy
under the ALSLA when the plaintiff had not sought a remedy outside the
ALSLA. See Brackin v. Trimmier Law Firm, 897 So. 2d 207 (2004),
Robinson v. Benton, 842 So. 2d 631 (Ala. 2002), and Shows v. NCNB Nat'l
Bank of North Carolina, 585 So. 2d 880, 882 (Ala. 1991). Of course, here,
Roberson does not pursue a remedy under the ALSLA. In his principal
brief, Roberson argues:
"Although Balch is a 'legal service provider,' the
complaint does not show that Roberson was Balch’s 'client,'
that Balch provided 'legal services' to Roberson, or that
Roberson's claims 'arise from' Balch's legal services. Balch
thus failed to show that Roberson's claims are subject to the
ALSLA. Consequently, Judge Johnson erred in granting
Balch's motion to dismiss."
Roberson's brief, p. 22. In response, Balch argues:
"Roberson's allegation that Balch was somehow not
providing legal advice or legal services is a legal conclusion
51
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masquerading as a factual allegation that the trial court did
not accept as true, and neither should this Court."
Balch's brief, p. 26.
The main opinion then discuses cases in which this Court held that
the plaintiff could proceed outside the ALSLA because the plaintiff was a
nonclient who had not received legal services. See Line v. Ventura, 38
So. 3d 1 (Ala. 2009) (holding that nonclient’s claim against attorney his
mother had hired to manage his conservatorship was not subject to the
ALSLA); Ex parte Daniels, 264 So. 3d 865, 867 (Ala. 2018) (holding that
nonclient's fraud claims against attorney who had misrepresented that " 'a
lawsuit brought on [his] behalf would not be economically feasible' " was
not subject to the ALSLA); Fogarty v. Parker, Poe, Adams & Bernstein,
961 So. 2d 784 (Ala. 2006) (holding that nonclient's fraud claim against
opposing attorney was not subject to the ALSLA); and Cunningham v.
Langston, Frazer, Sweet & Freese, P.A., 727 So. 2d 800 (Ala. 1999)
(holding that attorney's claim against another attorney for breach of a
fee-sharing agreement was not subject to the ALSLA).
52
1200002
Did Gilbert's conduct as alleged in the complaint constitute delivery
of legal services by Gilbert on behalf of Balch to Roberson, within the
meaning of the ALSLA? If so, does Roberson's status as a nonclient deny
him any right of action for fraud outside the ALSLA?
Section 6-5-572(1), Ala. Code 1975, defines a "legal service liability
action" as an action alleging that some injury or damage was caused in
whole or in part by the legal-service provider's "violation of the standard
of care applicable to a legal service provider." Section 6-5-572(3)a. states
that the standard of care applicable to a legal-service provider is "that
level of such reasonable care, skill, and diligence as other similarly
situated legal service providers in the same general line of practice in the
same general locality ordinarily have and exercise in a like case." Does
practice in "a like case" apply to an attorney's dealings with persons other
than clients? To answer this question in the affirmative, do we
necessarily hold that an attorney who has dealings with a nonclient is
practicing law and therefore is rendering legal services?
53
1200002
This Court in Ex parte Daniels, supra, discussed the rendition of
legal services as a prerequisite to the applicability of the ALSLA. The
Court, in an opinion authored by Justice Main, held:
"Specifically, Daniels contends that the circuit court
incorrectly applied § 6-5-579(a)[, Ala. Code 1975,] to his claims
against the Morris defendants because (1) the Morris
defendants did not render legal services to him, and, thus, he
says, the ALSLA is not applicable, and (2) his claims against
Johnson are not an 'underlying action' as defined by the
ALSLA. We agree.
"In Cunningham v. Langston, Frazer, Sweet & Freese,
P.A., 727 So. 2d 800 (Ala. 1999), this Court reviewed the
language and purpose of the ALSLA and concluded that 'the
ALSLA does not apply to an action filed against a "legal
service provider" by someone whose claim does not arise out of
the receipt of legal services.' 727 So. 2d at 804. Stated
another way, 'the ALSLA applies only to lawsuits based on the
relationship between "legal service providers" and those who
have received legal services.' 727 So. 2d at 805. See also
Brackin v. Trimmier Law Firm, 897 So. 2d 207, 229 (Ala. 2004)
('An attorney-client relationship is an essential element of a
claim under the [ALSLA].'); Robinson v. Benton, 842 So. 2d
631 (Ala. 2002). Here, it is undisputed that the Morris
defendants did not provide legal services to Daniels.
Accordingly, his claims against the Morris defendants are not
governed by the ALSLA."
264 So. 3d at 869 (emphasis added). I am not prepared to say at this point
that the facts alleged in Roberson's complaint undisputedly establish the
54
1200002
rendition of legal services. Absent such a determination, the exclusivity
of the ALSLA as a remedy is not triggered.
The main opinion, in note 8, recognizes that this Court's decision in
Kinney v. Williams, 886 So. 2d 753, 755 (Ala. 2003), is problematic. In
Kinney an attorney was sued by his clients and the next-door neighbors
of the clients based on his misrepresentation that a road was private.
The Court in Kinney stated:
"The Adairs [the nonclients] do not base their standing
on any client-attorney relationship with Williams [the
attorney]. Rather, the Adairs rely on Potter v. First Real
Estate Co., 844 So. 2d 540 (Ala. 2002), which bases a plaintiff's
standing to sue for fraud on the defendant's knowledge of the
plaintiff's interest in the matter misrepresented or concealed
and on the plaintiff's exposure to and reliance on the
fraudulent conduct."
886 So. 2d at 775.
After discussing Potter v. First Real Estate Co., 844 So. 2d 540 (Ala.
2002), including its reference to a contractual relationship not being
necessary to maintain an action for fraud, the Court in Kinney held:
"The Adairs in the case before us have the same kind of
standing. Although Williams was not their attorney, he knew
their interest in the property and in the private status of the
road, and he directed his misrepresentations to the Adairs as
55
1200002
well as to his clients the Kinneys. Therefore, the trial court
erred in entering a summary judgment in favor of Williams on
the Adairs' fraud claims."
Id. at 756.
This Court in Kinney allowed the nonclient's fraud claims to proceed.
Inherent in that conclusion is the determination that the attorney's
description of the status of the road was not the rendition of legal services
to a client. In its discussion of Kinney, the main opinion states: "There
is no indication in the Kinney opinion that any argument was presented
that the Adairs' fraud claims should have been subsumed by the ALSLA."
___ So. 3d at ___ n.8 (emphasis in original).
The exclusivity of the ALSLA as a remedy was argued by Williams,
the attorney in Kinney, at pages 27-29 of his appellate brief:
"In their Appellants' Brief at pages 33-35, Plaintiffs urge
this Court to abandon long standing precedent with regard to
the requirement that in order for a plaintiff to have standing
to bring a cause of action against an attorney for legal
malpractice, he/she must have been represented by the
attorney at the time of the alleged breach of the standard of
care. In support of this request Plaintiffs cite and discuss
Potter v. First Real Estate Company, Inc., [844 So. 2d 540]
(Ala. Sept. 6, 2002). However, to the extent Potter can be
considered precedential authority prior to its publication, it is
nevertheless, clearly materially distinguishable from the
56
1200002
present action and cannot provide persuasive authority for
overturning the well-established precedent noted by the
Plaintiffs or for undermining the clear authority of the ALSLA.
"Most significantly, Potter did not involve an action
against an attorney. Therefore, the ALSLA was not applicable
to that action. However, Plaintiffs' claims in this action are
clearly brought pursuant to the ALSLA under which claims
against attorneys are limited to those arising from the receipt
of legal services. As herein discussed, Earl Adair testified that
he had not sought legal services from Williams and had no
contract of representation with him, although he 'assumed'
Williams was representing him. This is simply not a
reasonable assumption under the circumstances.
"In Robinson v. Benton, [842 So. 2d 631] (Ala. May 24,
2002), this Court recently declined to change Alabama's rule
of law that bars an action for legal malpractice against a
lawyer by a plaintiff for whom the lawyer has not undertaken
a duty, either by contract or gratuitously. In Robinson, as
here, the plaintiffs argued for a change in this long-standing
principal so as to allow alleged third party beneficiaries to
bring actions against attorneys for malpractice. However, the
Court noted that such a change as advocated in Robinson
implies the result that 'attorneys would be subject to almost
unlimited liability.' Robinson, [842 So. 2d at 637], quoting
Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996). Therefore,
the Court declined to recognize such an abrogation of the
ALSLA or to adopt such a change in Alabama law.
"The same policy concerns and considerations, as noted
in Robinson, are clearly applicable in this action. Plaintiffs
have not shown any authority or sufficient reason for the
abrogation of the rule of privity established under the ALSLA
and authorities discussed above. Therefore, because Williams
57
1200002
did not represent the Adairs at any time relevant and did not
provide legal services for them, they lack standing to bring this
legal services liability action against him and the trial court
did not err in so ruling."11
(Emphasis added.)
As is abundantly clear from the foregoing excerpt from the attorney's
brief, the Court in Kinney was specifically asked to treat Potter as
distinguishable. As previously noted, the Court in Kinney applied Potter,
notwithstanding the attorney's argument that it was distinguishable.
The main opinion states:
"Moreover, Potter, the case on which the Kinney Court relied,
was a fraud action brought by home purchasers against a real-
estate agent and his agency, and so it did not involve claims
against a legal-service provider for the receipt of legal services.
We therefore find Kinney distinguishable from the cases
discussed in this opinion, all of which expressly applied the
ALSLA."
___ So. 3d at ___ n.8 (emphasis added). In essence, the main opinion
distinguishes Kinney because it applied a precedent, Potter, which the
11"[T]his Court may take judicial notice of its own records in another
proceeding when a party refers to the proceeding." Kennedy v. Boles
Invs., Inc., 53 So. 3d 60, 66 n.2 (Ala. 2010).
58
1200002
main opinion deems inapplicable, an argument that was rejected in
Kinney.
The attorney's brief in Kinney also cited Robinson v. Benton, 842
So. 2d 631 (Ala. 2002), in which this Court, in an opinion authored by
Justice Harwood, recognized the exclusivity of the ALSLA as a remedy
when the plaintiff claimed to be a third-party beneficiary of an attorney-
client relationship. I concurred in Kinney, as did Justice Harwood. I am
not prepared to say we simply overlooked the exclusivity issue in Kinney.
It is more likely we deemed the nonclient plaintiffs' theory of recovery for
fraud in Kinney sufficiently different from the plaintiff's claimed status
as a third-party beneficiary of an attorney-client relationship in Robinson.
I therefore do not see how we can affirm the judgment in this proceeding
on the basis of distinguishing Kinney, a case which I conclude would have
to be overruled, rather than distinguished. As previously noted, we have
not been asked to do so.
The main opinion emasculates the rule that this Court does not
overrule precedent unless asked to do so. We now can simply "distinguish"
an earlier case when this Court is deemed to have applied a precedent
59
1200002
that the prior Court should have found to be distinguishable. Such
activity in a prior case used to be treated as error.
Article I, § 13, Ala. Const. 1901 (Off. Recomp.), provides that the
courts shall always be open and that for every wrong there shall be a
remedy. In the wake of the main opinion, an individual without a law
license can deceive another individual with whom he or she has no
contractual relationship and be liable for damages. However, an
individual who happens to have a law license can deceive another
individual with whom he or she has no contractual relationship and be
immune from liability for damages because of the exclusivity of the
ALSLA as a remedy. Left unaddressed is the question whether such
construction of the ALSLA conflicts with the rule that, to the extent
possible without doing violence to the terms of a statute, this Court must
construe the statute in a manner consistent with the Alabama
Constitution. Magee v. Boyd, 175 So. 3d 79, 107 (Ala. 2015). If it cannot
be so construed, the statute must be struck down. Had the issue been ripe
for discussion in the parties' principal appellate briefs, one might assume
60
1200002
that Roberson would have challenged the conclusion in the main opinion
on constitutional grounds.
Although I agree that Roberson's status as a nonclient renders the
ALSLA inapplicable to his claims against Balch, I respectfully dissent
from the main opinion insofar as it affirms the trial court's judgment of
dismissal. I consider the better course to be, consistent with the respect
owed the due-process rights of Roberson, to reverse the judgment and to
remand the cause for further proceedings, noting the exclusivity issue yet
to be resolved.
Main and Welch, Special Justices, concur.
61 | July 23, 2021 |
d851d3c0-bae0-44ca-bbc5-f91955a2f276 | Ex parte Michael Joray Norton. | N/A | 1200521 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200521
Ex parte Michael Joray Norton. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Michael Joray Norton v.
State of Alabama) (Madison Circuit Court: CC-16-4976; Criminal Appeals :
CR-18-0174).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
63c9e1ec-29af-4ad2-9efd-48ec5cd81a8b | Ex parte Dillon Michael Lee. | N/A | 1200479 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
September 10, 2021
1200479
Ex parte Dillon Michael Lee. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Dillon Michael Lee v. State
of Alabama) (Tuscaloosa Circuit Court: CC-17-2216; Criminal Appeals :
CR-19-0416).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
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 |
ec0278c2-4d09-42c3-acb8-f3ef3d62a28f | Ex parte Clyde Baggett. | N/A | 1200236 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200236
Ex parte Clyde Baggett. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Clyde Baggett v. State of
Alabama) (Conecuh Circuit Court: CC-14-79; Criminal Appeals :
CR-18-1097).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
29322e98-c29f-4da0-9f1c-2325f99a6a76 | Ex parte Brock Allen Gooch. | N/A | 1200232 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200232
Ex parte Brock Allen Gooch. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Brock Allen Gooch v. State of
Alabama) (Colbert Circuit Court: CC-18-588; CC-18-590; Criminal Appeals :
CR-19-0610).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
06ea1887-e569-4f50-91a7-7d66ef6bf611 | Ex parte Joshua Watson. | N/A | 1200712 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 13, 2021
1200712
Ex parte Joshua Watson. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Joshua Watson v. State of
Alabama) (Jefferson Circuit Court: CC-16-3548; Criminal Appeals :
CR-19-1073).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
August 13, 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 13th day of August, 2021.
Clerk, Supreme Court of Alabama | August 13, 2021 |
a82492f9-d1c6-4223-bcf4-4b22bd823b36 | Ex parte Gena Rosser. | N/A | 1200280 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200280
Ex parte Gena Rosser. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Gena Rosser v. Federal National
Mortgage Association and Bank of America, N.A.) (Jefferson Circuit Court:
CV-16-901906; Civil Appeals :
2180917).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
9bee487a-052d-4233-b1e4-2ce08018262c | Ex parte E.L. | N/A | 1200512 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200512
Ex parte E.L. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: E.L. v. Jefferson County Department of Human
Resources) (Jefferson Juvenile Court: JU-14-2012.03; Civil Appeals :
2190930).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
bf43726a-e8cc-4b37-87ed-5cfe0f726d3c | Ex parte Colby Dewayne Daniel Lewis. | N/A | 1200624 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200624
Ex parte Colby Dewayne Daniel Lewis. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Colby
Dewayne Daniel Lewis v. State of Alabama) (Tuscaloosa Circuit Court:
CC-18-613; Criminal Appeals :
CR-19-0693).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
a3fc6462-dee5-4838-ab0b-559a372adfbe | Ex parte Tyrone Harris. | N/A | 1200419 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200419
Ex parte Tyrone Harris. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Tyrone Harris v. State of
Alabama) (Morgan Circuit Court: CC-93-150.00; CC-93-150.63; Criminal
Appeals :
CR-19-0982).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
4584c41e-386a-4ec9-a119-c686633b29ec | Ex parte W.C.D. | N/A | 1200122 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200122
Ex parte W.C.D. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CRIMINAL APPEALS (In re: W.C.D. v. State of Alabama) (Montgomery
Circuit Court: CC-17-1461; Criminal Appeals :
CR-19-0321).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
bcf5e442-cc1d-4b3f-ba61-c56c3418ac3a | Ex parte Shuantell Gerrell Fountain. | N/A | 1200475 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200475
Ex parte Shuantell Gerrell Fountain. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Shuantell
Gerrell Fountain v. State of Alabama) (Mobile Circuit Court: CC-19-796;
Criminal Appeals :
CR-19-1136).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
bb99bf3f-4fbe-4555-a1df-ffc6afbbb6c8 | Ex parte Taylor Sebastion Stevens. | N/A | 1200592 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200592
Ex parte Taylor Sebastion Stevens. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Taylor
Sebastion Stevens v. State of Alabama) (Mobile Circuit Court:
CC-18-4861.70; Criminal Appeals :
CR-20-0207).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
d3c21c8a-8109-44ed-a9c1-2bce19bfc04d | Ex parte Arthur Brennan Malloy. | N/A | 1200633 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200633
Ex parte Arthur Brennan Malloy. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v.
Arthur Brennan Malloy) (Montgomery Circuit Court: CC-81-1629; Criminal
Appeals :
CR-20-0384).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
9308a489-48d8-4a64-821c-2ed4fb7b2e83 | Ex parte Calvin Massey. | N/A | 1200450 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200450
Ex parte Calvin Massey. PETITION FOR W
RIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Calvin Massey v. Alabama Board
of Pardons and Paroles and Alabama Department of Corrections)
(Montgomery Circuit Court: CV-20-185; Criminal Appeals :
CR-19-1153).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
60fd93aa-92ef-4f72-91e8-a9b1f785c8df | Ex parte Sylvester Slay. | N/A | 1200444 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200444
Ex parte Sylvester Slay. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Sylvester Slay v. State of
Alabama) (Greene Circuit Court: CC-13-89.60; Criminal Appeals :
CR-19-0728).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
421125b1-26e2-4bfd-a808-8b4578161b40 | Ex parte Jerold Jerone Lawson. | N/A | 1200617 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200617
Ex parte Jerold Jerone Lawson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jerold Jerone Lawson v.
State of Alabama) (Montgomery Circuit Court: CC-19-844; Criminal Appeals
:
CR-19-0471).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
9af6cc54-6869-4c37-b9b4-0c2e15961cc4 | Ex parte Brent Cody Brown. | N/A | 1200644 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200644
Ex parte Brent Cody Brown. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Brent Cody Brown v. State of
Alabama) (Cullman Circuit Court: CC-05-400.61; Criminal Appeals :
CR-19-0932).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
393d8ab4-3d5c-4bb8-aa9a-7d496c8f70d6 | Fletcher v. Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital | N/A | 1190706 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190706
____________________
Yshekia Vernice Fletcher
v.
Health Care Authority of the City of Huntsville d/b/a Huntsville
Hospital
Appeal from Madison Circuit Court
(CV-18-901686)
STEWART, Justice.
Yshekia Vernice Fletcher appeals from a summary judgment entered
by the Madison Circuit Court ("the trial court") in favor of the Health Care
Authority of the City of Huntsville d/b/a Huntsville Hospital ("the
1190706
Authority") on Fletcher's claims asserted in her medical-malpractice
action. For the reasons discussed below, we affirm the judgment.
Facts and Procedural History
The facts are largely undisputed. On September 7, 2016, Fletcher
was admitted to Huntsville Hospital ("the hospital") to undergo a
laparoscopic tubal-ligation surgery. Before the surgery, Fletcher's doctor,
Dr. Leon Lewis, explained to Fletcher that he might have issues
performing the surgery because of her obesity. Dr. Lewis testified to the
following:
"Once in the operating room, Ms. Fletcher was positioned
on the operating table by nursing staff. During the procedure,
[Fletcher] was placed in a Trendelenburg position which refers
to the position that lowers the head of the patient by
manipulating the angle of the operating table. While in
Trendelenburg, Ms. Fletcher began to slip downward off the
operating table. Nursing staff caught Ms. Fletcher’s body and
gently placed her on the operating room floor, where I removed
the trocars and closed the incisions. After I completed the
procedure, Ms. Fletcher underwent a CT scan of her head,
neck, and hip, which were normal. She was admitted overnight
and discharged the following day."
Fletcher complained of hip pain after the incident. She was evaluated by
an orthopedic surgeon, who noted that she had a contusion and that she
2
1190706
had had right-hip surgery as a child. Fletcher was admitted to the hospital
overnight and discharged the following day with a walker.
Fletcher commenced an action against the Authority1 under the
Alabama Medical Liability Act of 1987 ("the 1987 AMLA"), § 6-5-540 et
seq., Ala. Code 1975.2 The Authority filed a motion for a summary
judgment, to which it attached the affidavit and deposition of testimony
of Robin Martin, the "circulator nurse" for the surgery, and Melissa
Wendell, the certified registered nurse anesthetist ("CRNA") for the
surgery. The Authority argued that Fletcher had failed to present expert
medical testimony proving the standard of care, a breach of that standard,
or proximate causation.
1Fletcher also named as defendants Dr. Lewis; Michael W. Hoger,
the anesthesiologist for her surgery; Comprehensive Anesthesia Services,
P.C.; and Melissa Wendell, the certified registered nurse anesthetist for
her surgery, and she asserted causes of actions against fictitiously named
defendants. The trial court entered separate summary judgments in favor
of each of the defendants, but Fletcher appeals only the summary
judgment entered in favor of the Authority.
2The 1987 AMLA is "intended to supplement" the original Alabama
Medical Liability Act, which was enacted in 1975 and is codified at §
6-5-480 et seq., Ala. Code 1975. § 6-5-541, Ala. Code 1975.
3
1190706
Fletcher filed a response in opposition to the Authority's summary-
judgment motion to which she attached, among other evidence, Dr.
Lewis's operative notes and excerpts from the deposition testimony of
Martin and Wendell. In her response, Fletcher argued that she was not
required to present expert medical testimony because, she said, the
incident was foreseeable, the equipment was under control of hospital
staff, and the equipment was misused.
The following is a summary of the evidence submitted in support of
and in opposition to the summary-judgment. Martin testified, among
other things, that she had been employed at the hospital as a circulator
nurse since 1998 and that she was the circulator nurse for Fletcher's
surgery. Martin testified that, as a circulator nurse, she prepares and
positions the patient for surgery and monitors the safety of the patient but
is not involved in the surgery. Martin acknowledged that each surgeon
determines the specific patient position and equipment needed for the
procedure. Martin testified that a document called a "pick ticket"
accompanies each surgery and contains a plethora of information,
4
1190706
including how the surgeon wants the patient to be positioned and what
equipment should be used.
Martin testified as follows regarding the incident. Fletcher was
brought to the operating room while conscious, and she moved, with
assistance, to the operating table. That table was padded and covered with
a sheet. An additional sheet, called a draw sheet, was placed under
Fletcher to help the nursing staff move her after she was under
anesthesia. Wendell, the CRNA, administered the anesthesia medications.
After Fletcher became unconscious, the nursing staff slid Fletcher to the
foot of the operating table, and her legs were placed in stirrups so that she
was in a lithotomy position. The stirrups are actually boots that have
Velcro straps that go over the foot and the lower leg and attach to the
boot. Fletcher's arms were secured to arm boards with Velcro straps.
According to Martin, Dr. Lewis was having difficulty visualizing organs
during the surgery, and, as the circulator nurse, she left the operating
room three or four times to obtain additional equipment requested by Dr.
Lewis. Martin was not in the operating room when Fletcher began her
descent to the floor. When Martin reentered the room, Fletcher had
5
1190706
already begun sliding down the operating table, and Martin was asked to
summon additional staff to assist.
Martin testified that the Trendelenburg position is often used in
laparoscopic tubal-ligation surgeries and that there are different degrees
of tilt that are used within Trendelenburg positioning. According to
Martin, the CRNA is responsible for increasing and decreasing the angle
according to the surgeon's preference. In addition, Martin said, the
surgeon often has to lean against the patient's body during the surgery.
Martin acknowledged that if a patient is in a "deep" Trendelenburg
position, the staff watches to make sure the patient does not slide. Martin
testified that patients of Fletcher's size often undergo surgery and
experience no difficulties. Martin testified that she was not aware of any
other situation in which a patient had slid down an operating table.
Wendell testified as follows in her affidavit:
"On September 7,2016, I provided services as a CRNA on
patient Yshekia Fletcher’s laparoscopic tubal ligation at
Huntsville Hospital. Dr. Leon Lewis was the surgeon who
performed this surgery. Prior to the beginning of the
procedure, the nursing staff placed Ms. Fletcher in the
lithotomy position pursuant to Dr. Lewis's preference.
[Fletcher] was secured to the operating room table with leg
6
1190706
stirrups that contained Velcro straps. After the procedure
began, Dr. Lewis called for the table to be placed in
Trendelenburg position, and I utilized the operating room
table's remote control to place [Fletcher] in Trendelenburg. As
surgery
progressed,
Dr.
Lewis
called
for
steeper
Trendelenburg. When [Fletcher] was in steep Trendelenburg
with her head a few inches off the floor, her head began to
slide down the table. Nursing staff and myself reacted to
stabilize [Fletcher's] head while I made sure [Fletcher]
remained intubated. Ms. Fletcher was then gently placed on
the floor by the staff in the room and Dr. Lewis removed
trocars from the surgical site and closed the incision."
Wendell testified in her deposition that Fletcher's head was approximately
four inches from the floor while Fletcher was positioned in deep, or steep,
Trendelenburg position. Wendell testified that Fletcher's legs came out of
the stirrups and that she "assume[d] the Velcro straps gave way" because
Fletcher's legs were out of the stirrups, but Wendell did not see the Velcro
straps or how far Fletcher's legs were out of the stirrups. Wendell testified
that she had never seen a patient come out of the stirrups.
On April 25, 2020, the trial court entered a summary judgment in
favor of the Authority, apparently determining that Fletcher had failed to
present the requisite evidence from a qualified medical expert, see Lyons
v. Walker Regional Medical Center, 791 So. 2d 937, 942 (Ala. 2000), and
7
1190706
that her case did not fall within the limited "common-knowledge"
exception to that requirement. See Jones v. Bradford, 623 So. 2d 1112,
1114-15 (Ala. 1993). Fletcher filed a notice of appeal on June 4, 2020.
Standard of Review
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is no
genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
Discussion
8
1190706
Fletcher brought her action under the 1987 AMLA. Section
6-5-548(a), Ala. Code 1975, a part of the 1987 AMLA, requires a plaintiff
in a medical-malpractice case to prove "by substantial evidence that the
health care provider failed to exercise such reasonable care, skill, and
diligence as other similarly situated health care providers in the same
general line of practice ordinarily have and exercise in a like case." This
Court has explained that, in satisfying the substantial-evidence burden,
a plaintiff
"ordinarily must present expert testimony from a 'similarly
situated health-care provider' as to (1) 'the appropriate
standard of care,' (2) a 'deviation from that standard [of care],'
and (3) 'a proximate causal connection between the
[defendant's] act or omission constituting the breach and the
injury sustained by the plaintiff.' Pruitt v. Zeiger, 590 So. 2d
236, 238 (Ala. 1991) (quoting Bradford v. McGee, 534 So. 2d
1076, 1079 (Ala. 1988)). The reason for the rule that proximate
causation must be established through expert testimony is
that the issue of causation in a medical-malpractice case is
ordinarily 'beyond "the ken of the average layman." ' Golden v.
Stein, 670 So. 2d 904, 907 (Ala. 1995), quoting Charles W.
Gamble, McElroy's Alabama Evidence, § 127.01(5)(c), p. 333
(4th ed. 1991). The plaintiff must prove through expert
testimony 'that the alleged negligence "probably caused the
injury." ' McAfee v. Baptist Med. Ctr., 641 So. 2d 265, 267 (Ala.
1994)."
9
1190706
Lyons, 791 So. 2d at 942. "An exception to [the expert-medical-testimony]
rule exists where the lack of care is so apparent as to be within the ken of
the average layman." Jones, 623 So. 2d at 1114-15.
Fletcher's sole argument on appeal is that the trial court erred in
determining that she was required to present expert medical testimony to
demonstrate a violation of the standard of care to support her action
against the Authority. Fletcher relies on Ex parte HealthSouth Corp., 851
So. 2d 33 (Ala. 2002),3 in arguing that her situation falls within the
3Fletcher also relies on cases from other states in arguing that those
states have codified the application of the doctrine of res ipsa loquitor in
medical negligence cases. See Sisson ex rel. Allen v. Elkins, 801 P.2d 722
(Okla. 1990); Thomas v. New York Univ. Med. Ctr., 283 A.D.2d 316, 317,
725 N.Y.S.2d 35, 36 (2001). Fletcher does not explain why this Court
should adopt the reasoning from those cases, nor does she explain why the
law as it stands in Alabama is insufficient. Instead, Fletcher argues that
her situation falls under an exception already recognized in Alabama law.
In addition, this Court has explained that
"whether a plaintiff in a malpractice suit be relieved of
presenting expert medical testimony after producing evidence
demonstrating lack of due care apparent as a matter of
common knowledge, the result is the same whether it be
reached by application of res ipsa loquitur, or by casting the
burden upon the physician of going forward with his defense.
We see no need to falter over phraseology."
Parrish v. Spink, 284 Ala. 263, 267, 224 So. 2d 621, 624 (1969).
10
1190706
common-knowledge exception. In HealthSouth, a patient who had
returned to a room following back surgery and was under orders to not get
out of the bed called nursing staff for assistance but was ignored for 30
minutes to an hour. The patient got out of bed to use the restroom and fell
and broke her hip. This Court held that the patient was not required to
present expert medical testimony. In so holding, this Court reformulated
the exceptions to the expert-medical-testimony rule
"to recognize first, a class of cases ' " where want of skill or lack
of care is so apparent ... as to be understood by a layman, and
requires only common knowledge and experience to
understand it," ' [Tuscaloosa Orthopedic Appliance Co. v.]
Wyatt, 460 So. 2d [156] at 161 [(Ala. 1984)](quoting Dimoff v.
Maitre, 432 So. 2d 1225, 1226-27 (Ala. 1983)), such as when a
sponge is left in, where, for example, the wrong leg is operated
on, or, as here, where a call for assistance is completely
ignored for an unreasonable period of time. A second exception
to the rule requiring expert testimony applies when a plaintiff
relies on ' " ' a recognized standard or authoritative medical
text or treatise,' " ' Anderson [v. Alabama Reference Lab'ys,
778 So. 2d [806] at 811 [(Ala. 2000)], or is himself or herself a
qualified medical expert."
Id. at 39. The HealthSouth reformulation was later clarified in Collins v.
Herring Chiropractic Center, LLC, 237 So. 3d 867, 871 (Ala. 2017):
"The Court's reformulation of categories in HealthSouth
essentially clarifies the exceptions to the general rule
11
1190706
requiring expert testimony in medical-malpractice actions by
emphasizing in the first exception as reformulated that there
are situations where the lack of skill is so apparent as to be
understood by a layperson, thereby requiring only common
knowledge and experience to understand it, and that further
the list of examples of such situations was not exhaustive but
merely set out examples of possible situations. In the second
exception as reformulated, the Court simply combines the use
of an authoritative treatise and the plaintiff's own testimony
as a medical expert as the second exception to the general
rule."
The Authority argues that the standard of care for restraining a
surgical patient who may be placed in the deep Trendelenburg position
during the surgery is not a matter of common knowledge and that this is
not a case in which a lack of skill or care is so apparent that expert
testimony is unnecessary. The Authority relies, in part, on Tuck v. Health
Care Authority of Huntsville, 851 So. 2d 498, 506 (Ala. 2002), an opinion
that was released the same day as HealthSouth and in which this Court
determined that the exceptions outlined in HealthSouth did not apply. In
Tuck, we explained that whether nurses breached the standard of care
regarding the use of belt restraints to keep a patient in a hospital bed was
not an issue within the knowledge of a layperson.
12
1190706
Fletcher did not present evidence regarding the standard of care
required for restraining patients with the use of Velcro straps, or
otherwise, in the particular circumstances of this case. Moreover, Fletcher
did not present any evidence, let alone substantial evidence, indicating
that the standard of care had been breached or that any such breach had
proximately caused her injuries. See Lyons, 791 So. 2d at 942.
Fletcher asserts that the general public has knowledge regarding the
use of Velcro straps. Fletcher, however, did not present any evidence
indicating that the straps were not properly fastened. Fletcher merely
argues that "[t]he evidence strongly suggests the stirrups could not have
been adequately strapped" and that "the only logical and physically
sensible explanation for Ms. Fletcher's movement on the operating table
in such an unexpected fashion is that the boot stirrups were not properly
strapped." Fletcher's brief at pp. 36 & 38. In this case, there are numerous
possible explanations for how the incident occurred, and, therefore, this
case is precisely the type of case in which expert medical testimony from
a similarly situated health-care provider is necessary to establish the
applicable standard of care, a deviation from that standard, and
13
1190706
proximate causation linking the defendant's actions to the plaintiff's
injury. Lyons, 791 So. 2d at 942. Accordingly, the trial court correctly
entered a summary judgment in favor of the Authority based on Fletcher's
failure to present expert medical testimony.
Conclusion
The trial court's summary judgment is affirmed.
AFFIRMED.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur.
14 | June 30, 2021 |
f59dc9e5-fbdb-45f6-8021-35516fc45aa9 | Ex parte City of Birmingham. | N/A | 1190529 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1190529
Ex parte City of Birmingham. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:
Shirley Catlin v. City of Birmingham) (Jefferson Circuit Court: CV-18-904813).
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 25th day of June, 2021.
/ra | June 25, 2021 |
db568078-1603-46b2-a84b-400bf97c547c | Ex parte A.D. | N/A | 1200522 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1200522
Ex parte A.D. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.D. v. Dallas County Department of Human
Resources) (Dallas Juvenile Court: JU-18-41.02; Civil Appeals :
2190748).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 25, 2021:
Writ Denied. No Opinion. Stewart, J. -
Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, 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, 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 2 5 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 25, 2021 |
40adfbf5-df6d-4d29-ba64-aff435820cea | Ex parte Southern Pioneer Property & Casualty Insurance Company. | N/A | 1200365 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1200365
Ex parte Southern Pioneer Property & Casualty Insurance Company. PETITION
FOR WRIT OF MANDAMUS: CIVIL (In re: Mary Lora Engle v. Southern Pioneer
Property & Casualty Insurance Co., Jeremy Michael Engle) (Walker Circuit Court:
CV-18-900361).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 25th day of June, 2021.
/ra | June 25, 2021 |
03e7fc65-c346-448f-9dfd-d9cf0825f04c | Brett/Robinson Gulf Corp. v. Phoenix on the Bay II Owners Association, Inc. et al. | N/A | 1180945 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1180945
_________________________
Brett/Robinson Gulf Corporation; Claudette Brett, as 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)
1180945
PER CURIAM.
Brett/Robinson Gulf Corporation ("Brett/Robinson"); 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. ("Brett Real Estate") (collectively referred to
as "the developer parties"), appeal from the Baldwin Circuit Court's
judgment in favor of Phoenix on the Bay II Owners Association, Inc. ("the
Association"), and Pamela A. Montgomery.
Facts
The following facts from the stipulation of facts entered into by the
parties will be helpful to an understanding of this case:
"1. Phoenix on the Bay II ('POB II') ... is a condominium
project
created
pursuant
to
the
Alabama
Uniform
Condominium Act of 1991 (the 'Act'), situated south of Canal
Road and adjacent to Terry Cove in Orange Beach consisting
of a free standing house and one eight-story building with an
attached parking garage, marina, and other amenities common
in a coastal condominium.
"2. Declarant, as that term is defined in the Act2, of POB
II is three individuals: William T. 'Tommy' Robinson, Jr.,
Thomas E. 'Gene' Brett, and Tillis M. Brett (collectively
hereafter referred to as the 'Developer').
2
1180945
"3. William T. 'Tommy' Robinson, Jr., Thomas E. 'Gene'
Brett, and Tillis M. Brett were at all times relevant to these
proceedings one-third shareholders in Brett Real Estate,
Robinson Development Company, Inc. ('Brett Real Estate') and
Bret/Robinson Gulf Corporation ('Bret/Robinson').
"4. Brett Real Estate and Brett/Robinson are each
Affiliates of the Developer as those terms are defined in the
Act.
"5. Through Brett Real Estate, Developer developed and
sold Units in POB II pre and post construction. Brett Real
Estate agents are not employees of Brett/Robinson.
"6. Brett/Robinson provided condominium management
services to the Association from the inception of the
condominium until termination in 2015.
"7. There are four areas of POB II in dispute in this case:
(a) that portion of the first floor reception/lobby area
encompassing two offices and an open-air counter claimed by
Developer to be a commercial Unit 'Type Check-in'; (2) that
portion of the first floor reception/lobby encompassing a glass
enclosed, open-air cubicle claimed by Developer to be a
commercial Unit 'Type Sales Office'; (3) that portion of the first
floor of the parking deck encompassing two handicapped
parking spaces claimed by Developer to be a commercial Unit
'Type Housekeeping'; and (4) an enclosed area under the first
floor foundation of the building claimed by Developer to be a
commercial Unit 'Type Maintenance.' Developer contends that
the four areas referenced in this Paragraph 7 are commercial
condominium units created pursuant to the Act. The
Association and Montgomery contend that the four disputed
areas were not lawfully created Units and that the same
constitute common areas of the condominium.
3
1180945
"8. The initial declaration of condominium of POB II is
styled, 'Declaration of Condominium of Phoenix on the Bay II,
A Condominium Phase One' (the 'First Declaration'), and was
recorded on July 5, 20013 at Instrument No. 604761.
"9. The First Declaration created only one condominium
Unit -- the single family home which was already located on
the site.
"10. All remaining Units and common amenities were to
be created in a second phase of the project.
"11. On November 11, 2003, Developer, through Brett
Real Estate, applied for a building permit to construct the
second phase of POB II as 104 Units.
"12. Developer and Brett/Robinson maintain that from
inception of the project, Developer intended to create
'commercial Units' within the Condominium Property for its
Affiliate Brett/Robinson to operate its condominium rental
management business in perpetuity.
"13. Sales efforts were initiated on POB II, Phase Two,
and the Offering Statement for Phase Two was executed by the
developer on November 26, 2003 (the 'Offering Statement').
The documents attached to the Offering Statement and
provided to prospective purchasers were:
"a. First Declaration;
"b. Draft Phasing Amendment One to Phoenix on the Bay
II, Phase Two (the 'Proposed Second Declaration'), together
with the proposed plans and exhibits thereto;
"c. Proposed Articles, By-Laws, Rules and Regulations of
4
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the POB II Owners' Association; and
"d. Proposed Articles of POB II Boat Slip Owners'
Association.
"14. On December 5, 2003, the City of Orange Beach
issued zoning approval for the development of the second phase
of POB II (hereafter the 'Condominium') based upon plans
submitted by Developer depicting 104 Units.
"15. On January 13, 2004, The City of Orange Beach
issued a building permit for the construction of the
Condominium. Construction drawings stored on the property
state that Condominium is a 104-unit condominium
development.
"16. The Proposed Second Declaration provided at:
"a. Section 5.01 that the Condominium shall consist of
104 residential Units.
"b. Section 5.04 that '... Developer, its successors and
assigns, reserves a perpetual nonexclusive easement for access,
ingress and egress over and through all access routes, parking
areas, and other common areas for its guests, licensees, lessees,
customers and employees for the purpose of real estate sales or
any other business operated by the Developer on such property,
including all areas reserved by the Developer. Further, the
Developer, its successors and assigns, retains the exclusive
right to use and control the cheek-in area, sales office,
housekeeping, custodial areas, workshops, storage areas, as
are indicated on the plans.'
"c. Section 6.03 that the Condominium common elements
shall include all parts of the Condominium Property not
5
1180945
located within the perimeter boundaries of the Units, as
described on the plans, which included, but were not limited to,
lobby and reception area, all utility and mechanical equipment,
parking area, buildings and spaces not used or reserved to the
exclusive use of certain Units, and walls, roofs, floors, and
ceilings not located within the Units.
"d. Section 15.01 that POB II shall be used only for single
family residences and that each Unit shall be occupied only by
a single family and its guests as a residence and for no other
purpose.
"e. Section 7.01, that the common elements are owned by
the Unit owners and that common expenses shall be paid by
Unit owners as their interests appear on Exhibits C and C-1
which are incorporated into the declaration by reference.
"f. Exhibit B, the form of Certificate of Completion and a
schedule of the seven residential Unit types and layout for
each.
"g. Exhibit C setting out the fractional interest ownership
of the common elements amongst the seven residential Unit
types.
"h. Exhibit C-1 setting forth the formula for dues and
assessments to be allocated amongst the seven residential Unit
types.
"17. The plans attached to the Proposed Second
Declaration and the permitted construction drawings do not:
"a. Depict any areas as being 'reserved' for the exclusive
use of the Developer.
6
1180945
"b. Contain the words 'Check-in,' 'Maintenance,'
'Housekeeping,' and 'Sales Office.'
"c. Contain dimensions of the areas claimed as
commercial Units.
"18. In the summer of 2004, the Developer and Brett Real
Estate
provided
Defendant
Pamela
A.
Montgomery
('Montgomery') with a copy of the Offering Statement, which
included the proposed Second Declaration and plans.
"19. On June 30, 2004 Montgomery, along with her
spouse, contracted with Developer to buy Unit 2G1 prior to
construction of the Condominium.
"20. At no time was Montgomery ever in default of her
obligations under her preconstruction purchase agreement.
She has owned Unit 2G1 since shortly after completion of the
Condominium. She has been President of the Phoenix On The
Bay II Owners Association, Inc. (the 'Association') since May of
2015.
"21. The City of Orange Beach issued a certificate of
occupancy for the Condominium on January 18, 2007. 104
residential Units were constructed at that time.
22. A phasing amendment to POB II was executed on
February 13, 2007 and recorded on February 14, 2007 at
Instrument No. 1031379, effecting amendment of the First
Declaration (the 'Second Declaration').
"23. The Second Declaration is not the same as the
Proposed Second Declaration.
"24. The Second Declaration includes the following
7
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provisions:
"a. Section 1.13 defining the 'Condominium Property' as
being '...all property both real, personal or mixed, which is
submitted to the Condominium form of Ownership as provided
for herein and includes the Real Property and all
improvements now existing or hereafter placed thereon and all
easements, rights, interests or appurtenances thereto, and all
personal property now or hereafter used in connection
therewith.'
"b. Preamble and Section 5.01 stating that the
Condominium consists of a total of 104 residential Units.
"c. Section 5.04 stating that easements are reserved to
the Developer and/or the Developer's heirs and assigns, the
Association, and individual Unit owners. Specifically, the
second and third sentences of said Section provide that
" '...the Developer, and/or the Developer's heirs and
assigns,
reserves
a
perpetual
nonexclusive
easement for access, ingress and egress over and
through all access routes, parking areas, and other
common areas for its guests, licensees, lessees,
customers and employees for the purpose of real
estate sales or any other business operated by the
Developer on such property, including all areas
reserved by the Developer. Further, the Developer,
and/or the Developer's heirs and assigns, retains
the exclusive right to use and control the check-in
area, sales office, housekeeping, maintenance
areas, workshops, storage areas, as are indicated on
the plans.'
"d. Section 5.04 also contains the following as a new
8
1180945
fourth sentence: 'Type Check-in, Type Maintenance, Type
Housekeeping, and Type Sales Office, are commercial Units
and are assigned a portion of the common elements, the others
are limited common elements assigned to the maintenance
Units.' The foregoing sentence referencing commercial Units
was not in the Offering Statement documents.
"e. Section 7.01 reflecting that the Developer reduced the
amount of each residential Unit's fractional interest ownership
of the common elements in order to allocate a percentage
ownership of the common elements to the four commercial
units referenced in the new fourth sentence of in Section 5.04
quoted above.
"f. Section 15.01 stating that the Condominium Property
'... shall be used only for single family residences' and that
'[e]ach of the Units shall be occupied only by a single family
and its guests as a residence and for no other purpose.'
"g. There are no limitations or other descriptions set forth
concerning the nature of any commercial ... use of the
Condominium Property.
"h. Exhibit B which was revised to delete the Unit
schedule and layouts and add 'Exhibit B-1, Elevations of
Phoenix on the Bay II at Orange Beach, Alabama,' containing
various elevations of the building which reference the four
areas at issue as 'Maint. Room', 'Check-In', 'Sales Office' and
'Housekeeping'.
"i. Exhibit C allocating ownership of the common
elements amongst the seven residential Units types and four
commercial Units types.
"j. Exhibit C-1 was revised to reflect that the formula for
9
1180945
dues and assessments to be allocated amongst the seven
residential Unit types and four commercial Unit types.
"25. Neither the words 'Check-in,' 'Maintenance,'
'Housekeeping,' and 'Sales Office' nor the dimensions of the
disputed areas appear on the plans provided with the Offering
Statement nor the permitted construction drawings.
"26. Simultaneously with the recordation of the Second
Declaration, the Developer recorded As-Built plans of POB II,
Phase Two, at Apartment Book 25, pages 92-101.
"These plans contain the following references in the areas
in dispute: 'Check-In', Maintenance', 'Sales Office' and
'Housekeeping'.
"27. According to the face of the Second Declaration, the
changes made to create the four additional units reduced the
common area by 3,325 square feet.
"28. The addition of four commercial Units to the
Condominium would have increased the total number of units
in the Condominium ... from 104 Units to 108 Units.
"29. The Developer did not furnish pre-construction
purchasers of Units at POB II, Phase Two, with an Amended
Offering Statement identifying the four commercial Units.
"30. No pre-construction purchaser of any unit at POB II,
Phase Two, demanded rescission of their purchase agreement,
nor did any such purchaser seek the recovery of the statutory
penalty permitted by § 35-8A-408 of the Code of Alabama
(1975).
"31. Developer never assigned any of its Developer Rights
10
1180945
or Special Declarant Rights in POB II.
"32. The 'Type Check In' unit has no wall on the eastern
boundary. There is no plumbing in the purported commercial
unit designated as Type Check In.
"33. The 'Type Housekeeping' unit was never constructed
and said space has at all times been utilized as part of the
parking garage. Brett/Robinson has never utilized the space
labeled Type Housekeeping. No utilities are stubbed out in the
parking garage for sewer, water or electrical for the purported
Type Housekeeping unit.
"34. The 'Type Sales Office' consists of glass panels
attached to the rear wall of the elevator shaft in the lobby and
does not have a ceiling separate from the lobby ceiling. No
plumbing is located in the purported commercial unit
designated as Type Sales Office.
"35. Common element infrastructure is located within the
interior of two of the claimed commercial units, to-wit:
"a. Within the 'Type Check-In' are elevator control panel,
security control equipment, fire suppression control equipment,
standby generator annunciator panel, house lights controls,
and emergency telephone equipment, which serve the Common
Elements and all residential Units.
"b. Within the 'Type Maintenance' are water pipes, sewer
pipes, fire standpipes serving the entire fire suppression
system, and irrigation system controls.
"36. The Association was created by recording of Articles
of Incorporation therefor executed on February 13, 2007 and
recorded on February 14, 2007 as Instrument Number 1031377
11
1180945
to maintain, operate, and manage the Condominium to own,
trade, or otherwise deal with such property, real or personal,
a[s] may be necessary or convenient in the administration of
the Condominium.
"37. Upon completion of the Condominium, the
Association, through the Developer, engaged Brett/Robinson to
manage the Condominium. Brett/Robinson needed access to all
areas of POB II to carry out its obligations under the
management agreement. Brett/Robinson's services continued
after the Developer released control of POB II in 2008. Under
the management agreement, Brett/Robinson provided on-site
security, maintenance, pool, custodial, front desk staffing and
services; off-site administrative services; contract negotiations,
including, but not limited to utility service and insurance for
the Condominium; all assessment and bill pay functions for the
Association; proctoring board and owner meetings; and all
record keeping functions.
"38. Brett/Robinson employee Keith Jiskra served as
Association Manager from inception of the Association through
termination [of] the management agreement. His Association
Manager duties included setting up board of directors
meetings; meetings with contractors, the board and
Brett/Robinson facility director related to building projects;
negotiating contracts related to the building; responding to
phone calls from owners asking questions about assessments;
serving as liaison between Association and Brett/Robinson and
vendors, informing the board of significant events that
occurred on property; making sure that the Board was
informed about the exercise of any developer rights; and
completing applications for insurance. The Association paid for
Brett/Robinson's
business
license
to
operate
on
the
Condominium Property under the management agreement.
12
1180945
"39. Custodial and maintenance services under the
management agreement were performed by Brett/Robinson
employees located in areas throughout the Condominium
including, but not limited to, the disputed areas denominated
'Check In' and 'Maintenance.'
"40. Unlike the 104 residential Units, none of the
purported commercial Units have separately metered utilities.
All utilities serving the purported commercial units are on
meters charged to the Association for Common Element utility
service. The Association pays for all utilities serving the
purported commercial Units.
"41. Brett/Robinson obtained appraisals for the benefit of
the Association in insuring the Condominium Property, which
appraisals described the Condominium as 104 Units.
"42. The Condominium was always insured as a 104 Unit
residential condominium.
"43. Brett/Robinson participated in generating financial
statements for the Association annually.
"44. In June of 2015, the Association notified
Brett/Robinson that the Association would be utilizing third
party vendors for custodial and pool services instead [of]
utilizing Brett/Robinson therefor.
"45. On July 2, 2015, Developer executed a Warranty
Deed to Brett/Robinson describing as the property conveyed
thereby as 'Units Check-In, Maintenance, Housekeeping, and
Sales Office, Phoenix on the Bay II, Phase Two, a
condominium,' which was recorded on July 13, 2015 at
Instrument No. 1524088.
13
1180945
"46. The Developer did not receive any money or other
remuneration for the execution or delivery of deed described in
the preceding paragraph.
"47. By letter dated July 17, 2015, Brett/Robinson gave
notice of the above referenced deed to the Association and
made a demand for sole and exclusive possession of 'Units
Check-In, Maintenance, Housekeeping, and Sales Office,
Phoenix on the Bay II, Phase Two, a condominium' as
purportedly commercial Units created under the Second
Declaration.
"48. The Association gave Brett/Robinson notice that it
was terminating the remainder of the existing Management
Agreement on July 20, 2015.
"49. The parties have agreed to defer the proof and award
of claims of attorney's fees until after the Court makes a
determination on the equitable claims.
"50. Over the years, some dues and assessments
attributable to the 'Check-In', 'Maintenance', 'Housekeeping'
and 'Sales Office' have been paid or caused to be paid by
Developer or Affiliates.
"___________________
" 2All capitalized terms not defined herein shall have the
meaning ascribed to them in the declaration of condominium
of POB II or the Act as applicable.
" 3All recording references are to instruments in the Office
of the Judge of Probate of Baldwin County, Alabama."
Procedural History
14
1180945
On August 4, 2015, Brett/Robinson sued the Association and
Montgomery in the Baldwin Circuit Court. In its complaint,
Brett/Robinson asserted a trespass claim, alleging that the Association and
Montgomery had willfully and intentionally trespassed on the "check-in
unit" and the "maintenance unit." It also asserted claims that the
Association and Montgomery had interfered with its business relationships
and contractual relationships with condominium unit owners who rent out
their units at Phoenix on the Bay II ("POB II") through Brett/Robinson.
On September 9, 2015, the Association and Montgomery each filed
an answer, a counterclaim, and a third-party complaint. They listed
Brett/Robinson as the counterclaim defendant and Tillis M. Brett,1
Thomas Brett, William T. Robinson, Jr. (collectively referred to as "the
developers"), and Brett Real Estate as third-party defendants.2 The
Association and Montgomery sought declaratory and injunctive relief.
1Tillis died on May 8, 2017, and Claudette Brett, as the personal
representative of Tillis's estate, was subsequently substituted as a party.
2The third-party defendants filed a motion to dismiss the third-party
complaint. The trial court denied the motion to dismiss the third-party
complaint but stated that "[t]he Third Parties are realigned as additional
[counterclaim] Defendants under Rule 20[, Ala. R. Civ. P.]"
15
1180945
Specifically, they sought a judgment declaring that the commercial units
did not exist. Both the Association and Montgomery sought alternative
relief in the event that the trial court found that the commercial units did
exist.
On December 8, 2015, Brett/Robinson filed its first amended
complaint in which it added a claim for a judgment declaring that "the
Units were lawfully created and dedicated to the condominium form of
ownership" and that the Association and Montgomery were estopped from
denying that Brett/Robinson owned the commercial units. It also
requested alternative relief in the event that the trial court found that one
or more of the commercial units were not lawfully created or dedicated to
the condominium form of ownership.
The trial court bifurcated the action and conducted a bench trial on
the parties' claims seeking equitable relief. On May 28, 2019, the trial
court entered an order in which it found that the Association and
Montgomery were entitled to the equitable relief they had requested. In
its order, the trial court stated:
"1. This Court determines and declares that Phoenix on
16
1180945
the Bay II, Phase Two (hereafter the 'Condominium') contains
only 104 Units1 restricted to residential use as set forth in
Article 15 of the Phasing Amendment One to Phoenix on the
Bay II, Phase Two, a condominium recorded at Instrument
Number 1031379 in the Office of the Judge of Probate of
Baldwin County, Alabama (hereafter the 'Second Declaration')
and any provisions therein and exhibits thereto along with the
'As-Built' plans recorded at Apartment Book 25, Pages 92-101
in the Office of the Judge of Probate of Baldwin County,
Alabama which purport to identify or create four (4)
commercial Units in said Condominium are invalid and of no
force or effect. Further, any area in the Condominium
identified, expressly or impliedly, in the Second Declaration or
on the 'As-Built' plans as being a commercial Unit is hereby
determined and declared to be a Common Element of the
Condominium to be operated and maintained as a Common
Element under the terms of the Second Declaration effective as
[of] the date of recording of the Second Declaration on
February 14, 2007.
"_____________________
" 1Capitalized terms not expressly defined herein shall
have the meaning ascribed hereto in the Alabama
Condominium Act of 1991 (the 'Act') or Second Declaration, as
applicable."
It further found that the use restrictions set forth in § 15.01 of the Second
Declaration were valid and enforceable and that the units within POB II
could be used only as single family residences. It further found that the
easements set forth in § 5.04 of the Second Declaration were either invalid
17
1180945
or had terminated by the terms of the Second Declaration and any rights
or special declarant rights reserved in POB II by the developers had
expired on February 14, 2017. The trial court then stated:
"5. In furtherance of the foregoing determinations of the
Court, the Second Declaration and 'As-Built' plans are hereby
reformed and amended as follows:
"A. Sentence four of Section 5.04 of the Second
Declaration is stricken and deleted; and
"B. That portion of the 'As-Built' plans
incorporated into the Second Declaration as Exhibit
B indicating the existence of a 'housekeeping' closet
in the parking garage has never existed and is
hereby stricken and deleted; and
"C. That portion of Exhibit B-1 to the Second
Declaration entitled 'Elevations of Phoenix on the
Bay II at Orange Beach, Alabama' referring or
otherwise indicating that there are Units in the
Condominium identified as 'MAINT ROOM,'
'CHECK-IN,' 'SALES OFFICE,' and 'HOUSE
KEEPING' is hereby stricken and deleted; and
"D. That the allocation of fractional interest
ownership in the Common Elements of the
Condominium contained within Exhibit C to the
Second Declaration is hereby stricken, deleted, and
shall hereafter read as follows:
"Respective undivided ownership interest in
common and limited common elements are Per Unit
18
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of each Unit Type ...."
(Capitalization in original.) The trial court then set forth the revised
ownership interest in the common elements for each unit type; struck the
formula included in exhibit C-1 to the Second Declaration for determining
each unit percentage share of the common expenses, which had included
the commercial units; and set forth a revised formula for determining the
percentage of each unit's share of the common expenses, without including
the commercial units. That resulted in increasing the ownership interest
in the common elements for the owners of each of the remaining units and
increasing each remaining unit owner's percentage share of the common
expenses. The trial court also deleted the second and third sentences of §
5.04 of the Second Declaration that had purported to create easements in
POB II. Additionally, the trial court found that the July 2, 2015,
warranty deed purporting to convey the commercial units to
Brett/Robinson was a nullity based on its determination that no
commercial units had been validly created. Finally, the trial court
reserved ruling on the issue of attorneys' fees and held that any equitable
claims that were not disposed of by the order were denied.
19
1180945
On June 25, 2019, the Association and Montgomery filed a motion for
a summary judgment regarding Brett/Robinson's claims of trespass,
intentional interference with contractual relationships, and intentional
interference with business relationships against them. In their motion,
the Association and Montgomery first argued that there was no basis for
Brett/Robinson's trespass claim because the trial court had found that no
commercial units existed. They also presented additional arguments,
supported by evidence, as to why Brett/Robinson was not entitled to a
summary judgment as to that claim. With regard to the intentional-
interference claims, the Association and Montgomery asserted that, during
depositions, Brett/Robinson had identified only three specific unit owners
who had purportedly ended their business or contractual relationships
with Brett/Robinson based on the actions of the Association. The
Association and Montgomery attached affidavits from those unit owners
and asserted that the affidavits demonstrated that those unit owners had
not terminated their relationships with Brett/Robinson based on any
actions of the Association. Additionally, the Association and Montgomery
argued that they were not strangers to the contracts and relationships at
20
1180945
issue. Brett/Robinson filed a response in which it argued that the trial
court had incorrectly found that the four commercial units did not exist
and asked the trial court to revisit its ruling in that regard. However, it
did not address the alternative grounds for a summary judgment that the
Association and Montgomery had presented regarding the trespass claim.
Additionally, Brett/Robinson did not respond to the Association and
Montgomery's specific arguments regarding the intentional-interference
claims. Rather, it merely asserted that those claims were intertwined
with the issue of the validity of the commercial units. The trial court
granted the Association and Montgomery's motion for a summary
judgment.
The Association and Montgomery also filed a "Motion for Award of
Fees and Expenses." The trial granted that motion and directed the
developer parties to pay the Association and Montgomery $233,083.68 in
attorneys' fees and $60,019.57 in expenses. This appeal followed.
Standard of Review
"The trial court heard ore tenus evidence during a bench
trial. Ordinarily, ' " '[w]hen a judge in a nonjury case hears
oral testimony, a judgment based on findings of fact based on
21
1180945
that testimony will be presumed correct and will not be
disturbed on appeal except for a plain and palpable error.' " '
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010)
(quoting Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003),
quoting in turn Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379
(Ala. 1996)). In this case, however, the trial court's judgment
relied on its interpretation of the [Alabama Uniform
Condominium Act], not upon a disputed question of fact.
' "This court reviews de novo a trial court's interpretation of a
statute, because only a question of law is presented." '
Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033, 1034-
35 (Ala. 2005) (quoting Scott Bridge Co. v. Wright, 883 So. 2d
1221, 1223 (Ala. 2003)). Furthermore, 'no presumption of
correctness exists as to a trial court's judgment when the trial
court misapplies the law to the facts.' Brown v. Childress, 898
So. 2d 786, 788 (Ala. Civ. App. 2004). The trial court's
assessment of damages was made following the submission of
conflicting evidence; therefore, ' "[t]he ore tenus standard of
review extends to the trial court's assessment of damages." '
Kennedy, 53 So. 3d at 68 (quoting Edwards v. Valentine, 926
So. 2d 315, 325 (Ala. 2005))."
Wilcox Inv. Grp., LLC v. P & D, LLC, 223 So. 3d 903 (Ala. 2016).
Discussion
This case involves a condominium that was created pursuant to the
provisions of the Alabama Uniform Condominium Act ("the Act"), § 35-8A-
101 et seq., Ala. Code 1975. The following provisions of the Act will be
helpful to an understanding of this case:
"The principles of law and equity, including the law of
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corporations, the law of real property and the law relative to
capacity to contract, principal and agent, eminent domain,
estoppel, fraud, misrepresentation, duress, coercion, mistake,
receivership, substantial performance, or other validating or
invalidating cause supplement the provisions of [the Act],
except to the extent inconsistent with [the Act].
§ 35-8A-108, Ala. Code 1975. Section 35-8A-110(a), Ala. Code 1975,
provides:
"Notwithstanding a finding that [the Act] is in derogation of
the common law, it should be liberally construed to effectuate
its purpose of encouraging development and construction of
condominium property under the provisions of [the Act]. The
remedies provided by [the Act] shall be liberally administered
to the end that the aggrieved party is put in as good a position
as if the other party had fully performed."
Former § 35-8A-201, Ala. Code 1975, which was in effect at the times
relevant to this case,3 provided:
"(a) A condominium may be created pursuant to [the Act]
only by filing a declaration executed in the same manner as a
deed with the judge of probate in every county in which any
portion of the condominium is located. A duplicate of the
declaration
may
be
presented
to
the
filing
officer
simultaneously for proper validation as to the date filed. Said
3Many provisions of the Act were amended effective January 1, 2019.
See Act No. 2018-403, Ala. Acts 2018. When applicable, we cite and quote
from the former provisions of the Act that were relevant to the parties'
dispute.
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duplicate shall be returned to the person who presented it.
"....
"(c) A declaration or an amendment to a declaration
adding units to a condominium may not be recorded unless all
structural components and mechanical systems of all buildings
containing or comprising any units thereby created are
substantially completed in accordance with the plans, as
evidenced by a recorded certificate of substantial completion
executed
by
an
independent
registered
engineer
or
independent registered architect."
Section 35-8A-205, Ala. Code 1975, provides, in pertinent part:
"(a) The declaration for a condominium must contain:
"....
"(4) A statement of the maximum number of
units which the declarant reserves the right to
create;
"(5) A description of the boundaries of each
unit created by the declaration, including the unit's
identifying number." 4
I.
The developer parties argue that the trial court erroneously found
4Although § 35-8A-205 was amended by Act No. 2018-403, Ala. Acts
2018, see note 3, supra, the quoted portions of that Code section, which are
relevant to this case, remain unchanged.
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that the provisions of the Second Declaration, and its exhibits (including
the as-built plans), that purported to create and identify the four
commercial units were invalid and of no force and effect and that the trial
court erroneously reformed the Second Declaration in accordance with that
finding.
A.
In their counterclaims and third-party complaints, the Association
and Montgomery argued that the language in the Second Declaration and
its exhibits that purported to create the commercial units did not comply
with the requirements in the Act for the creation of a unit. Thus, they
sought a judgment declaring that no commercial units existed and that the
areas designated as commercial units were part of the common elements
of POB II.
Section 35-8A-205 provides that a declaration for a condominium
must contain "[a] statement of the maximum number of units which the
declarant reserves the right to create." The introductory provisions of the
Second Declaration include the following:
"WHEREAS, Phase Two of the project consists of one (1)
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building containing a total of One hundred Four (104)
Residential Units, and One Hundred Four (104) Storage Units
together with access, an outdoor pool, parking and appurtenant
facilities herein described. There are various areas within the
building which are reserved to the Developer as shown on the
Plans or stated in the Declaration."
(Emphasis added.) Further, § 5.04 of the Second Declaration includes the
following provision:
"Type Check-in, Type Maintenance, Type Housekeeping, and
Type Sales Office, are commercial Units and are assigned a
portion of the common elements, the others are limited
common elements assigned to the maintenance Units."
The exhibits attached to the Second Declaration referenced each of the
commercial units by name, designated the square footage for each of the
commercial units, and designated the ownership interest of the four
commercial units. Thus, the Second Declaration and its exhibits, when
read as a whole, make it clear that POB II would consist of 104 residential
units and the 4 commercial units. Accordingly, the Second Declaration
appears to satisfy the requirements of § 35-8A-205(a)(4).
Section 35-8A-205(a)(5) provides that a declaration must include "[a]
description of the boundaries of each unit created by the declaration."
Former § 35-8A-209(a), Ala. Code 1975, provided that "[p]lats and plans
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are part of the declaration." The as-built plans depicted each of the
commercial units and showed boundary lines for each of those units. Thus,
on its face, the Second Declaration satisfies the requirements of § 35-8A-
205(a)(5).
This case does not involve a complete failure to comply with the
requirements of § 35-8A-205(a)(4) and (5) with regard to the commercial
units. At most, the matters the Association and Montgomery complain of
are nothing more than defects in the Second Declaration. However,
nothing in the Act provides, or even suggests, that declaring that an
individual unit was not validly created is an appropriate remedy for any
errors in a recorded declaration. In fact, § 35-8A-203(d), Ala. Code 1975,
provides:
"Title to a unit and common elements is not rendered
unmarketable or otherwise affected by reason of an
insubstantial failure of the declaration to comply with [the
Act]. The determination of whether a substantial failure
impairs marketability is not governed by [the Act]."
Also, as noted earlier, § 35-8A-110(a) provides that the Act "should be
liberally construed to effectuate its purpose of encouraging development
and construction of condominium property under the provisions of [the
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Act]." To hold that a defect in the statement of the maximum number of
units in a condominium or any defect in the description of a particular unit
would result in a holding that such a unit was not validly created would
not be consistent with encouraging the development and construction of
condominium property.
For these reasons, any defects in the Second Declaration regarding
the maximum number of units or in describing the boundaries of the
commercial units did not provide a basis for declaring that those units
were not validly created.
B.
The Association and Montgomery also assert:
"In addition to the defects and ambiguities in the Second
Declaration, three of the four claimed 'commercial Units' were
not even sufficiently completed enough to be Units when the
Second Declaration was recorded. To become a Unit, the
structural and mechanical systems of the Unit must be
complete at the time of recording the declaration. Ala. Code §
35-8A-201(c). ... Alabama Comment 3 recognizes that the
completion requirement of Section 201(c) applied to Units. It
observes that the substantial completion requirement 'is one of
the major legal changes made by the [Uniform Condominium
Act], as contrasted with the prior law both in Alabama and
elsewhere.' "
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Association and Montgomery's brief at pp. 47-48.
As noted earlier, former § 35-8A-201(c) provided:
" A declaration or an amendment to a declaration adding units
to a condominium, may not be recorded unless all structural
components and mechanical systems of all buildings containing
or comprising any units thereby created are substantially
completed in accordance with the plans, as evidenced by a
recorded certificate of completion executed by an independent
registered engineer or independent registered architect."
(Emphasis added.) Further, paragraph 3 of the Alabama Commentary to
former § 35-8A-201 provided:
"3. The requirement in (c) that a declaration may not be
recorded, thus creating a legal condominium, until all the units
are substantially completed is one of the major legal changes
made by the [Uniform Condominium Act], as contrasted with
the prior law both in Alabama and elsewhere. As the Official
Comment explains, this requirement is an important element
in the overall consumer protection portions of the act. While
the units may be pre-sold, that is, a contract of sale may be
executed before completion, and even prior to the time that
construction begins, and a deposit given by the purchaser,
under [former] § 35-8A-417[, Ala. Code 1975,] no unit may be
conveyed until it has been substantially completed, and the
declarant may not receive the major portion of the purchase
price from buyers until that time."
(Emphasis added.) Additionally, the current version of § 35-8A-201(c),
Ala. Code 1975, provides:
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" A declaration or an amendment to a declaration adding units
to a condominium is not effective unless all structural
components and mechanical systems of all buildings containing
or comprising any units thereby created are substantially
complete, as evidenced by a recorded certificate of substantial
completion of structural and mechanical systems executed by
an independent registered engineer or independent registered
architect."
(Emphasis added.)
It is clear that this section deals with the effectiveness of the
declaration as a whole, not the issue whether any particular units are
validly created. Thus, the Association and Montgomery's argument that
three of the four commercial units were not substantially complete at the
time the Second Declaration was filed does not support the trial court's
determination that those commercial units were not validly created.
Based on the foregoing, the trial court could not have properly relied
on any alleged failure to comply with the Act as a basis for finding that the
provisions in the Second Declaration and it exhibits relating to the
commercial units were invalid and of no force and effect.
II.
The trial court found that the "housekeeping unit" has never existed.
30
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It is undisputed that the housekeeping unit has not been built. However,
the housekeeping unit was specifically created by the Second Declaration.
Additionally, the Act does not provide a time limit within which the
construction of an individual unit that has been created in a declaration
must be completed. Section 18.06 of the Second Declaration provides:
"The Developer may make such use of the unsold Units
and of the common areas and facilities as may facilitate such
completion and sale, including but not limited to showing of the
Property and the display of signs. The Developer may maintain
sales offices, management offices, leasing and operations
offices, and models in any Unit of the Condominium or on
Common Elements in the Condominium without restriction as
to the number, size or location of said sales offices,
management offices, leasing and operations offices and models.
The Developer shall be permitted to relocate said sales offices,
management offices, leasing and operations offices and models
from one Unit location to another or from one area of the
Common Elements to another area of the Common Elements
in the Condominium. The Developer may maintain signs on
the Common Elements advertising the Condominium. The
rights of the Developer as provided for in this paragraph shall
cease and terminate ten (10) years from the date of the
recording of this Declaration in the Office of the Judge of
Probate of Baldwin County, Alabama."
Although this section provides a time limit on a developer's right to use
unsold units, common areas, and facilities, it does not impose a time limit
within which the construction of an individual unit must be completed.
31
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Therefore, the fact that the housekeeping unit had not yet been
constructed does not affect the validity of that unit. Accordingly, the trial
court erroneously found that the housekeeping unit never existed.
III.
The developer parties also argue that fraud-based claims raised by
the Association and Montgomery in their counterclaim and third-party
complaint did not provide a proper ground for holding that the commercial
units were not validly created and that reformation was not a proper
remedy for any fraud-based claims. In response, the Association and
Montgomery argue that reformation was the only viable remedy under the
facts of this case. Specifically, they assert:
"Equitable remedies were required to adequately redress the
wrongs committed by [the developer parties]. Through [the
developer parties'] illegal and fraudulent conduct, POB II was
materially changed to the ongoing detriment of the
[Association] and Unit owners. Despite that, [the developer
parties'] claim that instead of reformation, each Unit owner
must file a separate action for damages is contrary to the
purpose and express provisions of the Act. The Act was
designed to avoid such a scenario."
Association and Montgomery's brief at p. 69. They also assert:
"A simple reformation is the only practical solution, especially
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under the unique facts of a case like this, to remedy the fraud
and fulfill the Act's purpose of ensuring that the buyers receive
what they were promised.
"There was no obstacle to reformation of the Second
Declaration given the unique facts of this case. Section 8-1-2[,
Ala. Code 1975,] clearly provides that
" '[w]hen, through fraud, a mutual mistake of the
parties or a mistake of one party which the other at
the time knew or suspected, a written contract does
not truly express the intention of the parties, it
may be revised by a court on the application of the
party aggrieved so as to express that intention, so
far as it can be done without prejudice to the rights
acquired by third persons in good faith and for
value.'
"(Emphasis added.) The reformation granted in this case
clearly did not prejudice any rights acquired by third persons
in good faith and for value. At a minimum, there were no other
parties who could rely in good faith on any expectation that
[Brett/Robinson] would become the permanent owner of
commercial Units in POB II."
Association and Montgomery's Brief at pp. 70-71.
The appellees' arguments in this regard are based on the assertions
that Brett/Robinson admitted that, from the inception of POB II, the
developers intended to create the four commercial units; that the offering
statement and its exhibits did not disclose the existence of the commercial
33
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units; and that the developers did not issue an amended offering
statement disclosing the existence of the four commercial units. They
further assert:
"There was no notice to buyers of that change or the
significance of it; buyers were never told Common Elements
were being taken to create 'commercial Units.' ... There was
ample evidence before the trial court demonstrating that there
was no disclosure of the possibility commercial Units could
exist. If [the developer parties'] 'suppressed intent' testimony
-- that there was an intent to create commercial Units from
inception -- is accepted, then the evidence would amply support
a conclusion by the trial court, that [the developer parties]
defrauded buyers in the Offering Statement and violated the
affirmative disclosure requirements of Article 4[ of the Act]. In
other words, [the developer parties] admitted to fraud and
violating the Act.
Association and Montgomery's brief at p. 44.
Former § 35-8A-402, Ala. Code 1975, provided, in pertinent part:
"(a) Except as provided in subsection (b), a declarant,
prior to the offering of any interest in a unit to the public, shall
prepare an offering statement conforming to the requirements
of [former] Sections 35-8A-403 through 35-8A-406[, Ala. Code
1975].
"(b) A declarant may transfer responsibility for
preparation of all or a part of the offering statement to a
successor declarant specified in [former] Section 35-8A-304[,
Ala. Code 1975,] or to a person in the business of selling real
estate who intends to offer units in the condominium for his
34
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own account. In the event of any such transfer, the transferor
shall provide the transferee with any information necessary to
enable the transferee to fulfill the requirements of subsection
(a).
"(c) Any declarant or other person in the business of
selling real estate who offers a unit for his own account to a
purchaser shall deliver an offering statement in the manner
prescribed in [former] Section 35-8A-408(a)[, Ala. Code 1975,]
and is liable under [former] Sections 35-8A-408 and
35-8A-417[, Ala. Code 1975,] for any false or misleading
statement set forth therein or for any omission of material
fact."
Former § 35-8A-403, Ala. Code 1975, provided, in pertinent part:
"(a) Except as provided in subsection (b), an offering
statement must contain or fully and accurately disclose:
"(1) The name and principal address of the
declarant and of the condominium;
"(2) A general description of the condominium,
including to the extent possible, the types, number,
and declarant's schedule of commencement and
completion of construction of buildings, and
amenities that declarant anticipates including in
the condominium;
"(3) The number of units in the condominium;
"(4) Copies of the declaration, other than the
plats and plans, as well as any other recorded
covenants, conditions, restrictions and reservations
affecting the condominium; the bylaws, and any
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rules or regulations of the association; copies of any
contracts or leases to be signed by purchasers at
closing, and copies of any contracts or leases that
will or may be subject to cancellation by the
association under [former] Section 35-8A-305[, Ala.
Code 1975];
"....
"(14) Any restraints on sale or lease of any
units in the condominium and any restrictions:
"a.
On
use,
occupancy
or
alienation of the units ....
"....
"....
"(b) If a condominium composed of not more than 12 units
is not subject to any development rights, and no power is
reserved to a declarant to make the condominium part of a
larger condominium, group of condominiums, or other real
estate, an offering statement may but need not include the
information otherwise required by subdivisions (9), (10), (15),
(16), (17), and (18) of subsection (a).
"(c) A declarant shall promptly amend the offering
statement to report any material change in the information
required by this section."
Further, former § 35-8A-408, Ala. Code 1975, provided, in pertinent part:
"(a) A person required to deliver an offering statement
pursuant to [former] Section 35-8A-402(c)[, Ala. Code 1975,]
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shall provide a purchaser of a unit with a copy of the offering
statement and all amendments thereto before conveyance of
that unit, and not later than the date of any contract of sale.
Unless a purchaser is given the offering statement more than
seven days before execution of a contract for the purchase of a
unit, the purchaser may cancel the contract, or rescind the
conveyance if a conveyance has already occurred, within seven
days after first receiving the offering statement.
"....
"(c) If a person required to deliver an offering statement
pursuant to [former] Section 35-8A-402(c) fails to provide a
purchaser to whom a unit is conveyed with that offering
statement and all amendments thereto, as required by
subsection (a), the purchaser, at the purchaser's option and in
lieu of any rights to damages or other relief, is entitled to
receive from that person an amount equal to five percent of the
sales price of the unit at anytime prior to the expiration of six
months from the date of conveyance of the unit, plus five
percent of the share proportionate to his common expense
liability, of any indebtedness of the association secured by
security interests encumbering the condominium."
Finally, § 35-8A-414, Ala. Code 1975, provides:
"If a declarant or any other person subject to [the Act]
fails to comply with any provision hereof or any provision of the
declaration or bylaws, any person or class of persons adversely
affected by the failure to comply has a claim for actual
damages or appropriate equitable relief. The court, in an
appropriate case, may award reasonable attorney's fees to
either party."
Nothing in these Code sections suggests that misrepresentations in
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an offering statement or failure to fully comply with the provisions of
former §§ 35-8A-402 and -403 are valid grounds for finding that units
designated in a declaration of condominium were not validly created units.
Rather, the penalties in these provisions of the Act appear to be personal
to the aggrieved party or parties. This is highlighted by the provision in
§ 35-8A-110, which provides, in part: "The remedies provided by this
chapter shall be liberally administered to the end that the aggrieved party
is put in as good a position as if the other party had fully performed."
(Emphasis added.) In this case, the Association and Montgomery's fraud-
based arguments are based on their assertion that the developers did not
disclose their intent to create the four commercial units in POB II, either
in the original offering statement or in an amended offering statement. If
the developers had disclosed their intent to create the commercial units in
the original offering statement, Montgomery could have then used that
information to determine whether she wanted to purchase a residential
unit in POB II. Additionally, if the developers had issued an amended
offering statement after they had filed the Second Declaration that added
the commercial units, Montgomery might have had the opportunity to
38
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cancel her purchase agreement before closing on the unit. However, in no
event would the developers' full performance have resulted in the
invalidation of the commercial units.
Moreover, the Association and Montgomery's fraud claims are based
on the developers' alleged "suppressed intent."
" 'The elements of a suppression claim are "(1) a duty on the
part of the defendant to disclose facts; (2) concealment or
nondisclosure of material facts by the defendant; (3)
inducement of the plaintiff to act; (4) action by the plaintiff to
his or her injury." ' Freightliner, L.L.C. v. Whatley Contract
Carriers, L.L.C., 932 So. 2d 883, 891 (Ala. 2005) (quoting
Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61, 63 (Ala.
1996)).' ''
Aliant Bank v. Four Star Invs., Inc., 244 So. 3d 896, 930 (Ala. 2017).
In this case, the Association and Montgomery assert that the
developers defrauded purchasers and that they changed the nature of the
condominium to the detriment of those purchasers. However, Montgomery
was the only POB II residential-unit owner who brought a fraud claim in
this case and the only residential unit owner who testified at trial.
Essentially, the Association and Montgomery are asking this Court to
affirm the reformation of the Second Declaration to meet the expectations
39
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of a single residential-unit owner without any evidence as to the
expectations or understandings of any of the owners of the remaining 103
residential units. Additionally, they appear to ignore the fact that any
reformation of the Second Declaration so that it reflected Montgomery's
understanding and intent at the time she purchased her unit could
effectively change the Second Declaration so that it no longer reflected the
understanding and intent of other owners, particularly those who
purchased their units after the Second Declaration was filed.
For these reasons, the reformation of the Second Declaration was not
an appropriate remedy to address any fraud-based claims.
Conclusion
Based on the foregoing, the trial court erred when it found that the
commercial units were not validly created and when it amended and
reformed the Second Declaration in accordance with that finding.
Additionally, that finding was the basis the for the trial court's holding
that the July 2015 warranty deed conveying the commercial units to
Brett/Robinson was void and for the trial court's order awarding costs and
attorneys' fees to the Association and Montgomery. Accordingly, we
40
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reverse the trial court's judgment and remand this case for proceedings
consistent with this opinion. We note that, in their counterclaims and
third-party complaints, the Association and Montgomery both requested
alternative relief in the event the trial court determined that the
commercial units exist. In her counterclaim and third-party complaint,
Montgomery requested the following:
"g. in the alternative that the Court declares that the
claimed commercial units exist, an award of damages for the
loss of value to her unit and loss of ownership interest in the
common elements."
In its counterclaim and third-party complaint, the Association requested
the following:
"h. in the alternative that the Court declares that the
claimed commercial units exist, to determine and declare the
parties respective use rights, ordering immediate modifications
of said commercial units to meter all utilities separately at the
cost of [Brett/Robinson], and awarding damages in favor of the
Association for costs paid by it for the benefit of said
commercial units for utilities, maintenance, and upkeep."
On remand, the trial court should address those requests for alternative
relief. With regard to the Association's request for a judgment declaring
the parties' respective use rights, we note that the stipulated facts
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establish that common-element infrastructure was located in the
purported check-in and maintenance units. Specifically:
"a. Within the 'Type Check-In' are elevator control panel,
security control equipment, fire suppression control equipment,
standby generator annunciator panel, house lights controls,
and emergency telephone equipment, which serve the Common
Elements and all residential Units.
"b. Within the 'Type Maintenance' are water pipes, sewer
pipes, fire standpipes serving the entire fire suppression
system, and irrigation system controls."
Thus, the trial court's judgment on remand should specifically address the
Association's right to access the common-element infrastructure that is
located in the check-in unit and the maintenance unit.5
5In a footnote in their brief, the developer parties assert:
"Additionally, the circuit court entered summary
judgment on Brett/Robinson's claims of trespass and
intentional interference after Brett/Robinson acknowledged
that these claims were 'based on or intertwined with' the issue
of the ownership of the commercial units. ... Accordingly, if
this Court reverses the circuit court's ruling on the ownership
issue, it should naturally reverse the summary judgment on
these claims."
Developer parties' brief at p. 57 n. 19. However, they do not cite any
authority in support of this assertion. Additionally, they do not address
the fact that the Association and Montgomery presented arguments in
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REVERSED AND REMANDED WITH INSTRUCTIONS.
Bolin, Wise, Bryan, Sellers, and Mitchell, JJ., concur specially.
Mendheim and Stewart, JJ., concur in the result.
Parker, C.J., dissents.
support of their motion for a summary judgment that were not based on
the trial court's holding that the four commercial units were not validly
created. Accordingly, Brett/Robinson has not established that it is entitled
to relief as to this claim.
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WISE, Justice (concurring specially)
Although I concur with the majority opinion, I write specially to
address concerns I have in this case. First and foremost, I do not wish to
be understood as approving the condominium developers' actions in this
case or implying that Pamela Montgomery and the Phoenix on the Bay II
Owners Association, Inc. ("the Association"), are not entitled to any form
of relief. Rather, I simply believe that the relief granted by the trial court
was not appropriate under the specific facts of this case and that, on
remand, the trial court should consider the Association and Montgomery's
remaining claims for relief.
The fact that the developers never issued an amended offering
statement, as required by former § 35-8A-403(c), Ala. Code 1975,
disclosing the addition of the four commercial units to Phoenix on the Bay
II ("POB II"), and the fact that, as a result, each unit's percentage of
ownership in the common elements was decreasing is troubling. However,
I do not believe that amending and reforming the second declaration in a
manner that will affect all current residential-units owners is an
appropriate remedy for such a failure when Montgomery was the only POB
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II residential-unit owner who brought a fraud claim in this case and the
only residential-unit owner who testified at trial. Rather, I believe that,
if Montgomery can adequately prove her fraud claim and that she was
damaged by the failure to issue an amended offering statement, she will
be limited to remedies that will put her in as good of a position as if the
developers had fully complied with the provisions of former § 35-8A-403(c),
as discussed in Part III of the majority opinion.
I also write to express my concerns regarding the way in which the
developers added the commercial units in the second declaration.
Brett/Robinson Gulf Corporation ("Brett/Robinson") presented evidence
indicating that the developers had intended to create the four commercial
units from the inception of the condominium project. However, the
addition of the language regarding the commercial units in the body of the
second declaration looks more like it was added as a mere afterthought.
The developers inserted a single sentence regarding the commercial units
in a section titled "Easements -- Developer's Retained and Association's."
Although the description section of the second declaration provides
descriptions for "Features," "Private Residential Elements," "Common
45
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Elements," "Limited Common Elements," "Unit Boundaries," "Surfaces,"
"Balconies," and "Developer's Limited Warranty," it does not include any
description of commercial units. Additionally, the section dealing with use
descriptions provides:
"15.01 Single Family Residences. The condominium property
shall be used only for single family residences and for the
furnishing of services and facilities herein provided for the
enjoyment of such residence. Each of the Units shall be
occupied only by a single family and its guests as a residence
and for no other purpose."
However, there is no similar provision discussing the commercial units and
addressing whether there are any limitations on the type of commercial
uses for which those units may be used. This lack of details regarding the
commercial units could lead to future disputes between Brett/Robinson,
the Association, and residential-unit owners. The better practice for
developers who wish to develop condominiums that include commercial
units would be to fully define and describe such commercial units and fully
detail whether there are any limitations on the types of commercial uses
for which those units may be used. This would allow purchasers to make
informed decisions when they purchase units in a condominium that
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includes commercial units.
I also find it troubling that the developers located crucial common-
element infrastructure within the check-in and maintenance units. The
location of this critical infrastructure in commercial units that the
developers retained for their exclusive use and control is particularly
interesting in light of the Association and Montgomery's argument that
the developers were attempting to permanently embed Brett/Robinson as
the provider of condominium-management services to the Association.
Regardless of the developers' motivations, it appears that locating critical
common-element infrastructure in commercial units has done nothing
more than lead to conflict between the parties once the Association
terminated its management agreement with Brett/Robinson. On remand,
the trial court must address the serious issue of the Association's ability
to access that critical common-element infrastructure.
I am further troubled by the fact that the developers did not
separately meter the utilities for the commercial units, even though they
intended to retain exclusive use and control over those commercial units,
and by the fact that the Association had been paying utilities for those
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commercial units. The issue of utilities is further complicated by the fact
that the check-in unit includes an open-air area in the middle of the lobby
and the fact that the glass walls enclosing the sales unit do not extend to
the ceiling and the top of that unit is open to the lobby. On remand, this
is yet another issue that must be addressed and resolved by the trial court.
I believe that the poorly executed manner in which the developers
added the commercial units in the second declaration, their failure to
provide preconstruction purchasers with an amended offering statement
disclosing the addition of the commercial units, and the manner in which
the developers constructed the check-in, maintenance, and sales-office
units have created unnecessary problems and issues in this case.
However, I do not believe that these issues affect the validity of the
commercial units themselves. Rather, I believe that these issues raise
questions regarding whether the Association and Montgomery are entitled
to the alternative relief they requested in their counterclaims and third-
party complaints. Also, I believe that condominium developers should use
more care when creating commercial units within a condominium. Finally,
condominium developers should be sure to comply with the requirements
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of § 35-8A-403(c), regarding amended offering statements when there are
material changes to information provided in the initial offering statement.
The failure to do so will leave developers open to claims by individual
preconstruction purchasers who were not provided with such amended
offering statements. See § 35-8A-402(c), Ala. Code 1975 (providing that
"[a]ny declarant or other person in the business of selling real estate who
offers to a purchaser a unit for the offeror's own account to whom such
responsibility for preparation and delivery of an offering statement has
been transferred shall deliver an offering statement in the manner
prescribed in Section 35-8A-408(a)[, Ala. Code 1975,] and is liable under
Sections 35-8A-408 and 35-8A-414[, Ala. Code 1975,] for any false or
misleading statement set forth therein or for any omission of material fact"
(emphasis added)).
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SELLERS, Justice (concurring specially).
By reforming the February 14, 2007, Phoenix on the Bay II, Phase
Two ("POB II"), condominium declaration, the trial court exceeded its
discretion. The act of abolishing the four commercial units identified in
that declaration on the basis that those units were never validly created
pursuant to the Alabama Uniform Condominium Act ("the Act") , § 35-8A-
101 et seq., Ala. Code 1975, amounted to judicial overreaching.
A condominium is created solely by filing a declaration in the probate
court. § 35-8A-201, Ala. Code 1975. The declaration is the instrument that
"creates and defines the units and common elements" of a condominium.
Paragraph 2 to Commissioner’s Commentary to former § 35-8A-203, Ala.
Code 1975. Any person or class of persons adversely affected by a
declarant's failure to comply with the Act has a claim for "actual damages
or appropriate equitable relief." § 35-8A-414, Ala. Code 1975 (emphasis
added). I write to express my opinion that reformation of the declaration
to provide for the abolishment of the commercial units was not an
appropriate remedy in this case. "A party seeking to have an instrument
reformed must produce clear and convincing evidence that the instrument
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does not express the intent of the parties." Pullum v. Pullum, 58 So. 3d
752, 756 (Ala. 2010) (emphasis added). It is undisputed that the
developers of POB II unilaterally drafted and filed the declaration that
created the POB II condominium; it is further undisputed that the
developers intended to create the commercial units. Moreover, from
February 2007 until 2015 (when this litigation commenced), the developers
took actions consistent with owning the commercial units by paying to the
Phoenix on the Bay II Owners Association, Inc. ("the Association"),
approximately $230,000 in dues and assessments, paying property taxes
to the Baldwin County tax assessor, and voting at Association meetings.
Notably, Pamela Montgomery, the only unit holder who challenged the
validity of the commercial units, testified that she discovered the units had
been designated as commercial in 2011; yet she raised no legal challenge
to that discovery until July 2015, when she became president of the
Association. There are ample statutory and common-law legal and
equitable remedies available to unit owners who claim to have been misled
in prepurchase marketing materials such as offering statements. Those
remedies, tailored to a particular owner's specific situation, could include
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rescission of the purchase contract and/or damages for breach of contract
or fraud. I am concerned that the trial court's action of reforming the
declaration would not only abolish the developers and their successors
long-standing ownership rights in the commercial units, but also affect the
property rights of all other unit owners, many of whom may not be
similarly situated to Montgomery, by altering their ownership interests in
the common elements. Reformation of the condominium declaration under
these circumstances is inappropriate, both as a matter of law and as a
matter of public policy.
Bolin, Bryan, and Mitchell, JJ., concur.
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PARKER, Chief Justice (dissenting).
Today's result makes one thing clear: Law has swallowed Equity.
Pamela Montgomery and Phoenix on the Bay II Owners Association,
Inc. ("the Association"), asserted claims against Brett Real Estate and
Robinson Development Company, Inc., Tillis M. Brett,6 Thomas Brett,
William T. Robinson, Jr. ("the developers"), and Brett/Robinson Gulf
Corporation ("Brett/Robinson") (Brett/Robinson and the developers are
referred to collectively as "the appellants"). Montgomery and the
Association sought primarily a declaratory judgment and secondarily
reformation of the recorded Phoenix on the Bay II condominium
declaration. The crux of the controversy was that the developers had
recorded a declaration of condominium for Phoenix on the Bay II that
purported to create commercial units, even though the proposed
declaration that the developers had provided to preconstruction
purchasers like Montgomery promised a purely residential development.7
6As noted in the main opinion, Tillis died during the litigation, and
Claudette Brett, the personal representative of Tillis's estate, was
substituted.
7Seventy percent of the unit owners were preconstruction purchasers.
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Among other arguments, Montgomery and the Association contended
that the recorded declaration did not validly create commercial units. After
a bench trial, the Baldwin Circuit Court declared (without stating reasons)
that the condominium's units were restricted to residential use and could
be used for no other purpose. Consistent with that declaratory judgment,
the court reformed the recorded declaration by striking its references to
commercial units and by revising its exhibits accordingly.
As framed by the main opinion, the two core issues in this case are
(1) whether the recorded declaration complied with the Alabama Uniform
Condominium Act ("the AUCA"), § 35-8A-101 et seq., Ala. Code 1975, when
the declaration purportedly created commercial units and (2) whether
reformation of the recorded declaration was a proper remedy for
Montgomery and the Association's fraud claims. As I will explain, I believe
that this is not the right analytical framework for deciding this case. More
importantly, however, this Court's misgivings about the propriety of
reformation reflect what I believe is a more fundamental problem: the
over-legalization of equity. Therefore, I begin my discussion with the latter
point.
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I. The "lawification" of equity
Courts of equity were originally created so that there would be an
institution empowered to do justice by providing a remedy that courts of
law, because of the law's strictures and inevitable over-generality, could
not. See T. Leigh Anenson, Treating Equity Like Law: A Post-Merger
Justification of Unclean Hands, 45 Am. Bus. L.J. 455, 501 n.288 (2008);
Thomas O. Main, Traditional Equity and Contemporary Procedure, 78
Wash. L. Rev. 429, 429-30, 441-42 (2003); Leonard J. Emmerglick, A
Century of the New Equity, 23 Tex. L. Rev. 244, 245, 254 (1945).
Unsurprisingly, this ideal proved hard to achieve. In their early days,
equity courts responded nimbly to each new factual scenario they faced.
Ally Windsor Howell, Tilley's Alabama Equity § 1:5 (5th ed. 2012). But the
flaws of a "lawless" equity were (and are) readily apparent; common sense
and experience have shown that some principled framework and a degree
of adherence to precedent are needed to consistently build relief in the
general shape of justice.
However, the reaction against an equity limited only by the
chancellor's variable conscience was not merely to give the chancellor's
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conscience more parameters but to remove the chancellor's conscience from
the equation. Over time, equitable precepts were crystalized to such a
degree that equity became "as legalistic as law," Calvin Woodard, Joseph
Story and American Equity, 45 Wash. & Lee L. Rev. 623, 639 (1988). See
Main, supra, at 448 ("[O]ne commentator's crystallization is another's
ossification. As the jurisdiction of equity lost its youthful exuberance, so
also its freedom, elasticity and luminance."). It is generally thought that
that trend culminated in the early 19th century during the chancellorship
of Lord Eldon, who famously remarked:
"The doctrines of th[e] Court [of Chancery] ought to be as well
settled and made as uniform almost as those of the common
law .... Nothing would inflict on me greater pain ... than the
recollection that I had done any thing to justify the reproach
that the equity of this Court varies like the Chancellor's foot."
Gee v. Prichard, 2 Swans. 402, 414, 36 Eng. Rep. 670, 674 (1818); cf.
Michelle Johnson & James Oldham, Law Versus Equity - As Reflected in
Lord Eldon's Manuscripts, 58 Am. J. Legal Hist. 208 (2018) (discussing
Lord Eldon's more comprehensive views on equity). By the beginning of
the 20th century, the one-time "keeper of the king's conscience" made it
clear: "This court is not a Court of Conscience." Emmerglick, supra, at 253
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(quoting In re Telescriptor Syndicate, 2 Ch. 174, 195 (1903)); see Main,
supra, at 441.
This "lawification" of equity came to America, too. The merger of law
and equity courts, beginning in the mid-19th century and concluding in the
mid- to late 20th century, exacerbated the problem.8 The utilitarian and
"scientific" legal theorists of that age were just as affronted by equity's
independence as they and their predecessors had been by its
unpredictability. Equity had to be straightjacketed in law's rules. Merger
quickly "blur[red] the distinction between doing what the law says and
doing what the law permits." Kelly D. Hine, Comment, The Rule of Law Is
Dead, Long Live the Rule: An Essay on Legal Rules, Equitable Standards,
8In Alabama, the circuit courts have equity jurisdiction, see § 12-11-
31, and the Legislature has expressly made equitable relief available in
certain contexts, see, e.g., § 35-8A-414 of the AUCA. However, in 1973, the
Alabama Rules of Civil Procedure merged law and equity by providing that
"[t]here shall be one form of action to be known as 'civil action,' " governed
by a uniform set of procedural rules. See Rule 2, Ala. R. Civ. P., and
Committee Comments on the 1973 Adoption. See generally Frank W.
Donaldson & Michael Walls, Merger of Law and Equity in Alabama - Some
Considerations, 33 Ala. Law. 134 (1972). Consistent with the national
trend that I outline here, merger seems to have now resulted in both kinds
of claims being administered with similar inflexibility.
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and the Debate over Judicial Discretion, 50 SMU L. Rev. 1769, 1786
(1997). That is, merged courts tend to administer equitable claims
according to the proverbial letter of the law and to assume, without further
reflection, that they are neither permitted nor required to do more to
achieve the goal of equity. All along, scholars and jurists have been
concerned that, "in merged systems[,] ... '[t]he tendency ... has plainly and
steadily been towards the giving [of] an undue prominence and superiority
to purely legal rules, and the ignoring, forgetting, or suppression of
equitable notions.' " Main, supra, at 496 (quoting 1 John Norton Pomeroy,
A Treatise on Equity Jurisprudence ix (2d ed. 1892)); see also Roscoe
Pound, The Decadence of Equity, 5 Colum. L. Rev. 20 (1905).
Unsurprisingly, by the middle of the 20th century, "[t]he unified
procedure ha[d] not attained the preoccupation with conscience which was
responsible for the process whereby morals formerly were converted into
rules of law." Emmerglick, supra, at 253. Merger accomplished its goal of
simplifying the administration of justice -- a positive development -- but
arguably hampered the quality of justice by implementing a uniform
approach to both systems, id. at 248, and conflating the systems'
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distinctive roles. Hine, supra. And at the turn of this century, scholars
continued to argue that "the tradition of equity is impaired in a merged
system [when] the trial judge cannot escape the rigors of that
infrastructure in the exercise of [his or] her magisterial good sense." Main,
supra, at 437.
The case before us is an example of this ossification of equity
defeating magisterial good sense. Typically, the remedy of reformation
applies to bilateral instruments such as contracts or conveyances when,
because of fraud or mistake, they fail to express the mutual intent of the
parties. Thus, today's Court is uncomfortable with the remedy's fit in this
case, where the unilateral intent of the drafter-developers to create
commercial units seems undisputed. But there were no condominiums in
the common-law world at the time traditional principles of reformation
took shape. Indeed, condominium law did not exist in the United States
until the mid-20th century. See Donna S. Bennett, Condominium
Homeownership in the United States: A Selected Annotated Bibliography
of Legal Sources, 103 Law Libr. J. 249, 250-54 (2011) (describing migration
of condominium law from continental Europe to the United States via
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Puerto Rico); William K. Kerr, Condominium - Statutory Implementation,
38 St. John's L. Rev. 1, 1-5 (1963) (similar). Thus, the novelty of this case
calls for the kind of creative thinking that characterized equity in its early
days, each time it faced a new situation. And this case presents the perfect
opportunity, as no one, not even the appellants, seriously contends that
the appellants were in the right.
Given the flexibility that equity historically has provided, this Court
ought to confirm that the circuit court provided Montgomery and the
Association with reasonable and proper relief. That court reached a
sensible resolution of the case -- the only judicial solution that could
actually resolve Montgomery and the Association's problem and correct the
irreconcilable inconsistencies in the recorded declaration (which I will
discuss below). Yet because this Court cannot find this specific remedy in
the AUCA, the Court concludes that no such remedy is available. ___ So.
3d at ___. The Court gives no consideration at all to whether the circuit
court's power to grant such relief might derive from its more fundamental
equitable powers -- which are nowhere expressly limited by the AUCA. If
this Court had embraced the essential character of equitable power
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instead of treating equity as merely a subsidiary set of rigid rules, it would
not have been so quick to conclude that the circuit court exceeded its
considerable discretion by awarding reformation.9
To be clear, I am not advocating a radical departure from existing
norms of equity jurisprudence. I recognize, as do all responsible thinkers
on the subject, that a judge administering equity always walks " 'a fine line
between ... exercis[ing] the full scope of his powers to do justice and ...
combin[ing] ideological perversity with tyrannical license.' " Hine, supra,
at 1774 (quoting Peter C. Hoffer, The Law's Conscience 20 (1990)).
9Importantly, the reformation's impact on the ownership interests of
nonparty unit owners was negligible. The reformed declaration increased
each owner's interest by a fraction of a percent. Moreover, those owners
were free to intervene to oppose that negligible impact; unsurprisingly,
none did so. Therefore, unlike the main opinion and the special
concurrences, I do not consider the other unit owners' interests a reason
for concluding that the circuit court exceeded its discretion.
As for the other unit owners' not having joined with Montgomery as
claimants, the Association did so. And a condominium association is
empowered to "[i]nstitute, defend, or intervene in litigation or
administrative proceedings in its own name on behalf of itself or two or
more unit owners on matters affecting the condominium." § 35-8A-
302(a)(4) (emphasis added). Thus, the Association represented all affected
unit owners; it was not necessary for each owner to join. And neither the
circuit court nor this Court has ruled otherwise in this case.
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Without question, circumspection is appropriate when reviewing any
seemingly expansive exercise of judicial power.
Moreover, the principles of true justice have been ultimately
established by the Supreme Lawgiver. As the Creator of mankind and the
universe in which we live, he has revealed those principles in the creation
and, more importantly, in his written Word; they are knowable. See 1
William Blackstone, Commentaries on the Laws of England *39-42;
Thomas Aquinas, Summa Theologica, Treatise on Law, Q. 91, arts. 1, 2, 4;
John Calvin, Institutes of the Christian Religion 2.2.13 (p. 160), 2.2.22-.24
(p. 160), 2.8.1 (p. 226), 4.20.14-.16 (p. 898) (Christian Classics Ethereal
Library 2002); Romans 2:12-16. Yet the capacity of mankind -- including
judges -- to reason from those principles of justice is fallen and thus
imperfect, such that even the most enlightened minds may disagree on
how best to apply them to particular situations. So I am not suggesting
that there will be an easy answer to what justice looks like in each case.
However, I am advocating a heightened awareness -- and reconsideration
-- of historical and structural factors that tend to impair the ability of
equity to do equity, and tend to destroy its complementary role in ensuring
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the availability of justice.
II. The proper framework for deciding this case
Even under existing jurisprudence, I believe that the main opinion
employs an unsound analytical framework that has led it to an incorrect
conclusion. The principal issues in this case are not whether the recorded
declaration complied with the AUCA and whether reformation is available
to remedy a violation of the AUCA. Rather, the principal issues are
whether the recorded declaration, objectively interpreted, created
commercial units and, if not, whether reformation is available to make the
declaration reflect that interpretation. I believe that the judgment should
be affirmed because the declaration, read as a whole, does not create
commercial units and because the circuit court had discretion to reform the
declaration to conform to this interpretation.
At issue is a single, isolated sentence that the developers
haphazardly inserted into an article of the declaration entitled
"Easements":
"5.04 Easements -- Developer's Retained and the Association's.
Easements are reserved to the Developer, and/or the
Developer's heirs and assigns, throughout the Common
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Elements as may be reasonably necessary for the purpose of
discharging
the
Developer's
or
Building
Manager's
obligations.... [T]he Developer, and/or the Developer's heirs and
assigns, retains the exclusive right to use and control the
check-in area, sales office, housekeeping, maintenance areas,
workshops, storage areas, as are indicated on the plans. Type
Check-in, Type Maintenance, Type Housekeeping, and Type
Sales Office, are commercial Units and are assigned a portion
of the common elements ...."
(Emphasis added.) There is no other reference in the body of the recorded
declaration to any of those purported commercial units, although they are
referenced in the declaration's exhibits. In fact, no other provision in the
body of the declaration appears to contemplate the existence of commercial
units.
More importantly, this scanty commercial-units language conflicts
directly or implicitly with numerous other provisions of the declaration
that reflect an understanding that the condominium was to be purely
residential:
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Subsection
Topic
Provision
Inconsistency
5.01
Development
Plan: General
Description of
Improvements
"The Building contains eight (8)
levels, one through eight. Each
level also contains a storage
Unit assigned to each
condominium Unit for a total of
one hundred four (104) storage
Units. Each level contains
thirteen (13) CONDOMINIUM
RESIDENTIAL UNITS. There
are six (6) types of
condominium residential Units.
There are a total of one
hundred four (104)
condominium residential Units
as shown on the Plans."
The general description
does not mention
commercial units or any
units beyond the 104
residential units and
their associated storage
units.
6.01-6.07
Descriptions
"Features," "Private Residential
Elements," "Common
Elements," "Limited Common
Elements," "Unit Boundaries,"
"Surfaces," and "Balconies" are
described.
No commercial units
are described or even
mentioned in this
otherwise
comprehensive and
highly detailed section.
6.05
Descriptions:
Unit
Boundaries
"The vertical boundaries of each
Unit shall be the plane of the
inside surfaces of the studs
which are the component parts
of the exterior walls and of
interior walls separating a Unit
from another Unit ...."
The purported Check-in
and Housekeeping
units were not enclosed,
and the glass walls of
the Sales Office unit did
not have studs. The
declaration contains no
boundaries description
for such units.
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15.01
Use
Restrictions:
Single Family
Residences
"The condominium property
shall be used only for single
family residences, and for the
furnishing of services and
facilities herein provided for the
enjoyment of such residences.
Each of the Units shall be
occupied only by a single family
and its guests as a residence
and for no other purpose."
Brett/Robinson was not
a single family and was
not using the purported
commercial units as a
residence.
18.0610
Amendment:
Provisions
Pertaining to
the Developer
"The Developer may make such
use of the unsold Units and of
the common areas and facilities
as may facilitate ... completion
[of the condominium
development] and sale [of
Units] .... The Developer may
maintain sales offices,
management offices, leasing
and operations offices, and
models in any Unit of the
Condominium or on the
Common Elements in the
Condominium without
restriction as to the number,
size or location of said [offices
and models]. The Developer
shall be permitted to relocate
said [offices and models] from
one Unit location to another or
from one area of the Common
Elements to another area of the
Common Elements in the
Condominium.... The rights of
the Developer as provided for in
this paragraph shall cease and
terminate ten (10) years from
the date of the recording of this
Declaration ...." (Emphasis
added.)
This provision
contemplates that the
developers will use
unsold units and
common areas for sales,
management, leasing,
and operations offices,
for a limited time. This
provision does not
contemplate that the
developers (or the
developers' property-
management company)
will purchase any units
or occupy units in
perpetuity.
10Subsection 18.06 was cited in Montgomery and the Association's
oral-argument exhibit in this Court, without objection from the appellants.
Therefore, this subsection is properly before us.
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Condominium declarations must be interpreted according to
contract-law principles. 15B Am. Jur. 2d Condominiums, Etc. § 8 (2011).
"A condominium declaration must be construed as a whole, and the
general intent of the contract should prevail, such as when the contract
contains contradictory or inconsistent provisions." 10 Fla. Jur. 2d
Condominiums, Etc. § 9 (2021); see Homes of Legend, Inc. v. McCollough,
776 So. 2d 741, 746 (Ala. 2000) ("Under general Alabama rules of contract
interpretation, the intent of the contracting parties is discerned from the
whole of the contract."). "The parties' intent in a condominium's
declaration ... is to be ascertained from the writing alone if possible."
Elizabeth Williams, "Cause of Action to Enforce, or Declare Invalid,
Restriction on Use of Condominium Property," 14 Causes of Action 2d 315,
§ 13 (2000) (Supplement). Moreover, "[i]t is elementary that it is the terms
of the written contract, not the mental operations of one of the parties,
that control its interpretation. Stated another way, the law of contracts is
premised upon an objective rather than a subjective manifestation of
intent approach." Harbison v. Strickland, 900 So. 2d 385, 391 (Ala. 2004)
(quotation marks and citations omitted).
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Thus, here the first interpretive question is an objective one about
whether the declaration's meaning is plain: Would an ordinary reader of
the declaration, having been reasonably well informed about the structure
of condominium property rights, believe that the declaration plainly
created four commercial units? Based on the above irreconcilable
inconsistencies in the declaration, the answer is no; the reader would at
least be confused. To put it in contract-interpretation terms, the
declaration was ambiguous.
Just like ambiguities in a contract, ambiguities in a condominium
declaration must be construed against the drafter. See Homes of Legend,
776 So. 2d at 746 ("[I]f all other rules of contract construction fail to
resolve the ambiguity, then, under the rule of contra proferentem, any
ambiguity must be construed against the drafter of the contract."); 10 Fla.
Jur. 2d Condominiums, Etc. § 9 ("Any ambiguity in a declaration of
condominium is construed against the author of the declaration."); 15B
Am. Jur. 2d Condominiums, Etc. § 8, Practice Tip ("Any ambiguity in a
declaration must be construed against the developer who authored the
declaration."). Here, it is not clear that any other rule of construction
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would resolve the ambiguity,11 and the declaration's pervasive ambiguity
about commercial units must be construed against the developers.
Specifically, the purported commercial units were for the benefit of the
developers or entities closely associated with the developers. Thus, the
declaration must be construed as not creating those units. Therefore, the
circuit court correctly declared that no commercial units existed.12
The next question is therefore whether reformation was an
appropriate remedy in tandem with the declaratory judgment: specifically,
whether the circuit court exceeded its discretion by reforming the
declaration to correspond to the court's judgment that the declaration did
not create commercial units. Although a declaratory judgment construing
11It could be argued that the general/specific canon of construction,
see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts § 28 (Thomson/West 2012), applies because the declaration
purports to create specific commercial units and the declaration's exhibits
include specific calculations and drawings that account for those purported
units. That canon does not apply, however, because the language of the
declaration is equally specific in excluding commercial units.
12In light of this interpretation of the recorded declaration itself, it is
unnecessary to determine whether the prepurchase documents provided
to Montgomery complied with the AUCA, a question that raises various
collateral concerns.
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an instrument is subject to de novo review (if confined to the four corners
of the instrument) and ore tenus deference (if based on parol evidence), a
trial court's award of an equitable remedy such as reformation is generally
reviewed for an exceeding of discretion, see Patterson v. Robinson, 620 So.
2d 609, 612 (Ala. 1993) ("[Trial c]ourts traditionally ... enjoy[] considerable
discretion in fashioning equitable remedies."). "A court exceeds its
discretion ... when it ... has exceeded the bounds of reason in view of all
circumstances ...." Edwards v. Allied Home Mortg. Cap. Corp., 962 So. 2d
194, 213 (Ala. 2007).
This Court has held that condominium declarations are subject to
reformation. See Cedar Bend Ass'n v. Owens, 628 So. 2d 506 (Ala. 1993).
And this remedy is not novel; it has been endorsed by other states for at
least four decades. See, e.g., Dickey v. Barnes, 268 Or. 226, 231, 519 P.2d
1252, 1254 (1974) ("[W]e see no impediment to reforming [the
condominium declaration] to conform to the requirement of the statute.");
Providence Square Ass'n v. Biancardi, 507 So. 2d 1366 (Fla. 1987)
(allowing reformation of declaration when statutory process for amending
declaration did not provide adequate relief).
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Moreover, recorded instruments that create property interests may
be reformed in a manner that diminishes a party's purported interest. See,
e.g., Taylor v. Burns, 250 Ala. 218, 34 So. 2d 5 (1948) (affirming
reformation of deed to diminish defendant's claimed interest in property
and to convey the smaller portion intended). See generally Tilley's
Alabama Equity § 9:3; 66 Am. Jur. 2d Reformation of Instruments §§ 48-49
(2011). And there is no substantive difference between diminishing a
purported interest and eliminating one; these are different degrees of the
same remedy. See, e.g., Dalrymple v. White, 402 So. 2d 968 (Ala. 1981)
(affirming reformation that eliminated purchaser's claimed interest in
house because evidence showed intent to convey different house); Monroe
v. Martin, 726 So. 2d 701 (Ala. Civ. App. 1998) (affirming reformation that
eliminated husband's purported interest in property).
Further, the appellants are incorrect in arguing that the declaration
was not subject to reformation because its commercial-units language
accurately reflected the developers' intent. The reformation here was
permissible not based on the subjective intent of the developers, but based
on the above objective construction of the declaration itself.
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As explained above, the declaration, properly interpreted, did not
create commercial units. Therefore, the circuit court did not "exceed[] the
bounds of reason," Edwards, 962 So. 2d at 213, by reforming the
declaration to conform to this interpretation and to eliminate the
ambiguity for future readers of the declaration. Accordingly, the court did
not exceed its discretion by awarding reformation.
In my view, the circuit court interpreted the declaration properly and
acted within its equitable powers to provide a reasonable form of relief
under the facts of this case. If a developer wants to add a completely
different kind of unit to a condominium plan, it must do a much better job
of making that change clear and consistent throughout the document that
creates the condominium. I would affirm the judgment.
72 | June 30, 2021 |
84974ede-3607-4268-b301-c3efa7c4236a | Ex parte Ronnie Lee Brown. | N/A | 1200597 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200597
Ex parte Ronnie Lee Brown. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Ronnie Lee Brown v. State of
Alabama) (Escambia Circuit Court: CC-79-362; Criminal Appeals :
CR-19-0720).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
ebc934e1-69fb-477f-ab70-4fbfaeb95358 | Ex parte Justin White. | N/A | 1180785 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1180785
Ex parte Justin White. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Justin White v. State of Alabama)
(Jefferson Circuit Court: CC-09-1813.60; Criminal Appeals :
CR-16-0741).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 25, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, 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 2 5 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 25, 2021 |
a625a072-a316-4a59-8515-1a5d01ad7233 | Ex parte Dayvon Samuel. | N/A | 1200593 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200593
Ex parte Dayvon Samuel. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Dayvon Samuel v. State of
Alabama) (Escambia Circuit Court: CC-15-587.72; Criminal Appeals :
CR-20-0038).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
53b9c1f3-f513-49c5-b26b-e307dc2db4f4 | Ex parte Arthur Brennan Malloy. | N/A | 1200216 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200216
Ex parte Arthur Brennan Malloy. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: Arthur Brennan Malloy v.
Kenneth N. Peters, DeWayne Estes, Alabama Department of Corrections,
and Alabama Board of Adjustment) (Montgomery Circuit Court: CV-17-709;
Civil Appeals :
2190452).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
ad3fe669-1c78-4853-aeb2-5224e97776b2 | Ex parte LG Chem, Ltd. | N/A | 1200168 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1200168
Ex parte LG Chem, Ltd. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Noor
Abbas v. Cloud 9 Vapes, L.L.C.; Vapro Supply, LLC c/o Registered Agent Capitol
Cor; LG Chem, Ltd.; et al.) (Mobile Circuit Court: CV-18-901685).
ORDER
The petition for writ of mandamus in this cause is denied.
BOLIN, J. - Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 25th day of June, 2021.
/ra | June 25, 2021 |
3ba66114-efb9-4794-9f70-50c7c76869b9 | Ex parte Octavius Shuman Bryant. | N/A | 1200637 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200637
Ex parte Octavius Shuman Bryant. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Octavius
Shuman Bryant v. State of Alabama) (Lee Circuit Court: CC-15-697.60;
Criminal Appeals :
CR-19-1070).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
b55adc8b-b4c5-4a9a-b8be-3e8ec99026eb | Lem Harris Rainwater Family Trust, Charles Edward Rainwater, Jean Rainwater Loggins, and Rainwater Marital Trust v. Lenn Rainwater | N/A | 1190951 | Alabama | Alabama Supreme Court | REL: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190951
____________________
Lem Harris Rainwater Family Trust, Charles Edward
Rainwater, Jean Rainwater Loggins, and Rainwater Marital
Trust
v.
Lenn Rainwater
____________________
1190952
____________________
Lem Harris Rainwater Family Trust, Charles Edward
Rainwater, Jean Rainwater Loggins
v.
Lenn Rainwater
Appeals from St. Clair Circuit Court
(CV-18-900281)
MITCHELL, Justice.
These appeals spring from a legal dispute between four siblings
about the management of trusts set up by their parents. The siblings --
Lenn Rainwater ("Lenn"), Charles Edward Rainwater ("Charles"), Jean
Rainwater Loggins, and Mary Rainwater Breazeale -- executed a
settlement agreement resolving their dispute, but, in appeal no. 1190952,
we are asked to consider whether that agreement should be declared void.
Lenn has also sought to garnish trust assets that she says are hers; in
appeal no. 1190951, we are asked to decide whether those garnishment
proceedings should be quashed. But we ultimately do not reach either of
those issues because both appeals are due to be dismissed -- appeal no.
1190952 was filed too late and appeal no. 1190951 was filed too soon.
Facts and Procedural History
Lem Rainwater ("Lem") and Jean Rainwater ("Jean") had four
children -- Lenn, Charles, Loggins, and Breazeale. In 1995, Lem and Jean
2
1190951, 1190952
set up the Lem Harris Rainwater Family Trust ("the Family Trust"). The
terms of the Family Trust provided that when one of them died, the trust
assets would be split so that the deceased parent's assets would go into
the Rainwater Bypass Trust and the remaining assets would go into the
Rainwater Marital Trust ("the Marital Trust").1 Jean died in 2007; Lenn
alleges that it is not clear how and if her parents' assets in the Family
Trust were actually divided into the two other trusts at that time.
In January 2009, Lem executed a document purporting to restate the
terms of the Marital Trust. Among other things, this restatement
provided that each of the siblings would receive certain real property upon
his death. Notably, Lenn was to receive all rights to Victorian Village, a
shopping center in Sylacauga. Lem restated the Marital Trust on two
more occasions, in November 2011 and in April 2013.
1A bypass trust is a tax-savings entity "into which just enough of a
decedent's estate passes, so that the estate can take advantage of the
unified credit against federal estate taxes." Black's Law Dictionary 1818
(11th ed. 2019). A bypass trust allows trust beneficiaries, usually the
settlors' children, to obtain the property of the first spouse to die, although
the surviving spouse is given a life interest in that property. Id. "Upon
the last spouse's death, all the trust property passes to the trust
beneficiaries outside the estate-tax regime." Id.
3
1190951, 1190952
After Lem's death in 2015, the siblings, who serve as cotrustees of
each of the trusts, disagreed about the effects of certain provisions in the
trust documents. Lenn specifically questioned the validity of certain
changes made by Lem when he restated the terms of the Marital Trust in
April 2013, as well as the fact that rents paid by tenants at Victorian
Village were being collected and treated as trust assets instead of being
remitted to her. In November 2018, Lenn sued her siblings and the
Family Trust in the St. Clair Circuit Court seeking a judgment declaring
their rights under the trust documents and determining the ownership
interests of the siblings in certain trust assets.
The trial court ordered the siblings to mediate their dispute. It
initially appeared that the mediation was successful because, on
November 21, 2019, all four siblings executed a settlement agreement.
That agreement stated that its terms were to remain confidential, but it
generally provided that, "[w]ithin 30 days," a cash payment and all rights
to Victorian Village would be transferred to Lenn. It also required the
parties to execute releases waiving any claims they had against each
other.
4
1190951, 1190952
For reasons that are not entirely clear, the parties did not satisfy
their respective obligations within the 30-day period set out in the
settlement agreement. Charles, Loggins, and Breazeale then moved the
trial court to declare the settlement agreement void because, they alleged,
Lenn had violated its confidentiality provision and refused to execute the
required releases. On February 12, 2020, the trial court entered an order
holding that the settlement agreement was due to be enforced and
directing the parties, within the next 30 days, "to perform each and every
act and to execute any and all documents necessary or expedient to
evidence and consummate the mediation settlement agreement as
heretofore agreed by the parties."
On March 12, 2020, Lenn filed notice stating that she had executed
all the documents required by the settlement agreement and alleging that
Charles and Loggins were refusing to do the same. That same day,
Charles and Loggins -- who had dismissed their previous legal counsel and
retained attorney Jerry M. Blevins to represent them -- filed a motion
stating that they understood the trial court's February 12 order "to be a
final order subject to Rule 59, Ala. R. Civ. P.," and asking the trial court
5
1190951, 1190952
to alter, amend, or vacate that order in accordance with Rule 59.
Breazeale -- still represented by the same counsel who had represented all
three defendant siblings and the Family Trust during the mediation --
filed a response stating that she was no longer challenging the settlement
agreement and that she had executed all the documents the agreement
required.
On April 20, 2020, the trial court denied Charles and Loggins's
motion and again ordered the parties to perform their obligations under
the settlement agreement. Two days later, Blevins filed a notice of
appearance purporting to represent the Family Trust. Lenn and
Breazeale then filed separate responses denying that he represented the
Family Trust; Breazeale further alleged that her attorneys already
represented the Family Trust and that their representation had never
been terminated.
On May 6, 2020, Blevins filed a notice of appeal challenging the trial
court's February 12 order directing the parties to comply with the
settlement agreement; that notice listed the Family Trust as an appellant
along with Charles and Loggins. The next day, Blevins filed a motion
6
1190951, 1190952
with the trial court asserting that it had lost jurisdiction to conduct
further proceedings in the case -- including the authority to rule on
whether he properly represented the Family Trust -- because of the
pending appeal. At a hearing conducted later that day to clarify its
jurisdiction, the trial court identified another jurisdictional issue --
whether its February 12 order directing the parties to comply with the
settlement agreement was a final judgment that could support an appeal.
In a written order, the trial court concluded that it was. But, the
court explained, even if the order was instead an interlocutory order
granting injunctive relief, it was still appealable. See Rule 4(a)(1)(A), Ala.
R. App. P. (authorizing the appeal of "any interlocutory order granting,
continuing, modifying, refusing, or dissolving an injunction"). The court
further concluded that, based on the pending appeal, it no longer had
jurisdiction to decide which attorneys were representing the Family Trust.
Two weeks later, Lenn served a process of garnishment on Regions
Bank. Consistent with the discussion at the May 7 hearing, Lenn alleged
that a final judgment had been entered in her favor on February 12, and
that Regions Bank was holding assets in an account belonging to the
7
1190951, 1190952
Marital Trust that she was entitled to recover to satisfy that judgment.
Regions Bank filed an answer stating that it would hold the sum claimed
by Lenn "until the court orders release or payment or until [the] funds are
remitted per statute." Blevins -- purporting to represent the Marital
Trust as well as Charles, Loggins, and the Family Trust -- then moved the
trial court to quash the garnishment proceedings. The trial court denied
that motion, and Blevins filed another notice of appeal, listing Charles,
Loggins, the Family Trust, and the Marital Trust as appellants and
seeking appellate review of that order.2
Appeal no. 1190952
Before considering the issue that Charles, Loggins, and the Family
Trust raise in this appeal -- whether the trial court's February 12 order
enforcing the settlement agreement should be reversed because of Lenn's
alleged breach of that agreement -- we must address whether we have
2Whether Blevins is properly representing the Family Trust and the
Marital Trust is an issue that has not been decided by the trial court. We
express no opinion on that issue, but, because Blevins purported to file the
notices of appeal on behalf of those entities, we treat them as appellants
in this opinion.
8
1190951, 1190952
jurisdiction to do so. See Nettles v. Rumberger, Kirk, & Caldwell, P.C.,
276 So. 3d 663, 666 (Ala. 2018) (explaining that jurisdictional matters are
of such importance that an appellate court may take notice of them even
when they have not been raised by the parties). A review of the
procedural history of the case reveals that we lack jurisdiction.
At the hearing to consider whether Blevins was properly
representing the Family Trust, the trial court discussed whether its
February 12 order was a final judgment. The court ultimately held that
it was but concluded that the order was appealable in any event based on
this Court's decision in Kappa Sigma Fraternity v. Price-Williams, 40 So.
3d 683 (Ala. 2009) . In that case, a plaintiff who had been assaulted at a
fraternity party settled his lawsuit with a national fraternity and its local
chapter, but there was later disagreement about whether that settlement
encompassed his claims against the individuals who had assaulted him.
40 So. 3d at 687. The trial court in that case granted the plaintiff's motion
to enforce the settlement agreement in accordance with his interpretation,
directing him "to execute a release compliant with the court's findings and
order[ing] the chapter to 'tender the settlement proceeds to [the plaintiff's]
9
1190951, 1190952
counsel.' " Id. at 689. The chapter did not comply with the trial court's
order and instead filed an appeal three days later. Id.
The plaintiff moved to dismiss the appeal as being from a nonfinal
judgment. In addressing that motion, this Court discussed the nature of
the order being appealed and agreed that it was an interlocutory order
granting injunctive relief as opposed to a final judgment. Id. at 690
("Because the ... order commands the chapter to take action, we conclude
that it is injunctive in nature."). But, the Court explained, an appeal can
be taken from an interlocutory order granting an injunction. See Rule
4(a)(1)(A) (authorizing a party to file a notice of appeal "within 14 days (2
weeks) of the date of the entry of ... any interlocutory order granting,
continuing, modifying, refusing, or dissolving an injunction"). The Court
therefore denied the plaintiff's motion to dismiss the chapter's appeal --
which had been filed just three days after the entry of the order enforcing
the settlement agreement -- and proceeded to consider the merits of the
case. Kappa Sigma, 40 So. 3d at 689.
Based on Kappa Sigma, it is clear that the trial court in this case
erred to the extent it held that its February 12 order was a final
10
1190951, 1190952
judgment. That order was injunctive in nature -- because it commanded
the parties to take specific action -- but it was not a final judgment.3 See
Dawkins v. Walker, 794 So. 2d 333, 335 (Ala. 2001) ("An injunction is
defined as '[a] court order commanding or preventing an action.' Black's
Law Dictionary 788 (7th ed. 1999)."). The trial court nevertheless
correctly noted that the February 12 order was appealable under Rule
4(a)(1)(A). Under that rule, any such appeal must be filed "within 14 days
(2 weeks) of the date of the entry of the order or judgment appealed from."
Here, the order granting injunctive relief was entered on February 12, but
no notice of appeal was filed until May 6, well outside the 14-day period
allowed by Rule 4(a)(1)(A).4 Because the notice of appeal was untimely,
3This is not to imply that an injunctive order can never constitute a
final judgment. For example, in Consolidated Electrical Contractors &
Engineers, Inc. v. Center Stage/Country Crossing Project, LLC, 175 So. 3d
642, 649 (Ala. Civ. App. 2015), the Court of Civil Appeals properly held
that a trial court's order dissolving an injunction was a final judgment
subject to the general 42-day time period for filing an appeal. But, unlike
the case now before us, the complaint that initiated that action sought
only injunctive relief and did not assert any underlying claims. Thus, that
court explained, the injunctive order "adjudicated the only claim asserted
in the action." Id.
4We recognize that Charles and Loggins purported to file a Rule 59
postjudgment motion challenging the trial court's February 12 order on
11
1190951, 1190952
we must dismiss the appeal. Beatty v. Carmichael, 293 So. 3d 874, 877
(Ala. 2019); see also Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be
dismissed if the notice of appeal was not timely filed to invoke the
jurisdiction of the appellate court.").
Appeal no. 1190951
Charles, Loggins, the Family Trust, and the Marital Trust argue in
this appeal that the garnishment proceedings should have been quashed.
We must first address our jurisdiction to consider their argument.
Nettles, 276 So. 3d at 666.
March 12. Under Rule 4(a)(3), Ala. R. App. P., a postjudgment motion
filed under Rule 59 will toll the time for filing a notice of appeal. But one
cannot properly file a Rule 59 "postjudgment" motion directed to an
interlocutory order that is not a final "judgment." See Momar, Inc. v.
Schneider, 823 So. 2d 701, 706 (Ala. Civ. App. 2001) (holding that a
purported Rule 59 motion did not operate to extend the time for taking an
appeal under Rule 4(a)(1)(A)). This Court does not appear to have
previously addressed this issue, but we agree with the substance of the
Court of Civil Appeals' holding in Momar. It would be inconsistent with
our caselaw emphasizing the necessity of a timely filed notice of appeal to
permit a party to resurrect a right to appeal by filing a motion to alter,
amend, or vacate two weeks after the period for filing an appeal had
already expired.
12
1190951, 1190952
With regard to garnishment proceedings, § 6-6-464, Ala. Code 1975,
provides that "[a]n appeal lies to the supreme court or the court of civil
appeals, as the case may be, at the instance of the plaintiff, the defendant,
the garnishee, or the contestant, or claimant." The caselaw interpreting
§ 6-6-464 makes clear, however, that such an appeal will lie only when
there has been a final judgment. In Miller Construction, LLC v. DB
Electric, [Ms. 2190467, Jan. 15, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021),
the Court of Civil Appeals considered an appeal with a factual and
procedural history substantially similar to this appeal and concluded that
the appeal was premature. In that case, the garnishers commenced
garnishment proceedings against the defendants, which then moved the
trial court to quash those proceedings. The trial court denied the motion
to quash but did not take any other action. After the defendants filed
their notice of appeal challenging the trial court's denial of their motion
to quash, the Court of Civil Appeals dismissed their appeal, explaining
that "[t]he order denying the motion to quash ... addressed only the
disposition of that motion but did not direct the garnishee ... to disburse
any funds to [the garnishers]. Thus, the ... order denying the motion to
13
1190951, 1190952
quash is not a final judgment and is not capable of supporting this
appeal." Id. See also Robbins v. State ex rel. Priddy, 109 So. 3d 1128,
1132 (Ala. Civ. App. 2012) (explaining that an order denying a motion to
quash garnishment proceedings that does not otherwise adjudicate the
rights of the parties is not a final judgment capable of supporting an
appeal).
Like in Miller Construction, the trial court here denied a motion to
quash garnishment proceedings, but it did not decide what should be done
with the funds that were the subject of the garnishment. The garnishee
Regions Bank has stated that it will hold the funds Lenn seeks to garnish
"until the court orders release or payment," and it appears from the record
before us that the trial court has yet to order either release or payment.
Until such time as the trial court directs Regions Bank to take one of
those actions, there is not a final judgment that will support an appeal.
Miller Construction, ___ So. 3d at ___, Robbins, 109 So. 3d at 1132.
Accordingly, this appeal must be dismissed.
14
1190951, 1190952
Conclusion
The trial court's February 12 order directing the parties to comply
with the terms of the settlement agreement was an interlocutory order
that was injunctive in nature. That order was appealable under Rule
4(a)(1)(A), but any such appeal had to be filed within 14 days of the order's
entry. Charles, Loggins, and the Family Trust filed their notice of appeal
almost three months after the February 12 order was entered -- which
means appeal no. 1190952 must be dismissed as untimely.
Conversely, the notice of appeal filed by Charles, Loggins, the
Family Trust, and the Marital Trust in appeal no. 1190951 was filed too
soon -- no final judgment has been entered in the garnishment
proceedings. Because the trial court's order denying their motion to quash
was not a final judgment, appeal no. 1190951 must be dismissed as
premature.
1190951 -- APPEAL DISMISSED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Stewart, JJ., concur.
1190952 -- APPEAL DISMISSED.
15
1190951, 1190952
Wise, Sellers, and Stewart, JJ., concur.
Mendheim, J., concurs specially.
Parker, C.J., and Bolin, Shaw, and Bryan, JJ., dissent.
16
1190951, 1190952
MENDHEIM, Justice (concurring specially in appeal no. 1190952).
In appeal no. 1190952, it appears to me that the main opinion
correctly applies the analysis in Kappa Sigma Fraternity v.
Price-Williams, 40 So. 3d 683 (Ala. 2009), pertaining to the settlement
order, and no party has asked us to overrule Kappa Sigma.5 However, I
write specially to inquire about what it is the trial court would need to do
in order to render its February 12, 2020, order a final judgment. The trial
court specifically stated that the settlement is enforceable. The Kappa
Sigma Court's only basis for determining after the fact that the settlement
order in that case was an "injunction" was that the "order commanded
[one settlement party] to take specific action -- to pay the settlement
proceeds to [the other settlement party] by March 9, 2009." 40 So. 3d at
690. But if that is the only required characteristic of an injunction, then
many trial-court orders could be considered "injunctions" after the fact
5In Bates v. Stewart, 99 So. 3d 837, 851 (Ala. 2012), this Court
explained: "Because the trial court's order in Kappa Sigma commanded
the parties to take specific action, this Court held that it had jurisdiction
to consider the appeal, even though the order appealed from was not a
final judgment." (Emphasis added.)
17
1190951, 1190952
because trial courts routinely "order" parties to do or not do things, but we
ordinarily do not view those orders as injunctions. As Justice Murdock
observed in his special writing in Kappa Sigma, if "such an order is
properly viewed as an injunction, the order could be procured only upon
proof of the four elements necessary for such equitable relief." Kappa
Sigma, 40 So. 3d at 696 (Murdock, J., concurring in the rationale in part
and concurring in the result). Specifically, a permanent injunction
requires four elements:
" '[A] plaintiff must demonstrate [1] success on the merits, [2] a
substantial threat of irreparable injury if the injunction is not
granted, [3] that the threatened injury to the plaintiff
outweighs the harm the injunction may cause the defendant,
and [4] that granting the injunction will not disserve the public
interest.' "
Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d 692, 702 (Ala.
2008) (quoting TFT, Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242 (Ala.
1999)). But the reality is that in both Kappa Sigma and in this case the
18
1190951, 1190952
elements of a permanent injunction were not satisfied; indeed, they were
not even contemplated by the parties or by the trial court.6
In a case in which this Court carefully explained why an order a
circuit court had entered based on an arbitration panel's decision was a
final judgment, the Court stated that the order was
"one that adjudicates the rights and responsibilities of the
parties. Accordingly, it is enforceable as a final judgment. In
essence, it is a final judgment that requires certain acts of both
parties. As such, it contemplates further enforcement, and
6I also note that the February 12, 2020, order, in stating that "the
Mediation Settlement Agreement is due to be enforced" and ordering the
parties "to perform each and every act and to execute any and all
documents necessary or expedient to evidence and consummate the
mediation settlement agreement as heretofore agreed by the parties,"
relied upon the terms of the settlement agreement without incorporating
that document into the order. However, Rule 65(d)(2), Ala. R. Civ. P.,
requires that "[e]very order granting an injunction shall set forth the
reasons for its issuance; shall be specific in terms; [and] shall describe in
reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained ...." (Emphasis added.)
Cf. Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244, 1247 (11th
Cir. 2012) (Pryor, J., concurring) (reasoning that, because a district court
"did not intend to issue an injunction when it entered the order enforcing
the settlement agreement because the district court neither stated that it
was issuing an injunction nor complied with Rule 65(d)," Fed. R. Civ. P.,
the "order enforcing the settlement agreement is not an order of specific
performance that is appealable as an injunction ....").
19
1190951, 1190952
perhaps interpretative acts, by the circuit court. This,
however, does not make it a nonfinal judgment.5
"_________________________
"5'A final judgment is an order "that conclusively
determines the issues before the court and ascertains and
declares the rights of the parties involved." Bean v. Craig, 557
So. 2d 1249, 1253 (Ala. 1990).' Lunceford v. Monumental Life
Ins. Co., 641 So. 2d 244, 246 (Ala. 1994). The determination
whether a judgment is final does not depend on the title of the
order; 'rather, the test of a judgment's finality is whether it
sufficiently ascertains and declares the rights of the parties.'
Ex parte DCH Reg'l Med. Ctr., 571 So. 2d 1162, 1164 (Ala. Civ.
App. 1990) (emphasis added) (citing McCulloch v. Roberts, 290
Ala. 303, 276 So. 2d 425 (1973)). In McCulloch, the Court
explained as follows:
" 'In Ex parte Elyton Land Co., 104 Ala. 88,
91, 15 So. 939 (1893), this court held that:
" ' "... The test of the finality of a
decree to support an appeal is not
whether the cause remains in fieri, in
some respects, in the court of chancery,
awaiting further proceedings necessary
to entitle the parties to the full measure
of the rights it has been declared they
have; but whether the decree which has
been rendered, ascertains and declares
these rights -- if these are ascertained
and adjudged, the decree is final, and
will support an appeal...." '
"290 Ala. at 305, 276 So. 2d at 426 (emphasis added)."
20
1190951, 1190952
Southeast Constr., L.L.C. v. WAR Constr., Inc., 110 So. 3d 371, 376-77
(Ala. 2012) (first emphasis added). See also Helms v. Helms' Kennels,
Inc., 646 So. 2d 1343, 1347 (Ala. 1994) (noting that "a trial court does have
residual jurisdiction or authority to take certain actions necessary to
enforce or interpret a final judgment").
It seems to me that the issue presented in Kappa Sigma and in
appeal no. 1190952 is one of enforcement, not finality of a judgment, and
I do not believe that an order that does nothing more than approve a
settlement and require the parties to fulfill it should be viewed as an
interlocutory order, much less an "injunction." Cf. Saber v.
FinanceAmerica Credit Corp., 843 F.2d 697, 702 (3d Cir. 1988) (explaining
that "[a] settlement agreement is a contract, and an order enforcing a
contract is ordinarily described as an order for specific performance.
'Unlike an injunction, which can be employed procedurally to preserve
rights pending the outcome of the substantive litigation, the remedy of
specific performance is, generally speaking, dispositive of the substantive
rights of the parties.' United Bonding Ins. Co. v. Stein, 410 F.2d 483, 486
(3d Cir. 1969). The fact that a specific date for compliance is attached to
21
1190951, 1190952
an order for specific performance of the settlement agreement does not by
itself transform the enforcement order into a mandatory injunction.");
United States v. American Inst. of Real Estate Appraisers of Nat'l Ass'n
of Realtors, 590 F.2d 242, 244 (7th Cir. 1978) (finding "no persuasive
authority" for "treating an order approving a settlement as an
injunction"). In sum, it seems to me that the main opinion correctly
applies Kappa Sigma as binding precedent in this case, but I question the
logic of the holding in that case.
22
1190951, 1190952
PARKER, Chief Justice (dissenting in appeal no. 1190952).
I dissent from the main opinion as to appeal no. 1190952 and concur
with Justice Shaw's special writing except as to note 7.
23
1190951, 1190952
SHAW, Justice (dissenting in appeal no. 1190952).
I believe that appeal no. 1190952 was timely; therefore, I
respectfully dissent to dismissing that appeal.
The 14-day period of Rule 4(a)(1)(A), Ala. R. App. P., for filing a
notice of appeal, by its terms, applies to only interlocutory injunctions: "In
appeals from the following orders or judgments, the notice of appeal shall
be filed within 14 days (two weeks) of the date of the entry of the order or
judgment appealed from: (A) any interlocutory order granting ... an
injunction ...." (Emphasis added.) However, when an injunction is a final
judgment and not interlocutory, the 42-day period provided in Rule 4(a)(1)
instead applies. Jefferson Cnty. Comm'n v. ECO Pres. Servs., L.L.C., 788
So. 2d 121, 125-26 (Ala. 2000) ("[T]he 14-day limit prescribed by Rule
4(a)(1)(A), Ala. R. App. P., applies only to interlocutory orders granting an
injunction .... [T]he injunction order is not an 'interlocutory order' and is
appealable without regard to the provisions of Rule 4(a)(1)(A). We
conclude that the 42-day limit, rather than the 14-day limit, applies ....").
See also Consolidated Elec. Contractors & Eng'rs, Inc. v. Center
Stage/Country Crossing Project, LLC, 175 So. 3d 642, 649 (Ala. Civ. App.
24
1190951, 1190952
2015) (holding that an order dissolving an injunction "was a final,
appealable judgment" from which a party had 42 days to appeal).
The February 12, 2020, order at issue in appeal no. 1190952 resolved
a challenge to a settlement agreement and enforced the agreement
against the parties. Under the authority of Kappa Sigma Fraternity v.
Price-Williams, 40 So. 3d 683 (Ala. 2009), the order is in the nature of an
injunction. The settlement agreement itself resolved all claims by all
parties in the underlying action. Often, parties that settle an action will
have the trial court enter the settlement agreement as a judgment, and
it appears that the February 12, 2020, order, in substance, does so.
Because there was nothing more for the trial court to do in this action to
resolve the claims of the parties, the injunction was final, and the 42-day
period of Rule 4(a)(1), and not the 14-day period of Rule 4(a)(1)(A), applies
to the judgment. Bekken v. Greystone Residential Ass'n, 227 So. 3d 1201,
1213 (Ala. Civ. App. 2017) (holding that an injunction that "did not
require further action by the trial court" was "a final judgment issuing a
permanent injunction rather than ... an interlocutory order issuing a
25
1190951, 1190952
preliminary injunction," and thus the 42-day period under Rule 4(a)(1)
applied).
The Court in Kappa Sigma, supra, applied Rule 4(a)(1)(A) to the
appeal in that case, but there was no precise holding on whether the
injunction in that case was interlocutory because it was irrelevant: the
Court's decision addressed whether an order enforcing a settlement was
considered an injunction, and the appeal from it, filed within three days,
was timely under either Rule 4(a)(1) or (a)(1)(A). In any event, Kappa
Sigma did not hold that all injunction rulings, interlocutory or not, were
controlled by Rule 4(a)(1)(A), which would have been contrary to the
language of the rule.
This Court, on its own motion, must recognize the lack of appellate
jurisdiction. McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017) ("[T]he
absence of subject-matter jurisdiction cannot be waived, and it is the duty
of an appellate court to notice the absence of subject-matter jurisdiction
ex mero motu.").7 The timely Rule 59(e), Ala. R. Civ. P., motion to alter,
7This Court's decision in Nettles v. Rumberger, Kirk & Caldwell,
P.C., 276 So. 3d 663 (Ala. 2018), erroneously applied this rule to provide
26
1190951, 1190952
amend, or vacate the February 12, 2020, order filed in this case suspended
the time to file the notice of appeal. See Rule 4(a)(3), Ala. R. App. P. The
notice was ultimately filed within 42 days of the trial court's timely denial
of that motion; therefore, I believe that appeal no. 1190952 is timely, and
I respectfully dissent to its dismissal.
Bolin and Bryan, JJ., concur.
that this Court could, on its own motion, overrule unchallenged caselaw
and hold that appellate jurisdiction existed. See Nettles, 276 So. 3d at
672-73 (Shaw, J., dissenting).
27 | June 30, 2021 |
e9691b39-2d80-4a8c-bcf2-dc60b53453aa | JT Construction, LLC v. MW Industrial Services, Inc. | N/A | 1200066 | Alabama | Alabama Supreme Court | Rel: August 20, 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
____________________
1200066
____________________
JT Construction, LLC
v.
MW Industrial Services, Inc.
Appeal from Walker Circuit Court
(CV-20-900278)
SHAW, Justice.
JT Construction, LLC ("JTC"), the defendant below, appeals from
the Walker Circuit Court's judgment awarding declaratory and injunctive
relief to MW Industrial Services, Inc. ("MWI"), the plaintiff in this
contract dispute. We reverse and remand.
1200066
Facts and Procedural History
MWI contracted with Golder Associates, Inc. ("Golder"), to provide
labor and services for a construction project at Plant Gorgas, a power
plant operated by Alabama Power Company ("Alabama Power") in Walker
County. Southern Company Power, Inc. ("Southern Company"), is the
parent company of Alabama Power.1 Pursuant to the terms of a contract
between MWI and Golder ("the master contract"), which governs MWI's
work at Plant Gorgas, MWI was prohibited from "permit[ting] any lien,
affidavit of nonpayment, stop payment notice, attachment or other
encumbrance ... to remain on record against [Plant Gorgas] or the
property upon which it is situated for ... work performed or materials
finished in connection [there]with" by any subcontractor with whom MWI
might also contract.
On or around April 13, 2020, pursuant to a bid proposal provided by
JTC and accepted by MWI, JTC also apparently began work at Plant
Gorgas. JTC's bid proposal provided that 10% of the bid amount was to
1Golder, Alabama Power, and Southern Company are not parties to
the present litigation.
2
1200066
be paid to JTC by April 16, 2020, to allow JTC to purchase necessary tools
and equipment to undertake performance of its duties. At or around that
same time, MWI presented to JTC for execution a "Project-Specific
Supplier Services Agreement" ("the subcontract agreement") regarding
JTC's provision of certain labor and equipment to MWI in connection with
the work at Plant Gorgas. Paragraph 15 of the subcontract agreement
("the lien-waiver provision") precluded JTC, in accordance with the master
contract, from filing a lien against property owned by Alabama Power or
Southern Company.
Initially, JTC attempted to revise the subcontract agreement by
returning to MWI a "Red-Line" version deleting the lien-waiver provision.
Although it asserted that it did not receive, by the agreed-upon date, the
initial promised payment equal to 10% of its bid amount, and despite its
failure to execute the subcontract agreement, JTC nonetheless continued
work at Plant Gorgas.
After JTC had allegedly been working at Plant Gorgas for over 90
days without having received payment, MWI, according to JTC,
purportedly informed JTC that if it did not execute the original, unedited
3
1200066
version of the subcontract agreement, JTC would not be paid for its
previously completed work. JTC, allegedly in desperate need of the funds
to pay certain outstanding invoices, signed the subcontract agreement on
June 10, 2020.
Following execution of the subcontract agreement, a dispute arose
between MWI and JTC in connection with JTC's performance of its
contractual obligations and the amount owed to JTC for the work it had
performed. In September 2020, counsel for JTC provided a "Notice of
Mechanics' Lien" indicating that JTC claimed against the real property on
which Plant Gorgas was situated a lien in the amount of $1,195,152.92
"for goods, services and materials rendered or furnished for said buildings
and improvements" in connection with JTC's work under the subcontract
agreement.
In a subsequent written response, MWI pointed out the language of
the lien-waiver provision and demanded that JTC withdraw the lien
notice. Thereafter, in related correspondence, JTC alleged that it had
executed the subcontract agreement only after MWI had promised to pay
certain past-due amounts to JTC upon execution of the subcontract
4
1200066
agreement. According to JTC, however, those amounts were never paid;
thus, JTC contended that it had been forced to sign the subcontract
agreement under duress to receive payment and that MWI had
fraudulently induced its execution of the subcontract agreement. For both
of the foregoing reasons, JTC disputed that the lien-waiver provision was
enforceable. In further correspondence, MWI asserted that JTC had been
paid for any previous work in May 2020, before its execution of the
subcontract agreement, and again demanded that JTC withdraw its notice
of lien.
On September 24, 2020, JTC filed in the Walker Probate Court a
"Verified Statement of Mechanics' Lien" in the amount of $1,195,152.92
and a supporting affidavit. On September 30, 2020, MWI filed a
complaint against JTC in the Walker Circuit Court seeking both
declaratory and injunctive relief. Specifically, MWI requested, pursuant
to Rule 65, Ala. R. Civ. P., a temporary restraining order and a
preliminary injunction prohibiting JTC from filing a lien on the Plant
Gorgas property and further requiring the withdrawal of the previously
5
1200066
filed lien. MWI also sought a declaratory judgment "giving full force and
effect to" the subcontract agreement.
MWI's complaint was accompanied by supporting exhibits, including
the affidavit of its counsel of record and supporting documentation
demonstrating both MWI's unsuccessful demands that JTC withdraw the
lien notice and the alleged potential for immediate and irreparable
financial harm to MWI if the lien was not withdrawn. Also included was
an affidavit from an MWI officer addressing JTC's contention that it had
signed the subcontract agreement under duress and specifically averring
that the subcontract agreement had to comport with MWI's own
contractual obligations under the master contract; that MWI thus could
never have consented to the striking of the lien-waiver provision; that, at
the time the subcontract agreement was executed, JTC had issued to MWI
invoices totaling $193,887.50 despite the lack of a formal contract between
the parties; that certain invoices submitted by JTC had been rejected on
the grounds that they were erroneous or insufficiently detailed; and that
the "approved" invoices had totaled $145,366.04 and MWI had issued
payment in the amount of $139,320, leaving a balance of $6,046.04 as of
6
1200066
June 10, 2020, the date JTC signed the subcontract agreement. A copy of
the check issued to JTC by MWI on May 29, 2020, in the amount of
$139,320, and reflecting JTC's subsequent deposit on June 2, 2020, was
also included.
On the date MWI's action was commenced, the trial court issued the
requested temporary restraining order requiring JTC to withdraw its lien.
In that same order, the trial court also indicated that on October 7, 2020,
it would hold "a hearing on the preliminary injunction in this cause,
pursuant to Rule 65 ..., as prayed for in [MWI's] complaint."
The record suggests that JTC did not file any response to MWI's
complaint before the scheduled hearing date, but it did appear at the
hearing. JTC was not served with MWI's complaint until October 9,
2020, after the hearing took place.
The transcript of the October 7, 2020, hearing reflects that, at its
beginning, the trial court announced: "[W]e're here today for hearing on
[MWI's] complaint for declaratory judgment and injunctive relief of
preliminary and permanent. At least preliminary. I'm not sure about the
permanent. We'll see where we go with that." At that time, when
7
1200066
questioned by the trial court as to what "[they] need[ed] to accomplish
here today," MWI's counsel replied: "Basically we're looking to get a
preliminary injunction today." Shortly thereafter, following a summary
of MWI's position, its counsel reiterated that "[MWI's] intent [was] to get
a preliminary injunction ...."
Later, when counsel for the parties engaged in argument as to
whether the "irreparable financial injury" alleged by MWI was sufficient
to justify injunctive relief, MWI identified authority allegedly supporting
its claims. At that time, the trial court asked JTC's counsel whether he
had "had time to look at [the authority]" and received a negative response.
The trial court then announced:
"Why don't we proceed on and hear whatever we need to
hear, and then I would imagine I'll take the matter under
advisement. And I'll give each of you an opportunity to
submit, and you can respond to this and argue, as to why
they're not entitled to an injunction and so forth. But let's go
ahead and proceed on to take whatever testimony y'all are
prepared to offer today, if any, and we'll go from there."
(Emphasis added.)
During MWI's subsequent attempt to admit documentary evidence,
including copies of the master contract and subcontract agreement, the
8
1200066
following exchange occurred between counsel for MWI and counsel for
JTC:
"[MWI's counsel]: I'm sorry I'm not showing these
[exhibits] to you, but you've seen them, I'm sure.
"[JTC's counsel]: I haven't."
Thereafter, MWI offered testimony to confirm the details surrounding the
execution of the subcontract agreement, including that the signed
subcontract agreement was in effect at the time that JTC filed its verified
statement of lien, and regarding the payments allegedly made by MWI to
JTC or on JTC's behalf.
After MWI rested, JTC presented testimony from Tim Kittrell, its
vice president, who outlined JTC's invoicing process for the Plant Gorgas
project and the amounts JTC claimed it was owed under the subcontract
agreement. In response to a letter that JTC's counsel offered into
evidence, MWI's counsel pointed out that "attachments" referenced in the
letter did not appear to be appended to the proffered copy. JTC's counsel
indicated that he did not have the attachments at the hearing.
9
1200066
Regarding the allegedly outstanding invoices, which were
specifically labeled as having been rejected by MWI for lack of supporting
detail, Kittrell testified that, despite that label, they were subsequently
"adjusted" and later approved. When asked by MWI's counsel whether he
possessed proof of that alleged approval, Kittrell responded: "I know we
have it. It might not be here today, but we do have that," and further
maintained that JTC possessed "documentation to support [the disputed]
invoices."
Also during Kittrell's testimony, the trial court interrupted to
inquire as follows:
"THE COURT: Can I interrupt just a minute. ... I'm
sorry to do this, but let me ask this. Aren't we getting pretty
much beyond -- what am I missing here? I understand the
relief [MWI is] asking for, which is the injunction to enjoin
[JTC from] filing a lien and for declaratory judgment giving
full force and effect to the agreement, but now, can I not give
full force and effect to that and [JTC] still have [the] right to
file some sort of -- I guess it would be a lawsuit, breach of
contract?
"[MWI's counsel]: Absolutely.
"THE COURT: Well, then, why are we --
10
1200066
"[MWI's counsel]: That's what we've told them. They
can sue us.
"THE COURT: I'm satisfied, I'm satisfied that you're
entitled to the relief you've asked for. But I'm certainly not
prepared to preclude [JTC] from [its] right to proceed on a
breach of contract claim, or however [it] wants to proceed, to
claim that [it's] due some more money from [MWI].
"[MWI's counsel]: We agree, Your Honor, totally.
"THE COURT: ... So who else do you want to put on?
I'm satisfied that the contract is due to be enforced, okay? And
so is there something else that you all would offer to show me
why it shouldn't be enforced?
"[JTC's counsel]: Yes, we have further evidence ... to go
towards the duress argument."
At the conclusion of its evidentiary submission, JTC objected to
granting an injunction and renewed its earlier argument that the financial
harm alleged by MWI "is not sufficient for preliminary injunction." The
trial court overruled JTC's objection and stated on the record its intent "to
grant [MWI] the relief requested."
Following a discussion between the trial court and MWI's counsel
regarding the proper way to "enjoin" the existing lien, the trial court's
request that MWI present a proposed order "one day next week," and the
11
1200066
trial court's related instruction to JTC's counsel that "if [JTC has] some
problem with the way it's proposed, [to] let [the trial court] know," the
hearing concluded upon the following additional exchange between the
trial court and MWI's counsel:
"[MWI's counsel]: Thank you, Your Honor. Is that
granting the preliminary injunction or granting just the total
injunction that no liens can be filed under [the agreement]?
"THE COURT: Yeah, that's what I'm -- yes, I'm ordering
you the relief you requested, without precluding [JTC] from
taking further action to recover what [it says it is] due under
the agreement."
As mentioned above, on October 9, 2020, two days after the hearing, JTC
was served with MWI's complaint.
On October 15, 2020, the trial court entered an order issuing a
permanent injunction and ruling in favor of MWI on its declaratory-
judgment claim, providing as follows:
"The Court, having considered [MWI's] Complaint ... and all
of the testimony and evidence presented by the parties, finds
that [MWI's] prayer for relief requesting that the [subcontract]
Agreement be declared valid and enforceable and that [JTC]
should be permanently enjoined, both in the past and in the
future, from placing any mechanic's liens on the land, building,
and/or improvements on the property ... at Plant Gorgas ... is
due to be granted."
12
1200066
The trial court also awarded MWI attorneys' fees.
The following day, JTC filed in the trial court an "Answer,
Counterclaim, & Motion to Transfer Venue." In addition to generally
denying MWI's entitlement to the requested relief, JTC asserted
numerous defenses to MWI's claims and a 10-count "compulsory
counterclaim" against MWI seeking damages for, among other things,
breach of contract based on MWI's purported failure to pay JTC's
outstanding invoices for work performed pursuant to the subcontract
agreement. JTC further demanded "trial by struck jury on all matters
raised" and moved, pursuant to Rule 12(b)(3), Ala. R. Civ. P., to transfer
the action to either the Jefferson Circuit Court or the Shelby Circuit Court
in accordance with a choice-of-venue provision in the master contract.
Also on October 16, 2020, JTC filed a "Motion to Reconsider and
Motion to Stay" in which it argued, among other things, that the trial
court had erred in entering a "final determination on the merits" pursuant
to "an un-noticed bench trial" conducted at the time of the hearing
scheduled for review of MWI's preliminary-injunction request. According
to JTC, the trial court's actions deprived it of due process because, at the
13
1200066
time of the hearing, it had not yet been formally served with MWI's
complaint, it had been unprepared to "take and present testimony" for
trial (as opposed to responding to MWI's pending request for a preliminary
injunction) without the benefit of discovery, and it had not yet filed an
answer (which, because it had not yet been served, it was not yet obligated
to file and in which it ultimately asserted defenses to MWI's injunctive
and declaratory-judgment claims, its own compulsory counterclaim, and
a jury demand). In addition, JTC argued that, even if the trial court had
given notice that the October 7, 2020, hearing would be a trial on the
merits, the seven days between the issuance of the trial court's order
setting that hearing and the hearing date would nonetheless have failed
to provide "sufficient time under the Alabama Rules of Civil Procedure to
conduct discovery or subpoena witnesses."
While its postjudgment motion remained pending, JTC filed a notice
of appeal to this Court, which we held in abeyance until the trial court, by
an order entered on November 7, 2020, denied JTC's postjudgment
motion. See Rule 4(a)(5), Ala. R. App. P.
Standard of Review
14
1200066
Because the determinative issue on appeal concerns a question of
law related to the trial court's entry of permanent injunctive relief, we
review that judgment de novo. Holiday Isle, LLC v. Adkins, 12 So. 3d
1173, 1176 (Ala. 2008).
Discussion
On appeal, JTC raises various challenges to the trial court's
judgment. Specifically, among claims challenging both procedural and
substantive aspects of that judgment, JTC alleges that the trial court
deprived JTC of due process and the right to a jury trial by prematurely
proceeding to a final hearing on the merits of the action -- including
whether to grant permanent injunctive relief -- without providing JTC
with either notice or the opportunity to prepare a defense to MWI's claims.
We agree.2
Rule 65(a), Ala. R. Civ. P., provides:
"(1) Notice. No preliminary injunction shall be issued
without notice to the adverse party.
2Because of the dispositive nature of this issue, we pretermit
discussion of the remaining issues JTC raises on appeal.
15
1200066
"(2) Consolidation of Hearing With Trial on Merits.
Before or after the commencement of the hearing of an
application for a preliminary injunction, the court may order
the trial of the action on the merits to be advanced and
consolidated with the hearing of the application. Even when
this consolidation is not ordered, any evidence received upon
an application for a preliminary injunction which would be
admissible upon the trial on the merits becomes part of the
record on the trial and need not be repeated upon the trial.
This subdivision (a)(2) shall be so construed and applied as to
save to the parties any rights they may have to trial by jury."
(Emphasis added.)
In Martin v. Patterson, 975 So. 2d 984, 990-91 (Ala. Civ. App. 2007),
the Court of Civil Appeals considered a similar claim that the defendants
had not received "proper notice that a hearing on the merits of a
permanent injunction would be held, as opposed to a hearing on the
propriety of a preliminary injunction," stating:
"In Woodward [v. Roberson, 789 So. 2d 853 (Ala. 2001)], our
supreme court noted:
"'It is appropriate for the trial court, either before
or after the commencement of the hearing on an
application for a preliminary injunction, to order
that the trial of the action on the merits be
consolidated with that hearing. Rule 65(a)(2), Ala.
R. Civ. P. However, such a consolidation must
conform to the rights of the litigants to reasonable
notice. Pughsley v. 3750 Lake Shore Drive Coop.
16
1200066
Bldg., 463 F.2d 1055 (7th Cir. (Ill.) 1972) (per then
Circuit Judge John Paul Stevens).'
"Woodward, 789 So. 2d at 855. Pughsley v. 3750 Lake Shore
Drive Coop. Bldg., 463 F.2d 1055 (7th Cir. 1972), which is cited
in Woodward, also stated that 'the parties should be given a
clear opportunity to object, or to suggest special procedures, if
a consolidation is to be ordered.' 463 F.2d at 1057.
"In determining that the trial court had entered a
preliminary injunction and not a permanent injunction in
Woodward, our supreme court distinguished the facts in that
case from those in TFT[, Inc. v. Warning Systems, Inc., 751 So.
2d 1238, 1242 (Ala. 1999), overruled on other grounds by
Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala. 2008),]
by observing that 'the parties in TFT agreed to the
consolidation of the hearing on the preliminary-injunction
request with a hearing on the merits.' 789 So. 2d at 855 (citing
TFT, 751 So. 2d at 1241-42). In regard to that agreement our
supreme court noted in TFT that 'the trial court asked the
parties during the hearing, "Are we going to combine this
hearing with any subsequent hearing, for the record?" and to
that question counsel for each of the parties responded, "Yes,
sir."' 751 So. 2d at 1242. Although at the conclusion of the
second hearing in this case the parties agreed to 'submit it' for
the trial court's consideration, such an agreement is not
similar to the agreement in TFT. In fact, the agreement to
submit the issue for the trial court's determination in this case
is similar to dialogue between the trial court and the attorneys
in Pughsley, supra. In that case the trial court stated:
"'"Now I am going to insist, counsel,
that whatever your total case is, and I
want to give you every reasonable
opportunity to put it in, that you
17
1200066
complete it before I request the
defendants to go ahead.
"'"Now, can you produce your witness
tomorrow...."'
"463 F.2d at 1056. In determining that the trial court's
statement in Pughsley did not meet the notice requirement
under Rule 65(a)(2), Fed. R. Civ. P., the United States Court
of Appeals for the Seventh Circuit stated that the '[p]laintiffs'
counsel could reasonably have understood the judge as merely
requiring a presentation on the following day of the remainder
of plaintiffs' "total case" in support of their pending motion.
That was the only hearing then in progress.' Id. at 1057.
Similarly, within the context of the overall trial-court
proceedings in this case, it is apparent that the parties
intended to submit the question whether the preliminary
injunction should be entered for the trial court's consideration
-- they did not agree to submit the question whether a
permanent injunction should be entered. However, our
analysis does not end with that determination, because:
"'A party contesting the entry of final judgment at
the preliminary injunction stage, however, must
demonstrate prejudice as well as surprise. The
action may be remanded to the trial court for a
determination of whether prejudice has resulted.
On the other hand, if it is clear that consolidation
did not detrimentally affect the litigants, as, for
example, when the parties in fact presented their
entire cases and no evidence of significance would
be forthcoming at trial, then the trial court's
consolidation will not be considered to have been
improper.'
18
1200066
"11A Charles Allan Wright et al., Federal Practice and
Procedure: Civil § 2950 (2d ed. 1995) (footnotes omitted); see
also Rule 45, Ala. R. App. P. (providing that '[n]o judgment
may be reversed or set aside, nor new trial granted in any ...
case ... for error as to any matter of ... procedure, unless ...
after an examination of the entire cause, it should appear that
the error complained of has probably injuriously affected
substantial rights of the parties')."
975 So. 2d at 991-92 (footnote omitted).
A. Notice
In the present case, the record reflects, as JTC notes, that the trial
court specifically noticed the October 7, 2020, hearing as "a hearing on the
preliminary injunction in this cause, pursuant to Rule 65" -- not as a
bench trial on the merits of MWI's claims. Further, the transcript, as
quoted above, suggests that, consistent with the trial court's order and
contrary to the terms of the judgment ultimately entered, the trial court
and MWI suggested on the record that only the issue of preliminary
injunctive relief was at issue at the October 7, 2020, proceeding. In fact,
it was not until the conclusion of the hearing that there was arguably an
indication by the trial court that it was considering granting anything
other than preliminary injunctive relief. Indeed, our review of the record
19
1200066
indicates that apparently neither party appeared certain as to the relief
being contemplated by the trial court either during or at the conclusion of
the proceeding below.
To the extent that the trial court's ultimate comments at the close
of the hearing might have suggested to JTC that the trial court was also
considering granting permanent injunctive relief -- as Rule 65(a)(2) clearly
contemplates -- such notice at that late stage of the proceeding cannot be
deemed adequate in this case, in which JTC was not prepared for a trial
on the merits and in which final relief was awarded before JTC had been
served with MWI's complaint and before its answer was due. See Rule
12(a), Ala. R. Civ. P. ("A defendant shall serve an answer within thirty
(30) days after the service of the summons and complaint upon that
defendant ...."), and Rule 38(b), Ala. R. Civ. P. ("Any party may demand
a trial by jury of any issue triable of right by a jury by serving upon the
other parties a demand therefor in writing at any time after the
commencement of the action and not later than thirty (30) days after the
service of the last pleading directed to such issue."). Moreover, the record
clearly reflects the parties' ongoing dispute -- and widely disparate
20
1200066
positions -- regarding any amounts owed to JTC under the subcontract
agreement, which dispute ultimately formed the basis of JTC's
counterclaims. Under the present circumstances, JTC received
inadequate notice of the consolidation of the preliminary-injunction
hearing with a final hearing on the merits. Cf. Funliner of Alabama,
L.L.C. v. Pickard, 873 So. 2d 198, 219 (Ala. 2003) ("Notice to the adverse
party before a preliminary injunction is issued is mandatory, pursuant to
Rule 65(a), Ala. R. Civ. P. The defendants had no indication that the
request for a preliminary injunction was to be heard at the
class-certification hearing, that the defendants needed to address the
preliminary injunction at that time, or that the request had been set for
a hearing. An adverse party must have notice and a hearing in order to
adequately oppose a request for a preliminary injunction.").
B. Prejudice
As explained in Martin, however, our inquiry does not conclude with
our finding of insufficient notice; instead, we must further consider
whether JTC was prejudiced by that "surprise" consolidation. 975 So. 2d
at 991.
21
1200066
"[The Court of Civil Appeals] held in Martin that a party
objecting to the consolidation of a hearing on a preliminary
injunction with a final trial on the merits under Rule 65(a)(2),
Ala. R. Civ. P., must not only demonstrate surprise that the
hearing was consolidated with a trial on the merits but also
demonstrate that the consolidation resulted in prejudice to
that party. Martin, 975 So.2d at 991-92. To demonstrate such
prejudice, [that court] explained, would require some proof
that the party had lacked the opportunity to present its entire
case or that the party had 'additional "evidence of significance"
that "would be forthcoming at trial."' Id. at 992 (quoting 11A
Charles Alan Wright et al., Federal Practice and Procedure:
Civil § 2950 (2d ed. 1995) ('Wright & Miller')); see also Atlantic
Richfield Co. v. F.T.C., 546 F.2d 646, 651 (5th Cir.1977)
(declining to find error in a Rule 65(a)(2), Fed. R. Civ. P.,
consolidation -- i.e., consolidating a hearing on a preliminary
injunction with a final trial on the merits -- because the
complaining party failed to show prejudice resulting from the
lack of notice of the consolidation). Furthermore, to establish
the required element of prejudice, specific allegations
regarding the evidence that allegedly was not or could not
have been presented must be made by a party objecting to the
consolidation of any of the hearings that might be held under
Rule 65. See Roberts v. Community Hosps. of Indiana, Inc.,
897 N.E.2d 458, 466 (Ind. 2008) ('[T]he prevailing federal rule
is that allegations of prejudice must be specific.')."
Jacobs Broad. Grp., Inc. v. Jeff Beck Broad. Grp., LLC, 160 So. 3d 345,
351-52 (Ala. Civ. App. 2014).
MWI argues that JTC suffered no prejudice from the consolidation
of the preliminary-injunction hearing with the final trial on the merits of
22
1200066
MWI's claims. JTC, however, contends that the trial court's precipitous
actions deprived it of the right to a jury trial. We agree.
It is apparent that, despite the lack of formal service of the
complaint in this case, JTC did receive some type of notice of the
scheduled hearing on MWI's request for a preliminary injunction. That
notice allowed JTC to appear at the scheduled preliminary-injunction
hearing with legal counsel and to offer evidence in opposition to MWI's
request for preliminary injunctive relief. Nonetheless, as demonstrated
by the excerpts from the hearing quoted above, JTC was not fully
prepared to address the merits of MWI's claims because it had not been
provided, or it had lacked sufficient opportunity to locate and review, all
the documentary evidence and applicable legal authority relied on by
MWI. In fact, JTC had not been served with the complaint, and no
discovery had occurred.
Further, despite multiple representations by the trial court that,
following the hearing, JTC would be afforded additional opportunities
both to engage in follow-up briefing of certain issues and to attend future
proceedings, for all that appears those representations were later negated
23
1200066
by the trial court's immediate decisions to award MWI permanent
injunctive relief3 and to rule in favor of MWI on its declaratory-judgment
claim.
Clearly, JTC had the opportunity to present testimony in defense to
MWI's request for a preliminary injunction, which requires a different
evidentiary standard than that applicable to a request for a permanent
injunction. See D.M.C. Enters., Inc. v. Hope, 100 So. 3d 1102, 1109 (Ala.
Civ. App. 2012) ("[A]s opposed to a preliminary injunction, which requires
a showing of a likelihood of success on the merits of the litigation, a
permanent injunction requires proof of success on the merits of the
litigation."). Further, a final disposition so near in time to the filing of
MWI's complaint and before the parties had engaged in any discovery
3Based on the record, the vagueness of the trial court's
representations regarding the precise nature of the relief that the court
was considering -- as well as the ostensible opportunity for further
submissions -- explains JTC's failure to object during the proceeding. See
Martin, 975 So. 2d at 991 ("Pughsley v. 3750 Lake Shore Drive Coop.
Bldg., 463 F.2d 1055 (7th Cir. 1972), which is cited in Woodward[v.
Roberson, 789 So. 2d 853 (Ala. 2001)], also stated that 'the parties should
be given a clear opportunity to object, or to suggest special procedures, if
a consolidation is to be ordered.' 463 F.2d at 1057." (emphasis added)).
24
1200066
gave JTC no opportunity to obtain or identify material evidence. More
importantly, as indicated by its subsequent answer, JTC timely demanded
a jury trial. The trial court's premature consolidation and decision on the
merits, however, deprived JTC of that right in contravention of Rule
65(a)(2), which permits consolidation but "save[s] the parties['] ... rights
... to trial by jury." We conclude that JTC sufficiently demonstrated
prejudice.
Conclusion
Based on the foregoing, we hold that the trial court erred in issuing
the declaratory judgment and in awarding permanent injunctive relief
without prior notice to JTC, as required by Rule 65(a)(2), and that JTC
was prejudiced by that error. The trial court's judgment is therefore
reversed, and this case is remanded for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
25 | August 20, 2021 |
f5a5bc4f-8bad-46f0-a479-b6d33f86ba53 | Peterson v. Triad of Alabama, LLC, d/b/a Flowers Hospital | N/A | 1190982 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190982
____________________
John Dee Peterson and Brenda Peterson
v.
Triad of Alabama, LLC, d/b/a Flowers Hospital
Appeal from Houston Circuit Court
(CV-16-900375)
STEWART, Justice.
John Dee Peterson and Brenda Peterson appeal from a summary
judgment entered by the Houston Circuit Court ("the trial court") in favor
of Triad of Alabama, LLC, d/b/a Flowers Hospital ("Triad") on the
1190982
Petersons' claims asserted in their medical-malpractice action. For the
reasons discussed below, we affirm the judgment.
Facts and Procedural History
John was admitted to Flowers Hospital ("the hospital") in August
2014 for treatment of abdominal pain and fever that was caused by colitis.
John was suffering from chronic lymphocytic leukemia, end-stage renal
disease, and diabetes. While he was admitted to the hospital in August
2014, John had a peripherally inserted central catheter ("PICC line") in
his left shoulder.1 According to the Petersons, on August 30, 2014, after
John had suffered "constant pain and aggravation" around the area where
the PICC line was inserted, a doctor agreed to have John's PICC line
removed the following morning. The Petersons assert that, subsequently,
1According to the Petersons, a PICC line had been placed in John's
hand on June 19, 2014, but they do not indicate who placed that PICC line
or what facility John was in when it was placed. According to Triad, John
already had a PICC line inserted in his left shoulder when he was
admitted to the hospital, and the staff at the hospital did not place that
PICC line. Neither side contends that the dispute regarding when, and by
whom, the PICC line in John's left shoulder was inserted involves a
genuine issue of material fact and, for purposes of this appeal, that
dispute is irrelevant.
2
1190982
a nurse, Matthew Starr, was advised that John was continuing to have
problems with the PICC line but that Starr indicated that he was busy
with other patients. The Petersons contend that another doctor was then
called, that the doctor advised the nurses treating John to take out the
PICC line, and that the nurses refused. The Petersons assert that Starr
"abandoned" John. Thereafter, John experienced a deep vein thrombosis
("DVT"), or a blood clot, in his upper left arm, which caused swelling and
tissue necrosis.
On August 30, 2016, John commenced an action against Triad2
under the Alabama Medical Liability Act of 1987 ("the 1987 AMLA"), §
6-5-540 et seq., Ala. Code 1975.3 Brenda was subsequently added as a
plaintiff and asserted a loss-of-consortium claim. See note 2, supra. In
their complaint, the Petersons alleged that, while he was a patient at the
2Brenda Peterson, John's wife, was subsequently added as a
plaintiff, and Hospital Corporation of America, as the purported owner of
Flowers Hospital, was added as a defendant, but Hospital Corporation of
America was ultimately dismissed after the Petersons learned that it did
not own the hospital.
3The 1987 AMLA is "intended to supplement" the original Alabama
Medical Liability Act, which was enacted in 1975 and is codified at §
6-5-480 et seq., Ala. Code 1975. § 6-5-541, Ala. Code 1975.
3
1190982
hospital, John "received an excessive amount of medicine through a
[PICC] line that caused the receptive arm to become burned and
deformed." In July 2017, after Triad had filed a motion to dismiss based
on the Petersons' alleged failure to specify the facts underlying their cause
of action, the Petersons filed an amended complaint in which they
asserted that "cancer relieving medication" was "administered in incorrect
dosage amounts and remained in [John's] system an excessive and
incorrect amount of time."
Triad then filed a motion for a summary judgment, to which it
attached John's medical records and excerpts from the deposition
testimony of the Petersons and Dr. Jason Beaver, one of John's treating
physicians. Triad argued that the evidence indicated that John was
susceptible to clotting and had suffered a DVT but that there was no
evidence to suggest that medication had been administered improperly or
that it had caused John's injury. Dr. Beaver testified that the
administration of medication did not cause John's tissue loss or injury.
Triad also asserted that the Petersons' designated medical expert, Dr.
George Ansstas -- a hematologist/oncologist -- was not a health-care
4
1190982
provider similarly situated to Starr, the nurse who had provided the
allegedly improper care to John.
The Petersons filed a response in opposition to Triad's summary-
judgment motion in which they argued that Starr had caused John's
injury and that a layperson could understand that without requiring
expert testimony. The Petersons also asserted that the doctrine of res ipsa
loquitur applied. The Petersons purportedly attached to their response
excerpts from the deposition testimony of Dr. Ansstas, Dr. Beaver, and the
Petersons, in addition to an excerpt from the American Medical
Association's Code of Medical Ethics. Those attachments are not contained
in the record. Thereafter, the trial court entered an order directing the
parties to submit legal authority regarding the application of the doctrine
of res ipsa loquitur.
On June 10, 2020, the trial court entered a summary judgment in
favor of Triad, determining that, of the possible exceptions to the
requirement that a medical-malpractice plaintiff provide expert medical
testimony, "only one could conceivably apply: ' Where the plaintiff employs
a recognized standard or authoritative medical text or treatise to prove
5
1190982
what is or is not proper practice.' [Anderson v. Alabama Reference Lab'ys,
778 So. 2d 806, 811 (Ala. 2000)]." The trial court went on to explain:
"[Triad] submitted Dr. Jason Beaver's deposition as a fact
witness. He was [John's] treating physician. (Dr. Beaver's
depo, pp. 9 and 10). Dr. Beaver opined that deep venous
thrombosis (DVT) was the cause of [John's] injury. (Dr.
Beaver's depo. p. 10). He did not believe the injury was caused
by a dirty or clogged PICC line, nor did medication cause the
injury. (Dr. Beaver's depo, pp 11 and 17). Dr. Beaver further
stated:
" '[John] had a deep vein thrombosis. By having
occlusion of the main vein out of his arm, he then
developed the swelling and the swelling caused the
pressure, and the pressure caused the tissue
necrosis.' (Dr. Beaver’s depo, p. 13).
"Based on the testimony of Dr. Beaver it is apparent to
this Court that deep venous thrombosis (DVT) was the cause
of [John's] injury.
"What is not clear to the Court is whether or not the
PICC line had anything to do with the DVT or was a breach of
the standard of care. [The Peterson's] attorney does an
excellent job of linking several medical records and
publications together in an attempt to establish a standard of
care, but fails to satisfy [the Petersons'] burden as to the
breach of the standard of care. For example, [the Petersons]
state[ ]: 'PICCs are associated with higher rates of deep vein
thrombosis (DVT) than other [central venous] access devices....
Critical care patients and those with cancer are also at greater
risk for DVT with PICCs.' ([The Petersons'] brief p. 4). These
statements fall short of proof of a breach of the standard of
6
1190982
care, and certainly, cannot be left to a layperson requiring only
common knowledge.
"[The Petersons] come[] closer to the mark when [they]
refer[] to [Center for Disease Control and Prevention]
guidelines and state[]: 'Although, subclavian insertion is
initially suggested for adults, the treatment of dialysis is
prohibited.' [They] then state[] [that John] was on dialysis
treatment. ([The Petersons'] brief p. 5). However, no predicate
was ever laid for the introduction of these treatises, nor was it
proved that the nurse ordered the PICC line, which only a
doctor can do, nor is it clear what action by the nurse, if any,
was improper. Dr. Beaver opined the injury was not caused by
a dirty or clogged PICC line.
"Based on the foregoing, it is the opinion of this Court
that res ipsa loquitur does not apply. It is therefore ordered,
adjudged, and decreed that [Triad's] motion for summary
judgment is due to be and is hereby granted. This action is a
final disposition of the case."
The Petersons filed a motion to vacate the summary judgment,
which was denied. The Petersons filed a notice of appeal on July 7, 2020.
Standard of Review
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
7
1190982
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is no
genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
Discussion
The Petersons brought their action under the 1987 AMLA. Section
6-5-548(a), Ala. Code 1975, a part of the 1987 AMLA, requires a plaintiff
in a medical-malpractice case to prove "by substantial evidence that the
health care provider failed to exercise such reasonable care, skill, and
diligence as other similarly situated health care providers in the same
general line of practice ordinarily have and exercise in a like case." This
Court has explained that, in satisfying the substantial-evidence burden,
a plaintiff
8
1190982
"ordinarily must present expert testimony from a 'similarly
situated health-care provider' as to (1) 'the appropriate
standard of care,' (2) a 'deviation from that standard [of care],'
and (3) 'a proximate causal connection between the
[defendant's] act or omission constituting the breach and the
injury sustained by the plaintiff.' Pruitt v. Zeiger, 590 So. 2d
236, 238 (Ala. 1991) (quoting Bradford v. McGee, 534 So. 2d
1076, 1079 (Ala. 1988)). The reason for the rule that proximate
causation must be established through expert testimony is
that the issue of causation in a medical-malpractice case is
ordinarily 'beyond "the ken of the average layman." ' Golden v.
Stein, 670 So. 2d 904, 907 (Ala. 1995), quoting Charles W.
Gamble, McElroy's Alabama Evidence, § 127.01(5)(c), p. 333
(4th ed. 1991). The plaintiff must prove through expert
testimony 'that the alleged negligence "probably caused the
injury." ' McAfee v. Baptist Med. Ctr., 641 So. 2d 265, 267 (Ala.
1994)."
Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 942 (Ala. 2000). "An
exception to [the expert-medical-testimony] rule exists where the lack of
care is so apparent as to be within the ken of the average layman." Jones
v. Bradford, 623 So. 2d 1112, 1114-15 (Ala. 1993).
In Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala. 2002), this Court
reformulated the exceptions to the expert-medical-testimony rule
" to recognize first, a class of cases ' "where want of skill or lack
of care is so apparent ... as to be understood by a layman, and
requires only common knowledge and experience to
understand it," ' [Tuscaloosa Orthopedic Appliance Co. v.]
Wyatt, 460 So. 2d [156] at 161 [(Ala. 1984)](quoting Dimoff v.
9
1190982
Maitre, 432 So. 2d 1225, 1226-27 (Ala. 1983)), such as when a
sponge is left in, where, for example, the wrong leg is operated
on, or, as here, where a call for assistance is completely
ignored for an unreasonable period of time. A second exception
to the rule requiring expert testimony applies when a plaintiff
relies on ' " ' a recognized standard or authoritative medical
text or treatise,' " ' Anderson [v. Alabama Reference Lab'ys.],
778 So. 2d [806] at 811 [(Ala. 2000)], or is himself or herself a
qualified medical expert."
Id. at 39. Then, in Collins v. Herring Chiropractic Center, LLC, 237 So. 3d
867, 871 (Ala. 2017), this Court explained:
"The Court's reformulation of categories in HealthSouth
essentially clarifies the exceptions to the general rule
requiring expert testimony in medical-malpractice actions by
emphasizing in the first exception as reformulated that there
are situations where the lack of skill is so apparent as to be
understood by a layperson, thereby requiring only common
knowledge and experience to understand it, and that further
the list of examples of such situations was not exhaustive but
merely set out examples of possible situations. In the second
exception as reformulated, the Court simply combines the use
of an authoritative treatise and the plaintiff's own testimony
as a medical expert as the second exception to the general
rule."
As best this Court can discern, the Petersons argue that they
established causation because, they say, Triad's witness, Dr. Beaver,
acknowledged in his deposition testimony that John's arm was damaged
from a DVT and, although Triad asserted that the DVT occurred from
10
1190982
John's numerous medical conditions, "a hospital record indicated that the
DVT, experienced by [John] was PICC line derived." The Petersons' brief
at p. 6. The Petersons cite a document in the record that appears to be an
incomplete discharge summary that states: "An ultrasound of [John's]
extremity was obtained, which was positive for a PICC related DVT ...."
First, the Petersons do not provide any context regarding this incomplete
document, nor do they indicate who authored the document or whether
that person is a health-care provider similarly situated to Starr. In
addition, the Petersons alleged in the trial court that John's injury was
caused by the improper administration of medication through John's PICC
line; they did not allege that a DVT caused his injury. Moreover, the
Petersons do not provide any legal authority or sufficient argument to
support their proposition. See Rule 28(a)(10), Ala. R. App. P.; see also
State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806 (Ala. 2005).
The Petersons next argue that the breach of the standard of care can
be established under the doctrine of res ipsa loquitur.
Although, in their
appellate brief, the Petersons cite general propositions of law regarding
the doctrine res ipsa loquitur, they do not explain how their case presents
11
1190982
an exception to the general rule requiring expert testimony in a
medical-malpractice action. " 'It is well established that general
propositions of law are not considered "supporting authority" for purposes
of Rule 28[(a)(10), Ala. R. App. P.]. Ex parte Riley, 464 So. 2d 92 (Ala.
1985).' S.B. v. Saint James Sch., 959 So. 2d 72, 89 (Ala. 2006)." Allsopp v.
Bolding, 86 So. 3d 952, 960 (Ala. 2011).
Moreover, the Petersons do not address the trial court's
determination that they failed to satisfy their burden as to the breach of
the standard of care. This Court has explained: "To establish the
standard, 'ordinarily, the plaintiff must offer expert medical testimony as
to what is or what is not the proper practice, treatment, and procedure.' "
McGill v. Szymela, [Ms. 1190260, Dec. 31, 2020] ___ So. 3d ___, ___ (Ala.
2020) (quoting Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1129 (Ala.
1985)). The Petersons do not point to any expert medical testimony
establishing the standard of care regarding PICC lines and the
administration of medication through them.
The Petersons assert that the Centers for Disease Control and
Prevention ("CDC") guidelines that they presented to the trial court
12
1190982
establish that the "catheter was incorrectly placed" and could have caused
the harm John suffered, which, they assert establishes a jury question.
The Petersons' brief at pp. 7-8. The Petersons fail to acknowledge, or
challenge, the trial court's determination that they never laid a proper
predicate for the introduction of the CDC guidelines. As Triad points out,
although "medical treatises are admissible, as a precondition or predicate
to their admission, the rule requires that the party seeking to introduce
medical books authenticate them as 'standard works within that
profession.' " Johnson v. McMurray, 461 So. 2d 775, 779-80 (Ala. 1984)
(quoting Comment, Learned Treatises as Direct Evidence: The Alabama
Experience, 1967 Duke L.J. 1169, 1171 (1967)). Because the Petersons did
not properly authenticate the CDC guidelines, and because they do not
even assert that they attempted to authenticate those guidelines or
otherwise challenge the trial court's determination on that point, they
cannot rely on those guidelines on appeal.
Conclusion
Ultimately, the Petersons do not make an argument supported by
sufficient authority demonstrating that the trial court erred. They failed
13
1190982
to present expert medical testimony from a similarly situated health-care
provider to establish the applicable standard of care, a deviation from that
standard, and proximate causation linking the actions of hospital staff to
John's injury. Lyons, 791 So. 2d at 942. Accordingly, the trial court's
summary judgment is affirmed.
AFFIRMED.
Parker, C.J., and Bolin and Wise, JJ., concur.
Sellers, J., concurs in the result.
14 | June 30, 2021 |
faee68e7-5679-431b-a756-32eab3fd723e | Vectus 3, Inc. v. Shorter Brothers, Inc., Joseph Shorter, and Jason Shorter | N/A | 1190903 | Alabama | Alabama Supreme Court | rel: June 25, 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, 2020-2021
____________________
1190876
____________________
Shorter Brothers, Inc., Joseph Shorter, and Jason Shorter
v.
Vectus 3, Inc.
____________________
1190903
____________________
Vectus 3, Inc.
v.
Shorter Brothers, Inc., Joseph Shorter, and Jason Shorter
Appeals from Jefferson Circuit Court
(CV-19-903870)
MITCHELL, Justice.
Vectus 3, Inc., sued Shorter Brothers, Inc., and its owners for
breaching an asset-purchase agreement and related claims. In doing so,
Vectus asked the trial court to pierce Shorter Brothers' corporate veil --
that is, hold Shorter Brothers' owners personally liable for the company's
actions. The trial court granted complete relief to Vectus and awarded it
damages, leading the defendants to appeal to this Court. Vectus cross-
appealed, arguing that the damages awarded were insufficient. We affirm
the trial court's judgment.
Facts and Procedural History
Vectus operated FedEx Ground delivery routes for several years
before its owner decided to sell its assets. Brothers Joseph Shorter and
Jason Shorter expressed interest in purchasing those assets. In March
2018, Joseph and Jason filed a certificate of formation in the Jefferson
Probate Court to form Shorter Brothers.
Shorter Brothers entered into an asset purchase agreement ("the
Agreement") with Vectus in October 2018. In the Agreement, Shorter
2
1190876, 1190903
Brothers agreed to purchase the rights to Vectus's contract with FedEx
Ground and nine delivery trucks for $400,000 at the closing scheduled for
October 31, 2018. The Agreement obligated Shorter Brothers to wire the
funds to Vectus at closing, which Shorter Brothers planned to finance with
a loan. Because of concerns that Shorter Brothers would not obtain
financing by closing, the parties provided the following financing
contingency in the Agreement:
"[Shorter Brothers] anticipates securing bank financing to
provide the $400,000 for closing. From November 3, 2018 until
the $400,000 (plus accrued interest) is received by [Vectus],
[Shorter Brothers] agrees to pay a rental fee for the 9 trucks
in Schedule B of $1,350 per week .... If funds have not been
received by [Vectus] by January 1, 2019: [Shorter Brothers]
agrees to transfer $40,000 by January 2, 2019 to [Vectus;]
[Shorter Brothers] agrees to make monthly payments of $4,200
to [Vectus] (1st payment due on January 2nd, 2019 ... and due
the 1st of the month after that)[.] [Shorter Brothers] will
diligently seek to secure financing to pay-off the remaining
balance (including accrued interest - which will accrue
monthly @ a 7% annual rate) of the $400,000 taking into
account the $40,000 transfer and any monthly payments
received."
Shorter Brothers failed to obtain financing. As a result, it then paid:
•
The $1,350 weekly rental fees from November 2018 until
January 2019;
3
1190876, 1190903
•
The $40,000 payment in January 2019; and
•
The $4,200 monthly payments from January 2019
through June 2019.
It ceased making any payments after June 2019.
Vectus sued Shorter Brothers, Joseph, and Jason ("the defendants")
in August 2019 in the Jefferson Circuit Court. Vectus asserted claims of
breach of contract, unjust enrichment, and conversion. It also alleged that
Shorter Brothers was the alter ego of Joseph and Jason, and it urged the
trial court to hold them personally liable for Shorter Brothers' actions.
Vectus moved for summary judgment on January 31, 2020. At that
point, Vectus had served written discovery on the defendants but had
encountered difficulty getting them to respond -- even though the trial
court had granted two motions to compel and one motion for sanctions, all
filed by Vectus. The defendants, who had not served any discovery of
their own or conducted any depositions, submitted a general opposition to
Vectus's summary-judgment motion, but they did not attach any affidavits
or other evidence to their filing. The defendants also filed a motion under
Rule 56(f), Ala. R. Civ. P., in which they asked the trial court to deny
4
1190876, 1190903
Vectus's motion for summary judgment and allow them the "opportunity
to finish discovery."
The trial court postponed the hearing on Vectus's summary-
judgment motion from March 3, 2020, until April 29, 2020, "[t]o give all
Parties time to provide more information to the Court ...." The defendants
did not serve or conduct any discovery during the extra time. Despite the
defendants' failure to act, the trial court went forward with the summary-
judgment hearing on April 29. Several weeks later, the defendants hired
new counsel. Not long thereafter, the defendants filed an affidavit from
Joseph contesting some of the factual matters at issue and attaching
various financial documents from Shorter Brothers. Within a few weeks,
while Vectus's summary-judgment motion remained under consideration,
the defendants served their first discovery requests.
The trial court then entered summary judgment and awarded
$400,000 to Vectus -- an amount equal to the purchase price under the
Agreement. Shorter Brothers filed for bankruptcy relief under Chapter
11 of the Bankruptcy Code shortly after the trial court denied the
5
1190876, 1190903
defendants relief from its judgment. The defendants then appealed to this
Court. Vectus cross-appealed.
Analysis
The defendants contend that the trial court erred by (1) failing to
allow further discovery and consider certain documents before entering
summary judgment and (2) piercing Shorter Brothers' corporate veil. In
its cross-appeal, Vectus argues that the trial court properly entered
summary judgment but that the trial court erred by awarding damages of
only $400,000. Vectus argues that its true damages are $597,566. We
address these arguments below.
A. The Defendants' Appeal
1. The Trial Court Did Not Exceed its Discretion by
Disregarding Certain Documents or Precluding Further
Discovery
The defendants argue that the trial court erred by not allowing
further discovery and by not considering documents they submitted in
response to Vectus's summary-judgment motion, including Joseph's
affidavit. Concerning their first argument, Rule 56(f), Ala. R. Civ. P.,
allows a party opposing a summary-judgment motion to file an affidavit
6
1190876, 1190903
notifying the trial court that it is presently unable to present "facts
essential to justify the party's opposition." If the trial court agrees, it
"may deny the motion for summary judgment or may order a continuance
to permit affidavits to be obtained or depositions to be taken or discovery
to be had ...." Id. Whether to grant a continuance under Rule 56(f) is
" 'within the sound discretion of the trial court ....' " Rosser v. AAMCO
Transmissions, Inc., 923 So. 2d 294, 300 (Ala. 2005) (citation omitted). If
the party opposing summary judgment "properly establishes before the
trial court that unresponded-to discovery is crucial to the party's case, it
is error for the trial judge to enter a summary judgment before the
discovery has been supplied." Id. But "[o]nly rarely will an appellate
court find that the trial court has exceeded its discretion in not allowing
a requested continuance for the purpose of conducting further discovery."
Id. at 301.
The defendants filed a motion under Rule 56(f) at the same time
they submitted their general opposition to Vectus's summary-judgment
motion. At that time -- more than five months after the lawsuit began --
the defendants had not served any written discovery or taken any
7
1190876, 1190903
depositions, so there was no "unresponded-to discovery." Id. at 300. And
by that point, the defendants already had a history of failing to adequately
respond to Vectus's discovery. Despite these deficiencies, the trial court
granted the defendants nearly two more months to conduct additional
discovery. There is no indication that the defendants objected on the basis
that this amount of extra time was insufficient.
The summary-judgment hearing came and went without any
affirmative discovery from the defendants. In fact, the defendants did not
serve any discovery until over a month after the summary-judgment
hearing had occurred. And it does not appear that the defendants filed a
second Rule 56(f) motion. Under these circumstances, it is clear that the
trial court did not exceed its discretion by refusing to delay consideration
of Vectus's summary-judgment motion any further. See id. at 302 ("[W]e
cannot find that the trial judge exceeded his discretion in denying a
continuance, given the multiple opportunities available to [the plaintiff]
over the long course of the pendency of this action ...."); McGhee v. Martin,
892 So. 2d 398, 406 (Ala. Civ. App. 2004) (affirming denial of Rule 56(f)
continuance when "the lengthy discovery period and McGhee's apparent
8
1190876, 1190903
delay in moving ahead with the case mitigate[d] against allowing a
continuance").
The defendants also argue that it was "incomprehensible" for the
trial court to "ignore" Joseph's affidavit. Rule 56(c)(2) states: "Subject to
[Rule 56(f)], any statement or affidavit in opposition shall be served at
least two (2) days prior to the hearing." The defendants failed to submit
an affidavit or other evidence until one month after the summary-
judgment hearing. Although the trial court did not mention the affidavit
in its order granting Vectus's summary-judgment motion, it clarified in a
later order that it considered Joseph's affidavit "untimely filed." Given
the plain language of Rule 56(c)(2), the trial court did not err by refusing
to consider Joseph's affidavit.1 See Speer v. Pin Palace Bowling Alley, 599
So. 2d 1140, 1142 (Ala. 1992) (holding that trial court did not abuse its
1The defendants fault their previous counsel for these issues and
highlight the efforts that their new counsel undertook once he was hired.
Regardless of whether the defendants are right to fault their prior
counsel, the propriety of their counsel's actions is not at issue in this
appeal.
9
1190876, 1190903
discretion in refusing to consider affidavit in opposition to summary-
judgment motion filed after the summary-judgment hearing).
2. The Trial Court Did Not Err by Piercing the Corporate Veil
The defendants contend that the trial court erred by entering
summary judgment in favor of Vectus and holding Joseph and Jason
personally liable for Shorter Brothers' actions. We disagree.
Our review of the trial court's summary judgment is de novo, and we
apply the same standard that the trial court applied -- that is, 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.' " Shoals Extrusion, LLC v. Beal, 288 So. 3d
448, 450 (Ala. 2019) (citation omitted). In conducting our review, " 'we
must review the evidence in the light most favorable to the nonmovant.' "
Id. (citation omitted). " '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.' " Id. at 450-51 (citation omitted). And
"[w]hen a motion for summary judgment is made and supported as
10
1190876, 1190903
provided in" Rule 56, Ala. R. Civ. P., "an adverse party may not rest upon
the mere allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for
trial." Rule 56(e). If not, "summary judgment, if appropriate, shall be
entered against [that party]." Id.
The defendants do not contest the trial court's summary judgment
on the breach-of-contract, conversion, or unjust-enrichment claims.
Rather, they argue that the trial court should not have pierced Shorter
Brothers' corporate veil. It is well established that "a corporation is a
legal entity existing separately from its shareholders." First Health, Inc.
v. Blanton, 585 So. 2d 1331, 1334 (Ala. 1991). Thus, "[p]iercing the
corporate veil is not a power that is lightly exercised." Id. It may be
appropriate when the corporate entity is (1) undercapitalized, (2) formed
or operated with a fraudulent purpose, or (3) operated "as an
instrumentality or alter ego" of its shareholders. Id.
Vectus advanced an alter-ego theory. To establish that an entity is
the alter ego of its owners, " '[t]he dominant party must have complete
11
1190876, 1190903
control and domination of the subservient corporation's finances, policy
and business practices so that at the time of the attacked transaction the
subservient corporation had no separate mind, will, or existence of its
own.' " Id. (citation omitted). The defendants concede this element. But
"mere domination cannot be enough for piercing the corporate veil."
Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398, 400 (Ala. 1989).
Rather, "[t]here must be the added elements of misuse of control and harm
or loss resulting from it." Id. Thus, we have held that an alter-ego theory
of piercing the corporate veil is viable where
" ' "a corporation is set up as a subterfuge, where shareholders
do not observe the corporate form, where the legal
requirements of corporate law are not complied with, where
the corporation maintains no corporate records, where the
corporation maintains no corporate bank account, where the
corporation has no employees, where corporate and personal
funds are intermingled and corporate funds are used for
personal purposes, or where an individual drains funds from
the corporation." ' "
Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala.
1994) (citations omitted).
The evidence submitted with Vectus's summary-judgment motion
shows that Shorter Brothers' shareholders -- Joseph and Jason -- did not
12
1190876, 1190903
observe the corporate form and that their misuse of the corporate form left
Vectus with little recourse. As the trial court noted, in response to
Vectus's request for "corporate documents," the defendants failed to
produce copies of any bylaws, operating agreement, shareholder
agreement, corporate minutes, or other documents to support that Shorter
Brothers had a separate corporate existence and was not the mere
"instrumentality or alter ego" of Joseph and Jason. Blanton, 585 So. 2d
at 1134. Further, the defendants' discovery responses indicate that
Shorter Brothers had little, if any, financial records at that time. The
defendants likewise said in discovery responses that Shorter Brothers had
employees; yet they produced no information about employee numbers,
roles, or duties. See Econ Mktg., 664 So. 2d at 870-71 (holding that trial
court erred by not piercing corporate veil when entity "failed to keep
complete and correct records of all transactions of the corporation and
minutes of the proceedings of its shareholders and board of directors" and
where "the financial records, books, or minutes of the meetings" of
directors could not be located, among other issues).
13
1190876, 1190903
The defendants did not timely produce any admissible evidence to
refute the assertions in Vectus's summary-judgment motion. Instead,
they "rest[ed] upon the mere allegations or denials of [their] pleading ...."
Rule 56(e). And even then, the defendants devoted only a handful of
sentences to rebutting the alter-ego theory in their general opposition to
Vectus's summary-judgment motion.
On appeal, the defendants point to documents attached to Vectus's
summary-judgment motion. Specifically, they cite Shorter Brothers'
certificate of formation, the Agreement, and Shorter Brothers' Form 1099-
MISC from 2018 to refute Vectus's alter-ego theory. But those documents
fail to provide "substantial evidence" that Shorter Brothers had a
corporate existence separate from Joseph and Jason. Beal, 288 So. 3d at
450. The certificate of formation merely shows that Shorter Brothers
exists as a legal entity -- a fact no one disputes. And while entering into
contracts may, in some circumstances, indicate that an entity has a
separate corporate existence, the Agreement is the only contract to which
the defendants point.
14
1190876, 1190903
Like contracts, corporate tax records may support a finding of a
separate corporate existence. But the defendants pointed to only a single
Form 1099-MISC that Shorter Brothers filed in 2018. That form reveals
Shorter Brothers' income, salary expenses (without specifying whose
salaries it covered), and minor tax and repair expenses over a two-month
period. The fact that Shorter Brothers filed one tax document identifying
income and unspecified purported expenses for two months of its existence
does not, standing alone, constitute "substantial evidence."2
In sum, Vectus made a prima facie showing that Joseph and Jason
operated Shorter Brothers as their instrumentality or alter ego.3 The
2On appeal, the defendants also rely on Joseph's affidavit and the
other documents they submitted. But, as discussed above, the trial court
properly disregarded those submissions as untimely. We therefore limit
our review to the material that the trial court considered. See Mathis v.
Jim Skinner Ford, Inc., 361 So. 2d 113, 116 (Ala. 1978) ("The propriety of
granting motions for summary judgment must be tested by reviewing
what the trial court had before it when it granted the motion.").
3Although Vectus asserted an alter-ego theory in its complaint
seeking to pierce the corporate veil, we note that the record also contains
evidence that Shorter Brothers was undercapitalized. See Blanton, 585
So. 2d at 1134 (noting that it may be appropriate to pierce the corporate
veil if the corporation is undercapitalized); see also Smith v. Mark Dodge,
Inc., 934 So. 2d 375, 380 (Ala. 2006) ("[T]his Court will affirm a judgment
for any reason supported by the record that satisfies the requirements of
15
1190876, 1190903
defendants failed to timely produce substantial evidence -- or any
evidence, for that matter -- revealing the existence of a genuine issue of
material fact. Thus, the trial court did not err by piercing Shorter
Brothers' corporate veil.
B. Vectus's Cross-Appeal
In its summary-judgment order, the trial court awarded $400,000 --
an amount equal to the purchase price under the Agreement -- to Vectus.
But the trial court did not explain why it awarded that amount. Vectus
contends that the trial court erred and that its true damages are
$597,566.
Damages for a breach of contract "should return the injured party
to the position he would have been in had the contract been fully
performed." Garrett v. Sun Plaza Dev. Co., 580 So. 2d 1317, 1320 (Ala.
due process, even where the ground upon which we affirm was not argued
before the trial court or this Court." (internal citation omitted)). Shorter
Brothers did not have -- and could not obtain -- funds sufficient to
purchase the assets required to run the business. It also ceased making
the weekly rental payments after about two months, in part because of
that failure; ceased making monthly payments by June 2019; and then
filed for bankruptcy protection when the trial court denied relief from its
judgment.
16
1190876, 1190903
1991). That determination "is within the discretion of the fact-finder and
is presumed to be correct." Tri-Tube, Inc. v. OEM Components, Inc., 672
So. 2d 1303, 1306 (Ala. Civ. App. 1995) (citing IMAC Energy, Inc. v. Tittle,
590 So. 2d 163 (Ala.1991)).
At the time Vectus filed its summary-judgment motion, it argued --
based primarily on the Agreement's terms -- that it had incurred damages
of $562,102.44. It appears that Vectus calculated that amount in the
following manner:
•
Unpaid balance of the purchase price = $408,904.44.4
•
Fifty-six weeks of unpaid $1,350 weekly rental fees =
$75,600.
•
Seven unpaid $4,200 monthly payments = $29,400.
4Vectus arrived at this number in the manner outlined in Exhibit B
to its complaint. That is, Vectus began with the unpaid purchase price of
$400,000 and added the weekly interest amounts. Vectus then deducted
the initial $40,000 payment from the balance. From there, Vectus
included unpaid weekly vehicle rental fees in the total unpaid balance to
which interest applied. Relatedly, Vectus also reduced the unpaid balance
based on Shorter Brothers' monthly payments, but did not reduce the
balance by $4,200 -- instead, it appears Vectus reduced each monthly
payment by one week's rental fee.
17
1190876, 1190903
•
Interest expenses incurred = $48,200.5
Before the summary-judgment hearing, Vectus supplemented its motion,
arguing that it was entitled to an additional 3 months of unpaid monthly
payments, 12 more weeks of rental fees, and additional accrued interest,
bringing the alleged total damages to $597,566.
This calculation is questionable for several reasons. First, the
calculation includes at least some of the unpaid $1,350 weekly rental fees
in the unpaid balance of the purchase price. The Agreement states that
Shorter Brothers "will diligently seek to secure financing to pay-off the
remaining balance (including accrued interest - which will accrue monthly
@ a 7% annual rate) of the $400,000 taking into account the $40,000
transfer and any monthly payments received." That is, it contemplates
interest accruing on the "remaining balance ... of the $400,000" -- not the
unpaid weekly rental fees. See Garrett, 580 So. 2d at 1320 (declining to
award damages that "would place on the developers a burden not provided
5Vectus supported this assertion with an affidavit of its owner
stating that Vectus had incurred these interest expenses for credit
obligations owed to Stearns Bank and other unspecified creditors.
18
1190876, 1190903
for in the contract"). Second, for the six monthly payments that Shorter
Brothers made, Vectus applied a credit of only $2,850 to the balance of the
unpaid purchase price. That is, it appears that Vectus considered the first
$1,350 of the monthly payment as one week's rental fee, resulting in a
higher unpaid balance of the purchase price. There is nothing in the
Agreement, and Vectus cites no authority in its briefs or in the record,
that permits this practice. Third, it appears that some of the unpaid 56
weeks of rental fees were also included in Vectus's calculation of the
unpaid balance of the purchase price, meaning that at least some of the
missing rental payments were double-counted. Finally, Vectus seeks 10
months of unpaid monthly payments, or $42,000. But as discussed above,
those monthly payments should be credited to the balance of the unpaid
purchase price -- not added to it. See id. ("[T]he injured party is not to be
put in a better position by a recovery of damages for the breach than he
would have been in if there had been performance.").
Vectus's damages calculation is the same on appeal as it was before
the trial court. Given the apparent defects in that calculation, we cannot
say that the trial court exceeded its discretion in ignoring it or that Vectus
19
1190876, 1190903
has overcome the presumption that the trial court's damages award is
correct. See Tri-Tube, 672 So. 2d at 1306. We thus decline to reverse the
trial court's judgment as to damages.
Conclusion
The defendants have not established that the trial court exceeded its
discretion by precluding further discovery before entering summary
judgment or by disregarding untimely submissions in response to Vectus's
summary-judgment motion. Nor have the defendants established that the
trial court erred by piercing Shorter Brothers' corporate veil and holding
Joseph and Jason liable. Finally, because Vectus's calculation of total
damages is apparently flawed, we cannot say that the trial court erred in
rejecting it.
1190876 -- AFFIRMED.
1190903 -- AFFIRMED.
Parker, C.J., and Shaw and Bryan, JJ., concur.
Mendheim, J., concurs in the result.
20 | June 25, 2021 |
74482511-7eda-44cf-ab87-984975fe9541 | Ex parte Thomas C. Donald. | N/A | 1200245 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200245
Ex parte Thomas C. Donald. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Thomas C. Donald v. James P.
Kimberley and Carol J. Kimberley) (DeKalb Circuit Court: CV-17-900198;
Civil Appeals :
2190017).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
e03e7d96-afa8-4f1e-bc18-e250cc7f0146 | Ex parte Caterpillar Financial Services Corporation. | N/A | 1200332 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1200332
_________________________
Ex parte Caterpillar Financial Services Corporation
PETITION FOR WRIT OF MANDAMUS
(In re: Caterpillar Financial Services Corporation
v.
Horton Logging, LLC, and Gary Horton)
(Shelby Circuit Court, CV-19-900689)
SELLERS, Justice.
Caterpillar Financial Services Corporation ("CFS") petitioned this
Court for a writ of mandamus directing the Shelby Circuit Court to vacate
1200332
an order purporting to grant a motion to set aside a default judgment in
favor of CFS in its action against Horton Logging, LLC ("HL"), and Gary
Horton ("Horton"). Because the trial court's order purports to grant a
successive postjudgment motion, over which the trial court had no
jurisdiction, we grant CFS's petition and issue the writ.
In June 2019, CFS commenced its action against HL and Horton,
seeking to recover amounts allegedly owed by those parties pursuant to
loan documents executed in connection with the financing of the sale of
logging equipment to HL. HL and Horton did not answer the complaint,
and, on September 6, 2019, the trial court entered a default judgment
against them.
On October 4, 2019, HL and Horton moved the trial court for relief
from the default judgment. They cited Rule 55(c), Ala. R. Civ. P., which
authorizes trial courts to set aside a default judgment on the motion of a
party filed within 30 days after the entry of the judgment, and Rule 60(b),
Ala. R. Civ. P., which authorizes trial courts to grant relief from a
judgment for various reasons. HL and Horton alleged in their motion that
they "have meritorious defenses against the claims of [CFS]." They did
2
1200332
not, however, mention the other two factors relevant to motions to set
aside a default judgment identified in Kirtland v. Fort Morgan Authority
Sewer Service, Inc., 524 So. 2d 600, 604-05 (Ala. 1988), namely, whether
the plaintiff will be unfairly prejudiced if the default judgment is set aside
and whether the default judgment resulted from the defendant's own
culpable conduct.
Nearly a year later, on August 3, 2020, after multiple continuances
and after counsel for HL and Horton withdrew from the matter, the trial
court held a virtual hearing. However, at some point during that hearing,
the trial court rescheduled the matter for another virtual hearing on
September 2, 2020. On the day of the rescheduled hearing, the trial court
entered an order stating: "[HL and Horton] failed to appear [at the
hearing] and therefore the motion [for relief from the default judgment]
is denied."
HL and Horton did not appeal from the trial court's September 2,
2020, order. Instead, they filed another motion under Rule 60(b) asking
the trial court to reconsider and set aside the September 2020 order and
to reset the motion for relief from the default judgment for another
3
1200332
hearing. In support of the second Rule 60(b) motion, Horton submitted an
affidavit stating that, after he attended the August 3, 2020, virtual
hearing, he attempted to contact his former attorney "multiple times to no
avail," that he attempted to contact other attorneys in an effort to retain
new counsel, and that he attempted to participate in the September 2,
2020, virtual hearing but "was unable to successfully connect." Finally,
Horton averred in his affidavit that he "believe[d] that [he had] multiple
meritorious defenses" to CFS's claims and that "neither party would be
prejudiced by setting aside the September 2, 2020, order." HL and Horton
also filed a motion to stay CFS's efforts at garnishment.
The trial court set the motion to stay garnishment for a hearing.
Approximately two weeks after that hearing, on January 27, 2021, the
trial court entered an order purporting to grant HL and Horton's second
Rule 60(b) motion, without specifying its reasoning. Thereafter, CFS
timely filed its mandamus petition. CFS argues that the second Rule
60(b) motion was a successive postjudgment motion that the trial court
lacked jurisdiction to grant.
4
1200332
"A petition for the writ of mandamus is the proper
method for securing review of a trial court's order granting a
successive postjudgment motion. See Ex parte Keith, 771 So.
2d 1018 (Ala. 1998), and Ex parte Baker, 459 So. 2d 873 (Ala.
1984). 'A writ of mandamus is an extraordinary remedy, and
it will be "issued only when there is: (1) a clear legal right in
the petitioner to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court." ' Ex parte P & H Constr. Co.,
723 So. 2d 45, 47 (Ala. 1998) (quoting Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993))."
Ex parte Jordan, 779 So. 2d 183, 184 (Ala. 2000). Moreover, this Court
will review by petition for the writ of mandamus a trial court's setting
aside a default judgment. Ex parte Ward, 264 So. 3d 52, 55 (Ala. 2018).1
As noted, HL and Horton's motion for relief from the default
judgment cited both Rule 55(c) and Rule 60(b). A Rule 55(c) motion is
subject to Rule 59.1, Ala. R. Civ. P., which provides that certain
postjudgment motions are deemed denied by operation of law if they
1The second Rule 60(b) motion asked the trial court to set aside the
September 2, 2020, order denying HL and Horton's motion for relief from
the default judgment and to reset that motion for a hearing. The trial
court entered an order stating simply that the second Rule 60(b) motion
was "granted." The parties, however, have represented to this Court that
the default judgment has been set aside and that litigation is proceeding.
5
1200332
remain pending more than 90 days. More than 90 days elapsed without
a ruling on HL and Horton's motion for relief from the default judgment.
Accordingly, to the extent that the motion relied on Rule 55(c), it was
denied by operation of law.2
Rule 60(b) is not subject to the 90-day deadline in Rule 59.1., and
precedent from this Court indicates that, generally speaking, a party is
not necessarily precluded from relying on both Rule 55(c) and Rule 60(b)
in requesting a trial court to set aside a default judgment. See Ex parte
Lang, 500 So. 2d 3, 4 (Ala. 1986) ("The Alabama Rules of Civil Procedure
do not contemplate the filing of a Rule 60(b) motion during the pendency
of a Rule 55(c) motion. But while the Rules do not contemplate it, they do
not preclude it, either."); Ex parte Vaughan, 539 So. 2d 1060, 1061 (Ala.
1989) ("[T]he Rules [of Civil Procedure] do not, at the present time,
preclude the filing of alternative Rule 55(c) and 60(b) motions."); Edwards
v. Johnson, 143 So. 3d 691, 694 (Ala. 2013) ("[T]he Alabama Rules of Civil
2Rule 59.1 allows the 90-day deadline set out therein to be extended
by "the express consent of all the parties, which consent shall appear of
record." There is nothing, however, before this Court indicating that CFS
expressly consented to an extension of the deadline.
6
1200332
Procedure do not necessarily preclude a defendant from filing alternative
Rule 55(c) and Rule 60(b) motions with the trial court." (emphasis
omitted)).
However, in Ex parte Haynes, 58 So. 3d 761 (Ala. 2010), this Court
noted that the appropriate way to challenge the denial of a Rule 55(c)
motion to set aside a default judgment is to appeal from that denial and
that a Rule 60(b) motion cannot be used as a substitute for an appeal by
asking a trial court to "reconsider" the denial of the Rule 55(c) motion. As
in the present case, Haynes involved the denial of a Rule 55(c) motion by
operation of law pursuant to Rule 59.1. Thereafter, the trial court in
Haynes elected to treat the motion alternatively as a Rule 60(b) motion
and purported to grant it. This Court issued a writ of mandamus,
concluding that the Rule 55(c) motion, fairly read, could not also have
been considered a motion under Rule 60(b). The Court noted that the
motion did not cite Rule 60(b) and "lack[ed] ... any distinction in the
grounds for relief based on Rule 55(c) as opposed to Rule 60(b)." 58 So. 3d
at 766. Alternatively, the Court held that,
7
1200332
"[e]ven if [the motion] could be deemed a motion asking in the
alternative for relief under Rule 60(b), the defendants' motion
would in this respect add nothing to the previously denied [by
operation of law] Rule 55(c) motion and thus would constitute
an improper attempt to use a Rule 60(b) motion as 'a
substitute for an appeal of the original judgment.' "
58 So. 3d at 766-67.
Similarly, HL and Horton's original motion for relief from the
default judgment, although it cited both Rule 55(c) and Rule 60(b), made
no distinction "between the grounds for relief under Rule 55(c) and those
for relief under Rule 60(b)." Id. at 765. As was the case in Haynes,
"[b]ecause there existed nothing in the motion to distinguish the Rule
55(c) motion from the purported Rule 60(b) motion, any Rule 60(b) aspect
to the motion would simply constitute a motion to 'reconsider' the Rule
55(c) motion." Id. Although CFS does not cite Haynes, it points to Rule
59.1 and asserts that "the trial court's jurisdiction terminated ninety (90)
days after [the motion to set aside the default judgment was originally
filed]." Thus, CFS appears to suggest that, once the Rule 55(c) aspect of
the motion was denied by operation of law, HL and Horton's remedy was
8
1200332
to appeal and that the Rule 60(b) aspect of the motion was simply an
improper request for the trial court to "reconsider" the denial.
In any event, CFS more succinctly argues that, to the extent that the
trial court had jurisdiction to rule on the Rule 60(b) aspect of HL and
Horton's initial motion for relief from the default judgment, after the trial
court entered the September 2, 2020, order expressly denying the motion,
the trial court lacked jurisdiction to grant the second Rule 60(b) motion.
CFS points to Ex parte Keith, 771 So. 2d 1018, 1022 (Ala. 1998), for the
proposition that, "[a]fter a trial court has denied a postjudgment motion
pursuant to Rule 60(b), that court does not have jurisdiction to entertain
a successive postjudgment motion to 'reconsider' or otherwise review its
order denying the Rule 60(b) motion." As the Court noted in Pinkerton
Security & Investigation Services, Inc. v. Chamblee, 961 So. 2d 97, 101-02
(Ala. 2006):
"Successive Rule 60(b) motions brought on the same grounds
are impermissible because they are 'generally considered
motions to reconsider the original ruling and are not
authorized by Rule 60(b).' Wadsworth v. Markel Ins. Co., 906
So. 2d 179, 182 (Ala. Civ. App. 2005). A motion to reconsider
the trial court's denial of a postjudgment motion is barred
9
1200332
because after the denial the trial court loses jurisdiction over
the action."
See also Ex parte Jordan, 779 So. 2d 183 (Ala. 2000) (issuing a writ of
mandamus and holding that the trial court lost jurisdiction after it denied
a Rule 60(b) motion requesting reinstatement of an action and that the
trial court therefore could not grant a second Rule 60(b) motion asking for
the same relief).
The second Rule 60(b) motion in this case is essentially the same as
the first Rule 60(b) motion. In both motions, HL and Horton sought to set
aside the default judgment because, they asserted, they have meritorious
defenses to CFS's claims. Because the second Rule 60(b) motion is nothing
more than a request for reconsideration of the trial court's denial of the
first Rule 60(b) motion, the trial court had no jurisdiction to grant it.3
The Court notes that, in responding to CFS's mandamus petition,
HL and Horton assert that the default judgment against them is "void"
3Although HL and Horton claim that they had a valid excuse for
failing to attend the virtual hearing on September 2, 2020, they do not
present the Court with any legal authority indicating that, because of that
excuse, the trial court had jurisdiction to "reconsider" the denial of the
first Rule 60(b) motion.
10
1200332
because, they claim, CFS failed to properly serve them with the summons
and complaint. Under Rule 4(c)(1), Ala. R. Civ. P., an individual may be
served by leaving the summons and complaint with a person of suitable
age and discretion residing in the individual's dwelling house or usual
place of abode or by leaving the summons and complaint with an agent
authorized by appointment or law to receive service of process. Under
Rule 4(c)(6), an entity may be served by leaving the summons and
complaint with "an officer, a partner (other than a limited partner), a
managing or general agent, or any agent authorized by appointment or by
law to receive service of process." The returns on service and other
documents submitted by the process server in this case indicate that the
summons and complaint were served on an individual named Blake
Horton at an address in Columbiana and that Blake informed the process
server that he lived with Horton and was authorized to accept service for
HL. HL and Horton, however, suggest to this Court that Blake was not
an employee or "registered agent" of HL and that he did not in fact live
with Horton at the time of service.
11
1200332
HL and Horton do not clearly discuss whether the trial court, after
denying HL and Horton's initial motion to set aside the default judgment,
would have had jurisdiction to consider a Rule 60(b) motion asserting
failure of proper service. In any event, HL and Horton's second Rule 60(b)
motion did not actually assert that ground for relief. Although HL and
Horton claim that they argued lack of proper service during the hearing
on their motion to stay CFS's garnishment efforts, there is no transcript
of that hearing or other materials before this Court to verify that
averment. Thus, nothing before the Court establishes that HL and Horton
ever challenged the sufficiency of service in the trial court.4 Finally, as
CFS points out, lack of proper service was omitted not only from HL and
Horton's second Rule 60(b) motion, but also from their initial motion for
relief from the default judgment. The Court of Civil Appeals, in Klaeser
4HL and Horton attached certain exhibits to their response to CFS's
mandamus petition, which are aimed at establishing that Blake Horton
was not authorized to accept service for HL and Horton. It appears,
however, that those exhibits were not submitted to the trial court. In
ruling on a mandamus petition, this Court is limited to consideration of
the evidence that was presented to the trial court. Ex parte McDaniel,
291 So. 3d 847, 852 (Ala. 2019).
12
1200332
v. Milton, 47 So. 3d 817, 821 (Ala. Civ. App. 2010), noted precedent
indicating that "a defendant waives the defense of improper service of
process if that defendant does not raise the issue in his or her first
appearance following the entry of a default judgment." The court in
Klaeser held that the defendant in a custody-modification proceeding had
waived insufficiency of service because she had failed to raise it in her
first appearance following the entry of a default judgment against her. In
support, the court pointed to Pridgen v. Head, 282 Ala. 193, 198, 210 So.
2d 426, 430 (1968), in which this Court held that a defendant, who argued
that a default judgment should have been set aside based on lack of proper
service, had waived that argument when he "appeared generally and filed
[a] motion to dismiss and quash ... garnishment, which motion contained
no grounds challenging the sufficiency of the service upon the defendant."
See also Aetna Ins. Co. v. Earnest, 215 Ala. 557, 558, 112 So. 145, 145
(1927) (" 'Where a judgment has been rendered by the court without
jurisdiction of the person, a general appearance after such judgment
waives all objection to the jurisdiction of the court over the person. Thus
a general appearance by defendant after final judgment waives any and
13
1200332
all defects and irregularities in the service of process and return, just as
fully as it does where such appearance is entered before final judgment.' "
(quoting 4 Corpus Juris, Appearances § 64, p. 1364)). HL and Horton have
not addressed the fact that they did not argue lack of proper service upon
initially appearing and challenging the default judgment in this case.
In sum, the trial court erred in granting HL and Horton's second
Rule 60(b) motion. Accordingly, we grant CFS's petition for a writ of
mandamus and direct the trial court to vacate the January 27, 2021,
order.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Mendheim, Stewart, and
Mitchell, JJ., concur.
Bryan, J., concurs in the result.
14 | June 30, 2021 |
b3728ebf-84c5-435b-b91a-1d4d31bbf43b | Ex parte A.V.C. II. | N/A | 1200248 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
August 27, 2021
1200248 Ex parte A.V.C. II. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: A.V.C. II v. K.M.) (Houston
Juvenile Court: JU-19-523.01; Civil Appeals : 2190320).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on August 27, 2021:
Writ Quashed. No Opinion. PER CURIAM - Shaw, Wise, Bryan, Sellers,
Stewart, and Mitchell, JJ., concur. Parker, C.J., and Bolin, J., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 27th day of August, 2021.
Clerk, Supreme Court of Alabama | August 27, 2021 |
a310eaa6-dee3-4160-8acc-7c6661d62402 | Ex parte E.L. | N/A | 1200513 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200513
Ex parte E.L. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: E.L. v. Jefferson County Department of Human
Resources) (Jefferson Juvenile Court: JU-15-1419.03; Civil Appeals :
2190931).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
aeb91c88-7c44-4714-b955-f5667053102e | Ex parte Howard Ross and Mary Dunne. | N/A | 1200577 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200577
Ex parte Howard Ross and Mary Dunne. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Howard Ross
and Mary Dunne v. Clark Property Management, LLC) (Madison Circuit
Court: CV-19-900329; Civil Appeals :
2190916).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
29f955e9-1d55-4237-ade9-dfe3e9f8459d | Pentagon Federal Credit Union v. McMahan | N/A | 1191075 | Alabama | Alabama Supreme Court | REL: June 25, 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, 2020-2021
____________________
1191075
____________________
Pentagon Federal Credit Union
v.
Susan R. McMahan
Appeal from Baldwin Circuit Court
(CV-18-900160)
MITCHELL, Justice.
Pentagon Federal Credit Union ("PenFed") purchased Susan R.
McMahan's house at a foreclosure sale and sold it less than a year later.
1191075
They disagree about how to divide the sales proceeds. In Pentagon
Federal Credit Union v. McMahan, 308 So. 3d 496, 502 (Ala. 2020)
("PenFed I"), we reversed a judgment entered by the Baldwin Circuit
Court in favor of McMahan, holding that the trial court had erred by not
considering PenFed's unjust-enrichment argument. On remand, the trial
court concluded that the doctrine of unjust enrichment did not apply and
again entered judgment in favor of McMahan. PenFed appeals. We
reverse and remand.
Facts and Procedural History1
In June 2005, McMahan and her now-deceased husband purchased
a house in Loxley. To finance the purchase, the McMahans obtained a
loan from Wells Fargo Bank, N.A., that was secured by a mortgage on the
property. In September 2007, the McMahans obtained a loan from
PenFed that was secured by a second mortgage on the property.
By 2015, McMahan's husband had died and she had defaulted on
both loans. At a foreclosure sale in August 2015, PenFed purchased
1A more detailed recitation of the facts underlying this appeal can be
found in PenFed I.
2
1191075
McMahan's property, taking title subject to Wells Fargo's senior lien.
Although McMahan owed Wells Fargo approximately $112,000 on the first
mortgage, Wells Fargo agreed to accept $91,256.54 from PenFed to satisfy
the mortgage and to release its lien, paving the way for PenFed to resell
the property in July 2016 for $157,525.
In December 2017, counsel for McMahan contacted PenFed, noting
that the McMahans' first mortgage had been satisfied and asking for
details about that process. In response, PenFed explained that it had sold
the property for $157,525 and that, after subtracting the expenses
associated with both the foreclosure sale and the resale (a combined
$15,069.64), as well as the amounts required to pay off the McMahans'
first mortgage ($91,256.54) and second mortgage ($47,714.16), there was
a surplus in excess of $3,000 that PenFed would remit to McMahan once
she signed a hold-harmless agreement. See generally Springer v. Baldwin
Cnty. Fed. Sav. Bank, 562 So. 2d 138, 139 (Ala. 1989) (explaining that,
when a mortgagee purchases a property at a foreclosure sale and then
resells it within the statutory redemption period, any profit obtained must
be applied "to the credit of the mortgagor").
3
1191075
McMahan declined to sign the hold-harmless agreement offered by
PenFed and instead filed suit, arguing that PenFed was entitled to
withhold from the $157,525 sales proceeds only an amount equal to its
expenses and what was owed on the second mortgage. Everything else,
McMahan argued -- including the $91,256.54 that PenFed withheld to
reimburse itself for what had been paid to Wells Fargo to satisfy the first
mortgage -- was surplus proceeds that rightfully belonged to her.
Because the essential facts were undisputed, the parties agreed to
submit a stipulated statement of facts and exhibits to the trial court for
it to decide how the funds should be allocated. In June 2019, the trial
court entered a judgment in favor of McMahan for $94,741.20, holding
that PenFed was entitled to recover only $15,069.64 for its expenses and
$47,714.16 for what was owed on the second mortgage -- not the
$91,256.54 it had paid to Wells Fargo -- from the proceeds received in the
July 2016 sale. After PenFed appealed, we reversed that judgment and
remanded the case for the trial court to rule on PenFed's unjust-
enrichment argument, which, we explained, the trial court had
4
1191075
erroneously deemed to be waived when it first considered the case.
PenFed I, 308 So. 3d at 501-02.
On remand, the trial court accepted briefing on the doctrine of
unjust enrichment and ultimately concluded that PenFed had "failed to
prove the elements of unjust enrichment." Accordingly, the trial court
reentered its June 2019 judgment awarding McMahan $94,741.20 as the
final judgment of the court. PenFed appeals.
Standard of Review
We apply the same standard of review that we applied in PenFed I.
Because the relevant facts are undisputed and the issues before us involve
pure questions of law, the trial court's judgment carries no presumption
of correctness, and we review those questions of law de novo. 308 So. 3d
at 500.
Analysis
When this case was before us in PenFed I, we did not consider the
merits of several issues raised by PenFed. We pretermitted a discussion
of those issues so the trial court could rule on the merits of PenFed's
unjust-enrichment argument. PenFed I, 308 So. 3d at 502 n.1. Now that
5
1191075
the trial court has complied with our instructions in PenFed I, considered
that argument, and entered another judgment in favor of McMahan, we
have before us all the arguments PenFed has made in this appeal
challenging the trial court's judgment. But it is ultimately necessary for
us to consider only PenFed's argument invoking the doctrine of unjust
enrichment. As explained below, that doctrine serves as a complete
defense to the breach-of-contract claim and the other claims McMahan has
asserted against PenFed, and it bars her from recovering the sum she
seeks.
For PenFed to prevail on its unjust-enrichment argument, it must
make two showings. First, it must establish that McMahan was
"enriched" -- i.e., that she knowingly accepted and retained a benefit
provided by PenFed, which had a reasonable expectation of compensation.
Matador Holdings, Inc. v. HoPo Realty Invs., L.L.C., 77 So. 3d 139, 145
(Ala. 2011). If PenFed makes that showing, it must next demonstrate that
McMahan would be "unjustly" enriched if she were awarded the disputed
6
1191075
$91,256.54. Id.2 This second question turns on whether PenFed has acted
under " ' "a mistake of fact or in misreliance on a right or duty." ' " Id. at
146 (citations omitted). In the absence of such a mistake or misreliance,
McMahan may have been enriched, but she would " ' "not [be] deemed to
2Much of our caselaw discussing the doctrine of unjust enrichment
involves plaintiffs who have made a claim to recover payment for benefits
that have already been provided. See, e.g., Matador Holdings, 77 So. 3d
at 140 (building-materials retailer asserted unjust-enrichment claim
against landlord seeking payment for materials and services provided to
tenant); Portofino Seaport Vill., LLC v. Welch, 4 So. 3d 1095, 1097 (Ala.
2008) (real-estate-development company asserted unjust-enrichment
claim seeking payment for services already provided after property owner
terminated sales contract); Welch v. Montgomery Eye Physicians, P.C.,
891 So. 2d 837, 842 (Ala. 2004) (widow asserted unjust-enrichment claim
alleging that a medical practice improperly took control of her husband's
optometry practice upon his death). In this case, by contrast, PenFed has
asserted the doctrine as a defense. This distinction necessarily means
that the manner in which PenFed can establish unjust enrichment differs
somewhat from cases in which plaintiffs have asserted the doctrine. Here,
PenFed must show that it would be unjust for McMahan to obtain a not-
yet-received benefit as opposed to showing that it would be unjust for her
to retain a benefit she has already received. But the same fundamental
principles apply.
7
1191075
have been unjustly enriched." ' " Id. (citations omitted).3 We examine
below whether PenFed made the required showings.
A. Did McMahan knowingly accept and retain a benefit provided by
PenFed, which had a reasonable expectation of compensation?
The trial court found, and McMahan does not dispute, that she has
received a benefit provided by PenFed. The stipulated facts show that
McMahan's debt to Wells Fargo was not discharged in her bankruptcy
proceedings and that, but for PenFed's payment to Wells Fargo, she would
have continued to owe Wells Fargo about $112,000. McMahan says that
her lack of knowledge about PenFed's payment to Wells Fargo at the time
that payment was made means that she did not "knowingly" accept the
benefit, and, thus, she argues, the doctrine of unjust enrichment cannot
apply. We disagree. It is undisputed that McMahan had knowledge of
PenFed's payment to Wells Fargo well before she commenced this action,
and there is no evidence that she has offered to reimburse PenFed for that
3Enrichment will also be considered unjust when the party who has
obtained a benefit has " ' "engaged in some unconscionable conduct, such
as fraud, coercion, or abuse of a confidential relationship." ' " Matador
Holdings, 77 So. 3d at 146 (citations omitted). There is no allegation of
misconduct here.
8
1191075
payment. Under these circumstances, we are satisfied that McMahan has
knowingly accepted and retained a benefit provided by PenFed. Compare
Matador Holdings, 77 So. 3d at 146 (affirming a trial court's judgment
rejecting an unjust-enrichment claim when the party that had received
the benefit had offered to return it).
Moreover, it was reasonable for PenFed to expect that it would be
compensated for the payment it made to Wells Fargo settling McMahan's
debt. PenFed made that payment within the one-year period after the
foreclosure sale during which McMahan had a statutory right to redeem
the property. And if McMahan had exercised her right of redemption, she
would have been required to reimburse PenFed for the payment under §
6-5-253(a)(4), Ala. Code 1975. As discussed below, PenFed says that,
similarly, it believed that it would be entitled to reimbursement if a party
other than McMahan purchased the property within that one-year period.
The trial court ultimately rejected this argument, but we cannot say that
PenFed's expectation was unreasonable.4
4Although the burden of establishing unjust enrichment lies with
PenFed, we note that McMahan has not argued on remand or in this
9
1191075
B. Did PenFed act in misreliance on a right when it paid off
McMahan's debt to Wells Fargo?
Having established that McMahan has been enriched, we turn to the
second part of the inquiry -- whether it would be unjust for her to receive
and retain the $91,256.54 benefit that she now seeks. PenFed says that
this result would be unjust because, it says, it acted " ' "in misreliance on
a right" ' " when it made the $91,256.54 payment to Wells Fargo. Matador
Holdings, 77 So. 3d at 146 (citations omitted).
PenFed puts forth two bases for its belief that it had a right to be
reimbursed for its payment to Wells Fargo -- § 6-5-253(a)(4) and Springer
v. Baldwin County Federal Savings Bank, 597 So. 2d 677 (Ala. 1992)
("Springer II"). Section 6-5-253(a)(4) provides that a purchaser of a
foreclosed property has a right to be reimbursed for any "lawful charges,"
including any "valid lien or encumbrance paid," if the property is later
redeemed. McMahan did not exercise her right of redemption here, but
her house was sold within the statutory redemption period, and PenFed
argues that the principle underlying § 6-5-253(a)(4) should therefore
appeal that PenFed's expectation of compensation was unreasonable.
10
1191075
apply. In Springer II, this Court permitted the purchaser of a foreclosed
property that was later sold within the statutory redemption period to
withhold the "necessary and ordinary expenses incurred in the
management of [the] foreclosed property" when calculating the surplus
due to the mortgagor. PenFed says that its payment to Wells Fargo was
such a "necessary and ordinary expense" and that Springer II therefore
supports its right to reimburse itself for what it paid to Wells Fargo.
PenFed continues to assert that it has a right to reimbursement under §
6-5-253(a)(4) and Springer II but, in recognition of the fact that the trial
court has rejected these arguments, states that its misreliance on those
authorities justifies the invocation of the doctrine of unjust enrichment.
We agree.
" 'The doctrine of unjust enrichment is an old equitable remedy
permitting the court in equity and good conscience to disallow one to be
unjustly enriched at the expense of another.' " Avis Rent A Car Sys., Inc.
v. Heilman, 876 So. 2d 1111, 1123 (Ala. 2003) (quoting Battles v. Atchison,
545 So. 2d 814, 815 (Ala. Civ. App.1989)) (emphasis omitted). Whether it
applies in any given case "depends on the particular facts and
11
1191075
circumstances" of that case. Mantiply v. Mantiply, 951 So. 2d 638, 655
(Ala. 2006). Considering the undisputed facts here, this is precisely the
type of case in which unjust enrichment should apply. As we summarized
in PenFed I: "McMahan seeks to recover $91,256.54 from PenFed even
though she has already received and retains the approximately $112,000
benefit she undisputedly received by PenFed's settlement of the Wells
Fargo note and the Wells Fargo mortgage; McMahan does not dispute that
she is seeking a windfall." 308 So. 3d at 501-02 (emphasis added). Equity
and good conscience will not allow McMahan to recover that windfall at
the expense of PenFed. The trial court therefore erred by awarding her
the disputed $91,256.54.
Conclusion
McMahan sued PenFed, arguing that she was entitled to $94,741.20
of the $157,525 that PenFed received when it sold the house she had lost
in foreclosure. PenFed conceded that McMahan should receive $3,484.66
of the sales proceeds but argued that it was entitled to retain $91,256.54
of the amount she sought -- because that was how much it cost PenFed to
pay off her debt to Wells Fargo so that the property could be sold
12
1191075
unencumbered by Wells Fargo's lien. The trial court awarded the
disputed $91,256.54 to McMahan, but the doctrine of unjust enrichment
will not allow her to receive those funds. The trial court's judgment is
therefore reversed, and the case is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Bolin, Shaw, Bryan, Sellers, Mendheim, and Stewart, JJ., concur.
Parker, C.J., concurs in the result.
Wise, J., recuses herself.
13 | June 25, 2021 |
1cdb17c5-4245-4b9a-ad46-df4facf39b93 | Glenn Pedersen and Bluestone Coke, LLC v. Drummond Company, Inc. | N/A | 1200138 | Alabama | Alabama Supreme Court | REL: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1200138
Glenn Pedersen and Bluestone Coke, LLC v. Drummond Company, Inc.
(Appeal from Jefferson Circuit Court: CV-20-902779).
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 Stewart, JJ., concur.
Mitchell, J., recuses himself. | June 11, 2021 |
5b1660cd-9935-4850-b663-a2cf00c4a891 | Cannon v. Lucas | N/A | 1190725, 1190505 | Alabama | Alabama Supreme Court | Rel: August 20, 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
_________________________
1190505 and 1190725
_________________________
Michael B. Cannon
v.
Zachary D. Lucas
Appeals from Jefferson Circuit Court
(CV-17-900127)
PER CURIAM.
Michael B. Cannon, the defendant below, appeals from a judgment
entered by the Jefferson Circuit Court in favor of Zachary D. Lucas, the
plaintiff below (case number 1190505). Cannon also separately appeals
from an order entered by the trial court refusing to supplement the record
1190505 and 1190725
on appeal (case number 1190725). We reverse the judgment and remand
the cause in case number 1190505, and we dismiss the appeal as moot in
case number 1190725.
Facts and Procedural History
At approximately 10:15 p.m., on November 16, 2015, Cannon and
Lucas were involved in a motor-vehicle accident on an unlit portion of
Interstate 22 when Cannon's vehicle collided with Lucas and the
motorcycle he had been riding. The testimony at trial as to the cause of
the accident was conflicting. Lucas testified that he had been working on
a motorcycle for a friend, that he had taken it for a test drive, and that it
must have run out of gas. Although he did not remember details
regarding how he got to the scene of the accident or details from after the
accident, he testified that he was sure that he had pulled off onto the
shoulder of the highway and that he was starting to check the gas level of
the motorcycle when he heard a loud noise. Cannon testified that, at the
time of the accident, it was pitch black in the area where the accident
occurred; that he heard a noise and scraping sounds and that, very shortly
thereafter, saw reflective material to his right; and that he thought that
2
1190505 and 1190725
he had run into an air-conditioning unit. He also testified that he had
been driving in the right-hand lane and using cruise control, that he had
not seen Lucas or the motorcycle before he hit them, and that he had not
braked before the impact. Cannon further testified that he never left his
lane of travel.
On January 12, 2017, Lucas filed a complaint against Cannon in the
Jefferson Circuit Court, alleging negligence and wantonness/recklessness
and seeking damages for the various injuries he allegedly had sustained
as a result of that accident. In the complaint, Lucas alleged that the
motorcycle he had been operating had become disabled and that he had
been forced to push it along the side of the highway; that Cannon had
been driving a 1995 Chevrolet Astro van in the same direction; and that
Cannon had allowed his van to forcefully collide with Lucas and the
motorcycle. On January 25, 2017, Cannon filed an answer to the
complaint. He denied most of the material allegations in the complaint
and raised some affirmative defenses, including contributory negligence
and assumption of the risk.
3
1190505 and 1190725
Lucas proceeded to trial solely on his negligence claim. After a four-
day trial that started on November 4, 2019, the jury returned a verdict in
favor of Lucas and awarded him $18 million in compensatory damages.
Thereafter, the trial court entered a judgment in favor of Lucas and
against Cannon in the amount awarded by the jury.
Cannon filed a motion for a judgment as a matter of law, for a new
trial, or for a remittitur, asserting, among other things, that the trial
court had erred by refusing to permit Cannon to present evidence of
Lucas's 2018 conviction for presenting a forged drug prescription. After
Lucas responded, the trial court conducted a hearing. Thereafter, the
motion was denied by operation of law. These appeals followed.
Standard of Review
"In reviewing a ruling on the admissibility of evidence, ... the
standard is whether the trial court exceeded its discretion in excluding the
evidence." Woven Treasures, Inc. v. Hudson Capital, L.L.C., 46 So. 3d
905, 911 (Ala. 2009).
Discussion
4
1190505 and 1190725
Cannon argues, as he did in his postjudgment motion, that the trial
court erred in granting Lucas's motion in limine to exclude evidence
concerning Lucas's 2018 conviction for presenting a forged drug
prescription. Before the trial, Lucas filed a motion in limine asking the
trial court to exclude any evidence concerning his August 9, 2018, felony
conviction for presenting a forged drug prescription. In that same motion,
he admitted that "[t]he specific details of [his] conviction are that he pled
guilty to presenting a forged prescription for Diazepam."
During a pretrial hearing on the motion in limine to exclude
evidence of Lucas's prior convictions, the following occurred:
"[CANNON'S COUNSEL]: One of the -- my motions or
his motion in limine was to keep out two criminal charges of
Mr. Lucas. Both involve dishonesty. One from [2018] forged
prescription for some [diazepam], and one was a 2013 theft of
various TVs and money and such from, a young lady.
"THE COURT: Relevance?
"[CANNON'S COUNSEL]: The relevance is that it goes
to his credibility. Caselaw is very clear that the Court has no
discretion on issues of dishonesty charges such as these two
crimes. And I believe [Lucas's counsel] agrees with me on
that, but I'll let him be heard.
"THE COURT: [Lucas's counsel]?
5
1190505 and 1190725
"[LUCAS'S COUNSEL]: We filed an opposition
Document 236 to the -- excuse me. A motion [in] limine, which
is Document 236 for the record. Our number 9, we move to
preclude both of those crimes for the following reasons: First
of all, is the 2018 attempt to commit a controlled-substance
crime. The date of the incident was August 9th, 2018. So
three years after this young man suffered a severe brain
injury and has undergone four surgeries, he attempted to --
"THE COURT: Wait, this was -- the conviction was after
the accident?
"[LUCAS'S COUNSEL]: Three and a half years after the
accident.
"THE COURT: After the accident?
"[LUCAS'S COUNSEL]: Yes, sir.
"THE COURT: Was any conviction before the accident?
"[LUCAS'S COUNSEL]: The misdemeanor theft of
property conviction from 2013 that they've offered where he
was -- pled guilty to stealing less than $500 worth of stuff is
the other one that they move to admit. And while I
acknowledge that it is a crime that involves, you know, the old
standard --
"THE COURT: Moral turpitude.
"[LUCAS'S COUNSEL]: -- moral turpitude or
dishonesty, we'd argue that that has the prejudicial value
associated with that theft of property conviction coming in,
again, it overwhelms and, I guess, outweighs in probative
value that that evidence may have had.
6
1190505 and 1190725
"THE COURT: I'll allow the misdemeanor conviction. I
won't allow anything that happened after the accident.
"[CANNON'S COUNSEL]: Your Honor, it still goes to his
credibility.
"THE COURT: Not after the accident. ...
"[CANNON'S COUNSEL]: If you're a thief and you're
dishonest, it doesn't matter when it happens, Your Honor.
This is not like driving history or anything like that.
"THE COURT: Yeah. But we're talking about an
accident that occurred -- when does the accident occur?
"[LUCAS'S COUNSEL]: November of 2015.
"THE COURT: Right. You know, have you been
dishonest since then? That's irrelevant.
"....
"THE COURT: I'll allow the misdemeanor that he pled
guilty to before the accident but not after."
Shortly thereafter, the following discussion occurred:
"[CANNON'S COUNSEL]: Just so the record's clear, the
subsequent conviction that you're not going to allow in is a
felony under Section 13A-12-212 and 13A-12-203, [Ala. Code
1975,] which involves obtaining a prescription by forgery,
fraud, deceit, or misrepresentation. That's the claim that I was
wanting to get in, which you denied. I just want to make sure
the record was clear.
7
1190505 and 1190725
"THE COURT: Okay. So noted."
Cannon specifically contends that the trial court "had no basis for writing
a novel 'after the accident' exception into Rule 609," Ala. R. Evid., and that
evidence of Lucas's 2018 conviction for presenting a forged drug
prescription was automatically admissible under Rule 609(a)(2), Ala. R.
Evid.
Before we reach the merits of Cannon's argument, we must
determine whether this issue is properly before this Court.
"This Court has previously recognized two types of
motions in limine, 'prohibitive preliminary' and 'prohibitive
absolute.' Keller v. Goodyear Tire & Rubber Co., 521 So. 2d
1312 (Ala. 1988). Preliminary motions in limine seek only to
prohibit the opposing party from offering or mentioning certain
evidence without first obtaining a ruling from the judge during
trial. Id. at 1313. With a preliminary motion in limine, the
nonmoving party must make an offer of proof and indicate why
the evidence should be admitted, in order to preserve for
review any error in the court's ruling. Id. However, with an
absolute motion in limine, no such offer of proof need be made
at trial in order to preserve for review any alleged error in the
trial court's order granting such a motion. Id. The motion in
limine in this case was an absolute motion in limine."
Phelps v. Dempsey, 656 So. 2d 377, 381 n.1 (Ala. 1995). See also Higgs v.
Higgs, 270 So. 3d 280, 286 n.3 (Ala. Civ. App. 2018)("[B]ecause the trial
8
1190505 and 1190725
court's ruling on the former wife's motion in limine, which sought an
unconditional bar to economic-condition evidence pertaining to her, was
absolute rather than preliminary, no offer of proof was necessary in order
to preserve that ruling for review."). Likewise, the motion in limine in
this case was an absolute motion in limine, rather than a preliminary
motion in limine, and no subsequent offer of proof was required to
preserve the issue for appellate review. Therefore, although Cannon did
not make an offer of proof at trial, this issue is, nevertheless, properly
before this Court.
Initially, Cannon argues that the trial court "had no basis for writing
a novel 'after the accident' exception into Rule 609." With regard to
impeachment by evidence of prior convictions, Rule 609 provides, in
relevant part:
"(a) General Rule. For the purpose of attacking the
credibility of a witness,
"(1)(A) evidence that a witness other than an
accused has been convicted of a crime shall be
admitted, subject to Rule 403, [Ala. R. Evid.,] if the
crime was punishable by death or imprisonment in
excess of one year under the law under which the
witness was convicted, and
9
1190505 and 1190725
"(B) evidence that an accused has been
convicted of such a crime shall be admitted if the
court determines that the probative value of
admitting this evidence outweighs its prejudicial
effect to the accused; and
"(2) evidence that any witness has been
convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the
punishment.
"(b) Time Limit. Evidence of a conviction under this rule
is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever
is the later date, unless the court determines, in the interests
of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction, more
than ten years old as calculated herein, is not admissible
unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest
the use of such evidence."
By its plain language, Rule 609 does not impose any requirement
that a conviction that is to be used for impeachment purposes must have
occurred before the incident that provides the basis for the current
proceeding. Therefore, to the extent that the trial court found that
Cannon could not introduce evidence of Lucas's 2018 conviction merely
10
1190505 and 1190725
because it occurred after the accident in this case, that finding was
erroneous.
Cannon also argues that Lucas's 2018 conviction for presenting a
forged drug prescription was automatically admissible under Rule
609(a)(2). By its plain language, Rule 609(a)(2) provides that "evidence
that any witness has been convicted of a crime shall be admitted if it
involved dishonesty or false statement, regardless of the punishment."
(Emphasis added.)
"Convictions for the following listed crimes are eligible
for impeachment in that each offense satisfies either
Alabama's narrow or broad interpretation of the 'dishonesty or
false statement' standard set forth in Rule 609(a)(2). Crimes
satisfying the narrow interpretation, which require some
element of fraud, deceit or misrepresentation of fact, include
such crimes as perjury, subornation of perjury, false
statement, criminal fraud, embezzlement or false pretense.
Crimes satisfying the broader Huffman [v. State, 706 So. 2d
808 (Ala. Crim. App. 1997),] interpretation -- illustrated by
burglary, robbery and larceny -- involve dishonesty (meaning
breach of honesty or trust, as lying, deceiving, cheating,
stealing, or defrauding) and bear directly on the capacity of a
witness to testify truthfully at trial.
"....
11
1190505 and 1190725
"(g) Forgery -- Robinson v. State, 735 So. 2d 208, 211
(Miss. 1999). See Ala. R. Evid. 609(a) advisory committee
notes.
"(h) False prescription -- See Ala. R. Evid. 609(a) advisory
committee's notes; United States v. Tracy, 36 F.3d 187, 192
(1st Cir. 1994), cert. denied, 514 U.S. 1074 (1995)."
II Charles W. Gamble et al., McElroy's Alabama Evidence § 145.01(9) at
1015-16 (7th ed. 2020). The crime at issue in this case involved forgery --
specifically, presenting a forged drug prescription. Therefore, we must
determine whether presenting a forged drug prescription involves
dishonesty or false statement so that evidence of a conviction for that
offense is automatically admissible for impeachment purposes pursuant
to Rule 609(a)(2).
In United States v. Tracy, 36 F.3d 187, 192 (1st Cir. 1994), the
United States Court of Appeals for the First Circuit explained:
"The Government insists that under Fed. R. Evid.
609(a)(2) the district court had no discretion to exclude the
evidence of Tracy's conviction for uttering a false prescription,
as this was a crime of dishonesty offered to impeach Tracy's
credibility as a witness. The Government is correct. A
conviction for uttering a false prescription plainly involves
dishonesty or false statement. See Fed. R. Evid. 609 notes of
conference committee, H.R. No. 93-1597 ('By the phrase
"dishonesty and false statement" the Conference means crimes
12
1190505 and 1190725
such as perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to testify
truthfully.'). Moreover, '[t]he admission of prior convictions
involving dishonesty and false statement is not within the
discretion of the [district] [c]ourt.' Id.; e.g., United States v.
Morrow, 977 F.2d 222, 228 (6th Cir. 1992) ('Rule 609(a)(2) ...
clearly limits the discretion of the court by mandating the
admission of crimes involving dishonesty or false statements.'),
cert. denied, 508 U.S. 975, 113 S. Ct. 2969, 125 L. Ed. 2d 668
(1993); United States v. Kiendra, 663 F.2d 349, 354 (1st Cir.
1981) ('[E]vidence offered under Rule 609(a)(2) is not subject
to the general balancing provision of Rule 403.'). Hence, we
find no error in the admission of evidence of the prior
conviction for uttering a false prescription."
In Jones v. State, 846 So. 2d 1041 (Miss. Ct. App. 2002), the
Mississippi Court of Appeals held:
"Jones testified that on the day of the robbery, she was
at her doctor's office getting her prescription filled. Introduced
into evidence was her prescription receipt and her doctor's
patient chart to confirm the date. The State sought to attack
her truthfulness by producing evidence of a prior misdemeanor
conviction for prescription forgery. The State reasoned that
this evidence was relevant to show the defendant's propensity
for untruthfulness. By a rule of evidence, proof of a prior
conviction is readily admissible to attack the credibility of a
witness when the conviction involved a dishonest or false
statement. [Miss. R. Evid.] 609(a)(2).
13
1190505 and 1190725
"Jones asserts that the admission of this evidence was
reversible error. When the prior conviction is of a crime that
directly
involves
untruthfulness,
such
evidence
is
automatically admissible without the added requirement of
undertaking a balancing that is required for proof of
convictions of other kinds of crimes. Id.; Adams v. State, 772
So. 2d 1010 (¶ 56) (Miss. 2000). Forgery is the kind of crime
covered by Rule 609(a)(2).
"There was no error in the State using this prior
conviction for impeachment."
846 So. 2d at 1046-47.
Also, in Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995),
the Superior Court of Pennsylvania held:
"Appellant was convicted, essentially, of writing prescriptions
for a controlled substance to himself, knowing he had a
chemical dependency problem. The crime itself involves
making a false statement because it necessarily involves the
falsification of a prescription by a practitioner representing
that it is not for a person who is chemically dependent.
Because of the very nature of the offense committed, we must
find that the crime is crimen falsi and, because the conviction
is admitted to have occurred within ten (10) years of the
matter involved, evidence concerning it should have been
admitted at trial. It was error, therefore, for the trial court to
have excluded the evidence. Likewise, it was error, under
Russell v. Hubicz, [425 Pa. Super. 120, 624 A.2d 175 (1993)],
and Commonwealth v. Randall, [515 Pa. 410, 528 A.2d 1326
(1987)], for the court to have found that the crime was not
crimen falsi and to have therefore performed a balance
14
1190505 and 1190725
between probative value and prejudicial effect. The evidence
was automatically admissible."
439 Pa. Super. at 272, 653 A.2d at 1254 (footnote omitted).
Based on the comments in McElroy's Alabama Evidence and the
holdings in Tracy, supra, Jones, supra, and Allen, supra, each of which
interpreted a ruled of evidence substantially similar to our Rule 609(a)(2),
we conclude that presenting a forged drug prescription is a crime
involving "dishonesty or false statement" and that evidence concerning a
conviction for that offense is automatically admissible for impeachment
purposes pursuant to Rule 609(a)(2). Therefore, to the extent that the
trial court found that Cannon could not introduce evidence of Lucas's 2018
conviction because it was irrelevant and because the danger of unfair
prejudice to Lucas substantially outweighed the probative value of the
evidence, those findings were erroneous.
Conclusion
For the above-stated reasons, we conclude that the trial court erred
in granting Lucas's motion in limine to exclude evidence regarding his
2018 conviction for presenting a forged drug prescription. Because the
15
1190505 and 1190725
trial court erred in ruling that Cannon could not present such evidence at
trial, we must conclude that it also erred in denying Cannon's motion for
a new trial. Accordingly, in case number 1190505, we reverse the trial
court's judgment based on the jury verdict, and we remand this case for
that court to grant Cannon's motion for a new trial.1 We determine that
the issue raised in case number 1190725 concerning supplementation of
the record on appeal is moot; therefore, we dismiss that appeal.
1190505 -- REVERSED AND REMANDED.
1190725 -- APPEAL DISMISSED.
Bolin, Shaw, Bryan, and Sellers, JJ., concur.
Mendheim and Stewart, JJ., concur in the result.
Parker, C.J., dissents.
Wise and Mitchell, JJ., recuse themselves.
1Based on our disposition of this issue, we pretermit discussion of the
remaining issues raised by Cannon in case number 1190505.
16
1190505 and 1190725
PARKER, Chief Justice (dissenting).
I agree with the main opinion's application of Rule 609, Ala. R. Evid.,
concluding that the circuit court erred by excluding Zachary Lucas's
postaccident conviction, but I dissent because Michael Cannon did not
demonstrate that the error harmed him and because I believe the circuit
court's error was harmless.
Rule 45, Ala. R. App. P., prohibits an appellate court from reversing
a judgment because of an erroneous evidentiary ruling if the error
probably did not harm the losing party:
"No judgment may be reversed or set aside, nor new trial
granted in any civil or criminal case on the ground of ... the
improper admission or rejection of evidence ..., unless in the
opinion of the court to which the appeal is taken ..., after an
examination of the entire cause, it should appear that the
error complained of has probably injuriously affected
substantial rights of the parties."
Thus, "the mere showing of error is not sufficient to warrant a reversal;
it must appear that the appellant was prejudiced by that error." City of
Birmingham v. Moore, 631 So. 2d 972, 973-74 (Ala. 1994). The appellant
bears the burden of showing that an erroneous ruling was prejudicial.
Middleton v. Lightfoot, 885 So. 2d 111 (Ala. 2003).
17
1190505 and 1190725
The main opinion contains no harmless-error analysis. And, in fact,
Cannon has not made any cognizable argument showing that the
exclusion of Lucas's postaccident conviction probably harmed him. In his
opening brief, Cannon baldly asserts that the error made the trial
"unfair," but he cites no authority in support of that assertion. In his reply
brief, Cannon insists that, "[i]n an $18 million case that turned almost
entirely on the jury's evaluation of who was more credible, the exclusion
of Lucas's [2018] conviction for [a] crime involving dishonesty is reason by
itself to reverse." However, he again fails to cite any supporting authority.
Because Cannon did not timely argue that the erroneous ruling harmed
him and, in violation of Rule 28(a)(10), Ala. R. App. P., has never cited
authority on that point, Cannon has failed to meet his appellate burden
of showing that the exclusion of Lucas's 2018 conviction warrants
reversal.
Additionally, the error was not probably prejudicial, because there
was ample evidence from which the jury could have found that Cannon
was negligent, regardless of Lucas's credibility. There were physical
"gouge" marks off the roadway caused by the accident. The wrecked
18
1190505 and 1190725
motorcycle was found off the road. Cannon testified that he never saw
Lucas before hitting him even though nothing obstructed his vision.
Cannon's van was dented on the right front and his right front tire was
popped, consistent with his hitting the motorcycle near or off the right
shoulder. A driver who stopped at the scene testified that, although the
area was dark and he was driving with only his low beams on, he had no
difficulty seeing the wrecked motorcycle off the road. Thus, even without
Lucas's testimony, the evidence strongly supported a conclusion that
Cannon was negligent in failing to see and avoid Lucas and the
motorcycle.
For these reasons, I would not reverse the judgment based on the
circuit court's erroneously excluding Rule 609 impeachment evidence.
19 | August 20, 2021 |
a9d56865-99d8-4a49-b51f-5d76b91fdd33 | Lands v. Ward d/b/a Lucky B's Trucking | N/A | 1191074 | Alabama | Alabama Supreme Court | REL: June 25, 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, 2020-2021
____________________
1191074
____________________
Steve D. Lands
v.
Betty Ward d/b/a Lucky B's Trucking
Appeal from Morgan Circuit Court
(CV-16-900303)
MITCHELL, Justice.
Steve D. Lands appeals a summary judgment entered in favor of
Betty Ward d/b/a Lucky B's Trucking ("Lucky B") in a suit he filed seeking
1191074
damages for injuries sustained on the job. The Morgan Circuit Court
entered summary judgment in favor of Lucky B on both of Lands's claims
against it -- negligence and wantonness -- because it held that Lucky B did
not owe Lands a duty. We affirm the judgment as to the wantonness
claim. But because Lands made a prima facie case of negligence and
demonstrated genuine issues of material fact, we reverse the judgment as
to that claim and remand the case for further proceedings.
Facts and Procedural History
Tennessee Valley Land and Timber, LLC ("TVL&T"), contracted
with Lands to haul timber for processing at various locations in the
Southeast. Kenneth Ward, the owner of TVL&T, provided Lands with a
1994 Peterbilt 379 Truck ("the truck") to make the deliveries. According
to Lands, when Kenneth first provided the truck, he told Lands that it
was sometimes difficult to start. If the truck would not start, Kenneth
instructed Lands to use a "hot-wire" method, which required Lands to use
a 12-inch piece of partially exposed wire to "jump" the truck while its
ignition was left in the on position.
2
1191074
Although TVL&T allowed Lands to use the truck for work, the truck
was owned by Lucky B. The truck bore the logo of Lucky B's Trucking and
was registered by Lucky B with the United States Department of
Transportation. Betty Ward, Kenneth Ward's wife, owns Lucky B's
Trucking. Betty kept the truck garaged at her home and had an
understanding with her husband regarding use of the truck. Despite this
arrangement, there was no lease of the truck between the spouses or their
respective businesses.
On the morning of September 25, 2015, Lands delivered logs to a
sawmill for TVL&T using the truck. When he returned to Betty's home
to garage the truck, Kenneth told Lands that he needed him to attach the
truck to a trailer across the street and take it to another work site. After
Lands drove the truck across the street, it died and would not restart.
This was not the first time Lands had experienced this problem with the
truck. On at least two prior occasions, he had to use the hot-wire
procedure to start the truck after the engine died; he did so both times
without incident.
3
1191074
Lands put the truck in neutral, engaged the parking brake, and got
out of the truck to use the hot-wire method. With both feet on the front-
wheel axle and a cigarette lighter in hand, he lifted the hood and
connected the 12-inch piece of wire to the firewall solenoid. The truck
jumped back to life and sent Lands to the ground. The truck then rolled
over Lands, severing the muscles in the lower half of his leg.
Lands sued Lucky B, TVL&T, and other entities in the Morgan
Circuit Court. Specifically, Lands sued Lucky B for negligence and
wantonness. The essence of Lands's claims was that Lucky B, as the
owner of the truck, had a duty under statute, regulation, and common law
to inspect the truck and maintain it in safe condition. By failing to inspect
and maintain it, he argued, the truck fell into disrepair and triggered the
sequence of events that caused his injuries.
After a period of discovery, the defendants moved for summary
judgment. Lands filed an opposition to the motion, which he supported
with, among other things, the affidavit of Whitney Morgan, a specialist in
commercial-motor-vehicle safety compliance; his own deposition
testimony; Kenneth's deposition testimony; and Betty's deposition
4
1191074
testimony. The trial court granted the summary-judgment motion on the
claims against Lucky B but denied it on the claims against the other
defendants. In its order, the trial court explained that it was granting
Lucky B's summary-judgment motion because Lucky B did not owe Lands
a duty. Following disposal of the claims against the other defendants via
settlement, Lands appealed.
Standard of Review
Lands appeals the summary judgment entered in favor of Lucky B.
This Court reviews a summary judgment de novo. EBSCO Indus., Inc. v.
Royal Ins. Co. of America, 775 So. 2d 128, 130 (Ala. 2000). We apply the
same standard a trial court uses to determine if the evidence presented
creates a genuine issue of material fact. Jefferson Cnty. Comm'n v. ECO
Pres. Servs., L.L.C., 788 So. 2d 121, 126 (Ala. 2000) (quoting Bussey v.
John Deere Co., 531 So. 2d 860, 862 (Ala. 1988)). Under that standard, if
the moving party establishes the absence of a genuine issue of material
fact, the burden shifts to the nonmoving party to present substantial
evidence that a genuine issue of material fact exists. Bass v. SouthTrust
Bank of Baldwin Cnty., 538 So. 2d 794, 797-98 (Ala. 1989). We have
5
1191074
defined "substantial evidence" as "evidence of such weight and quality
that fair-minded persons in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to be proved." West v.
Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).
Finally, " '[i]n determining whether a summary judgment was properly
entered, [this Court] must view the evidence in the light most favorable
to the nonmovant.' " Webb v. Henderson, 594 So. 2d 103, 103 (Ala. 1992)
(citation omitted).
Analysis
The trial court granted Lucky B's summary-judgment motion
because it held that Lucky B did not owe Lands a cognizable duty as a
matter of law. We disagree. And while we may affirm the trial court's
judgment for any reason supported by the record -- so long as the
requirements of due process have been satisfied -- see Smith v. Mark
Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006), there is no ground on which
to affirm the summary judgment on the negligence claim. The
wantonness claim, however, was properly disposed of.
A. Lands's Negligence Claim
6
1191074
Lands's first claim against Lucky B was for negligence. To make out
a prima facie case of negligence, Lands needed to establish "a duty, a
breach of that duty, causation, and damage." Armstrong Bus. Servs., Inc.
v. AmSouth Bank, 817 So. 2d 665, 679 (Ala. 2001). To be entitled to
summary judgment, Lucky B needed to show that there was no genuine
issue of material fact and that it was entitled to judgment as a matter of
law. See West, 547 So. 2d at 871. It failed to do so. Lands established a
prima facie case of negligence against Lucky B -- including the duty
element -- and demonstrated genuine issues of material fact necessitating
jury resolution. The additional grounds argued by Lucky B on appeal lack
merit.
1. Duty
Before the trial court and on appeal, Lands has argued that Lucky
B owed him a duty imposed by statute, regulation, and common law. In
essence, he argued that regulations promulgated by the Federal Motor
Carrier Safety Administration ("FMCSA") and incorporated into the
Alabama Code by reference, see § 32-9A-2(a)(1), Ala. Code 1975, imposed
a duty on Lucky B to inspect the truck and maintain it in a safe condition.
7
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The trial court disagreed and based its decision to grant Lucky B's
summary-judgment motion on what it said was the lack of a duty owed by
Lucky B to Lands.
a. Applicable Regulations and Statutes
In a negligence action, it is possible for a legal duty imposed by
statute or regulation to inform the common-law standard of reasonable
care or to supplant it entirely. See Parker Bldg. Servs. Co. v. Lightsey ex
rel. Lightsey, 925 So. 2d 927, 930-931 (Ala. 2005). "A violation of [a
safety] statute or ordinance can, therefore, be evidence of negligence
under certain circumstances." Murray v. Alabama Power Co., 413 So. 2d
1109, 1114 (Ala. 1982). "The decision of whether a violation occurred,
whether such violation was negligence, and whether such negligence was
the proximate cause of the injuries complained of will ... be left ... to the
jury." Id.1
1This is not to be confused with the doctrine of negligence per se,
which is not argued by Lands. Here, Lands relies on a statute to make out
a prima facie case of negligence as opposed to using a statutory violation
to conclusively establish, as a matter of law, duty and breach. See Sparks
v. Alabama Power Co., 679 So. 2d 678, 685 (Ala. 1996) (holding that the
case "did not involve the concept of ... negligence per se .... Rather, the
8
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Here, Lands argues that Lucky B's duties were informed by FMCSA
regulations. Specifically, he cites 49 C.F.R. § 396.3(a), which provides:
"Every motor carrier ... must systematically inspect, repair, and maintain,
or cause to be systematically inspected, repaired or maintained, all motor
vehicles ... subject to its control." As used in 49 C.F.R. § 396.3(a), a "motor
carrier" includes the term "employer" as that term is defined elsewhere in
the FMCSA regulations. 49 C.F.R. § 390.5. And "employer" means "any
person engaged in a business affecting interstate commerce who owns or
leases a commercial motor vehicle in connection with that business." Id.
These regulations have been expressly incorporated into Alabama law by
statute. § 32-9A-2(a)(1), Ala Code 1975 (providing that, subject to
exceptions not applicable here, "no person may operate a commercial
motor vehicle in this state, or fail to maintain required records or reports,
in violation of the federal motor carrier safety regulations as prescribed
by the U.S. Department of Transportation, 49 C.F.R. ... Parts 390-399 and
trial judge simply informed the jury that it was to determine whether [the
decedent] violated the statute, whether the violation was negligent
behavior under the circumstances of the case, and, if so, whether the
violation proximately caused his death.").
9
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as they may be amended in the future"). Further, the FMCSA has
promulgated an additional regulation declaring that "[a] motor vehicle
shall not be operated in such a condition as to likely cause an accident or
a breakdown of the vehicle." 49 C.F.R. § 369.7(a).
We have held that the purpose of regulations like these is to
eliminate the " 'problem of a transfer of operating authority, with its
attendant difficulties of enforcing safety requirements and fixing financial
responsibility for damage and injuries to shippers and members of the
public.' " Phillips v. J.H. Transp., Inc., 565 So. 2d 66, 70 (Ala. 1990)
(quoting Transamerican Freight Lines v. Brada Miller Freight Sys., 423
U.S. 28, 37 (1975)). Simply put, the regulations are designed to prevent
motor carriers from shirking responsibility if someone gets hurt in an
accident involving a commercial motor vehicle.
To determine if the regulations apply to Lucky B -- and therefore
inform its duty -- we must decide whether Lucky B is a "motor carrier" as
defined by the FMCSA. It is. An entity qualifies as a "motor carrier" if,
among other things, it falls under the definition of "employer." To be an
"employer," an entity must: (1) be "engaged in a business affecting
10
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interstate commerce" and (2) "own[] or lease[] a commercial motor vehicle
in connection with that business." 49 C.F.R. § 390.5. Lands presented
substantial evidence demonstrating that Lucky B meets both
requirements.
Lucky B meets the first requirement because it engaged in a
business affecting interstate commerce. It should be noted that, under the
text of the pertinent regulation, Lucky B need not be directly involved in
interstate commerce; it must merely be "engaged in a business affecting
interstate commerce." 49 C.F.R. § 390.5 (emphasis added). Nevertheless,
the scope of what qualifies as "interstate commerce" is broad. See, e.g.,
Wickard v. Filburn, 317 U.S. 111 (1942) (holding the regulation of purely
intrastate production and consumption of wheat was within Congress's
power to regulate interstate commerce because the covered subject
exerted a substantial economic effect on interstate commerce). The
United States Supreme Court has held that, under Congress's power to
regulate interstate commerce, Congress may regulate (1) the channels of
interstate commerce; (2) the instrumentalities, persons, or things in
interstate commerce -- even if the threat sought to be remedied may come
11
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from purely intrastate activities; and (3) activities having a substantial
relation to interstate commerce. United States v. Morrison, 529 U.S. 598,
608-09 (2000) (citing United States v. Lopez, 514 U.S. 549 (1994)).
This Court, applying United States Supreme Court precedent, has
identified factors that indicate whether an activity involves interstate
commerce. Wolff Motor Co. v. White, 869 So. 2d 1129, 1132-35 (Ala. 2003)
(citing and discussing, among other cases, Citizens Bank v. Alafabco, Inc.,
539 U.S. 52 (2003)) (holding that purchase of a car hauler sufficiently
affected interstate commerce to trigger the Federal Arbitration Act). The
Wolff Motor Co. Court held that the transaction in that case involved
interstate commerce for four reasons: (1) the commercial enterprise
regularly dealt in interstate commerce; (2) the commercial enterprise
purchased goods that had moved in interstate commerce; (3) the general
type of transaction at issue was of the sort subject to Congress's commerce
power; and (4) the item at the heart of the dispute -- a car hauler -- was an
instrumentality of interstate commerce. Id.
The factors present in Wolff Motor Co. are present here. The record
establishes that Lucky B's Trucking is a trucking business that routinely
12
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allowed another company, TVL&T, to use the truck. TVL&T, using Lucky
B's truck, made timber deliveries to the sawmills of companies
incorporated in Delaware, New York, and Georgia, with principal places
of business in Oregon, New York, and Georgia, respectively. Lucky B
insured the truck through National Indemnity Company, which is
headquartered and incorporated in Nebraska. These facts satisfy the first
factor because Lucky B participated in and facilitated transactions
throughout the country.
While there is no evidence that Lucky B purchased goods that moved
in interstate commerce (factor two), the truck itself was actually used to
move timber through interstate commerce (factor three). Specifically, on
at least one occasion, TVL&T used the truck to deliver timber taken from
Lincoln County, Tennessee, to a sawmill in Eva, Alabama. Additionally,
under factor three, long-haul trucking of goods traveling through
interstate commerce is an area that Congress is entitled to regulate. See
Morrison, 529 U.S. at 608-09. And that is precisely what Lucky B
facilitated when it allowed TVL&T to use the truck to haul timber cut in
one state to another state.
13
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Finally, under factor four, the truck is a textbook example of an
instrumentality of interstate commerce. See Wolff Motor Co., 869 So. 2d
at 1135 (quoting United States v. Bishop, 66 F.3d 569, 588-90 (3d Cir.
1995)) (" '[M]otor vehicles are "the quintessential instrumentalities of
modern interstate commerce." ... Commuters, salespeople and haulers rely
upon motor vehicles daily to maintain the flow of commerce ....' ").
By allowing the truck to carry lumber for the purpose of transacting
with companies throughout the country, Lucky B surely "engaged" in the
business in which the truck was being used. TVL&T never assumed
exclusive possession or control of the truck through any contract or lease,
leaving the responsibility for the truck, under federal regulations, with
Lucky B. Viewed in totality, Lucky B engaged in a business that affected
interstate commerce.
We turn to the second requirement for constituting an "employer":
owning or leasing a commercial motor vehicle in connection with the
business engaged in interstate commerce. It is undisputed that Lucky B
owned the truck. The truck bore the logo and the United States
Department of Transportation number of Lucky B's Trucking. And the
14
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truck was undoubtedly "connected" to the lumber-hauling business
because it was the very truck used by Lands to make the deliveries. Cf.
Phillips, 565 So. 2d at 66 (holding that the presence of the defendant's
federally required decal on the side of a truck was sufficient evidence to
establish that the defendant maintained control of the truck). Lucky B
therefore satisfies the second requirement, making it an "employer" and
bringing it within the definition of "motor carrier," thus triggering the
application of the federal regulations.
Lucky B was required under both federal regulations and Alabama
statute to "systematically inspect, repair, and maintain, or cause to be
systematically inspected, repaired, and maintained, all motor vehicles ...
subject to its control." 49 C.F.R. § 396.3(a); § 32-9A-2(a)(1). Lands is
entitled to use the regulations and the statute incorporating them into
Alabama law to establish his prima facie case for negligence.
b. Common-Law Duty to Inspect and Maintain
Lands also points to the common-law duty of vehicle owners to
inspect their vehicles and maintain them in safe condition. This Court
has held that "[i]f the use of [an] instrumentality threatens serious danger
15
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to others unless it is in good condition, there is a duty to take reasonable
care to ascertain its condition by inspection." Motor Terminal & Transp.
Co. v. Millican, 244 Ala. 39, 43, 12 So. 2d 96, 99 (1943). More specifically,
in discussing motor vehicles, the Millican Court noted:
" '[T]he owner or operator of a motor vehicle must exercise
reasonable care in the inspection of the machine, and is
chargeable with notice of everything that such inspection
would disclose. This rule applies where the operator is the
owner of the vehicle or rents it from another, or permits
another to use it, or lets it to another for hire. But in the
absence of anything to show that the appliances were
defective, the owner or driver is not required to inspect them
before using the car or permitting it to be used.' "
Id. (quoting Huddy Automobile Law, Vol. 3-4, p. 127 et seq). These
statements bolster what the regulations and statute already established.
c. Foreseeability
Lucky B, on the other hand, primarily rests its appellate argument
on foreseeability. It argues that it was not foreseeable to Lucky B that
Lands would exit the truck after it broke down, stand on the axle with a
cigarette lighter in hand, and attempt to restart the engine via a piece of
loose, exposed wire. But this conception of foreseeability is too narrow
based on the alleged duty and breach.
16
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" 'Foreseeability does not require that the particular consequence
should have been anticipated, but rather that some general harm or
consequence should have been anticipated.' " City of Birmingham v.
Benson, 631 So. 2d 902, 907 (Ala. 1993) (quoting Thetford v. City of
Clanton, 605 So. 2d 835, 840 (Ala. 1992)). "[T]he test is not what [the
defendant] in fact knew, but whether it was reasonably foreseeable that
a failure to maintain the [device] in a safe condition could cause injury to
a third party." Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1209 (Ala.
1999). Here, it is certainly foreseeable that a failure to maintain a long-
haul truck according to safety regulations would result in an injury to a
third party -- especially the driver of that vehicle. Protecting the public
and the driver is precisely the reason trucking safety regulations exist.
See Phillips., 565 So. 2d at 70 (quoting Transamerican Freight Lines, 423
U.S. at 37) (" ' "The purpose of the [automotive] rules is to protect the
industry from practices detrimental to the maintenance of sound
transportation services ..." and to assure safety of operation.' ").
The facts of this case pose a stark contrast to one of our more recent
cases, DeKalb-Cherokee Counties Gas District v. Raughton, 257 So. 3d
17
1191074
845 (Ala. 2018) (plurality opinion), in which a plurality of this Court held
that there was insufficient evidence of foreseeability. In Raughton, the
plaintiff sued for negligence relating to injuries he had sustained when a
gas-district employee was dumping refuse at a city landfill. Id. at 846.
The plurality specifically noted in its analysis that "[t]here was no
testimony or other evidence indicating that performing the maneuver
violated any formal safety standards." Id. at 848. See also Butler v. AAA
Warehousing & Moving Co., 686 So. 2d 291 (Ala. Civ. App. 1996)
(affirming summary judgment for a defendant because, among other
reasons, a forensic engineer testified that the hazard at issue did not
violate any applicable safety standards).
The same cannot be said here. Lands presented the affidavit of
Whitney Morgan, who provides consulting services to entities about
commercial-motor-vehicle safety compliance -- specifically, compliance
with FMCSA regulations. His work includes inspections of trucks for
compliance with relevant safety standards and regulations. In his
affidavit presented to the trial court, Morgan stated that, in his opinion,
which was formed after reviewing the evidence, "Lucky B was in violation
18
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of the [safety regulations] for requiring or permitting the vehicle to be
operated, which caused and/or contributed to the cause of Mr. Lands's
injuries." This, combined with the other testimony Lands supplied,
established an absence of compliance with the safety regulations.
d. Responsibility Not Shifted by a Lease
In its order, the trial court relied on its finding of fact that the truck
was leased by Lucky B to TVL&T to relieve Lucky B of liability. This
finding was clearly erroneous. The FMCSA regulations permit authorized
carriers to use vehicles they do not own only when there is "a written
lease granting the use of the equipment and meeting the requirements
contained in [49 C.F.R.] § 376.12." 49 C.F.R. § 376.11(a) (emphasis
added). This comports with the regulations' overall goal of apportioning
responsibility among motor carriers. To comply with the FMCSA
regulations, a written lease must contain language providing that "the
authorized carrier lessee shall have exclusive possession, control, and use
of the equipment for the duration of the lease. The lease shall further
provide that the authorized carrier lessee shall assume complete
responsibility for the operation of the equipment for the duration of the
19
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lease." 49 C.F.R. § 376.12(c)(1). There is no written lease between Lucky
B and TVL&T in the record. And testimony in the record confirms the
absence of a lease -- Betty testified that she did not know if the truck was
leased, and Kenneth testified that TVL&T did not lease any trucks.
In sum, Lands met his burden of providing substantial evidence that
Lucky B owed a duty to him. The trial court erred by holding otherwise.
2. Breach
Contrary to what Lucky B argues, Lands presented substantial
evidence that Lucky B breached a duty owed to him. Lands's argument
is that Lucky B's failure to inspect and maintain the truck in compliance
with federal regulations and a state statute constituted the breach. To
support this argument, Lands submitted Morgan's affidavit to the trial
court as part of his response to the defendants' summary-judgment
motions. As reflected in his affidavit, Morgan reviewed the testimony of
Betty, the testimony of Lands, and a photograph of the truck. After his
review of those materials, he testified:
"[I]t is my opinion (to a reasonable degree of certainty) that the
Peterbilt truck tractor owned and operated by [Lucky B] ... and
provided to Steve Lands to drive at the time he was injured on
20
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September 25, 2015 was in such a condition that it should not
have been in service because it was in violation of the
applicable safety regulations and standards, due to the fact
that it was not properly inspected, repaired and maintained as
required."
This was the only evidence before the trial court regarding Lucky B's
compliance with FMCSA regulations.
There is no evidence in the record that Lucky B even attempted to
inspect, maintain, or repair the truck as required by Alabama law. In
fact, the evidence, viewed in the light most favorable to Lands, indicates
the opposite. See Webb, 594 So. 2d at 103. Thus, we cannot say, as a
matter of law, that Lucky B did not breach a duty in the manner in which
it maintained the truck.
3. Proximate Cause
Lucky B also raises the possibility that a lack of proximate cause
supports the trial court's judgment. Although the sequence of events in
this case is unusual, the resulting injury here is not the kind that takes
the question of proximate cause away from the jury.
It is well established that proximate cause is generally a jury
question. Giles v. Gardner, 287 Ala. 166, 169, 249 So. 2d 824, 826 (1971).
21
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"[I]t is only when the facts are such that reasonable men must draw the
same conclusion that the question of proximate cause is one of law for the
courts." Id. Like the duty analysis, proximate cause accounts for
foreseeability, which has been labeled "the cornerstone of proximate
cause." Alabama Power Co. v. Taylor, 293 Ala. 484, 498, 306 So. 2d 236,
249 (1975). An injury is deemed foreseeable if it is the " ' " ' "natural,
although not the necessary and inevitable, result of the negligent
fault." ' " ' " Looney v. Davis, 721 So. 2d 152, 162 (Ala. 1998) (quoting
Lawson v. General Tel. Co. of Alabama, 289 Ala. 283, 289, 267 So. 2d 132,
138 (Ala. 1972)). "Thus, generally a defendant may be found liable if some
physical injury of the general type the plaintiff sustained was a
foreseeable consequence of the defendant's negligent conduct, even though
the extent of the physical injuries may have been quite unforeseeable."
Id. (emphasis added).
What is foreseeable can be broader than what the defendant actually
knew. Lance, 731 So. 2d at 1209. Foreseeability encompasses " 'all
consequences which a prudent and experienced person, fully acquainted
with all the circumstances, at the time of his negligent act, would have
22
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thought reasonably possible to follow that act, including the negligence of
others.' " Looney, 721 So. 2d at 159 (internal citation omitted).
The record contains substantial evidence of proximate cause that
requires jury resolution. Lands presented the affidavit of Morgan, who
said that the truck was, in his opinion, not compliant with FMCSA
regulations and unsafe to drive. Lands also supplied his own testimony
that he was taught the hot-wire method by Kenneth and that he had used
it on at least two prior occasions before the accident. Under our
proximate-cause framework, which presumes Lucky B was " 'fully
acquainted with all [these] circumstances, at the time of [its] negligent
act,' " Looney 721 So. 2d at 159, it cannot be said, as a matter of law, that
Lucky B is not responsible for "some physical injury of the general type
[Lands] sustained." Id. at 162. A reasonable person, aware that the truck
was noncompliant with safety regulations, that the truck had broken
down on multiple occasions while being used by TVL&T, and that
TVL&T's agents hot-wired the truck on those occasions to restart it, could
have foreseen a resulting injury. Lands satisfied his burden to the point
where a jury should be allowed to resolve the issue.
23
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4. Contributory Negligence As a Matter of Law
In several sections of its brief, Lucky B contends that the judgment
below can stand because Lands was contributorily negligent as a matter
of law. That is a high hurdle that Lucky B cannot clear at this stage
based on the record before us.
The question of contributory negligence is "normally one for the jury"
to decide. Wyser v. Ray Sumlin Constr. Co., 680 So. 2d 235, 238 (Ala.
1996). To obtain summary judgment based on contributory negligence,
the moving party must show two things: (1) that the plaintiff put himself
in danger's way and (2) that the plaintiff had a conscious appreciation of
the danger at the moment the incident in question occurred. Hannah v.
Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860 (Ala. 2002). Further,
"[w]e protect against the inappropriate use of a summary judgment to
establish contributory negligence as a matter of law by requiring the
defendant on such a motion to establish by undisputed evidence a
plaintiff's conscious appreciation of the danger." Id. at 861 (emphasis
added).
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Here, there is no evidence -- let alone undisputed evidence -- that
Lands consciously appreciated the risk when he attempted to hot-wire the
truck after it broke down. Looking at the evidence in the light most
favorable to Lands, see Webb, 594 So. 2d at 103, he used a method that he
had used twice before without incident -- and this method was shown to
him and endorsed by his employer. While a jury may be entitled to find
that Lands's use of the hot-wire method was contributory negligence that
bars his recovery, Lucky B was required at the summary-judgment stage
to present "undisputed evidence [of the] plaintiff's conscious appreciation
of the danger." Id. Lucky B did not make that showing. Therefore, the
summary judgment cannot stand on that basis.
B. Lands's Wantonness Claim
The trial court granted Lucky B's summary-judgment motion
regarding Lands's wantonness claim. This was correct.
The evidence required to prove a negligence claim is distinct from
the evidence required to prove wantonness. Armstrong v. Hill, 290 So. 3d
411, 418 (Ala. 2019). " ' "Negligence is usually characterized as an
inattention, thoughtlessness, or heedlessness, a lack of due care; whereas
25
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wantonness is characterized as ... a conscious ... act." ' " Tolbert v. Tolbert,
903 So. 2d 103, 114-15 (Ala. 2004) (quoting Ex parte Anderson, 682 So. 2d
467, 470 (Ala. 1996)). We have held that wantonness involves "the
conscious doing of some act or the omission of some duty while knowing
of the existing conditions and being conscious that, from doing or omitting
to do an act, injury will likely or probably result." Ex parte Essary, 992
So. 2d 5, 9 (Ala. 2007).
In this case, Lands did not present substantial evidence
demonstrating that Lucky B acted "knowing of the existing conditions" of
the truck "while ... being conscious that, from doing or omitting to do an
act, injury [would] likely or probably result." Id. In the absence of such
evidence, Lucky B is entitled to summary judgment on the wantonness
claim.
Conclusion
Lands has made out a prima facie case of negligence. While
questions about causation and his own possible negligence remain, Lands
is entitled to have those questions answered by a jury. We therefore
reverse the trial court's summary judgment on that claim and remand the
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case for further proceedings. The same, however, cannot be said for
Lands's wantonness claim. Even viewed in the light most favorable to
Lands, see Webb, 594 So. 2d at 103, the record lacks the evidence of
heightened culpability required to prove wantonness. The judgment as to
that claim is accordingly affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur.
27 | June 25, 2021 |
ff2e4774-29d4-44ed-bb2e-70b7e5ef817c | Jackson v. Allen | N/A | 1190026 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190026
_________________________
Patrick Jackson
v.
Voncille Allen, as the personal representative of the Estate of
Valerie Allen, and Penn Tank Lines, Inc.
Appeal from St. Clair Circuit Court
(CV-18-900049)
STEWART, Justice.
Patrick Jackson appeals from a summary judgment entered in favor
of Voncille Allen, as the personal representative of the estate of Valerie
1190026
Allen ("the estate"), and Penn Tank Lines, Inc. ("PTL"). For the reasons
discussed below, we affirm the judgment in part and reverse the judgment
in part.
Facts and Procedural History
On March 30, 2016, Jackson was injured in an automobile accident
while undergoing training and riding as a passenger in a tractor-tanker
trailer commercial motor vehicle ("the CMV") driven by Valerie Allen
("Allen"). Allen died as a result of the accident. Jackson was an employee
of PTL and was being trained by Allen at the time of the accident. Allen
owned the CMV, and PTL was leasing the vehicle from Allen, who worked
for PTL, delivering fuel, under an independent-contractor agreement.
Jackson received medical treatment for his injuries after the accident, and
PTL's workers' compensation insurance covered the costs of the treatment.
On February 27, 2018, Jackson sued the estate and PTL, alleging
claims of negligence and "gross negligence and/or wantonness" against the
estate and a claim of negligent or wanton hiring, training, and supervision
against PTL; in addition, Jackson sought to hold PTL vicariously liable for
Allen's actions through the doctrine of respondeat superior. Jackson
2
1190026
initially asked for the appointment of an administrator ad litem for the
estate, and, after one was appointed, he filed an amended complaint
naming the administrator ad litem, on behalf of the estate, as a defendant.
PTL filed an answer denying the allegations in the amended
complaint and asserting various affirmative defenses. The administrator
ad litem filed a motion to dismiss on behalf of the estate, asserting that
both PTL and the estate were immune from suit under § 25-5-52 and § 25-
5-53, Ala. Code 1975, commonly referred to as "the exclusive-remedy
provisions" of the Alabama Workers' Compensation Act ("the Act"), § 25-5-
1 et seq., Ala. Code 1975. Section 25-5-52 provides, in part:
"Except as provided in [the Act], no employee of any
employer subject to [the Act], ... shall have a right to any other
method, form, or amount of compensation or damages for an
injury or death occasioned by an accident or occupational
disease proximately resulting from and while engaged in the
actual performance of the duties of his or her employment and
from a cause originating in such employment or determination
thereof."
Under § 25-5-53,
"[t]he rights and remedies granted in [the Act] to an
employee shall exclude all other rights and remedies of the
employee, his or her personal representative, parent,
dependent, or next of kin, at common law, by statute, or
3
1190026
otherwise on account of injury, loss of services, or death.
Except as provided in [the Act], no employer shall be held
civilly liable for personal injury to or death of the employer's
employee, for purposes of [the Act], whose injury or death is
due to an accident or to an occupational disease while engaged
in the service or business of the employer, the cause of which
accident or occupational disease originates in the employment.
In addition, immunity from civil liability for all causes of
action except those based upon willful conduct shall also
extend ... to an officer, director, agent, or employee of the same
employer ...."
(Emphasis added.) Jackson filed a response in opposition to the motion to
dismiss, asserting that Allen had been an independent contractor and not
an agent of PTL and that, as a result, his claims against the estate were
not barred by the exclusive-remedy provisions.
Jackson filed a second amended complaint substituting Voncille
Allen, Allen's mother, as the personal representative of the estate, as a
defendant. In his second amended complaint, Jackson specifically alleged,
among other things, that, at the time of the accident, Allen was acting as
the agent of PTL, within the line and scope of her employment with PTL,
and in furtherance of the business purposes of PTL. Voncille, on behalf of
the estate, and PTL ("the defendants") filed separate answers denying, in
part, the allegations in Jackson's second amended complaint and asserting
4
1190026
various affirmative defenses, including that Jackson's claims were barred
by the exclusive-remedy provisions because Jackson had received workers'
compensation benefits under the Act and because, they asserted, Allen
had been PTL's agent and had been "acting in the line and scope of such
agency" at the time of the accident.
The defendants filed a joint motion for a summary judgment in
which they argued that PTL had complete immunity from Jackson's
claims and that the estate had limited immunity from Jackson's claims
because, they asserted, Allen had been an agent of PTL. In support of
their argument, the defendants alleged, among others, the following
undisputed facts. Allen owned the CMV and was leasing it to PTL at the
time of the accident, and Allen and PTL had entered into an independent-
contractor agreement. Pursuant to the terms of both the CMV lease and
the independent-contractor agreement, PTL was to have exclusive
possession, control, and use of the CMV "as required by the rules and
regulations of the United States Department of Transportation"
("USDOT"). Also, pursuant to the terms of the independent-contractor
agreement, Allen was required to remain "qualified" as a driver under
5
1190026
USDOT regulations and state regulations. The independent-contractor
agreement also specified that PTL would provide commercial "public
liability" insurance for Allen and the CMV while it was being used in
furtherance of PTL's business.
The defendants also alleged that it was undisputed that, at the time
of the accident, in addition to delivering fuel for PTL, Allen was training
Jackson on behalf of PTL. The defendants submitted deposition testimony
showing, among other things, that Allen and Paul Ooten, Allen's former
manager, had entered into an oral agreement pursuant to which Allen
would become a "driver trainer" for PTL. Ooten sent Allen to a PTL safety
class in 2013 where she was instructed on how to train new drivers on
fuel-loading and -unloading procedures. Ooten testified that PTL utilized
both employees and independent contractors as trainers but that
independent contractors, like Allen, received additional compensation to
train new PTL employees. The defendants also submitted in support of
their summary-judgment motion a training manual that contained
specific, daily instructions and a checklist for tasks a trainer was required
to perform while training.
6
1190026
The defendants also argued in their summary-judgment motion that
Allen had been performing a nondelegable duty on behalf of PTL and that
the performance of such a duty had made Allen an agent of PTL. The
defendants pointed to Federal Motor Carrier Safety Administration
("FMCSA") regulations, specifically 49 C.F.R. § 376.12(c)(1), which
requires a motor carrier leasing a CMV to have exclusive possession,
control, and use of the vehicle and to assume complete responsibility for
the operation of the vehicle. The defendants further stated that, under
FMCSA regulations, an owner-operator of a CMV, despite his or her
status as an independent contractor, will be deemed to be the employee
of the motor carrier while operating a CMV. The defendants argued that
those types of obligations created by law a nondelegable duty and that,
therefore, Allen had been PTL's agent.
Jackson filed a response in opposition to the defendants' summary-
judgment motion in which he argued that a genuine issue of material fact
existed as to the amount of control PTL had exercised over Allen and as
to whether Allen had been PTL's agent. In support of his argument,
Jackson alleged that Allen had been responsible for training Jackson
7
1190026
pursuant to USDOT regulations and "a loose PTL training program."
Jackson alleged that the independent-contractor agreement required Allen
to use her own judgment when conducting her work, and, he asserted,
there were no other written agreements affecting the relationship between
Allen and PTL. Jackson further alleged that PTL had not possessed the
authority to require Allen to accept specific assignments and that PTL had
not withheld taxes from Allen's paychecks. Jackson also alleged that,
although Allen had been required to comply with PTL's policies and
procedures, Allen had been required by the independent-contractor
agreement to provide her own safety clothing, shoes, and equipment and
that her authority to enter a loading ground to fill the CMV tank had
come from the operator of the loading ground, not from PTL. In support
of his response, Jackson submitted documentary evidence and testimony
that had already been submitted by the defendants in support of their
summary-judgment motion.
On August 8, 2019, the trial court entered a summary judgment in
favor of the defendants. Jackson filed a motion to alter or amend the
summary judgment, in which he asked the trial court to specify the basis
8
1190026
upon which it had entered a summary judgment. On September 20, 2019,
after a hearing, the trial court entered an order in which it granted
Jackson's motion and included more specific language explaining the
bases for its summary judgment. The trial court found, in pertinent part:
"A. [Jackson] did not contest any of the material facts set forth
in Defendants' Statement of Undisputed Facts as contained
within Defendants' Motion for Summary Judgment and
likewise did not contest any of the additional material facts set
forth in paragraph 8 of the Supplemental Submission in
Support of Defendants' Motion for Summary Judgment; thus,
the Court adopts and finds the said material facts, including
the following:
"a. At the time of the accident made the basis of
this action, truck driver Valerie Denise Allen,
deceased ('Allen'), who held a valid State of
Alabama commercial driver's license ('CDL'), was
an agent for Defendant Penn Tank Lines, Inc.
('PTL') and was performing nondelegable duties on
behalf of PTL, a federally registered interstate
motor carrier of property possessing operating
authority granted by the Federal Motor Carrier
Safety Administration ('FMCSA').
"b. At the time of the accident made the basis of
this action, [Jackson] was an employee of PTL
under the Act who subsequently sought and
obtained workers' compensation benefits available
under the Act from his employer, PTL, and its
worker's compensation insurer in relation to the
injuries [Jackson] suffered in the said accident.
9
1190026
"c. No evidence has been presented to the Court
indicating that Allen's conduct was willful nor does
[Jackson] allege that Allen engaged in any willful
conduct
with
[Jackson's]
operative
Second
Amended Complaint stating claims for negligence
(Count
one)
and
gross
negligence
and/or
wantonness (Count two) in relation to Allen.
"B. Pursuant to the provisions of the Act, regulations of the
FMCSA, and the common law, this Court finds and declares as
follows:
"a. Because [Jackson's] alleged injuries from the
accident occurred while working for his employer,
Defendant PTL, said Defendant PTL has complete
immunity under the Act from liability in relation to
the claims against it contained in [Jackson's]
Second Amended Complaint.
"b. Allen, in turn, has limited immunity under the
Act that bars all claims against her and her Estate
contained in the Second Amended Complaint, none
of which are based on willful conduct, because she
was an agent of [Jackson's] employer, to-wit: PTL,
at the time of the accident."
Jackson timely filed a notice of appeal.
Standard of Review
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
10
1190026
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is no
genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
Discussion
At the outset, we note that Jackson does not challenge the summary
judgment insofar as the trial court found that PTL was entitled to
complete immunity under the exclusive-remedy provisions of the Act.
Accordingly, the summary judgment as to the claims asserted against PTL
is affirmed. See Boshell v. Keith, 418 So. 2d 89, 92 (Ala. 1982)("When an
appellant fails to argue an issue in its brief, that issue is waived.").
11
1190026
Jackson challenges the trial court's judgment insofar as it found that
Allen had been an agent of PTL. First, Jackson argues that the question
whether an agency relationship existed between Allen and PTL is a jury
question that should not have been resolved by a summary judgment.
Jackson cites Lee v. YES of Russellville, Inc., 784 So. 2d 1022, 1028 (Ala.
2000), in which this Court stated: "Whether the agency existed is, we
conclude, a question for a jury to decide." Jackson further argues that,
even if the trial court properly considered Allen's agency status at the
summary-judgment stage, there were nonetheless genuine issues of
material fact that precluded a determination, as a matter of law, that
Allen was an agent of PTL. This Court has explained that "the court may
grant a motion for a summary judgment" only "[w]here ... all the basic
facts are undisputed and the matter is one of interpretation or of reaching
a conclusion of law by the court." Studdard v. South Cent. Bell Tel. Co.,
356 So. 2d 139, 141 (Ala. 1978)(citing Bible Baptist Church v. Stone, 55
Ala. App. 411, 316 So. 2d 340 (1975)).
The issue, then, is whether the circumstances presented a genuine
issue of material fact as to whether Allen was an agent of PTL's at the
12
1190026
time the accident occurred. The parties correctly note that "agent" is not
defined in the Act. Jackson contends that, to determine whether Allen was
an agent, the test to be applied is contained in Morrison v. Academy Life
Insurance Co., 567 So. 2d 1309 (Ala. 1990), and asks whether, at the time
of the accident, Allen was authorized as a fiduciary of PTL, whether she
had the power to make PTL a party to a transaction, or whether she was
subject to PTL's control over her conduct. Jackson argues that there is no
evidence indicating that Allen was authorized to act as a fiduciary for PTL
or that she was authorized to make PTL a party to a contract, and he
argues that genuine issues of material fact exist as to the scope of PTL's
control over Allen.
The defendants argue that their summary-judgment motion was not
based on the traditional right-of-control test, discussed infra, but, instead,
on Allen's undisputed legal status as a commercial driver and driver-
trainer for PTL who, at the time of the accident, was delivering fuel for
PTL and providing training to Jackson on behalf of PTL, which, they
assert, made her an agent as a matter of law.
13
1190026
This Court has previously explained that the test for determining
whether one is an agent or an independent contractor is whether the
employer "retained a right of control" and that it does not matter whether
the employer actually exercised such control. Turner v. ServiceMaster,
632 So. 2d 456, 458 (Ala. 1994). In Turner, a hospital had contracted with
ServiceMaster as an independent contractor to train and supervise
hospital-employee housekeeping staff. A nurse employed by the hospital
fell and suffered an injury, and she sued the hospital seeking workers'
compensation benefits. Additionally, she sued ServiceMaster, alleging
claims of negligent and wanton training and supervision. ServiceMaster
asserted that it was immune from liability, pursuant to § 25-5-11, Ala.
Code 1975, of the Act, because, it alleged, it was an agent of the hospital
and, therefore, only claims involving willful conduct were permitted
against it.1 Id. at 457. This Court explained: "The test for determining
1Section 25-5-11 permits an injured employee to bring a cause of
action against a third party, including, among others, a co-employee or an
agent of the employer, who is jointly liable with the employer for the
employee's injury, but only if the third party's willful conduct contributed
to the injury, and does not affect the immunity afforded the designated
persons in § 25-5-53. See Padgett v. Neptune Water Meter Co., 585 So. 2d
14
1190026
whether ServiceMaster's role in its relationship with [the h]ospital was
that of an independent contractor or that of an agent, is whether [the
h]ospital retained a right of control over the means ServiceMaster
employed to manage and train the housekeeping personnel, not whether
the hospital actually exercised such control." Turner, 632 So. 2d at 458.
Turner's right-of-control test continues to be an appropriate standard to
be used in determining the existence of an agency relationship, and
neither party has asked this Court to overturn it.2
In support of his right-of-control argument, Jackson raises the same
arguments he made in his response in opposition to the defendants'
summary-judgment motion. In particular, Jackson points to the
independent-contractor agreement between Allen and PTL that expressly
identified Allen as an independent contractor and stated that Allen was
to use her own judgment in determining how to perform under the
agreement. Jackson also asserts that any oral agreement outside the
900 (Ala. 1991).
2The defendants argue that their agency argument is not based on
the right-of-control test, but, nevertheless, they cite Turner in support of
their position.
15
1190026
written independent-contractor agreement, i.e., the alleged oral training
agreement, is ineffective because the independent-contractor agreement
provided that the parties to that agreement did "not intend to create any
other type of relationship between themselves" and that "any verbal or
prior agreements between the parties have no force or effect."
Jackson also asserts that Allen had the right to accept or reject
assignments and that Allen's authority to enter a loading ground where
the CMV tank would be filled had come from the operator of the loading
ground, not from PTL. In addition, Jackson asserts that Allen was paid as
an independent contractor, that PTL did not withhold taxes from her
compensation, and that, if Allen was assigned additional duties, i.e.,
trainer work, PTL would negotiate with her and she would receive
additional compensation. Jackson also asserts that there was no evidence
indicating that PTL retained the right to control Allen's daily schedule or
hours.
Jackson further asserts that, although Allen had been required to
comply with PTL's policies and procedures, she had been required by the
independent-contractor agreement to provide her own clothing, safety
16
1190026
shoes, and equipment. Jackson cites Parr v. Champion International
Corp., 667 So. 2d 36 (Ala. 1995), in support of his argument, in which this
Court explained that an agency relationship is not created by an
employer's retention of the right to supervise or inspect an independent
contractor's work. Parr, 667 So. 2d at 39 (quoting Weeks v. Alabama Elec.
Coop., Inc., 419 So. 2d 1381, 1383 (Ala. 1982)).
Jackson also argues that Allen's position as a trainer did not render
her an agent of PTL, asserting that, even though Allen had been required
to follow instructions and to fill out a detailed training form while training
Jackson, that level of control does not create an agency relationship
because, Jackson contends, there is no evidence to indicate that PTL
supervised the manner in which Allen performed her training and,
pursuant to the training manual, PTL's training program " 'afforded
latitude for a trainer and trainee's style.' " Jackson's brief at 23. Citing
Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala. 1987), and Pate v.
United States Steel Corp., 393 So. 2d 992 (Ala. 1981), Jackson asserts that
the right to supervise or inspect an independent contractor's work to
ensure compliance does not create a master-servant relationship and that
17
1190026
there must be a right of control over the manner in which the independent
contractor performs his or her work.3
Applying Turner, the resolution of the question whether Allen was
an independent contractor or an agent depends on whether PTL retained
the right of control over the means Allen used in performing her job duties
of delivering fuel and training Jackson. Turner, 632 So. 2d at 458.
Furthermore, "[b]ecause working relationships take a wide variety of
forms, each case must depend on its own facts, and all features of the
relationship are considered together. Burbic Contracting Co. v. Willis, 386
3In Pugh, this Court stated:
"In the absence of a non-delegable duty, the mere retention of
the right to supervise or inspect the work of an independent
contractor as the work progresses to ensure compliance with
the terms of an agreement does not operate to create a
master-servant relationship. There must be a retention of
control over the manner in which the work is done, before an
agency relationship is created."
512 So. 2d at 1318. In Pate, this Court explained the principle that
retaining the right to supervise or inspect work of an independent
contractor, to monitor the progression of the work, does not create a
master-servant relationship. 393 So. 2d at 995.
18
1190026
So. 2d 419 (Ala. 1980)." Sessions Co. v. Turner, 493 So. 2d 1387, 1390 (Ala.
1986).
The facts demonstrated that Allen was acting in furtherance of
PTL's business by delivering fuel and by training Jackson at the time the
accident occurred. There was a dispute, however, as to the amount of
control PTL retained over Allen. For instance, although PTL did not
control Allen's daily schedule, Allen was required to follow PTL's policies
and procedures in performing her duties and maintaining her equipment,
in addition to being required to comply with USDOT regulations and
FMCSA regulations while delivering fuel. Moreover, although Allen was
required to follow PTL's detailed training manual and checklist while
training Jackson, she was permitted to implement whatever style she
chose. In addition, Allen was required to provide her own equipment and
had the discretion to accept or reject assignments.
Based on the facts before the trial court, we conclude that there was
a dispute as to whether PTL retained a right of control over the manner
in which Allen performed her responsibilities at the time the accident
occurred, and that dispute should have been submitted to a jury for
19
1190026
resolution. Accordingly, the trial court incorrectly concluded that, as a
matter of law, Allen was PTL's agent. Turner, 632 So. 2d at 458. Based on
our holding, we pretermit discussion of any other issues raised by the
parties.
Conclusion
We affirm the judgment insofar as the trial court determined that
PTL was entitled to complete immunity from Jackson's claims against it
pursuant to the exclusive-remedy provisions of Act. We reverse the
judgment insofar as the trial court determined, as a matter of law, that
Allen was PTL's agent under the purview of the exclusive-remedy
provisions of the Act, and we remand the cause for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Mitchell, J., concurs specially.
Parker, C.J., and Shaw, Wise, Bryan, and Mendheim, JJ., concur in
the result.
Bolin and Sellers, JJ., concur in part and dissent in part.
20
1190026
MITCHELL, Justice (concurring specially).
Whether one is an agent of another is a question of fact, not law.
Our cases are clear on this. See, e.g., Kennedy v. Western Sizzlin Corp.,
857 So. 2d 71, 77 (Ala. 2003) ("[S]ummary judgment on the issue of agency
is generally inappropriate because agency is a question of fact to be
determined by the trier of fact."); Lee v. YES of Russellville, Inc., 784 So.
2d 1022, 1028 (Ala. 2000) ("As this Court has held, 'the existence and
scope of an agency relationship are questions of fact to be determined by
the jury.' " (citation omitted)). Because the existence of an agency
relationship is a question of fact, "it is not the trial court's function to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Nix v. Franklin
Cnty. Dep't of Hum. Res., 234 So. 3d 450, 456 (Ala. 2017) (cleaned up).
Thus, the trial court in this case had to determine whether, in response
to the defendants' motion for summary judgment, Patrick Jackson
produced substantial evidence that Valerie Allen had not been an agent
of Penn Tank Lines, Inc. ("PTL").
21
1190026
That determination turned on whether PTL "retained a right of
control" over Allen's conduct on the job, even if PTL did not "actually
exercise[] such control." Turner v. ServiceMaster, 632 So. 2d 456, 458
(Ala. 1994). Jackson produced substantial evidence that PTL did not
retain control. Specifically, as the main opinion notes, Jackson presented
evidence that Allen had signed an agreement expressly identifying her
role as an independent contractor and requiring her to use her own
judgment in performing her obligations under the agreement; that PTL
had not withheld taxes from her pay and that she would be paid extra if
she agreed to perform additional work; that PTL had no right to control
her schedule or hours; that she had the right to accept or reject PTL's
assignments; and that she had been required by her independent-
contractor agreement to provide her own clothing and safety equipment.
Based on that and other evidence submitted in response to the
defendants' summary-judgment motion, it is clear to me that Jackson met
his burden by producing substantial evidence of a genuine dispute of
material fact -- that is, whether PTL had retained a right of control over
22
1190026
Allen. Thus, the trial court should not have entered summary judgment
on Jackson's claims against Allen's estate.
23
1190026
BOLIN, Justice (concurring in part and dissenting in part).
I agree with the main opinion that the trial court correctly
determined that Penn Tank Lines, Inc. ("PTL"), was entitled to complete
immunity from Patrick Jackson's claims against it based on the exclusive-
remedy provisions of the Workers' Compensation Act. However, I
respectfully dissent to reversing the summary judgment in favor of
Voncille Allen, as the personal representative of the estate of Valerie
Allen. I believe that Valerie Allen was an agent of PTL because Valerie
was acting as PTL's agent while she trained Jackson on behalf of
PTL. That is, Valerie was wearing her "agent" hat while she trained
Jackson as a PTL driver.
24
1190026
SELLERS, Justice (concurring in part and dissenting in part).
I respectfully dissent from that part of the main opinion reversing
the summary judgment in favor of Voncille Allen, as the personal
representative of the estate of Valerie Allen ("Allen's estate"). The trial
court held as a matter of law that Valerie Allen ("Allen") was an agent of
Penn Tank Lines, Inc. ("PTL"), at the time of the accident in question and,
that thus, Patrick Jackson's claims against Allen's estate were barred by
the exclusive-remedy provisions of the Alabama Workers' Compensation
Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975. See § 25-5-53, Ala. Code
1975 (extending immunity for causes of action based upon willful conduct
to, among others, agents of the same employer). The main opinion
reverses the summary judgment in favor of Allen's estate because, it
concludes, a jury question is presented regarding whether an agency
relationship did in fact exist between Allen and PTL at the time of the
accident.
Whether someone is classified as an independent contractor or an
agent is an important distinction because there are benefits, detriments,
25
1190026
and risk-shifting associated with those classifications. The Internal
Revenue Service, for instance, gives the following guidance:
"The general rule is that an individual is an independent
contractor if the payer has the right to control or direct only
the result of the work and not what will be done and how it
will be done. ...
"....
"You are not an independent contractor if you perform services
that can be controlled by an employer (what will be done and
how it will be done)."4
See also Black's Law Dictionary 920 (11th ed. 2019) (defining
"independent contractor" as "[s]omeone who is entrusted to undertake a
specific project but who is left free to do the assigned work and to choose
the method for accomplishing it").
There are circumstances in which a person can be both an
independent contractor and an agent or employee depending on the
specific duties that are being performed. In this case, Allen delivered
4As of the date of this decision, June 30, 2021, this material could be
found
at:
https://www.irs.gov/businesses/small-businesses-self-
employed/independent-contractor-defined. A copy of the material is
available in the case file of the clerk of the Alabama Supreme Court.
26
1190026
wholesale fuel for PTL under an independent-contractor agreement. Allen
also had an oral agreement with Paul Ooten, Allen's former manager, in
which Allen consented to train employees regarding PTL's procedures for
loading and unloading fuel tankers. Ooten testified that Allen was paid
an additional weekly stipend to be available to train others, regardless of
whether she did so or not. Ooten further testified that, although Allen was
an independent contractor, she was required to follow PTL's loading and
unloading procedures and that she was afforded no discretion to deviate
from those procedures. The training manual outlining those procedures
states, in relevant part, that the program "requires a very specific order
of sequenced training and must be adhered to by all parties." Allen was
also required to complete a daily checklist form for each day she trained
a driver; that checklist was in turn forwarded to PTL's risk department.
Allen, in fact, filled out three checklists in March 2016 in conjunction with
training Jackson. In other words, it was undisputed that Allen was
afforded no freedom to deviate from PTL's procedures for training
employees like Jackson on how to load and unload fuel tankers. Rather,
pursuant to its strict procedures, PTL reserved the right of complete
27
1190026
control over how Allen was to train drivers; thus an agency relationship
was created. See Pugh v. Butler Tel. Co., 512 So. 2d 1317, 1318 (Ala.
1987) (noting that "[t]here must be a retention of control over the manner
in which the work is done, before an agency relationship is created"). See
also Tyson Foods, Inc. v. Stevens, 783 So. 2d 804, 808 (Ala. 2000) (noting
that "whether an agency exists is determined from the facts, not by how
the parties choose to characterize their relationship"). Factually, the only
reason Jackson was riding in the tractor-tanker trailer commercial motor
vehicle ("the CMV") being driven by Allen was for training purposes. If
Jackson had not been riding with Allen at the time of the accident, Allen
would have been acting solely in her capacity as an independent
contractor. However, Jackson's presence in the CMV changed the nature
of Allen's relationship with PTL; Jackson's presence created an agency
relationship legally resulting in Allen's estate being exempt from suit
under § 25-5-53 of the Act. In our modern world, with the ever-increasing
development and general understanding of quantum physics, one concept
that is more widely accepted is that something or somebody can be two
seemingly mutually exclusive things at the same time. For instance, while
28
1190026
justice and mercy are opposites, a judge can possess both qualities and yet
be completely consistent. The same is true here: a person can be an
independent contractor and an agent at the same time. Once Jackson
entered the CMV with Allen, Allen's role as an independent contractor
was subsumed by her role as an agent, i.e., a driver trainer for PTL.
Accordingly, I would affirm that part of the trial court's judgment holding
that Allen was an agent of PTL at the time of the accident.
29 | June 30, 2021 |
846ee35d-25b6-4545-80fb-4ae1706086d0 | Cathedral of Faith Baptist Church, Inc. et al. v. Moulton, et al. | N/A | 1200062 | Alabama | Alabama Supreme Court | Rel: June 25, 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, 2020-2021
____________________
1200062
____________________
Cathedral of Faith Baptist Church, Inc., and Lee Shefton
Riggins
v.
Donald Moulton, Sr., et al.
Appeal from Jefferson Circuit Court
(CV-19-902687)
BOLIN, Justice.
1200062
Cathedral of Faith Baptist Church, Inc., and Lee Shefton Riggins
("the plaintiffs") appeal from the Jefferson Circuit Court's dismissal of
their complaint asserting various claims against, among others, Donald
Moulton, Sr., Broken Vessel United Church ("Broken Vessel"), Lucien
Blankenship, Blankenship & Associates, Antoinette M. Plump, Felicia
Harris-Daniels, Tara Walker, and Tavares Roberts ("the defendants").1
Facts and Procedural History
On June 14, 2019, the plaintiffs sued the defendants, alleging, in
part:
"The Cathedral Church purchased property located [in]
... Birmingham ... and obtained a Warranty Deed [on]
February 27,1992, which was recorded in the Jefferson County
Probate Court in Book 4222 Page 161.
"Cathedral Church conducted worship at the property
until membership dwindled and discontinued meeting. A
mortgage existed on the property with Regions Bank which
was outstanding and failed to be paid by [Lee Shefton] Riggins
1It appears from the record that Blankenship & Associates is a law
firm of which Lucien Blankenship is the principal and founding member,
that Harris-Daniels was employed as an attorney at Blankenship &
Associates, and that Plump, Roberts, and Walker were employees of
Blankenship & Associates. The record further indicates that
Blankenship, Moulton, and Plump are siblings.
2
1200062
(Paid in January, 2015). Riggins and Ms. Willie Bell Hall are
the sole survivors and interest holders of Cathedral Church;
their interest conveyed legally to Riggins.
"In 2014, [Donald] Moulton, on behalf of Broken Vessel
Church, sought to rent the Cathedral Church property from
Riggins. Riggins agreed to rent the property to Moulton and
Broken Vessel Church; Moulton and Broken Vessel Church
were to seek financing in the amount of TWO HUNDRED
AND FIFTY THOUSAND DOLLARS ($250,000.00) to
purchase the property.
"Moulton and Broken Vessel Church were to pay the
commercial liability insurance Cathedral Church maintained
with Planter's Insurance.
"Moulton and Broken Vessel unilaterally changed the
insurance carrier in July 2015 to Nationwide [Mutual
Insurance
Company]
without
Cathedral
Church
and
Riggins['s] knowledge or consent.
" Moulton and Broken Vessel never obtained financing to
purchase the property and never paid any money to Riggins or
Cathedral Church. Riggins paid for all Cathedral Church
repairs and renovations required.
"On November 26, 2016 Cathedral Church burned and
was a total loss. Moulton made a claim to Nationwide for the
lost premises and contents. No money was paid to Riggins.
"Riggins discovered the property settlement with
Nationwide in or around August 2017.
"Riggins also discovered subsequently two (2) recordings
of a general warranty deed in the Jefferson County Tax
3
1200062
Assessor's office purporting to be a sale of the property by
Riggins to Broken Vessel dated January 1, 2012 for
$150,000.00.
"The first recording is dated January 16, 2015 in Land
Record 201510, Page 10836 and typed 'consideration sum of
$250,000.00' struck through the '2' and handwritten '1' --
which was not initialed. Other defects are apparent on the face
of the General Warranty Deed which was notarized by
Antoinette Plump and witnessed by Tara Walker and Tavares
Roberts and dated January 1, 2012. A grantor's signature
purporting to be that of 'L. Shefton Riggins' was revealed with
no signatures of Moulton individually or on behalf of Broken
Vessel. Those defects include lack of a proper legal description
of the property, no Real Estate Sales Validation Form
submitted to Judge of Probate in accordance with Code of
Alabama (1975), Section 40-22-1; no certified resolution in
accordance with Code of Alabama (1975), Section 10A-20-2.06
filed for record in the Probate Office of Jefferson County,
Alabama.
"The second document was re-recorded in Instrument
20180001982 -- wherein handwritten is '250,000.00' as the
sales price. None of the defects listed ... above were addressed
nor corrected.
"Nationwide and its agent/producer [Sydney Keith]
Brooks accepted a commercial insurance application from
Moulton and Broken Vessel Church on July 2, 2015 requesting
coverage for the property ... without requiring proper proof of
an insurable interest by Moulton and Broken Vessel Church in
the Cathedral Church property. The application contained
multiple false statements attributed to Moulton which a
background check and due diligence regarding a warranty
deed or title search would have revealed."
4
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In count I of the complaint, the plaintiffs asserted a forgery claim,
alleging that the January 1, 2012, general warranty had been forged,
against Moulton, Broken Vessel, Plump, Walker, Roberts and, it appears,
Blankenship and Blankenship & Associates.2 Riggins denied having
conveyed the church property to Moulton or Broken Vessel, denied that
his signature on the January 1, 2012, general warranty deed was valid,
and denied that he had executed the January 1, 2012, general warranty
deed in the presence of Plump, as a notary public, and Walker and
Roberts, as witnesses. The plaintiffs sought, among other things, a
judgment declaring that the January 1, 2012, general warranty deed was
forged and invalid and an award of damages, including attorney's fees and
costs.
In count II of the complaint, the plaintiffs asserted a claim of fraud
and conspiracy to commit fraud against Blankenship, Blankenship &
Associates, Walker, Roberts, Plump, Moulton, and Broken Vessel, alleging
2It appears from the record that the plaintiffs sought to hold
Blankenship and Blankenship & Associates liable as to this count based
on a theory of respondeat superior, see note 1, supra, although this claim
as to Blankenship and Blankenship & Associates was inartfully pleaded.
5
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that those defendants had conspired to create and had created a forged
general warranty deed purporting to convey the church property to
Moulton and Broken Vessel. The plaintiffs sought, among other things,
an order voiding the general warranty deed and an award of damages,
including attorney's fees and costs.
In count III of the complaint, the plaintiffs asserted a conversion
claim against Harris-Daniels, Blankenship, Blankenship & Associates,
Moulton, and Broken Vessel, alleging that those defendants had engaged
in a scheme whereby they had obtained and converted insurance proceeds
paid by Nationwide for the loss of the church property to fire. The
plaintiffs sought the payment of an amount equal to the amount of the
insurance proceeds paid by Nationwide to Moulton and Broken Vessel,
punitive damages, interest, and attorney's fees and costs.
In count IV of the complaint, the plaintiffs asserted an unjust-
enrichment claim against Moulton and Broken Vessel, alleging that those
defendants had been unjustly enriched as a result of the payment of
insurance proceeds from Nationwide to Moulton and Broken Vessel. The
plaintiffs sought the payment of an amount equal to the amount of the
6
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insurance proceeds paid by Nationwide to Moulton and Broken Vessel,
compensatory and punitive damages, interest, and attorney's fees and
costs.3 A review of the defendants' responsive motions is pertinent to this
Court's disposition of the appeal.
On December 4, 2019, Moulton and Plump filed pro se responses to
the complaint, requesting that it be dismissed. On December 11, 2019,
Blankenship moved the trial court, pursuant to Rule 12(b)(6), Ala. R. Civ.
P., to dismiss the claims asserted against him, specifically arguing that
the fraud claim had not been pleaded with sufficient particularity, as
required by Rule 9(b), Ala. R. Civ. P., and that the conversion claim failed
to aver that any payment of insurance proceeds by Nationwide had been
3The plaintiffs also asserted a negligence claim against Nationwide
and its agent, Sydney Keith Brooks, alleging that they had negligently
issued property insurance on the church property to Moulton and Broken
Vessel without having properly ascertained proof of ownership of the
church property. On August 5, 2019, Nationwide and Brooks moved the
trial court, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the claims
against them. On September 20, 2019, the trial court entered an order
granting the motion to dismiss filed by Nationwide and Brooks. The
plaintiffs have not challenged the order dismissing the claims against
Nationwide and Brooks, and Nationwide and Brooks were not named as
parties to this appeal by the plaintiffs.
7
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made to or received by Blankenship. Blankenship supported his motion to
dismiss with his affidavit, in which he stated that he had no business or
personal relationship with Broken Vessel; had never seen the general
warranty deed at issue and had no knowledge regarding the notarization
and witnessing of the deed; and had never received any money from
Nationwide, Broken Vessel, or Moulton.
On January 10, 2020, Harris-Daniels moved the trial court to
dismiss the conversion claim against her, pursuant to Rule 12(b)(6),
arguing that the plaintiffs had failed to state a claim of conversion against
her because, she said, she simply had represented Moulton and Broken
Vessel in an action commenced against Nationwide after the insurance
claim had been settled and that she had not been a party to the policy of
insurance between Nationwide and Moulton and Broken Vessel. Harris-
Daniels also argued that the plaintiffs' claim against her was due to be
dismissed pursuant to Rule 12(b)(5), Ala. R. Civ. P., because, she said, she
had not been properly served.
On February 10, 2020, Blankenship, now joined by Blankenship &
Associates, filed an amended Rule 12(b)(6) motion to dismiss, arguing that
8
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counts I and II of the complaint were barred by the applicable statutes of
limitations. Blankenship and Blankenship & Associates also argued that
count III of the complaint failed to state a claim of conversion because,
they said, Riggins had helped Moulton prepare the statement of loss that
had been submitted to Nationwide in support of the fire-loss claim,
Riggins had known that the insurance proceeds would be paid to Moulton
and Broken Vessel, and nothing in the complaint alleges that Blankenship
and Blankenship & Associates had received any insurance proceeds from
Nationwide.
On July 27, 2010, Plump filed an amended motion to dismiss,
pursuant to Rule 12(b)(6), arguing that count II of the complaint was
barred by the applicable statute of limitations.
On July 30, 2020, the plaintiffs moved the trial court, pursuant to
Rule 55(b)(2), Ala. R. Civ. P., to enter a default judgment against Broken
Vessel. The plaintiffs asserted that both Moulton and Broken Vessel had
been named as buyers of the church property on the January 1, 2012,
general warranty deed; that Moulton was the agent of record for Broken
Vessel; that Moulton had been properly served, both individually and as
9
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the agent of Broken Vessel; and that Moulton, individually, had filed a
response seeking the dismissal of the complaint but had not to date filed
any response on behalf of Broken Vessel. By way of relief, the plaintiffs
requested that a default judgment be entered against Broken Vessel; that
the deed dated January 1, 2012, be declared invalid; that all liens against
the church property attributed to Broken Vessel be declared invalid; and
that a judgment be entered against Broken Vessel in the amount of
$984,790, plus attorney's fees, costs, and interest. On July 31, 2020, the
trial court entered a default judgment against Broken Vessel but set for
a later date a hearing to determine the amount of damages to be assessed
against Broken Vessel.
On August 3, 2020, Moulton filed an amended motion to dismiss,
pursuant to Rule 12(b)(6), arguing, among other things, that the claims
asserted against him in the complaint were barred by the applicable
statutes of limitations.
On August 28, 2020, the plaintiffs moved the trial court, pursuant
to Rule 55(b)(2), to enter a default judgment against Roberts, alleging that
the complaint had been filed on June 14, 2019, that Roberts had been
10
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properly served on July 8, 2020, and that Roberts had failed to file a
responsive pleading. The plaintiffs requested that a judgment be entered
against Roberts in the amount of $984,840, plus attorney's fees and costs.
On September 4, 2020, the trial court entered a default judgment against
Roberts but set for a later date a hearing to determine the amount of
damages to be assessed against Roberts.
On September 2, 2020, the plaintiffs moved to "bifurcate" the claims.
The plaintiffs argued that the claims all hinge on or are dependent on the
trial court's determination regarding the validity of the January 1, 2012,
general warranty deed. The plaintiffs contended that an initial
determination regarding the validity of the general warranty deed was
in the best interests of judicial economy and the parties because, they
asserted, if the trial court determined that the general warranty deed was
valid, then the pending motions to dismiss would be moot. The plaintiffs
stated that an initial determination regarding the validity of the general
warranty deed would enable the case to move more "expeditiously." On
that same day, Moulton, Blankenship, and Blankenship & Associates filed
responses in opposition to the motion to bifurcate, arguing that the
11
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pending motions to dismiss based on the statute of limitations must be
considered first because, they said, if the trial court determined that the
claims were barred by the statute of limitations, then the trial court
lacked jurisdiction to decide anything concerning the general warranty
deed.
On September 15, 2020, Plump filed a response in opposition to the
plaintiffs' motion to bifurcate, also arguing that her Rule 12(b)(6) motion
to dismiss based on the statute of limitations must be considered first to
determine whether the trial court properly had jurisdiction to consider the
matters asserted in the complaint.
On September 17, 2020, the trial court conducted a hearing on the
pending motions to dismiss. Blankenship, Blankenship & Associates,
Harris-Daniels, Plump, and Moulton each argued during the hearing that
the claims asserted against them were barred by the applicable statutes
of limitations.4 Broken Vessel and Roberts, both of whom had had default
4As stated above, Blankenship and Blankenship & Associates filed
an amended Rule 12(b)(6) motion to dismiss on February 10, 2020. In that
amended motion, Blankenship and Blankenship & Associates asserted
that counts I and II of the complaint were barred by the applicable
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judgments previously entered against them, were not present and did not
participate in the hearing. Walker had never been served and was not
present at the hearing.
During the hearing, the following transpired:
statutes of limitations. Blankenship and Blankenship & Associates did not
assert in their amended motion to dismiss that count III of the complaint
was barred by the applicable statute of limitations but, rather, argued
that count III failed to state a claim for conversion because, they said,
Riggins had helped Moulton prepare the statement of loss that had been
submitted to Nationwide in support of the fire-loss claim, Riggins had
known that the insurance proceeds would be paid to Moulton and Broken
Vessel, and nothing in the complaint alleges that Blankenship and
Blankenship & Associates had received any insurance proceeds from
Nationwide. Nationwide first asserted the statute-of-limitations defense
as to count III at the September 17, 2020, hearing on the pending motions
to dismiss. On January 10, 2020, Harris-Daniels moved the trial court to
dismiss the conversion claim against her, pursuant to Rule 12(b)(6),
arguing that the plaintiffs had failed to state a claim of conversion against
her, and pursuant to Rule 12(b)(5), arguing that she had not been properly
served. Harris-Daniels first asserted the statute-of-limitations defense at
the September 17, 2020, hearing on the pending motions to dismiss.
Finally, on July 27, 2020, Plump filed an amended motion to dismiss,
pursuant to Rule 12(b)(6), arguing that count II of the complaint was
barred by the applicable statute of limitations. Plump first asserted the
statute-of-limitations defense as to count I at the September 17, 2020,
hearing on the pending motions to dismiss.
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"THE COURT: Okay. Is there -- and y'all help me with
this. Is there anyone that's a defendant that may be pro se
that's not present today?
"[Counsel for Harris-Daniels]: I believe there is a
question about a default judgment against someone.
"THE COURT: Right.
"[Counsel for Harris-Daniels]: I came into the case pretty
late, so I'm not positive about that.
"THE COURT: I held off on that, and I don't think it
would be appropriate to move forward on damages on that at
this point until we resolve the issues on the other matters.
Because would it be y'all's position from a defense standpoint
that, given the arguments, that could be applicable to all
parties, even if they have a motion --
"[Counsel for Harris-Daniels]: Yes.
"THE COURT: -- to dismiss, given the fact that, you
know, if it's pled -- you know, if I find that way, it would be
inequitable or it would be inconsistent not to find for all in
regards --
"[Counsel for Harris-Daniels]: Yes, sir.
"[Counsel for Plump]: No problem, yes."
At the close of the hearing, the trial court requested that counsel for
the defendants that were present at the hearing prepare a proposed order
dismissing the plaintiffs' complaint in its entirety as to all defendants,
14
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based on a finding that the claims were barred by the applicable statutes
of limitations. The trial court also requested that the plaintiffs prepare
a proposed order granting a motion for leave to amend their complaint to
assert their claims with more particularity.
On September 25, 2020, the plaintiffs filed an amended complaint
containing a more definite statement of their allegations and a statement
regarding the tolling of the statute of limitations. Specifically, the
amended complaint provides both a more detailed statement of the
plaintiffs' factual allegations and provides the plaintiffs' explanation as
to why the limitations period applicable to their fraud claim should have
been tolled.
On September 28, 2020, Plump, Moulton, and Harris-Daniels moved
to strike the amended complaint, stating that the trial court had
conducted a hearing on September 17, 2020, at which time the trial court
had requested that the parties submit proposed orders within 14 days of
the hearing, including requesting that the plaintiffs submit a proposed
order granting a motion for leave to amend their complaint. Plump,
Moulton, and Harris-Daniels argued in their motion to strike that the
15
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plaintiffs had never actually filed a motion for leave to amend the
complaint and that the trial court had never granted the plaintiffs leave
to amend their complaint.
On October 14, 2020, the trial court entered an order dismissing the
claims asserted against Blankenship, Blankenship & Associates, Plump,
Harris-Daniels, and Moulton based on the applicable statutes of
limitations. The trial court further purported to dismiss the claims
asserted against Broken Vessel, Roberts, and Walker based on the
applicable statutes of limitations, finding that "the arguments for
dismissal as to the claims of the plaintiffs [are] applicable to all other
named Defendants." Finally, because the trial court had purported to
dismiss the plaintiffs' claims as to all the defendants based on the
applicable statutes of limitations, it denied as moot all other pending
motions.5 The plaintiffs appealed.
Discussion
5To the extent that the trial court entered an order purporting to
dismiss the claims against Walker, that order is a nullity because Walker
was never served and was not a party to the action. Harris v. Preskitt, 911
So. 2d 8 (Ala. Civ. App. 2005).
16
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"[I]t is well settled that this Court may consider, ex mero motu,
whether a judgment or order is sufficiently final to support an appeal."
Natures Way Marine, LLC v. Dunhill Entities, LP, 63 So. 3d 615, 618
(Ala. 2010).
" 'Ordinarily, an appeal can be brought only from a final
judgment. Ala. Code 1975, §12-22-2. If a case involves
multiple claims or multiple parties, an order is generally not
final unless it disposes of all claims as to all parties. Rule
54(b), Ala. R. Civ. P. However, when an action contains more
than one claim for relief, Rule 54(b) allows the court to direct
the entry of a final judgment as to one or more of the claims,
if it makes the express determination that there is no just
reason for delay.' "
North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So. 3d 342, 344-45
(Ala. 2008)(quoting Grantham v. Vanderzyl, 802 So. 2d 1077, 1079-80
(Ala. 2001)).
As discussed above, the trial court entered default judgments
against both Broken Vessel and Roberts but specifically reserved for a
later date the determination of damages as to both. " 'A default judgment
that reserves the assessment of damages is interlocutory and may be set
aside at any time; once the trial court assesses damages on the default
judgment, the judgment becomes final.' " Ex parte Family Dollar Stores
17
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of Alabama, Inc., 906 So. 2d 892, 896 (Ala. 2005) (quoting Keith v. Moore,
771 So. 2d 1014, 1017 (Ala. Civ. App. 1997), rev'd on other grounds, 771
So. 2d 1018 (Ala. 1998)). At the September 17, 2020, hearing on the
pending motions to dismiss, the trial court, sua sponte, raised the
affirmative defense of the statute of limitations on behalf of Broken Vessel
and Roberts and then entered an order dismissing the complaint against
those two defendants based on that affirmative defense. Although the
interlocutory default judgments could have been set aside at that time,
before damages had been assessed against Broken Vessel and Roberts, the
trial court lacked the authority to sua sponte raise the affirmative defense
of the statute of limitations and to dismiss the claims against Broken
Vessel and Roberts for that reason. In Waite v. Waite, 891 So. 2d 341,
343-44 (Ala. Civ. App 2004), the Court of Civil Appeals addressed the
issue of a trial court's authority to sua sponte raise an affirmative defense
on behalf of a defendant and dismiss an action based on that defense:
"Other courts ... have concluded that a trial court may
dismiss an action on its own motion, but only if the basis for
that dismissal is jurisdictional. See People v. Matulis, 117 Ill.
App. 3d 876, 454 N.E.2d 62, 73 Ill. Dec. 318 (1983) (the trial
court erred in dismissing, sua sponte, the action because the
18
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defect was not jurisdictional). See also Diamond Nat'l Corp. v.
Dwelle, 164 Conn. 540, 325 A.2d 269 (1973); Lease Partners
Corp. v. R & J Pharmacies, Inc., 329 Ill. App. 3d 69, 768
N.E.2d 54, 263 Ill. Dec. 294 (2002); Adams v. Inman, 892
S.W.2d 651 (Mo. Ct. App.1994); and Neal v. Maniglia (No.
75566, April 6, 2000) (Ohio Ct. App. 2000) (not published in
Ohio Appellate Reports or in Northeastern Reporter). In two
of those cases, the courts determined that the statute of
limitations served as a jurisdictional basis that supported
affirming a trial court's sua sponte dismissal of an action.
Diamond Nat'l Corp. v. Dwelle, supra; Neal v. Maniglia, supra.
However, in several of the other cases, the courts concluded
that, although a trial court is permitted to dismiss an action
based on a lack of jurisdiction, the statute of limitations is not
a proper basis for such a dismissal because the statute of
limitations is an affirmative defense that must be raised by a
party. Lease Partners Corp. v. R & J Pharmacies, Inc., supra;
Adams v. Inman, supra. See also McCarvill v. McCarvill, 144
Or. App. 437, 441, 927 P.2d 115, 116 (1996) (a trial court 'may
not raise defenses on its own and then dismiss the complaint
on the basis of its determination of the defenses'); Francke v.
Gable, 121 Or. App. 17, 853 P.2d 1366 (1993) (a trial court may
not raise an affirmative defense on behalf of a defendant and
then dismiss the action based on that defense).
"The doctrines of res judicata and collateral estoppel are
affirmative defenses, Rule 8(c), Ala. R. Civ. P.; Lee L. Saad
Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516 (Ala.
2002), and do not affect a court's jurisdiction to consider an
action. Affirmative defenses may be waived if they are not
pleaded by a party against whom a claim is asserted. Rule 8(c),
Ala. R. Civ. P.; Bechtel v. Crown Cent. Petroleum Corp., 451
So. 2d 793 (Ala.1984) (citing 2A J. Moore, Federal Practice §
8.27[3] at 8-251 (2d ed. 1948)). By its actions in the present
case, the trial court, in essence, asserted the affirmative
19
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defenses of the doctrines of res judicata and collateral estoppel
on behalf of the defendants and dismissed the matter based on
those affirmative defenses.
"After careful consideration, we find most persuasive the
reasoning of the courts that have held that, although a trial
court may dismiss an action on its own motion on a
jurisdictional basis, affirmative defenses such as the statute of
limitations or the doctrine of res judicata are not jurisdictional
bases upon which a court may base a sua sponte dismissal."
This Court adopted the reasoning of Waite in Ex parte Beck , 988 So. 2d
950 (Ala. 2007). See also Wausau Dev. Corp. v. Natural Gas & Oil, Inc.,
144 So. 3d 309 (Ala. 2013).
Because the trial court lacked the authority to sua sponte raise the
affirmative defense of the statute of limitations on behalf of Broken Vessel
and Roberts and dismiss the claims against those defendants on that
basis, the nonfinal, interlocutory default judgments entered against those
defendants remain pending. Because the trial court's judgment in this
case adjudicated fewer than all the claims before the court, it is a nonfinal
judgment and will not support this appeal. See Rule 54, Ala. R. Civ. P.
Accordingly, we must dismiss the appeal. See Schlarb v. Lee, 955 So. 2d
418 (Ala. 2006).
20
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APPEAL DISMISSED.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur.
21 | June 25, 2021 |
e44705c6-6dfd-4e0f-930a-50029c7c4216 | Jackson Hospital & Clinic, Inc. v. Murphy | N/A | 1190463 | Alabama | Alabama Supreme Court | Rel: June 25, 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, 2020-2021
____________________
1190463
____________________
Jackson Hospital & Clinic, Inc.
v.
Cameron Murphy
Appeal from Montgomery Circuit Court
(CV-13-900248)
SHAW, Justice.
Jackson Hospital & Clinic, Inc. ("Jackson Hospital"), a defendant in
this medical-malpractice action, appeals from the denial of its
postjudgment motion seeking a judgment as a matter of law or, in the
1190463
alternative, a new trial following the entry of a judgment on a jury verdict
against Jackson Hospital and in favor of the plaintiff, Cameron Murphy.
We reverse and remand.
Facts and Procedural History
In February 2011, Murphy, after experiencing back pain, was
referred for treatment to Dr. Margaret Vereb, a board-certified urologist
employed by Jackson Hospital. Dr. Vereb determined that Murphy had
kidney stones and recommended a ureteroscopy procedure to remove the
stones. During that procedure, Dr. Vereb used, among other surgical
instruments, a glidewire1 to establish the correct surgical path to
Murphy's kidneys through his urinary tract. Dr. Vereb then used a laser
to break the kidney stones into smaller fragments for removal. Following
1The record also refers to this device as a "guidewire." It appears
that the technical term for the device is "guidewire" but that "Glidewire"
is a brand name for a particular guidewire. For purposes of this opinion,
we have chosen to use the term "glidewire," which was used extensively
throughout the record. According to the materials before us, a glidewire
is a thin, flexible, hydrophilic-coated wire approximately one and one-half
meters in length that is used to establish a path through the urinary tract
to the kidneys to allow a urologist to safely use other instruments to
detect, break up, and remove kidney stones.
2
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an apparently uneventful period of recovery, the surgery was deemed
successful, and Murphy was released. During a postoperative evaluation
two days later, it was reported that Murphy had been experiencing pain,
but he was assured that such symptoms were normal. Murphy was
prescribed pain medication and discharged.
In June 2011, however, Murphy experienced painful urination and
blood in his urine. An X-ray performed at that time revealed that a piece
of the glidewire used during the ureteroscopy procedure remained lodged
in Murphy's bladder. Upon seeking treatment from another urologist, a
5.6 centimeter glidewire fragment was removed from Murphy's bladder.
Murphy subsequently sued both Dr. Vereb and Jackson Hospital
alleging claims under the Alabama Medical Liability Act ("the AMLA").2
See §§ 6-5-480 et seq. and 6-5-540 et seq., Ala. Code 1975. Murphy's
complaint included claims of negligence and wantonness (as to Jackson
Hospital, both directly and based on a theory of vicarious liability) and
sought compensatory and punitive damages.
2Another defendant, Urology Professionals of Alabama, was also
named in Murphy's complaint but was subsequently dismissed.
3
1190463
In answer to Murphy's complaint, both Dr. Vereb and Jackson
Hospital denied the allegations against them. Ensuing discovery and
related pretrial filings reveal that it was apparently undisputed that "the
only logical explanation for [the] retained glidewire fragment [in Murphy's
bladder was] that the glidewire [Dr. Vereb used during Murphy's
ureteroscopy procedure] was defective."
During pretrial proceedings, Murphy's counsel conceded that, for
purposes of trial, Murphy was pursuing, as to Jackson Hospital, only a
vicarious-liability claim based on the conduct of Dr. Vereb. Later,
however, while the parties were covering stipulations in regard to the
contents of the joint pretrial motion in limine of Jackson Hospital and Dr.
Vereb, the following occurred:
"[Counsel for Jackson Hospital]: Number 20 relates to
any independent allegations against Jackson Hospital. And
I understand we're in agreement on that.
"[Murphy's counsel]: Correct.
"[Counsel for Jackson Hospital]: Because there are none.
And then 21, Your Honor, is simply moving to preclude
[Murphy] from trying to make any argument that [Jackson
Hospital] has any independent liability under product liability
doctrine.
4
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"There's never been any kind of product liability claim
ever pled or whispered in this case. And, clearly, it would be
improper to get into that. The case is governed by the [AMLA],
and, clearly, they would have had to have pled a product claim
against the hospital many, many, many moons ago, and it's
never been done; so I think we're in agreement on that.
"[Murphy's counsel]: Judge, we're in agreement except
to the extent that there are some concerns from [Murphy's]
side that perhaps [Jackson Hospital] will try to utilize an
empty-chair defense and say things like, well, it was just a bad
tool and they should have sued the product company that
made it.
"And I think that what's good for the goose is good for the
gander. They shouldn't be able to sit here and assert that we
can't say anything related to that and then simultaneously
have any witnesses arguing that this is a product liability case.
"....
"[Counsel for Jackson Hospital]: Well, that's attempting
to assert a product liability claim against [Jackson Hospital]
which purchased this wire from an independent manufacturer
and provided it in a closed packet.
"....
"... [T]he fact is there's been no product claim, no claim
ever filed against [Jackson Hospital] claiming that it's
[Jackson Hospital's] fault for providing this wire, for providing
a defective product for use in this surgery.
"If they were going to make such a claim, under the
[AMLA] they would have to plead it with detail and specificity
5
1190463
as is required by Section 6-5-551[, Ala. Code 1975]. That's a
whole separate type of claim which they have never once
made, never once whispered anything about in this case. ..."
During opening statements, Murphy's counsel informed the jurors
that "this [was] not a case about a defective product" but was, instead, "[a]
case about a defective doctor" and stated that, "when a doctor leaves a
foreign object in somebody's body and that foreign object causes damage,
that's medical malpractice." Both Dr. Vereb's counsel and counsel for
Jackson Hospital, in turn, informed the jury that Dr. Vereb had utilized
appropriate medical implements in the proper manner during the
ureteroscopy procedure but that the glidewire she had used failed because
it was inherently defective.
Subsequently, during his case-in-chief, Murphy presented testimony
from, among others, Dr. Vereb. Dr. Vereb's testimony established that she
had been employed by Jackson Hospital at the time she treated Murphy.
She further acknowledged that the glidewire had broken inside Murphy's
body and that it was, thus, undisputed "that a foreign object was inside
his body after the [ureteroscopy procedure]." Dr. Vereb indicated that she
had received the glidewire from Jackson Hospital, which, she explained,
6
1190463
had obtained it from a third-party manufacturer. Dr. Vereb testified that
she touches each portion of the glidewire during insertion and that, while
conducting the ureteroscopy procedure, she had felt no breakages or sharp
edges on the glidewire. She further indicated that it is unnecessary for a
physician to inspect a glidewire upon removal from a patient's body. Dr.
Vereb testified that such a breakage had never before occurred during her
medical career, that nothing she did during the ureteroscopy procedure
could have caused the glidewire to fragment, and that the only possible
explanation as to why the glidewire broke was that "[t]his particular wire
had to have been defective."
Murphy also presented testimony from urologist Dr. William
Duncan, who Murphy tendered as an expert witness. In addition to
offering other opinions regarding the treatment administered to Murphy
by Dr. Vereb, Dr. Duncan testified that the wire fragment should have
been detected by Dr. Vereb through the use of imaging tools at the time
of Murphy's ureteroscopy procedure or at his postoperative appointment
two days later and that the failure to do so constituted a breach of the
applicable standard of care. Dr. Duncan further indicated that, although
7
1190463
he had not personally experienced a glidewire breaking during a
ureteroscopy procedure, he was aware of reported cases in which a
glidewire utilized during a ureteroscopy procedure had broken.
Dr. Duncan conceded, however, that the provision of glidewires to
physicians by a hospital is standard procedure and noted that the
standard of care does not require the utilizing physician to either visually
inspect or measure the glidewire either before surgery or upon removal.
More specifically, during Dr. Duncan's testimony, the following exchange
occurred between Dr. Duncan and counsel for Dr. Vereb:
"[Dr. Vereb's counsel]: Would you agree with me that
the glidewire in question, there's nothing wrong with choosing
that type of wire in this procedure?
"[Dr. Duncan]: No.
"[Dr. Vereb's counsel]: Nothing wrong with it; correct?
"[Dr. Duncan]: Correct.
"[Dr. Vereb's counsel]: Okay. When you were practicing,
the hospitals that you were using where you had privileges to
do this type of procedure, wouldn't you agree with me that the
glidewires that you used were ordered by the hospital,
purchased from a manufacturer, and they were there in the
[operating room] just like what happened in this case?
8
1190463
"[Dr. Duncan]: Yes.
"[Dr. Vereb's counsel]: And there's nothing wrong with
that, is there?
"[Dr. Duncan]: No.
"[Dr. Vereb's counsel]: But the glidewires, they come in
the packages and they're not open, are they?
"[Dr. Duncan]: No.
"[Dr. Vereb's counsel]: You have to open them in the
[operating room]; right?
"[Dr. Duncan]: Correct.
"[Dr. Vereb's counsel]: Why?
"[Dr. Duncan]: Because it's a sterile product.
"[Dr. Vereb's counsel]: It's sterile. You don't want to go
out and inspect these or do some sort of quality control
measures prior to an operation; right?
"[Dr. Duncan]: No.
"[Dr. Vereb's counsel]: That's not how it works, is it?
"[Dr. Duncan]: Some -- no.
"[Dr. Vereb's counsel]: I'm correct about that right?
"[Dr. Duncan]: Yes.
9
1190463
[Dr. Vereb's counsel]: And you don't take it out and
measure it before or after you use it, do you?
"[Dr. Duncan]: No, sir.
"[Dr. Vereb's counsel]: And you told us in your deposition
that you rely on the manufacturer to deliver a good,
non-defective glidewire when you were ... doing these
procedures back before 2015.
"[Dr. Duncan]: Yes.
"[Dr. Vereb's counsel]: The standard of care does not
require a surgeon to perform some sort of testing on glidewire
prior to surgery; right?
"[Dr. Duncan]: No.
"[Dr. Vereb's counsel]: Or measure it?
"[Dr. Duncan]: No."
(Emphasis added.)
Upon the conclusion of the presentation of Murphy's evidence, Dr.
Vereb and Jackson Hospital each separately moved for a judgment as a
matter of law in their favor. More specifically, among its other stated
grounds, Jackson Hospital contended that Murphy had "failed to prove ...
that any employee or agent of Jackson Hospital failed to exercise such
reasonable care, skill and diligence as used by similarly situated health
10
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care providers" and that he also "ha[d] not proven ... that any employee or
agent of [Jackson Hospital] breached any applicable standard of care" as
the AMLA requires.
Jackson Hospital further moved that a judgment as a matter of law
be entered in its favor as to any claim other than the claim of vicarious
liability asserted against it based on the alleged actions and omissions of
Dr. Vereb because, it contended, the parties had stipulated during the
discussion of the parties' pretrial motions in limine that Murphy was
pursuing only a vicarious-liability claim against Jackson Hospital.
Murphy's counsel responded as follows:
"[W]e agreed in motions in limine that we weren't going to get
into [Alabama Pattern Jury Instruction] 25.13, the duty of a
hospital for a defective instrument, but the problem I have
here is that [Jackson Hospital] took a position that they're
standing with [Dr. Vereb] and they're taking a position at this
point in time of being one in the same, I believe. And I feel
like it's incredibly unfair for the defendant hospital who
provided the tool to the doctor to use to say this wasn't the
doctor's negligence but also you shouldn't be able to say that
we're responsible because we provided the defective product.
"And I know there was some question of whether that
may have been alleged in the complaint or not. And I've gone
through and I've reviewed the complaint, and I believe that the
11
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complaint has sufficiently preserved the duty of a hospital for
a defective instrument."
At that time, Murphy's counsel pointed the trial court to "Paragraph 50,
Section E," of Murphy's complaint, which included a claim against Jackson
Hospital for "failing to properly assess and identify all surgical items used
in plaintiff's procedure," which language, Murphy's counsel argued,
amounted to a "pleading that would have invoked the duty of the hospital
for a defective instrument and equipment."
Jackson Hospital disputed that the above-quoted language from
Murphy's complaint was sufficient under the AMLA or included a claim
that it had furnished defective instruments or equipment. Upon the
conclusion of the discussion, however, the trial court denied Jackson
Hospital's motion for a judgment as a matter of law and stated its
intention to instruct the jury on the potential liability of the hospital.
Thereafter, in rebuttal to Murphy's case, Jackson Hospital presented
testimony from its own expert witness, Dr. Vincent Michael Bivins, who
is a urologist. Based upon his own review of the applicable
documentation, Dr. Bivins opined that the retention of a portion of the
12
1190463
glidewire in Murphy's body "was not" caused "by anything that anybody
at Jackson Hospital did or didn't do." He concurred with Dr. Vereb's
conclusions that she had performed in accordance with the required
standard of care in all respects and that "the only reasonable explanation
is that [the glidewire] was a defective [glide]wire." After testifying about
the available types of glidewires and their specific uses during surgery,
Dr. Bivins further indicated that the glidewire was a necessary component
in a ureteroscopy procedure and that the particular type of glidewire Dr.
Vereb had used was appropriate for use during Murphy's procedure. As
to the process by which a surgeon obtains a glidewire, Dr. Bivins
explained as follows:
"[Counsel for Jackson Hospital]: How do you, as a
surgeon practicing at the different hospitals where you
practice, how do go about getting a glidewire in order to use it
in a case?
"[Dr. Bivins]: So I ask for it and --
"....
" -- the circulator will get the glidewire that comes
prepackaged sterilely from the manufacturer. The wire is
then opened by the circulator and given to the surgical tech
13
1190463
sterilely. And the surgical tech then feeds me the wire ...
which I then ... feed ... through the scope.
"[Counsel for Jackson Hospital]: So does the hospital
obtain this from the manufacturer?
"[Dr. Bivins]: Yes.
"[Counsel for Jackson Hospital]: And then you said it's
brought to the [operating room] sterilely in a closed, sealed
package?
"[Dr. Bivins]: Correct.
"[Counsel for Jackson Hospital]: Never opened before it
gets to the [operating room]?
"[Dr. Bivins]: No, sir.
"[Counsel for Jackson Hospital]: Then the staff then
hands it off to you --
"[Dr. Bivins]: Correct.
"[Counsel for Jackson Hospital]: -- after opening the
package?
"[Dr. Bivins]: Correct. And I feed it up the scope into the
kidney.
"[Counsel for Jackson Hospital]: Is it customary practice
for the surgeon or anyone else at the hospital to conduct any
kind of formal inspection of the wire before or after it's used?
"[Dr. Bivins]: No.
14
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"[Counsel for Jackson Hospital]: Why not?
[Dr. Bivins]: Typically we rely upon the manufacturer to
give us a reliable, functional, without-defect wire or any other
equipment.
"[Counsel for Jackson Hospital]: Does the surgeon or
anyone else at the hospital measure the wire before or after it's
used?
"[Dr. Bivins]: Never.
"[Counsel for Jackson Hospital]: Is that the standard of
care?
"[Dr. Bivins]: That's not the standard of care.
"[Counsel for Jackson Hospital]: Okay. And when the
wire is taken out of the package and then handed to you, does
it go through the hands of the scrub tech or nurse?
"[Dr. Bivins]: Yeah. It has to. It goes through the hands
of the scrub tech and then they ... give it to me.
"[Counsel for Jackson Hospital]: And do you have an
opportunity and does the scrub tech have an opportunity to see
it and feel it?
"[Dr. Bivins]: Yeah. They'll see it and feel it and hand it
to me and then I'll look at it and feel it.
"[Counsel for Jackson Hospital]: Okay. And if there is
any obvious defect or problem with it, do you expect to see
that?
15
1190463
[Dr. Bivins]: If it's obviously [sic] enough for me to see it,
yes.
"[Counsel for Jackson Hospital]: And if there's an
obvious problem with it, would you use the wire?
"[Dr. Bivins]: Throw it away.
"[Counsel for Jackson Hospital]: This process that we
just outlined for how you obtain a glidewire to use in a
procedure like this, is that consistent with how you understand
it was used in this case?
[Dr. Bivins]: Correct. That is consistent with how I
understood it was used in this case.
"[Counsel for Jackson Hospital]: And how it was
obtained in this case?
"[Dr. Bivins]: And how it was obtained in this case.
"[Counsel for Jackson Hospital]: Is that how it happens
in every hospital where you've practiced?
"[Dr. Bivins]: Yes, sir.
"[Counsel for Jackson Hospital]: Is that the usual,
customary, and standard practice?
"[Dr. Bivins]: That is the usual, customary standard of
practice.
"[Counsel for Jackson Hospital]: Is that a reasonable
practice?
16
1190463
"[Dr. Bivins]: That is a very reasonable practice."
(Emphasis added.) He further explained: "Murphy did have that retained
wire, but I don't think it was because [Jackson Hospital] or Dr. Vereb did
not meet the standard of care, and so I still contend that that wire was
there because it was a defective wire and that was the cause."
After the presentation of all the parties' evidence, Jackson Hospital
renewed its previous motion seeking a judgment as a matter of law in its
favor. The trial court denied the renewed motion and proceeded to
instruct the jury on, among other principles, the potential liability of
Jackson Hospital. The trial court also provided the following instruction
on Murphy's defective-equipment claim against Jackson Hospital:
"When a hospital provides instruments or equipment for
use in the treatment of patients, a hospital must use that level
of reasonable care, skill, and diligence as other hospitals use
to see that the instruments and equipment are reasonably fit
for the normal purposes and uses for which they are intended
and furnished.
"The standard of care for a hospital is that level of
reasonable care, skill, and diligence as other similarly-situated
hospitals usually follow in the same or similar circumstances."
(Emphasis added.)
17
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Thereafter, the jury returned a verdict in favor of Murphy and
against Jackson Hospital, awarding Murphy $100,000 in compensatory
damages. The trial court subsequently entered a judgment consistent
with the jury's verdict, which specifically provided that "[j]udgment is
entered in favor of Dr. Margaret Vereb."
Jackson Hospital filed a postjudgment motion renewing its prior
request for a judgment as a matter of law in its favor or, in the
alternative, requesting a new trial. In that motion, Jackson Hospital
argued, among other grounds, that the trial court had erred by allowing
Murphy to advance during trial a claim that Jackson Hospital had
negligently furnished Dr. Vereb with a defective medical instrument and
by instructing the jury on that claim when, Jackson Hospital maintained,
Murphy's complaint failed to plead such a claim. It further argued, that
because the testimony at trial failed to support a claim against it for
negligently furnishing the glidewire, the trial court had erred in
submitting the claim to the jury. The trial court denied Jackson
Hospital's motion in all respects. Jackson Hospital appeals.
Standard of Review
18
1190463
" When reviewing a ruling on a motion for a [judgment as
a matter of law ('JML')], this Court uses the same standard the
trial court used initially in deciding whether to grant or deny
the motion for a JML. Palm Harbor Homes, Inc. v. Crawford,
689 So. 2d 3 (Ala. 1997). Regarding questions of fact, the
ultimate question is whether the nonmovant has presented
sufficient evidence to allow the case to be submitted to the jury
for a factual resolution. Carter v. Henderson, 598 So. 2d 1350
(Ala. 1992). The nonmovant must have presented substantial
evidence in order to withstand a motion for a JML. See § 12-
21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court
must determine whether the party who bears the burden of
proof has produced substantial evidence creating a factual
dispute requiring resolution by the jury. Carter, 598 So. 2d at
1353. In reviewing a ruling on a motion for a JML, this Court
views the evidence in the light most favorable to the
nonmovant and entertains such reasonable inferences as the
jury would have been free to draw. Id. Regarding a question
of law, however, this Court indulges no presumption of
correctness as to the trial court's ruling. Ricwil, Inc. v. S.L.
Pappas & Co., 599 So. 2d 1126 (Ala. 1992)."
Waddell & Reed, Inc. v. United Invs. Life Ins. Co., 875 So. 2d 1143, 1152
(Ala. 2003).
Discussion
On appeal, among its other arguments, Jackson Hospital argues that
the trial court erred by allowing Murphy to pursue a defective-equipment
claim at trial. Jackson Hospital further argues, as it also did below, that,
19
1190463
in advancing that claim, Murphy nonetheless failed to present testimony
"establishing the applicable standard of care for furnishing medical
instruments [and/or] ... that Jackson Hospital failed to meet the standard
of care with respect to furnishing the glidewire at issue in this case."
Jackson Hospital's brief at p. 31. According to Jackson Hospital, because
Murphy failed to present sufficient evidence demonstrating that, by
providing the glidewire that Dr. Vereb used during Murphy's procedure,
Jackson Hospital breached the applicable standard of care, the trial court
erred by denying its motion for a judgment as a matter of law and
submitting Murphy's claim against it to the jury. See HealthSouth Rehab.
Hosp. of Gadsden, LLC v. Honts, 276 So. 3d 185, 193 (Ala. 2018) (" ' " 'A
judgment as a matter of law is proper ... where there is a complete
absence of proof on a material issue ....' " ' ") (citations omitted)). We
agree.3
This Court has previously concluded that a claim that a hospital has
provided defective equipment during the course of medical treatment
3Because of the dispositive nature of this issue, we pretermit
discussion of the remaining issues Jackson Hospital raises on appeal.
20
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sought from the medical provider is a claim governed by the provisions of
the AMLA. See Mobile Infirmary v. Delchamps, 642 So. 2d 954, 957 (Ala.
1994). Thus, even assuming, as Murphy argues, that a claim related to
Jackson Hospital's provision of defective equipment was adequately
pleaded in Murphy's complaint, to successfully prove that claim and
recover against Jackson Hospital, Murphy was required to demonstrate
that Jackson Hospital, in connection with the furnishing of that
equipment, breached the applicable standard of care. See § 6-5-548(a),
Ala. Code 1975 ("In any action for injury or damages ... against a health
care provider for breach of the standard of care, the plaintiff shall have
the burden of proving by substantial evidence that the health care
provider failed to exercise such reasonable care, skill, and diligence as
other similarly situated health care providers in the same general line of
practice ordinarily have and exercise in a like case."). See also, e.g.,
Anderson v. Alabama Reference Lab'ys. 778 So. 2d 806, 811 (Ala. 2000),
and Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992). The AMLA
defines "[s]tandard of care" as "that level of such reasonable care, skill,
and diligence as other similarly situated health care providers in the same
21
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general line of practice, ordinarily have and exercise in like cases." § 6-5-
542(2), Ala. Code 1975. It defines "[a] breach of the standard of care" as
"the failure by a health care provider to comply with the standard of care
...." Id.
Here, Murphy presented the testimony of Dr. Duncan, who
explained that the applicable standard of care with regard to the provision
of glidewires permits reliance on the supplying manufacturer to provide
a functional, defect-free glidewire. Dr. Duncan's testimony also
established that the standard of care does not require visual inspection,
testing, or measurement of the glidewire either before use or upon
removal of the glidewire following surgery. Specifically, he indicated that
"there's nothing wrong with" a hospital's purchasing a glidewire from a
manufacturer and placing the unopened glidewire in the operating room
for physician use. In fact, he conceded that a physician "[has] to open [the
glidewire] in the [operating room] ... [b]ecause it's a sterile product" and
that not only would preoperation quality-control measures therefore not
be recommended, but, more importantly, the standard of care does not
require them. Thus, Dr. Duncan's testimony indicated that the actions
22
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of Dr. Vereb were consistent with the customary standard of care -- a
position that was confirmed by the subsequent testimony of Dr. Bivins
during Jackson Hospital's case in rebuttal. Dr. Duncan did not testify
that Jackson Hospital was required, with regard to the provision of the
unopened glidewire, to undertake more responsibility than Dr. Vereb or
that, in failing to do so, its actions were inconsistent with any standard of
care.
In the present case, Jackson Hospital was found to be liable based
on its having furnished a defective medical instrument for Dr. Vereb's use
on Murphy.4 The undisputed evidence, however, indicated that no action
of Jackson Hospital in furnishing the glidewire failed to comport with the
actions required of other similarly situated health-care providers or was
in any way substandard. More specifically, the evidence in no way
suggested that Jackson Hospital negligently failed to assess the glidewire
before it was provided to Dr. Vereb.
4Contrary to Murphy's assertions on appeal, because, as reflected in
the judgment entered on the jury's verdict, the jury returned a verdict in
favor of Dr. Vereb on all counts, the jury logically must have relied on the
defective-equipment claim to return a verdict against Jackson Hospital.
23
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Because Murphy presented no evidence -- in the form of expert
testimony or otherwise -- that Jackson Hospital breached the applicable
standard of care in any manner, Murphy failed to present evidence
substantiating an essential element of his defective-equipment claim
against Jackson Hospital, and therefore the jury's verdict on that claim is
unsupported. See Honts, supra. Accordingly, Jackson Hospital was
entitled to a judgment as a matter of law in its favor.
Based on the foregoing, the trial court erred in denying Jackson
Hospital's motion for a judgment as a matter of law as to Murphy's
defective-equipment claim -- the sole possible basis of its judgment against
Jackson Hospital.5 Therefore, the judgment entered on the jury's verdict
against Jackson Hospital is hereby reversed.
REVERSED AND REMANDED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
5See note 4, supra.
24 | June 25, 2021 |
ab10346d-285d-4169-87bd-1c030b4e763d | Fuston, Petway & French, LLP v. Water Works Board of the City of Birmingham | N/A | 1180875 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1180875
____________________
Fuston, Petway & French, LLP
v.
The Water Works Board of the City of Birmingham
Appeal from Jefferson Circuit Court
(CV-17-900765)
PER CURIAM.
Fuston, Petway & French, LLP ("the Firm"), appeals from a
summary judgment entered by the Jefferson Circuit Court ("the trial
1180875
court") in favor of The Water Works Board of the City of Birmingham
("the Board") regarding the Board's termination of a contract between the
parties.
Facts and Procedural History
In September 2015, the Firm and the Board entered into a one-year
contract in which the Firm agreed to provide legal representation for the
Board. In 2016, the Firm and the Board entered into negotiations for a
new contract. Robert Mims, then the chairman of the Board, approached
the Firm regarding the Board's need to have independent oversight and
review of a program designed to attract "historically underutilized
business entities," such as minority-owned businesses, which the parties
refer to as "the HUB program." Several members of the Board were
concerned that the HUB program, which was being administered by
employees of the Board, was underperforming. One of the members of
the Board drafted a memorandum expressing his desire to create a
"contract-compliance program" to oversee the HUB program by (1)
reviewing and monitoring all Board contracts and non-bid procurements,
(2) developing an outreach program to minority-owned businesses to
2
1180875
solicit contracting and subcontracting opportunities, (3) developing a
verifiable method of tracking minority-owned-business data for project
utilization and timely payment for services from general contractors, (4)
developing written guidelines for contract administration, (5) using
bidders conferences to discuss utilization of minority-owned businesses,
(6) developing a non-bid process that ensures fair administration and
rotation of non-bid work. (7) monitoring and ensuring the legitimacy of
contractor quotes submitted with bids in terms of the solicitation effect on
minority-owned businesses, (8) engaging the banks that the Board does
business with to better assist minority-owned businesses, (9) developing
classifications that reflect the types of minorities owning businesses
involved in the HUB program, and (10) reaching out to community
colleges concerning programs that would aid minority-owned businesses.
The Board member requested that $2 million from an economic-
development fund be used to finance the contract-compliance program.
At its meeting held on November 10, 2016, the Board agreed to
transfer "$2,000,000.00 from its Reserve Fund allotted for Economic
Development to its Operational Fund relative to a Contract Compliance
3
1180875
Program." The adoption of a contract-compliance program was not
presented to the Board or voted on at that time.
On November 22, 2016, the Board met and discussed the contract-
compliance program and the proposed new contract with the Firm. The
minutes of that meeting reflect the following:
"[T]he Board was asked to approve an agreement with Fuston,
Petway & French, LLP, as set forth in agenda item 6, to
provide general legal services for a three-year period effective
November 22, 2016, and to authorize the Chairman to accept
said agreement. After the motions were made, Director Lewis
indicated she was surprised to see the referenced item on
today's agenda because she was not involved in any
discussions concerning said agreement. She asked who wrote
said agreement and Board Attorney French stated he drafted
the agreement, pointing out said Firm's previous agreement
that was executed in September 2015 for one (1) year has
expired. Director Lewis stated her concern is the stipulations
that are in the agreement because they do not protect the
Board and they take away its control. Following, Director
Lewis inquired as to why the referenced agreement was not
discussed with her as a Board member. Attorney French
replied he emailed said agreement to all Board members
yesterday wherein Director Lewis pointed out said attorney's
timeline allowed her less than 24 hours to review the
agreement and she added it took more than said hours to
prepare the referenced agreement wherein some prior
discussion had to have taken place. Subsequently, Director
Lewis asked the General Manager when he received said
agreement, if he had read it, and if due process had been
followed. The General Manager indicated he saw the
4
1180875
agreement yesterday afternoon. Following, Director Lewis
inquired of the whereabouts of 'Exhibit A' that was referenced
in the new agreement and Attorney French stated said Exhibit
A was not included and indicated it was included in the
previous agreement. After reading a portion of the new
agreement that mentioned the exhibit as being a part of the
new agreement, Director Lewis asked if someone could
provide her with a copy. Following, the General Manager
said the referenced exhibit in the previous agreement was a
rate schedule that listed hourly rates from $125.00 to $250.00.
He said the new hourly rate of $275.00 is listed in item six (6)
on page three (3) of Attorney French's proposed new
agreement. Following, Director Lewis expressed great
concern with the Board relative to increasing the attorneys'
fees at this point. She said the Board's previous attorneys
were paid an hourly rate of $175.00 to $250.00. She also said
under the previous agreement, the Board's current attorneys
charged hourly rates based on the following: years of
experience: 0 - two (2) years $125.00; two (2) - five (5) years
$150.00; five (5) - ten (10) years $200,00; ten (10) - 15 years
$225.00; and over 15 years $250.00 per hour wherein each
lawyer would now be paid $275.00 under the current
agreement. Following, Director Lewis asked how long it took
the Board's previous attorneys to get a raise and the General
Manager stated hourly rates for said attorneys remained the
same from 2001 through 2015.
"Following, Director Lewis said the new agreement
indicates the Board's current attorneys want to administer
the Contract Compliance Program based on stipulations in
said agreement. When she questioned whether the Board had
voted to initiate said program, Director Muhammad said the
Board had agreed. Director Lewis said she believes the Board
voted to move $2,000,000.00 and indicated she does not recall
the Board voting to start said program. Following, Director
5
1180875
Muhammad said the Board voted to move the money and to
initiate the referenced program. Director McKie said there
would be nothing to administer if the Board does not start said
program. Director Lewis commented that it is strange such
language would be included in the agreement and she again
expressed her concern about the verbiage, pointing out
according to item 4 on page two (2) of the new agreement, the
Board would hand over its power to the attorneys, if it is
approved. She then asked why it is not a part of the Board's
duties to decide on said program. Director Lewis pointed out
that a 'supermajority' of votes would be needed to terminate
the new agreement with the Fuston Petway and French law
firm and she questioned why the Board would accept an
agreement that would be difficult to modify. Director Lewis
said the wording is the same as language that was in Russell
Management Group, LLC's (RMG) agreement, which the
Board later rescinded. Following, Director McKie stated the
new agreement would not make it difficult for the Board to
make changes or affect how the Board could hire other
attorneys to do whatever it could give to its current attorneys.
Director Lewis pointed out the previous agreement specified
things would be done with the Board's approval wherein such
wording is not included in the new agreement. Director Lewis
said she had not spoken with Attorney French and noted he
does not respond to her emails.
"Subsequently, Director Lewis asked Attorney French
why the new agreement indicates his law firm would manage
the Contract Compliance Program and Attorney French said
he had a conversation with Director Muhammad after the
Board voted to approve the budget for said program at the
November 10, 2016 Regular Board of Directors' Meeting,
relative to his firm administering and helping to oversee the
referenced program. Director Lewis asked Attorney French did
he not think it would be wise to discuss a $2,000,000.00 project
6
1180875
with all of the Board members wherein Attorney French stated
Director Muhammad indicated he had a two-hour telephone
conversation with Director Lewis. Following, Director Lewis
stated said discussion did not occur wherein Director
Muhammad stated Director Lewis called him and Director
Lewis indicated she returned Director Muhammad's call.
Director Lewis then asked Attorney French if Director
Muhammad had indicated she agreed with him and Attorney
French said he believes this would be up to the Board to decide
on
today.
Following,
Director
Muhammad
said
the
aforementioned telephone conversation lasted two (2) hours,
but it was not about the Contract Compliance Program.
Director Lewis then asked how said program was included in
the new agreement. Director Muhammad said he sent an
email to all of the directors prior to the Board voting to move
the referenced funds for said program and pointed out that he
had also talked with the General Manager. He said in his
email he requested that the Board consider the attorneys
and independent engineer to administer said program because
said entities report to the Board. Director Muhammad added
he could easily see how this would be included in the new
agreement. Following, Director Lewis said she believes the
General Manager and the Assistant General Managers would
be more knowledgeable about said program wherein Director
Muhammad disagreed. Director McKie reminded Director
Lewis of the Board's discussion concerning said program at the
November 10th Board Meeting and he pointed out none of the
$2,000,000.00 would be spent on any programs until the Board
votes on it and designates some direction. He also pointed out
that Attorney French would not spend said amount wherein
Director Lewis stated said attorneys would have the right to
say who would be hired. Following, Director McKie said the
Board would have to set up the Contract Compliance Program.
He said the Board would be made aware of some of the things
that take place but it would not know everything that
7
1180875
happens, pointing out this is why said attorneys' firm would
administer the above-mentioned program. Following,
Director Muhammad said the Board's attorneys would ensure
the general contractor is not just including a certain
percentage on the form relative to the sub-contractor.
Following, Director Lewis said she received an email from the
General Manager last night that was also sent to the other
directors. She asked the General Manager what said
attorneys would do differently handling the Contract
Compliance Program since it appears the Board is presently
doing everything that the attorneys would do. Director Lewis
said she believes the Board would be wasting $2,000,000.00 of
ratepayers' money. Further, Director Lewis commented that
Director Muhammad was just recently elected to the Board
and indicated he places everything on the agenda without
taking it through the proper channels. Director Muhammad
stated he does this because he has three (3) votes wherein
Director Lewis remarked that Director Muhammad discusses
Board business outside of regular Board meetings and gets the
required votes prior to said meetings. Following, Director
Lewis said it is apparent that she is the only Board member
who does not know the details relative to such matter and she
pointed out Director Munchus is absent from today's meeting
and could not voice his opinion. Subsequently, she said the
manner in which Director Muhammad got the three (3) votes
is questionable.
"Following, a copy of the guidelines for the Historically
Underutilized Business (HUB) program was distributed to the
directors. Subsequently, the General Manager stated for the
record the Historically Underutilized Business (HUB) program
was approved and updated in 2015. He said since then senior
executive
management,
the
Engineering,
System
Development, and Purchasing Departments have complied
with guidelines established by said program. Following, the
8
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General Manager said the memo that he sent to the directors
yesterday indicated staff is complying with all rules in the
referenced program with the exception of verifying and
certifying the amount contractors are paying to sub-
contractors and minority vendors. He stated said program does
not require staff to certify the HUB contractors wherein staff
relies on about 10 or 12 organizations to verify the minority
vendors. Following, the General Manager said staff could
easily verify amounts paid to HUB contractors, pointing out he
had
talked
with
managers
in
the
above-mentioned
departments. He said the general contractors must complete
a form certifying they correctly paid the minority vendors
after projects are completed. Subsequently, the General
Manager said the verification process is simple and involves
sending a letter to the minority contractors wherein said
contractors would send staff confirmation that they were paid
accurately.
"....
"Following, Director Muhammad commented on House
Bill 647 which expanded the Board, stating he was firmly
opposed to such an expansion. He stated that he is determined
to protect assets of the citizens of Birmingham who purchased
the Water Works from a private company for $20 million in
1950 and also purchased Inland Lake in 1939. Director
Muhammad said in 1950 the people of Birmingham had a $20
million bond to purchase the Water Works from a private
company which was not set up by the legislature. Director
Muhammad said when the Mayor Council Act was passed, it
gave some of the appointing powers of the council to the
mayor, pointing out politically, it appears there is an attempt
to take over the majority of the Board from the city council and
the citizens of Birmingham. Following, Director Muhammad
said the Water Works assets must be protected wherein the
9
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Board has to make some moves in case said rumor of an
attempt to refigure the current Board is realized. Following,
Director Lewis asked Director Muhammad what does he
believe giving the new agreement to Attorney French and his
firm would protect the Board from. Following, Director
Muhammad said he believes the Board has extenuating
political circumstances such as legal cases that are happening
wherein Director Lewis asked him if the Board is relinquishing
power to its attorneys for this reason. Director Muhammad
said he thinks handing over power to the attorneys would
stabilize the Board's situation wherein Director Lewis asked
him how this would be possible since the directors are the
Board. Director Muhammad explained he believes this would
steady the Board's position because if the overthrow takes
place, politically the mayor would have two (2) appointees and
there would be three (3) outside appointees. Following,
Director Lewis said she thinks the directors are intelligent
[sic] to make the right decisions, she asked what would cause
the Board to set a precedent to give its power to an attorney
out of some fear it has instead of working through a process.
Director Lewis said during her years on the Board, she has
never witnessed the manner in which decisions are being made
lately, pointing out she realizes changes happen and indicated
she never thought she would see board members turning their
power over to an attorney. Subsequently, Director Lewis
pointed out the previous attorneys did not control the Board.
"Following, a discussion ensued relative to the process
in reviewing consultants agreements and the former
attorneys’ agreement with the Board. Director Muhammad
asked the General Manager if the Board's legal fees for the
previous attorneys were overbudgeted and if the Board is
spending more in said fees for its current attorneys. The
General Manager replied legal lees for 2015 totaled
$1,250,000.00 and pointed out approximately $1.6 million
10
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would be spent in 2016. Director Muhammad asked if the
Board is paying Fuston Petway & French more than it was
paying Waldrep Stewart & Kendrick and the General Manager
responded no. He added that the cost for the four (4) or five
(5) additional attorneys the Board hired this year would put
the total in excess of the amount that was paid to the Board's
former attorneys. The General Manager stated legal fees are
overspent for 2016, pointing out the budget for said fees was
increased to $1.6 million because of the expected excess.
Following, Director Muhammad said the Board hired
additional attorneys to work on two (2) separate cases
wherein the Board is paying the current attorneys less than it
paid the previous attorneys. Subsequently, the General
Manager said the Board's legal fees for 2016 are over budget.
In response to Director Lewis's inquiry as to whether they
anticipate hiring another attorney, Director Muhammad said
he is not aware of such. Director McKie asked if the issues the
Board spent the extra legal fees on in 2016 were not present in
2015 such as the bond circumstances and the hearing last
week. The General Manager replied no because legal fees for
bond issues are taken from bond issuance monies, pointing
out said issues were not charged to the budget."
Subsequently, the issue whether to approve the proposed new
contract with the Firm was called for a vote. The minutes reflect that the
contract was approved, with three Board members voting in favor of the
contract and one Board member opposing the contract. The contract
between the Firm and the Board provided, in pertinent part, as follows:
"1. Subject to the terms and conditions contained herein,
[the Firm] shall provide the Board with professional legal
11
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services and administer the [Board's] Contract Compliance
Program from time to time upon request by the Board.
"2. With approval of the Board, [the Firm] shall be
authorized to engage the services of agents, associates,
independent contractors, or assistants that [the Firm] deems
proper as well as employ, engage, or retain the services of
such persons or corporations to aid or assist [the Firm] in the
proper performance of its duties and obligations under this
agreement.
"3. [The Firm] shall perform the professional legal
services under this Agreement at the level customary for
competent and prudent attorneys performing such services at
the time and place where the services are provided and in
accordance with the Alabama Rules of Professional Conduct.
Said legal services will be provided by licensed attorneys and
other professionals and individuals skilled in other technical
disciplines, as appropriate.
"4. [The Firm] shall administer the Contract Compliance
Program. The Contract Compliance Program services will be
performed by such persons, corporations, or other entity as
designated by [the Firm].
"5. This Agreement is not a contract of employment. No
relationship of employer and employee exists between [the
Firm] and the Board, or between the Board and any agent or
employee of [the Firm]. [The Firm] shall at all times be
deemed an independent contractor. The Board shall not be
liable for any acts of [the Firm or] its agents or employees.
"6. Unless otherwise agreed to by the Parties, [the Firm]
shall be compensated for services performed pursuant to this
Agreement on the basis of time spent and expenses incurred.
12
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The hourly rate charged by [the Firm] shall be $275.00, in
addition to all reasonable expenses.
"7. Terms of the Agreement:
"(a) The term of this Agreement shall be for a
period of three (3) years, commencing on the date
first written above and shall continue thereafter for
additional periods of one (1) year;
"(b) [The Firm] shall have the right at any
time to terminate this Agreement by giving at least
a ninety (90) day advance written notice to the
Board that it does not desire to continue with this
Agreement;
"(c) The Board shall have the right at any
time to terminate this Agreement:
"(i) by vote of more than a
supermajority of the total members of
the board of directors (i.e., if a five (5)
member board, by at least four (4)
board members and if a nine (9)
member board, by at least seven (7)
board members;[1] and
1According to the Firm, at the time the Board approved the contract,
the Board was composed of five members; however, the Board, through
state legislation, was increased by the appointment of four additional
members -- making the Board a nine-member board as of January 2017.
Because the Board was engaged in litigation fighting against the
appointment of four additional Board members at the time the contract
was approved, this specific provision of the contract was written to reflect
13
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"(ii) by giving at least ninety (90)
days prior written notice to [the Firm]
that more than a supermajority of the
Board does not desire to continue with
the Agreement. In the event that this
Agreement is terminated, the Board
agrees to pay [the Firm] for all services
rendered
and
expenses
incurred
through and including the date of
termination."
In January 2017, the membership of the Board was increased to nine
members. See note 1, supra.
On January 27, 2017, the Firm sent the Alabama State Bar a letter
asking (1) whether the provision in the termination clause of the contract
requiring that a supermajority of the Board must vote to terminate the
contract violated the Alabama Rules of Professional Conduct and (2)
whether the provision in the terminate clause of the contract requiring the
Board to provide the Firm with 90-days' prior written notice of intent to
terminate the contract violated the Alabama Rules of Professional
what would constitute a supermajority of both a five-member board or a
nine-member board.
14
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Conduct. The Firm noted that the Board's contract with its general
manager also contained a supermajority provision.
On February 3, 2017, the Alabama State Bar responded:
"I am writing in response to your letter of January 27,
2017, in which you requested an ethics opinion from this office.
A copy of your letter is attached hereto for reference purposes.
I am providing you the following which is an informal opinion
of the Office of General Counsel and is not binding on the
Disciplinary Commission of the Alabama State Bar.
"As I understand, your law firm currently represents the
Birmingham Water Works Board ('BWWB'). Under the terms
of the firm's contract with the BWWB, prior to terminating the
firm's services, the BWWB must give your firm ninety (90)
days written notice that more than a supermajority of the
Board wish to cancel the firm's representation of the Board.
According to your letter, the ninety (90) day provision was
added at the request of the Chairman of the Board to ensure
a smooth transition should your firm be terminated and new
counsel retained by BWWB. In addition, the supermajority
provision necessary to terminate your firm's representation is
consistent with prior contracts entered into by the BWWB.
You seek an ethics opinion from this office that these
provisions are permissible under the Alabama Rules of
Professional Conduct.
"In providing you an opinion, please note the Comment
to Rule 1.16, Ala. R. Prof. C., notes that a client has the right
to discharge a lawyer at any time, with or without cause.
Similarly, the Comment to § 32 of the Restatement of the Law
Governing Lawyers, Third Edition, provides '[a] client may
15
1180875
always discharge a lawyer regardless of the cause and
regardless of any agreement between them.'
"With this principal in mind, it is the opinion of this
office that the ninety (90) day termination provision is likely
unenforceable under Rule 1.16, Ala. R. Prof. C. In other words,
if the BWWB elected to terminate your firm's representation,
without providing the contracted for ninety (90) day notice,
your firm would be required to immediately move to withdraw
from representation of the BWWB in all pending matters. This
opinion is not meant to suggest that the BWWB could not
voluntarily abide by the ninety (90) day notice. However, if
the BWWB chose to ignore the provision and requested the
immediate termination of the representation, your firm would
need to comply.
"The other provision requires a super majority of the
BWWB to terminate your firm's representation. This provision
is permissible assuming that the Board ratified the contract
and the provision. By ratifying the contract, the BWWB has
presumably agreed to place the super majority restriction on
its own ability to terminate counsel. I cannot speculate as to
the reason for the decision, but the decision was their own to
make. As such, the provision would not violate the Alabama
Rules of Professional Conduct."
On February 9, 2017, at a Board meeting at which seven of the nine
Board members were present, the Board voted to terminate the contract
between the Firm and the Board. According to the minutes from that
16
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meeting, the Board members voted five to two in favor of terminating the
contract.2
On February 24, 2017, the Firm sued the Board, asserting claims of
breach of contract and breach of the covenant of good faith and fair
dealing. On April 10, 2017, the Board filed a motion to dismiss the claims
against it, arguing that a client has the right to terminate an attorney-
client relationship at any time. The Board argued that the Firm's efforts
to be paid for services that it had not yet performed violated Alabama
caselaw holding that attorneys can be compensated only for work they
have actually performed before discharge. The Board further argued that,
as a matter of public policy, in cases involving attorney contracts with
2In its brief to this Court, the Firm asserts that Board member
Brenda Dickerson voted against the termination of the contract. In
support, it argues that Dickerson sent an e-mail to the Board's general
manager on February 10, 2017, stating that the record incorrectly
reflected her vote as a "yes" when she voted "no" to terminating the
contract. Dickerson included a link to an article on al.com, a news web
site, that the Firm contends was written by an attendee of the meeting
and shows that she voted "no." The Board asserts that Dickerson was
silent during the vote and that, according to Section 13 of the Board's
bylaws, her vote was, thus, recorded as a "yes."
17
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governmental entities such as a water-works board, a board cannot bind
a successor board to an attorney contract.
On June 19, 2017, the trial court granted the Board's motion in part,
dismissing the Firm's claim of breach of the covenant of good faith and
fair dealing because, the court noted, that claim is recognized only with
respect to the breach of insurance contracts. The trial court specifically
found that the contract between the Firm and the Board was for
professional legal services and for the administration of the contract-
compliance program and that, as a result, the Firm "may possibly prevail"
on its breach-of-contract claim insofar as it applied to the administration
of the contract-compliance program or insofar as the Firm was not paid for
any services rendered before the contract was terminated. Accordingly,
the trial court denied the motion insofar as it sought the dismissal of the
breach-of-contract claim.
On June 29, 2018, the Board filed a summary-judgment motion. In
its motion, the Board argued that it had never approved or adopted a
contract-compliance program. Therefore, the Board asserted, the Firm
could not maintain a breach-of-contract claim relating to a nonexistent
18
1180875
contract-compliance program. The Board also argued that the Firm could
not maintain a breach-of-contract claim for unpaid services because, the
Board asserted, the Firm had submitted all of its invoices to the Board for
payment and those invoices had been paid. The Board further argued
that any services provided by the Firm with regard to the contract-
compliance program were part of the general legal services provided by
the Firm, which could be terminated at any time, and that the firm could
not prove any damages because it had been paid in full for all services
rendered. The Board also argued that the contract was void on public-
policy grounds public policy because it bound successor boards to the
agreement with an attorney that they did not choose and because it
required a vote of a supermajority of the Board to terminate the contract.
The Board attached numerous evidentiary exhibits to its motion, including
minutes from Board meetings, internal e-mails, and invoices submitted by
the Firm.
On August 24, 2018, the Firm filed a response in opposition to the
Board's summary-judgment motion in which it argued that there were
genuine issues of material fact as to (1) whether the administration of the
19
1180875
contract-compliance program was a nonlegal service, (2) whether the
Board had formally approved or adopted the contract-compliance program,
(3) whether public policy invalidated the supermajority provision in the
contract, and (4) whether the firm had demonstrated its damages.3 The
Firm supported its response with evidentiary exhibits.
The Board filed a reply to the Firm's response in opposition to its
summary-judgment motion, in which it reiterated the arguments in its
summary-judgment motion.
On June 25, 2019, the trial court entered a summary judgment in
favor of the Board. In its judgment, the trial court found, among other
things, that the entirety of the Firm's obligations in the contract entailed
legal services and that, as a result, the contract was terminable by the
Board at any time. The trial court stated:
"The Court has reviewed the contract and finds that it is
not ambiguous. A review of the contract as a whole, shows that
the entirety of the contract was for legal services. There is no
3The Firm initially responded to the Board's summary-judgment
motion by invoking to Rule 56(f), Ala. R. Civ. P., and stating that it needed
to conduct additional discovery. The Board responded that the Firm had
failed to show what would be learned from further discovery.
20
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indication
in
the
contract
that
contract
compliance
administration is not one of the legal services to be performed
by the [Firm]. The contract does not say one word about 'non-
legal' services. There is no distinction made between legal or
non-legal services in the contract and there is no statement
that the contract compliance services are not meant to be legal
services nor does the contract set out what contract compliance
administration would entail. Also, the contract only contains
one hourly rate of $275.00. Because the contract was for legal
services, the [Board] had the right to terminate it at any time
for any reason. Gaines, Gaines & Gaines, P.C. v. Hare, Wynn,
Newell & Newton, 554 So. 2d 445 (Ala. 1989).
"Even assuming the contract was not one for legal
services and therefore terminable at will by the [Board], based
on the terms of the contract, the [Firm] cannot establish the
fourth element for a breach of contract claim, i.e., damages,
and therefore cannot prevail as a matter of law. By the plain
terms of the contract, the [Firm] could not be compensated
other than for services it actually performed and on the basis
of time it spent on such services and expenses incurred. The
[Firm] was paid for all services rendered at its hourly rate for
the services set out in the contract. The contract stated that
the services would be provided 'from time to time upon
request' by the [Board]. The [Firm] had no guarantee that it
would ever be requested to perform work under the contract,
if the [Firm] was not requested to perform services then it
would not be entitled to any compensation. The [Firm] has not
presented any evidence that it was requested to or performed
any services of any type beyond the work set out in its invoices
and for which it has been paid.
"Notwithstanding the provisions of the plain terms of the
contract, the [Firm] argues that it is entitled to recover lost
profits. However, profits that are speculative, conjectural or
21
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remote are not recoverable damages. Deng v. Scroggins, 169
So. 3d 1015 (Ala. 2014); Taylor v. Shoemaker, 38 So. 2d 895
(Ala. Civ. 1948). Given that the [Firm] was not guaranteed
any future work and given that the [Firm] was only entitled to
compensation for work actually performed, then any claim for
lost profit would be mere speculation and therefore not due to
be recovered."
On July 29, 2019, the Firm timely filed a notice of appeal to this Court.
Standard of Review
The standard of review applicable to a summary judgment is the
same as the standard the trial court applied when granting the
summary-judgment motion. McClendon v. Mountain Top Indoor Flea
Mkt., Inc., 601 So. 2d 957, 958 (Ala. 1992). That is, we must determine
whether there was a genuine issue of material fact and, if not, whether
the moving party is entitled to a judgment as a matter of law. Id. at 958.
"When the movant makes a prima facie showing that there is
no genuine issue of material fact, the burden then 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 reasonably infer the existence of the
fact sought to be proved.' West v. Founders Life Assurance Co.
of Florida, 547 So. 2d 870, 871 (Ala.1989)."
Ex parte General Motors Corp., 769 So. 2d 903, 906 (Ala. 1999).
22
1180875
Discussion
The Firm argues that there is a genuine dispute as to whether a
supermajority provision, like the one in the contract at issue in this case,
violates public policy and that genuine issues of material fact exist as to
whether the Board violated the supermajority provision by terminating
the contract with the Firm without a supermajority of the Board voting
in favor of the termination. Second, the Firm says, there is a genuine
issue of material fact as to whether the administration of the contract-
compliance program was a legal or nonlegal service. Last, the Firm
argues that there is conflicting evidence, i.e., a genuine issue of material
fact, regarding the appropriate measure of damages it is entitled to on the
breach-of-contract claim insofar as that claim relates to the
administration of the contract-compliance program.
At the outset, we note that " '[t]he attorney-client relationship is
similar to the doctor-patient relationship in that it is a "close, personal
relationship built upon trust and confidence." ' " Ex parte Dunaway, 198
So. 3d 567, 586 (Ala. 2014)(quoting Boykin v. Keebler, 648 So. 2d 550, 552
(Ala. 1994)).
23
1180875
In Gaines, Gaines & Gaines, P.C. v. Hare, Wynn, Newell & Newton,
554 So. 2d 445 (Ala. Civ. App. 1989), the Court of Civil Appeals held that
a client may discharge an attorney with or without cause and that, in
certain circumstances, the discharged attorney may recover
compensation for services performed before the discharge. 554 So. 2d 447-
48.
In Garmon v. Robertson, 601 So. 2d 987, 989 (Ala. 1992), this Court
quoted Gaines with approval, explaining:
"The Court of Civil Appeals has correctly stated:
" 'It is well recognized that the
employment of an attorney by a client is
revocable by the client with or without
cause,
and
that
such
discharge
ordinarily does not constitute a breach
of contract even with a contract of
employment which provides for the
payment of a contingent fee. There are,
of course, well recognized procedures
where a discharged attorney may
recover compensation for the services
rendered to that client before the
discharge.'
"Gaines, Gaines & Gaines, P.C. v. Hare, Wynn, Newell &
Newton, 554 So. 2d 445, 447 (Ala. Civ. App. 1989)."
24
1180875
In Cheriogotis v. White (In re Cheriogotis), 188 B.R. 996, 1000 n.4 (Bankr.
M.D. Ala. 1994), the United States Bankruptcy Court for the Middle
District of Alabama observed:
"The existence of an attorney-client relationship gives
rise to special duties and responsibilities. 'A lawyer is a
representative of clients, an officer of the legal system and a
public citizen having special responsibility for the quality of
justice.' Ala. Rules of Prof. Conduct (1994), preamble. A
lawyer serves as a legal advisor, but his role is not merely
limited to the law. There is a fiduciary duty with regards to
the client's financial and other interests. A lawyer acts as an
advocate, a negotiator, an intermediary, and an evaluator.
These disparate duties have been codified in the code of
professional conduct in each of several states. Eg. Ala. Rules
of Prof. Conduct (1994). ...
"Moreover, the attorney-client relationship is a very
personal relationship. It must be based on some established
and known arrangement between the counselor and the
counseled. Attorneys are not fungible goods that may be
traded one for another like pre-adolescent boys trading
baseball cards of their sports heroes. A lawyer, absent consent
of the client, has no right to assign the representation of a
client to another member of the bar. See Ala. Rules of Prof.
Conduct (1994), Rule 1.5(e)(2).
"We need hardly add that an attorney's power to
represent a client may be limited and a lawyer is
dischargeable by the client as a matter of right and without
cause or justification. Doggett v. Deauville Corp., 148 F.2d 881
(5th Cir. (Ala.) 1945); Gaines, Gaines, & Gaines, P.C. v. Hare,
25
1180875
Wynn, Newell, & Newton, 554 So. 2d 445 (Ala. Civ. App.
1989)."
See also Alabama State Bar Ethics Opinion RO-93-21 (discussing fee
agreements and noting that "non-refundable fee language is objectionable
because it may chill a client from exercising his or her right to discharge
his or her lawyer and, thus, force the client to proceed with a lawyer that
the client no longer has confidence in"); Alabama State Bar Ethics Opinion
RO-92-17 (discussing Gaines and stating: "[T]he client has the absolute
right to terminate the services of his or her lawyer, with or without cause,
and to retain another lawyer of their choice. This right would be
substantially limited if the client was required to pay the full amount of
the agreed on fee without the services being performed."); and 7A C.J.S.
Attorney & Client § 326 (2015) ("The right of a client to terminate his or
her relationship with a lawyer is necessarily implied in the
attorney-client relationship, and the right is absolute.").
Rule 1.16(a), Ala. R. Prof. Cond., provides, in part:
"(a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced,
shall withdraw from the representation of a client, if:
26
1180875
"....
"(3) The lawyer is discharged."
The Comment to Rule 1.16 provides, in part: "A client has a right to
discharge a lawyer at any time, with or without cause, subject to liability
for payment for the lawyer's services. Where future dispute about the
withdrawal may be anticipated, it may be advisable to prepare a written
statement reciting the circumstances." That is, a client has the
unqualified right to hire and fire attorneys at will with no obligation at all
except to pay for completed services.
In this case, the question is whether requiring a supermajority of the
Board to vote in favor of terminating the contract conflicts with a client's
right to discharge a lawyer at any time, with or without cause. The
minutes from the Board's November 22, 2016, meeting indicate that the
supermajority provision in the contract with the Firm was based on a
similar provision in a contract that the Board had with an engineering
firm. The Firm's letter to the Alabama State Bar indicates that the
Board's contract with its general manager also contained a supermajority
27
1180875
provision. An attorney-client relationship is different from a client's
relationship with other professions or a client's employees.
"This Court has the inherent authority to admit lawyers
to the practice of law, to approve or disapprove any rule
governing lawyers' conduct, to inquire into matters of any
disciplinary proceeding, and to take any action it sees fit in
disciplinary matters. Board of Comm'rs of the Alabama State
Bar v. State ex rel. Baxley, 295 Ala. 100, 324 So. 2d 256 (1975);
Simpson v. Alabama State Bar, 294 Ala. 52, 311 So. 2d 307
(1975)."
Ex parte Case, 925 So. 2d 956, 962-63 (Ala. 2005).
"The relationship of attorney and client is one of the most
sacred relationships known to the law and places upon the
attorney a position likened to a fiduciary calling for the highest
trust and confidence, so that in all his relations and dealings
with his client, it is his duty to exercise the utmost honesty,
good faith, fairness, integrity and fidelity, and he may not at
any time use against his former client knowledge or
information acquired by virtue of the previous relationship.
This rule is universal and hoary with age."
Hannon v. State, 48 Ala. App. 613, 618, 266 So. 2d 825, 829 (Crim. App.
1972).
The Supreme Court of Colorado addressed a city's termination of a
law firm's services. In Olsen & Brown v. City of Englewood, 889 P.2d 673
(Colo. 1995), the city retained a law firm to represent it in tort litigation
28
1180875
on a noncontingent-fee basis.4 The litigation required the law firm to
devote substantially all of its time to the case and to forgo other
employment. The city terminated the attorney-client relationship without
cause. The law firm sued the city for damages, alleging breach of contract.
The Colorado Supreme Court held that the law firm was entitled to
recover the reasonable value of the services it had rendered before
discharge, stating:
"The relationship between an attorney and client is a
distinct fiduciary affiliation which arises as a matter of law.
Bailey v. Allstate Ins. Co., 844 P.2d 1336, 1339 (Colo. App.
1992). The foundation of this relationship is grounded upon a
special trust and confidence, Enyart v. Orr, 78 Colo. 6, 15, 238
P. 29, 34 (Colo. 1925), and requires that a client have the
utmost faith in chosen counsel.
"To this end, attorneys are governed by and must adhere
to specific rules of conduct which this court has the exclusive
jurisdiction to oversee. Colorado Supreme Court Grievance
Committee v. District Court, 850 P.2d 150, 152 (Colo. 1993).
Thus, the attorney-client relationship may initially be
distinguished from other business relationships by virtue of
these specific rules and the uniqueness of the governing body
4The Colorado Supreme Court noted that its opinion addressed only
the issue of terminating the services of attorneys in private practice and
that it did not express any views on the applicability of its holding in that
case to attorneys who are employees, including in-house counsel.
29
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under which attorney conduct is regulated. See Rhode,
Titchenal, Baumann & Scripter v. Shattuck, 44 Colo. App. 449,
619 P.2d 507, 508 (1980) (distinguishing attorney-client
relationship from accountant-client relationship on this basis).
"These rules are not designed to alter civil liability nor do
they serve as a basis for such liability. Code of Professional
Responsibility, Preliminary Statement; Colorado Rules of
Professional Conduct, Preamble, Scope and Terminology. See
also Bryant v. Hand, 158 Colo. 56, 404 P.2d 521 (Colo. 1965).
"Rather, such rules are in place to provide guidance in
the attorney-client relationship and to serve as a mechanism
of internal professional discipline. Code of Professional
Responsibility, Preliminary Statement; Colorado Rules of
Professional Conduct, Preamble, Scope and Terminology.
"Although not controlling of the issue before us, we must
be mindful of these rules and the influence they necessarily
have in situations involving the attorney-client relationship.
"....
"[Rule of Professional Conduct] 1.16 requires an
attorney's withdrawal from representation upon discharge by
the client. The Comment to this rule states, in pertinent part:
'[a] client has a right to discharge a lawyer at any time, with
or without cause, subject to liability for payment for the
lawyer's services.'
"In order to assure no compulsion to retain an attorney
where trust between attorney and client has been broken, and
to further guarantee a client may always be confident with
such representation, a client must, and does, have the right to
discharge the attorney at any time and for whatever reason.
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See Thompson v. McCormick, 138 Colo. 434, 440, 335 P.2d 265,
269 (Colo. 1959). An attorney may not rely upon an indefinite
continuation
of
employment
but instead,
enters
an
attorney-client relationship with knowledge that the
relationship may be terminated at any time and for any
reason.
"The unique relationship between attorney and client
prevents the agreement between them from being considered
as an ordinary contract because doing so would ignore the
special fiduciary relationship. AFLAC [Inc. v. Williams, [264
Ga. 351, 353], 444 S.E.2d [314] at 316 [(1994)](citing Fox &
Associates Co., L.P.A. v. Purdon, 44 Ohio St. 3d 69, 541 N.E.2d
448, 450 (1989)).
"The right to terminate the attorney-client relationship
'is a term of the contract implied by public policy because of
the peculiar relationship between attorney and client.'
AFLAC, [264 Ga at 353,] 444 S.E.2d at 316 (citing Martin v.
Camp, 219 N.Y. 170, 114 N.E. 46, 48 (1916)). A client's
discharge of chosen counsel is not a breach of contract but
merely an exercise of this inherent right. AFLAC, [264 Ga at
353,] 444 S.E.2d at 316 (citing Dorsey v. Edge, 75 Ga. App.
388, 43 S.E.2d 425, 428 (1947))."
Olsen & Brown, 889 P.2d at 675-676 (emphasis added; footnote omitted).
In AFLAC, Inc. v. Williams, 264 Ga. 351, 444 S.E.2d 314 (1994), the
Georgia Supreme Court determined that to afford all attorney-client
agreements the conventional status of commercial contracts ignores the
special fiduciary relationship created when an attorney represents a
31
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client. In Williams, an insurance company entered in to a seven-year
contract with an attorney to provide legal advice to company officers on
an " 'as needed' basis." 264 Ga. at 352, 444 S.E.2d at 316. The attorney
was paid a monthly retainer plus additional compensation for special
projects. The contract provided for an automatic renewal for an additional
five years unless terminated. If the company terminated the contract,
even for good cause, it agreed to pay " 'as damages an amount equal to 50
percent of the sums due under the remaining terms, plus renewal of the
agreement.' " 264 Ga. at 352, 444 S.E.2d at 316.
The chief executive officer of the company died, and the new chief
executive officer stopped paying the attorney's monthly retainer. The
company also commenced a declaratory-judgment action to determine the
validity of the contract. The attorney filed a counterclaim, seeking more
than $1 million in damages for breach of contract. The trial court declared
the contract unenforceable and entered a summary judgment for the
company on its declaratory-judgment claim and on the attorney's
counterclaim. The lower appellate court reversed in part, holding that the
provision providing for a monthly retainer was valid and, thus, that the
32
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attorney had a valid claim for damages based on the company's breach of
that provision but determining that summary judgment was appropriate
as to the attorney's claim based on the renewal provision.
The Georgia Supreme Court held that a client's discharge of chosen
counsel is not a breach of contract, but merely an exercise of the client's
inherent right to terminate the attorney-client relationship.5 The court
stated:
"This court has the duty to regulate the practice of law. Sams
v. Olah, 225 Ga. 497, 501, 169 S.E.2d 790 (1969), cert. denied,
397 U.S. 914, 90 S.Ct. 916, 25 L.Ed.2d 94 (1970). In exercising
this duty, we have sought to assure the public that the practice
of law 'will be a professional service and not simply a
commercial enterprise. The primary distinction is that a
profession is a calling which demands adherence to the public
interest as the foremost obligation of the practitioner.' First
Bank & Trust Co. v. Zagoria, 250 Ga. 844, 845, 302 S.E.2d 674
(1983). As an officer of the court, the lawyer's obligation to the
courts and the public is as significant as the obligation to
clients. Sams, 225 Ga. at 504, 169 S.E.2d 790.
"The relationship between a lawyer and client is a special
one of trust that entitles the client to the attorney's fidelity.
5The Georgia Supreme Court noted that its opinion dealt only with
contracts involving attorneys in private practice and did not address the
employment relationship between employers and in-house counsel or
other full-time employees.
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See Ryan v. Thomas, 261 Ga. 661, 662, 409 S.E.2d 507 (1991);
Freeman v. Bigham, 65 Ga. 580, 589 (1880). This 'unique'
relationship is 'founded in principle upon the elements of trust
and confidence on the part of the client and of undivided
loyalty and devotion on the part of the attorney.' Demov,
Morris, Levin & Shein v. Glantz, 53 N.Y.2d 553, 556, 428
N.E.2d 387, 389, 444 N.Y.S.2d 55, 57 (1981). To force all
attorney-client agreements into the conventional status of
commercial contracts ignores the special fiduciary relationship
created when an attorney represents a client. Fox & Associates
Co., L.P.A. v. Purdon, 44 Ohio St. 3d 69, 541 N.E.2d 448, 450
(1989).
"Because of this fiduciary relationship, 'a client has the
absolute right to discharge the attorney and terminate the
relation at any time, even without cause.' White v. Aiken, 197
Ga. 29, 32, 28 S.E.2d 263 (1943). A client's discharge of his
attorney 'is not a breach of the contract of employment but the
exercise of his right.' Dorsey v. Edge, 75 Ga. App. 388, 392, 43
S.E.2d 425 (1947). This right to terminate is a term of the
contract implied by public policy because of the peculiar
relationship between attorney and client. See Martin v. Camp,
219 N.Y. 170, 114 N.E. 46, 48 (1916). A client must be free to
end the relationship whenever ' "he ceases to have absolute
confidence in either the integrity or the judgment or the
capacity of the attorney." ' Fracasse v. Brent, 6 Cal. 3d 784,
494 P.2d 9, 100 Cal. Rptr. 385 (1972) (quoting Gage v.
Atwater, 136 Cal. 170, 172, 68 P. 581 (1902)).
"Our obligation to regulate the legal profession in the
public's interest causes us to favor AFLAC's freedom in ending
the attorney-client relationship without financial penalty over
Williams' right to enforce the damages provision in his
retainer contract. Requiring a client to pay damages for
terminating its attorney's employment contract eviscerates the
34
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client's absolute right to terminate. A client should not be
deterred from exercising his or her legal right because of
economic coercion. Since the contract improperly imposes a
penalty by requiring AFLAC to pay damages equal to half
Williams' retainer, we conclude that the provision is
unenforceable.
"....
"Contrary to the Court of Appeals, we conclude that the
contract's damages provision improperly imposes a penalty by
forcing AFLAC to pay damages for exercising its legal right to
end the attorney-client relationship. The peculiar language of
the provision demonstrates that the parties intended to deter
AFLAC from discharging Williams and to punish the company
if it did. The contract specifies AFLAC must pay 50 percent of
the remaining sums due Williams under both the original
seven-year term and the five-year renewal period. This
provision requires AFLAC to pay an unreasonably high sum as
damages, requires payment without considering Williams'
duty to mitigate his damages, and obligates AFLAC to pay
even if Williams is discharged for cause. Because the damages
provision is not a reasonable estimate of Williams' damages
and instead is a penalty imposed to punish AFLAC, we find it
is unenforceable as a liquidated damages clause."
Williams, 264 Ga. at 352-54, 444 S.E.2d at 316-17 (emphasis added;
footnotes omitted).
Similar to the restrictions on the attorney-client relationship in
Olsen & Brown and Williams, the supermajority provision in this case
impedes a client's right to discharge an attorney with or without cause.
35
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The relationship between the attorney and his or her client must be based
on the utmost trust and confidence, and such trust and confidence is
undermined by restrictions penalizing or impeding the client's right to
terminate the relationship. As the United States Bankruptcy Court for
the Middle District of Alabama recognized in Cheriogotis, supra, the
attorney-client relationship is very personal and not "fungible goods that
may be traded one for another." 188 B.R. at 1000 n.4. Applying 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. We recognize that the Board is an entity composed of members
who act on behalf of the public by voting in order to conduct the business
of the Board. However, the supermajority provision circumvents
established Alabama public policy allowing a client to terminate the
attorney-client relationship at any time, with or without cause. We also
note that the minutes from the November 10, 2016, Board meeting
indicate that the supermajority provision was added to protect the
preference of a majority of the existing five-member Board with regard to
36
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the attorney-client relationship, knowing that the Board might soon be
increased to nine members, which it was.6
In addition to conflicting with the Board's right to terminate its
attorney-client relationship with the Firm, the supermajority provision
also conflicts with caselaw preventing a board from binding a successor
board. The question presented in Willett & Willett v. Calhoun County,
217 Ala. 687, 117 So. 311 (1928), was whether a county board of revenue
had authority to make a contract with the attorney for the board to extend
they attorney's term of employment beyond the term of the board as it
existed at the time of the execution of the contract. The Court answered
that question in the negative, holding that doing so was contrary to public
policy and injurious to the interest of the public because the effect would
be "tying the hands of the succeeding board and depriving the latter of
their proper powers." 217 Ala. 688, 117 So. at 311. The succeeding board,
as constituted, the Court held, should at all times be free to select its own
confidential legal adviser.
6No such supermajority provision was in place when a majority of
the Board terminated its previous legal counsel and hired the Firm.
37
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In Galbreath v. Hale County Commission, 754 F. App'x 820 (11th
Cir. 2018)(not selected for publication in Federal Reporter), the United
States Court of Appeals for the Eleventh Circuit addressed an
employment contract between a county and the county administrator that
prevented the majority of the county commission from discharging the
county administrator. The court distinguished Willett, supra, concluding
that because the role of county administrator is largely administrative in
nature, the reasoning of Willett -- that a succeeding board should at all
times be free to select its own confidential legal advisor -- was not
implicated.
The Rhode Island Supreme Court addressed a similar question in
Parent v. Woonsocket Housing Authority, 87 R.I. 444, 143 A.2d 146
(1958), in which a housing authority entered into a five-year contract with
the plaintiff to be the legal advisor for the housing authority. The
housing authority agreed to pay the plaintiff for his services according to
the fees allowable for legal expenses as set out and approved in its budget.
The plaintiff performed legal services as required of him by the housing
authority. However, after the membership of the housing authority had
38
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partially changed, the housing authority terminated the plaintiff's
employment before the expiration of the five-year period. It was conceded
that plaintiff had received as compensation for services rendered to that
date the amount of $2,041.67. The plaintiff sued the housing authority
alleging breach of contract. The trial court determined that the contract
was valid and enforceable. On appeal, the Rhode Island Supreme Court
held that legislative bodies and municipal agencies having legislative
powers may not by contract impair or prevent a succeeding body or agency
from exercising a legislative or governmental function and that engaging
a lawyer to act on behalf of the housing authority was related to the
governmental functions of the housing authority.
In the present case, the supermajority provision is invalid.
Therefore, there is no need to address whether there is a fact question as
to whether the Board violated the supermajority provision by discharging
the Firm. We recognize that the Firm requested an opinion from the
Alabama State Bar as to whether the supermajority provision violated the
Rules of Professional Conduct. The informal and nonbinding opinion
letter provided by the Alabama State Bar addressed the Rules of
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Professional Conduct, but the Alabama State Bar's conclusion that the
supermajority provision was a valid attorney-client contractual provision
was simply wrong. We note that, in its opinion letter, the Alabama State
Bar even appears to question why the Board would agree to such a
supermajority provision.
Next, the Firm argues that the contract was for legal and nonlegal
services. Specifically, the Firm contends that the administration of the
contract-compliance program was a nonlegal service and, thus, that it can
maintain its breach-of-contract claim against the Board insofar as it
relates to that nonlegal service.
The trial court found that the contract was for legal services. We
agree. The record reflects that the contract contains no separate
provisions identifying the administration of the contract-compliance
program as a nonlegal service. The contract provides for one rate for all
of the Firm's services, and the contract provides that the Firm would
administer the contract-compliance program from time to time as
requested by the Board. There is no definition of the services to be
provided for administration of the contract-compliance program in the
40
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contract, and those services were to be provided on an "as requested"
basis. Even if we assume that the contract provided for both legal and
nonlegal services and that administering a contract-compliance program
was a nonlegal service, that program was never approved or adopted.
The record shows that one of the members of the Board wrote a
memorandum setting out the goals that he would like to see accomplished
under such a program, and the Board approved transferring money from
a reserve fund to an operational fund for such a program. However, as
one of the Board members recognized, no money would be spent until a
contract-compliance program was created. There is nothing in the record
to indicate that such a program was created, approved, or adopted by the
Board. Moreover, the record reflects that any contract-compliance
program would have included oversight of the HUB program, which was
already being administered by employees of the Board. The minutes of
a governmental body are the best evidence of the official acts of the
governmental body. Kimbrell v. City of Bessemer, 380 So. 2d 838 (Ala.
1980); Penton v. Brown Crumner Inv. Co., 222 Ala. 155, 131 So. 14
41
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(1930). In this case, the minutes of the Board reflect that the contract-
compliance program was never created, approved, or adopted.
Last, the Firm argues that there is conflicting evidence regarding
the appropriate measure of damages it would be entitled to on a breach-of-
contract claim relating to the administration of the contract-compliance
program. However, because such a program was never created, approved,
or adopted, we pretermit discussion of this argument.
Based on the foregoing, we affirm the judgment of the trial court.
AFFIRMED.
Bolin, Wise, Sellers, Mendheim, and Stewart, JJ., concur.
Parker, C.J., concurs in part and dissents in part.
Shaw and Bryan, JJ., and McCool, Special Justice,* dissent.
Mitchell, J., recuses himself.
*Judge Chris McCool of the Alabama Court of Criminal Appeals was
appointed to serve as a Special Justice in regard to this appeal.
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PARKER, Chief Justice (concurring in part and dissenting in part).
I agree that the supermajority provision was unenforceable as an
unconscionable restriction of the right of The Water Works Board of the
City of Birmingham ("the Board") to terminate the portion of its contract
with Fuston, Petway & French, LLP ("the Firm"), that called for legal
services. I dissent from the main opinion with regard to the contract-
compliance-program portion of the contract. There was a genuine issue of
material fact regarding whether that portion called for nonlegal services,
for the reasons stated by Justice Shaw, see ___ So. 3d at ___ (Shaw, J.,
dissenting). Cf. Ellenstein v. Herman Body Co., 23 N.J. 348, 129 A.2d 268
(1957) (holding that contract with lawyer for labor-relations consulting
was for nonlegal services). And, contrary to the main opinion, there was
an issue of fact regarding whether the contract-compliance program was
created. The Firm's invoices reflect that, in the weeks after the contract
was signed, the Firm spent about 20 hours performing services related to
the program. It is undisputed that the Board paid the Firm for those
services, implying that they were requested by the Board. Further, there
was an issue of fact regarding whether, if the Board had not terminated
43
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the contract, the Board would have asked the Firm to perform further
services related to the program. Finally, if the Board breached the
contract-compliance-program portion of the contract, the Firm would have
been entitled to at least nominal damages. See Knox Kershaw, Inc. v.
Kershaw, 552 So. 2d 126, 128 (Ala. 1989). A nominal-damages award may
be important for collateral reasons, such as seeking prevailing-party
attorney fees. Accordingly, I would reverse the summary judgment with
regard to the contract-compliance-program portion of the contract.
44
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SHAW, Justice (dissenting).
This case involves the purported termination of a contract between
the law firm of Fuston, Petway & French, LLP ("the Firm"), and The
Water Works Board of the City of Birmingham ("the Board"). The Firm
sued the Board alleging that the contract was not properly terminated and
sought damages. The trial court entered a summary judgment in favor of
the Board, and the main opinion affirms that judgment. I respectfully
dissent.
The Board, as an entity, makes decisions through the collective
agreement, by vote, of its governing board members. Although the
organizational rules that determine how the board members make
decisions by vote on behalf of the entity are not entirely disclosed, and
although any law governing that voting process is not extensively
addressed, it is clear from the facts that some actions of the Board are
decided by a majority of the board members and some by a supermajority
of the board members.
In this case, it is alleged that the contract between the Board and
the Firm required a vote by a supermajority of the board members to
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terminate the contract. As recounted in the main opinion, the minutes
from the meeting by the governing board members on whether to agree to
the contract show that the potential ramifications of the inclusion of the
supermajority-vote requirement was fully discussed. It is undisputed that
the board members later purported to terminate the contract by a simple
majority vote.
"It is well recognized that the employment of an attorney by a client
is revocable by the client with or without cause, and that such discharge
ordinarily does not constitute a breach of contract ...." Gaines, Gaines &
Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So. 2d 445, 447 (Ala.
Civ. App. 1989) (emphasis added; quoted with approval in Garmon v.
Robertson, 601 So. 2d 987, 989 (Ala. 1992)). Rule 1.16(a)(3), Ala. R. Prof.
Cond., states that "a lawyer ... shall withdraw from the representation of
a client, if ... the lawyer is discharged." The Comment to that rule states:
"A client has a right to discharge a lawyer at any time, with or without
cause, subject to liability for payment for the lawyer's services."
The language of the contract and the description of the services to
be provided make clear that the Board, as an entity, and not the
46
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individual members of its governing board, is the "client" in this case.7
Further, the issue in this case is not whether the Board could terminate
the contract, but whether the board members actually did so.
The parties -- both sophisticated -- had a specific agreement as to the
means required to terminate the contract: a supermajority vote. The Firm
received an informal advisory opinion from the Alabama State Bar
indicating that such an arrangement was permissible and did not violate
Rule 1.16, Ala. R. Prof. Cond. There are numerous reasons given on
appeal for the supermajority-vote requirement, including regular changes
in membership/leadership of the governing board, which occurred in this
case, and that such a requirement is a provision "routinely include[d]" in
contracts negotiated and executed by the Board.
Our prior decisions recognize that we "highly value the freedom to
contract" and that, as a result, "we will not alter the expressed intentions
of the parties to a contract unless the contract offends some rule of law or
7It is clear from the contract that the Firm was to provide the Board,
as an entity, certain services; no legal representation for the individual
members of the governing board is at issue.
47
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contravenes public policy." Grimes v. Alfa Mut. Ins. Co., 227 So. 3d 475,
487 (Ala. 2017). As the Firm notes, in the absence of an ambiguity, courts
are obligated to enforce lawful, freely negotiated contracts as written.
See, e.g., Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35 (Ala.
1998).
Contracts for legal services may be revocable by a client without
cause, but this general public policy governs the reason for the
termination. The agreement of the Board to require a supermajority vote
in this case provides how a corporate body -- not an individual client -- will
decide to effect any termination. Given the unique facts in this case, the
sophistication of the parties, and the corporate nature of the Board and
the way it conducts business, I do not believe that the general public
policy of allowing a client to terminate legal representation on any basis
is implicated in this case.
Further, it appears disputed that some of the services provided in
the contract related to the contract-compliance program were nonlegal in
nature. Specifically, numerous responsibilities regarding engagement,
monitoring, and outreach outlined as necessary to the administration of
48
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the contract-compliance program appear to be distinctly nonlegal in
nature. In fact, the minutes of the meeting preceding the adoption of the
contract reflect that, before its adoption, "the Board [was] presently doing
everything that the [Firm was required to] do" under the contract.
Finally, the trial court concluded that the Firm was unable to
demonstrate damages because it was not guaranteed any minimum
amount of work under the contract and, instead, was obligated only to
provide legal services when or if requested. However, the Firm produced
substantial evidence indicating that the Board breached the termination
provision of the contract; therefore, the Firm argues, it could be entitled
to nominal damages. Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126, 128
(Ala. 1989) (quoting James S. Kemper & Co. Se., Inc. v. Cox & Assocs.,
Inc., 434 So. 2d 1380, 1385 (Ala. 1993)) (" '[W]hen the evidence establishes
a breach, even if only technical, there is nothing discretionary about the
award of nominal damages.' ").
Given the above, I respectfully dissent.
Bryan, J., concurs.
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McCOOL, Special Justice (dissenting).
I respectfully dissent because I disagree with the main opinion's
conclusion that public-policy considerations override the express and
unequivocal intent of the employment contract between The Water Works
Board of the City of Birmingham ("the Board") and Fuston, Petway, &
French, LLP ("the Firm"), at issue in this case.
I agree with the main opinion's conclusion that public policy
generally prohibits a breach-of-contract action for a client's termination
of a lawyer's representation. This is so because, as the main opinion
notes, a client has a right to terminate a lawyer's representation at any
time and for any reason, and this right " ' "is a term of the contract implied
by public policy because of the peculiar relationship between attorney and
client." ' " ___ So. 3d at ___ (emphasis omitted) (quoting Olsen & Brown
v. City of Englewood, 889 P.2d 673, 676 (Colo. 1995), quoting in turn
AFLAC, Inc. v. Williams, 264 Ga. 351, 353, 444 S.E.2d 314, 316 (1994)).
However, like Justice Shaw, I believe the main opinion ignores the
fact that this public-policy consideration is not implicated in this case.
Simply put, nothing in the employment contract prohibits the Board from
50
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terminating the Firm's representation at any time or for any reason.
Rather, as Justice Shaw points out, the employment contract merely
contains a supermajority provision that defines how that termination
must occur, and I fail to see how it violates public policy to hold the Board
to the manner in which it chose to bind itself with respect to the
termination of the Firm's representation.
Furthermore, I am concerned that, by applying a public-policy
principle that I do not believe is applicable in this case, the main opinion
intrudes upon another public-policy consideration -- namely, the parties'
freedom to contract with each other as they see fit. That is to say,
although a client may, as a matter of public policy, terminate a lawyer's
representation at any time and for any reason, is it not also a matter of
public policy to allow a client to freely and voluntarily choose to enter into
an agreement that restricts the manner in which that termination must
occur? I believe it is, and, in fact, the Alabama Supreme Court has
acknowledged that the freedom to contract is the " 'paramount public
policy.' " Milton Constr. Co. v. State Highway Dep't, 568 So. 2d 784, 789
(Ala. 1990) (quoting 17 Am. Jur. 2d Contracts, § 178 (1964)), rev'd on other
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grounds, Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 23 (Ala. 2007).
As both the main opinion and Justice Shaw note, the Alabama State Bar
Association has apparently reached the same conclusion by opining that
the supermajority provision is permissible and that the Board was free to
" 'place the super majority restriction on its own ability to terminate
counsel.' " ___ So. 3d at ___ (quoting February 3, 2017, opinion letter of
the Bar). Of course, that opinion is not binding upon the Alabama
Supreme Court. However, I do believe that that opinion letter provides
support for the conclusion that the supermajority provision does not
intrude upon the public-policy principle that allows a client to terminate
a lawyer's representation at any time or for any reason.
In Poole v. Prince, 61 So. 3d 258, 281 (Ala. 2010), this Court stated:
"The 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."
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I do not believe that the supermajority provision of the employment
contract actually violates the public policy of allowing a client to terminate
a lawyer's representation at any time or for any reason. By concluding
otherwise, the main opinion does infringe upon the parties' right to
contract as they see fit. Therefore, I respectfully dissent.
53 | June 30, 2021 |
cff25079-f488-4bd7-b69b-edc8af2e065c | Stephens v. Claridy | N/A | 1200006 | Alabama | Alabama Supreme Court | Rel: June 30, 2021
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1200006
____________________
Damon Stephens
v.
Michael F. Claridy
Appeal from Madison Circuit Court
(CV-17-901604)
SELLERS, Justice.
Damon Stephens appeals from a judgment of the Madison Circuit
Court ordering that certain property located on Old Railroad Bed Road in
1200006
Toney, consisting of approximately 7.82 acres ("the property"), be
partitioned by sale, pursuant to the Alabama Uniform Partition of Heirs
Property Act ("the Heirs Act"), § 35-6A-1 et seq., Ala. Code 1975.1 We
affirm.
Facts
This appeal involves whether, under the Heirs Act, the property is
susceptible to partition in kind or whether, as determined by the circuit
court, it must be partitioned by sale.2 Pursuant to the Heirs Act, if a court
determines that property is heirs property, see § 35-6A-2(5), Ala. Code
1975, the court can, after determining the fair market value of the
property, order the division of the heirs property by partition in kind or by
partition by sale. The Heirs Act presumes that a partition in kind can be
1The Heirs Act, effective April 7, 2014, applies to partition actions
commenced on or after January 1, 2015. § 35-6A-3, Ala. Code 1975. The
Heirs Act defines "heirs property" as "[r]eal property held in tenancy in
common which satisfies [certain specified] requirements." § 35-6A-2(5),
Ala. Code 1975.
2"Partition in kind" is defined as "[t]he division of heirs property into
physically distinct and separately titled parcels." § 35-6A-2(7), Ala. Code
1975. "Partition by sale" is defined as a "court-ordered sale of the entire
heirs property, whether by auction, sealed bids, or open market sale
conducted under § 35-6A-10[, Ala. Code 1975]." § 35-6A-2(6).
2
1200006
ordered unless such a partition would "result in great prejudice to the
cotenants." § 35-6A-8(a), Ala. Code 1975. If heirs property cannot be
partitioned in kind, then a partition by sale must be ordered pursuant to
§ 35-6A-10, Ala. Code 1975.
In September 2017, Michael F. Claridy filed a complaint to quiet
title to the property and requested that the circuit court partition the
property by sale on the basis that the property could not be equitably
divided or partitioned in kind. Following an initial hearing, the circuit
court determined that the property was heirs property governed by the
Heirs Act. Specifically, the court determined that the property has been
in the Riddle family since 1944. Claude Riddle and Mary G. Riddle
initially owned the property. Claude died first, and Mary died intestate
in 2000, so title to the property vested equally in their children: Jimmie
C. Riddle, Billy Riddle, and Bobby Riddle. Jimmie died in 2005. After
several conveyances and reconveyances, Billy held title to a two-thirds
interest in the property, which he conveyed to Claridy in 2017. Bobby
conveyed half of his one-third interest in the property to Stephens in 2019,
and Stephens was subsequently added as a party to the action. Thus, the
3
1200006
circuit court declared that Claridy owned an undivided two-thirds interest
in the property and that Stephens and Bobby owned an undivided
one-third interest as joint tenants with the right of survivorship.
After establishing that the property was governed by the Heirs Act,
the circuit court adopted an appraisal indicating that the fair market
value of the property was $140,000. See § 35-6A-6, Ala. Code 1975
(requiring a circuit court to order an appraisal of the property at issue
before determining how to partition the property). According to the
appraisal, there are several structures located on the property, including
a house that Bobby personally built, valued at $44,100; a freestanding
carport located at or near Bobby's house, valued at $2,000; and a house
in which Bobby's parents, Claude and Mary, lived before their deaths,
valued at $7,200 ("the original house"). The appraisal also indicated that
the land alone was valued at $86,700, with an average value of $11,087
per acre. Based on the fair market value of the property, the circuit court,
pursuant to § 35-6A-7(e), Ala. Code 1975, allowed Stephens and Bobby 30
4
1200006
days in which to elect to buy Claridy's two-thirds interest in the property.3
Neither Bobby nor Stevens elected to buy Claridy's interest in the
property; thus, the circuit court conducted a bench trial to determine
whether a partition in kind or a partition by sale was appropriate under
the Heirs Act.
During the trial, the circuit court heard testimony from Bobby,
Claridy, and Stephens; the court also considered depositions and other
evidentiary materials. The evidence indicates that Bobby began living in
a camper-trailer on the property in approximately 1972; that, over the
years, he converted the camper-trailer into a house; and that he continued
to make improvements to the house until approximately 2002. Bobby does
not have independent water and septic lines running to his house. Rather,
his house uses the water and septic lines running to the original house.
3Section 35-6A-7(e) provides, in pertinent part:
"If any cotenant, including the petitioner, has requested
partition by sale, after the determination of value under
Section 35-6A-6[, Ala. Code 1975], the court shall send notice
to the parties that any cotenant except a cotenant that
requested partition by sale may buy all the interests of the
cotenants that requested partition by sale."
5
1200006
Bobby also stated that he had made improvements to the original house.
Bobby testified that no one in his family ever objected to his building the
house on the property or making improvements thereto. Bobby stated
that he had been the caretaker of the property from 2000 until 2015 and
that he had paid the taxes on the property during that time. He indicated
that he did not know who had paid the property taxes after 2015. Bobby
finally stated that he has a sentimental attachment to the property
because he has always lived there. As indicated, Claridy acquired his
interest in the property in 2017. Although Claridy is related to the
Riddles and has visited the property since his youth, he has never lived on
the property and indicated that he had no intentions of doing so. Claridy
stated that he had paid the taxes on the property for the past three years.
Stephens acquired his interest in the property in 2019; he has neither
lived on the property nor paid taxes on the property. Stephens testified
that, as a teenager, i.e., from approximately the mid-1980s until the early
1990s, he lived with his mother, who is now deceased, in Bobby's house.
Bobby and Stephens's mother were in a relationship for a long period, but
6
1200006
they never married. Stephens stated that, when he had lived with his
mother and Bobby, he had helped Bobby build additions to Bobby's house.
After hearing the testimony and considering the evidentiary
materials, the circuit-court judge personally viewed the property. The
circuit court indicated in its judgment that the property was overgrown
and that the buildings on it were dilapidated; that Bobby had failed to
maintain the buildings in good working order; that the roof of the original
house was falling in; that Bobby's house did not have independent water
or septic lines running to it; that there was a large hole on approximately
three acres of the property negatively impacting the potential use of those
acres; and that the differences in terrain, elevation, and condition of the
property rendered some of the property to be of significantly lower value
than the rest of the property. Based on the testimony, the evidentiary
materials, and the judge's personal observation of the property, the circuit
court concluded that there was no method by which the property could be
partitioned in kind to adequately preserve each cotenant's interest in the
property. Accordingly, the circuit court entered a detailed judgment
7
1200006
ordering that the property be partitioned by sale via public auction,
pursuant to § 35-6A-10. Stephens appealed; however, Bobby did not.
Standard of Review
"The ore tenus rule affords a presumption of correctness
to a trial court's findings of fact based on ore tenus evidence,
and the judgment based on those findings will not be disturbed
unless those findings are clearly erroneous and against the
great weight of the evidence. Reed v. Board of Trs. for
Alabama State Univ., 778 So. 2d 791, 795 (Ala. 2000). It is
grounded upon the principle that when a trial court hears oral
testimony it has an opportunity to evaluate the demeanor and
credibility of the witnesses. Hall v. Mazzone, 486 So. 2d 408,
410 (Ala. 1986). The ore tenus rule does not cloak a trial
court's conclusions of law or the application of the law to the
facts with a presumption of correctness. Kennedy v. Boles
Invs., Inc., 53 So. 3d 60 (Ala. 2010)."
Allsopp v. Bolding, 86 So. 3d 952, 958 (Ala. 2011).
Discussion
The main issue on appeal is whether the circuit court erred in
holding that the property was incapable of being partitioned in kind, thus
warranting a partition by sale. Section 35-6A-8(a) provides, in relevant
part, that,
"[i]f all the interests of all cotenants that requested partition
by sale are not purchased by other cotenants pursuant to
Section 35-6A-7[, Ala. Code 1975], ... the court shall order
8
1200006
partition in kind unless the court, after consideration of the
factors listed in Section 35-6A-9[, Ala. Code 1975], finds that
partition in kind will result in great prejudice to the
cotenants."
(Emphasis added.)
In determining whether a partition in kind will result in "great
prejudice" to the cotenants, a court is required to consider all the factors
stated in § 35-6A-9(a), Ala. Code 1975:
"(1) Whether the heirs property practicably can be
divided among the cotenants.
"(2) Whether partition in kind would apportion the
property in such a way that the aggregate fair market value of
the parcels resulting from the division would be materially less
than the value of the property if it were sold as a whole, taking
into account the condition under which a court-ordered sale
likely would occur.
"(3) Evidence of the collective duration of ownership or
possession of the property by a cotenant and one or more
predecessors in title or predecessors in possession to the
cotenant who are or were relatives of the cotenant or each
other.
"(4) A cotenant's sentimental attachment to the property,
including any attachment arising because the property has
ancestral or other unique or special value to the cotenant.
"(5) The lawful use being made of the property by a
cotenant and the degree to which the cotenant would be
9
1200006
harmed if the cotenant could not continue the same use of the
property.
"(6) The degree to which the cotenants have contributed
their pro rata share of the property taxes, insurance, and other
expenses associated with maintaining ownership of the
property or have contributed to the physical improvement,
maintenance, or upkeep of the property.
"(7) Any other relevant factor."
Additionally, § 35-6A-9(b) provides that "[t]he court may not
consider any one factor ... to be dispositive without weighing the totality
of all relevant factors and circumstances." Stephens contends that the
circuit court erred by ordering a partition by sale because, he says, the
court considered only the second factor in its analysis. He asserts that the
circuit court provided no discussion of the other factors and provided no
analysis regarding whether any particular cotenant would be greatly
prejudiced by a partition in kind. Contrary to Stephens's assertions, § 35-
6A-9 does not require a circuit court to provide a detailed written analysis
of each factor, nor does it require a written analysis regarding whether a
partition in kind would result in great prejudice to any particular
cotenant. Rather, § 35-6A-9 requires only that the court consider all the
10
1200006
factors and weigh the relevant factors accordingly in light of the evidence
or circumstances presented. In this case, the circuit court entered a
detailed judgment, noting that it had "considered and reviewed all of the
evidence in [the] case, as well as, the factors [set out in § 35-6A-9(a)] to
determine if a partition in kind will result in great prejudice to the
cotenants." The circuit court then indicated that the property "was in
disrepair and any partition of the property would decrease the value of the
property 'in such a way that the aggregate fair market value of the parcels
resulting from the division would be materially less than the value of the
property if it were sold as a whole.' [§ 35-6A-9(a)(2)]." Although the
circuit court "quoted" only the second factor, that does not imply that the
court considered only that factor to the exclusion of all others. Rather,
given the extensive details contained in the circuit court's judgment, it is
clear that the court considered all the factors but accorded the second
factor more weight given the evidence presented regarding the use and
quality of the property. As indicated, the judge personally visited the
property and observed that it was overgrown and that the buildings on it
were dilapidated, that it had not been properly maintained, that there was
11
1200006
a large hole on approximately three acres negatively impacting the
potential use of those acres, and that the differences in terrain, elevation,
and condition of the property rendered some of the property to be of a
significantly lower value than the rest of the property. In addition, the
circuit court heard evidence implicating the other factors, including
evidence regarding the degree to which the cotenants had contributed to
the payment of property taxes, their upkeep and maintenance of the
property, and their sentimental attachments to the property. Being
mindful that the circuit court received oral testimony, considered
evidentiary materials, personally inspected the property, and entered a
thorough judgment containing its findings, we find no error in the circuit
court's judgment ordering a partition by sale. "A trial court's finding that
land cannot be equitably partitioned is entitled to a presumption of
correctness and will be overturned only if plainly or palpably erroneous."
Black v. Stimpson, 602 So. 2d 368, 370 (Ala. 1992)(citing Moore v.
McNider, 551 So. 2d 1028 (Ala.1989)).
Stephens also argues that the circuit court erred by failing to award
an equitable lien "to Bobby and Stephens for the improvements Bobby
12
1200006
and, by extension, Stephens, made to the property," specifically the
construction of Bobby's house, valued at $44,100. As indicated, Stephens
testified that, from approximately the mid-1980s to the early 1990s, he
lived with his mother, who is now deceased, in Bobby's house. Stephens
stated that, during that time, he helped Bobby build additions to the
house. It is undisputed that Bobby built the house on the property and
that he continued to make improvements to the house until approximately
2002. Stephens, however, did not acquire any interest in the property,
i.e., including the house, until 2019. In contravention of Rule 28, Ala. R.
App. P., Stephens has not cited any authority for the proposition that he
is entitled to an equitable lien "by extension" or that he possesses any
right to make arguments on behalf of Bobby, who is not a party to this
appeal. Accordingly, Stephens has failed to provide a valid reason
supported by legal authority for reversing the circuit court's judgment
insofar as it failed to award an equitable lien in favor of Stephens or
Bobby.
Conclusion
13
1200006
For the above-stated reasons, the judgment of the circuit court
ordering a partition of the property by sale pursuant to the Heirs Act is
affirmed.
AFFIRMED.
Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ.,
concur.
Parker, C.J., dissents.
14 | June 30, 2021 |
a2058607-5398-4c09-af17-9299af31604f | Harper-Taylor. v. Harper. | N/A | 1180916 | Alabama | Alabama Supreme Court | REL: June 11, 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, 2020-2021
____________________
1180868
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-15-6)
____________________
1180869
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180915
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180916
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-15-1)
MITCHELL, Justice.
1180868, 1180869, 1180915, 1180916
These appeals arise from a will-contest dispute between siblings.
After their mother died, William C. Harper and Alice Lynn Harper Taylor
disagreed about which version of their mother's will governed the
disposition of her assets. After a purported transfer of the will contests
from probate court to circuit court, the siblings submitted their dispute to
a jury, which returned a verdict for Alice Lynn. William appealed and
Alice Lynn cross-appealed. Because jurisdiction never properly vested in
the circuit court, we dismiss these appeals.1
Facts and Procedural History
Alice Earle Harper died on March 1, 2013. She left three surviving
children -- Alice Lynn, William, and James -- each of whom has been a
party to this case. During her lifetime, Alice Earle drafted several wills,
including one in 1995 and another in 2007. After her death, the children
disagreed about which of her wills governed. William and James said that
her 2007 will was valid, while Alice Lynn said that the 1995 will was the
proper document to probate.
1Our holding on jurisdiction pretermits discussion of the other issues
raised by the parties.
3
1180868, 1180869, 1180915, 1180916
Alice Lynn filed a petition in the Monroe Probate Court to probate
her mother's 1995 will. William moved to dismiss his sister's petition
because he was attempting to probate the 2007 will in Escambia County.
The Monroe Probate Court granted that motion. But following an appeal
to this Court, Alice Lynn's petition to probate the 1995 will was allowed
to proceed. See Taylor v. Harper, 164 So. 3d 542 (Ala. 2014).
Each sibling challenged the validity of the will favored by the other.
Eventually, in accordance with § 43-8-190, Ala. Code 1975, the contests of
the 1995 and 2007 wills were filed in the Monroe Probate Court. Alice
Lynn sought to transfer the contests from the probate court to the Monroe
Circuit Court under § 43-8-198, Ala. Code 1975. The probate court
transferred the documents pertaining to the will contests to the circuit
court. But that transfer lacked a certification from the probate court.
The will contests were tried to a jury. William presented evidence
in favor of the 2007 will, then Alice Lynn presented evidence in support
of the 1995 will. The jury found for Alice Lynn, and the circuit court
entered a judgment in her favor.
4
1180868, 1180869, 1180915, 1180916
William appealed the judgment, arguing, among other things, that
it is void for lack of jurisdiction. Alice Lynn cross-appealed.
Standard of Review
Subject-matter jurisdiction is an unwaivable issue that this Court
must consider ex mero motu. See MPQ, Inc. v. Birmingham Realty Co.,
78 So. 3d 391, 393 (Ala. 2011). "Matters of subject-matter jurisdiction are
subject to de novo review." DuBose v. Weaver, 68 So. 3d 814, 821 (Ala.
2011). If a circuit court's jurisdiction was not properly invoked, its
judgment is void and nonappealable. MPQ, 78 So. 3d at 394.
Analysis
The dispositive issue in this case is whether the circuit court ever
obtained jurisdiction over the will contests in light of the probate court's
failure to certify the papers and documents pertaining to the contests.2
Based on the plain language of the relevant statute, our precedent, and
2Alice Lynn does not contest William's assertion that the probate
court failed to certify the papers and documents to the circuit court. The
record is likewise devoid of any such certification from the probate court.
5
1180868, 1180869, 1180915, 1180916
the record before us, it is clear that the circuit court did not obtain
jurisdiction.
We begin with the text of the relevant statute. Section 43-8-198
provides, in relevant part:
"Upon the demand of any party to the contest, ... the
probate court, or the judge thereof, must enter an order
transferring the contest to the circuit court of the county in
which the contest is made, and must certify all papers and
documents pertaining to the contest to the clerk of the circuit
court, and the case shall be docketed by the clerk of the circuit
court and a special session of said court may be called for the
trial of said contest or, said contest may be tried by said circuit
court at any special or regular session of said court."
(Emphasis added.) Over the past several decades, our Court has held that
strict compliance with the requirements of § 43-8-198 is necessary for
jurisdiction to attach. Jones v. Brewster, 282 So. 3d 854, 858 (Ala. 2019)
("In a long line of cases, this Court has held that strict compliance with
the statutory language pertaining to a will contest is required to invoke
the jurisdiction of the appropriate court."). In other words, "[a] court
cannot depart from the procedures delineated in the statute and still
retain jurisdiction." See Kaller ex rel. Conway v. Rigdon, 480 So.2d 536,
539 (Ala. 1985). There are numerous cases from our Court affirming this
6
1180868, 1180869, 1180915, 1180916
principle. See, e.g., Jones, 282 So. 3d at 860 (holding that the circuit court
never obtained subject-matter jurisdiction over a will contest under § 43-
8-198 because the record was devoid of a transfer order from the probate
court); Burns v. Ashley, 274 So. 3d 970, 974 (Ala. 2018) ("[A] circuit court
cannot assume jurisdiction over a will contest pending in probate court
absent strict compliance with the procedural requirements of § 43-8-198."
(emphasis added)); Marshall v. Vreeland, 571 So. 2d 1037, 1038 (Ala.
1990) ("The requirements of § 43-8-198 must be complied with exactly,
because will contest jurisdiction is statutorily conferred upon the circuit
court." (emphasis added)); Bullen v. Brown, 535 So. 2d 76, 78 (Ala. 1988)
("It is clear that will contest jurisdiction, being statutorily conferred, must
comply with the statutory language strictly in order to quicken
jurisdiction of the appropriate court." (emphasis added)); Kaller, 480 So.
2d at 538 ("Because will contest jurisdiction is statutorily conferred, the
procedural requirements of the applicable statute must be complied with
exactly." (emphasis added)). By pairing the plain language of the statute
with our precedent, the clear rule is that "a circuit court cannot assume
jurisdiction over a will contest pending in probate court absent strict
7
1180868, 1180869, 1180915, 1180916
compliance with the procedural requirements of § 43-8-198." Burns, 274
So. 3d at 974.
Two years ago, this Court listed the seven requirements that must
be met to establish compliance with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
Jones, 282 So. 3d at 857-58 (emphasis added; internal citation omitted).
Therefore, in line with this statement and our otherwise consistent
application of strict compliance with the statute, a probate court must
certify the probate record pertaining to the will contest to the circuit-court
clerk in order for the circuit court to obtain jurisdiction.
Although certification may seem like a mere technicality, there is an
important reason for requiring it. "The policy behind [certification] is to
8
1180868, 1180869, 1180915, 1180916
allow a will and other original documents, previously admitted to the
probate court, to become part of the record in the circuit court without
further authentication." Jones, 282 So. 3d at 865-66 (Sellers, J.,
dissenting). This requirement is no more taxing or technical than the
other requirements in § 43-8-198 we consistently enforce. See, e.g., Jones,
282 So. 3d at 860 (voiding the judgment entered on a jury verdict
following a three-day trial because the absence of a transfer order in the
circuit-court record defeated the circuit court's jurisdiction); Burns, 274
So. 3d at 974 (dismissing the appeal of a judgment that was void for lack
of jurisdiction in the circuit court because the probate court never entered
a transfer order despite having an imperative duty to do so); Kaller, 480
So. 2d 538 (reversing a circuit-court judgment entered on a jury verdict
and remanding based on the circuit court's lack of jurisdiction under § 43-
8-198 "because the proponent did not file a pleading at the same time he
filed the motion to transfer").
Alice Lynn cites Cook v. Cook, 396 So. 2d 1037 (Ala. 1981), to
support her argument that mere transfer of the files to the circuit court --
without certification -- is sufficient to establish compliance with § 43-8-
9
1180868, 1180869, 1180915, 1180916
198. As noted by William, this argument is misguided. In Cook, the
Court refused to hold that a probate court's failure to certify the papers
and documents in a will contest defeated jurisdiction under the
predecessor statute to § 43-8-198. 396 So. 2d at 1040. It did so because,
it said, the Court "can tell when jurisdiction attache[s]." Id. On the facts
before it, the Court deemed the circuit court's acknowledged receipt of the
papers on the record and the notation of transfer on the docket sheet to be
sufficient. Id.
But in the 40 years since this Court issued its opinion in Cook, that
case has never been cited in another opinion for the proposition that
certification can be disregarded or relaxed.3 And since 1981, this Court's
3At the time of this decision, Cook has been cited by a court in an
opinion only seven times. In six of those opinions, Cook was cited for
propositions relating to the qualification of expert witnesses. Baker v.
Merry-Go-Round Roller Rink, Inc., 537 So. 2d 1, 3 (Ala. 1988); McKelvy v.
Darnell, 587 So. 2d 980, 985 (Ala. 1991); Levarsque v. Regional Med. Ctr.
Bd., 612 So. 2d 445, 449 (Ala. 1993); Bowden v. State, 610 So. 2d 1256,
1258 (Ala. Crim. App. 1992); Revis v. State, 101 So. 3d 247, 292 (Ala.
Crim. App. 2011); Lane v. State, [Ms. CR-15-1087, May, 29, 2020] ___ So.
3d ___, ____ (Ala. Crim. App. 2020). The remaining opinion, Bolan v.
Bolan, 611 So. 2d 1051 (Ala. 1993), is a will-contest transfer case. But
certification was not the issue there either. See id. at 1054. In Bolan, the
issue was whether the contest and the motion for transfer were filed on
10
1180868, 1180869, 1180915, 1180916
interpretation of § 43-8-198 has become difficult to square with Cook's
disregard of the certification requirement. In adopting a strict-compliance
approach, this Court has not differentiated between the various
requirements of the statute and has gone so far as listing certification as
a "prerequisite[] [that] must be met." Jones, 282 So. 3d at 857. Even the
dissents in Burns and Jones acknowledged the necessity of the
certification requirement. See Burns, 274 So. 3d at 976 (Sellers, J.,
dissenting); Jones, 282 So. 3d at 865 (Sellers, J., dissenting) ("There is no
question that compliance with this statute requires ... certifying papers
filed in the probate court to the circuit court."). So it would be odd -- if not
contradictory -- to require substantial compliance for one procedural
requirement in § 43-8-198 (certification) when the text and the weight of
our decisions from the past 40 years indicate that all requirements of the
statute must be strictly satisfied. Because Cook has been implicitly
overruled by our subsequent decisions mandating that the statute "must
different days. Id. The Court cited broad principles from Cook to support
its holding that the proponents had failed to meet their burden of
demonstrating that the filings were, in fact, made on separate days. Id.
11
1180868, 1180869, 1180915, 1180916
be followed to the letter," Kaller, 480 So. 2d at 539, we hold that mere
transfer of documents by the probate court is not enough to satisfy § 43-8-
198. In accordance with the statutory text, "all papers and documents
pertaining to the contest" must be certified by the probate court.
Conclusion
The circuit court never obtained jurisdiction because the probate-
court records were never certified upon the attempted transfer of the will
contests to the circuit court as is required by § 43-8-198. Thus, the
judgment of the circuit court is void. Since a void judgment will not
support an appeal, McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017),
these appeals are dismissed. We accordingly direct the circuit court to
vacate its judgment in favor of Alice Lynn.
1180868 -- APPEAL DISMISSED.
1180869 -- APPEAL DISMISSED.
1180915 -- APPEAL DISMISSED.
1180916 -- APPEAL DISMISSED.
Parker, C.J., and Bryan and Stewart, JJ., concur.
Shaw, J., concurs in the result.
12
1180868, 1180869, 1180915, 1180916
Bolin, Wise, and Sellers, JJ., dissent.
Mendheim, J., recuses himself.
13
1180868, 1180869, 1180915, 1180916
SHAW, Justice (concurring in the result).
I concur in the result and agree with the main opinion that, for a
circuit court to obtain jurisdiction over a will contest transferred from a
probate court, the probate court "must certify all papers and documents
pertaining to the contest to the clerk of the circuit court." Ala. Code 1975,
§ 43-8-198. Our prior caselaw requires strict compliance with § 43-8-198
in order for a circuit court to obtain jurisdiction. Kaller ex rel. Conway v.
Rigdon, 480 So. 2d 536, 538 (Ala. 1985) ("Because will contest jurisdiction
is statutorily conferred, the procedural requirements of [§ 43-8-198] must
be complied with exactly.").
A will contest is initiated in the probate court by the filing of written
"allegations." Ala. Code 1975, § 43-8-190. A party may make a demand
to transfer the contest to the circuit court "in writing at the time of filing
the initial pleading." § 43-8-198. Ex parte Ricks, 164 So. 3d 1141, 1146
(Ala. 2014) (holding that a proper demand for a transfer under § 43-8-198
is required for the probate court to be divested of jurisdiction). The
probate court must enter an order transferring the contest to the circuit
court; this is required for the circuit court to obtain jurisdiction. Jones v.
14
1180868, 1180869, 1180915, 1180916
Brewster, 282 So. 3d 854, 860 (Ala. 2019) ("The entry of a written order
by the probate court transferring a will contest to the circuit court is an
essential procedural requirement under § 43-8-198 in order for the circuit
court to obtain subject-matter jurisdiction, and the probate court had an
imperative duty to enter such an order.").
Section 43-8-198 further requires that the probate court "must
certify all papers and documents pertaining to the contest to the clerk of
the circuit court." On its face, this could be viewed as a mere ministerial
duty on the part of the probate court. However, as noted above, a will
contest under § 43-8-198 is initiated in the probate court by the filing of
the written "allegations" in that court, that is, the contestant's pleadings
that invoke the will-contest action. The order to transfer alone does not
provide the circuit court with the pleadings that actually initiate the
action. Section 43-8-198 seems to indicate that it is necessary for the
"papers and documents pertaining to the contest," including the pleadings
necessary to invoke jurisdiction over a will contest, to be submitted to the
circuit court for it to obtain jurisdiction. How that is done is specifically
defined: the probate court "must certify" all the papers and documents.
15
1180868, 1180869, 1180915, 1180916
This step is required by § 43-8-198 and "must be complied with exactly."
Kaller, 480 So. 2d at 538.
In Cook v. Cook, 396 So. 2d 1037, 1040 (Ala. 1981), the papers and
documents from the probate court were never certified to the circuit clerk.
This Court conceded that a "formal order and certification is desirable"
but that the circuit clerk had acknowledged receipt of the papers and the
docket sheet indicated that the file had been transferred to the circuit
court. 396 So. 2d at 1040. The Court held: "[T]he purpose of the statute
is met. We can tell when jurisdiction attached in circuit court of the will
contest." Id. I respectfully disagree on both points.
It is necessary that the circuit court receives a complete and correct
record, which a certification would ensure. I cannot conclude that an
uncertified record would satisfy that purpose; an uncertified record that
may not be complete or correct would not allow one to "tell" with the
requisite confidence "when jurisdiction attached." This might not be
required in other contexts, such as when a circuit court transfers a case
to another circuit court, or when a circuit court removes the
administration of an estate from the probate court, but the requirements
16
1180868, 1180869, 1180915, 1180916
for a will-contest transfer, which, according to our caselaw, is necessary
for jurisdiction to attach, are specifically provided here. Although the
Court in Cook held that the "purpose" of the Code section had been met,
its terms were not.
Stated differently, in the context of a will-contest transfer, the
legislature has authorized the imposition of jurisdiction on the circuit
court by the probate court. To accomplish that end, it appears that the
circuit court does not acquire jurisdiction until a transfer order has been
issued by the probate court and the circuit court has received a certified
record, which would necessarily include the important pleadings that
initiate the action. This appears to be different from the statutorily
authorized removal of the administration of an estate, which is an existing
proceeding, from the probate court by the circuit court, where the circuit
court, once assuming jurisdiction by order, may thereafter direct the
probate court to perform the ministerial duty of transferring necessary
documentation. Ala. Code 1975, § 12-11-41. In any event, the
jurisdictional requirements for the movement of matters between the
17
1180868, 1180869, 1180915, 1180916
probate court and the circuit court are within the exclusive purview of the
legislature and can be clarified by that body as it sees fit.
"This Court is duty bound to notice ex mero motu the absence of
subject-matter jurisdiction." Stamps v. Jefferson Cnty. Bd. of Educ., 642
So. 2d 941, 945 n.2 (Ala. 1994) (emphasis added). See also Walker Cnty.
Comm'n v. Kelly, 262 So. 3d 631, 637 (Ala. 2018) (same). The decision in
Cook, in my opinion, incorrectly provides jurisdiction when it is denied by
law.
This Court in Jones, supra, restated the requirements of § 43-8-198
as follows:
"To comply with the statute, the following prerequisites must
be met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested ...; (2)
the party seeking the transfer must file a written demand for
the transfer in the probate court; (3) the transfer demand must
be filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
18
1180868, 1180869, 1180915, 1180916
282 So. 3d at 857-58. I read this discussion as merely summarizing the
Code section and not holding that the items of the list are all jurisdictional
prerequisites.
19
1180868, 1180869, 1180915, 1180916
BOLIN, Justice (dissenting).
I disagree that the circuit court lacked subject-matter jurisdiction
over the will contests because the probate court entered a written order
transferring the will contests to the circuit-court clerk. Therefore, I
respectfully dissent.
Probate courts have original and general jurisdiction over the
probate of wills and over the "granting of letters testamentary and of
administration." § 12-13-1(b)(2), Ala. Code 1975. Under Alabama law, a
circuit court, under specified and explicit conditions, can obtain
subject-matter jurisdiction over the contest of a will not yet admitted to
probate. Section 43-8-190, Ala. Code 1975, allows for a contest to be filed
in the probate court before the probate of a will. Section 43-8-198, Ala.
Code 1975, which must be read in conjunction with 43-8-190, see Bardin
v. Jones, 371 So. 2d 23 (Ala. 1979),4 goes further to provide for the
transfer of a will contest from the probate court, which has original
4Bardin construed former § 43-1-70 and former § 43-1-78, Ala. Code
1975, the predecessor statutes to § 43-8-190 and § 43-8-198, respectively.
20
1180868, 1180869, 1180915, 1180916
jurisdiction of the proceedings, to the circuit court. In my special writing
in Jones v. Brewster, 282 So. 3d 854, 861 (Ala. 2019), I noted that § 43-8-
198 unambiguously describes the requirements necessary for the transfer
of a nonprobated-will contest from the probate court to the circuit court,
for the circuit court to adjudicate the contest issue only. Section 43-8-198
mandates that "the probate court, or the judge thereof, must enter an
order transferring the contest to the circuit court of the county in which
the contest is made, and must certify all papers and documents pertaining
to the contest to the clerk of the circuit court...." The entry of the transfer
order is a statutorily mandated judicial action, the absence of which
results in no jurisdiction being transferred to and conferred in the circuit
court. The certification of papers and documents for the circuit-court clerk
is a ministerial function that neither confirms nor quickens the
jurisdiction of the circuit court.
In the present case, the lack of certification of "papers and
documents" did not deprive the circuit court of subject-matter
jurisdiction. Any failure of the probate court to perform a ministerial
function, such as certifying papers and documents, should be addressed
21
1180868, 1180869, 1180915, 1180916
to the circuit-court clerk for remediation between the probate-court clerk's
office and the circuit-court clerk's office. Similarly, our Supreme Court
Clerk addresses any defects or failings in records presented to this Court
on appeal; those appeals are not immediately dismissed for lack of subject-
matter jurisdiction.
In Jones v. Brewster, supra, this Court set out seven requirements
that must exist to comply with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court[, or the judge
thereof,] must enter a written order transferring the will
contest to the circuit court; (5) the probate court[, or the judge
thereof,] must certify the probate-court record pertaining to
the will contest to the circuit-court clerk; (6) the circuit-court
clerk shall docket the case in the circuit court; and (7) the
circuit court must set the will contest for a trial at a regular or
a special session of court."
282 So. 3d at 857-58 (internal citation omitted). In my opinion, as I
outlined in my special writing in Jones, the only condition that is
necessary from a jurisdictional standpoint to transfer a will contest from
the probate court to the circuit court pursuant to §43-8-198 is the written
22
1180868, 1180869, 1180915, 1180916
transfer order entered by the probate judge. Judges are authorized to
enter orders, while the respective clerks' offices certify and transfer
records.
I recognize that § 43-8-198 must be strictly construed, because
probate statutes were unknown to the common law. The legislature
requires that the certification of papers and documents should be to the
circuit-court clerk. When the issue of a will contest is transferred from
the probate court to the circuit court, after the circuit court determines
whether the will is valid, the administration of the estate is returned to
and conducted by the probate court. When a party removes the
administration of an estate from the probate court to the circuit court
under § 12-11-41, Ala. Code 1975, the filing of a petition for removal in the
circuit court and the entry of an order of removal by that court are the
prerequisites. If the legislature intended for certification of papers and
documents, i.e., a record, to the circuit-court clerk to be a judicial
action/jurisdictional requirement for a will contest, why would the
legislature not make such a requirement necessary for the removal of the
entire administration of the estate?
23
1180868, 1180869, 1180915, 1180916
I recognize that the gradual development of probate law over many
decades has often resulted in specialized procedural traps for both
unwary practitioners and judges. However, the Alabama Law Institute
has commissioned a standing committee to review and propose legislative
changes that, I hope, will make probate law both easier and fairer for all.
Sellers, J., concurs.
24 | June 11, 2021 |
cc8ffab1-065a-4ee3-b309-a0dda4230e4e | Ex parte Fentress Means. | N/A | 1200469 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200469
Ex parte Fentress Means. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Fentress Means v. Greene County
Board of Education) ;
Civil Appeals :
2200007).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
5d8d2409-3a49-4eee-b3de-7345ba71e5c3 | Ex parte William Darryl Eubanks. | N/A | 1200313 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200313
Ex parte William Darryl Eubanks. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: William Darryl Eubanks
v. State of Alabama) (Tuscaloosa Circuit Court: CC-20-17; Criminal Appeals
:
CR-19-0463).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
27b05bf2-8bf3-4637-a271-1b22352d8122 | Ex parte A.D. | N/A | 1200568 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200568
Ex parte A.D. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.D. v. R.P.) (Lauderdale Juvenile Court:
JU-19-553.01; Civil Appeals :
2190881).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
3a44a78f-515f-4cdf-8ee5-ed75768848df | Lauren Shaddix, by and through her parent and next friend, Farah Sims v. Amy Beck | N/A | 1190983 | Alabama | Alabama Supreme Court | Rel: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190983
Lauren Shaddix, by and through her parent and next friend, Farah Sims
v. Amy Beck (Appeal from St. Clair Circuit Court: CV-18-900255).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. | June 11, 2021 |
851dba92-0803-4852-8de6-82eb20909519 | Monty Wayne Ervin v. Patricia Darlene Ervin et al. | N/A | 1190924 | Alabama | Alabama Supreme Court | Rel: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190924
Monty Wayne Ervin v. Patricia Darlene Ervin et al. (Appeal from Houston
Circuit Court: CV-13-900142).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Stewart, and Mitchell, JJ., concur. | June 11, 2021 |
eeaf0fcb-d239-47af-83b2-58bc92bd3e29 | Harris v. Dubai Truck Lines, Inc. | N/A | 1200426 | Alabama | Alabama Supreme Court | Rel: August 20, 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
____________________
1200426
____________________
Dwayne Lavan Harris
v.
Dubai Truck Lines, Inc.
Appeal from Jefferson Circuit Court
(CV-20-902537)
SELLERS, Justice.
Dwayne Lavan Harris appeals from an order of the Jefferson Circuit
Court dismissing his counterclaim against Dubai Truck Lines, Inc.,
pursuant to Rule 12(b)(6), Ala. R. Civ. P. We reverse and remand.
1200426
Facts
On February 18, 2018, three vehicles were involved in an accident
in Jefferson County: a vehicle owned by Dubai and driven by Jose
Martinez, one of Dubai's employees; a vehicle driven by Harris; and a
vehicle driven by Annika Schaefer. Schaefer's vehicle was insured by
State Farm Mutual Automobile Insurance Company. On February 28,
2019, Schaefer and State Farm, as subrogee of Schaefer (hereinafter
referred to collectively as "the State Farm plaintiffs") sued Dubai and
Martinez. According to Dubai, it was not served with the complaint until
June 2020, after the expiration of the applicable two-year statute-of-
limitations period.
On August 7, 2020, Dubai filed an answer denying all liability for
the accident and adding Harris as a third-party defendant pursuant to
Rule 14, Ala. R. Civ. P. Dubai specifically impleaded Harris to allege that
Harris's negligence was the proximate cause of the accident. On
November 13, 2020, Harris filed a counterclaim against Dubai, alleging
that Martinez, Dubai's employee, had been negligent and/or wanton in
causing the accident, that Harris had suffered injuries as a result of the
2
1200426
accident, and that Dubai was vicariously liable for those injuries under
the doctrine of respondeat superior.1
On January 6, 2021, Dubai filed a motion to dismiss the
counterclaim pursuant to Rule 12(b)(6), Ala. R. Civ. P., alleging that
Harris had failed to state a claim upon which relief could be granted
because, it asserted, Harris's counterclaim was barred by the applicable
two-year statute of limitations. Harris filed a response in opposition to
the motion to dismiss, arguing that, because his counterclaim was
compulsory, it was not subject to the statute-of-limitations defense. Dubai
then filed a reply stating generally that it had impleaded Harris "under
a theory of contribution and/or indemnity" and that its claim for
contribution and/or indemnity "sound[ed] in contract." Following a
hearing, the circuit court entered an order granting Dubai's motion to
dismiss. In that same order, the circuit court dismissed Dubai's third-
1Harris asserts that, following the accident, he hired an attorney to
sue Dubai for the injuries he allegedly suffered as a result of the accident.
However, he states that, in July 2020, after the applicable limitations
period had expired, he learned that his attorney had died without having
filed a complaint; thus, Harris says, the filing of the third-party complaint
revived his right to assert a claim against Dubai.
3
1200426
party complaint with prejudice, without stating a reason for doing so.
Thereafter, the State Farm plaintiffs and Dubai entered into a joint
stipulation of dismissal; based on that stipulation, the circuit court
entered an order dismissing the action with prejudice. This appeal
followed.
Standard of Review
This Court reviews a dismissal under Rule 12(b)(6), Ala. R. Civ. P.,
de novo. Hendrix v. United Healthcare Ins. Co. of the River Valley, [Ms.
1190107, Sept. 18, 2020] ___ So. 3d ___ (Ala. 2020). A dismissal for
failure to state a claim upon which relief can be granted is warranted only
when the allegations of the complaint or, in this case, the counterclaim,
viewed most strongly in favor of the pleader, demonstrate that the pleader
can prove no set of facts that would entitle the pleader to relief.
Mikkelsen v. Salama, 619 So. 2d 1382 (Ala. 1993).
Discussion
On appeal, Harris argues that the circuit court erred in dismissing
his counterclaim because, he says, the counterclaim is compulsory in
nature and, thus, not subject to the statute-of-limitations defense raised
4
1200426
by Dubai in its motion to dismiss. We agree. A counterclaim is
compulsory if, among other things not relevant to this appeal, it "arises
out of the transaction or occurrence that is the subject matter of the
opposing party's claim." Rule 13(a), Ala. R. Civ. P.; see also Committee
Comments on 1973 Adoption of Rule 13 ("A counterclaim is compulsory if
there is any logical relation of any sort between the original claim and the
counterclaim."). In this case, the counterclaim is unquestionably
compulsory because the same operative facts, i.e., the circumstances of the
February 2018 accident, serve as the basis of both the third-party
complaint and the counterclaim. Under Alabama law, "[c]ompulsory
counterclaims for money damages are not subject to statutes of limitations
[defenses]." Romar Dev. Co. v. Gulf View Mgmt. Corp., 644 So. 2d 462, 473
(Ala. 1994). Thus, to the extent that the circuit court dismissed the
counterclaim based on statute-of-limitations grounds, it erred in doing so.
In its appellate brief, Dubai contends that it is irrelevant whether the
counterclaim is compulsory because, it says, its third-party complaint was
a legally impermissible attempt under Alabama law to seek indemnity or
contribution from Harris, a joint tortfeasor. If in the third-party complaint
5
1200426
Dubai, as an alleged tortfeasor, sought only to obtain contribution or
indemnity from Harris, then the circuit court did not err in granting the
motion to dismiss because, under those circumstances, Dubai could prove
no set of facts in support of a claim that would entitle it to relief.
In Alabama, third-party practice is governed by Rule 14, Ala. R. Civ.
P., which is entirely procedural in nature; the rule permits a defendant, as
a third-party plaintiff, to cause a summons and complaint to be served
"upon a person not a party to the action who is or may be liable to the
third-party plaintiff for all or part of the plaintiff's claim against the third-
party plaintiff." Rule 14(a). Because Rule 14 is merely procedural, it does
not authorize a third-party plaintiff to assert a claim that would otherwise
be impermissible if it was asserted in a separate, independent action. Rule
14, then, cannot be used to assert a cause of action that would otherwise
be prohibited. It is well settled that Alabama law does not permit
contribution among joint tortfeasors and that, subject to limited
exceptions, joint tortfeasors are not entitled to indemnity from one
another. Ex parte Stenum Hosp., 81 So. 3d 314 (Ala. 2011); see also
Sherman Concrete Pipe Mach., Inc. v. Gadsden Concrete & Metal Pipe Co.,
6
1200426
335 So. 2d 125, 127 (Ala. 1976) ("Contribution ... distributes the loss
equally among all tortfeasors; indemnity seeks to transfer the entire loss
of one tortfeasor to another who, in equity and justice[,] should bear it.").
Rule 14 is simply not available to assert claims for indemnity and/or
contribution from a joint tortfeasor.
Accordingly, we must consider the specific allegations of the third-
party complaint and whether those allegations impermissibly stated a
claim for either contribution or indemnity from a joint tortfeasor. Dubai's
third-party complaint asserted, in pertinent part:
"[6]. On February 11, 2018, on Interstate-59 in Jefferson
County, Alabama, Birmingham Division, Harris negligently
caused or allowed the motor vehicle being driven by him, or the
motor vehicle under his control, to collide with [the] motor
vehicle owned by Dubai, eventually colliding with the vehicle
occupied by State Farm's insured.
"7. Pursuant to Ala. R. Civ. P. 14, Dubai asserts that
Harris is or may be [liable] to Dubai for all or part of State
Farm's claim against Dubai and/or its driver, Jose R. Martinez.
"....
"9. As a proximate consequence of Harris'[s] negligence,
State Farm's insured was caused to suffer injuries and
damages as set forth in State Farm's Complaint.
7
1200426
"WHEREFORE, Dubai demands judgment against Harris
[who] is or may be liable to Dubai for all or part of State Farm's
claim against Dubai and/or its driver, Jose R. Martinez, in an
amount as determined by a ... jury."
Contrary to Dubai's argument, its third-party complaint did not state
a cause of action for either indemnity or contribution. Regarding
contribution, there were no allegations of joint liability between Dubai and
Harris. The third-party complaint did not allege that Martinez, Dubai's
employee, had participated in causing the accident or that Dubai was
vicariously liable for the acts of Martinez and, therefore, was jointly and
severally liable with Harris for the amount of damages claimed by the
State Farm plaintiffs. Rather, in its answer to the complaint, Dubai
denied any and all allegations of wrongdoing in connection with the
accident, and, in its third-party complaint, Dubai alleged that Harris had
caused the accident by negligently allowing his vehicle to collide with
Dubai's vehicle and, eventually, with the vehicle occupied by Schaefer,
State Farm's insured. The third-party complaint also did not set forth any
factual allegations designating any basis for a right to indemnity.
Although, in its reply to Harris's response to its motion to dismiss, Dubai
8
1200426
stated that its claim for indemnity sounded in contract, there is simply no
allegation of a right to indemnity, flowing from a contract or otherwise, in
the third-party complaint itself. Accordingly, there was nothing in Dubai's
third-party complaint indicating that it was seeking contribution or
indemnity from Harris. And, because Harris's counterclaim was
compulsory, it was not subject to a statute-of-limitations defense. Thus,
there was no basis for the circuit court to dismiss Harris's counterclaim
pursuant to Rule 12(b)(6).
Conclusion
The order of the circuit court granting Dubai's motion to dismiss the
counterclaim filed by Harris is reversed, and the cause is remanded to that
court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Bolin and Stewart, JJ., concur.
Parker, C.J., concurs in part and concurs in the result.
Wise, J., concurs in the result.
9
1200426
PARKER, Chief Justice (concurring in part and concurring in the result).
I agree that Dwayne Lavan Harris's counterclaim against Dubai
Truck Lines, Inc. ("Dubai"), was not barred by the statute of limitations.
However, to the extent that the main opinion implies that the viability of
Harris's counterclaim also depended on Dubai's third-party complaint
having stated a valid cause of action, I disagree. As explained in the main
opinion, Harris's counterclaim was compulsory. And "dismissal of a
plaintiff's action will not preclude the defendant from proceeding with an
existing compulsory counterclaim." Vincent v. F. Hood Craddock Mem'l
Clinic, 482 So. 2d 270, 273 (Ala. 1985); see 20 Am. Jur. 2d Counterclaim,
Recoupment, Etc. § 96 (2015) ("If an independent jurisdictional basis exists
for the counterclaim, ... the court may determine the merits of the
counterclaim despite dismissal of the primary claim ...."); 80 C.J.S. Set-off
and Counterclaim § 18 (2010) ("[I]f there is an independent jurisdictional
basis for a counterclaim ..., it is sustainable without regard to what
happens to the original complaint."); cf. Rule 13(i), Ala. R. Civ. P. ("If the
court orders separate trials ..., judgment on a counterclaim ... may be
rendered ..., even if the claims of the opposing party have been dismissed
10
1200426
...."); Smith v. Cowart, 68 So. 3d 802, 806 (Ala. 2011) (stating that
defendants' counterclaims remained pending after plaintiffs' claims were
dismissed). Therefore, the viability of Harris's counterclaim did not depend
on the validity of Dubai's claim.
11 | August 20, 2021 |
ab20ceb3-e419-4764-a834-b9bb05e20416 | Ex parte Caleb Andrew Pledger. | N/A | 1200160 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1200160
Ex parte Caleb Andrew Pledger. PETITION FOR WRIT OF MANDAMUS: CIVIL (In
re: Erin Nicole Johnson and Eric Lee Swann v. Caleb Andrew Pledger and Debra P.
McNiese) (Walker Circuit Court: CV-20-900169).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 25th day of June, 2021.
/ra | June 25, 2021 |
5ca4134e-f75d-4c72-8012-f2879ad4ed81 | Nucor Steel Tuscaloosa, Inc. v. Zurich American Insurance Company et al. | N/A | 1190545 | Alabama | Alabama Supreme Court | Rel: June 25, 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, 2020-2021
____________________
1190545
____________________
Nucor Steel Tuscaloosa, Inc.
v.
Zurich American Insurance Company and Onin Staffing, LLC, a
division of the Onin Group, Inc.
Appeal from Tuscaloosa Circuit Court
(CV-17-900377)
BOLIN, Justice.
Nucor Steel Tuscaloosa, Inc. ("Nucor"), appeals from the Tuscaloosa
Circuit Court's summary judgment in favor of Zurich American Insurance
1190545
Company ("Zurich") and Onin Staffing, LLC, a division of the Onin Group,
Inc. ("Onin"), on claims asserted by Nucor arising from an alleged breach
of an indemnification agreement.
Nucor operates a steel-manufacturing facility in Tuscaloosa. Nucor
had an internship program that offered part-time work to technical-school
students, who, as part of the internship program, earned both academic
credit and work experience relevant to their vocational training. On
August 20, 2010, Nucor entered into a "Temporary Services Agency
Agreement" ("the TSA Agreement") with Onin, a personnel-staffing
agency, whereby Onin was to manage the employment of the technical-
school students selected by Nucor for its internship program, including
providing payroll services, drug testing, and basic orientation regarding
Nucor's policies to the interns. The TSA Agreement provided, in relevant
part:
"1. Scope of Work. [Onin] shall hire, employ and provide
to Nucor personnel to perform the labor for the work ....
"....
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"7. Policies of the Facility. [Onin] shall be solely
responsible for ensuring that [Onin's] Personnel are educated
in the relevant policies of the Facility ....
"....
"10. Indemnification. To the fullest extent allowed by
law, [Onin] shall defend (but only if so elected by Nucor in its
sole discretion), indemnify and hold harmless Nucor ... from
and against all proceedings, claims, damages, liabilities,
losses, costs and expenses (including, but not limited to,
attorneys' fees and expenses, including any attorneys' fees and
expenses incurred by a Nucor indemnified party in enforcing
[Onin's] indemnification obligations hereunder) (collectively,
'damages'), in any manner arising out of, related to, or
resulting from the performance of the work hereunder,
provided that any such damages are caused in whole or in part
by any act or omission of [Onin], any [of Onin's] Personnel, any
subcontractor, or anyone directly or indirectly employed by any
of them, or anyone for whose acts any of them may be liable,
including, but not limited to any negligent, grossly negligent
or willful acts or omissions, and regardless of whether or not
(A) any such damages are caused in part by the concurrent
negligence of a Nucor Indemnified Party or any other acts or
omissions (including, without limitation, any negligent acts or
omissions) of a Nucor indemnified party or (B) a Nucor
Indemnified Party would otherwise be liable for such damages
under a statutory or common law strict liability standard."
A separate section of the TSA Agreement entitled "Temporary Services
Agency Additional Terms and Conditions" provided, in relevant part:
"Safety Policy
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"Safety on the job site is of paramount importance to
Nucor. Accordingly, [Onin] agrees to use its best efforts to
insure the safety of all [of Onin's] Personnel, all other persons
who may be on the job site or affected by the work performed
by [Onin], and any other property on or adjacent to the job
site. [Onin] shall comply with, and give all notices required by,
the applicable provisions of any federal, state, county, and
municipal laws, ordinances, or regulations bearing on the
safety of persons or property or their protection from damage,
injury, or loss, including but not limited to the applicable
requirements of [the Occupational Safety and Health
Administration].."
Finally, pursuant to the "Additional Terms and Conditions" section of the
TSA Agreement, Onin was required to provide comprehensive general-
liability insurance coverage to Nucor in the amount of $2,000,000, with
Nucor being named as an additional insured on the general-liability
policy. Onin provided the general-liability policy as required by the TSA
Agreement. The general-liability policy was issued by Zurich and
contained an aggregate limit of $2,000,000 and a per-occurrence limit of
$1,000,000. The general-liability policy provided, in part:
"Name of Additional Insured Person(s) Or Organization(s):
"Any person or organization who you are required to add as an
additional insured on this policy under a contract or
agreement shall be an insured, but only with respect to that
person's or organization's liability arising out of your
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operations as a 'Staffing Service' or premises owned by or
rented to you.
"Section II - Who Is An Insured is amended to include as an
additional insured the person(s) or organization(s) shown in
the Schedule, but only with respect to liability for 'bodily
injury', 'property damage' or 'personal and advertising injury'
caused, in whole or in part, by your acts or omissions or the
acts or omissions of those acting on your behalf:
"A. In the performance of your ongoing operations."
Nucor was named as an additional insured and as a certificate holder
under the general-liability policy, as required by the TSA Agreement.
Korey Ryan was a student at Shelton State Community College in
2014. Ryan applied for Nucor's internship program through Shelton State.
Ryan was interviewed by Nucor personnel and was accepted into the
internship program. Ryan was then referred to Onin to complete the
administrative requirements for participating in the internship program.
Ryan began his internship with Nucor on August 18, 2014.
Ryan was assigned to the ESAB cutting table at the Nucor facility.
The ESAB cutting table is used to cut large plates of steel with a plasma
torch. The large steel plates are placed on the cutting table by a 30-ton
gantry crane that travels back and forth along a linear floor-rail system
5
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from the center of the Nucor warehouse to a position "straddling" and
directly above the cutting table. The plasma torch is cooled by filtered
water to prevent it from overheating. If the water filter clogs, the plasma
torch will not operate properly. The water filter, with its fittings and
pipes, was located on a wall in the Nucor warehouse. The gearbox of the
gantry crane is located on the same side of the crane as the wall with the
water filter. The gearbox extended 15 1/2 inches from the crane toward
the wall with the water filter. The distance between the bottom of the
gearbox and the concrete floor was 3 5/8 inches. The space between the
gearbox and the wall in the area of the water filter was 27 inches.
However, the space between the gearbox and the wall diminished as the
crane traveled past the water filter because the filter and its fittings and
piping protruded from the wall toward the crane. The gearbox was not
visible from the crane operator's station because the gearbox was located
on the opposite side of the crane. The crane was equipped with flashing
lights and a buzzer that would operate when the crane moved.
Ryan was assigned to work with Ricky Edwards, a Nucor employee,
when he began his internship. Edwards trained Ryan and directed his
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work on the cutting table. Edwards would operate the gantry crane,
moving the steel plates on to and off of the cutting table, while Ryan
operated the cutting table.
On October 23, 2014, Ryan was killed while working in the course
of his duties at the Nucor facility. On the date of Ryan's death, Ryan and
Edwards were tasked with changing out the water filter for the cutting
table because the cutting table was experiencing poor water quality.
Edwards testified that he told Ryan that a sheet of steel needed to be
placed on the cutting table before they changed the water filter. Edwards
stated that he directed Ryan to stand in a certain area in front of the
water filter so that he would be clear of the moving crane. Edwards
testified that he mounted the crane operator's station and picked up the
steel plate. Edwards stated that he then looked to his left before moving
the crane in the opposite direction to make sure Ryan was standing where
he had told him to stand. Edwards testified that he saw the "front of
[Ryan's] hat" and "knew that he could move [the crane] because [Ryan]
was standing where [they] had talked about." Edwards stated that Ryan
was a "very good" employee and that "he did not have any reason not to
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trust him to stand where we had talked about." Edwards stated that he
then turned his attention back to the load and began moving the crane.
Edwards testified that he then heard a yell and stopped the crane.
According to Edwards, he left the crane operator's station to check on
Ryan and found Ryan unconscious and lying on the concrete floor against
a building support beam. The record reflects that Ryan's right work boot
was struck by and became caught underneath the gearbox as the crane
was moving and that Ryan was dragged by the crane along the concrete
floor through the narrow passageway between the crane and the
warehouse wall, where he was crushed to death against a building support
beam.
Edwards testified that, for Ryan's boot to have become caught
underneath the gearbox, Ryan had to have taken a "step out" of the safe
area toward to crane because, Edwards said, the "crane is not going to
curve over there and get him." However, when asked if the location where
Ryan had been asked to stand "was not the best choice," Edwards
responded by stating: "[I]t probably wasn't the best place, but it [was] a
safe place." Further, Edwards admitted that he had never had a
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conversation with Ryan about how the gearbox on the crane protrudes
away from the crane and causes a pinch point with the curb.
It is disputed whether Ryan was actually in the process of changing
the water filter rather than just standing and waiting on the crane to be
moved. An investigative report completed by the Occupational Safety and
Health Administration ("OSHA") following the accident indicated that
Ryan was changing the water filter at the time of the accident.
Additionally, Ryan's mother testified in her deposition taken during the
course of a wrongful-death action against Nucor, which is discussed in
more detail infra, that she was told by Nucor officials at the hospital
following the accident that Ryan was changing the water filter when the
accident occurred. An expert witness offered by Ryan's mother in the
wrongful-death action testified in her deposition that she did not know
whether Ryan had moved into the path of the crane and that she did not
have an explanation for how Ryan came into contact with the crane if he
had been standing where Edwards claimed Ryan had been standing:
"Q. [Nucor's counsel] So you don't have any explanation
for how it contacted him if he had stayed in that place, correct?
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"A. That's correct.
"Q. So would you then conclude that he moved into the
path of the crane?
"A. I don't know that. I don't know. I was not there. I
don't know that.
"Q. Well, you're an engineer. Do you really think that
there's any other explanation than for whatever reason, if he
was standing where its shown in Defendant's 12 and given the
dimensions shown in your drawing, Defendant's 10, how he
could have been contacted if he didn't move into the path of the
crane?
"A. I'm not sure that he knew exactly where to stand. I
know where they said he was standing to begin with. I'm not
sure if he had had enough training to understand that. I'm not
sure if he moved or didn't move. So if he didn't truly
understand where he was supposed to stand to be out of the
way, then the answer to that is I don't know.
"Q. Okay. Wouldn't you conclude from a standpoint of
physics as an engineer that if he was standing where he had
been told and was stationary and he ended up getting
contacted by the crane, he would have to have moved?
"A. There's too many -- there's conflicting information
about where he was, what he was doing, and, you know, when
you start comparing Ricky Edwards's deposition and you start
comparing, you know, the actual OSHA citation, you know,
you're looking at situations where they don't mesh what was
occurring at the time of the incident."
10
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As noted earlier, OSHA conducted an investigation of the accident.
Following the investigation, OSHA cited Nucor for a "serious" safety
violation and fined it $7,000. The OSHA investigation found that, in the
area where Ryan allegedly was told to stand by Edwards, "the employer
did not have adequate passageways or walkways for employees exposed
to moving cranes." Onin was not cited by OSHA following the
investigation. However, Onin was notified by OSHA of the following:
"While the extent of responsibility under the law of staffing
agencies and host employers is dependent on the specific facts
of each case, staffing agencies and host employers are jointly
responsible for maintaining a safe working environment for
temporary workers -- including, for example, ensuring that
OSHA's training, hazard communication, and record keeping
requirements are fulfilled.
"OSHA could hold both host and temporary employers
responsible for the violative condition(s). Temporary staffing
agencies and host employers share control over the worker,
and are therefore jointly responsible for temporary workers'
safety and heath.
"....
"In this case, citations have been issued to Nucor Steel
Tuscaloosa, Inc. To ensure that you are fully aware of the
hazards to which your employees may be exposed, we are
forwarding a copy of the citations to your attention. Please
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review these citations and ensure that steps are taken to
protect your employees at the job site."
On March 26, 2015, Ryan's mother, Donna Cam Ryan, commenced
a wrongful-death action against Nucor. On April 7, 2015, Nucor notified
Onin by letter of the pending litigation and, pursuant to the terms of the
TSA Agreement, requested that Onin "indemnify and hold harmless
[Nucor] from and all claims asserted against it in the wrongful death
complaint."
On June 4, 2015, Zurich issued a letter to Nucor and Onin in which
it questioned whether the general-liability policy afforded coverage for the
claims asserted in the wrongful-death action. Zurich noted that neither
the indemnification provision in the TSA Agreement nor the additional-
insured endorsement contained in the policy applied to in instances when
the alleged "bodily injury" and/or "property damage" was caused by
Nucor’s sole wrongful conduct. Zurich noted that the wrongful-death
complaint did not contain any allegations of wrongdoing by Onin.
However, Zurich noted that, in the April 7, 2015, letter to Onin, Nucor had
stated that "Mr. Ryan caused or contributed to the accident at issue" but
12
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had not provided any facts to support that assertion. Zurich stated that,
if it was determined that the accident giving rise to the wrongful-death
claim had not been caused, in whole or in part, by Onin or Ryan, no
coverage would be afforded under the policy. Because Zurich's
investigation regarding whether coverage for the wrongful-death claim
was afforded under the policy was at a preliminary stage and ongoing,
Zurich informed Nucor and Onin that it would provide a defense to Nucor,
subject to a full and complete reservation of its rights to deny coverage
and to withdraw its defense.
On June 15, 2015, Nucor informed Onin by letter that it disputed
Zurich's position that the general-liability policy would afford no coverage
if Nucor was liable for Ryan's death, and Nucor reiterated its demand that
Onin honor its duty to indemnify Nucor under the terms of the TSA
Agreement, regardless of whether Zurich interpreted the policy to afford
coverage to Nucor. Nucor also informed Onin that, pursuant to the
"Additional Terms and Conditions" section of the TSA Agreement, Onin
had been required to have Nucor named as an additional insured with
coverage limits of at least $2 million per occurrence and that Zurich had
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indicated that the policy Onin had secured naming Nucor as an additional
insured had a policy limit of only $1 million per occurrence. Apparently
Onin did not respond to the letter.
On September 9, 2016, Zurich formally denied coverage to Nucor,
informing Nucor and Onin that the general-liability policy did not afford
coverage to Nucor for the claims presented in the wrongful-death action.
Zurich offered the following analysis for denying coverage:
"[N]either Insured Contract nor Additional Insured indemnity
is available to Nucor where the alleged 'bodily injury' was
caused by Nucor's sole negligent conduct or its wanton
conduct. Rather, these coverages apply only in instances where
Nucor is legally responsible for damages caused, in whole or in
part, by Onin, and then only to the extent of liability arising
out of Onin’s staffing services.
"The [wrongful-death] Complaint does not allege any
wrongdoing by Onin. In her Opposition to Nucor’s Motion for
Summary Judgment, [Ryan's mother] alleges:
"1) Nucor and Ricky Edwards are directly
responsible for [Ryan's] death;
"2) [Ryan] was assigned to Ricky Edwards in the
ESAB/gantry crane area;
"3) During the second month of [Ryan's] internship,
Ricky Edwards told [Ryan] to change the water
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filter while Ricky moved a piece of steel to the
ESAB table with the crane;
"4) Numerous comments in the OSHA report
referred to statements by Nucor individuals that
[Ryan] was changing the water filter when the
accident occurred;
"5) OSHA cited Nucor for a 'Serious' violation of
OSHA regulations because its investigation found
that Nucor 'did not have adequate passageways or
walkways for employees exposed to moving cranes'
in the ESAB area;
"6) Nucor failed to provide proper safeguards and
training to [Ryan] in the crane area, especially
regarding the pinch points on the gantry crane
where the incident occurred;
"7) Nucor failed to correct the design of the gantry
crane, which has a seat for the driver of the crane
in a place where the driver cannot see what is west
of it. Nucor kept this faulty design rather than
reverting back to the original pendant controls or
designing some other method of allowing the driver
to see to the west, such as installing mirrors or
cameras in appropriate places;
"8) Nucor conducted no safety analysis of the
gantry crane area;
"9) Nucor kept Ricky Edwards on the job despite
his blatant, well-documented disregard of safety
procedures in the plant; and
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"10) Since [Ryan's] death, Nucor has established a
lock out/tag out procedure for the water filter area,
fenced and locked the water filter area to minimize
traffic there and changed the gantry crane so it can
only be operated by a driver walking alongside the
crane.
"While Nucor states in its April 7, 2015 letter that 'Mr.
Ryan caused or contributed to the accident at issue,' this
allegation appears to be based on speculation. One witness
testified that he believed Ryan may have lost his balance. In
any event, Mr. Ryan’s contributory negligence would be a
complete bar to liability for the ... negligence claims [asserted
in the wrongful-death action]. Thus, to the extent Nucor is
found negligent, the jury also would necessarily have found
that Mr. Ryan was not contributorily negligent.
"Moreover, under Alabama law, the only damages a jury
might award against Nucor are punitive damages to punish it
for its own actions, not the actions of Onin. Thus, if the jury
renders a verdict against Nucor in the [wrongful-death action],
it would be based entirely on Nucor’s own negligence or
wantonness. The amount of any jury award also would be
based solely on the nature and extent of Nucor’s negligent
and/or wanton misconduct. The jury would be instructed on
damages as follows:
" 'The damages in this case are punitive and not
compensatory. Punitive damages are awarded to
preserve human life, to punish Nucor for its
wrongful conduct, and to deter or discourage it and
others from doing the same or similar wrongs in
the future.
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" 'The amount of damages must be directly related
to Nucor's culpability and by that I mean how bad
[its] wrongful conduct was. You do not consider the
monetary value of Mr. Ryan's life because the
damages are not to compensate [Ryan's] family
from a monetary standpoint because of his death.'
"(Adapted from Alabama Pattern Jury Instruction -
Civil 3rd Edition APJI 11.28.)
"Because any Jury award would necessarily be based solely on
Nucor's wrongful conduct, Nucor's liability would not be
caused, in whole or in part, by an act or omission of Onin
and/or arise out of its staffing operations.
"If Nucor had wanted Onin's duty to indemnify to be
triggered by 'death', Nucor could have included language to
that effect in the Indemnity Provision. However, it did not do
so. Instead, it limited Onin's indemnity obligation to instances
where the damages are 'caused in whole or in part by any act
or omission of [Onin].'
"[Further], the indemnity owed under the Indemnity
Provision is limited to the 'fullest extent allowed by law.' In
construing indemnity provisions, the Alabama Supreme Court
[in City of Montgomery v. JYD International, Inc., 534 So. 2d
592, 595 (Ala. 1988),] has stated:
" '[T]he degree of control retained by the
indemnitee over the activity or property giving rise
to liability is a relevant consideration. This is true
because the smaller the degree of control retained
by the indemnitee, the more reasonable it is for the
indemnitor, who has control, to bear the full
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burden of responsibility for injuries that occur in
that area.'
"The evidence to date demonstrates that Nucor exercised
exclusive control over the activity or area where the accident
occurred. As such, under the circumstances of this case, the
Indemnity Provision is against Alabama public policy and
unenforceable.
"Finally, Alabama law does not permit indemnity for
wanton conduct or punitive damages."
On September 27, 2016, Nucor's defense counsel updated Zurich on
the ongoing litigation in the wrongful-death action, including settlement
negotiations, and requested additional settlement authority. On that
same day, Zurich responded by stating that on September 9, 2016, it had
denied any duty to defend or to provide coverage for Nucor in the
wrongful-death action and that, therefore, it would not fund any
settlement offers.
By letter to Onin and Zurich on October 10, 2016, Nucor again
disputed the grounds on which Zurich had denied coverage and requested
that Onin honor the indemnification provision contained in the TSA
Agreement. Onin did not respond to that request.
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On November 30, 2016, Nucor informed Onin by letter and by e-
mail that mediation of the wrongful-death action had been scheduled and
requested that Onin appear and participate in the mediation. On
December 12, 2016, the day before the scheduled mediation was to take
place, Onin responded to Nucor's request for indemnification by adopting
Zurich's analysis as to why the duty to indemnify Nucor under the
indemnification provision of the TSA Agreement was not triggered and
stating that it would not attend the scheduled mediation. On December
15, 2016, Nucor responded to Onin's letter of December 12, disputing
Onin's basis for refusing to indemnify it but also offering to accept Onin's
participation in ongoing negotiations and mediation of the wrongful-death
action. Onin did not respond to that communication.
On December 27, 2016, Nucor settled the wrongful-death action for
a confidential amount during mediation. Onin did not participate in the
mediation process.
On March 27, 2017, Nucor sued Onin and Zurich based on their
refusal to indemnify Nucor for the settlement of the wrongful-death
action, asserting claims of breach of contract, bad-faith failure to pay an
19
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insurance claim, negligence and wantonness, tortious interference with a
contractual relationship, and unjust enrichment. On May 24 and August
16, 2018, Nucor moved the trial court for a partial summary judgment as
to the breach-of-contract claims asserted against Onin and Zurich. Also on
August 16, 2018, Onin and Zurich moved the trial court for a summary
judgment as to all the claims asserted against them by Nucor. Following
a hearing, the trial court, on March 1, 2020, entered a summary judgment
in favor of Onin and Zurich as to all the claims asserted against them by
Nucor and denied Nucor's partial-summary-judgment motion as to its
breach-of-contract claims against Onin and Zurich. This appeal followed.
Standard of Review
This Court's standard of review relative to a summary judgment is
as follows:
" ' " 'This Court's review of a
summary judgment [or the denial of a
summary-judgment motion] 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
20
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genuine issue of material fact exists
and that the movant is entitled to a
judgment as a matter of law. Rule 56(c),
Ala. R. Civ. P.; Blue Cross & Blue
Shield of Alabama v. Hodurski, 899 So.
2d 949, 952-53 (Ala. 2004). In making
such a determination, we must review
the evidence in the light most favorable
to the nonmovant. Wilson v. Brown, 496
So. 2d 756, 758 (Ala. 1986). Once the
movant makes a prima facie showing
that there is no genuine issue of
material fact, the burden then shifts to
the nonmovant to produce "substantial
evidence" as to the existence of a
genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County,
538 So. 2d 794, 797-98 (Ala. 1989); Ala.
Code 1975, § 12-21-12. "[S]ubstantial
evidence is evidence of such weight and
quality that fair-minded persons in the
exercise of impartial judgment can
reasonably infer the existence of the
fact sought to be proved." West v.
Founders Life Assur. Co. of Fla., 547
So. 2d 870, 871 (Ala. 1989).' "
" 'Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006)
(quoting Dow v. Alabama Democratic Party, 897
So. 2d 1035, 1038-39 (Ala. 2004)).'
"Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
" ' "In order to overcome a defendant's
properly supported summary-judgment motion, the
21
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plaintiff bears the burden of presenting substantial
evidence as to each disputed element of [its] claim."
Ex parte Harold L. Martin Distrib. Co., 769 So. 2d
313, 314 (Ala. 2000).'
"White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 11 (Ala.
2009)."
Laurel v. Prince, 154 So. 3d 95, 97-98 (Ala. 2014).
Discussion
I. Breach-of-Contract Claims
A. Indemnification Provision
Nucor argues that Onin breached its contractual obligation under
the terms of the TSA Agreement to indemnify it for the settlement of the
wrongful-death action. Specifically, Nucor argues that the indemnification
provision of the TSA Agreement was triggered because Ryan was Onin's
employee, Ryan's work at the Nucor facility was performed pursuant to
the terms of the TSA Agreement, and Ryan's movement into the path of
the crane was an act that caused or contributed to the accident regardless
of any negligent act on part of Nucor or its employee, Edwards.
This Court has stated:
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" 'The Alabama Supreme Court has decided that
indemnity agreements between private parties are valid where
"the parties knowingly, evenhandedly, and for valid
consideration, intelligently enter into an agreement whereby
one party agrees to indemnify the other, including indemnity
against the indemnitee's own wrongs, if expressed in clear and
unequivocal language." Industrial Tile, Inc. v. Stewart, 388 So.
2d 171, 176 (Ala.1980). Nevertheless, the Alabama Supreme
Court subsequently clarified how strictly the " 'clear and
unequivocal language' " of the indemnity agreement is to be
construed. Brown Mech. Contractors, Inc. v. Centennial Ins.
Co., 431 So. 2d 932, 945 (Ala.1983) (quoting Industrial Tile,
388 So. 2d at 176). "Agreements by which one party agrees to
indemnify another for the consequences of the other's acts or
omissions are carefully scrutinized," and such an agreement "is
enforceable only if the indemnity provisions are unambiguous
and unequivocal." City of Montgomery v. JYD Int'l, Inc., 534
So. 2d 592, 594 (Ala.1988).
" 'In Brown, the Alabama Supreme Court instructed that
three factors are to be considered by a court interpreting an
indemnity agreement: (1) "contractual language," (2) "identity
of the draftsman of the language," and (3) "the indemnitee's
retention of control." Brown, 431 So. 2d at 946. While
particular language in the indemnity agreement is not
required, the requisite intent of the parties must be clear. See
id. at 945. Ambiguous language in an indemnity agreement is
construed against the drafter. See id. at 946. Finally, we must
consider "the degree of control retained by the indemnitee over
the activity or property giving rise to liability." Brown, 431 So.
2d at 946; see City of Montgomery, 534 So. 2d at 595 ("The
more control the indemnitee retains over the area, the less
reasonable it is for the indemnitor to bear the responsibility
for injuries that occur in that area.").' "
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Royal Ins. Co. of America v. Whitaker Contracting Corp., 824 So. 2d 747,
750-51 (Ala. 2002) (quoting Royal Ins. Co. of America v. Whitaker
Contracting Corp., 242 F.3d 1035, 1041-42 (11th Cir. 2001)). An
important factor in determining the enforceability of an indemnification
provision is the "degree of control retained by the indemnitee over the
activity or property giving rise to liability." Brown Mech. Contractors, Inc.
v. Centennial Ins. Co., 431 So. 2d 932, 946 (Ala. 1983). See also Georgia,
Florida, Alabama Transp. Co. v. Deaton, Inc., 293 Ala. 371, 304 So. 2d 168
(1974) (determining that the lessee of a cargo trailer would be required to
defend and indemnify the owner and lessor of the trailer against a
personal-injury action when the lessee of the trailer had "full and
complete control" of the trailer and, under the lease agreement, the lessor
had no right to control the work of any employee of the lessee handling the
trailer).
In City of Montgomery v. JYD International, Inc., 534 So. 2d 592,
594 (Ala.1988), the plaintiff was employed by JYD International, Inc., a
tenant of the Montgomery Civic Center, as a temporary cash-register
operator. JYD, a merchandiser of oriental rugs, was occupying certain
24
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space in the civic center under a lease that contained an indemnity clause.
JYD had leased the "River Room," and the plaintiff was to perform her
duties there. On the day of the accident giving rise to the action, the
plaintiff entered the civic center from the service entrance at the rear of
the civic center rather than from one of the two primary entrances. The
plaintiff took a "short-cut" through the grand ballroom and, while crossing
the ballroom, slipped on an oily substance that was on the floor. The
plaintiff fell and fractured her arm.
The plaintiff sued both the City of Montgomery ("the City") and JYD,
asserting claims of negligence and wantonness for failing to remedy a
hazard on the floor of the civic center. The City cross-claimed against
JYD, demanding indemnification pursuant to the indemnity clause
contained in the lease agreement for any damages for which the City
would be held responsible as a result of the plaintiff's injuries. The trial
court entered a summary judgment in favor of JYD on the plaintiff's claim
against it. The plaintiff's claim against the City was settled and
dismissed. Following the settlement, both the City and JYD moved for a
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summary judgment on the cross-claim. The trial court entered a summary
judgment in favor of JYD, denying the City's indemnification claim.
In affirming the denial of the indemnification claim, this Court
stated the following:
"Assuming, without deciding, that the language
employed unequivocally and unambiguously expressed the
intent to indemnify [the City] against its own negligence, we
are still confronted with the question of whether as a matter
of public policy such a contract can be enforced with respect to
injuries that occur outside of the immediate area of the leased
premises.
"In Brown Mechanical Contractors, Inc. v. Centennial
Ins. Co., 431 So. 2d 932 (Ala. 1983), we noted that the degree
of control retained by the indemnitee over the activity or
property giving rise to liability is a relevant consideration.
This is true because the smaller the degree of control retained
by the indemnitee, the more reasonable it is for the
indemnitor, who has control, to bear the full burden of
responsibility for injuries that occur in that area. However, the
opposite is also true: The more control the indemnitee retains
over the area, the less reasonable it is for the indemnitor to
bear the responsibility for injuries that occur in that area. In
this case, the mishap took place in an area not within the
actual leased area and, for all that appears from the record, an
area in which the lessee (the indemnitor) had no right of
control. To allow the indemnitee to transfer financial
responsibility to the indemnitor under such circumstances
would be totally at odds with the tort system's incentives to
encourage safety measures. See Industrial Tile, Inc. [v.
Stewart, 388 So. 2d 171, 176 (Ala.1980)] (Jones, J., dissenting).
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Any argument that the agreement simply shifts the burden to
the indemnitor to take such measures is untenable if the
indemnitor has no right to exercise control over the potentially
hazardous area or activity."
JYD Int'l, 534 So. 2d at 595.
Relying upon the decision in JYD International, both Onin and
Zurich argued to the trial court in support of their motions for a summary
judgment that, because Nucor had exercised exclusive control over all
aspects of Ryan's work at its facility, the indemnification provision
contained in the TSA Agreement that Nucor seeks to enforce is void as a
matter of public policy. The trial court relied upon the decision in JYD
International in entering a summary judgment in favor of Onin and
Zurich on the breach-of-contract claims.
In support of their motions for a summary judgment on the breach-
of-contract claims, Onin and Zurich submitted Nucor's own statement of
undisputed facts presented in its motion for a summary judgment in the
wrongful-death action, as well as the deposition and affidavit testimony
adduced in the wrongful-death action upon which that statement of
undisputed facts was based. That evidence establishes that Onin provided
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strictly administrative services to Nucor and that Nucor exercised
complete operational control over its facility and the work performed by
Ryan. The evidence can be summarized as follows: Ryan was interviewed
and selected by Nucor; following Ryan's interview, he was drug tested by
Nucor; when Ryan passed the drug test, he was hired by Nucor, who then
referred Ryan to Onin; Ryan was paid by Onin, which also withheld taxes
and provided workers' compensation insurance; Nucor provided Ryan
with a "new hire" orientation, all safety and employee training, and
personal protection equipment; Ryan signed an agreement to follow
Nucor's code of professional conduct; Ryan was also provided a Nucor
"Team Member Handbook" that he signed, acknowledging that he was a
"Nucor Team Member"; Nucor performed all new-employee screening,
such as providing hearing and medical exams; Nucor conducted all
performance evaluations for the interns; and, finally, Nucor possessed the
authority to determine whether to terminate an internship.
Onin did not have any supervisory employees on site at the Nucor
facility, and no Onin employees supervised Ryan's work while he was at
the Nucor facility. Janet Hernandez, Onin's branch manager in
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Tuscaloosa, was completely unaware of Ryan's duties. Hernandez stated
to the OSHA investigators during its investigation that she had been to
the Nucor facility "but not in the plant work areas. I thought interns did
mostly administrative [work] than actual work in the plant." Onin did not
have any control over the work performed by Ryan or the way in which
Ryan performed the work at the Nucor facility. Ryan's training and work
was supervised and controlled exclusively by other "Nucor Team
Members." Finally, the record is devoid of any evidence whatsoever
indicating that Onin had any control over any portion of the Nucor facility
itself, specifically the area of the facility in which Ryan worked and was
killed.
As Justice Shaw notes in his special writing, Nucor contends that
Onin shared control over certain aspects of its employees' safety and
training under the TSA Agreement. The TSA Agreement required Onin
to be "solely" responsible for ensuring that its personnel were educated in
Nucor's policies. The TSA Agreement also provided that Onin agreed "to
use its best efforts to insure the safety of all [of Onin's] Personnel, all
other persons who may be on the job site or affected by the work
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performed by Onin, and any other property on or adjacent to the job site."
Further, Nucor references the letter from OSHA to Onin regarding its
investigation of the accident, which states that staffing agencies are
jointly responsible for maintaining a safe working environment for
temporary employees. Nucor additionally points to evidence in the record
indicating that Onin failed to exercise its right of control, particularly the
fact that Onin's Tuscaloosa branch manager never visited the work areas
of Nucor's facility because the manager believed that the interns
performed mostly administrative work. Based on these arguments,
Justice Shaw concludes that, under the TSA Agreement, Nucor did not
"retain" exclusive "control" over Ryan's safety or training; rather, he
concludes, the TSA Agreement explicitly reserved for Onin authority over
Ryan's training and safety that it failed and/or did not attempt to exercise,
which left Nucor as the only party actually exercising control over Ryan's
work safety and training.
Although the TSA Agreement provided that Onin would be "solely"
responsible for ensuring that its personnel were educated in Nucor's
policies and also obligated Onin "to use its best efforts to insure the safety
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of all [of Onin's] Personnel," the actual course of dealing between Onin
and Nucor under the TSA Agreement was much different. This Court has
held that
" 'course of dealing' is defined as 'a sequence of previous
conduct between the parties to a particular transaction which
is fairly to be regarded as establishing a common basis of
understanding for interpreting their expressions and other
conduct.' Ala. Code 1975, § 7-1-205(1). A course of dealing is
'relevant not only to the interpretation of express contract
terms, but may [itself] constitute contract terms.' James J.
White & Robert S. Summers, Handbook of the Law Under the
Uniform Commercial Code § 3-3, at 98 (2d ed.1980). Indeed, it
'may not only supplement or qualify express terms, but in
appropriate circumstances, may even override express terms.'
Id."
Marshall Durbin Farms, Inc. v. Fuller, 794 So. 2d 320, 325 (Ala. 2000).
The evidence clearly establishes that, despite the fact that the TSA
Agreement obligated Onin to ensure that its personnel were educated on
Nucor's policies and "to use its best efforts to insure the safety of all [of
Onin's] Personnel," the parties acquiesced to an actual course of dealing
that left Onin performing strictly administrative duties, such as payroll
services, and left Nucor performing all employee supervision and training,
including safety training. As stated above, Ryan was interviewed and
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hired by Nucor. Nucor conducted Ryan's new-employee orientation and
provided all employee training, including safety training. Nucor provided
Ryan with its "Team Member Handbook," which he signed.
In addition, Nucor also controlled every aspect of the work
performed by Ryan. Both Ryan's training and the work he performed was
supervised and controlled exclusively by Nucor. Onin did not have any
supervisory employees at the Nucor facility, and no Onin employees
supervised Ryan's work while he was at the Nucor facility. Onin's
Tuscaloosa branch manager was unaware of Ryan's work duties.
Although the branch manager had been to the Nucor facility, she had not
been in the plant work areas. Nucor had total and exclusive control of its
facility, including the area of the facility in which Ryan was killed.
Nothing in the record before this Court indicates that Nucor
precluded or prevented Onin from exercising its obligations under the TSA
Agreement regarding the training of its personnel on Nucor policies and
its duty to ensure the safety of its personnel. There is nothing in the
record that indicates that Onin raised an objection to its allegedly being
prevented or precluded from performing its obligations under the TSA
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Agreement. However, there is also nothing in the record indicating that
Nucor objected to Onin's failure to perform its obligations under the TSA
Agreement, its failure to maintain a supervisory presence at the Nucor
facility, and its failure to exercise any supervisory role in Ryan's
employment. The failure of either party to object to the other's conduct,
or lack thereof, gives rise to the inference that both parties acquiesced to
their course of dealing under the TSA Agreement, whereby Onin
performed strictly administrative functions and Nucor performed all
supervisory functions, including training Ryan, providing Ryan's safety
training, and exclusively controlling Ryan's work. It would be patently
unfair to require Onin and Zurich to bear the burden under the
indemnification provision contained in the TSA Agreement when the
parties' course of dealing under the agreement did not allow for Onin to
exercise any right of control over the hazardous activity that led to Ryan's
death. See JYD Int'l, 534 So. 2d at 595.
Nucor also points to the letter from OSHA to Onin regarding the
accident investigation to support its contention that Onin shared in the
responsibility of maintaining a safe working environment for Ryan at the
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Nucor facility. As noted earlier, the letter from OSHA to Onin states, in
part:
"While the extent of responsibility under the law of staffing
agencies and host employers is dependent on the specific facts
of each case, staffing agencies and host employers are jointly
responsible for maintaining a safe working environment for
temporary workers -- including, for example, ensuring that
OSHA's training, hazard communication, and record keeping
requirements are fulfilled.
"OSHA could hold both host and temporary employers
responsible for the violative condition(s). Temporary staffing
agencies and host employers share control over the worker,
and are therefore jointly responsible for temporary workers'
safety and health.
"....
"In this case, citations have been issued to Nucor Steel
Tuscaloosa, Inc. To ensure that you are fully aware of the
hazards to which your employees may be exposed, we are
forwarding a copy of the citations to your attention. Please
review these citations and ensure that steps are taken to
protect your employees at that job site."
We note initially that Onin was neither cited nor fined by OSHA in
regard to the accident in which Ryan was killed. Further, although the
letter states that staffing agencies and host employers are jointly
responsible for maintaining a safe working environment for temporary
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workers, the letter qualifies the extent of that responsibility by expressly
stating that it is "dependent on the specific facts of each case." As
explained in detail above, the facts of this case show that Onin's role in
Ryan's employment was strictly administrative and that Onin exercised
no actual control over Ryan's training or the work he performed, and,
importantly, Onin exercised no control over the area of the Nucor facility
where the accident that resulted in Ryan's death occurred. Rather, the
exact opposite is true -- Nucor exercised exclusive supervisory control over
every aspect of Ryan's employment -- from his training to the work he
performed and the manner in which he performed the work. Nucor
retained exclusive control over its facility, including the area where Ryan's
accident occurred. Additionally, this Court questions the reasonableness
of imposing upon Onin, a staffing agency not in the business of producing
steel, the responsibilities of ensuring Ryan's safety by requiring its
representatives to train Ryan on the safety standards and procedures
common to the steel industry; of entering a steel-producing mill and
inspecting the facility for safety hazards; or of exercising some control over
the employee's work, the manner in which the work is performed, or the
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area in which the work is performed. It would appear from the record
before us that Onin would be wholly unqualified to perform such
complicated tasks to a level of acceptable standards common to the steel
industry.
In this case, the indemnification provision required Onin to
indemnify Nucor from losses resulting from work performed under the
TSA Agreement, provided any loss was "caused in whole or in part by any
act or omission of Onin." (Emphasis added.) The undisputed facts
establish that Onin's role in Ryan's employment was strictly
administrative and that Nucor exercised exclusive control over Ryan's
employment and its facility, including the area where the accident
occurred. Accordingly, because Onin's role in Ryan's employment was
strictly administrative in nature while Nucor exercised complete control
over all aspects of Ryan's work, including his training and the area in
which he performed his work, we find that the indemnification provision
contained in the TSA Agreement is inapplicable in this case, and is
unenforceable against Onin. Brown Mech. Contractors, 431 So. 2d at 946.
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B. Additional-Insured Endorsement
Nucor argues that it qualifies as an "additional insured" under the
general-liability policy and that the trial court erred in entering a
summary judgment in favor of Zurich on Nucor's claim alleging breach of
the additional-insured endorsement. Because we have determined that
Onin is not required to indemnify Nucor pursuant to the indemnification
provision in the TSA Agreement because that provision violates public
policy and is, therefore, void, we need not determine whether Nucor is
entitled to coverage under the additional-insured endorsement of the
policy. See Pacific Life Ins. Co. v. Liberty Mut. Ins. Co., (No. Civ. A. 203
CV838-A, July 28, 2005) (M.D. Ala. 2005) (not reported in Federal
Supplement) (quoting Chubb Ins. Co. of Canada v. Mid-Continent Cas.
Co., 982 F. Supp. 435, 438 (S.D. Miss. 1997) (determining that indemnity
agreement controls regardless of clauses in an insurance policy because
"[a] contrary conclusion 'would render the indemnity contract between the
insureds completely ineffectual and would obviously not be a correct
result, for it is the parties' rights and liabilities to each other which
determine the insurance coverage; the insurance coverage does not define
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the parties' rights and liabilities one to the other' "). Accordingly, we
affirm the summary judgment entered in favor of Zurich on Nucor's
breach-of-contract claim relating to the additional-insured endorsement.
II. Bad-Faith Claim
Nucor asserted a bad-faith claim against Zurich arising out of
Zurich's denial of coverage for the claim asserted in the wrongful-death
action. Nucor argues that the trial court erred in entering a summary
judgment in favor of Zurich on its bad-faith claim. In order to prevail on
a bad-fath claim, the following elements must be established:
" '(a) an insurance contract between the parties and a breach
thereof by the defendant;
" '(b) an intentional refusal to pay the insured's claim;
" '(c) the absence of any reasonably legitimate or arguable
reason for that refusal (the absence of a debatable reason);
" '(d) the insurer's actual knowledge of the absence of any
legitimate or arguable reason;
" '(e) if the intentional failure to determine the existence of a
lawful basis is relied upon, the plaintiff must prove the
insurer's intentional failure to determine whether there is a
legitimate or arguable reason to refuse to pay the claim.' "
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Crook v. Allstate Indem. Co., [Ms. 1180996, June 26, 2020] __ So. 3d __,
__ (Ala. 2020) (quoting National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d
179, 183 (Ala. 1982)). Additionally,
"the tort of bad faith requires proof of the third element,
absence of legitimate reason for denial: 'Of course, if a lawful
basis for denial actually exists, the insurer, as a matter of law,
cannot be held liable in an action based upon the tort of bad
faith.'[Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924
(Ala. 1981) (emphasis added). As we held in Weaver [v.
Allstate Insurance Co., 574 So. 2d 771 (Ala. 1990)], where the
'[insurer's] investigation established a legitimate or arguable
reason for refusing to pay [the insured]'s claim, [that] is all
that is required.' 574 So. 2d at 774. See also Bowers v. State
Farm Mut. Auto. Ins. Co., 460 So. 2d 1288, 1290 (Ala. 1984)
('[W]here a legitimate dispute exists as to liability, ... a tort
action for bad faith refusal to pay a contractual claim will not
lie.')."
State Farm Fire & Cas. Co. v. Brechbill, 144 So. 3d 248, 258 (Ala. 2013).
Zurich provided Nucor with a defense and monitored the wrongful-
death action as it was being litigated. On September 9, 2016, Zurich
formally notified Nucor that it was denying coverage for the wrongful-
death claim, basing its denial on several stated reasons, including that the
indemnification provision violated public policy and was, therefore, void
because the evidence demonstrated that Nucor had exercised exclusive
39
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control over the activity being performed by Ryan and the area where the
accident occurred. As discussed above, this Court agrees that the
indemnification provision contained in the TSA Agreement violates public
policy and is, therefore, void because the evidence established that Nucor
had exercised exclusive control over Ryan's work activity and the area of
the Nucor facility where the accident occurred. Thus, Zurich in fact had
a legitimate reason for denying Nucor coverage. Accordingly, the trial
court did not err in entering a summary judgment in favor of Zurich on
Nucor's bad-faith claim.
III. Negligence and Wantonness Claims
Nucor argues that the trial court erred in entering a summary
judgment on its negligence and wantonness claims asserted against Onin
and Zurich. Nucor alleged in its complaint that Onin negligently,
recklessly, and/or wantonly performed its work under the TSA Agreement;
failed to indemnify it under the terms of the TSA Agreement; and failed
to procure liability insurance as required under the TSA Agreement.
Nucor alleged that Zurich negligently, recklessly, and/or wantonly failed
to provide it insurance coverage.
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The "mere failure to perform a contractual obligation is not a tort,
and it furnishes no foundation for an action on the case." C & C Prods.,
Inc. v. Premier Indus. Corp., 290 Ala. 179, 186, 275 So. 2d 124, 130 (1974).
See also Gustin v. Vulcan Termite & Pest Control, Inc., [Ms. 1190255, Oct.
30, 2020] ___ So. 3d ___, ___ (Ala. 2020). "Failed expectations as to
performance of a contract usually result only in a remedy for breach of
contract." Exxon Mobil Corp. v. Alabama Dep't of Conservation & Nat.
Res., 986 So. 2d 1093, 1130 (Ala. 2007)(Lyons, J., concurring in part and
concurring in the result).
"There is, in Alabama, no tort liability for nonfeasance for
failing to do what one has promised to do in the absence of a
duty to act apart from the promise made. On the other hand,
misfeasance, or negligent affirmative conduct in the
performance of a promise generally subjects an actor to tort
liability as well as contract liability for physical harm to
persons and tangible things. See C & C Products, Inc. v.
Premier Industrial Corp., 290 Ala. 179, 186, 275 So. 2d 124
(1972); and Garig v. East End Memorial Hospital, 279 Ala.
118, 182 So. 2d 852 (1966)."
Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107, 114 (Ala. 1985).
Nucor argues on appeal that the admission by Hernandez, Onin's
Tuscaloosa branch manager that she had never visited the area of the
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facility where Ryan was engaged in work constitutes exactly the type of
negligent performance of Onin's contractual duties that would give rise to
tort liability. Nucor contends that Hernandez failed to perform an alleged
duty under the TSA Agreement -- namely, to inspect Ryan's work and the
area of the Nucor facility where Ryan performed his work. The alleged
failure to perform a duty to inspect does not amount to "affirmative
conduct in the performance of a promise" under a contract. Morgan, 466
So. 2d at 114 (emphasis added). Misfeasance giving rise to tort liability
under a contract requires the negligent doing of some act. Id. The alleged
failure to perform an inspection is merely an omission or a failure to
perform a promise under the TSA Agreement and does not give rise to
extracontractual liability on the part of Onin.
Nucor next argues that, in addition to its contractual obligations,
Onin owed it a duty of good faith and fair dealing that it breached by
refusing to respond to Nucor's repeated requests for indemnification once
the wrongful-death action was commenced. Nucor contends that the
record establishes a "total abdication" on the part of Onin of its duty to
indemnify that rises to the level of negligence or worse. Again, like the
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alleged duty to inspect, the failure to indemnify Nucor does not constitute
"affirmative conduct in the performance of a promise" under the TSA
Agreement. The failure to indemnify is not an affirmative act but is
merely an omission or a failure to perform some act under the TSA
Agreement and does not give rise to extracontractual liability on the part
of Onin. Further, with respect to Nucor's contention that Onin's refusal to
indemnify it was negligent or a breach of the duty of good faith and fair
dealing, such refusal does not give rise to extracontractual liability on the
part of Onin because this Court, as discussed above, has determined that
the indemnification provision contained in the TSA Agreement violates
public policy and is, therefore, void. In the absence of a valid duty to
provide indemnification in accordance with the TSA Agreement, Onin's
refusal to do so cannot be negligent or wanton.
Nucor next argues that an insurer owes a duty to act honestly and
in good faith in dealing with its insured and that that duty includes the
a duty to use ordinary care and prudence when evaluating and acting
upon settlement opportunities. See Carrier Express, Inc. v. Home Indem.
Co., 860 F. Supp. 1465, 1478-79 (N.D. Ala. 1994). Nucor contends that
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Zurich negligently and/or wantonly breached this duty of good faith in
dealing with it when it rescinded its authority to settle the wrongful-death
action and based on the alleged "dishonesty of its evaluation of [Nucor's]
defenses in the [underlying wrongful-death] [l]itigation]." This claim rests
solely on Zurich's alleged failure to provide insurance coverage to pay for
the settlement of the wrongful-death action and is merely a restatement
of Nucor's breach-of-contract claim against Zurich, which we have
previously determined fails.
Based on the foregoing, we conclude that the trial court properly
entered a summary judgment in favor of Onin and Zurich on Nucor's
negligence and wantonness claims.
IV. Tortious-Interference-with-a-Contractual-Relationship Claims
Nucor argues that the trial court erred in entering a summary
judgment in favor of Onin and Zurich on its tortious-interference claims.
Nucor alleged in its complaint that both Onin and Zurich had
intentionally acted in a way with each other that caused a breach of each
other's contractual duties. In order to prevail on a claim of tortious
interference, a plaintiff must establish: "(1) the existence of a protectible
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business relationship; (2) of which the defendant knew; (3) to which the
defendant was a stranger; (4) with which the defendant intentionally
interfered; and (5) damage." White Sands Grp., L.L.C. v. PRS II, LLC, 32
So. 3d 5, 14 (Ala. 2009). " 'After proving the existence of a contract, it is
essential to a claim of tortious interference with contractual relations that
the plaintiff establish that the defendant is a "third party," i.e., a
"stranger" to the contract with which the defendant allegedly interfered.' "
BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d 203, 212 (Ala. 2001)
(quoting Atlanta Mkt. Ctr. Mgmt. Co. v. McLane, 269 Ga. 604, 608, 503
S.E.2d 278, 282 (1998)). "This is so, because 'a party to a contract cannot,
as a matter of law, be liable for tortious interference with the contract.' "
BellSouth, 814 So. 2d at 212 (quoting Lolley v. Howell, 504 So. 2d 253,
255 (Ala.1987)). In Waddell & Reed, Inc. v. United Investors Life
Insurance Co., 875 So. 2d 1143, 1157 (Ala. 2003), this Court stated:
"One cannot be guilty of interference with a contract even if
one is not a party to the contract so long as one is a participant
in a business relationship arising from interwoven contractual
arrangements that include the contract. In such an instance,
the participant is not a stranger to the business relationship
and the interwoven contractual arrangements define the
participant's rights and duties with respect to the other
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individuals or entities in the relationship. If a participant has
a legitimate economic interest in and a legitimate relationship
to the contract, then the participant enjoys a privilege of
becoming involved without being accused of interfering with
the contract."
Here, Onin and Nucor entered into the TSA Agreement that
contained the indemnification provision requiring Onin to indemnify
Nucor under certain circumstances. The "Additional Terms and
Conditions" section of the TSA Agreement also required Onin to provide
comprehensive general-liability insurance coverage to Nucor and to name
Nucor as an additional insured on the general-liability policy. To satisfy
its obligation under the TSA Agreement to provide general-liability
insurance, Onin procured a general-liability policy issued by Zurich, which
named Nucor as an additional insured. Without the existence of the TSA
Agreement between Nucor and Onin, Nucor would have no potential claim
upon the general-liability policy between Onin and Zurich. Because any
contractual obligations between Nucor, Onin, and Zurich all arise from
these interwoven contractual arrangements, neither Onin nor Zurich can
be described as a stranger to the contractual or business relationship the
other shares with Nucor. Accordingly, we conclude that the trial court
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properly entered a summary judgment in favor of Onin and Zurich on the
tortious-interference claims.
V. Unjust-Enrichment Claims
Last, Nucor argues that the trial court erred in entering a summary
judgment in favor of Onin and Zurich on its claims asserting unjust
enrichment. Specifically, Nucor contends that it paid in good faith sums
of money for indemnification and insurance coverage that it was denied
and did not receive. To prevail on a claim of unjust enrichment, the
plaintiff must show that the " 'defendant holds money which, in equity and
good conscience, belongs to the plaintiff or holds money which was
improperly paid to defendant because of mistake or fraud.' " Dickinson v.
Cosmos Broad. Co., 782 So. 2d 260, 266 (Ala. 2000) (quoting Hancock-
Hazlett Gen. Constr. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala.1986)).
"The doctrine of unjust enrichment is an old equitable remedy permitting
the court in equity and good conscience to disallow one to be unjustly
enriched at the expense of another." Battles v. Atchison, 545 So. 2d 814,
815 (Ala. Civ. App. 1989).
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We note that Zurich did initially provide Nucor with a defense to the
wrongful-death action pursuant to the terms of the additional-insured
endorsement to the general-liability policy. Further, Nucor's argument for
equitable relief erroneously equates its requests for indemnification and
the payment of an insurance benefit with an entitlement to
indemnification and payment of an insurance benefit. Again, as discussed
above, the particular facts and circumstances underlying the wrongful-
death action did not trigger the indemnification provision and the
payment of an insurance benefit; rather, the facts and circumstances
voided the indemnification provision altogether. The failure of the
particular facts and circumstances to trigger the indemnification
provision and the payment of the insurance benefit does not render
inequitable Onin's or Zurich's receipt of money under the TSA Agreement
or the general-liability policy. " 'In the absence of mistake or misreliance
by the donor, or wrongful conduct by the recipient, the recipient may have
been enriched, but he is not deemed to have been unjustly enriched. See
Restatement of Restitution: Quasi Contracts and Constructive Trusts § 2
at 16 [(1937)]. See generally F. Woodward, The Law of Quasi Contracts
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(1913).' " Carroll v. LJC Defense Contracting, Inc., 24 So. 3d 448, 459 (Ala.
Civ. App. 2009) (quoting Jordan v. Mitchell, 705 So. 2d 453, 458 (Ala. Civ.
App. 1997)).
Because we have determined that Onin and Zurich were not unjustly
enriched, the trial court was correct in entering a summary judgment on
Nucor's claims seeking equitable relief based on a theory of unjust
enrichment.
Conclusion
We conclude that the trial court properly entered a summary
judgment on each claim asserted by Nucor and that the summary
judgment is due to be affirmed.
AFFIRMED.
Wise, Sellers, and Stewart, JJ., concur.
Mendheim, J., concurs in the result.
Parker, C.J., concurs in part, concurs in the result in part, and
dissents in part.
Shaw and Bryan, JJ., concur in the result in part and dissent in
part.
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Mitchell, J., recuses himself.
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PARKER, Chief Justice (concurring in part, concurring in the result in
part, and dissenting in part).
I dissent from the main opinion's "Discussion" section Parts I and V
(breach-of-contract and unjust-enrichment claims) because I agree with
Justice Shaw's analysis regarding why the indemnification provision in
the "Temporary Services Agency Agreement" ("the TSA Agreement") did
not violate public policy. Further, like Justice Shaw, I question the
correctness of City of Montgomery v. JYD International, Inc., 534 So. 2d
592 (Ala. 1988), although for a different reason. I am not persuaded that
JYD is wrong merely because an indemnification provision does not affect
an indemnitee's safety incentives as to activities that are not within the
scope of the provision. JYD's rationale necessarily focused on how an
indemnification provision may affect the indemnitee's incentives as to
activities that are within the scope of the provision. And the fact that a
particular indemnitee might not have consciously based its safety
decisions on its indemnity rights does not undermine the rationale of JYD,
which was based on systemic economic incentives that do not depend on
any individual's consciousness of indemnity.
51
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I believe that there is a more fundamental reason to question JYD:
by holding that these indemnification provisions violate public policy, JYD
substitutes judges' allocation of economic risks and resulting safety
incentives (via tort law) for the parties' own allocation (via contract law).
In essence, JYD says, "We judges like the way tort law allocates
incentives, and we're not going to let parties, even in arm's-length and
nonadhesion contracts, opt out by reallocating those incentives among
themselves." In my view, that perspective fails to give sufficient weight to
principles of freedom of contract. These principles generally allow parties
to shift tort-based risk by mutual consent. So we ought to rethink JYD,
given an appropriate case and appropriate argument.
In addition, I disagree with the main opinion's rationale that the
indemnification provision was unenforceable under JYD because the duty
of Onin Staffing, LLC ("Onin"), to control Korey Ryan was eliminated or
waived by the parties' "course of dealing." 1 As Justice Shaw alludes to,
1By "course of dealing," the main opinion seems to mean the parties'
conduct under the contract at issue (the TSA Agreement). But the
commonly accepted term for that concept is "course of performance." See
Black's Law Dictionary 444 (11th ed. 2019) (defining "course of
52
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summary-judgment movants Onin and Zurich American Insurance
Company have not argued, below or here, that the parties' course of
conduct eliminated or waived Onin's contractual duty to control Ryan.
Thus, by affirming on the basis of this rationale, the main opinion
disregards the due-process rights of Nucor Steel Tuscaloosa, Inc. See
Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found.,
P.C., 881 So. 2d 1013, 1020 (Ala. 2003).
Further, the main opinion's "question[ing]" of the "reasonableness"
of the TSA Agreement's requirement that Onin, as a staffing agency,
performance" as "[a] sequence of previous performance by either party
after an agreement has been entered into, when a contract involves
repeated occasions for performance and both parties know the nature of
the performance and have an opportunity to object to it" (emphasis
added)); see, e.g., Progressive Emu, Inc. v. Nutrition & Fitness, Inc. (No.
2:12-CV-01079-WMA June 7, 2013) (N.D. Ala. 2013) (not reported in
Federal Supplement) (" 'course of performance,' that is, the parties'
conduct pertinent to the contract term in question"). "Course of dealing,"
on the other hand, generally refers to the parties' conduct in other
transactions before or besides the contract at issue. See Black's Law
Dictionary 444 (defining "course of dealing" as "[a]n established pattern
of conduct between parties in a series of transactions (e.g., multiple sales
of goods over a period of years)" (emphasis added)); Ex parte Coussement,
412 So. 2d 783, 786 (Ala. 1982) ("A course of dealing is shown through
prior transactions of the parties.").
53
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exercise control over Ryan's safety, ___ So. 3d at ___, is beside the point.
Parties are free to contractually assume responsibilities that they cannot
adequately perform; it is not the role of courts to rescue parties from bad
bargains. Regardless of what we may think of the "reasonableness" of the
duty that Onin took upon itself, judges in contract cases are not free to act
as roving fairness police.
I concur in the result as to the main opinion's "Discussion" section
Part II (bad-faith claim) because the insurance company's public-policy
argument, while incorrect in my view, did not equate to bad faith. I concur
in the result as to Part III (negligence and wantonness claims) because,
as the main opinion states, failure to perform a contractual duty is not a
tort. And I concur in Part IV (tortious-interference claims).
54
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SHAW, Justice (concurring in the result in part and dissenting in part).
I disagree that the indemnification provision at issue in this case is
unenforceable because it violates public policy; therefore, to the extent
that the main opinion holds otherwise, I respectfully dissent.
In a contract called the "TSA Agreement," Onin Staffing, LLC
("Onin"), agreed, among other things, to provide interns to work in a
facility operated by Nucor Steel Tuscaloosa, Inc. ("Nucor"). The TSA
Agreement contained an indemnification provision. Boiled down to its
essence, it stated that Onin would defend Nucor from and indemnify
Nucor for all "damages" related to the work performed under the TSA
Agreement, provided that those damages were caused in whole or in part
by any act of Onin or Onin's personnel and regardless of whether any such
damages were also caused in part by Nucor. In this context, "damages"
under the indemnification provision would include damages arising from
a lawsuit against Nucor. Zurich American Insurance Company ("Zurich")
issued an insurance policy to Onin naming Nucor as an additional
insured.
55
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Korey Ryan, who was employed by Onin, worked as an intern at
Nucor's facility. He was killed in an accident while working at Nucor's
facility. A wrongful-death action was commenced against Nucor by the
representative of Ryan's estate. Nucor demanded that Onin defend Nucor
in the suit, and indemnify Nucor for any resulting damages, and that
Zurich provide insurance coverage. Ultimately, Onin and Zurich both
refused. The wrongful-death action was settled, and Nucor commenced
a separate lawsuit against Onin and Zurich. The trial court entered a
summary judgment in favor of Onin and Zurich, and Nucor appeals.
"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
56
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is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
Nucor presented substantial evidence that, when viewed in the light
most favorable to Nucor, tended to show that Ryan contributed to the
injuries that caused his death; specifically, testimony by Ryan's coworker
indicated that Ryan had been told to stand in a particular area where, if
he had remained there, he would not have been injured in the accident.
For the accident to have occurred, Ryan would have had to have violated
that instruction. Nucor alleges that because Ryan's actions, as an
employee of Onin, purportedly caused the resulting "damages," at least in
part,2 the indemnification provision was triggered. Nucor, as the
indemnitee, thus contends that Onin, as the indemnitor, was required
2Whether Ryan actually contributed to his injuries is disputed, but,
at this point, Nucor was required only to produce substantial evidence on
this issue to create a genuine issue of material fact. Dow, supra.
57
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under the indemnification provision to defend and indemnify Nucor in the
wrongful-death action.
Onin, on the other hand, challenges whether the indemnification
provision violated public policy. Generally, "if the parties knowingly,
evenhandedly, and for valid consideration, intelligently enter into an
agreement whereby one party agrees to indemnify the other, including
indemnity against the indemnitee's own wrongs, if expressed in clear and
unequivocal language, then such agreements will be upheld." Industrial
Tile, Inc. v. Stewart, 388 So. 2d 171, 176 (Ala. 1980).3 In certain
circumstances, however, an "agreement by which the indemnitee attempts
to obtain indemnity for its own negligence ... is void as against public
policy." City of Montgomery v. JYD Int'l, Inc., 534 So. 2d 592, 595 (Ala.
1988). One circumstance considered in determining whether an
indemnification provision is void as against public policy, which is argued
in this case, is the degree of control retained by an indemnitee:
3I see no merit in any argument that the indemnification provision
in this case did not comply with these requirements.
58
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"In Brown Mechanical Contractors, Inc. v. Centennial
Ins. Co., 431 So. 2d 932 (Ala. 1983), we noted that the degree
of control retained by the indemnitee over the activity or
property giving rise to liability is a relevant consideration.
This is true because the smaller the degree of control retained
by the indemnitee, the more reasonable it is for the
indemnitor, who has control, to bear the full burden of
responsibility for injuries that occur in that area. However, the
opposite is also true: The more control the indemnitee retains
over the area, the less reasonable it is for the indemnitor to
bear the responsibility for injuries that occur in that area. In
this case, the mishap took place in an area not within the
actual leased area and, for all that appears from the record, an
area in which the lessee (the indemnitor) had no right of
control. To allow the indemnitee to transfer financial
responsibility to the indemnitor under such circumstances
would be totally at odds with the tort system's incentives to
encourage safety measures. See Industrial Tile [, Inc. v.
Stewart, 388 So. 2d 171, 176 (Ala. 1980)] (Jones, J.,
dissenting). Any argument that the agreement simply shifts
the burden to the indemnitor to take such measures is
untenable if the indemnitor has no right to exercise control
over the potentially hazardous area or activity."
JYD Int'l, 534 So. 2d at 595. Onin argues that Nucor had control to such
an extent that it would violate public policy for Onin to bear the
responsibility for Ryan's injuries, thus rendering the indemnification
provision void and unenforceable.4 I disagree.
4Although the Court in Brown Mechanical Contractors, Inc. v.
Centennial Insurance Co., 431 So. 2d 932 (Ala. 1983), characterized such
59
1190545
Nucor contends that, under the terms of the TSA Agreement, Onin
shared responsibility, i.e., control, over aspects of its employees' safety
while they worked at Nucor's facility. Specifically, the TSA Agreement
required Onin to be "solely" responsible for ensuring that its personnel
were educated in Nucor's policies, which presumably include safety
policies. Specifically as to safety, the TSA Agreement also provided that
Onin agreed "to use its best efforts to insure the safety of all [of Onin's]
Personnel, all other persons who may be on the job site or affected by the
work performed by [Onin], and any other property on or adjacent to the
job site." Additionally, Nucor points to a letter from the Occupational
Safety and Health Administration to Onin regarding the accident that
states that staffing agencies are jointly responsible for maintaining a safe
working environment for temporary employees. Thus, the TSA
Agreement itself did not "retain" for Nucor exclusive "control" over
personnel safety, and Onin cannot say it had "no right to exercise control
indemnity provisions as "unenforceable," JYD Int'l, applying Brown,
labeled them as void as against public policy. I see no material distinction
between these designations.
60
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over the potentially hazardous area or activity." JYD Int'l, 534 So. 2d at
595. Further, Nucor points to evidence in the record indicating that Onin
failed to exercise that right to control. Onin's Tuscaloosa branch manager
never visited the work areas of Nucor's facility because the manager
erroneously believed that the interns performed mostly administrative
work. The manager apparently did not know the work the interns
performed or where they worked in the facility, and thus no material
action to ensure the interns' safety in those areas was taken.
Although the evidence in the record indicates that Nucor provided
all of Ryan's job and safety training and supervised him and his work,
under the TSA Agreement it did not "retain" exclusive control over Ryan's
safety or training. Instead, Onin agreed to educate Ryan as to Nucor's
policies and to use "its best efforts" to ensure Ryan's safety. As best as I
can tell, the record before us indicates that Onin made no efforts to do this
or even to understand what Ryan did at Nucor's facility or where he
worked in it. Onin contends in its brief "that Nucor precluded Onin from
exercising any management or control over Ryan's work at Nucor's
facility"; however, no evidence of Nucor's preventing or precluding Onin
61
1190545
from ensuring the safety of its personnel is cited. Instead, Onin simply
details the supervision and training that Nucor undertook. Viewing the
evidence in the light most favorable to Nucor, as the nonmovant, Dow,
supra, none of this demonstrated that Onin was precluded from training
Ryan or ensuring his safety, which, the evidence suggests, Onin did not
attempt.
The TSA Agreement did not "retain" for Nucor exclusive control over
safety and training -- it explicitly provided authority to Onin. Onin did
not actually undertake to exercise any such control, which left Nucor as
the only party actually exercising control. There is a difference between
an indemnitee's retaining control and an indemnitee's exerting control
because the indemnitor did not actually exercise the joint control it was
authorized to assert.
As noted above, the proposition underlying the rationale disallowing
an indemnitee from transferring financial responsibility to the indemnitor
(in certain circumstances) is that it "would be totally at odds with the tort
system's incentives to encourage safety measures." JYD Int'l, 534 So. 2d
at 595. Holding that the indemnification provision in this case is against
62
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public policy because it reduced Nucor's financial liability and thus any
motive to provide for safety, at least where Onin's personnel or work are
concerned, would not serve that public policy. Onin had joint duties to
provide for safety, which, for all that appears, it completely failed to
exercise. The result of invalidating the indemnification provision is to
ratify Onin's failure to perform its own safety duties and to remove Onin's
own "incentives to encourage safety measures." It encourages indemnitors
to disregard their own duties to provide safety measures because, if they
do so, they might make themselves subject to an indemnification
provision. This does not provide "incentives to encourage safety
measures"; instead, it actually removes such incentives from one party
who has contractually agreed to undertake safety measures.
Additionally, I have serious concerns as to the correctness of the
holding of JYD Int'l, supra. In the words of Industrial Tile, if the parties
to a contract have "knowingly, evenhandedly, and for valid consideration,
intelligently" entered into an indemnification agreement that is "clear and
unequivocal," then it should be enforced. 388 So. 2d at 176. Even with an
indemnification agreement, an indemnitee still has "incentives to
63
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encourage safety measures" for parties not related to the agreement. For
example, in the instant case, indemnification is triggered only when
damages are related to the work performed under the TSA Agreement and
are caused in whole or in part by any act of Onin. The incentives for
Nucor to encourage safety at its facility generally, for its own employees,
and for activities unrelated to the TSA Agreement or Onin, were not
removed by the indemnification provision. Further, nothing suggests at
this point in the case that any purported failure by Nucor to provide for
Ryan's safety is traced to any protection from financial liability found in
the indemnification provision; that is, there is no allegation or evidence of
a safety failure at the location of the accident or related to the work that
Ryan was performing that existed because Onin personnel were involved
and Nucor knew it would not be liable for such failure. Nevertheless, as
noted above, I do not believe that the policy preferences expressed in this
Court's prior decisions that would require voiding an indemnification
provision and holding it unenforceable have yet been shown to apply in
this case.
64
1190545
I also disagree that the evidence in this case clearly establishes that
the parties acquiesced to a course of dealing or performance that altered
the contractual terms and relieved Onin of its duty to ensure Ryan's
safety. Another way to view the evidence is that Onin simply disregarded
its obligations, but that Nucor fulfilled its own. The standard of review on
a motion for a summary judgment requires this Court to view the evidence
in the light most favorable to Nucor, as the nonmovant. Dow, supra.
Assuming that Ala. Code 1975, § 7-1-303 (formerly Ala. Code 1975,
§ 7-1-205), a provision of Alabama's version of the Uniform Commercial
Code ("the UCC") addressing "course of performance" and "course of
dealings," applies in this case,5 such theory did not form a basis for Onin's
motion for a summary judgment. Onin did not address its own obligations
to provide for Ryan's safety or argue that the contractual terms were
changed to remove those obligations. On appeal, Onin instead claimed
that it was precluded from exercising its obligations; as noted above, it
provided no evidence, when viewed in the light most favorable to Nucor,
5It is not clear to me that the TSA Agreement is one of the types of
contracts regulated under the UCC, Title 7, Ala. Code 1975.
65
1190545
to support that assertion. The burden thus did not shift to Nucor to
present substantial evidence disproving that the parties' course of
performance or dealing had altered the parties' contractual obligations.
This is why nothing in the record indicates that Nucor objected to Onin's
failure to perform its obligations; if such evidence exists, Nucor was never
required to produce it or otherwise to address such an argument. In light
of the arguments and as the record stands, I do not believe that this Court
may affirm the trial court's judgment under a course-of-performance or -
dealing theory.6
Given the above, I respectfully dissent as to Part I of the
"Discussion" section of the main opinion affirming the trial court's
summary judgment on Nucor's breach-of-contract claims against Onin and
Zurich. Those claims must await further litigation or determination by a
6This Court will affirm a trial court on any valid legal ground found
in the record. Liberty Nat'l Life Ins. Co. v. University of Alabama Health
Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003). However, an
exception to this rule provides that "this Court may not affirm a summary
judgment on a ground the movant did not argue before the trial court
because the nonmovant was not given an opportunity to present
substantial evidence creating a genuine issue of material fact as to that
ground." Ex parte Canada, 890 So. 2d 968, 971 (Ala. 2004).
66
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trier of fact. As to Nucor's remaining claims discussed in Parts II through
V, I believe that the trial court's summary judgment on those claims
should be affirmed independent of whether the indemnification provision
violates public policy and is unenforceable, and I therefore concur in the
result as to the holdings on those issues.
Bryan, J., concurs.
67 | June 25, 2021 |
5a83f3ab-c436-4b88-936e-a01014f0112c | Velree Keener v. Infirmary Health Systems, Inc. | N/A | 1200301 | Alabama | Alabama Supreme Court | Rel: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1200301
Velree Keener v. Infirmary Health Systems, Inc. (Appeal from Mobile
Circuit Court: CV-19-902166).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. | June 11, 2021 |
8d9f51d7-d7aa-48c8-8946-e1fee3b9d619 | Ex parte A.P. | N/A | 1200530 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200530
Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.P. v. Morgan County Department of Human
Resources) (Morgan Juvenile Court: JU-17-45.04; Civil Appeals :
2190800).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
2d4dbb64-8569-4666-91d0-1c311c9873af | Martin Burdette v. Auburn-Opelika Investments, LLC | N/A | 1190767 | Alabama | Alabama Supreme Court | Rel: June 18, 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, 2020-2021
____________________
1190767
____________________
Martin Burdette
v.
Auburn-Opelika Investments, LLC
____________________
1190801
____________________
Auburn-Opelika Investments, LLC
v.
Martin Burdette
Appeals from Lee Circuit Court
(CV-19-900504)
1190767 and 1190801
STEWART, Justice.
Martin Burdette appeals from a judgment entered by the Lee Circuit
Court ("the trial court") in favor of Auburn-Opelika Investments, LLC
("AOI"), regarding a dispute involving a promissory note entered into by
the parties. AOI cross-appeals from the trial court's judgment denying its
request for relief under the Alabama Litigation Accountability Act ("the
ALAA"), § 12-19-270 et seq., Ala. Code 1975. We affirm the judgment.
Facts and Procedural History
In 2004, Martin Burdette and Susan Burdette, a married couple,
formed AOI, with each owning 50% of the company. After its formation,
AOI obtained a bank loan to purchase certain commercial property. In
2012, Martin and Susan sold property that they owned in Florida for
$432,855. Martin and Susan agreed to use the proceeds from that sale,
along with other funds, to make a loan to AOI so that it could pay off the
bank loan. In May 2012, AOI executed a promissory note in which it
agreed to pay Martin and Susan the principal sum of $489,000, with an
interest rate of 5.75% ("the 2012 note").
2
1190767 and 1190801
In 2014, Martin and Susan divorced. Neither the 2012 note nor
ownership of AOI was addressed in the divorce proceedings. In 2016,
Martin and Susan had a disagreement regarding the management and
operation of AOI, and Martin sued Susan. In June 2017, as part of those
proceedings, Martin and Susan entered into a mediated settlement
agreement wherein Susan agreed to pay Martin $560,000 in exchange for
sole ownership of AOI ("the 2017 agreement"). The 2017 agreement
provided, among other things, that the agreement was "intended to
resolve all presently pending issues between Martin Burdette and Susan
Burdette and is entered into in full and complete settlement of the above
captioned lawsuit" and that the "agreement supersedes any prior
understandings or agreements between the parties, whether or not the
matters are covered in this agreement, except for the 2014 mediated
settlement agreement" in the divorce proceedings. Susan paid Martin
$50,000 in cash, and she executed a promissory note in favor of Martin in
the amount of $510,000. That note was secured by a mortgage on the
property owned by AOI. Susan later sold the property, and she paid the
balance due on the note to Martin in full.
3
1190767 and 1190801
In August 2019, Martin sued AOI, asserting claims of breach of
contract and unjust enrichment. Martin alleged that AOI had failed to pay
Martin the amount owed under the 2012 note, which he asserted was
$244,500. Martin sought $259,500.72, which included accrued interest,
plus court costs, attorney fees, and additional interest. AOI filed an
answer and asserted various affirmative defenses and filed a counterclaim
seeking damages because, it asserted, Martin had commenced the action
without substantial justification.
A trial was held on March 12, 2020. Martin testified that the 2017
agreement does not mention the 2012 note and that AOI was not a party
to that agreement. Martin testified that he had been paid on his share of
the interest on the 2012 note up until the 2017 agreement was entered
into but that he had not received any payments since. Martin testified
that he never agreed that the interest or principal payments to him on the
2012 note would stop after he and Susan entered into the 2017 agreement.
Martin testified that he was still owed $244,500, which, he contented,
amounted to his half of the debt owed by AOI on the 2012 note. Martin
testified that he was never contacted by AOI or Susan regarding
4
1190767 and 1190801
capitalizing the loan he and Susan had made to AOI. Martin
acknowledged that he had accepted $560,000 as his value of half of AOI
from Susan in 2017.
Robert Hudson, a certified public accountant, testified as an expert
witness on behalf of Martin. Hudson testified that he had reviewed the
2012 note and the 2016 and 2017 federal tax returns of AOI, the 2017
agreement, and the 2017 promissory note from Susan to Martin. Hudson
testified that the 2016 tax return showed an "outstanding loan to
partners" of $489,000. Hudson further testified that nothing in the 2017
agreement would indicate that the 2012 note had been canceled or
forgiven. Hudson testified that, in preparing the 2017 AOI tax return, he
would have shown the 2012 note as a continuing loan from partners,
unless he had been given further instructions. Hudson testified that the
2017 tax return showed that the 2012 note had been reclassified as equity
or capital. Hudson explained that, typically, debt is repaid with interest
payments while capital or equity does not necessarily have a promise of
being repaid.
5
1190767 and 1190801
Hudson testified that, when Martin sold his 50% interest in AOI, the
capitalization of the $244,500 debt owed to Martin increased Martin's
basis by the amount of the reclassification and that, as a result, Martin
paid fewer taxes. According to Hudson, if AOI had repaid the 2012 note,
the amount paid to Martin would have been a tax-free return to Martin
of the original principal amount but that, instead, the conversion of that
debt to capital had saved Martin only $61,125 -- the maximum amount of
federal taxes Martin would have had to pay. Hudson opined that the
actual tax amount saved by Martin would have been less because the
calculation of Martin's tax obligation would have also been based on other
capital gains and losses. According to Hudson, a creditor's authorization
is normally needed in order to convert a bona fide loan obligation into
capital, but he also acknowledged that transferring what was a debt to
Martin's capital account for the 2017 tax return was an acceptable general
accounting practice.
Susan testified that, when she had agreed to pay to Martin $560,000
for his interest in AOI, that included all assets and liabilities of AOI,
which included the debt owed under the 2012 note. Susan testified that,
6
1190767 and 1190801
during the mediation, they had agreed that the value of AOI was around
$1 million and that Martin had proposed that Susan pay $560,000 to
acquire his half of AOI. Susan believed that, when they mediated the case,
the payment to Martin of $560,000 included the $244,500 that he was
owed, plus his equity in AOI. Susan acknowledged that Martin never
approved converting the $244,500 to a capital account.
Jeff Hilyer, an attorney and certified public accountant, testified as
Susan's expert witness. Hilyer testified that he had prepared AOI's tax
returns and that Susan had represented to him that the 2017 agreement
settled Martin's claims, that the amount of the 2012 note was no longer
an obligation of AOI, and that, therefore, it was transferred from the
category of "loans to the company" to the category of "capital contributed
to the company." As a result, he said, Martin then had a capital increase
equivalent to half the principal amount of the 2012 note.
Hilyer testified that it is reasonable to assume that an entity is
worth the value of its underlying asset and that, in this case, AOI was
worth the value of the real property that it owned. On direct examination
by Susan's attorney, Hilyer testified to various calculations that he had
7
1190767 and 1190801
done in determining whether Martin had received half the value of AOI
and whether that included his half of the 2012 note:
"[Hilyer:] [Martin] was given $560,000 in the settlement
agreement. And I say on here, payment to note zero, so net to
Martin would have been [$]560,000. Martin had a 50[%]
interest in the entity. So we divide what Martin got by [.5] to
get assumed net sale proceeds [$1,120,000]. The actual
transaction in December of 2019 had a 6[%] sales commission.
So if we apply the 6[%] sales commission, you divide by [.94],
you get an adjusted sales price of $1,191,500, and that's
rounded to the nearest hundred dollars.
"....
"[Hilyer:] When you compare that to the price two and a
half years later, and I would argue that if I took that two and
half years later price and backed it up two and a half years it
would be less. I'm just, for the sake of arguments here, using
that price.
"....
"Martin got [88.6%] of the value comparing apples to
apples.
"Q. Of the value of his one half interest?
"[Hilyer:] Yes. Based on the subsequent sale two and a
half years later.
"....
8
1190767 and 1190801
"[Hilyer:] All right. You go back and do the transaction
assuming [Martin] prevails on his claim here that he is due a
payment of $244,900.[1] I'm looking in column three on the
sheet right here [Exhibit 12]. That means he would have
gotten [$560,000] plus [$]244,900 for a total of [$]804,9[00] for
his half. Converting that to the whole, would mean that the
value of the building, net proceeds from the sale would be
[$]1,609,800 and would gross it up with the 6[%] commission,
means that the building, for that transaction to fly and both of
them get 50/50 and get equal, it would have to sell for
$1,712,600, once again rounded to the nearest hundred dollars.
In other words, it would have to sale for 127[%] of its actual
value for that to happen. And coming to my conclusion that
[Martin] was treated fairly, at [88.6%], you have to consider
the time value, you've got two and a half years involved, the
property could have appreciated in two and a half years. But
in the valuing a fractional interest of an entity, you apply -- a
fraction is not worth -- when you take an entity and
fractionalize the ownership, the sum of the fraction, the pieces,
is less than the value of the whole for two reasons: One, you're
dealing with a lack of marketability. When people buy
something, they want to buy the whole. They don't want to buy
a fractional interest. So to sell a fractional interest in entities
you have to discount them. What we see for IRS tax purposes
is anywhere from 10 to 20 percent discount for a lack of
marketability.
"....
1Half the value of $489,000 is $244,500, but the discrepancy between
that value and Hilyer's testimony is inconsequential for purposes of the
appeal.
9
1190767 and 1190801
"[Hilyer:] Another factor that you use is a minority
interest. Now, this is 50/50, so you could argue that it's not
minority but it's not a majority either. It lacks control. Who
wants to buy an interest in something if they can't control it
and can't sell it, because nobody wants to buy the fractional
interest. Typically a minority interest you see discounts in the
range of 10 to 20 percent. In this particular case we have an
[11.4%] discount ignoring a two and a half year increase in
value, for discounts it could range anywhere from 20 to 40
percent. I think that what he got was fair. And for him to -- to
get his half based on those factors plus half the [2012] note is
unfair. Perhaps unjust enrichment."
On May 18, 2020, the trial court entered a judgment, stating, in
pertinent part:
"The primary dispute between the parties was whether
or not a promissory note executed by [AOI] on May 21, 2012
payable to Martin Burdette and Susan Burdette was satisfied
when Martin Burdette sold his interest in [AOI] to Susan
Burdette in 2017.
"Having duly considered the testimony of all witness and
the exhibits entered into evidence, along with the arguments
of counsel, the Court finds that ... Martin Burdette failed to
carry his burden of proof, as follows:
"Based upon the evidence presented, including the
testimony of the parties, and the analysis and testimony of Jeff
Hilyer, CPA and Robert Hudson, CPA, the Court finds that the
2012 Promissory Note at issue in this case was satisfied when
[Martin] received payment of the $560,000.00, from Susan
Burdette, for his interest in [AOI].
10
1190767 and 1190801
"Therefore, judgment is due to be, and is hereby, entered
against ... Martin Burdette, and in favor of the Defendant,
[AOI].
"The Court finds that the Defendant, [AOI] failed to
carry its burden of proof as to its Counterclaim against
[Martin] pursuant to the Alabama Litigation Accountability
Act. The Court is unable to find that the action brought on by
[Martin] was filed without substantial justification, was
frivolous, groundless in fact and in law, and interposed for
improper purpose.
"Therefore, on the Defendant's Counterclaim, Judgment
is due to be, and is hereby, entered for [Martin] and against
Defendant, [AOI]."
Martin appealed and AOI cross-appealed.
Standard of Review
"Our ore tenus standard of review is well settled. ' "When a
judge in a nonjury case hears oral testimony, a judgment based
on findings of fact based on that testimony will be presumed
correct and will not be disturbed on appeal except for a plain
and palpable error." ' Smith v. Muchia, 854 So. 2d 85, 92 (Ala.
2003) (quoting Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379
(Ala. 1996)).
" ' " The ore tenus rule is grounded upon the
principle that when the trial court hears oral
testimony it has an opportunity to evaluate the
demeanor and credibility of witnesses." Hall v.
Mazzone, 486 So. 2d 408, 410 (Ala. 1986). The rule
applies to "disputed issues of fact," whether the
dispute is based entirely upon oral testimony or
11
1190767 and 1190801
upon a combination of oral testimony and
documentary evidence. Born v. Clark, 662 So. 2d
669, 672 (Ala. 1995). The ore tenus standard of
review, succinctly stated, is as follows:
" ' "[W]here the evidence has been
[presented] ore tenus, a presumption of
correctness attends the trial court's
conclusion on issues of fact, and this
Court will not disturb the trial court's
conclusion unless it is clearly erroneous
and against the great weight of the
evidence, but will affirm the judgment
if, under any reasonable aspect, it is
supported by credible evidence." '
"Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791,
795 (Ala. 2000) (quoting Raidt v. Crane, 342 So. 2d 358, 360
(Ala. 1977)). However, 'that presumption [of correctness] has
no application when the trial court is shown to have
improperly applied the law to the facts.' Ex parte Board of
Zoning Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994)."
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
Discussion
I. Martin's Appeal
Martin raises numerous arguments challenging the trial court's
judgment, many of which are not relevant to the disposition of this appeal.
For example, Martin spends a portion of his brief arguing that the 2012
12
1190767 and 1190801
note was valid and subject to Florida laws.2 However, it is undisputed that
the 2012 note was valid and enforceable when it was executed. Martin
argues that the 2012 note was not modified, canceled, or discharged and
that, as a result, AOI still owes to him $244,500, plus accrued interest.
AOI does not argue, and the trial court did not find, that the 2012 note
had been modified or canceled. Instead, AOI argued that the 2012 note
was satisfied when Martin sold his interest in AOI to Susan via the 2017
agreement. AOI points to language in the 2017 agreement stating that it
was intended to settle all disputes between the parties, and AOI also
relies on the evidence from Susan and Hilyer during the trial. AOI further
asserts that Martin's acceptance of the $560,000 constitutes an accord and
satisfaction.
Martin argues that the 2017 agreement did not modify AOI's assets
and liabilities and that AOI was not a party to the 2017 agreement.
Martin further argues that the 2017 agreement is unambiguous and that,
2The 2012 note was executed in Florida, and the note itself provides
that it is to be governed by Florida laws. Martin argues that the Florida
Statute of Frauds required that any modification of the 2012 note be in
writing.
13
1190767 and 1190801
therefore, the trial court was required to interpret it based on the text of
the agreement alone and could not consider Susan's testimony and beliefs
about the effect of the 2017 agreement.3 This Court has explained,
however:
"A latent ambiguity ... exists when the 'writing appears clear
and unambiguous on its face,"but there is some collateral
matter which makes the meaning uncertain." ' Medical Clinic
Bd. of City of Birmingham-Crestwood v. Smelley, 408 So. 2d
1203, 1206 (Ala. 1981) (quoting Ford v. Ward, 272 Ala. 235,
240, 130 So. 2d 380, 384 (1961)). In making the threshold
determination of whether there is a latent ambiguity, a court
may consider extrinsic evidence. Brown v. Mechanical
Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 942
(Ala. 1983). If it determines that a latent ambiguity exists, the
court may then consider and rely upon extrinsic evidence to
determine the true intentions of the parties to the contract.
Mass Appraisal Servs., Inc. v. Carmichael, 404 So. 2d 666, 672
(Ala. 1981)."
Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020). It is
apparent from the parties' disagreement regarding whether the language
3Martin further argues that, even if the trial court believed Susan's
testimony, Susan's mistaken beliefs regarding the import of the 2017
agreement would not permit the trial court to revise the 2017 agreement
because, he asserts, those beliefs would only amount to a unilateral
mistake. The trial court did not operate under the theory of contract
avoidance or revision or otherwise find that there had been a mistake.
Instead, the trial court found that AOI's debt to Martin had been satisfied
when Susan purchased Martin's interest in AOI.
14
1190767 and 1190801
of the 2017 agreement and the payment of $560,000 applied to AOI's
outstanding debt to Martin that a latent ambiguity exists. The trial court,
therefore, was permitted to consider extrinsic evidence.
In considering the extrinsic evidence, the trial court specifically
found that AOI's obligation to Martin under the 2012 note was satisfied
when Martin received $560,000 for his share of AOI. This Court has
explained:
" 'An accord and satisfaction is an agreement reached
between competent parties regarding payment of a debt the
amount of which is in dispute. Limbaugh v. Merrill Lynch,
Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir. 1984);
O'Neal v. O'Neal, 284 Ala. 661, 227 So. 2d 430 (1969). There
can be no accord and satisfaction "without the intentional
relinquishment of a known right." Id. at 663, 227 So. 2d at 431.
" 'Like any other contract, a valid accord and satisfaction
requires consideration and a meeting of the minds regarding
the subject matter. Bank Indep. v. Byars, 538 So. 2d 432, 435
(Ala. 1988); Farmers & Merchants Bank of Centre v. Hancock,
506 So. 2d 305, 310 (Ala. 1987); Austin v. Cox, 492 So. 2d 1021,
1022 (Ala. 1986); Ray v. Alabama Central Credit Union, 472
So. 2d 1012, 1014 (Ala. 1985).' "
Ex parte Meztista, 845 So. 2d 795, 797-98 (Ala. 2001)(quoting Leisure Am.
Resorts v. Carbine Constr. Co., 577 So. 2d 409, 411 (Ala. 1990)).
15
1190767 and 1190801
Susan testified that she and Martin intended to include the debt
evidenced by the 2012 note in the 2017 agreement, that they had agreed
that AOI was valued at around $1 million, and that her payment of
$560,000 to Martin for his interest in AOI included the debt owed to
Martin under the 2012 note. Hilyer testified that Martin's receipt of
$560,000 constituted 88.6% of his share of the value of AOI, after
considering the amount for which AOI's sole asset -- the real property --
sold. Hilyer also opined that, for Martin to fairly receive the $244,500 in
addition to the $560,000 he already had received, one would have to
assume a value much higher than what the real property actually sold for.
Based on that evidence, the trial court could have found that, as part of
the 2017 agreement, Susan and Martin had agreed that the $244,500
owed to Martin under the 2012 note would be included in the $560,000
and that Martin intentionally relinquished the right to otherwise pursue
the repayment of that debt. Although Martin testified that he did not
intend for the $244,500 to be included in that amount, the trial court was
presented with conflicting evidence, and "[i]t was within the province of
the trial court judge as the fact-finder to resolve any conflicts in the
16
1190767 and 1190801
testimony and to judge the credibility of the witnesses." Imperial
Aluminum-Scottsboro, LLC v. Taylor, 295 So. 3d 51, 61-62 (Ala.
2019)(citing Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986)). In
considering that conflicting evidence, the trial court had the benefit of
viewing Martin and Susan testify, and that advantage is the basis of the
ore tenus rule. See Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986).
Because there is evidence to support the trial court's determination that
the payment of $560,000 pursuant to the 2017 agreement included the
$244,500 owed to Martin under the 2012 note and that the debt was
satisfied, a presumption of correctness attends the trial court's conclusion,
and we will not disturb that conclusion on appeal. Kennedy, 53 So. 3d at
68.
Martin also argues that AOI is estopped from asserting that the
2012 note was satisfied by the 2017 agreement because, he contends,
although AOI stopped making payments to him after he and Susan
entered into the 2017 agreement, it continued making payments to
Susan. Martin also argues that the capitalization of the debt did not
constitute payment, satisfaction, or cancellation of the 2012 note because
17
1190767 and 1190801
it was done without Martin's consent and that the transfer of the debt to
Martin's capital account recognizes that there was an outstanding debt
owed to Martin after he and Susan entered into the 2017 agreement.
Because the trial court's judgment is supported by the evidence, and
because this Court "will affirm the judgment appealed from if supported
on any valid legal ground," Tucker v. Nichols, 431 So. 2d 1263, 1265 (Ala.
1983), we need not discuss these arguments, which all involve the trial
court's resolution of disputed factual issues.
Martin also argues that the capitalization of the 2012 note unjustly
enriched AOI. To be successful on an unjust-enrichment claim, a plaintiff
must demonstrate, among other things, that the defendant has wrongfully
retained money that belongs to the plaintiff. Mantiply v. Mantiply, 951 So.
2d 638, 654 (Ala. 2006). Martin asserts that AOI accepted the benefit of
the money he loaned it and that it wrongfully retained that money by
capitalizing the debt rather than repaying it to Martin. As explained
above, however, there is evidence in the record to support the trial court's
determination that Martin was repaid the money owed to him under the
2012 note. Accordingly, the evidence would support a conclusion that
18
1190767 and 1190801
Martin did not present evidence demonstrating that AOI had wrongfully
retained money that belonged to him, and, thus, Martin failed to
demonstrate that AOI had been unjustly enriched.
II. AOI's Cross-Appeal
AOI challenges the trial court's judgment insofar as it determined
that AOI did not demonstrate that Martin's action was commenced
without substantial justification. AOI relies on the ALAA. Pursuant to §
12-19-272(a), Ala. Code 1975, a part of the ALAA, a trial court "shall
award ... reasonable attorneys' fees and costs against any attorney or
party, or both, who has brought a civil action, or asserted a claim therein,
or interposed a defense, that a court determines to be without substantial
justification." The phrase “without substantial justification” is defined in
§ 12-19-271, Ala. Code 1975, as an action that is "frivolous, groundless in
fact or in law, or vexatious, or interposed for any improper purpose,
including without limitation, to cause unnecessary delay or needless
increase in the cost of litigation, as determined by the court." This Court
has explained:
19
1190767 and 1190801
"If a court denies a claim for attorney fees under the ALAA
after holding a hearing on that claim, and the party seeking
attorney fees appeals that denial arguing that the subject
action, claim, defense, or appeal was frivolous, groundless in
fact, vexatious, or interposed for an improper purpose, the
appellate standard of review is equivalent to the ore tenus
standard of review. ... If a court denies a claim for attorney
fees under the ALAA after holding a hearing on that claim,
and the party seeking attorney fees appeals that denial
arguing that the subject action, claim, defense, or appeal was
groundless in law, the appellate standard of review is de novo
...."
Ex parte Loma Alta Prop. Owners Ass'n, 52 So. 3d 518, 523-24 (Ala. 2010).
AOI argues that Martin commenced the action against it without
substantial justification because, it asserts, Martin was "fully aware that
he has been paid in full for his interest in the 2012 Promissory Note and
despite that fact, [he] initiated the groundless underlying lawsuit." AOI's
brief at p. 24. AOI also argues that Martin commenced the action with the
intent to harass Susan. AOI contends that Martin's action is frivolous and
is groundless in fact and in law. As explained above, the trial court was
confronted with conflicting evidence regarding whether AOI's debt to
Martin had been satisfied by the 2017 agreement, and it had the
opportunity to observe Martin testify. Martin testified that he did not
20
1190767 and 1190801
believe that the 2017 agreement and the payment of $560,000
encompassed the $244,500 owed to him. Although the trial court found in
favor of AOI on the substantive claims Martin asserted in his complaint,
the trial court could have determined that the issues of fact surrounding
Martin's claim were reasonably in conflict. Accordingly, the trial court's
factual determination that Martin's action was not frivolous or groundless
in fact is supported by the evidence. Moreover, this Court's review of the
record, in particular of Martin's assertions in the trial court, leads us to
conclude that Martin's claims against AOI were not groundless in law.
Accordingly, the trial court's decision to not award attorney fees and costs
to AOI under the ALAA is affirmed.
Conclusion
Based on the foregoing, we affirm the judgment.
1190767 -- AFFIRMED.
Parker, C.J., and Bolin and Wise, JJ., concur.
Sellers, J., concurs in the result.
1190801 -- AFFIRMED.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur.
21 | June 18, 2021 |
9d940100-fa2b-4548-9a39-8ff391136cab | Frederick Tildon Skelton IV and Brian Rutledge Skelton v. Evangela R. Taylor Skelton, as the personal representative of the Estate of Brian L. Skelton, Sr., et al. | N/A | 1190700 | Alabama | Alabama Supreme Court | Rel: June 18, 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, 2020-2021
____________________
1190700
____________________
Frederick Tildon Skelton IV and Brian Rutledge Skelton
v.
Evangela R. Taylor Skelton, as the personal representative of
the Estate of Brian L. Skelton, Sr., et al.
Appeal from Jefferson Probate Court, Bessemer Division
(No. 16-48074)
____________________
1190917
____________________
Frederick Tildon Skelton IV and Brian Rutledge Skelton
v.
Evangela R. Taylor Skelton, as the personal representative of
the Estate of Brian L. Skelton, Sr., et al.
Appeal from Jefferson Circuit Court, Bessemer Division
(CV-16-900625)
SELLERS, Justice.
These consolidated appeals involve the Frederick Tildon Skelton,
Jr., Family Trust ("the trust") and its primary asset, shares of stock in
South Haven Corporation ("South Haven"). In appeal no. 1190700,
Frederick Tildon Skelton IV and Brian Rutledge Skelton challenge the
May 4, 2020, judgment of the Jefferson Probate Court, Bessemer Division
("the probate court"), terminating the trust. We affirm that judgment. In
appeal no. 1190917, those same parties challenge the July 17, 2020,
judgment of the Jefferson Circuit Court, Bessemer Division ("the circuit
court"), dismissing their claims relating to the administration of the trust
and their derivative claims asserted on behalf of South Haven. We
reverse the judgment of the circuit court and remand the case for further
proceedings consistent with this opinion.
2
1190700, 1190917
I. Facts
Frederick Tildon Skelton, Jr. ("Frederick Jr."), died in June 1979.
He was survived by his wife, Rheta S. Skelton ("Mrs. Skelton"), and their
four children: Brian Lee Skelton, Sr. ("Brian Lee"), Frederick Tildon
Skelton III ("Frederick III"), Loretta J. Skelton ("Loree"), and Cindy
Marie Skelton Council ("Cindy"). During his lifetime, Frederick Jr. owned
all the stock of South Haven, which operated the South Haven Nursing
Home. Upon his death, the trust was to receive approximately 49% of the
South Haven stock. The trust instrument named Mrs. Skelton as the
original trustee of the trust and provided that she was to receive the net
income of the trust during her lifetime. Upon her death, the trust was to
terminate and its assets distributed to the Skeltons' children or to their
children's issue, per stirpes.
Mrs. Skelton died in 2015; she was predeceased by Frederick III and
Cindy. Frederick III had two children, Brian Rutledge Skelton and
Frederick T. Skelton IV (referred to collectively as "the nephews"); Cindy
had one child, Joshua M. Council ("Joshua"); Brian Lee had three
3
1190700, 1190917
children, Olivia Skelton, Taylor Skelton, and Brian Skelton, Jr.; and it is
unknown whether Loree had any children.
After Mrs. Skelton died, Brian Lee, who was serving as South
Haven's president at the time, became the successor trustee of the trust.
However, Brian Lee died in July 2016, before fully discharging his duties
as trustee by dividing the trust property and making a final distribution
of the trust corpus to the remainder beneficiaries of the trust. Brian Lee's
widow, Evangela R. Taylor Skelton ("Angel"), was appointed as the
personal representative of Brian Lee's estate. After Brian Lee's death,
there was no acting trustee, but it is undisputed that the remainder
beneficiaries of the trust are: Brian Lee's estate, Joshua, the nephews,
and Loree (referred to collectively as "the beneficiaries").
In July 2016, Angel, as personal representative of Brian Lee's estate,
commenced an action in the probate court ("the probate-court action"),
petitioning the probate court to appoint a successor trustee for the trust
and, relevant to that action, to direct the trustee to exercise control over
the South Haven stock, or any other ownership interest in South Haven,
4
1190700, 1190917
held by the trust.1 The beneficiaries were parties to the probate-court
action. The probate court thereafter entered an order appointing Sidney
C. Summey, Jr., as successor trustee ("the trustee") and authorizing him
to exercise control of all trust assets, including any stock in South Haven,
to achieve a final settlement and/or to wind up the affairs of the trust by
consent of the beneficiaries or by judicial means. The probate court
retained jurisdiction over the trust through final settlement.
In September 2016, Loree, individually and on behalf of South
Haven, commenced an action in the circuit court against Angel,
individually and in her capacity as the personal representative of Brian
Lee's estate ("the circuit-court action"). In that action, Loree alleged that
Brian Lee, while an officer, director, and shareholder of South Haven, and
Angel had misappropriated South Haven's assets for their personal
benefit to the detriment of the other shareholders or putative
shareholders of the corporation. Joshua and the trustee were added as
1See § 19-3B-704(b), Ala. Code 1975 (providing that "[a] vacancy in
a trusteeship must be filled if the trust has no remaining trustee").
5
1190700, 1190917
parties to the circuit-court action.2 The nephews filed a motion to
intervene in the circuit-court action to assert claims on behalf of South
Haven against Loree, as well as Angel, in her capacity as the personal
representative of Brian Lee's estate; the nephews asserted that both Brian
and Loree, while officers, directors, and shareholders of South Haven, had
misappropriated South Haven's assets for their personal benefit to the
detriment of the other shareholders or putative shareholders of the
corporation. However, the circuit court denied that motion because the
nephews had failed to assert that they were shareholders of South Haven
at the time of the alleged transactions they challenged. See Rule 23.1,
Ala. R. Civ. P. (requiring plaintiffs to allege their beneficial interests in
the corporation subject to the derivative action). The parties to the
circuit-court action thereafter participated in mediation from August 2017
until August 2018. Before that mediation ensued, the trustee informed all
parties that, to fulfill his fiduciary obligations to all the beneficiaries, he
would not agree to any settlement unless that settlement was approved
2Although the trustee was added as a party to the circuit-court
action, he did not assert any derivative claims on behalf of South Haven.
6
1190700, 1190917
by either (1) all the beneficiaries, including the nephews, or (2) both the
probate court and the circuit court. Following mediation, Loree, Joshua,
and Angel, individually and as personal representative of Brian Lee's
estate, reached a proposed settlement. The nephews opposed that
settlement, however; thus, it was never finalized.
In November 2017, the nephews, as beneficiaries of the trust, filed
a petition in the probate-court action, asserting various claims and
counterclaims and seeking affirmative relief relating to the administration
of the trust3 (referred to collectively as "the trust claims"), including
requesting that the probate court:
"A. Continue to assume exclusive jurisdiction over all matters
involving the administration of the Trust;
"B. Issue instructions to the Successor Trustee for the Trust
to undertake all actions necessary to the winding-up of the
Trust, including taking all such actions as may be appropriate
to administer the Trust pursuant to the terms of [Frederick
Jr.'s] Will and prudent fiduciary practice, including, without
3In addition to asserting claims against the other beneficiaries, the
nephews' petition also asserted claims against Loree, in her capacity as
the trustee of the Rheta S. Skelton Revocable Trust and in her capacity as
the personal representative of the Estate of Rheta S. Skelton.
7
1190700, 1190917
limitation, exercising control over the Trust's assets, including
the stock or other ownership interest in [South Haven];
"C. Enter a declaratory judgment regarding the assets of the
Trust, including a judgment that the Trust retains ownership
and voting rights for the stock of [South Haven];
"D. Enter a ... judgment [declaring]that[, during her lifetime,
Mrs. Skelton] breached her fiduciary duties as Trustee of the
Trust ...;
"E. Enter a judgment against [Mrs. Skelton's estate] for
breach of fiduciary duty as Trustee of the Trust by invading
the Trust and removing valuable principal assets of the Trust
for her own personal benefit ...;
"F. Enter a ... judgment [declaring] that the transfer of
substantially all of [Mrs. Skelton's assets] to [the Rheta J.
Skelton Revocable Trust] was a fraudulent conveyance ...;
"G. Require [Mrs. Skelton's estate] and/or [the trustee] to
provide a full and complete accounting of the Trust's assets ...;
"H. Enter a judgment in favor of [the nephews] and against
[Loree, individually; Angel, in her capacity as personal
representative of Brian Lee's estate]; and [Mrs. Skelton's
estate], jointly and severally, [for damages] ...;
"I. Enter a judgment in favor of the Trust ... such that the
Trust distributions to the remainder beneficiaries are restored
...;
"J. Enter a ... judgment [declaring] that the [trustee] has a
fiduciary duty to pursue and enforce the derivative claims
[asserted in the circuit-court action] ...."
8
1190700, 1190917
In October 2018, Angel, as the personal representative of Brian Lee's
estate; Loree, individually; and Joshua petitioned the probate court to
terminate the trust, to distribute its assets, and to discharge the trustee.
The nephews opposed the termination of the trust on the basis that they
would be prohibited from pursuing their trust claims. The nephews also
objected to the trustee's being discharged because, they believed, he had
a duty to pursue the trust claims, as well as derivative claims that could
be asserted on behalf of South Haven in the circuit-court action.
In November 2018, the trustee filed a motion in the probate-court
action seeking to resign as the trustee of the trust. In that motion, the
trustee cited various compelling reasons, including:
"To date, the Trust has not been funded and its assets are
illiquid. [The trustee's] only means of raising sufficient capital
to fund the Trust necessarily involves a sale of Trust assets,
which primarily include shares of South Haven Corporation.
However ... the ownership of the shares of South Haven
Corporation has been at issue in this case pending in [the
probate court] as well as in the [circuit-court action]. In
various pleadings, certain beneficiaries have taken the position
that there are no shares of South Haven Corporation
remaining in the Trust, while other beneficiaries, including
[the nephews], have refused to certify in pleadings that they
are, in fact, owners of the shares. Certain beneficiaries
9
1190700, 1190917
purport to have resolved the issues between and among them,
while other beneficiaries object to that resolution. As a result,
the answer to the question of what [the trustee] could do in his
role as trustee to fund the Trust and address the competing
claims and issues of the remainder beneficiaries is far from
clear .... If, as certain parties [i.e., the nephews] have
contended, [the trustee] cannot resign, then his compelled
continued service as Trustee and active participation in
current and future litigation will be at the risk of great
personal loss to [the trustee], with a significant outlay of
resources, time, and expenses potentially offset by, at best, the
possibility of future reimbursement by the currently unfunded
Trust."
(Footnotes omitted.)
On March 7, 2019, the probate court entered an order discharging
the trustee on the grounds that the trust was currently underfunded; that
the assets of the trust were illiquid; that the beneficiaries, because of
irreconcilable differences, continued to engage in protracted and costly
litigation; and that the trust was without sufficient funds to sustain that
litigation. To protect the nephews' rights, the probate court ordered that
they be substituted for, or otherwise "stand in the shoes" of, the trustee in
the event they elected to assert derivative claims on behalf of South
Haven in the circuit-court action. The probate court explained in its order
that the nephews could not assert any derivative claims on behalf of South
10
1190700, 1190917
Haven in the probate-court action because South Haven was not a party
to that action but that, because South Haven was a party to the circuit-
court action, such derivative claims could be appropriately litigated in
that action. Based on the probate court's order, the nephews subsequently
asserted, in the circuit-court action, derivative claims on behalf of South
Haven against Loree and Angel, in her capacity as the personal
representative of Brian Lee's estate. Over the nephews' objection, the
circuit court entered an order discharging the trustee as a party to circuit-
court action and substituting the nephews in his place, pursuant to Rule
25(c), Ala. R. Civ. P.
On May 4, 2020, the probate court, following a hearing on all
pending motions, entered a final judgment in the probate-court action,
terminating the trust and ordering that its limited assets be distributed.4
4In its judgment, the probate court indicated that the assets of the
trust "consist[ed] of approximately $5,000 in an account with Raymond
James, [and] real property in Long Beach, Mississippi." The probate court
ordered that the $5,000 be distributed to the trustee for his expenses and
that Loree make reasonable efforts to sell the Mississippi property and to
distribute the funds therefrom to the trustee and, if any funds remained
after paying the trustee, to the beneficiaries. The probate court further
indicated that the trust was holding or previously held approximately 49%
11
1190700, 1190917
The probate court further held that the nephews had 30 days in which to
assert their trust claims in the circuit-court action. The nephews
appealed. On that same day, the nephews asserted their trust claims in
the circuit-court action.
On July 17, 2020, following a hearing, the circuit court entered a
final judgment, dismissing the nephews' derivative claims on the basis
that those claims were abated by the probate-court action. The circuit
court also struck, without explanation, all pleadings filed by the nephews
after October 23, 2019, including the pleading asserting their trust claims.
The nephews appealed. This Court consolidated the appeals from the May
4, 2020, probate-court judgment and the July 17, 2020, circuit-court
judgment.
II. Standard of Review
of the outstanding shares of stock in South Haven but that there existed
a dispute about whether those shares had been distributed or whether
they remained assets of the trust. The probate court stated that, because
of its ruling terminating the trust, any issue concerning the South Haven
stock and whether it remained an asset of the trust was moot. The
probate court presumably reasoned that, because South Haven was a
party to the circuit-court action, any dispute regarding the stock could be
litigated in that action.
12
1190700, 1190917
These appeals present pure questions of law, which we review de
novo. Watson v. University of Alabama Health Servs. Found., 263 So. 3d
1030 (Ala. 2018).
III. Discussion
1. Appeal No. 1190700 - The Probate-Court Action
The nephews contend that the probate court erred in terminating
the trust because, they say, it deprived them of the opportunity to litigate
their trust claims in that court. The nephews specifically assert that the
probate court lacked authority to dismiss their trust claims merely
because the probate court believed it would be more convenient for those
claims to be litigated in the circuit-court action. Under the circumstances
presented here, we cannot agree. To begin, the litigation giving rise to
these appeals has been ongoing in the probate court since July 2016 and
in the circuit court since September 2016. This is the third time many of
the parties have been before this Court concerning issues arising out of
the same general factual situation.5 Next, and importantly, the probate
5Ex parte Skelton (No. 1180555, Aug. 23, 2019), 312 So. 3d 8 (Ala.
2019) (table); and Ex parte Skelton, 275 So. 3d 144 (Ala. 2018).
13
1190700, 1190917
court terminated the trust and discharged the trustee because the parties
had engaged in, and continued to engage in, costly and protracted
litigation that the trust was unable to fund. Simply put, the assets of the
trust were insufficient to compensate the trustee, who not only had been
appointed to wind up the affairs of the trust but also been added as a
party to the circuit-court action.6 A court exercising jurisdiction over the
administration of a trust has the authority to terminate the trust if the
court determines "that the value of the trust property is insufficient to
justify the cost of administration." § 19-3B-414(b), Ala. Code 1975. This
is precisely what occurred here, and the nephews make no argument that
the probate court erred in terminating the trust on that basis. Rather, the
nephews have taken the position throughout this litigation that the
trustee had a duty to pursue, even at own his personal expense, all claims
involving the administration of the trust, as well as all derivative claims
that could be asserted on behalf of South Haven. Notably, to ensure that
6The probate court determined that the trustee and his counsel were
due to be compensated for work and expenses in the amount of
$318,249.50.
14
1190700, 1190917
the nephews were able to pursue their trust claims, the probate court held
that they had 30 days in which to reassert those claims in the circuit-court
action. In its judgment terminating the trust, the probate court explained
that allowing the nephews to reassert their trust claims in the circuit-
court action was appropriate because (1) the trust claims arose out of the
same core of operative facts as the claims involved in the circuit-court
action, (2) the trust claims required the same evidence as the derivative
claims pending in the circuit-court action, (3) and the probate court and
the circuit court had concurrent jurisdiction over matters relating to the
administration of the trust.7 To further protect the nephews' rights, the
probate court ordered that they be substituted for, or otherwise "stand in
the shoes" of, the trustee so that they could assert derivative claims on
7Act No. 1144, Ala. Acts 1971, a general act of local application,
applies to the Jefferson Probate Court. Section 1 of the act grants to the
Jefferson Probate Court "general jurisdiction concurrent with that of the
Circuit Courts of this State, in equity, in the administration of the estates
of deceased persons, minors and insane or non compos mentis persons,
including testamentary trust estates." See also § 19-3B-203(b), Ala. Code
1975 (providing that "[a] probate court granted statutory equitable
jurisdiction has concurrent jurisdiction with the circuit court in any
proceeding involving a testamentary or inter vivos trust").
15
1190700, 1190917
behalf of South Haven in the circuit-court action. Finally, it is undisputed
that all the beneficiaries, including the nephews, have engaged in
extensive discovery in the circuit-court action, and they all agreed that the
discovery in that action could be used to resolve the claims asserted in
both the probate-court action and the circuit-court action. Under these
circumstances, the probate court did not err in terminating the trust,
subject to the nephews' ability to reassert their trust claims in the circuit-
court action. We, therefore, affirm the judgment of the probate court
terminating the trust and, as discussed below, agree that the circuit court
erred by refusing to adjudicate the trust claims in the circuit-court action
as recommended by the probate court.
2. Appeal No. 1190917 - The Circuit-Court Action
The nephews contend that the circuit court erred in dismissing the
derivative claims they asserted on behalf of South Haven in the circuit-
court action on the basis that those claims were abated pursuant to § 6-5-
440, Ala. Code 1975. We agree. As indicated, Loree initiated the circuit-
court action by filing derivative claims on behalf of South Haven against
Angel, individually and in her capacity as the personal representative of
16
1190700, 1190917
Brian Lee's estate. Initially, the nephews attempted to intervene in that
action to assert their own shareholder derivative claims, but the circuit
court denied their motion because the nephews had failed to allege that
they had been shareholders at the time the alleged transactions occurred.
Instead, the nephews asserted the trust claims in the probate-court
action. After the probate court entered its order discharging the trustee,
it ordered that the nephews be substituted for the trustee to protect their
rights to assert any derivative claims on behalf of South Haven in the
circuit-court action. The nephews then filed derivative claims on behalf
of South Haven in the circuit-court action, were substituted as parties to
that action, and engaged in discovery. However, the circuit court
ultimately, and inappropriately, dismissed the nephews' derivative claims
on the basis that those claims were abated by the probate-court action.
Section § 6-5-440, Alabama's abatement statute, provides:
"No plaintiff is entitled to prosecute two actions in the
courts of this state at the same time for the same cause and
against the same party. In such a case, the defendant may
require the plaintiff to elect which he will prosecute, if
commenced simultaneously, and the pendency of the former is
a good defense to the latter if commenced at different times."
17
1190700, 1190917
This Court has explained that, pursuant to that statutory directive,
" 'where two or more courts have concurrent jurisdiction, the one which
first takes cognizance of a cause has the exclusive right to entertain and
exercise such jurisdiction, to the final determination of the action and the
enforcement of its judgments or decrees.' " Regions Bank v. Reed, 60 So.
3d 868, 884 (Ala. 2010) (quoting Ex parte Burch, 236 Ala. 662, 665, 184
So. 694, 697 (1938)) (emphasis added). In holding that the nephews'
derivative claims asserted on behalf of South Haven were abated by the
probate-court action, the circuit court necessarily believed that the
probate court had concurrent jurisdiction to adjudicate those claims,
despite the fact that South Haven was not a party to the probate-court
action.
It is undisputed that the probate court had concurrent jurisdiction
with the circuit court to adjudicate any claims related to the
administration of the trust. However, the probate court, whose jurisdiction
is limited to that conferred to it by statute, did not have jurisdiction to
adjudicate claims that did not relate to the administration of the trust.
Section 19-3B-201(c), Ala. Code 1975, provides that "[a] judicial
18
1190700, 1190917
proceeding involving a trust may relate to any matter involving the trust's
administration, including a request for instructions and an action to
declare rights." Additionally, § 19-3B-201(d), Ala. Code 1975, provides:
"A judicial proceeding involving a trust may relate to any
matter involving the trust's administration, including, but not
being limited to a proceeding to:
"(1) request instructions;
"(2) determine the existence or nonexistence
of any immunity, power, privilege, duty or right;
"(3) approve a nonjudicial settlement;
"(4) interpret or construe the terms of the
trust;
"(5) determine the validity of a trust or of any
of its terms;
"(6) approve a trustee's report or accounting
or compel a trustee to report or account;
"(7) direct a trustee to refrain from
performing a particular act or grant to a trustee
any necessary or desirable power;
"(8) review the actions or approve the
proposed actions of a trustee, including the exercise
of a discretionary power;
"(9) accept the resignation of a trustee;
19
1190700, 1190917
"(10) appoint or remove a trustee;
"(11) determine a trustee's compensation;
"(12) transfer a trust's principal place of
administration or a trust's property to another
jurisdiction;
"(13) determine the liability of a trustee for
an action relating to the trust and compel redress
of a breach of trust by any available remedy;
"(14) modify or terminate a trust;
"(15) combine trusts or divide a trust;
"(16) determine liability of a trust for debts of
a beneficiary and living settlor;
"(17) determine liability of a trust for debts,
expenses
of
administration,
and
statutory
allowances chargeable against the estate of a
deceased settlor;
"(18) determine the liability of a trust for
claims, expenses and taxes in connection with the
settlement of a trust that was revocable at the
settlor's death; and
"(19) ascertain beneficiaries and determine to
whom property will pass upon final or partial
termination of a trust."
20
1190700, 1190917
Neither § 19-3B-201(c) nor § 19-3B-201(d) confers jurisdiction on a
probate court to entertain a shareholder derivative action asserted on
behalf of a corporation merely because a trust over which the probate
court exercises jurisdiction beneficially holds shares of stock in that
corporation. South Haven is a separate legal entity, recognized as distinct
from the holders of its shares. See Ex parte 4tdd.com, 306 So. 3d 8 (Ala.
2020). This legal principle entitled the nephews, in their capacities as
substitutes for the trustee, to assert derivative claims on behalf of South
Haven in the circuit-court action and to recover damages on its behalf. In
comparison, the nephews, as beneficiaries of the trust, had a right to
assert in the probate-court action their trust claims, which included
breach-of-fiduciary claims relating to the administration of the trust, and
to seek a judgment based on those alleged breaches. See First Alabama
Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 423 (Ala. 1982) ("It
has long been the law in Alabama that where a trustee does not perform
his duty to protect the trust, the beneficiaries may sue in equity to protect
their rights.") Thus, although the trust might have had an indirect
interest in the shareholder derivative claims asserted in the circuit-court
21
1190700, 1190917
action because the trust either was holding or previously held shares of
South Haven stock, the shareholder derivative claims are simply
unrelated to the administration of the trust. Stated differently, the
derivative claims asserted by the nephews belong to South Haven and
stand independently of, and have no bearing on, the nephews' claims
relating to the administration of the trust. Because only the circuit court
had subject-matter jurisdiction over the shareholder derivation claims, the
abatement statute was not triggered. See § 12-11-31(1), Ala. Code 1975
(providing that the jurisdiction of the circuit court as to equitable matters
extends "[t]o all civil actions in which a plain and adequate remedy is not
provided in the other judicial tribunals").
The nephews also contend that the circuit court erred in striking,
without explanation, their trust claims, which the probate court held
would be appropriate for them to assert in the circuit-court action. For
the same reasons we stated for affirming the probate court's judgment, we
agree. As indicated, the trust claims asserted by the nephews in the
probate-court action arise out of the same core of operative facts that
underlie the claims in the circuit-court action. All the beneficiaries,
22
1190700, 1190917
including the nephews, have engaged in discovery in the circuit-court
action, and they all agreed that the discovery in that action could be used
to resolve claims asserted in both the probate-court action and the circuit-
court action. Therefore, because the probate court was justified in
terminating the trust, the circuit court is the appropriate venue to litigate
all the remaining claims, including the nephews' trust claims.
IV. Conclusion
The judgment of the probate court terminating the trust, subject to
the nephews' ability to reassert their trust claims in the circuit-court
action, is affirmed. The judgment of the circuit court dismissing the
nephews' trust claims and derivative claims is reversed, and the cause is
remanded for that court to exercise jurisdiction over those claims.
1190700 -- AFFIRMED.
1190917 -- REVERSED AND REMANDED.
Parker, C.J., and Mendheim and Stewart, JJ., concur.
Bryan, J., concurs in the result.
Bolin and Wise, JJ., recuse themselves.
23 | June 18, 2021 |
b99f2700-e3dd-4b35-bd6d-f6537a658313 | Ex parte Watters & Associates, LLC and Richard L. Watters. | N/A | 1200250 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200250
Ex parte Watters &
Associates, LLC and Richard L. Watters. PETITION
FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:
Watters &
Associates, LLC and Richard L. Watters v. John Gamble as
Personal Representative of the Estate of Barbara Ruth Findley Long)
(M
obile Circuit Court: CV-19-901267; Civil Appeals :
2190471).
CERTIFICATE OF JUDGMENT
W
HEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, W
ise, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
16b54a17-f525-40bd-ae00-2cf13de9f91a | Ex parte Rickey Dee Samson Varner. | N/A | 1200478 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200478
Ex parte Rickey Dee Samson Varner. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Rickey
Dee Samson Varner v. State of Alabama) (Enterprise Circuit Court:
CC-19-168; CC-19-169; CC-19-170; CC-19-171; Criminal Appeals :
CR-20-0037).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
55a8f0b0-4913-4a19-80a2-1924ae8588f7 | Ex parte Howard Wilson Todd. | N/A | 1200533 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200533
Ex parte Howard Wilson Todd. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Howard Wilson Todd v. State
of Alabama) (DeKalb Circuit Court: CC-17-622; Criminal Appeals :
CR-19-0239).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
c44db2c0-81c7-4838-b0f0-c7d3e7618851 | Ex parte A.P. | N/A | 1200528 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200528
Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.P. v. Morgan County Department of Human
Resources) (Morgan Juvenile Court: JU-09-45.09; Civil Appeals :
2190798).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
bf52e94a-fd15-446d-b6e6-1498b01f3387 | Ex parte Matthew Cotner. | N/A | 1191000 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1191000
Ex parte Matthew Cotner. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Matthew Cotner v. State of
Alabama) (Russell Circuit Court: CC-15-191; Criminal Appeals :
CR-18-1182).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
f20c1cba-f456-4b82-962b-8f39bab15d95 | Ex parte Louis Jordan and Janet Jordan. | N/A | 1200321 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200321
Ex parte Louis Jordan and Janet Jordan. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Louis Jordan
and Janet Jordan v. Wilmington Savings Fund Society FSB, in its capacity as
the Trustee for PrimeStar-H Fund I Trust) (Jefferson Circuit Court:
CV-19-901805; Civil Appeals :
2190597).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
80646055-5a6a-40d1-80b4-660a9a60aac6 | Jay v. United Services Automobile Association | N/A | 1190941 | Alabama | Alabama Supreme Court | Rel: June 18, 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, 2020-2021
_________________________
1190941
_________________________
Nicholas K. Jay
v.
United Services Automobile Association
Appeal from Mobile Circuit Court
(CV-19-900926)
STEWART, Justice.
Nicholas K. Jay appeals from a summary judgment entered by the
Mobile Circuit Court ("the trial court") in favor of United Services
1190941
Automobile Association ("USAA") on his claim against USAA seeking
uninsured-motorist ("UM") benefits. Because Nicholas is not a "covered
person" under the USAA policy, we affirm the judgment.
Facts and Procedural History
Nicholas was injured in an automobile accident when riding as a
passenger in Ryen Gorman's automobile. Gorman did not have automobile
insurance. Nicholas received $50,000 in UM benefits through a policy he
had with Nationwide Insurance Company. Thereafter, Nicholas
commenced an action against USAA, seeking UM benefits pursuant to a
USAA policy owned by his father-in-law, George M. Brewer, and under
which Nicholas's wife, Michelle Jay, had automobile-insurance coverage.
USAA filed an answer and asserted various affirmative defenses.
Thereafter, USAA filed a motion for a summary judgment in which it
argued that Nicholas was not a named insured or a family member of a
named insured and, therefore, was not a "covered person" entitled to
receive benefits under the policy. Nicholas filed a response in opposition
to USAA's summary-judgment motion in which he argued that his wife,
Michelle, was a named insured under the policy, that he was a family
2
1190941
member of Michelle's, and that, therefore, he was entitled to receive UM
benefits under the policy.
In support of and opposition to the summary-judgment motion, the
parties provided, among other evidence, a copy of the USAA policy and
deposition testimony from Nicholas and Michelle. The declarations page
of the USAA policy provides information concerning the named insured,
operators covered under the policy, a description of covered automobiles,
coverage amounts, and insurance premiums. Under a box entitled "Named
Insured and Address," the following individual is listed:
"GEORGE M BREWER
CW04 USCG RET
7610 SEQUOIA DR N
MOBILE AL 36595-2808"
(Capitalization in original.) Under a box entitled "OPERATORS," the
following individuals are listed:
"01 GEORGE M BREWER
02 DIANE B BREWER
03 CAITLIN BREWER ROBERTS
04 MICHELLE D JAY"
(Capitalization in original.)
3
1190941
A section of the policy entitled "PART C - UNINSURED
MOTORISTS COVERAGE" provides that USAA "will pay damages which
a covered person is legally entitled to recover from the owner or operator
of an uninsured motor vehicle because of [bodily injury] sustained by a
covered person and caused by an auto accident." (Capitalization in
original.) That section defines the following relevant terms:
"A. 'Covered person' as used in this Part means:
"1. You or any family member.
"2. Any other person occupying your covered auto.
"3. Any person for damages that person is entitled to
recover because of [bodily injury] to which this coverage
applies sustained by a person described in 1. or 2. above."
The "definitions" section applicable to the entire policy also provides
certain relevant definitions, including the following:
"A. 'You' and 'your' refer to the 'named insured' shown on
the Declarations and spouse if a resident of the same
household.
"....
"G. 'Family member' means a person related to you by
blood, marriage, or adoption who resides primarily in your
household. This includes a ward or foster child."
4
1190941
Nicholas submitted a copy of a document entitled "Alabama's Proof
Of Financial Responsibility Insurance Identification Card" ("the insurance
card") that USAA provided as part of the policy. The insurance card
contains the following information:
"NAME OF INSURED: GEORGE M BREWER
MICHELLE D JAY"
(Capitalization in original.) There are additional insurance cards included
with the policy that list George with the other individuals that are named
on the declarations page as "Operators."
On July 8, 2020, the trial court entered a summary judgment in
favor of USAA, finding that neither Nicholas nor Michelle was a "named
insured" as defined in the policy and that Nicholas was not a "covered
person" under the policy. Nicholas timely filed a notice of appeal to this
Court.
Standard of Review
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
5
1190941
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, § 12-2-12. '[S]ubstantial evidence
is evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala.
1989)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
Discussion
The resolution of this appeal turns on the interpretation of the
policy.
"A contract of insurance, like other contacts, is governed
by the general rules of contracts. Pate v. Rollison Logging
Equip., Inc., 628 So. 2d 337 (Ala. 1993). Insurance companies
are entitled to have their policy contract enforced as written.
Gregory v. Western World Ins. Co., 481 So. 2d 878 (Ala. 1985).
'Insurance contracts, like other contracts, are construed so as
to give effect to the intention of the parties, and, to determine
this intent, a court must examine more than an isolated
sentence or term; it must read each phrase in the context of all
other provisions.' Attorneys Ins. Mut. of Alabama, Inc. v.
6
1190941
Smith, Blocker & Lowther, P.C., 703 So. 2d 866, 870 (Ala.
1996).
"If an insurance policy is clear and unambiguous in its
terms, then there is no question of interpretation or
construction. American & Foreign Ins. Co. v. Tee Jays Mfg.
Co., 699 So. 2d 1226 (Ala. 1997). The fact that the parties
interpret the insurance policy differently does not make the
insurance policy ambiguous. Tate v. Allstate Ins. Co., 692 So.
2d 822 (Ala. 1997). While ambiguities or uncertainties in an
insurance policy should be resolved against the insurer,
ambiguities are not to be inserted by strained or twisted
reasoning. Kelley v. Royal Globe Ins. Co., 349 So. 2d 561 (Ala.
1977). Where the parties disagree on whether the language in
an insurance contract is ambiguous, a court should construe
[the] language according to the meaning that a person of
ordinary intelligence would reasonably give it. Western World
Ins. Co. v. City of Tuscumbia, 612 So. 2d 1159 (Ala. 1992)."
Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So. 2d 687, 691-92 (Ala.
2001). Furthermore,"[w]here an insurance policy defines certain words or
phrases, a court must defer to the definition provided by the policy. St.
Paul Fire & Marine Ins. Co. v. Edge Mem'l Hosp., 584 So. 2d 1316 (Ala.
1991)." Id. at 692.
Nicholas argues that he is a "covered person" entitled to UM benefits
under the policy because, he contends, "covered person" is defined in the
policy as a spouse of a named insured if the spouse is a resident of the
7
1190941
same household as the named insured, and, he asserts, Michelle is a
named insured, he is Michelle's spouse, and he resides in the same
household as Michelle. Nicholas relies on the insurance card that, he
argues, specifically refers to Michelle as a "named insured." The insurance
card actually lists Michelle under "name of insured," rather than "named
insured." Nicholas also relies on his and Michelle's deposition testimony
indicating that they had discussed that Michelle was a "named insured"
under the policy after receiving a copy of the insurance card.
Nicholas argues alternatively that there is a contradiction within the
policy that renders it ambiguous and that the ambiguity should be
resolved in his favor. Nicholas points to the discrepancy between
Michelle's being listed under "name of insured" on the insurance card but
as an "operator" on the declarations page. Citing, among other authorities,
Cowart v. GEICO Casualty Co., 296 So. 3d 266, 271 (Ala. 2019)(plurality
opinion), Nicholas argues that, because the policy is susceptible to two
different interpretations, the trial court was required to adopt the
interpretation in Nicholas's favor.
8
1190941
USAA argues that Nicholas is not a "covered person" under the
policy because, it says, George is the sole "named insured" under the
policy and Nicholas does not meet the policy's definition of a "family
member" of George's. USAA contends that Michelle is unambiguously
listed as an "operator" under the policy and that only George is the
"named insured" under the policy because he is the only individual listed
on the declarations page as the "named insured."
As USAA points out, this Court has explained that "[t]he identity of
the insured and liability of the insurer are determined from the terms of
the contract." Kinnon v. Universal Underwriters Ins. Co., 418 So. 2d 887,
888 (Ala. 1982)(citing Armstrong v. Security Ins. Grp., 292 Ala. 27, 30, 288
So. 2d 134, 136 (1973)). In Progressive Specialty Insurance Co. v. Green,
934 So. 2d 364, 367 (Ala. 2006), this Court considered a wife's contention
that she was entitled to receive the benefits of a "named insured" under
a policy even though she was not listed as a "named insured" on the policy.
We noted that the declarations page of that policy listed only the husband
as a "named insured" and held that "[t]he fact that the terms 'you' and
'your' are defined to include both the named insured -- the person named
9
1190941
on the declarations page of the policy -- and the named insured's spouse
actually makes clear that the named insured's spouse is not a named
insured." 934 So. 2d at 367.
In considering a similar argument in Progressive Specialty
Insurance Co. v. Naramore, 950 So. 2d 1138, 1141 (Ala. 2006), this Court
explained:
"The fact that the Progressive policy distinguishes the
named insured from the named insured's spouse in its
definition of 'you and your' shows that the two are different.
See [Progressive Specialty Ins. Co. v.] Green, 934 So. 2d [364]
at 366-67 [(Ala. 2006)]. This distinction is underscored by the
specific identification of [the wife] on the declarations page as
the named insured and [the husband] as a 'listed driver.' "
In this case, the policy lists only George as the "named insured" on
the declarations page. It lists Michelle as an "operator." Although the
insurance card lists both George and Michelle under "name of insured,"
there are insurance cards that list George with each individual "operator."
The existence of an insurance card showing proof of insurance coverage
with Michelle's name on it does not create an ambiguity with regard to the
true "named insured" under the policy. The policy unambiguously
designates George as the "named insured" and the other individuals as
10
1190941
"operators." Because Michelle is not a "named insured" under the policy,
Nicholas is not entitled to receive UM benefits based on his status as
Michelle's spouse.
The only other scenario under which Nicholas could be entitled to
UM coverage under the policy is if he is considered George's "family
member." As noted above, "family member" is defined in the policy as "a
person related to [the named insured] by blood, marriage, or adoption who
resides primarily in [the named insured's] household." It is undisputed
that Nicholas is related by marriage to George; however, it is likewise
undisputed that Nicholas does not reside primarily in George's household
-- Nicholas and Michelle reside together in a separate household.
Accordingly, Nicholas does not meet the definition of a "family member"
of George, the named insured on the policy, and, thus, he is not a "covered
person" entitled to receive UM benefits.
Conclusion
Because Nicholas is neither a named insured under the policy nor a
family member of a named insured as defined in the policy, he is not
11
1190941
entitled to receive UM benefits under the policy, and the trial court
correctly entered a summary judgment in USAA's favor.
AFFIRMED.
Parker, C.J., and Bolin, Bryan, and Sellers, JJ., concur.
Wise, J., recuses herself.
12 | June 18, 2021 |
3c8b76e1-2555-4eb9-b864-ea10caef6669 | Ex parte J.H. | N/A | 1200326 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200326
Ex parte J.H. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: J.H. v. Calhoun County Department of
Human Resources) (Calhoun Juvenile Court: JU-18-412.02; Civil Appeals :
2190879).
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 June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
1e53f2d6-3238-4f3c-ad51-fbcd4f4a679a | Alabama v. Epic Tech, Inc., et al. | N/A | 1200032 | Alabama | Alabama Supreme Court | Rel: May 28, 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, 2020-2021
____________________
1200032
____________________
State of Alabama
v.
Epic Tech, Inc., et al.
Appeal from Greene Circuit Court
(CV-17-900064)
BOLIN, Justice.
The State of Alabama appeals from an order of the Greene Circuit
Court dismissing the State's claims seeking injunctive and declaratory
1200032
relief "to abate a public nuisance of unlawful gambling," pursuant to § 6-5-
120, Ala. Code 1975, against some, but not all, of the defendants below.
The circuit court certified its order as final pursuant to Rule 54(b), Ala. R.
Civ. P. However, we determine that the order was not appropriate for
Rule 54(b) certification; therefore, we dismiss the appeal.
Facts and Procedural History
On October 4, 2017, the State sued Pen-Tech, LLC, d/b/a Encore
Gaming Group ("Pen-Tech"); Epic Tech, LLC, d/b/a Epic Tech Software
LLC and/or Aurify Gaming ("Epic Tech"); Greenetrack, Inc.; The Center
for Rural Family Development, Inc., d/b/a Green Charity; Dream, Inc.,
d/b/a Frontier Bingo; TennTom Community Development, Inc., d/b/a
Frontier Bingo;1 Tommy Summerville Police Support League, Inc., d/b/a
Palace Bingo; and Greene County Sheriff Jonathan ("Joe") Benison
seeking declaratory and injunctive relief "to abate a public nuisance of
unlawful gambling," pursuant to § 6-5-120, Ala. Code 1975." The State
alleged in its complaint that the defendants "operate, administer, and/or
1On January 3, 2018, the State voluntarily dismissed TennTom
Community Development from the case.
2
1200032
provide gambling devices at one or more of the five casinos" in Greene
County where they also "provide hundreds of slot machines and gambling
devices in open, continuous, and notorious use"; that this Court has
repeatedly held that the "gambling devices," or electronic gaming
machines, are illegal and that the game commonly known as "bingo"
cannot be played on the machines; and that the continued operation of the
electronic gaming machines by the defendants is both illegal and a public
nuisance. The State sought a judgment declaring that the gambling
activities being conducted by the defendants are a public nuisance and
permanently enjoining the defendants from conducting such unlawful
gambling activities.2
Also on October 4, 2017, the State moved the circuit court, pursuant
to Rule 65(a), Ala. R. Civ. P., for a preliminary injunction to prevent the
defendants from using the electronic gaming machines in Greene County;
from receiving any moneys in relation to the electronic gaming machines
2As will be discussed in more detail infra, the State also commenced
in October 2017 identical actions in Macon County and Lowndes County
seeking to abate as public nuisances similar gambling activities as those
allegedly being conducted by the defendants in Greene County.
3
1200032
in Greene County; from transporting or providing any additional
electronic gaming machines in Greene County;3 and from receiving,
utilizing, and/or providing bingo licenses or permits under Amendment
No. 743 (Local Amendments, Greene County, § 1, Ala. Const. 1901 (Off.
Recomp.)) for the play of electronic bingo in Greene County.4 The State
contended that, by continuing to engage in illegal gambling activity, the
defendants continue to operate in clear violation of state law, which
works an ongoing harm to the State and to private citizens, creating a
public nuisance that must be abated immediately by order of the circuit
court.
On November 9, 2017, the State amended its complaint to reallege
its nuisance claim seeking declaratory and injunctive relief and to add as
defendants Next Level Leaders d/b/a Rivers Edge Bingo and Tishabee
Community Center Tutorial Program d/b/a Rivers Edge Bingo
3Amendment No. 743 provides, in pertinent part, that "[b]ingo games
for prizes or money may be operated by a nonprofit organization in Greene
County."
4
1200032
(collectively referred to as "Rivers Edge Bingo"). On October 4, 2018, the
State again amended its complaint to reallege its nuisance claim seeking
declaratory and injunctive relief and to add as defendants the nonprofit
organizations Woman-to-Woman, Greene County E-911, and the Greene
County Volunteer Fire Association.
All the defendants filed motions to dismiss, generally arguing that
the State had failed to join necessary parties as required by Rule 19, Ala.
R. Civ. P., that the circuit court lacked subject matter-jurisdiction over the
action, and that the State had failed to state a claim upon which relief
could be granted. Specifically, the defendants stated that the proceeds
from the operation of "electronic bingo games" go to fund numerous
charitable organizations in Greene County pursuant to Amendment No.
743. The defendants contended that the State had been informed of 10
such charitable organizations that had been identified as necessary
additional defendants that had not been served. The defendants argued
that those charitable organizations have legally protected interests in the
so-called bingo operations that are threatened by the outcome of the
State's action and must be joined as necessary parties.
5
1200032
Second, the defendants argued that the State has repeatedly taken
the position that Alabama "courts are without subject- matter jurisdiction
to adjudicate in civil proceedings matters that should be decided in
criminal proceedings." Citizenship Tr. v. Keddie-Hill, 68 So. 3d 99, 106
(Ala. 2011)(summarizing this Court's holding in Tyson v. Macon Cnty.
Greyhound Park, Inc., 43 So. 3d 587, 589 (Ala. 2010)). Here, the
defendants asserted, the State has asked the circuit court to determine
the criminality of the defendants' possession and operation of certain
electronic gaming machines. Specifically, the defendants pointed out, the
State's complaint alleges that that defendants engaged in illegal gambling
activities by allegedly possessing the electronic gaming machines, an
action the State says has been "specifically criminalized." The defendants
noted that § 13A-12-27(b), Ala. Code 1975, makes "[p]ossession of a
gambling device ... a Class A misdemeanor." The defendants argued that,
because the State is asking the circuit court to decide an issue in a civil
case that must be decided under the criminal laws, the circuit court lacked
subject-matter jurisdiction to hear the case.
6
1200032
Third, the defendants argued that the State's complaint should be
dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P., because, they
asserted, the State did not have the authority to bring this action.
Specifically, the defendants contended that the statute that permitted the
State to obtain an injunction to abate a public nuisance involving gaming
-- former §13-7-90, Ala. Code 1975 -- has been repealed. See Wilkinson v.
State ex rel. Morgan, 396 So. 2d 86, 88 (Ala. 1981). Further, the
defendants argued that their licenses, issued pursuant to the regulatory
framework created pursuant to Amendment No. 743, to operate bingo
games in Greene County barred the State's nuisance claim because, they
alleged, those licenses were intended to encourage a business activity that
the relevant governmental authority licenses and a license to conduct a
certain activity shields the activity from legal attack as a public nuisance.
Thus, the defendants argued that the State has failed to state a claim
upon which relief could be granted.
The State responded by arguing that the absent parties identified by
the defendants were not necessary to adjudicate the claims in this case.
The State contended that this case specifically focused on the State’s
7
1200032
request to enjoin the activities of the defendants, who, the State alleged,
were allowing or conducting the illegal gambling operations in Greene
County; the State asserted that it had sued the defendants because they
had been identified by the State as the parties that were licensing,
permitting, running, or promoting the "electronic gambling" operations
in Greene County. Without any indication or proof that the absent parties
were responsible for the illegal actions giving rise to the nuisance, the
State argued, there was no reason to require their involvement in the
case.
The State further argued in its response that it has properly pleaded
in its complaint that a nuisance, composed of licensing, permitting,
marketing, and offering illegal gambling devices, is ongoing in Greene
County. The State argued that any contention by the defendants that its
nuisance claim is based on former §13-7-90, Ala. Code 1975, which was
repealed by Act No. 607, § 9901, Ala. Acts 1977, effective May 17, 1978,
is misplaced and inapplicable. The State agreed that this particular
statute has been repealed and is inapplicable; however, the State
contended that its repeal does not preclude the State from acting on behalf
8
1200032
of its citizens and upholding the laws of this state, that the repeal of
§13-7-90 may have eliminated a specific statute the State could have used
to seek abatement of an illegal gambling nuisance, but that the principles
the State relies on are firmly entrenched in Alabama law and govern this
action.
The State also argued in its response that it had the authority to
bring the public-nuisance claim against the defendants to end their
alleged illegal gambling operations. As explained earlier in this opinion,
the defendants argued in their motions to dismiss that the circuit court
was without jurisdiction to adjudicate this action because, they asserted,
the circuit court lacked jurisdiction to adjudicate in civil proceedings
matters that should be decided in criminal proceedings. In response the
State noted that targets of potential criminal prosecution cannot invoke
the jurisdiction of a civil court to enjoin or interfere with the State’s
enforcement of its criminal laws. See Tyson v. Jones, 60 So. 3d 831 (Ala.
2010). However, the State explained that, here, no putative criminal
defendant is using civil law in an attempt to frustrate criminal processes;
rather, the State argued that it was merely using one of its authorized
9
1200032
powers to enjoin and abate a public nuisance and was not specifically
asking the circuit court to determine the guilt of any of the defendants
under the criminal laws of this state.
The State next argued in its response that it could enforce state laws
against illegal gambling activities despite the fact that, according to the
defendants, the defendants had been licensed to conduct such activities,
because, the State asserted, the permitting and licensing of activity by the
sheriff in Greene County does not prohibit the State from seeking the
proper and just administration of the state's laws and such licensing does
not legalize in Greene County conduct that is illegal throughout the state.
As noted earlier, see note 2, supra, in October 2017, the State also
commenced actions identical to this action in Macon County and Lowndes
County, seeking to abate as public nuisances allegedly illegal gambling
activities being conducted in those counties similar to the allegedly illegal
gambling activities being conducted in Greene County. The State alleged
that the defendants in the Macon County case and the defendants in
Lowndes County case " 'operate, administer, license and/or provide
gambling devices' " for casinos located in their respective counties and that
10
1200032
those defendants " 'provide hundreds of slot machines and gambling
devices in open, continuous, and notorious use.' " State v. Epic Tech, LLC,
[Ms. 1180675, Sept. 25, 2020] ___ So. 3d ___, ___ (Ala. 2020). The
defendants in those cases moved the trial courts to dismiss the State's
claims, arguing that the trial courts lacked subject-matter jurisdiction
over the State's requests for a declaratory judgment and injunctive relief;
that the complaints failed to state a claim upon which relief could be
granted; and that the State had failed to join the operators of the Wind
Creek Casinos as necessary parties.
Following a hearing, the Lowndes Circuit Court entered a judgment
granting the motion to dismiss filed in the Lowndes County case,
determining that it did not have subject-matter jurisdiction to adjudicate
the claims for injunctive and declaratory relief sought in that case. The
Lowndes Circuit Court also found that, even if it did have subject-matter
jurisdiction, it would nevertheless be required to dismiss the State's
complaint for failure to state a claim upon which relief could be granted
and for failure to include indispensable parties. Epic Tech, supra.
11
1200032
Following a hearing, the Macon Circuit Court also entered a
judgment granting the motion to dismiss filed in the Macon County case,
determining that it lacked subject-matter jurisdiction to adjudicate the
State's claims; that the State had failed to state a claim upon which relief
could be granted; and that the State had failed to join certain
indispensable parties. The State appealed both judgments, and the cases
were consolidated on appeal.5 Epic Tech, supra.
On appeal, this Court reversed the trial courts' judgments granting
the motions to dismiss the cases, holding that (1) the fact that the
operation of illegal gambling devices constituted a criminal offense did
not deprive the trial courts of subject-matter jurisdiction in the State's
actions seeking declaratory and injunctive relief from the defendants'
alleged public nuisance, (2) the State properly pleaded a claim of public
nuisance against the defendants, and (3) the operators of the Wind Creek
5In both cases the trial courts decided to only hear arguments and
rule on the motions to dismiss before they proceeded to adjudicate the
State's motions for preliminary injunctions.
12
1200032
Casinos were not necessary parties to the State's actions. Epic Tech,
supra.
On May 1, 2019, Sheriff Benison moved the circuit court, pursuant
to Rule 19, Ala. R. Civ. P., to add Great Western Development
Corporation, Inc., as an indispensable party. Sheriff Benison alleged that
Great Western was a charitable organization licensed to conduct bingo
operations in Greene County pursuant to Amendment No. 743. Sheriff
Benison further alleged that Great Western was not actually conducting
bingo operations but was actively taking steps toward opening and
operating a bingo hall much like those being operated by certain
defendants in this case.
On May 2, 2019, the circuit court entered an order stating that it
would rule on the defendants' motions to dismiss "based on the
filings/pleadings unless a party objects," in which case the circuit court
stated that it would set the matter for a hearing.
On May 8, 2019, Sheriff Benison objected to the trial court's ruling
on the motions to dismiss based on the pleadings without Great Western
first being added as a defendant in the action. Also on May 8, 2019,
13
1200032
Sheriff Benison gave notice to the circuit court of the withdrawal of his
motion to dismiss and of his intention to file an answer to the State's
complaint.
On May 13, 2019, Rivers Edge Bingo, Pen-Tech, and The Center for
Rural Family Development objected to the circuit court's ruling on the
motions to dismiss based on the pleadings without first adding all
necessary parties to the matter and then allowing the parties to conduct
discovery. Those defendants also withdrew their motions to dismiss and
asked that those motions be converted to motions to add necessary parties
pursuant to Rule 19.
On December 9, 2019, the circuit court entered an order setting all
pending motions for a hearing January 24, 2020.6 On December 18, 2019,
Epic Tech moved the circuit court to clarify its order setting the pending
motions for a hearing, asserting that the State's request for preliminary
injunctive relief, if not rendered moot by the pending motions to dismiss,
would require extended evidentiary hearings before the circuit court. Epic
6That hearing date was subsequently reset for February 28, 2020.
14
1200032
Tech requested that the circuit court enter an order clarifying the
procedure to be followed by the parties and their counsel at the hearing
on the pending motions, by providing them with notice that motions
requiring protracted evidentiary hearings would not be set or heard on
that date but would be reserved for a subsequent hearing, if necessary.
On December 19, 2019, the circuit court entered an order stating that it
would consider all pending motions other than the motions that required
evidentiary hearings. The circuit court stated that, if necessary, it would
schedule at a later date any necessary evidentiary hearings.
Following the hearing, the State filed a supplemental response to the
defendants' motions to dismiss and a motion to set the State's motion for
a preliminary injunction for an expedited hearing. The State submitted
a copy of this Court's decision in Epic Tech to the circuit court, stating
that this Court had reversed the dismissal of substantially similar actions
in Macon County and Lowndes County by finding against the same
arguments presented by the defendants in this case and had remanded
the cases to the respective trial courts for further proceedings. The State
argued to the circuit court that the holding of this Court in Epic Tech
15
1200032
applied directly to the legal issues presented in this case and that the
circuit court had no option but to deny the motions to dismiss and allow
the State's case to proceed.
On October 7, 2020, the circuit court entered an order dismissing the
State's complaint, finding, in part, as follows:
"The adjudication of the State's Complaint for injunctive
and declaratory relief would require this Court to make a
determination as to whether the Defendants' actions in Greene
County are criminal. Alabama law is clear that a civil court
does not have subject matter jurisdiction to adjudicate a legal
issue that would be the basis of a criminal action. State v.
Greenetrack, Inc., 154 So. 3d 940, 958 (Ala. 2014) (Courts do
not have jurisdiction to 'effectively adjudicate the very legal
issue that would be the gravamen of [criminal] actions' and
because the State cannot obtain declaratory relief where a
private individual cannot obtain declaratory relief); Tyson v.
Macon Cty. Greyhound Park, Inc., 43 So. 3d 587 (Ala. 2010) .
"....
"The Supreme Court of Alabama has recognized that only
'a court of equity with proper legislative authorization can
assume jurisdiction to abate a nuisance.' Gen. Corp. v. State ex
rel. Sweeten, 294 Ala. 651, 663, 320 So. 2d 668, 673 (1975) .
The state statute which declared gaming as a common
nuisance, Ala. Code § 13-7-90 was repealed in 1977 and has
not been replaced by the Legislature.
"The State relies on Try-Me Bottling Co. v. State, 178 So.
231 (Ala. 1938) which in turn relied upon the repealed statute.
16
1200032
"In Wilkinson v. State ex rel. Morgan, 396 So. 2d 86 (Ala.
1981), the State argued that Try-Me Bottling allowed an
injunction to stand in spite of the repeal of § 13-7-90. The
Alabama Supreme Court rejected the State’s argument on the
general rule that courts of equity have no jurisdiction to enjoin
the commission of offenses against the criminal laws of the
State. Id. at 90. The Court further stated that Try-Me
concerned the adverse effect on children who were searching
through garbage to find bottle caps with winning numbers that
were part of the lottery scheme. Id. Nothing remotely similar
was offered by the State, nor did the State present or argue
any other authority supporting its claim for public nuisance.
"The State's Complaint fails to state a claim for which
relief can be granted."
The State appealed following the dismissal of its complaint. A question
arose in this Court as to whether the circuit court's order dismissing the
State's complaint pertained to all the defendants because the record on
appeal indicated that a number of the defendants had withdrawn their
motions to dismiss. On March 15, 2021, this Court remanded the cause
to the circuit court for the entry of an amended order identifying the
defendants to which the dismissal order pertained and to certify the order
as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On remand,
the circuit court entered an amended order naming The Center for Rural
17
1200032
Family Development,6 Dream, Inc., Tommy Summerville Police Support
League, Epic Tech, Greenetrack, Greene County E-911, Greene County
Volunteer Fire Association, and Woman-to-Woman as the defendants to
which the order dismissing the State's complaint pertained. The circuit
court certified the judgment as final pursuant to Rule 54(b).
Discussion
Although the circuit court certified its order on remand dismissing
the State's claims against certain defendants as final pursuant to Rule
54(b), the circuit court stated that "its judgment of October 7, 2020, does
not appear to be amenable to Rule 54(b) certification because ... the
Court's certification entered here to comply with the Supreme Court's
remand order mandate[ ] appear[s] to invite additional appellate review
in piecemeal fashion."
This Court has stated the following with regard to Rule 54(b)
certification:
6The record indicates that The Center for Rural Family Development
actually withdrew its motion to dismiss. We also note that Rivers Edge
Bingo filed a brief on appeal before we remanded the case and the circuit
court entered its amended order.
18
1200032
" ' "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 circuit court certifies a
judgment as final pursuant to Rule
54(b), an appeal will generally lie from
that judgment.' Baugus v. City of
Florence, 968 So. 2d 529, 531 (Ala.
2007).
" ' "Although the order made the
basis of the Rule 54(b) certification
disposes of the entire claim against [the
defendant in this case], thus satisfying
19
1200032
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 circuit court's
conclusion to that effect is subject to
review by this Court to determine
whether the circuit 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 circuit 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 circuit court ' "are so closely
intertwined that separate adjudication would pose
an unreasonable risk of inconsistent results." ' "
Schlarb, 955 So. 2d at 419-20 (quoting Clarke-
Mobile Counties Gas Dist. v. Prior Energy Corp.,
834 So. 2d 88, 95 (Ala. 2002), quoting in turn
Branch v. SouthTrust Bank of Dothan, N.A., 514
So. 2d 1373, 1374 (Ala. 1987), and concluding that
conversion and fraud claims were too intertwined
with a pending breach-of-contract claim for Rule
54(b) certification when the propositions on which
20
1200032
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
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
21
1200032
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,
frivo lity
of
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)."
Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 875-76 (Ala. 2011).
Further, " ' " ' [a]ppellate review in a piecemeal fashion is not favored, and
circuit courts should certify a judgment as final, pursuant to Rule 54(b),
only in a case where the failure to do so might have a harsh effect.' " ' "
22
1200032
Stephens, 84 So. 3d at 879 (quoting First S. Bank v. O'Brien, 931 So. 2d
50, 53 (Ala. Civ. App. 2005)).
In this case, the State has asserted identical claims against similarly
situated defendants. All the defendants moved the circuit court to dismiss
the claims against them. Subsequently, however, a number of the
defendants withdrew their motions to dismiss. The circuit court entered
an order dismissing the State's claims as to those defendants who still had
motions to dismiss pending and certified that order as final pursuant to
Rule 54(b). The circuit court's order dismissing the claims against some
of the defendants left pending in the circuit court claims against other
defendants that were identical to the claims adjudicated by the circuit
court in the order certified as final pursuant to Rule 54(b). We note that,
in addition to the fact that the adjudicated and unadjudicated claims are
identical, the likelihood of a future appeal to this Court is almost certain
once the circuit court adjudicates the remaining claims. Accordingly,
given this Court's disfavor of Rule 54(b) certifications, the related nature
of the unadjudicated claims and the adjudicated claims, and the likelihood
of a future appeal regarding the unadjudicated claims, resulting in
23
1200032
piecemeal appellate review, we conclude that Rule 54(b) certification is
not proper in this case. Accordingly, because there is no final judgment
in this case, the appeal is due to be dismissed. See Stephens, supra.
APPEAL DISMISSED.
Parker, C.J., and Wise, Bryan, Sellers, and Stewart, JJ., concur.
Bolin, Shaw, Mendheim, and Mitchell, JJ., concur specially.
24
1200032
BOLIN, Justice (concurring specially).
In October 2017, identical actions were commenced by the State in
Greene County, Macon County, and Lowndes County seeking injunctive
and declaratory relief to abate alleged public nuisances. This case
proceeded much slower than the other cases, to the point where it has now
been pending for over three and one-half years, and there is still not even
a determination regarding who are necessary parties to the action. Such
inordinate delay prevents this Court from being able to rule on the merits
of this appeal due to a lack of a final judgment. Accordingly, this case
must now be even further delayed.
This case presents a question of utmost importance involving an
alleged public nuisance. I urge the parties, and the circuit court, to
proceed with this case as promptly as possible so as to avoid its continuing
to languish and cause further delay.
Shaw, Mendheim, and Mitchell, JJ., concur.
25
1200032
SHAW, Justice (concurring specially).
I concur in the main opinion and with Justice Bolin's special writing.
I write specially to note the following.
When a court lacks jurisdiction, it has a duty to recognize that fact
ex mero motu, that is, on its own motion. Lane v. State, 66 So. 3d 824,
826 n.2 (Ala. 2010) ("A court has a duty to notice jurisdictional defects ex
mero motu."). The proper response is to dismiss the case. Cadle Co. v.
Shabani, 4 So. 3d 460, 463 (Ala. 2008) ("When the absence of
subject-matter jurisdiction is noticed by, or pointed out to, the trial court,
that court has no jurisdiction to entertain further motions or pleadings in
the case. It can do nothing but dismiss the action forthwith.").
Here, the trial court held that, because of the nature of the State's
action, it lacked jurisdiction over the action. Under the trial court's
rationale, there appears to be nothing indicating that it has jurisdiction
over the State's action regarding any of the defendants. If the trial court
believes that is true, then it has a duty to dismiss the entire action and all
the defendants, regardless of whether certain defendants have not moved
the trial court to do so, lest it risk inexplicably frustrating appellate
26
1200032
scrutiny of its decision and thereby invite mandamus review by this Court
of its inaction.
27 | May 28, 2021 |
a7202704-1c29-493b-b984-f7e33e60bddb | Paradigm Investment Group, LLC and HR IV, LLC v. 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
W
HEREAS, 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,
W
ise, and Stewart, JJ., concur.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on September 17, 2021:
Affirmed. Sellers, J. -
Parker, C.J., and Bolin, W
ise, 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, A n n D. W ilso n , a s A c tin g C lerk o f th e S u p rem e C ou rt o f A lab am a, do 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 sam e
a p p ea r(s) o f reco rd in sa id C ourt.
W itn ess m y h a n d th is 1 2 th d a y o f N o v em b er, 2021.
A a/ (J.
Acting Clerk, Supreme Court of Alabama | September 17, 2021 |
f4a7cb52-3d5f-4bc8-93de-fcdea6222479 | Ex parte J.H. | N/A | 1200527 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 25, 2021
1200527
Ex parte J.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: J.H. v. Dallas County Department of Human
Resources) (Dallas Juvenile Court: JU-18-41.02; Civil Appeals :
2190749).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 25, 2021:
Writ Denied. No Opinion. Stewart, J. -
Bolin, Shaw, Wise, Bryan, Sellers,
Mendheim, 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, 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 2 5 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 25, 2021 |
503acaab-f97f-4a74-ab33-26a8a706905e | Ex parte A.P. | N/A | 1200532 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200532
Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.P. v. Morgan County Department of Human
Resources) (Morgan Juvenile Court: JU-18-702.02; Civil Appeals :
2190802).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
ba8782af-f99d-4761-8230-832d8ac770e4 | Ex parte Porter Allen Batts. | N/A | 1200337 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200337
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-93-1192.63; CC-94-28.63; Criminal
Appeals :
CR-19-0999).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
e55fd3db-d895-4ba6-a9b9-32a41918b6d1 | Ex parte William Delevie. | N/A | 1200501 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200501
Ex parte William Delevie. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: William Delevie v. Carrington Mortgage
Services, LLC) (Calhoun Circuit Court: CV-16-900079; Civil Appeals :
2190605).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 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 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
3c0cd5b2-07cb-44e1-b2c8-5434512a06ef | Ex parte Austin Dwight Dyer. | N/A | 1200298 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200298
Ex parte Austin Dwight Dyer. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Alabama Board of Pardons
and Paroles v. Austin Dwight Dyer) (Montgomery Circuit Court:
CV-20-900630; Criminal Appeals :
CR-19-1005).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
adf44ea8-5b28-4508-bd57-e76dea868bfd | Ex parte Jason William Brown. | N/A | 1200517 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200517
Ex parte Jason William Brown. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Jason William Brown v.
State of Alabama) (Mobile Circuit Court: CC19-1839; Criminal Appeals :
CR-19-1032).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
270b025f-cc42-43c3-a96b-d0ff8cd74ce3 | Hazel Green Trojan Club and Hazel Green Trojan Club, Inc. v. Hazel Green Athletic Association and Brandon Holt | N/A | 1190408 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1190408 Hazel Green Trojan Club and Hazel Green Trojan Club, Inc. v.
Hazel Green Athletic Association and Brandon Holt (Appeal from Madison
Circuit Court: CV-16-900251).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on June 11, 2021:
Application Overruled. No Opinion. Shaw, J. - Parker, C.J., and Bryan,
Mendheim, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on April 16, 2021:
Affirmed. No Opinion. Shaw, J. - Parker, C.J., and Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 11th day of June, 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
648a2a9e-5834-47a3-8e91-1200ce685177 | William C. Harper v. Alice Lynn Harper Taylor | N/A | 1180868 | Alabama | Alabama Supreme Court | REL: June 11, 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, 2020-2021
____________________
1180868
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-15-6)
____________________
1180869
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180915
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180916
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-15-1)
MITCHELL, Justice.
1180868, 1180869, 1180915, 1180916
These appeals arise from a will-contest dispute between siblings.
After their mother died, William C. Harper and Alice Lynn Harper Taylor
disagreed about which version of their mother's will governed the
disposition of her assets. After a purported transfer of the will contests
from probate court to circuit court, the siblings submitted their dispute to
a jury, which returned a verdict for Alice Lynn. William appealed and
Alice Lynn cross-appealed. Because jurisdiction never properly vested in
the circuit court, we dismiss these appeals.1
Facts and Procedural History
Alice Earle Harper died on March 1, 2013. She left three surviving
children -- Alice Lynn, William, and James -- each of whom has been a
party to this case. During her lifetime, Alice Earle drafted several wills,
including one in 1995 and another in 2007. After her death, the children
disagreed about which of her wills governed. William and James said that
her 2007 will was valid, while Alice Lynn said that the 1995 will was the
proper document to probate.
1Our holding on jurisdiction pretermits discussion of the other issues
raised by the parties.
3
1180868, 1180869, 1180915, 1180916
Alice Lynn filed a petition in the Monroe Probate Court to probate
her mother's 1995 will. William moved to dismiss his sister's petition
because he was attempting to probate the 2007 will in Escambia County.
The Monroe Probate Court granted that motion. But following an appeal
to this Court, Alice Lynn's petition to probate the 1995 will was allowed
to proceed. See Taylor v. Harper, 164 So. 3d 542 (Ala. 2014).
Each sibling challenged the validity of the will favored by the other.
Eventually, in accordance with § 43-8-190, Ala. Code 1975, the contests of
the 1995 and 2007 wills were filed in the Monroe Probate Court. Alice
Lynn sought to transfer the contests from the probate court to the Monroe
Circuit Court under § 43-8-198, Ala. Code 1975. The probate court
transferred the documents pertaining to the will contests to the circuit
court. But that transfer lacked a certification from the probate court.
The will contests were tried to a jury. William presented evidence
in favor of the 2007 will, then Alice Lynn presented evidence in support
of the 1995 will. The jury found for Alice Lynn, and the circuit court
entered a judgment in her favor.
4
1180868, 1180869, 1180915, 1180916
William appealed the judgment, arguing, among other things, that
it is void for lack of jurisdiction. Alice Lynn cross-appealed.
Standard of Review
Subject-matter jurisdiction is an unwaivable issue that this Court
must consider ex mero motu. See MPQ, Inc. v. Birmingham Realty Co.,
78 So. 3d 391, 393 (Ala. 2011). "Matters of subject-matter jurisdiction are
subject to de novo review." DuBose v. Weaver, 68 So. 3d 814, 821 (Ala.
2011). If a circuit court's jurisdiction was not properly invoked, its
judgment is void and nonappealable. MPQ, 78 So. 3d at 394.
Analysis
The dispositive issue in this case is whether the circuit court ever
obtained jurisdiction over the will contests in light of the probate court's
failure to certify the papers and documents pertaining to the contests.2
Based on the plain language of the relevant statute, our precedent, and
2Alice Lynn does not contest William's assertion that the probate
court failed to certify the papers and documents to the circuit court. The
record is likewise devoid of any such certification from the probate court.
5
1180868, 1180869, 1180915, 1180916
the record before us, it is clear that the circuit court did not obtain
jurisdiction.
We begin with the text of the relevant statute. Section 43-8-198
provides, in relevant part:
"Upon the demand of any party to the contest, ... the
probate court, or the judge thereof, must enter an order
transferring the contest to the circuit court of the county in
which the contest is made, and must certify all papers and
documents pertaining to the contest to the clerk of the circuit
court, and the case shall be docketed by the clerk of the circuit
court and a special session of said court may be called for the
trial of said contest or, said contest may be tried by said circuit
court at any special or regular session of said court."
(Emphasis added.) Over the past several decades, our Court has held that
strict compliance with the requirements of § 43-8-198 is necessary for
jurisdiction to attach. Jones v. Brewster, 282 So. 3d 854, 858 (Ala. 2019)
("In a long line of cases, this Court has held that strict compliance with
the statutory language pertaining to a will contest is required to invoke
the jurisdiction of the appropriate court."). In other words, "[a] court
cannot depart from the procedures delineated in the statute and still
retain jurisdiction." See Kaller ex rel. Conway v. Rigdon, 480 So.2d 536,
539 (Ala. 1985). There are numerous cases from our Court affirming this
6
1180868, 1180869, 1180915, 1180916
principle. See, e.g., Jones, 282 So. 3d at 860 (holding that the circuit court
never obtained subject-matter jurisdiction over a will contest under § 43-
8-198 because the record was devoid of a transfer order from the probate
court); Burns v. Ashley, 274 So. 3d 970, 974 (Ala. 2018) ("[A] circuit court
cannot assume jurisdiction over a will contest pending in probate court
absent strict compliance with the procedural requirements of § 43-8-198."
(emphasis added)); Marshall v. Vreeland, 571 So. 2d 1037, 1038 (Ala.
1990) ("The requirements of § 43-8-198 must be complied with exactly,
because will contest jurisdiction is statutorily conferred upon the circuit
court." (emphasis added)); Bullen v. Brown, 535 So. 2d 76, 78 (Ala. 1988)
("It is clear that will contest jurisdiction, being statutorily conferred, must
comply with the statutory language strictly in order to quicken
jurisdiction of the appropriate court." (emphasis added)); Kaller, 480 So.
2d at 538 ("Because will contest jurisdiction is statutorily conferred, the
procedural requirements of the applicable statute must be complied with
exactly." (emphasis added)). By pairing the plain language of the statute
with our precedent, the clear rule is that "a circuit court cannot assume
jurisdiction over a will contest pending in probate court absent strict
7
1180868, 1180869, 1180915, 1180916
compliance with the procedural requirements of § 43-8-198." Burns, 274
So. 3d at 974.
Two years ago, this Court listed the seven requirements that must
be met to establish compliance with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
Jones, 282 So. 3d at 857-58 (emphasis added; internal citation omitted).
Therefore, in line with this statement and our otherwise consistent
application of strict compliance with the statute, a probate court must
certify the probate record pertaining to the will contest to the circuit-court
clerk in order for the circuit court to obtain jurisdiction.
Although certification may seem like a mere technicality, there is an
important reason for requiring it. "The policy behind [certification] is to
8
1180868, 1180869, 1180915, 1180916
allow a will and other original documents, previously admitted to the
probate court, to become part of the record in the circuit court without
further authentication." Jones, 282 So. 3d at 865-66 (Sellers, J.,
dissenting). This requirement is no more taxing or technical than the
other requirements in § 43-8-198 we consistently enforce. See, e.g., Jones,
282 So. 3d at 860 (voiding the judgment entered on a jury verdict
following a three-day trial because the absence of a transfer order in the
circuit-court record defeated the circuit court's jurisdiction); Burns, 274
So. 3d at 974 (dismissing the appeal of a judgment that was void for lack
of jurisdiction in the circuit court because the probate court never entered
a transfer order despite having an imperative duty to do so); Kaller, 480
So. 2d 538 (reversing a circuit-court judgment entered on a jury verdict
and remanding based on the circuit court's lack of jurisdiction under § 43-
8-198 "because the proponent did not file a pleading at the same time he
filed the motion to transfer").
Alice Lynn cites Cook v. Cook, 396 So. 2d 1037 (Ala. 1981), to
support her argument that mere transfer of the files to the circuit court --
without certification -- is sufficient to establish compliance with § 43-8-
9
1180868, 1180869, 1180915, 1180916
198. As noted by William, this argument is misguided. In Cook, the
Court refused to hold that a probate court's failure to certify the papers
and documents in a will contest defeated jurisdiction under the
predecessor statute to § 43-8-198. 396 So. 2d at 1040. It did so because,
it said, the Court "can tell when jurisdiction attache[s]." Id. On the facts
before it, the Court deemed the circuit court's acknowledged receipt of the
papers on the record and the notation of transfer on the docket sheet to be
sufficient. Id.
But in the 40 years since this Court issued its opinion in Cook, that
case has never been cited in another opinion for the proposition that
certification can be disregarded or relaxed.3 And since 1981, this Court's
3At the time of this decision, Cook has been cited by a court in an
opinion only seven times. In six of those opinions, Cook was cited for
propositions relating to the qualification of expert witnesses. Baker v.
Merry-Go-Round Roller Rink, Inc., 537 So. 2d 1, 3 (Ala. 1988); McKelvy v.
Darnell, 587 So. 2d 980, 985 (Ala. 1991); Levarsque v. Regional Med. Ctr.
Bd., 612 So. 2d 445, 449 (Ala. 1993); Bowden v. State, 610 So. 2d 1256,
1258 (Ala. Crim. App. 1992); Revis v. State, 101 So. 3d 247, 292 (Ala.
Crim. App. 2011); Lane v. State, [Ms. CR-15-1087, May, 29, 2020] ___ So.
3d ___, ____ (Ala. Crim. App. 2020). The remaining opinion, Bolan v.
Bolan, 611 So. 2d 1051 (Ala. 1993), is a will-contest transfer case. But
certification was not the issue there either. See id. at 1054. In Bolan, the
issue was whether the contest and the motion for transfer were filed on
10
1180868, 1180869, 1180915, 1180916
interpretation of § 43-8-198 has become difficult to square with Cook's
disregard of the certification requirement. In adopting a strict-compliance
approach, this Court has not differentiated between the various
requirements of the statute and has gone so far as listing certification as
a "prerequisite[] [that] must be met." Jones, 282 So. 3d at 857. Even the
dissents in Burns and Jones acknowledged the necessity of the
certification requirement. See Burns, 274 So. 3d at 976 (Sellers, J.,
dissenting); Jones, 282 So. 3d at 865 (Sellers, J., dissenting) ("There is no
question that compliance with this statute requires ... certifying papers
filed in the probate court to the circuit court."). So it would be odd -- if not
contradictory -- to require substantial compliance for one procedural
requirement in § 43-8-198 (certification) when the text and the weight of
our decisions from the past 40 years indicate that all requirements of the
statute must be strictly satisfied. Because Cook has been implicitly
overruled by our subsequent decisions mandating that the statute "must
different days. Id. The Court cited broad principles from Cook to support
its holding that the proponents had failed to meet their burden of
demonstrating that the filings were, in fact, made on separate days. Id.
11
1180868, 1180869, 1180915, 1180916
be followed to the letter," Kaller, 480 So. 2d at 539, we hold that mere
transfer of documents by the probate court is not enough to satisfy § 43-8-
198. In accordance with the statutory text, "all papers and documents
pertaining to the contest" must be certified by the probate court.
Conclusion
The circuit court never obtained jurisdiction because the probate-
court records were never certified upon the attempted transfer of the will
contests to the circuit court as is required by § 43-8-198. Thus, the
judgment of the circuit court is void. Since a void judgment will not
support an appeal, McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017),
these appeals are dismissed. We accordingly direct the circuit court to
vacate its judgment in favor of Alice Lynn.
1180868 -- APPEAL DISMISSED.
1180869 -- APPEAL DISMISSED.
1180915 -- APPEAL DISMISSED.
1180916 -- APPEAL DISMISSED.
Parker, C.J., and Bryan and Stewart, JJ., concur.
Shaw, J., concurs in the result.
12
1180868, 1180869, 1180915, 1180916
Bolin, Wise, and Sellers, JJ., dissent.
Mendheim, J., recuses himself.
13
1180868, 1180869, 1180915, 1180916
SHAW, Justice (concurring in the result).
I concur in the result and agree with the main opinion that, for a
circuit court to obtain jurisdiction over a will contest transferred from a
probate court, the probate court "must certify all papers and documents
pertaining to the contest to the clerk of the circuit court." Ala. Code 1975,
§ 43-8-198. Our prior caselaw requires strict compliance with § 43-8-198
in order for a circuit court to obtain jurisdiction. Kaller ex rel. Conway v.
Rigdon, 480 So. 2d 536, 538 (Ala. 1985) ("Because will contest jurisdiction
is statutorily conferred, the procedural requirements of [§ 43-8-198] must
be complied with exactly.").
A will contest is initiated in the probate court by the filing of written
"allegations." Ala. Code 1975, § 43-8-190. A party may make a demand
to transfer the contest to the circuit court "in writing at the time of filing
the initial pleading." § 43-8-198. Ex parte Ricks, 164 So. 3d 1141, 1146
(Ala. 2014) (holding that a proper demand for a transfer under § 43-8-198
is required for the probate court to be divested of jurisdiction). The
probate court must enter an order transferring the contest to the circuit
court; this is required for the circuit court to obtain jurisdiction. Jones v.
14
1180868, 1180869, 1180915, 1180916
Brewster, 282 So. 3d 854, 860 (Ala. 2019) ("The entry of a written order
by the probate court transferring a will contest to the circuit court is an
essential procedural requirement under § 43-8-198 in order for the circuit
court to obtain subject-matter jurisdiction, and the probate court had an
imperative duty to enter such an order.").
Section 43-8-198 further requires that the probate court "must
certify all papers and documents pertaining to the contest to the clerk of
the circuit court." On its face, this could be viewed as a mere ministerial
duty on the part of the probate court. However, as noted above, a will
contest under § 43-8-198 is initiated in the probate court by the filing of
the written "allegations" in that court, that is, the contestant's pleadings
that invoke the will-contest action. The order to transfer alone does not
provide the circuit court with the pleadings that actually initiate the
action. Section 43-8-198 seems to indicate that it is necessary for the
"papers and documents pertaining to the contest," including the pleadings
necessary to invoke jurisdiction over a will contest, to be submitted to the
circuit court for it to obtain jurisdiction. How that is done is specifically
defined: the probate court "must certify" all the papers and documents.
15
1180868, 1180869, 1180915, 1180916
This step is required by § 43-8-198 and "must be complied with exactly."
Kaller, 480 So. 2d at 538.
In Cook v. Cook, 396 So. 2d 1037, 1040 (Ala. 1981), the papers and
documents from the probate court were never certified to the circuit clerk.
This Court conceded that a "formal order and certification is desirable"
but that the circuit clerk had acknowledged receipt of the papers and the
docket sheet indicated that the file had been transferred to the circuit
court. 396 So. 2d at 1040. The Court held: "[T]he purpose of the statute
is met. We can tell when jurisdiction attached in circuit court of the will
contest." Id. I respectfully disagree on both points.
It is necessary that the circuit court receives a complete and correct
record, which a certification would ensure. I cannot conclude that an
uncertified record would satisfy that purpose; an uncertified record that
may not be complete or correct would not allow one to "tell" with the
requisite confidence "when jurisdiction attached." This might not be
required in other contexts, such as when a circuit court transfers a case
to another circuit court, or when a circuit court removes the
administration of an estate from the probate court, but the requirements
16
1180868, 1180869, 1180915, 1180916
for a will-contest transfer, which, according to our caselaw, is necessary
for jurisdiction to attach, are specifically provided here. Although the
Court in Cook held that the "purpose" of the Code section had been met,
its terms were not.
Stated differently, in the context of a will-contest transfer, the
legislature has authorized the imposition of jurisdiction on the circuit
court by the probate court. To accomplish that end, it appears that the
circuit court does not acquire jurisdiction until a transfer order has been
issued by the probate court and the circuit court has received a certified
record, which would necessarily include the important pleadings that
initiate the action. This appears to be different from the statutorily
authorized removal of the administration of an estate, which is an existing
proceeding, from the probate court by the circuit court, where the circuit
court, once assuming jurisdiction by order, may thereafter direct the
probate court to perform the ministerial duty of transferring necessary
documentation. Ala. Code 1975, § 12-11-41. In any event, the
jurisdictional requirements for the movement of matters between the
17
1180868, 1180869, 1180915, 1180916
probate court and the circuit court are within the exclusive purview of the
legislature and can be clarified by that body as it sees fit.
"This Court is duty bound to notice ex mero motu the absence of
subject-matter jurisdiction." Stamps v. Jefferson Cnty. Bd. of Educ., 642
So. 2d 941, 945 n.2 (Ala. 1994) (emphasis added). See also Walker Cnty.
Comm'n v. Kelly, 262 So. 3d 631, 637 (Ala. 2018) (same). The decision in
Cook, in my opinion, incorrectly provides jurisdiction when it is denied by
law.
This Court in Jones, supra, restated the requirements of § 43-8-198
as follows:
"To comply with the statute, the following prerequisites must
be met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested ...; (2)
the party seeking the transfer must file a written demand for
the transfer in the probate court; (3) the transfer demand must
be filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
18
1180868, 1180869, 1180915, 1180916
282 So. 3d at 857-58. I read this discussion as merely summarizing the
Code section and not holding that the items of the list are all jurisdictional
prerequisites.
19
1180868, 1180869, 1180915, 1180916
BOLIN, Justice (dissenting).
I disagree that the circuit court lacked subject-matter jurisdiction
over the will contests because the probate court entered a written order
transferring the will contests to the circuit-court clerk. Therefore, I
respectfully dissent.
Probate courts have original and general jurisdiction over the
probate of wills and over the "granting of letters testamentary and of
administration." § 12-13-1(b)(2), Ala. Code 1975. Under Alabama law, a
circuit court, under specified and explicit conditions, can obtain
subject-matter jurisdiction over the contest of a will not yet admitted to
probate. Section 43-8-190, Ala. Code 1975, allows for a contest to be filed
in the probate court before the probate of a will. Section 43-8-198, Ala.
Code 1975, which must be read in conjunction with 43-8-190, see Bardin
v. Jones, 371 So. 2d 23 (Ala. 1979),4 goes further to provide for the
transfer of a will contest from the probate court, which has original
4Bardin construed former § 43-1-70 and former § 43-1-78, Ala. Code
1975, the predecessor statutes to § 43-8-190 and § 43-8-198, respectively.
20
1180868, 1180869, 1180915, 1180916
jurisdiction of the proceedings, to the circuit court. In my special writing
in Jones v. Brewster, 282 So. 3d 854, 861 (Ala. 2019), I noted that § 43-8-
198 unambiguously describes the requirements necessary for the transfer
of a nonprobated-will contest from the probate court to the circuit court,
for the circuit court to adjudicate the contest issue only. Section 43-8-198
mandates that "the probate court, or the judge thereof, must enter an
order transferring the contest to the circuit court of the county in which
the contest is made, and must certify all papers and documents pertaining
to the contest to the clerk of the circuit court...." The entry of the transfer
order is a statutorily mandated judicial action, the absence of which
results in no jurisdiction being transferred to and conferred in the circuit
court. The certification of papers and documents for the circuit-court clerk
is a ministerial function that neither confirms nor quickens the
jurisdiction of the circuit court.
In the present case, the lack of certification of "papers and
documents" did not deprive the circuit court of subject-matter
jurisdiction. Any failure of the probate court to perform a ministerial
function, such as certifying papers and documents, should be addressed
21
1180868, 1180869, 1180915, 1180916
to the circuit-court clerk for remediation between the probate-court clerk's
office and the circuit-court clerk's office. Similarly, our Supreme Court
Clerk addresses any defects or failings in records presented to this Court
on appeal; those appeals are not immediately dismissed for lack of subject-
matter jurisdiction.
In Jones v. Brewster, supra, this Court set out seven requirements
that must exist to comply with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court[, or the judge
thereof,] must enter a written order transferring the will
contest to the circuit court; (5) the probate court[, or the judge
thereof,] must certify the probate-court record pertaining to
the will contest to the circuit-court clerk; (6) the circuit-court
clerk shall docket the case in the circuit court; and (7) the
circuit court must set the will contest for a trial at a regular or
a special session of court."
282 So. 3d at 857-58 (internal citation omitted). In my opinion, as I
outlined in my special writing in Jones, the only condition that is
necessary from a jurisdictional standpoint to transfer a will contest from
the probate court to the circuit court pursuant to §43-8-198 is the written
22
1180868, 1180869, 1180915, 1180916
transfer order entered by the probate judge. Judges are authorized to
enter orders, while the respective clerks' offices certify and transfer
records.
I recognize that § 43-8-198 must be strictly construed, because
probate statutes were unknown to the common law. The legislature
requires that the certification of papers and documents should be to the
circuit-court clerk. When the issue of a will contest is transferred from
the probate court to the circuit court, after the circuit court determines
whether the will is valid, the administration of the estate is returned to
and conducted by the probate court. When a party removes the
administration of an estate from the probate court to the circuit court
under § 12-11-41, Ala. Code 1975, the filing of a petition for removal in the
circuit court and the entry of an order of removal by that court are the
prerequisites. If the legislature intended for certification of papers and
documents, i.e., a record, to the circuit-court clerk to be a judicial
action/jurisdictional requirement for a will contest, why would the
legislature not make such a requirement necessary for the removal of the
entire administration of the estate?
23
1180868, 1180869, 1180915, 1180916
I recognize that the gradual development of probate law over many
decades has often resulted in specialized procedural traps for both
unwary practitioners and judges. However, the Alabama Law Institute
has commissioned a standing committee to review and propose legislative
changes that, I hope, will make probate law both easier and fairer for all.
Sellers, J., concurs.
24 | June 11, 2021 |
0f945072-b4fb-4f31-9dc9-7279056b5d96 | Ex parte Kotoni Robzell Tellis. | N/A | 1200526 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200526
Ex parte Kotoni Robzell Tellis. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Kotoni Robzell Tellis v. State
of Alabama) (Dale Circuit Court: CC-07-335.61; Criminal Appeals :
CR-20-0117).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 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 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
a9187417-803d-4502-9fd0-e04cb8483f64 | Alice Lynn Harper Taylor. v. William C. Harper | N/A | 1180915 | Alabama | Alabama Supreme Court | REL: June 11, 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, 2020-2021
____________________
1180868
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-15-6)
____________________
1180869
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180915
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180916
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-15-1)
MITCHELL, Justice.
1180868, 1180869, 1180915, 1180916
These appeals arise from a will-contest dispute between siblings.
After their mother died, William C. Harper and Alice Lynn Harper Taylor
disagreed about which version of their mother's will governed the
disposition of her assets. After a purported transfer of the will contests
from probate court to circuit court, the siblings submitted their dispute to
a jury, which returned a verdict for Alice Lynn. William appealed and
Alice Lynn cross-appealed. Because jurisdiction never properly vested in
the circuit court, we dismiss these appeals.1
Facts and Procedural History
Alice Earle Harper died on March 1, 2013. She left three surviving
children -- Alice Lynn, William, and James -- each of whom has been a
party to this case. During her lifetime, Alice Earle drafted several wills,
including one in 1995 and another in 2007. After her death, the children
disagreed about which of her wills governed. William and James said that
her 2007 will was valid, while Alice Lynn said that the 1995 will was the
proper document to probate.
1Our holding on jurisdiction pretermits discussion of the other issues
raised by the parties.
3
1180868, 1180869, 1180915, 1180916
Alice Lynn filed a petition in the Monroe Probate Court to probate
her mother's 1995 will. William moved to dismiss his sister's petition
because he was attempting to probate the 2007 will in Escambia County.
The Monroe Probate Court granted that motion. But following an appeal
to this Court, Alice Lynn's petition to probate the 1995 will was allowed
to proceed. See Taylor v. Harper, 164 So. 3d 542 (Ala. 2014).
Each sibling challenged the validity of the will favored by the other.
Eventually, in accordance with § 43-8-190, Ala. Code 1975, the contests of
the 1995 and 2007 wills were filed in the Monroe Probate Court. Alice
Lynn sought to transfer the contests from the probate court to the Monroe
Circuit Court under § 43-8-198, Ala. Code 1975. The probate court
transferred the documents pertaining to the will contests to the circuit
court. But that transfer lacked a certification from the probate court.
The will contests were tried to a jury. William presented evidence
in favor of the 2007 will, then Alice Lynn presented evidence in support
of the 1995 will. The jury found for Alice Lynn, and the circuit court
entered a judgment in her favor.
4
1180868, 1180869, 1180915, 1180916
William appealed the judgment, arguing, among other things, that
it is void for lack of jurisdiction. Alice Lynn cross-appealed.
Standard of Review
Subject-matter jurisdiction is an unwaivable issue that this Court
must consider ex mero motu. See MPQ, Inc. v. Birmingham Realty Co.,
78 So. 3d 391, 393 (Ala. 2011). "Matters of subject-matter jurisdiction are
subject to de novo review." DuBose v. Weaver, 68 So. 3d 814, 821 (Ala.
2011). If a circuit court's jurisdiction was not properly invoked, its
judgment is void and nonappealable. MPQ, 78 So. 3d at 394.
Analysis
The dispositive issue in this case is whether the circuit court ever
obtained jurisdiction over the will contests in light of the probate court's
failure to certify the papers and documents pertaining to the contests.2
Based on the plain language of the relevant statute, our precedent, and
2Alice Lynn does not contest William's assertion that the probate
court failed to certify the papers and documents to the circuit court. The
record is likewise devoid of any such certification from the probate court.
5
1180868, 1180869, 1180915, 1180916
the record before us, it is clear that the circuit court did not obtain
jurisdiction.
We begin with the text of the relevant statute. Section 43-8-198
provides, in relevant part:
"Upon the demand of any party to the contest, ... the
probate court, or the judge thereof, must enter an order
transferring the contest to the circuit court of the county in
which the contest is made, and must certify all papers and
documents pertaining to the contest to the clerk of the circuit
court, and the case shall be docketed by the clerk of the circuit
court and a special session of said court may be called for the
trial of said contest or, said contest may be tried by said circuit
court at any special or regular session of said court."
(Emphasis added.) Over the past several decades, our Court has held that
strict compliance with the requirements of § 43-8-198 is necessary for
jurisdiction to attach. Jones v. Brewster, 282 So. 3d 854, 858 (Ala. 2019)
("In a long line of cases, this Court has held that strict compliance with
the statutory language pertaining to a will contest is required to invoke
the jurisdiction of the appropriate court."). In other words, "[a] court
cannot depart from the procedures delineated in the statute and still
retain jurisdiction." See Kaller ex rel. Conway v. Rigdon, 480 So.2d 536,
539 (Ala. 1985). There are numerous cases from our Court affirming this
6
1180868, 1180869, 1180915, 1180916
principle. See, e.g., Jones, 282 So. 3d at 860 (holding that the circuit court
never obtained subject-matter jurisdiction over a will contest under § 43-
8-198 because the record was devoid of a transfer order from the probate
court); Burns v. Ashley, 274 So. 3d 970, 974 (Ala. 2018) ("[A] circuit court
cannot assume jurisdiction over a will contest pending in probate court
absent strict compliance with the procedural requirements of § 43-8-198."
(emphasis added)); Marshall v. Vreeland, 571 So. 2d 1037, 1038 (Ala.
1990) ("The requirements of § 43-8-198 must be complied with exactly,
because will contest jurisdiction is statutorily conferred upon the circuit
court." (emphasis added)); Bullen v. Brown, 535 So. 2d 76, 78 (Ala. 1988)
("It is clear that will contest jurisdiction, being statutorily conferred, must
comply with the statutory language strictly in order to quicken
jurisdiction of the appropriate court." (emphasis added)); Kaller, 480 So.
2d at 538 ("Because will contest jurisdiction is statutorily conferred, the
procedural requirements of the applicable statute must be complied with
exactly." (emphasis added)). By pairing the plain language of the statute
with our precedent, the clear rule is that "a circuit court cannot assume
jurisdiction over a will contest pending in probate court absent strict
7
1180868, 1180869, 1180915, 1180916
compliance with the procedural requirements of § 43-8-198." Burns, 274
So. 3d at 974.
Two years ago, this Court listed the seven requirements that must
be met to establish compliance with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
Jones, 282 So. 3d at 857-58 (emphasis added; internal citation omitted).
Therefore, in line with this statement and our otherwise consistent
application of strict compliance with the statute, a probate court must
certify the probate record pertaining to the will contest to the circuit-court
clerk in order for the circuit court to obtain jurisdiction.
Although certification may seem like a mere technicality, there is an
important reason for requiring it. "The policy behind [certification] is to
8
1180868, 1180869, 1180915, 1180916
allow a will and other original documents, previously admitted to the
probate court, to become part of the record in the circuit court without
further authentication." Jones, 282 So. 3d at 865-66 (Sellers, J.,
dissenting). This requirement is no more taxing or technical than the
other requirements in § 43-8-198 we consistently enforce. See, e.g., Jones,
282 So. 3d at 860 (voiding the judgment entered on a jury verdict
following a three-day trial because the absence of a transfer order in the
circuit-court record defeated the circuit court's jurisdiction); Burns, 274
So. 3d at 974 (dismissing the appeal of a judgment that was void for lack
of jurisdiction in the circuit court because the probate court never entered
a transfer order despite having an imperative duty to do so); Kaller, 480
So. 2d 538 (reversing a circuit-court judgment entered on a jury verdict
and remanding based on the circuit court's lack of jurisdiction under § 43-
8-198 "because the proponent did not file a pleading at the same time he
filed the motion to transfer").
Alice Lynn cites Cook v. Cook, 396 So. 2d 1037 (Ala. 1981), to
support her argument that mere transfer of the files to the circuit court --
without certification -- is sufficient to establish compliance with § 43-8-
9
1180868, 1180869, 1180915, 1180916
198. As noted by William, this argument is misguided. In Cook, the
Court refused to hold that a probate court's failure to certify the papers
and documents in a will contest defeated jurisdiction under the
predecessor statute to § 43-8-198. 396 So. 2d at 1040. It did so because,
it said, the Court "can tell when jurisdiction attache[s]." Id. On the facts
before it, the Court deemed the circuit court's acknowledged receipt of the
papers on the record and the notation of transfer on the docket sheet to be
sufficient. Id.
But in the 40 years since this Court issued its opinion in Cook, that
case has never been cited in another opinion for the proposition that
certification can be disregarded or relaxed.3 And since 1981, this Court's
3At the time of this decision, Cook has been cited by a court in an
opinion only seven times. In six of those opinions, Cook was cited for
propositions relating to the qualification of expert witnesses. Baker v.
Merry-Go-Round Roller Rink, Inc., 537 So. 2d 1, 3 (Ala. 1988); McKelvy v.
Darnell, 587 So. 2d 980, 985 (Ala. 1991); Levarsque v. Regional Med. Ctr.
Bd., 612 So. 2d 445, 449 (Ala. 1993); Bowden v. State, 610 So. 2d 1256,
1258 (Ala. Crim. App. 1992); Revis v. State, 101 So. 3d 247, 292 (Ala.
Crim. App. 2011); Lane v. State, [Ms. CR-15-1087, May, 29, 2020] ___ So.
3d ___, ____ (Ala. Crim. App. 2020). The remaining opinion, Bolan v.
Bolan, 611 So. 2d 1051 (Ala. 1993), is a will-contest transfer case. But
certification was not the issue there either. See id. at 1054. In Bolan, the
issue was whether the contest and the motion for transfer were filed on
10
1180868, 1180869, 1180915, 1180916
interpretation of § 43-8-198 has become difficult to square with Cook's
disregard of the certification requirement. In adopting a strict-compliance
approach, this Court has not differentiated between the various
requirements of the statute and has gone so far as listing certification as
a "prerequisite[] [that] must be met." Jones, 282 So. 3d at 857. Even the
dissents in Burns and Jones acknowledged the necessity of the
certification requirement. See Burns, 274 So. 3d at 976 (Sellers, J.,
dissenting); Jones, 282 So. 3d at 865 (Sellers, J., dissenting) ("There is no
question that compliance with this statute requires ... certifying papers
filed in the probate court to the circuit court."). So it would be odd -- if not
contradictory -- to require substantial compliance for one procedural
requirement in § 43-8-198 (certification) when the text and the weight of
our decisions from the past 40 years indicate that all requirements of the
statute must be strictly satisfied. Because Cook has been implicitly
overruled by our subsequent decisions mandating that the statute "must
different days. Id. The Court cited broad principles from Cook to support
its holding that the proponents had failed to meet their burden of
demonstrating that the filings were, in fact, made on separate days. Id.
11
1180868, 1180869, 1180915, 1180916
be followed to the letter," Kaller, 480 So. 2d at 539, we hold that mere
transfer of documents by the probate court is not enough to satisfy § 43-8-
198. In accordance with the statutory text, "all papers and documents
pertaining to the contest" must be certified by the probate court.
Conclusion
The circuit court never obtained jurisdiction because the probate-
court records were never certified upon the attempted transfer of the will
contests to the circuit court as is required by § 43-8-198. Thus, the
judgment of the circuit court is void. Since a void judgment will not
support an appeal, McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017),
these appeals are dismissed. We accordingly direct the circuit court to
vacate its judgment in favor of Alice Lynn.
1180868 -- APPEAL DISMISSED.
1180869 -- APPEAL DISMISSED.
1180915 -- APPEAL DISMISSED.
1180916 -- APPEAL DISMISSED.
Parker, C.J., and Bryan and Stewart, JJ., concur.
Shaw, J., concurs in the result.
12
1180868, 1180869, 1180915, 1180916
Bolin, Wise, and Sellers, JJ., dissent.
Mendheim, J., recuses himself.
13
1180868, 1180869, 1180915, 1180916
SHAW, Justice (concurring in the result).
I concur in the result and agree with the main opinion that, for a
circuit court to obtain jurisdiction over a will contest transferred from a
probate court, the probate court "must certify all papers and documents
pertaining to the contest to the clerk of the circuit court." Ala. Code 1975,
§ 43-8-198. Our prior caselaw requires strict compliance with § 43-8-198
in order for a circuit court to obtain jurisdiction. Kaller ex rel. Conway v.
Rigdon, 480 So. 2d 536, 538 (Ala. 1985) ("Because will contest jurisdiction
is statutorily conferred, the procedural requirements of [§ 43-8-198] must
be complied with exactly.").
A will contest is initiated in the probate court by the filing of written
"allegations." Ala. Code 1975, § 43-8-190. A party may make a demand
to transfer the contest to the circuit court "in writing at the time of filing
the initial pleading." § 43-8-198. Ex parte Ricks, 164 So. 3d 1141, 1146
(Ala. 2014) (holding that a proper demand for a transfer under § 43-8-198
is required for the probate court to be divested of jurisdiction). The
probate court must enter an order transferring the contest to the circuit
court; this is required for the circuit court to obtain jurisdiction. Jones v.
14
1180868, 1180869, 1180915, 1180916
Brewster, 282 So. 3d 854, 860 (Ala. 2019) ("The entry of a written order
by the probate court transferring a will contest to the circuit court is an
essential procedural requirement under § 43-8-198 in order for the circuit
court to obtain subject-matter jurisdiction, and the probate court had an
imperative duty to enter such an order.").
Section 43-8-198 further requires that the probate court "must
certify all papers and documents pertaining to the contest to the clerk of
the circuit court." On its face, this could be viewed as a mere ministerial
duty on the part of the probate court. However, as noted above, a will
contest under § 43-8-198 is initiated in the probate court by the filing of
the written "allegations" in that court, that is, the contestant's pleadings
that invoke the will-contest action. The order to transfer alone does not
provide the circuit court with the pleadings that actually initiate the
action. Section 43-8-198 seems to indicate that it is necessary for the
"papers and documents pertaining to the contest," including the pleadings
necessary to invoke jurisdiction over a will contest, to be submitted to the
circuit court for it to obtain jurisdiction. How that is done is specifically
defined: the probate court "must certify" all the papers and documents.
15
1180868, 1180869, 1180915, 1180916
This step is required by § 43-8-198 and "must be complied with exactly."
Kaller, 480 So. 2d at 538.
In Cook v. Cook, 396 So. 2d 1037, 1040 (Ala. 1981), the papers and
documents from the probate court were never certified to the circuit clerk.
This Court conceded that a "formal order and certification is desirable"
but that the circuit clerk had acknowledged receipt of the papers and the
docket sheet indicated that the file had been transferred to the circuit
court. 396 So. 2d at 1040. The Court held: "[T]he purpose of the statute
is met. We can tell when jurisdiction attached in circuit court of the will
contest." Id. I respectfully disagree on both points.
It is necessary that the circuit court receives a complete and correct
record, which a certification would ensure. I cannot conclude that an
uncertified record would satisfy that purpose; an uncertified record that
may not be complete or correct would not allow one to "tell" with the
requisite confidence "when jurisdiction attached." This might not be
required in other contexts, such as when a circuit court transfers a case
to another circuit court, or when a circuit court removes the
administration of an estate from the probate court, but the requirements
16
1180868, 1180869, 1180915, 1180916
for a will-contest transfer, which, according to our caselaw, is necessary
for jurisdiction to attach, are specifically provided here. Although the
Court in Cook held that the "purpose" of the Code section had been met,
its terms were not.
Stated differently, in the context of a will-contest transfer, the
legislature has authorized the imposition of jurisdiction on the circuit
court by the probate court. To accomplish that end, it appears that the
circuit court does not acquire jurisdiction until a transfer order has been
issued by the probate court and the circuit court has received a certified
record, which would necessarily include the important pleadings that
initiate the action. This appears to be different from the statutorily
authorized removal of the administration of an estate, which is an existing
proceeding, from the probate court by the circuit court, where the circuit
court, once assuming jurisdiction by order, may thereafter direct the
probate court to perform the ministerial duty of transferring necessary
documentation. Ala. Code 1975, § 12-11-41. In any event, the
jurisdictional requirements for the movement of matters between the
17
1180868, 1180869, 1180915, 1180916
probate court and the circuit court are within the exclusive purview of the
legislature and can be clarified by that body as it sees fit.
"This Court is duty bound to notice ex mero motu the absence of
subject-matter jurisdiction." Stamps v. Jefferson Cnty. Bd. of Educ., 642
So. 2d 941, 945 n.2 (Ala. 1994) (emphasis added). See also Walker Cnty.
Comm'n v. Kelly, 262 So. 3d 631, 637 (Ala. 2018) (same). The decision in
Cook, in my opinion, incorrectly provides jurisdiction when it is denied by
law.
This Court in Jones, supra, restated the requirements of § 43-8-198
as follows:
"To comply with the statute, the following prerequisites must
be met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested ...; (2)
the party seeking the transfer must file a written demand for
the transfer in the probate court; (3) the transfer demand must
be filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
18
1180868, 1180869, 1180915, 1180916
282 So. 3d at 857-58. I read this discussion as merely summarizing the
Code section and not holding that the items of the list are all jurisdictional
prerequisites.
19
1180868, 1180869, 1180915, 1180916
BOLIN, Justice (dissenting).
I disagree that the circuit court lacked subject-matter jurisdiction
over the will contests because the probate court entered a written order
transferring the will contests to the circuit-court clerk. Therefore, I
respectfully dissent.
Probate courts have original and general jurisdiction over the
probate of wills and over the "granting of letters testamentary and of
administration." § 12-13-1(b)(2), Ala. Code 1975. Under Alabama law, a
circuit court, under specified and explicit conditions, can obtain
subject-matter jurisdiction over the contest of a will not yet admitted to
probate. Section 43-8-190, Ala. Code 1975, allows for a contest to be filed
in the probate court before the probate of a will. Section 43-8-198, Ala.
Code 1975, which must be read in conjunction with 43-8-190, see Bardin
v. Jones, 371 So. 2d 23 (Ala. 1979),4 goes further to provide for the
transfer of a will contest from the probate court, which has original
4Bardin construed former § 43-1-70 and former § 43-1-78, Ala. Code
1975, the predecessor statutes to § 43-8-190 and § 43-8-198, respectively.
20
1180868, 1180869, 1180915, 1180916
jurisdiction of the proceedings, to the circuit court. In my special writing
in Jones v. Brewster, 282 So. 3d 854, 861 (Ala. 2019), I noted that § 43-8-
198 unambiguously describes the requirements necessary for the transfer
of a nonprobated-will contest from the probate court to the circuit court,
for the circuit court to adjudicate the contest issue only. Section 43-8-198
mandates that "the probate court, or the judge thereof, must enter an
order transferring the contest to the circuit court of the county in which
the contest is made, and must certify all papers and documents pertaining
to the contest to the clerk of the circuit court...." The entry of the transfer
order is a statutorily mandated judicial action, the absence of which
results in no jurisdiction being transferred to and conferred in the circuit
court. The certification of papers and documents for the circuit-court clerk
is a ministerial function that neither confirms nor quickens the
jurisdiction of the circuit court.
In the present case, the lack of certification of "papers and
documents" did not deprive the circuit court of subject-matter
jurisdiction. Any failure of the probate court to perform a ministerial
function, such as certifying papers and documents, should be addressed
21
1180868, 1180869, 1180915, 1180916
to the circuit-court clerk for remediation between the probate-court clerk's
office and the circuit-court clerk's office. Similarly, our Supreme Court
Clerk addresses any defects or failings in records presented to this Court
on appeal; those appeals are not immediately dismissed for lack of subject-
matter jurisdiction.
In Jones v. Brewster, supra, this Court set out seven requirements
that must exist to comply with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court[, or the judge
thereof,] must enter a written order transferring the will
contest to the circuit court; (5) the probate court[, or the judge
thereof,] must certify the probate-court record pertaining to
the will contest to the circuit-court clerk; (6) the circuit-court
clerk shall docket the case in the circuit court; and (7) the
circuit court must set the will contest for a trial at a regular or
a special session of court."
282 So. 3d at 857-58 (internal citation omitted). In my opinion, as I
outlined in my special writing in Jones, the only condition that is
necessary from a jurisdictional standpoint to transfer a will contest from
the probate court to the circuit court pursuant to §43-8-198 is the written
22
1180868, 1180869, 1180915, 1180916
transfer order entered by the probate judge. Judges are authorized to
enter orders, while the respective clerks' offices certify and transfer
records.
I recognize that § 43-8-198 must be strictly construed, because
probate statutes were unknown to the common law. The legislature
requires that the certification of papers and documents should be to the
circuit-court clerk. When the issue of a will contest is transferred from
the probate court to the circuit court, after the circuit court determines
whether the will is valid, the administration of the estate is returned to
and conducted by the probate court. When a party removes the
administration of an estate from the probate court to the circuit court
under § 12-11-41, Ala. Code 1975, the filing of a petition for removal in the
circuit court and the entry of an order of removal by that court are the
prerequisites. If the legislature intended for certification of papers and
documents, i.e., a record, to the circuit-court clerk to be a judicial
action/jurisdictional requirement for a will contest, why would the
legislature not make such a requirement necessary for the removal of the
entire administration of the estate?
23
1180868, 1180869, 1180915, 1180916
I recognize that the gradual development of probate law over many
decades has often resulted in specialized procedural traps for both
unwary practitioners and judges. However, the Alabama Law Institute
has commissioned a standing committee to review and propose legislative
changes that, I hope, will make probate law both easier and fairer for all.
Sellers, J., concurs.
24 | June 11, 2021 |
01ea23fa-b363-4ecd-806c-9ec39dc1408f | William C. Harper v. Alice Lynn Harper Taylor | N/A | 1180869 | Alabama | Alabama Supreme Court | REL: June 11, 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, 2020-2021
____________________
1180868
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-15-6)
____________________
1180869
____________________
William C. Harper
v.
Alice Lynn Harper Taylor
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180915
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-18-1)
____________________
1180916
____________________
Alice Lynn Harper Taylor
v.
William C. Harper
Appeal from Monroe Circuit Court
(CV-15-1)
MITCHELL, Justice.
1180868, 1180869, 1180915, 1180916
These appeals arise from a will-contest dispute between siblings.
After their mother died, William C. Harper and Alice Lynn Harper Taylor
disagreed about which version of their mother's will governed the
disposition of her assets. After a purported transfer of the will contests
from probate court to circuit court, the siblings submitted their dispute to
a jury, which returned a verdict for Alice Lynn. William appealed and
Alice Lynn cross-appealed. Because jurisdiction never properly vested in
the circuit court, we dismiss these appeals.1
Facts and Procedural History
Alice Earle Harper died on March 1, 2013. She left three surviving
children -- Alice Lynn, William, and James -- each of whom has been a
party to this case. During her lifetime, Alice Earle drafted several wills,
including one in 1995 and another in 2007. After her death, the children
disagreed about which of her wills governed. William and James said that
her 2007 will was valid, while Alice Lynn said that the 1995 will was the
proper document to probate.
1Our holding on jurisdiction pretermits discussion of the other issues
raised by the parties.
3
1180868, 1180869, 1180915, 1180916
Alice Lynn filed a petition in the Monroe Probate Court to probate
her mother's 1995 will. William moved to dismiss his sister's petition
because he was attempting to probate the 2007 will in Escambia County.
The Monroe Probate Court granted that motion. But following an appeal
to this Court, Alice Lynn's petition to probate the 1995 will was allowed
to proceed. See Taylor v. Harper, 164 So. 3d 542 (Ala. 2014).
Each sibling challenged the validity of the will favored by the other.
Eventually, in accordance with § 43-8-190, Ala. Code 1975, the contests of
the 1995 and 2007 wills were filed in the Monroe Probate Court. Alice
Lynn sought to transfer the contests from the probate court to the Monroe
Circuit Court under § 43-8-198, Ala. Code 1975. The probate court
transferred the documents pertaining to the will contests to the circuit
court. But that transfer lacked a certification from the probate court.
The will contests were tried to a jury. William presented evidence
in favor of the 2007 will, then Alice Lynn presented evidence in support
of the 1995 will. The jury found for Alice Lynn, and the circuit court
entered a judgment in her favor.
4
1180868, 1180869, 1180915, 1180916
William appealed the judgment, arguing, among other things, that
it is void for lack of jurisdiction. Alice Lynn cross-appealed.
Standard of Review
Subject-matter jurisdiction is an unwaivable issue that this Court
must consider ex mero motu. See MPQ, Inc. v. Birmingham Realty Co.,
78 So. 3d 391, 393 (Ala. 2011). "Matters of subject-matter jurisdiction are
subject to de novo review." DuBose v. Weaver, 68 So. 3d 814, 821 (Ala.
2011). If a circuit court's jurisdiction was not properly invoked, its
judgment is void and nonappealable. MPQ, 78 So. 3d at 394.
Analysis
The dispositive issue in this case is whether the circuit court ever
obtained jurisdiction over the will contests in light of the probate court's
failure to certify the papers and documents pertaining to the contests.2
Based on the plain language of the relevant statute, our precedent, and
2Alice Lynn does not contest William's assertion that the probate
court failed to certify the papers and documents to the circuit court. The
record is likewise devoid of any such certification from the probate court.
5
1180868, 1180869, 1180915, 1180916
the record before us, it is clear that the circuit court did not obtain
jurisdiction.
We begin with the text of the relevant statute. Section 43-8-198
provides, in relevant part:
"Upon the demand of any party to the contest, ... the
probate court, or the judge thereof, must enter an order
transferring the contest to the circuit court of the county in
which the contest is made, and must certify all papers and
documents pertaining to the contest to the clerk of the circuit
court, and the case shall be docketed by the clerk of the circuit
court and a special session of said court may be called for the
trial of said contest or, said contest may be tried by said circuit
court at any special or regular session of said court."
(Emphasis added.) Over the past several decades, our Court has held that
strict compliance with the requirements of § 43-8-198 is necessary for
jurisdiction to attach. Jones v. Brewster, 282 So. 3d 854, 858 (Ala. 2019)
("In a long line of cases, this Court has held that strict compliance with
the statutory language pertaining to a will contest is required to invoke
the jurisdiction of the appropriate court."). In other words, "[a] court
cannot depart from the procedures delineated in the statute and still
retain jurisdiction." See Kaller ex rel. Conway v. Rigdon, 480 So.2d 536,
539 (Ala. 1985). There are numerous cases from our Court affirming this
6
1180868, 1180869, 1180915, 1180916
principle. See, e.g., Jones, 282 So. 3d at 860 (holding that the circuit court
never obtained subject-matter jurisdiction over a will contest under § 43-
8-198 because the record was devoid of a transfer order from the probate
court); Burns v. Ashley, 274 So. 3d 970, 974 (Ala. 2018) ("[A] circuit court
cannot assume jurisdiction over a will contest pending in probate court
absent strict compliance with the procedural requirements of § 43-8-198."
(emphasis added)); Marshall v. Vreeland, 571 So. 2d 1037, 1038 (Ala.
1990) ("The requirements of § 43-8-198 must be complied with exactly,
because will contest jurisdiction is statutorily conferred upon the circuit
court." (emphasis added)); Bullen v. Brown, 535 So. 2d 76, 78 (Ala. 1988)
("It is clear that will contest jurisdiction, being statutorily conferred, must
comply with the statutory language strictly in order to quicken
jurisdiction of the appropriate court." (emphasis added)); Kaller, 480 So.
2d at 538 ("Because will contest jurisdiction is statutorily conferred, the
procedural requirements of the applicable statute must be complied with
exactly." (emphasis added)). By pairing the plain language of the statute
with our precedent, the clear rule is that "a circuit court cannot assume
jurisdiction over a will contest pending in probate court absent strict
7
1180868, 1180869, 1180915, 1180916
compliance with the procedural requirements of § 43-8-198." Burns, 274
So. 3d at 974.
Two years ago, this Court listed the seven requirements that must
be met to establish compliance with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
Jones, 282 So. 3d at 857-58 (emphasis added; internal citation omitted).
Therefore, in line with this statement and our otherwise consistent
application of strict compliance with the statute, a probate court must
certify the probate record pertaining to the will contest to the circuit-court
clerk in order for the circuit court to obtain jurisdiction.
Although certification may seem like a mere technicality, there is an
important reason for requiring it. "The policy behind [certification] is to
8
1180868, 1180869, 1180915, 1180916
allow a will and other original documents, previously admitted to the
probate court, to become part of the record in the circuit court without
further authentication." Jones, 282 So. 3d at 865-66 (Sellers, J.,
dissenting). This requirement is no more taxing or technical than the
other requirements in § 43-8-198 we consistently enforce. See, e.g., Jones,
282 So. 3d at 860 (voiding the judgment entered on a jury verdict
following a three-day trial because the absence of a transfer order in the
circuit-court record defeated the circuit court's jurisdiction); Burns, 274
So. 3d at 974 (dismissing the appeal of a judgment that was void for lack
of jurisdiction in the circuit court because the probate court never entered
a transfer order despite having an imperative duty to do so); Kaller, 480
So. 2d 538 (reversing a circuit-court judgment entered on a jury verdict
and remanding based on the circuit court's lack of jurisdiction under § 43-
8-198 "because the proponent did not file a pleading at the same time he
filed the motion to transfer").
Alice Lynn cites Cook v. Cook, 396 So. 2d 1037 (Ala. 1981), to
support her argument that mere transfer of the files to the circuit court --
without certification -- is sufficient to establish compliance with § 43-8-
9
1180868, 1180869, 1180915, 1180916
198. As noted by William, this argument is misguided. In Cook, the
Court refused to hold that a probate court's failure to certify the papers
and documents in a will contest defeated jurisdiction under the
predecessor statute to § 43-8-198. 396 So. 2d at 1040. It did so because,
it said, the Court "can tell when jurisdiction attache[s]." Id. On the facts
before it, the Court deemed the circuit court's acknowledged receipt of the
papers on the record and the notation of transfer on the docket sheet to be
sufficient. Id.
But in the 40 years since this Court issued its opinion in Cook, that
case has never been cited in another opinion for the proposition that
certification can be disregarded or relaxed.3 And since 1981, this Court's
3At the time of this decision, Cook has been cited by a court in an
opinion only seven times. In six of those opinions, Cook was cited for
propositions relating to the qualification of expert witnesses. Baker v.
Merry-Go-Round Roller Rink, Inc., 537 So. 2d 1, 3 (Ala. 1988); McKelvy v.
Darnell, 587 So. 2d 980, 985 (Ala. 1991); Levarsque v. Regional Med. Ctr.
Bd., 612 So. 2d 445, 449 (Ala. 1993); Bowden v. State, 610 So. 2d 1256,
1258 (Ala. Crim. App. 1992); Revis v. State, 101 So. 3d 247, 292 (Ala.
Crim. App. 2011); Lane v. State, [Ms. CR-15-1087, May, 29, 2020] ___ So.
3d ___, ____ (Ala. Crim. App. 2020). The remaining opinion, Bolan v.
Bolan, 611 So. 2d 1051 (Ala. 1993), is a will-contest transfer case. But
certification was not the issue there either. See id. at 1054. In Bolan, the
issue was whether the contest and the motion for transfer were filed on
10
1180868, 1180869, 1180915, 1180916
interpretation of § 43-8-198 has become difficult to square with Cook's
disregard of the certification requirement. In adopting a strict-compliance
approach, this Court has not differentiated between the various
requirements of the statute and has gone so far as listing certification as
a "prerequisite[] [that] must be met." Jones, 282 So. 3d at 857. Even the
dissents in Burns and Jones acknowledged the necessity of the
certification requirement. See Burns, 274 So. 3d at 976 (Sellers, J.,
dissenting); Jones, 282 So. 3d at 865 (Sellers, J., dissenting) ("There is no
question that compliance with this statute requires ... certifying papers
filed in the probate court to the circuit court."). So it would be odd -- if not
contradictory -- to require substantial compliance for one procedural
requirement in § 43-8-198 (certification) when the text and the weight of
our decisions from the past 40 years indicate that all requirements of the
statute must be strictly satisfied. Because Cook has been implicitly
overruled by our subsequent decisions mandating that the statute "must
different days. Id. The Court cited broad principles from Cook to support
its holding that the proponents had failed to meet their burden of
demonstrating that the filings were, in fact, made on separate days. Id.
11
1180868, 1180869, 1180915, 1180916
be followed to the letter," Kaller, 480 So. 2d at 539, we hold that mere
transfer of documents by the probate court is not enough to satisfy § 43-8-
198. In accordance with the statutory text, "all papers and documents
pertaining to the contest" must be certified by the probate court.
Conclusion
The circuit court never obtained jurisdiction because the probate-
court records were never certified upon the attempted transfer of the will
contests to the circuit court as is required by § 43-8-198. Thus, the
judgment of the circuit court is void. Since a void judgment will not
support an appeal, McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017),
these appeals are dismissed. We accordingly direct the circuit court to
vacate its judgment in favor of Alice Lynn.
1180868 -- APPEAL DISMISSED.
1180869 -- APPEAL DISMISSED.
1180915 -- APPEAL DISMISSED.
1180916 -- APPEAL DISMISSED.
Parker, C.J., and Bryan and Stewart, JJ., concur.
Shaw, J., concurs in the result.
12
1180868, 1180869, 1180915, 1180916
Bolin, Wise, and Sellers, JJ., dissent.
Mendheim, J., recuses himself.
13
1180868, 1180869, 1180915, 1180916
SHAW, Justice (concurring in the result).
I concur in the result and agree with the main opinion that, for a
circuit court to obtain jurisdiction over a will contest transferred from a
probate court, the probate court "must certify all papers and documents
pertaining to the contest to the clerk of the circuit court." Ala. Code 1975,
§ 43-8-198. Our prior caselaw requires strict compliance with § 43-8-198
in order for a circuit court to obtain jurisdiction. Kaller ex rel. Conway v.
Rigdon, 480 So. 2d 536, 538 (Ala. 1985) ("Because will contest jurisdiction
is statutorily conferred, the procedural requirements of [§ 43-8-198] must
be complied with exactly.").
A will contest is initiated in the probate court by the filing of written
"allegations." Ala. Code 1975, § 43-8-190. A party may make a demand
to transfer the contest to the circuit court "in writing at the time of filing
the initial pleading." § 43-8-198. Ex parte Ricks, 164 So. 3d 1141, 1146
(Ala. 2014) (holding that a proper demand for a transfer under § 43-8-198
is required for the probate court to be divested of jurisdiction). The
probate court must enter an order transferring the contest to the circuit
court; this is required for the circuit court to obtain jurisdiction. Jones v.
14
1180868, 1180869, 1180915, 1180916
Brewster, 282 So. 3d 854, 860 (Ala. 2019) ("The entry of a written order
by the probate court transferring a will contest to the circuit court is an
essential procedural requirement under § 43-8-198 in order for the circuit
court to obtain subject-matter jurisdiction, and the probate court had an
imperative duty to enter such an order.").
Section 43-8-198 further requires that the probate court "must
certify all papers and documents pertaining to the contest to the clerk of
the circuit court." On its face, this could be viewed as a mere ministerial
duty on the part of the probate court. However, as noted above, a will
contest under § 43-8-198 is initiated in the probate court by the filing of
the written "allegations" in that court, that is, the contestant's pleadings
that invoke the will-contest action. The order to transfer alone does not
provide the circuit court with the pleadings that actually initiate the
action. Section 43-8-198 seems to indicate that it is necessary for the
"papers and documents pertaining to the contest," including the pleadings
necessary to invoke jurisdiction over a will contest, to be submitted to the
circuit court for it to obtain jurisdiction. How that is done is specifically
defined: the probate court "must certify" all the papers and documents.
15
1180868, 1180869, 1180915, 1180916
This step is required by § 43-8-198 and "must be complied with exactly."
Kaller, 480 So. 2d at 538.
In Cook v. Cook, 396 So. 2d 1037, 1040 (Ala. 1981), the papers and
documents from the probate court were never certified to the circuit clerk.
This Court conceded that a "formal order and certification is desirable"
but that the circuit clerk had acknowledged receipt of the papers and the
docket sheet indicated that the file had been transferred to the circuit
court. 396 So. 2d at 1040. The Court held: "[T]he purpose of the statute
is met. We can tell when jurisdiction attached in circuit court of the will
contest." Id. I respectfully disagree on both points.
It is necessary that the circuit court receives a complete and correct
record, which a certification would ensure. I cannot conclude that an
uncertified record would satisfy that purpose; an uncertified record that
may not be complete or correct would not allow one to "tell" with the
requisite confidence "when jurisdiction attached." This might not be
required in other contexts, such as when a circuit court transfers a case
to another circuit court, or when a circuit court removes the
administration of an estate from the probate court, but the requirements
16
1180868, 1180869, 1180915, 1180916
for a will-contest transfer, which, according to our caselaw, is necessary
for jurisdiction to attach, are specifically provided here. Although the
Court in Cook held that the "purpose" of the Code section had been met,
its terms were not.
Stated differently, in the context of a will-contest transfer, the
legislature has authorized the imposition of jurisdiction on the circuit
court by the probate court. To accomplish that end, it appears that the
circuit court does not acquire jurisdiction until a transfer order has been
issued by the probate court and the circuit court has received a certified
record, which would necessarily include the important pleadings that
initiate the action. This appears to be different from the statutorily
authorized removal of the administration of an estate, which is an existing
proceeding, from the probate court by the circuit court, where the circuit
court, once assuming jurisdiction by order, may thereafter direct the
probate court to perform the ministerial duty of transferring necessary
documentation. Ala. Code 1975, § 12-11-41. In any event, the
jurisdictional requirements for the movement of matters between the
17
1180868, 1180869, 1180915, 1180916
probate court and the circuit court are within the exclusive purview of the
legislature and can be clarified by that body as it sees fit.
"This Court is duty bound to notice ex mero motu the absence of
subject-matter jurisdiction." Stamps v. Jefferson Cnty. Bd. of Educ., 642
So. 2d 941, 945 n.2 (Ala. 1994) (emphasis added). See also Walker Cnty.
Comm'n v. Kelly, 262 So. 3d 631, 637 (Ala. 2018) (same). The decision in
Cook, in my opinion, incorrectly provides jurisdiction when it is denied by
law.
This Court in Jones, supra, restated the requirements of § 43-8-198
as follows:
"To comply with the statute, the following prerequisites must
be met: (1) the will must not be admitted to probate, although
it must be offered for probate before it can be contested ...; (2)
the party seeking the transfer must file a written demand for
the transfer in the probate court; (3) the transfer demand must
be filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court must enter a
written order transferring the will contest to the circuit court;
(5) the probate court must certify the probate-court record
pertaining to the will contest to the circuit-court clerk; (6) the
circuit-court clerk shall docket the case in the circuit court;
and (7) the circuit court must set the will contest for a trial at
a regular or a special session of court."
18
1180868, 1180869, 1180915, 1180916
282 So. 3d at 857-58. I read this discussion as merely summarizing the
Code section and not holding that the items of the list are all jurisdictional
prerequisites.
19
1180868, 1180869, 1180915, 1180916
BOLIN, Justice (dissenting).
I disagree that the circuit court lacked subject-matter jurisdiction
over the will contests because the probate court entered a written order
transferring the will contests to the circuit-court clerk. Therefore, I
respectfully dissent.
Probate courts have original and general jurisdiction over the
probate of wills and over the "granting of letters testamentary and of
administration." § 12-13-1(b)(2), Ala. Code 1975. Under Alabama law, a
circuit court, under specified and explicit conditions, can obtain
subject-matter jurisdiction over the contest of a will not yet admitted to
probate. Section 43-8-190, Ala. Code 1975, allows for a contest to be filed
in the probate court before the probate of a will. Section 43-8-198, Ala.
Code 1975, which must be read in conjunction with 43-8-190, see Bardin
v. Jones, 371 So. 2d 23 (Ala. 1979),4 goes further to provide for the
transfer of a will contest from the probate court, which has original
4Bardin construed former § 43-1-70 and former § 43-1-78, Ala. Code
1975, the predecessor statutes to § 43-8-190 and § 43-8-198, respectively.
20
1180868, 1180869, 1180915, 1180916
jurisdiction of the proceedings, to the circuit court. In my special writing
in Jones v. Brewster, 282 So. 3d 854, 861 (Ala. 2019), I noted that § 43-8-
198 unambiguously describes the requirements necessary for the transfer
of a nonprobated-will contest from the probate court to the circuit court,
for the circuit court to adjudicate the contest issue only. Section 43-8-198
mandates that "the probate court, or the judge thereof, must enter an
order transferring the contest to the circuit court of the county in which
the contest is made, and must certify all papers and documents pertaining
to the contest to the clerk of the circuit court...." The entry of the transfer
order is a statutorily mandated judicial action, the absence of which
results in no jurisdiction being transferred to and conferred in the circuit
court. The certification of papers and documents for the circuit-court clerk
is a ministerial function that neither confirms nor quickens the
jurisdiction of the circuit court.
In the present case, the lack of certification of "papers and
documents" did not deprive the circuit court of subject-matter
jurisdiction. Any failure of the probate court to perform a ministerial
function, such as certifying papers and documents, should be addressed
21
1180868, 1180869, 1180915, 1180916
to the circuit-court clerk for remediation between the probate-court clerk's
office and the circuit-court clerk's office. Similarly, our Supreme Court
Clerk addresses any defects or failings in records presented to this Court
on appeal; those appeals are not immediately dismissed for lack of subject-
matter jurisdiction.
In Jones v. Brewster, supra, this Court set out seven requirements
that must exist to comply with § 43-8-198:
"(1) the will must not be admitted to probate, although it must
be offered for probate before it can be contested; (2) the party
seeking the transfer must file a written demand for the
transfer in the probate court; (3) the transfer demand must be
filed at the time of the filing of the will-contest complaint or
other initial pleading; (4) the probate court[, or the judge
thereof,] must enter a written order transferring the will
contest to the circuit court; (5) the probate court[, or the judge
thereof,] must certify the probate-court record pertaining to
the will contest to the circuit-court clerk; (6) the circuit-court
clerk shall docket the case in the circuit court; and (7) the
circuit court must set the will contest for a trial at a regular or
a special session of court."
282 So. 3d at 857-58 (internal citation omitted). In my opinion, as I
outlined in my special writing in Jones, the only condition that is
necessary from a jurisdictional standpoint to transfer a will contest from
the probate court to the circuit court pursuant to §43-8-198 is the written
22
1180868, 1180869, 1180915, 1180916
transfer order entered by the probate judge. Judges are authorized to
enter orders, while the respective clerks' offices certify and transfer
records.
I recognize that § 43-8-198 must be strictly construed, because
probate statutes were unknown to the common law. The legislature
requires that the certification of papers and documents should be to the
circuit-court clerk. When the issue of a will contest is transferred from
the probate court to the circuit court, after the circuit court determines
whether the will is valid, the administration of the estate is returned to
and conducted by the probate court. When a party removes the
administration of an estate from the probate court to the circuit court
under § 12-11-41, Ala. Code 1975, the filing of a petition for removal in the
circuit court and the entry of an order of removal by that court are the
prerequisites. If the legislature intended for certification of papers and
documents, i.e., a record, to the circuit-court clerk to be a judicial
action/jurisdictional requirement for a will contest, why would the
legislature not make such a requirement necessary for the removal of the
entire administration of the estate?
23
1180868, 1180869, 1180915, 1180916
I recognize that the gradual development of probate law over many
decades has often resulted in specialized procedural traps for both
unwary practitioners and judges. However, the Alabama Law Institute
has commissioned a standing committee to review and propose legislative
changes that, I hope, will make probate law both easier and fairer for all.
Sellers, J., concurs.
24 | June 11, 2021 |
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