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bca8d05d-7da0-435c-8fcf-5ab39903b58b | Sparks v. Byrd | 562 So. 2d 211 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 211 (1990)
Guy E. SPARKS and Walter Sparks
v.
Glenn A. BYRD, et al.
88-588.
Supreme Court of Alabama.
March 9, 1990.
*212 J.G. Speake of Speake & Speake, Moulton, for appellants.
C.B. Caine, Jr., Moulton, for appellees.
MADDOX, Justice.
This is an appeal from a judgment entered in a boundary line dispute between coterminous landowners. After an ore tenus hearing, the trial court declared that a fence line separating the properties owned by the plaintiffs (Glenn Byrd, Marilyn Byrd, A. Marie Byrd Hammond, and Doyal Byrd) and the defendants (Guy and Walter Sparks) marked the boundary line between their properties. From that judgment, the defendants appeal.
The properties presently owned by the plaintiffs and the defendants were once wholly owned by G.W. Parker and his wife, Bertie Parker. During the time that the Parkers owned the property, Mr. Parker erected a fence that crossed their property in an east-west direction. On December 7, 1935, the Parkers conveyed the property located on the south side of their fence line to O.P. Sivley and his wife, Bertha Sivley. On February 20, 1945, the Sivleys conveyed their property to B.P. Sparks and his wife, Lillie Mae Sparks.
On July 5, 1955, the Sparkses conveyed to their son, Walter Sparks, a portion of their property located south of the fence line. Finally on October 20, 1956, the Sparkses conveyed to their other son, Guy Sparks, the rest of the land lying south of the fence line. The brothers' properties are adjacent.
On January 30, 1946, the Parkers had conveyed the property located on the north side of their fence line to Earl Brewer and his wife, Mildred Brewer. In 1963, the Brewers paved a dirt road once used by the Parkers as a means of access to and exit from their property from a county road known as the "Old Hillsboro Road." The paved road runs next to, and parallel with, the north side of the fence line. In 1966, the Brewers erected a new fence that was built next to and that ran parallel with the Parkers' old fence. On March 8, 1974, Earl Brewer conveyed the property to Pruitt Parker and his wife, Gussie Parker.[1] On July 24, 1979, Pruitt and Gussie Parker conveyed their property to Glenn Byrd and his wife, Marilyn Byrd. In 1980, Mr. Byrd upgraded the paved road and also constructed some culverts next to it. On June 12, 1984, the Byrds conveyed a portion of their property to Glenn's sister, A. Marie Byrd Hammond, and also conveyed another portion of their property to Glenn's brother, Doyal Byrd.
At the time that G.W. and Bertie Parker conveyed their property to the Brewers, Mr. Parker walked the property with Mr. Brewer. During that walk, Mr. Parker allegedly told Mr. Brewer that the fence line erected by him marked the boundary line between the Sparkses' property and the Brewers' property.
In 1969, Guy Sparks had a survey conducted on his property. The result of that survey indicated that the old fence line did not mark the boundary line separating his property from the Brewers' property. In fact, that survey indicated that the boundary line was located north of the old fence line and at such a point that most of the Brewers' paved road was south of the line. Despite the result of that survey, neither Guy nor Walter Sparks attempted to exercise ownership of the additional property. On April 24, 1984, Glenn Byrd also conducted a survey on his property. That survey, like the prior survey by Guy Sparks, also indicated that the old fence line did not mark the boundary line separating his property from the Sparkses' properties; it further indicated that 85% to 90% of the Byrds' paved road was actually located on the Sparkses' properties. Despite the result of that survey, Mr. Byrd continued to treat the old fence line as the boundary line. In 1985, when Guy Sparks conducted brush burning next to the old fence line, Glenn Byrd approached Sparks and complained to him about apparent charring to wood in the fence. Guy Sparks responded to Byrd's complaints about the brush burning by asserting that he and his brother, Walter, owned the property where the old fence line was located, and most of Byrd's paved road.
On September 29, 1987, the plaintiffs filed a complaint in the Circuit Court of Lawrence County, requesting that the trial court establish the old fence line separating their properties from the defendants' properties as the legally accepted boundary line. After an ore tenus hearing, the trial court entered an order on December 30, 1988, establishing the old fence line as the boundary line. In that order, the trial *214 court found that the plaintiffs and their predecessors in title had claimed, occupied, and used openly and notoriously all the property down to the north side of the old fence line for more than 20 years.
The applicable standard for review in boundary line cases was stated in Francis v. Tucker, 341 So. 2d 710, 711-12 (Ala. 1977), in which this Court stated the following:
Furthermore, this Court has consistently taken the position that a judgment establishing a boundary line between coterminous lands on evidence submitted ore tenus is presumed to be correct. See Cockrell v. Kelley, 428 So. 2d 622 (Ala.1983); Salter v. Cobb, 264 Ala. 609, 88 So. 2d 845 (1956).
In addressing the types of adverse possession presently recognized in Alabama, this Court stated the following:
Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616, 618 (Ala.1980). (Emphasis added.) In Alabama, the common-law doctrine of adverse possession by prescription acts as a rule of absolute repose, since a lapse of 20 years, during which time there has been continuous adverse possession, is considered a sufficient period for the recognition of rights based on adverse possession. In addressing the wisdom underlying the absolute presumption of title that arises through the operation of adverse possession by prescription, Justice Harwood stated:
Lay v. Phillips, 276 Ala. 273, 277, 161 So. 2d 477, 480 (1964). See also Fitts v. Alexander, 277 Ala. 372, 170 So. 2d 808 (1965); Howard v. Harrell, 275 Ala. 454, 156 So. 2d 140 (1963); Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553 (1958).
A party claiming title to property through adverse possession by prescription must satisfy each of the following elements: 1) The party must actually possess the property, 2) the party's possession must be exclusive, 3) the party's possession must be open and notorious, 4) the party's possession must be hostile and under a claim of right, and 5) the party's possession must be continuous for a period of 20 years. See Daugherty v. Miller, 549 So. 2d 65 (Ala.1989); Hayden v. Robinson, 472 *215 So. 2d 606 (Ala.1985); Fitts v. Alexander, 277 Ala. 372, 170 So. 2d 808 (1965).
In addressing the element of "actual possession," this Court has stated that "[i]t is not necessary to physically reside upon the land to establish title by adverse possession." Hand v. Stanard, 392 So. 2d 1157, 1160 (Ala.1980). In fact, the "[l]and need only be used by an adverse possessor in a manner consistent with its nature and characterby such acts as would ordinarily be performed by the true owners of such land in such condition." Id. See Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974); James v. Mizell, 289 Ala. 84, 265 So. 2d 866 (1972); Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558 (1946). In this regard, the record reveals that the properties adjoining the old fence line are rural. Furthermore, the record reveals that the properties located on the north side of the old fence line have continuously been used for farming by the plaintiffs and their predecessors in title. As a consequence, we find that the plaintiffs and their predecessors in title have "actually possessed" the properties located on the north side of the old fence line.
To fulfill the requirement of "exclusivity of possession," a party must assert possessory rights distinct from those of others. The rule is generally stated that "`[t]wo persons cannot hold the same property adversely to each other at the same time.'" Beason v. Bowlin, 274 Ala. 450, 454, 149 So. 2d 283, 286 (1962), quoting Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 404 (1899). Exclusivity of possession "is generally demonstrated by acts that comport with ownership." Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala.1989). These are "acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable." Goodson v. Brothers, 111 Ala. 589, 596, 20 So. 443, 445 (1896). The record reveals that the plaintiffs and their predecessors in title treated the property located on the north side of the old fence line as belonging to them. The paved road that runs next to and parallel with the old fence line has always been used by the plaintiffs and their predecessors in title. Nowhere does the record indicate that the defendants or their predecessors in title ever used or were ever permitted to use that same road. These facts indicate that the plaintiffs and their predecessors in title "exclusively possessed" the property located on the north side of the old fence.
Open and notorious possession is necessary so that a property owner may have an opportunity to learn of an adverse claim, and to protect his rights. In addressing this element of adverse possession, this Court made the following statement:
Lawrence v. Alabama State Land Co., 144 Ala. 524, 529, 41 So. 612, 614 (1905). (Emphasis added.) Evidence establishing actual possession will also be sufficient to establish "open and notorious possession." See Turnham v. Potter, 289 Ala. 685, 271 So. 2d 246 (1972); Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). As earlier noted, the plaintiffs and their predecessors in title have persistently used the property located on the north side of the old fence as farm land, in a manner that is consistent with the property's rural nature and character; consequently, such use of said property by the plaintiffs and their predecessors in title openly and notoriously notified the defendants and their *216 predecessors in title of the adverse claims to it.
The requirement that possession be "hostile and under a claim of right" before a party can acquire title through adverse possession is imposed so that the property owner will not be lulled into a false sense of security and thereby be induced to refrain from asserting his right to the property by entry or legal action.[2] This Court has held that a permissive occupant of property cannot acquire title to property through adverse possession. See Stewart v. Childress, 269 Ala. 87, 111 So. 2d 8 (1959). In speaking to the issue of "hostile possession," this Court has consistently taken the view that it is immaterial whether an adverse possessor would have claimed the property had he known of his mistaken claim to it, for it is the adverse possessor's intent to assert dominion over the property that causes his possession to be deemed "hostile." See Reynolds v. Rutland, 365 So. 2d 656 (Ala.1978); Guy v. Lancaster, 250 Ala. 287, 34 So. 2d 499 (1948); Whitlow v. Moore, 246 Ala. 472, 21 So. 2d 253 (1945). Furthermore, in addressing the other issue of "claim of right," this Court stated the following:
Hess v. Rudder, 117 Ala. 525, 528, 23 So. 136 (1898). (Emphasis added.) See Tanner v. Dobbins, 255 Ala. 671, 53 So. 2d 549 (1951).
The record reveals that the plaintiffs and their predecessors in title have consistently possessed the property located on the north side of the old fence line with the intention of claiming it as their own. None of the testimony contained in the record reveals a contrary position. Therefore, this Court finds that the plaintiffs and their predecessors in title did possess the property located on the north side of the old fence line in a hostile fashion and under a claim of right.
Under the common-law doctrine of adverse possession by prescription, an adverse possessor must continually possess property for a period of 20 years without the recognition of adverse rights to it by others. See Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553 (1958); Walker v. Coley, 264 Ala. 492, 88 So. 2d 868 (1956). This Court has stated that an adverse claimant to property can "tack" his period of possession onto that of a prior adverse claimant in order to establish a continuous stream of adverse possession for the required time span. The only prerequisite for tacking is privity of estate between the adverse claimants, which can be established by a transfer of title or possession. See Moore v. Johnson, 471 So. 2d 1250 (Ala.1985); Bussey v. Bussey, 403 So. 2d 907 (Ala.1981); Mardis v. Nichols, 393 So. 2d 976 (Ala. 1981); Carpenter v. Huffman, 294 Ala. 189, 314 So. 2d 65 (1975); Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967). The record clearly reveals that the plaintiffs have "continuously possessed" the property located on the north side of the old fence line for more than 20 years through "tacking" their adverse possession onto that of their predecessors in title as to that property. Also, the record reveals that for 33 years neither the defendants nor their predecessors in title ever disputed that the old fence line that separated their properties was the true boundary line.[3] In *217 fact, when Guy Sparks had a survey conducted on his property in 1969 that indicated that the old fence line did not mark the boundary line, neither he nor his brother, Walter Sparks, attempted to exercise ownership of any property north of the fence, either by entry or by legal action.
Therefore, the trial court's order establishing the old fence line as the boundary line separating the respective properties of the plaintiffs and the defendants is correct. Accordingly, the judgment appealed from is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS and KENNEDY, JJ., concur.
STEAGALL, J., concurs in the result.
[1] As part of a divorce settlement, Mildred Brewer had conveyed her interest in the property to Earl Brewer on August 17, 1971; thereafter, Mr. Brewer owned the entire property located on the north side of the old fence line.
[2] See H. Tiffany, The Law of Real Property § 1142, at 743 (3rd ed. 1975).
[3] The 33-year figure results from calculating the period between December 7, 1935, the date that the Parkers conveyed their property located on the south side of the old fence line to the Sivleys, and September 10, 1969, the date listed on Gay Sparks's survey of his property. | March 9, 1990 |
b0298e87-adbc-4673-bddd-8400d3c4a042 | Anita Marion v. Bernis Simmons, M.D. | N/A | 1140606 | Alabama | Alabama Supreme Court | REL:11/06/2015
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, 2015-2016
____________________
1140604
____________________
Walter R. Ross, Jr., M.D.
v.
Anita Marion
____________________
1140605
____________________
Noland Hospital Birmingham, LLC, and Noland Health Services,
Inc.
v.
Anita Marion
____________________
1140606
____________________
Anita Marion
v.
Bernis Simmons, M.D.
Appeals from Jefferson Circuit Court
(CV-2011-900717)
MOORE, Chief Justice.
Anita Marion ("Marion") sued Noland Hospital Birmingham,
LLC, and
Noland Health Services, Inc. (hereinafter referred to
collectively as "Noland"), Walter R. Ross, Jr., M.D., and
Bernis Simmons, M.D., in the Jefferson Circuit Court seeking
damages resulting from the death of her husband, Arthur Marion
("Arthur"). Following a trial, the jury returned a verdict in
favor of Dr. Simmons but against Dr. Ross and Noland. Dr. Ross
and
Noland,
in
cases
no.
1140604
and
no.
1140605,
respectively, appeal from the judgments against them, and
Marion, in case no. 1140606, appeals from the judgment in
favor Dr. Simmons. For the reasons stated herein, we reverse
the judgments in cases no. 1140604 and no. 1140605 and remand
the cause for a new trial as to those defendants, and we
affirm the judgment in case no. 1140606.
2
1140604, 1140605, 1140606
I. Facts and Procedural History
On February 27, 2009, Arthur underwent a kidney-stone-
removal procedure at St. Vincent's East hospital in
Birmingham. Dr. Taylor Bragg performed the procedure, and Dr.
Simmons
was
the
anesthesiologist.
During
the
procedure,
Arthur
suffered a heart attack. Arthur was revived, but the heart
attack
caused
him
to
suffer
hypoxic
encephalopathy
(deprivation of oxygen to the brain), which left him in a
nonresponsive state. On March 19, 2009, Arthur
was
transferred
from St. Vincent's to Noland Hospital Birmingham and was
admitted by Dr. Ross. Arthur remained at Noland Hospital until
April 27, 2009, when he was transferred back to St. Vincent's
to receive dialysis for renal failure. Arthur passed away on
April 28, 2009.
Marion filed this wrongful-death action on February 28,
2011, against, among other defendants, Dr. Ross, Dr. Simmons,
1
and Noland. Although Marion asserted various theories of
The
other
defendants
included
St.
Vincent's
East,
Eastern
1
Urology Associates, P.A., Donald Taylor Bragg, M.D., Mell L.
Duggan, Jr., M.D., Kelly Carmack, CRNA, Mary Greenway, SRNA,
Frank Heckathorn, "RPh, DPh," Tom Novitski, "RPh,"
and
various
fictitiously named defendants. Before trial, Marion dismissed
most of these defendants and settled her claims against the
others.
3
1140604, 1140605, 1140606
liability, the essence of her claim against Dr. Simmons was
that he breached the applicable standard of care by failing to
position Arthur properly during his kidney-stone-removal
procedure and that this breach caused Arthur's blood to be
unable to circulate properly, which in turn caused Arthur's
heart attack and hypoxic encephalopathy. As to her claim
against Dr. Ross, Marion claimed that Dr. Ross breached the
applicable standard of care by prescribing Rocephin, an
antibiotic, to treat an infection Arthur was developing.
Arthur had a documented allergy to Ancef, which, like
Rocephin, is in a class of antibiotics called cephalosporins.
Marion alleged that Dr. Ross failed to note Arthur's allergy
to Ancef and that, if Dr. Ross had noted the allergy, he would
not have prescribed a cephalosporin to treat Arthur's
infection. Marion also alleged that Noland breached the
applicable standard of care by failing to train its nurses to
check for contraindications to medications. Marion alleged
that the administration of Rocephin caused Arthur to develop
a severe allergic reaction known as toxic
epidermal necrolysis
("TEN"). Marion alleged that TEN caused Arthur to develop
sepsis, which, in turn, caused his death.
4
1140604, 1140605, 1140606
The trial lasted from September 8, 2014, through October
3, 2014. Dr. Ross, Dr. Simmons, and Noland moved for a
judgment as a matter of law at the close of Marion's evidence
and again at the close of all evidence. Both motions
challenged the sufficiency of the evidence, and both motions
were denied. After closing arguments, the trial court
instructed the jury and sent it to deliberate.
On October 3, 2014, which was the third day of the jury's
deliberation, Dr. Ross, Dr. Simmons, and Noland moved for a
mistrial. Counsel for Dr. Ross and Noland argued:
"MR. [MICHAEL] BELL[, counsel for Dr. Ross and
Noland]: Judge, I need to make a motion. But I want
to start by making this very clear, clear as I know
how, we are not suggesting that the Court or anyone
associated with the Court has done anything
intentionally wrong. Not at all. We -- what this
relates to is the jury asking questions in the
morning yesterday and then in the afternoon. And
there are multiple cases that say that a Court
cannot instruct a jury outside the presence of
counsel without notifying us, all counsel, and
giving us an opportunity to participate in whatever
questions and answers may happen. No one is
suggesting that anything that the Court did or Court
personnel
did
was
intentionally
improper
and
violative of that rule. But we do know and we
learned yesterday that the jury asked questions
about whether the verdict had to be unanimous,
burden of proof, and then, ultimately, the third
question where we were involved, in terms of what
the evidence was on whether the Rocephin caused the
death. And under various cases, we've got the --
5
1140604, 1140605, 1140606
George [Knox, counsel for Dr. Simmons,] gave Jori
[Jordan, the trial court's law clerk,] one of the
cases, the Savage[ Indus., Inc. v. Duke] case[, 598
So. 2d 856 (Ala. 1992),] this morning. And then
there's the [Petty-]Fitzmaurice [v. Steen] case, 871
So. 2d 771 [(Ala. 2003)]. The only way for us to
preserve and raise that issue at this stage is by
motion for a mistrial. So we -- that's the only way
we can deal with it at this stage, and we're
obligated to raise it timely in relation to while
the jury is still deliberating and once we are on
notice of those questions and answers taking place
without us being notified and us being present and
participate in. So at this time, we do need to move
for mistrial."
The trial court denied the motion, explaining:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
Toward the end of the discussion, the trial court said: "So
I'm sure they will have plenty of questions. We generally ask
them to write their questions down, and then we'll call you in
and let you know what they ask. And that's it."
The jury returned a verdict in favor of Dr. Simmons but
against Dr. Ross in the amount of $100,000 and against Noland
in the amount of $1,300,000. Noland and Dr. Ross each filed a
postjudgment motion for a judgment as a matter of law, or, in
6
1140604, 1140605, 1140606
the alternative, for a new trial, or to alter or amend the
judgment. In those motions, Noland and Dr. Ross argued again
that they were entitled to a new trial because of the trial
court's communications with the jury. Noland and Dr. Ross also
attached affidavits of several jurors, saying, among other
things, that Jori Jordan, the trial court's law clerk, entered
the jury room and had discussions with the jurors. Marion
opposed the motions, submitting affidavits from the trial
court's clerk and several other jurors, denying that the
discussions had taken place.
On January 26, 2015, the trial court denied Noland's and
Dr. Ross's motions, stating, in pertinent part:
"The Defendants' claim that the Court's clerk
was overheard to say in the jury room that their
verdict must be unanimous and that there could be no
hung jury. Submitted affidavits show statements to
be in conflict.
"The Court in its instruction to the jury
informed them that their verdict must be unanimous.
That there could not be what we call a 'jury
quotient.'
"Each juror when asked individually before the
Court, if this was their true and lawful verdict,
answered in the affirmative."
Dr. Ross and Noland filed their notices of appeal to this
Court on March 6, 2015 (cases no. 1140604 and no. 1140605,
7
1140604, 1140605, 1140606
respectively); Marion filed her notice of appeal on March 9,
2015 (case no. 1140606). Marion explicitly stated in her
notice of appeal that she was not challenging the jury's
verdict as to Dr. Simmons; she asks only that, if this Court
reverses the judgments in her favor against Dr. Ross and
Noland and remands the cause for a new trial, her claim
against Dr. Simmons be reinstated as well.
II. Standard of Review
"'It is well established that a ruling on a
motion for a new trial rests within the sound
discretion of the trial judge. The exercise of that
discretion carries with it a presumption of
correctness, which will not be disturbed by this
Court unless some legal right is abused and the
record plainly and palpably shows the trial judge to
be in error.'"
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694
(Ala. 1989) (quoting Hill v. Sherwood, 488 So. 2d 1357 (Ala.
1986)).
III. Discussion
A. Dr. Ross's and Noland's Appeals (cases no. 1140604 and no.
1140605)
Although Dr. Ross and Noland raise multiple issues on
appeal, one issue is dispositive: Whether the trial court
erred in denying the motions for a new trial based on the
8
1140604, 1140605, 1140606
communications between the trial court and the jury that
occurred outside the presence of the parties and counsel.
Dr. Ross and Noland argue that the trial court should
have granted their motions for a new trial based on Matthews
v. Liberty Mutual Insurance Co., 286 Ala. 598, 243 So. 2d 703
(1971). In Matthews, after the jury was sent to deliberate, a
juror knocked on the door of the jury room and told the
bailiff that the jury had a question for the judge. The
bailiff informed the judge, who then went into the jury room.
The judge testified that he asked who was the foreman, and,
after hearing the jury's question, he said only this:
"'"Ladies and gentlemen, when you consider this case, you are
to consider all the evidence and you are to consider all the
matters presented to you by the Court, and you are to consider
them together."'" 286 Ala. at 601-02, 243 So. 2d at 706. A
motion for a mistrial followed, which the trial court denied.
The judge explained that his "'purpose in going in to the jury
room was to ascertain whether or not such matters were
represented there that would call for the presence of
counsel.'" 286 Ala. at 602, 243 So. 2d at 706.
9
1140604, 1140605, 1140606
On appeal, this Court held:
"We understand the general rule to be that the
judge may not, in the absence of counsel, further
instruct the jury, after their retirement, without
making a reasonable effort to notify counsel or
without some special circumstances or excuse being
shown which reasonably prevented notice. Kuhl v.
Long, [102 Ala. 563, 15 So. 267 (1893)]; Feibelman
v. Manchester Fire Assurance Co., [108 Ala. 180, 19
So. 540 (1895)].
"Our court concluded in Feibelman, supra:
"'We can not inquire, in such a case,
what instructions were given by the court
to the jury--whether they were correct or
incorrect, prejudicial or otherwise. ...
The only safe course therefore, when it is
established that the court, without some
overruling
necessity
therefor,
gave
instructions to the jury ... in the absence
of
the
complaining
suitor's
counsel,
engaged in representing him on the trial,
and without reasonable notice to them and
opportunity to be present, is to withhold
all inquiry and investigation into the
correctness of the instructions or action
of
the
court,
and
treat
them
as
conclusively prejudicial, by reason of the
suitor's deprivation of his constitutional
right. ...'"
Matthews, 286 Ala. at 604, 243 So. 2d at 708. The Court cited
the following as the rationale for this rule:
"'It has been wisely stated that 'next to the
tribunal being in fact impartial is the importance
of its appearing so'. Shrager v. Basil Dighton Ltd.,
(1924) 1 K.B. 274, 284. This applies in a special
way to the Judge and his relationship with the jury.
10
1140604, 1140605, 1140606
Without doubting the worthy motives or the well-
intentioned solicitude of the Judge for the wishes
and welfare of the jurors, private communication by
a Judge to or with the jury in the jury room and in
the absence of counsel is almost certain to create
suspicions and a belief of unfairness in the minds
of many people.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 707-08 (quoting
Glendenning v. Sprowls, 405 Pa. 222, 224, 174 A.2d 865, 866
(1961)) (emphasis omitted).
"'Whether or not injury or injustice has
resulted to the litigants by reason of the conduct,
is not our primary concern. Rather, our concern is
with
the
implication
that
attaches
to
the
administration of justice under these
circumstances.
Confidence in our judicial system is imperiled if
such conduct is countenanced in jury trials. Conduct
which if proved would give rise to doubt and
disrespect, or the mere appearance of such conduct
as will not meet with the approval of public
opinion, must be severely condemned. It is only
through the granting of a new trial in situations
like this, as well as vigilant effort by the
officers of the court to prevent such occurrences,
that public confidence in the jury system may be
preserved.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 708 (quoting Daniels
v. Bloomquist, 258 Iowa 301, 306-07, 138 N.W.2d 868, 872
(1965)).
Applying those principles to the case before it, the
Matthews Court found that the trial judge did not have an
"overruling
necessity"
for
communicating
with
the
jury
outside
11
1140604, 1140605, 1140606
the presence of the parties and the parties' counsel and
without giving the parties and counsel reasonable notice and
an opportunity to be present. Although the Court believed the
trial judge was "motivated by a sincere desire to expedite the
trial" and "intended no harm" in his actions, the Court held
that the conduct in question was "of such prejudicial nature
in this instance to warrant reversal." 286 Ala. at 605-06, 243
So. 2d at 710.
In the present case, when Dr. Ross, Dr. Simmons, and
Noland moved for a mistrial, they alleged that, in the absence
of the parties' counsel, the trial court answered questions
about whether the verdict had to be unanimous and about the
burden of proof. The trial court answered:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
This statement suggests that the jury had asked questions
about the burden of proof and about whether the verdict had to
be unanimous, that the trial court had answered those
12
1140604, 1140605, 1140606
questions, and that the trial court informed the parties and
counsel after the fact.
Furthermore, in the motions for a new trial, the
attorneys for Dr. Ross and Noland submitted affidavits that
further raised the question whether the trial court had
improperly instructed the jury. Michael Bell's affidavit
provided, in relevant part:
"3. ... On the afternoon of October 2, 2014,
Judge Helen Shores Lee summoned all counsel to
chambers. ... After I arrived, Judge Lee informed
all counsel that: (1) the jury had asked questions
about the burden of proof; and (2) that the jury's
then pending-question was asking where it was
supposed to look for evidence that Rocephin killed
Mr. Marion.
"4. Counsel and Judge Lee discussed and agreed
upon an appropriate response to the jury's question
about locating evidence. The Court was to instruct
the jury that it had received all of the evidence
during the trial and that was all that it could
consider.
Ms.
Jordan
returned
to
the
jury
deliberation room to deliver this instruction. Ms.
Jordan remained in the jury room for more than a few
minutes.
"5. During the chambers conference on the
afternoon of October 2, 2014, while I was present,
the Court did not tell counsel how it had responded
to the jury's prior questions regarding the burden
of proof and whether the verdict had to be
unanimous. The Court did not inform counsel when the
jury had raised those questions, and the Court did
not involve counsel in responding to those questions
from the jury."
13
1140604, 1140605, 1140606
The affidavit of John Thompson, another attorney representing
Dr. Ross and Noland, said essentially the same thing, adding
that Judge Lee had informed the parties that the jury had also
asked "whether the verdict had to be unanimous."
In its order denying the motions for a new trial, the
trial court admitted to instructing the jury that its verdict
had to be unanimous, but it did not address the defendants'
concern that the trial court had instructed the jury on the
burden of proof. Instead, the trial court appeared to reason
that there was no actual prejudice resulting from the giving
of the additional instructions without counsel's presence.
However, "'[w]hether or not injury or injustice has resulted
to the litigants by reason of the conduct, is not our primary
concern. Rather, our concern is with the implication that
attaches to the administration of justice under these
circumstances.'" Matthews, 286 Ala. at 603, 243 So. 2d at 708
(quoting Daniels, 258 Iowa at 306-07, 138 N.W.2d at 872).
There is no evidence indicating that the trial court attempted
to contact counsel or that it had an "overruling necessity"
for failing to do so. Matthews 286 Ala. at 604, 243 So. 2d at
708.
14
1140604, 1140605, 1140606
The only attempt Marion makes to rebut Dr. Ross's and
Noland's arguments is to say that the "affidavits submitted by
the parties to the trial court speak for themselves." Marion
argues that no misconduct occurred and that this Court should
defer to the discretion of the trial court. However, the
affidavits in question address whether the trial court's law
clerk improperly instructed a single juror as to whether the
jury verdict had to be unanimous. Marion makes no attempt to
address the trial court's concession that the jury was
instructed that the verdict had to be unanimous. Marion also
makes no attempt to address Dr. Ross's and Noland's
allegations –- and the trial court's apparent concession –-
that the trial court instructed the jury as to the burden of
proof outside the presence of the parties and counsel.
Under these circumstances, we have no choice but to
reverse the judgments against Dr. Ross and Noland and to
remand the cause for a new trial. Like the Court in Matthews,
we "are quite certain that the capable and conscientious trial
judge (in whom we repose the highest confidence) intended no
harm" and "was motivated by a sincere desire to expedite the
trial," but we also believe that "we should treat such
15
1140604, 1140605, 1140606
communications
as
'conclusively
prejudicial'
being
a
deprivation of the constitutional right to a fair trial to
which every party litigant is entitled." Matthews, 268 Ala. at
605, 243 So. 2d at 710.
B. Marion's Appeal (case no. 1140606)
On appeal Marion requests that we reinstate her claim
against Dr. Simmons if we reverse the judgments against Dr.
Ross and Noland and remand the cause for a new trial. Marion's
appeal "is in the nature of a conditional cross-appeal, which
becomes ripe for review in the event that the judgment under
review is reversed as a result of the appeal." Huntsville City
Bd. of Educ. v. Sharp, 137 So. 3d 917, 923 (Ala. Civ. App.
2013). Because we are reversing the judgments as to Dr. Ross
and Noland, we may consider Marion's claim against Dr.
Simmons.
Marion argues that, in the interests of justice, this
Court has the authority to grant a new trial as to Dr. Simmons
as well. Marion argues that the improper communications
between the trial court should equally taint the verdict as to
Dr. Simmons just as much as it taints the verdict as to Dr.
Ross and Noland. However, Dr. Simmons argues, among other
16
1140604, 1140605, 1140606
things, that this claim was not properly preserved because it
was not first made to the trial court.
"Generally this Court will not address the merits of an
argument that is raised for the first time on appeal." Crusoe
v. Davis, [Ms. 1130798, Feb. 20, 2015] ___ So. 3d ___, ___
(Ala. 2015). There is no reason Marion could not have asked
the trial court in her opposition to the defendants'
postjudgment motions to grant a new trial as to Dr. Simmons if
the trial court found that a new trial was warranted as to Dr.
Ross and Noland. Thus, we decline Marion's request to reverse
2
the trial court's judgment as to her claim against Dr.
Simmons.
IV. Conclusion
In cases nos. 1140604 and 1140605, the judgments for Dr.
Ross and Noland are reversed and the cause is remanded for a
new trial as to those two defendants. In case no. 1140606, the
judgment is affirmed.
1140604 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Marion did not file a reply brief in case no. 1140606.
2
17
1140604, 1140605, 1140606
Shaw and Bryan, JJ., concur in the result.
1140605 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Shaw and Bryan, JJ., concur in the result.
1140606 -- AFFIRMED.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Shaw, J., concurs in the result.
18 | November 6, 2015 |
7f228da8-7f35-4ec2-9d02-eaea776b7a8d | Ex parte Montgomery County Department of Human Resources. | N/A | 1141295 | Alabama | Alabama Supreme Court | REL: 11/25/2015
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, 2015-2016
____________________
1141295
____________________
Ex parte Montgomery County Department of Human Resources
____________________
1141310
____________________
Ex parte J.B., a minor, by and through J.T.,
guardian ad litem
PETITIONS FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Montgomery County Department of Human Resources
v.
N.B.)
(Montgomery Juvenile Court, JU-10-650.04;
Court of Civil Appeals, 2140109 and 2140118)
1141295 and 1141310
MURDOCK, Justice.
The petitions for the writ of certiorari are denied.
In denying the petitions for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280
So. 2d 155 (1973).
1141295 –- WRIT DENIED.
1141310 –- WRIT DENIED.
Moore, C.J., and Parker, Shaw, and Main, JJ., concur.
Stuart, Bolin, Wise, and Bryan, JJ., dissent.
2
1141295 and 1141310
BOLIN, Justice (dissenting).
I agree with the reasons Justice Bryan provides in his
well written writing for not joining this Court in denying
these petitions; I join his dissent.
3
1141295 and 1141310
BRYAN, Justice (dissenting).
In November 2011, four years ago, the Montgomery County
Department of Human Resources ("DHR") filed a petition in the
Montgomery Juvenile Court seeking to terminate the parental
rights of N.B. ("the mother") to her then eight-year-old
daughter, J.B. ("the child"). For reasons that have not been
explained to this Court, the juvenile court did not conduct a
hearing on DHR's petition until October 30, 2013 –- nearly two
years after the petition to terminate the mother's parental
rights was filed. For reasons that, again, have not been
explained to this Court, Judge Anita Kelly did not rule on
DHR's petition, despite repeated requests to do so, until the
Court of Civil Appeals, on October 1, 2014, granted DHR's
petition for a writ of mandamus and ordered Judge Kelly to
rule –- nearly three years after DHR's petition to terminate
the mother's parental rights was filed and almost one full
year after the hearing on the petition to terminate her
parental rights.
Despite DHR's presentation of clear and convincing
evidence indicating both that the mother was unable and
unwilling to discharge her responsibilities to and for the
4
1141295 and 1141310
child, see § 12-15-319, Ala. Code 1975, and that there was no
viable
alternative
to
terminating
the
mother's
parental
rights
to the child, see B.M. v. State, 895 So. 2d 319, 331 (Ala.
Civ. App. 2004), Judge Kelly entered an order denying DHR's
petition to terminate the mother's parental rights. DHR and
the child's guardian ad litem separately appealed, and the
Court of Civil Appeals, by a vote of 3-2, affirmed the
juvenile court's judgment. See Montgomery Cnty. Dep't
of
Human
Res. v. N.B., [Ms. 2140109, June 12, 2015] ___ So. 3d ___
(Ala. Civ. App. 2015).
The facts of this case are, in many ways, similar to
dozens of termination-of-parental-rights cases that come
before the Court of Civil Appeals and this Court. The mother
has not exercised custody of the child since 2005, when the
child was only two years old. The child lived with various
relatives until October 2010; at that time, DHR learned that
the child had been sexually abused while in the care of her
relatives, and the child was placed in foster care.
Considering the trauma of her childhood, it is not surprising
that the record indicates that the child suffers from post-
5
1141295 and 1141310
traumatic stress disorder and is under the care of a
psychiatrist.
The mother has been diagnosed with schizophrenia, bipolar
disorder, and depression. Despite DHR's offer of services to
treat the mother's mental illnesses, the mother did not
cooperate and did not take the medication prescribed to treat
her mental illnesses. The mother also continued to use
illegal drugs, even at the time of trial, after DHR offered
the mother drug-treatment services. Despite a thorough
investigation of all known family members who could
potentially care for the child, DHR was unable to locate a
relative willing to take custody of the child. The facts of
this case are unusual only in that the mother, who testified
at trial, conceded that she was not willing or able to care
for the child and admitted that there was no hope for
significant improvement in her circumstances in the future.
To that effect, the mother signed, under oath, a document
consenting to the termination of her parental rights and for
the adoption of the child. The child has expressed to her
guardian ad litem that she looked forward to being adopted.
Despite the overwhelming evidence in favor of terminating the
6
1141295 and 1141310
mother's
parental
rights,
Judge
Kelly
denied
DHR's
termination
petition and, in doing so, denied the child the benefits of
stability and permanency that come with adoption.
DHR and the child's guardian ad litem filed with this
Court petitions for a writ of certiorari, seeking review of
the Court of Civil Appeals' decision affirming the juvenile
court's order. The petitions, which are nearly identical,
wholly fail to comply with the procedural and substantive
requirements of Rule 39, Ala. R. App. P. The petitions can
best be described as asserting various allegations of
juvenile- and appellate-court error, which are not cognizable
grounds for certiorari review. See Rule 39(a)(1)(A)-(E), Ala.
R. App. P. A majority of this Court has voted to deny the
petitions, albeit with the disclaimer that, in denying the
petitions, this Court "does not wish to be understood as
approving all the language, reasons, or statements of law in
the Court of Civil Appeals' opinion." ___ So. 3d at ___.
I wholeheartedly believe that the juvenile court failed
this child by denying DHR's petition to terminate the mother's
parental rights and that the Court of Civil Appeals' decision
in this case conflicts with prior decisions from that court.
7
1141295 and 1141310
See, e.g., T.N.S.R. v. N.P.W., 170 So. 3d 684 (Ala. Civ. App.
2014) (the presumption of correctness that is typically
afforded a trial court's findings of fact based on ore tenus
evidence cannot be sustained where the conclusion reached is
plainly and palpably wrong; further, a trial court's
application of the law to the undisputed facts is not entitled
to a presumption of correctness); and Rule 39(a)(1)(D). I
also believe that DHR and its legal division failed this child
by not complying with the procedural and substantive
requirements of Rule 39. In addition to denying the petitions
with the above-mentioned "disclaimer," the majority of this
Court is ordering the attorneys for DHR to submit to a
tutorial from staff attorneys in the Supreme Court clerk's
office to instruct them in how to comply with Rule 39 when
filing a petition for a writ of certiorari. This is not the
first time this Court has ordered such a tutorial for
attorneys representing DHR in petitions for a writ of
certiorari filed in this Court. Some lessons are learned the
hard way. From the perspective of this child, however, that
lesson comes too late.
8
1141295 and 1141310
I dissent in this case because I refuse to be another
adult who has totally failed this child.
Bolin and Wise, JJ., concur.
9 | November 25, 2015 |
80f76e88-58d4-46f1-9f9a-ebcf564138b3 | Ameriprise Financial Services, Inc. v. Jones | N/A | 1140893 | Alabama | Alabama Supreme Court | REL:10/30/2015
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, 2015-2016
_________________________
1140893
_________________________
Ameriprise Financial Services, Inc., and Robert Shackelford
v.
Paul D. Jones and Eleanor G. Jones
Appeal from Autauga Circuit Court
(CV-15-900004)
SHAW, Justice.
Ameriprise Financial Services, Inc. ("Ameriprise"), and
Robert
Shackelford,
the
defendants
below
(hereinafter
referred
to collectively as "the defendants"), appeal from the Autauga
Circuit Court's order denying, in part, their motion to compel
1140893
arbitration of the claims asserted against them by the
plaintiffs, Paul D. Jones and Eleanor G. Jones (hereinafter
referred to collectively as "the plaintiffs"). Specifically,
the defendants
challenge the
circuit
court's refusal to compel
arbitration of the plaintiffs' tort-of-outrage claim. We
reverse and remand.
Facts and Procedural History
In 2009, Charles T. Jones opened two investment accounts
with Ameriprise; Shackelford is an Ameriprise employee. In
connection with the purchase of the accounts, Charles
executed, among other documents, the "Ameriprise Brokerage
Client Agreement for Tax-Qualified ... Brokerage Accounts"
(hereinafter "the agreement"). The agreement contained an
arbitration provision that provided, in pertinent part:
"Arbitration. By reading and accepting the terms of
this Agreement, you acknowledge that, in accordance
with the Arbitration section, you agree in advance
to arbitrate any controversies, which may arise with
the Introducing Broker or Clearing Broker.
"YOU AGREE
THAT ALL
CONTROVERSIES
THAT MAY
ARISE
BETWEEN US (INCLUDING, BUT NOT LIMITED TO THE
BROKERAGE ACCOUNT AND ANY SERVICE OR ADVICE PROVIDED
BY A BROKER OR REPRESENTATIVE), WHETHER ARISING
BEFORE, ON OR AFTER THE DATE THIS ACCOUNT IS OPENED
SHALL BE DETERMINED BY ARBITRATION.... BY SIGNING
AN ARBITRATION AGREEMENT THE PARTIES AGREE AS
FOLLOWS:
2
1140893
"(A) ALL PARTIES TO THIS AGREEMENT ARE GIVING UP
THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE
RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THE
RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS
FILED."
(Capitalization in original.)
In 2012, Charles executed both a durable power of
attorney naming Paul as his attorney in fact and a will
leaving all of his property to the plaintiffs. Thereafter,
Paul allegedly contacted the defendants on numerous occasions
seeking to have the plaintiffs named as the beneficiaries of
the Ameriprise accounts. The plaintiffs allege that, after
Paul provided certain documents identified by Ameriprise as
necessary to effect the beneficiary change, the defendants
allegedly informed him that the plaintiffs had, in fact, been
designated as the named beneficiaries on both accounts.
However, according to the plaintiffs, Ameriprise instead
"reported to the Autauga County Sheriffs Department that [the
plaintiffs had] kidnapped [Charles], and that his signature
was forged on the documents provided." Sheriff's deputies
later spoke with Charles, who allegedly denied both his
kidnapping and the suspected forgery.
3
1140893
Charles died in January 2013, and the plaintiffs made a
claim for the funds in the Ameriprise accounts. The
defendants denied the claim, indicating that the plaintiffs
had never been named beneficiaries.
The plaintiffs subsequently sued the defendants in the
Autauga Circuit Court. The plaintiffs' complaint alleged
numerous counts, including breach of contract, bad faith,
misrepresentation, tort of outrage, negligence, willfulness,
and wantonness. In response, the defendants filed a motion
seeking to compel arbitration of the plaintiffs' claims.
Specifically, the defendants contended that, despite being
nonsignatories to
the
agreement, the
plaintiffs were
nonetheless bound by its terms because they were claiming a
direct benefit from the agreement.
The plaintiffs filed a response conceding that they were
"equitably estopped from avoiding" arbitration as to
all
their
claims except for the tort-of-outrage count. That count
stated: "The defendants, in misrepresenting facts to the
plaintiffs and accusing the plaintiffs of kidnapping and
forgery, knew or should have known that such extreme or
outrageous conduct would inflict extreme emotional distress
4
1140893
upon the plaintiffs." Unlike their other claims, which the
plaintiffs acknowledged "depend upon the existence of [the
agreement],"
as
to
their tort-of-outrage claim,
they
maintained that
"there is no dependence on the existence of any
contract and the prima facie elements of this cause
of action can be proven with only the slightest
references to the ... [agreement]. The existence of
the subject accounts only provides 'background'
information as to the circumstance surrounding [the
defendants' actions in] contacting the Autauga
County Sheriffs Department and reporting that
Charles Jones had been kidnapped. To prevail, [the
plaintiffs] need not prove the existence of the
subject accounts. Additionally, the duty not to
engage in outrageous conduct does not arise out of
the subject account; instead, the duty arose out of
general tort and was owed to [the plaintiffs]
regardless of any contractual relationship between
Charles ... and Ameriprise."
Relying on the foregoing, the plaintiffs argued that none
of the four recognized exceptions pursuant to which this Court
has allowed a nonsignatory to an arbitration agreement to be
compelled to arbitration, namely agency, alter ego, third-
party beneficiary, and intertwining/equitable estoppel,
applied. See, generally, Custom Performance, Inc. v. Dawson,
57 So. 3d 90, 97-99 (Ala. 2010). The circuit court agreed,
concluding that all claims except the tort-of-outrage claim
must be arbitrated and that the tort-of-outrage "claim shall
5
1140893
proceed to trial in the ordinary course." The defendants
appeal solely as to the circuit court's ruling on the
arbitrability of the tort-of-outrage claim.
Standard of Review
"'[T]he standard of review of a trial court's
ruling on a motion to compel arbitration at the
instance of either party is a de novo determination
of whether the trial judge erred on a factual or
legal issue to the substantial prejudice of the
party seeking review. Ex parte Roberson, 749 So. 2d
441, 446 (Ala. 1999). Furthermore:
"'A motion to compel arbitration is
analogous to a motion for summary judgment.
TranSouth Fin. Corp. v. Bell, 739 So. 2d
1110, 1114 (Ala. 1999). The party seeking
to compel arbitration has the burden of
proving the existence of a contract calling
for arbitration and proving that that
contract evidences a transaction affecting
interstate commerce. Id. "After a motion
to compel arbitration has been made and
supported, the burden is on the non-movant
to present evidence that the supposed
arbitration agreement is not valid or does
not apply to the dispute in question."'
"Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277,
280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v.
Beavers, 674 So. 2d 1260, 1265 n.1 (Ala. 1995)
(emphasis omitted))."
Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752-53 (Ala.
2002).
Discussion
6
1140893
"The Federal Arbitration Act, 9 U.S.C. § 1 et
seq. ('the FAA'), provides that '[a] written
provision in ... a contract evidencing a transaction
involving commerce to settle by arbitration a
controversy thereafter arising out of such contract
or transaction ... shall be valid, irrevocable, and
enforceable ....' 9 U.S.C. § 2. The FAA 'mandates
the arbitration of claims encompassed by an
arbitration clause that is contained in a binding
contract that involves interstate commerce.' Ex
parte Conference America, Inc., 713 So. 2d 953, 955
(Ala. 1998)."
Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 3-4 (Ala.
2007).
In support of their motion to compel arbitration, the
defendants produced a contract calling for arbitration,
namely, the agreement. Therefore, the burden then shifted to
1
the plaintiffs to present evidence indicating that the
arbitration provision did not apply to their claims against
the defendants. Vann, supra.
As set out above, the plaintiffs conceded below that,
despite the fact that they were nonsignatories to the
agreement, they were nonetheless bound to arbitrate some of
their claims because they were seeking to claim benefits
dependent upon the agreement, which contained the arbitration
There is no dispute that the transaction involved
1
interstate commerce.
7
1140893
provision; by that acknowledgment, the plaintiffs both
necessarily
established
themselves
as
third-party
beneficiaries
of
the
agreement
and
rendered
themselves
subject
to the accompanying burdens created thereby. See Dawson, 57
So. 3d at 97-98 (holding that "[r]egardless of whether a
nonsignatory is in fact a third-party beneficiary, the
nonsignatory is treated as a third-party beneficiary —- and is
equitably estopped from avoiding arbitration —- when he or she
asserts legal claims to enforce rights or obtain benefits that
depend on the existence of the contract that contains the
arbitration agreement"). See also Cook's Pest Control, Inc.
v. Boykin, 807 So. 2d 524, 526 (Ala. 2001) (restating the
general rule "'that a third-party beneficiary cannot accept
the benefit of a contract, while avoiding the burdens or
limitations of that contract'" (quoting Georgia Power Co. v.
Partin, 727 So. 2d 2, 5 (Ala. 1998))). However, "[t]o the
extent that the nonsignatory's claims do not rely on the
existence
of the
contract
containing the
arbitration
provision, the nonsignatory is not estopped from avoiding
arbitration." Dawson, 57 So. 3d at 98.
8
1140893
The plaintiffs present numerous claims on appeal as to
why they, as nonsignatories, may not be compelled to arbitrate
their tort-of-outrage claim. See, e.g. Boykin, 807 So. 2d at
526 (explaining that, generally, "a nonsignatory to an
arbitration agreement cannot be forced to arbitrate [his]
claims"). Specifically, they maintain that the third-party-
beneficiary exception does not apply because, they contend,
"[w]hen the subject [agreement was] signed ... neither
Ameriprise nor Charles ... intended to confer any direct
benefit on [either of the plaintiffs]"; that "[t]he
'intertwining claims' exception is inapplicable because, as
signatories, Ameriprise and Shackelford cannot use this
exception to compel non-signatories to arbitrate"; and that
"the 'equitable estoppel' exception does not apply
because this exception is predicated on the
equitable principle that a non-signatory cannot
simultaneously prosecute a claim that relies on or
depends upon the existence of a contract containing
an arbitration provision and ignore the contract’s
arbitration provision."
(Appellees' brief, at pp. 8-9.) The plaintiffs contend that
their tort-of-outrage claim is not dependent upon the
agreement containing the arbitration provision. More
specifically, they contend that the agreement has only a
9
1140893
"tangential" connection to the facts giving rise to their
tort-of-outrage
claim,
namely
the
purported
false
reporting
of
a forgery and a kidnapping. We cannot agree.
As set out above, the agreement, by its express terms,
applies to "all controversies that may arise." The defendants
note that this Court has held that "'[t]he phrase "any
controversy or claim arising out of or relating to" in
arbitration agreements covers a broad range of disputes.'"
(Appellants' brief, at p. 20, quoting Vann, 834 So. 2d at
754.) The language of the agreement refers to "any
controversies" that arise between the parties and is not
limited to those related to or arising from the agreement.
The plaintiffs continue to assert, however, that they claim no
benefits under the agreement that relate to the prosecution of
their tort-of-outrage claim.
In order to determine whether "a third party's claims can
be so dependent upon a contract that a mere disavowal of
third-party-beneficiary status cannot defeat a properly
supported motion to compel arbitration," we conduct a fact-
specific analysis. Boykin, 807 So. 2d at 526-27. In Olshan
10
1140893
Foundation Repair Co. of Mobile v. Schultz, 64 So. 3d 598
(Ala. 2010), we stated:
"We must consider the facts presented to us in
this case to determine whether the tort claims
asserted by Mrs. Schultz depend upon the existence
of the 2006 and 2007 contracts containing the
arbitration
provision.
See,
e.g.,
[Custom
Performance, Inc. v.] Dawson, 57 So. 3d [90] at 98
[(Ala. 2010)] (quoting this Court's statements in
Cook's [Pest Control, Inc. v. Boykin, 807 So. 2d 524
(Ala.
2001),]
and
stating:
'Accordingly,
to
determine whether [the plaintiff] is equitably
estopped from avoiding the contractual burden of
arbitration, we must first consider whether, under
the circumstances of this case, any of the legal
claims asserted by [the plaintiff] are dependent on
the existence of the contract that contains the
arbitration agreement.'). Mrs. Schultz alleges that
Olshan negligently and wantonly performed work on
the foundation of her house in August 2006, March
2007, and January 2008, thus damaging her house. It
is undisputed that Olshan's work on which Mrs.
Schultz bases her claims was done pursuant to the
2006 and 2007 contracts. To support her claims,
Mrs. Schultz must prove that Olshan owed her a duty.
Mrs. Schultz has not alleged, and we do not see how
she may prove, the existence of such a duty without
reference to the 2006 and 2007 contracts. As in
[Capitol Chevrolet & Imports, Inc. v.] Grantham,
[784 So. 2d 285 (Ala. 2000),] therefore, Mrs.
Schultz's claims depend upon the existence of the
contracts containing the arbitration provision. Mrs.
Schultz cannot simultaneously 'base her claims on
the contract[s] executed between her husband and
[Olshan] and at the same time seek to avoid the
arbitration agreement.' Grantham, 784 So. 2d at
289."
64 So. 3d at 609-10 (footnote omitted).
11
1140893
The
plaintiffs'
tort-of-outrage
claim
arises
from
conduct
by the defendants that occurred in connection with the
plaintiffs' attempts to effect a beneficiary change under the
agreement. Without the agreement, the plaintiffs would never
have contacted Ameriprise, and Ameriprise would never have
contacted law enforcement with concerns regarding whether the
documents submitted to effectuate the change had been forged
and Charles had been kidnapped. In fact, it was only in
Paul's role as attorney in fact and agent for Charles, who was
clearly bound by the duty to arbitrate all controversies, that
the requested beneficiary change –- and the allegedly
outrageous response of Ameriprise –- occurred. Moreover, the
allegedly "outrageous" nature of Ameriprise's response to the
requested benefit change must be viewed in the context of its
own responsibilities in determining the validity of a
requested beneficiary change on the affected accounts;
therefore, the plaintiffs' claims arise out of the manner in
which they contend the beneficiary change –- an act the
defendants argue was specifically governed by the
agreement --
should have been effectuated. See Edward D. Jones & Co. v.
2
We express no opinion as to the viability of the
2
plaintiffs' tort-of-outrage claim.
12
1140893
Ventura, 907 So. 2d 1035, 1042 (Ala. 2005). See also Edwards
Motors, Inc. v. Hudgins, 957 So. 2d 444, 448 (Ala. 2006)
(compelling arbitration of purchaser plaintiffs' malicious-
prosecution claim where automobile dealership had instituted
criminal proceeding against plaintiffs, which was later
dismissed, on ground that arbitration provision contained in
purchase
agreement
covered
plaintiffs'
claim,
which
"'"result[ed] from or ar[ose] out of or relat[ed] to or
concern[ed] the transaction entered into"'" (quoting Dan
Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So. 2d 287,
293 (Ala. 2004))).
In sum, the nonsignatory plaintiffs have clearly conceded
that they are third-party beneficiaries of the agreement. The
scope of the arbitration provision in the agreement is
indisputably broad enough to encompass the plaintiffs' tort-
of-outrage claim. Moreover, as the defendants note, "[t]he
events surrounding the change of beneficiary [on the
Ameriprise accounts] form the basis for all of the
[plaintiffs’] claims." (Appellants' brief, at pp. 6-7.)
Under
the
foregoing
reasoning,
the
plaintiffs'
tort-of-outrage
claim is, like their other claims, subject to the arbitration
13
1140893
provision in the agreement. The circuit court, therefore,
improperly denied the defendants' motion seeking to compel
arbitration of all of the plaintiffs' claims.
Conclusion
We reverse the circuit court’s order insofar as it denied
the defendants' motion to compel arbitration of the
plaintiffs' tort-of-outrage claim and remand the case for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Main, and Wise, JJ., concur.
Moore, C.J., and Murdock and Bryan, JJ., dissent.
14 | October 30, 2015 |
6ba7e853-4fd6-4706-b1df-ef626ae53b6b | Aliant Bank v. Carter | N/A | 1140023 | Alabama | Alabama Supreme Court | Rel: 12/31/2015
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, 2015-2016
____________________
1140023
____________________
Aliant Bank
v.
Kimberly Carter and Kerry Carter
Appeal from Shelby Circuit Court
(CV-14-901043)
PARKER, Justice.
Aliant Bank ("Aliant") appeals the entry of an injunction
against it by the Shelby Circuit Court ("the circuit court")
enjoining Aliant from interfering with a contract for the sale
of real property between Kimberly Carter and Kerry Carter, on
1140023
the one hand, and Gregory R. Nunley and Robyn C. Nunley, on
the other.
Facts and Procedural History
The Carters own, as joint tenants, a piece of real
property located in Shelby County ("the property"). The
Carters used the property to secure a mortgage from Mortgage
Electronic
Registration
Systems,
Inc.
("MERS");
the
approximate payoff amount of the mortgage during the time
relevant to this appeal was $372,277.93. In addition to the
MERS
mortgage,
three
creditors
secured
judgments
against
Kerry
Carter in the total approximate amount of $1.5 million. In
order to secure their judgments against Kerry Carter, the
judgment creditors obtained liens against the property in the
amounts of $287,244.36, $980,088.41, and $245,575.42 on the
dates of December 15, 2010, April 7, 2011, and April 26, 2011,
respectively. In 2011, Aliant obtained a judgment against
Kerry Carter in the amount of $789,738.08. On or about
November 28, 2011, Aliant recorded its judgment against Kerry
Carter in the Shelby County Probate Court pursuant to §
6-9-210, Ala. Code 1975.1
Section 6-9-210 provides:
1
2
1140023
On August 21, 2014, the Carters entered into a contract
with the Nunleys for the sale of the property for a purchase
price of $438,900 ("the contract"). At the time the Carters
entered into the contract, the judgment liens against the
property had not been satisfied. The preliminary settlement
statement for the sale of the property indicates that
$372,277.93 of the sale proceeds would be used to pay off the
outstanding mortgage held by MERS on the property. The
preliminary settlement statement also indicates that, after
the mortgage had been satisfied and closing costs paid, the
"The owner of any judgment entered in any court
of this state or of the United States held in this
state may file in the office of the judge of probate
of any county of this state a certificate of the
clerk or register of the court by which the judgment
was entered, which certificate shall show the style
of the court which entered the judgment, the amount
and date thereof, the amount of costs, the names of
all parties thereto and the name of the plaintiff's
attorney and shall be registered by the judge of
probate in a book to be kept by him for that
purpose, which said register shall also show the
date of the filing of the judgment. Said judge shall
make a proper index to said book, which shall also
show under the proper letter or letters of the
alphabet the names of each and every defendant to
said judgment, and such judgments shall be recorded
in chronological order of the filing of such
judgments. Such certificate shall also show the
address of each defendant or respondent, as shown in
the court proceedings."
3
1140023
net proceeds of the sale would be $27,129.14, which was to be
split equally between the Carters as joint tenants.
Therefore, Kerry Carter, against whom the judgment liens were
entered, would only receive $13,564.57 as a result of the
proposed sale of the property to the Nunleys.
The first judgment creditor agreed to release its
judgment lien on the property in exchange for the $13,564.57
due Kerry Carter from the sale proceeds. Although the record
does not indicate that the second or third judgment creditor
agreed to release its judgment lien against the property the
record is clear that Aliant refused to release its judgment
lien against the property. Apparently, Aliant's refusal to
execute a release of its judgment lien inhibited the closing
of the contract.
On September 14, 2014, the Carters sued Aliant, alleging
that Aliant had intentionally and maliciously refused to
execute a partial release of the property "in order to
prohibit [Kerry] Carter from being able to fulfill his
obligations under the purchase contract even though all
profits due Kerry Carter are being disgorged and paid to the
appropriate
judgment
creditor,
[the
first
judgment
4
1140023
creditor]." The Carters requested that the property be
2
released from Aliant's judgment lien against it. The Carters
also requested that the circuit court enter a temporary
restraining order; the Carters did not explain what they
sought to temporarily restrain pending the outcome of their
action.
On October 3, 2014, Aliant filed an answer to the
Carters' complaint and a response to the Carters' request for
a temporary restraining order. In its response to the
Carters' request for a temporary restraining order, Aliant
argued that it was not wrongfully interfering with the
contract because it held a valid judgment lien and further
that there existed "no mechanism for a judgment lien to be
avoided unless it is released, satisfied, or extinguished due
to the foreclosure of a prior lien, or if it is subject to
'lien stripping' under 11 U.S.C. §§ 506 and 1322 of the
Bankruptcy Code."
It appears that the Carters were asserting a claim of
2
intentional interference with a contract. See Century 21
Academy Realty, Inc. v. Breland, 571 So. 2d 296, 297 (setting
forth the elements of a cause of action for intentional
interference with contractual relations).
5
1140023
On October 8, 2014, following an ore tenus hearing, the
circuit court entered an order, which states, in pertinent
part:
"Accordingly, this Court hereby Orders that
Aliant Bank shall be enjoined and restrained from
interfering with the sale of the subject property,
--- Highway 13, Helena, Alabama 35080, from Kimberly
and Kerry Carter to Gregory and Robyn Nunley for the
purchase price of $438,900.00 as set out in the real
estate sales contract introduced as Plaintiff's
Exhibit 1. In accordance with the settlement
statement introduced into evidence as Plaintiff's
Exhibit
2,
the
Court
understands
that
the
proration's [sic] on said settlement statement will
vary as being governed by the date of closing. The
closing attorney, Clayton T. Sweeney, after the
payment of the first mortgage and all closing costs
and expenses as shown on the settlement statement
entered into evidence as Plaintiff's Exhibit 2 is
ordered to pay to [the first judgment creditor] any
and all proceeds due to be paid to Kerry Carter as
[it is] the first judgment creditor. Further, this
Court orders Clayton T. Sweeney to pay into this
Court any and all proceeds due to Kimberly Carter.
This Court hereby orders that all judgments of [the
second judgment creditor], [the third judgment
creditor,] and Aliant Bank ... shall herein be
transferred from the subject property and attach to
the proceeds to the extent that such judgment
creditors prove their entitlement. Kimberly Carter
shall also be entitled to establish her claim to
these proceeds. The payment of the funds into the
Court shall act as the security for the issuance of
the temporary restraining order."
On October 10, 2014, Aliant petitioned this Court for a
writ of mandamus directing the circuit court to vacate its
6
1140023
October 8, 2014, order. On February 6, 2015, this Court
ordered that Aliant's petition for a writ of mandamus be
treated as a timely notice of appeal. After this Court issued
the above order, Aliant filed its appellant's brief on April
21, 2015. Instead of filing an appellee's brief, the Carters,
on May 21, 2015, filed a motion to dismiss Aliant's appeal as
moot, alleging that the property had been foreclosed upon by
MERS; the Carters did not present this Court with any evidence
indicating that MERS had, in fact, foreclosed upon the
property. On May 26, 2015, Aliant filed a memorandum in
opposition to the Carters' motion to dismiss its appeal. On
May 28, 2015, this Court issued a show-cause order directing
Aliant to demonstrate why the appeal was not moot. On June 8,
2015, Aliant filed a memorandum in response to the show-cause
order that largely mirrored the arguments raised in its May
26, 2015, memorandum.
On November 3, 2015, this Court ordered the Carters to
file evidence with this Court in support of its motion to
dismiss the appeal as moot. See South Alabama Gas Dist. v.
Knight, 138 So. 3d 971, 976 (Ala. 2013)("'[B]ecause mootness
is a jurisdictional issue, we may receive facts relevant to
7
1140023
that issue; otherwise there would be no way to find out if an
appeal has become moot.' Clark v. K–Mart Corp., 979 F.2d 965,
967 (3d Cir. 1992). See also Jeffrey C. Dobbins, New Evidence
on Appeal, 96 Minn. L. Rev. 2016, 2030 (2012) ('[A]llegations
that a case is moot on appeal will often require an appellate
court to consider what is technically new evidence.')."). On
November 9, 2015, the Carters presented this Court with an
auctioneer's deed indicating that the Carters had
defaulted on
the mortgage, that MERS had foreclosed on the property, and
that MERS had sold the property to Federal National Mortgage
Association ("FNMA") for $389,752.21.
Aliant filed
a
response
on November 10, 2015. From the evidence before us, it is
clear that the Carters no longer own the property.
Discussion
In their motion to dismiss Aliant's appeal as moot, the
Carters essentially argue that their claim of intentional
interference with a contract against Aliant is now moot
because, they say, the contract "is now legally impossible as
a result of the foreclosure. The Carters no longer have legal
title to the subject residence to convey." Accordingly, the
Carters argue that the injunctive relief they requested is no
8
1140023
longer attainable and that, consequently, the case is no
longer justiciable. We agree.
As a result of the foreclosure upon the property, the
injunctive relief ordered by the circuit court can have no
effect. In Knight, this Court stated:
"When an action becomes moot during its
pendency,
the
court
lacks
power
to
further
adjudicate the matter.
"'"The test for mootness is commonly stated
as whether the court's action on the merits
would affect the rights of the parties."
Crawford v. State, 153 S.W.3d 497, 501
(Tex. App. 2004) (citing VE Corp. v. Ernst
& Young, 860 S.W.2d 83, 84 (Tex. 1993)). "A
case becomes moot if at any stage there
ceases to be an actual controversy between
the parties." Id. (emphasis added) (citing
National Collegiate Athletic Ass'n v.
Jones, 1 S.W.3d 83, 86 (Tex. 1999)).'
"Chapman v. Gooden, 974 So. 2d 972, 983 (Ala. 2007)
(first emphasis added). See also Steffel v.
Thompson, 415 U.S. 452, 459 n. 10, 94 S. Ct. 1209,
39 L. Ed. 2d 505 (1974) ('[A]n actual controversy
must be extant at all stages of review, not merely
at the time the complaint is filed.').
"....
"Events occurring subsequent to the entry or
denial of an injunction in the trial court may
properly be considered by this Court to determine
whether a cause, justiciable at the time the
injunction order is entered, has been rendered moot
on appeal. '[I]t is the duty of an appellate court
to consider lack of subject matter jurisdiction
9
1140023
....' Ex parte Smith, 438 So. 2d 766, 768 (Ala.
1983). '[J]usticiability is jurisdictional.' Ex
parte State ex rel. James, 711 So. 2d 952, 960 n. 2
(Ala. 1998). A justiciable controversy is one that
'is definite and concrete, touching the legal
relations of the parties in adverse legal interest,
and it must be a real and substantial controversy
admitting of specific relief through a decree.'
Copeland v. Jefferson Cnty., 284 Ala. 558, 561, 226
So. 2d 385, 387 (1969). A case lacking ripeness has
yet to come into existence; a moot case has died.
3
4
Between the two lies the realm of justiciability.
See 13B Charles Alan Wright et al., Federal Practice
and Procedure § 3533 (3d ed. 2008) ('It is not
enough that the initial requirements of standing and
ripeness have been satisfied; the suit must remain
alive throughout the course of litigation, to the
moment of final appellate disposition.').
"____________________
" Ripeness is '[t]he state of a dispute that has
3
reached, but has not passed, the point when the
facts have developed sufficiently to permit an
intelligent and useful decision to be made.' Black's
Law Dictionary 1442 (9th ed. 2009).
" A mootness analysis 'concentrate[s] attention
4
on the peculiar problems of a suit's death, rather
than its birth.' 13B Charles Alan Wright et al.,
Federal Practice and Procedure § 3533.1 (3d ed.
2008)."
138 So. 3d at 974-76.
In the present case, there is no longer an actual
controversy to be decided by this Court. In their complaint
against Aliant, the Carters alleged that Aliant had
intentionally interfered with the
contract. The circuit court
10
1140023
ordered "that Aliant Bank shall be enjoined and restrained
from interfering with the sale of the ... property ... from
Kimberly and Kerry Carter to Gregory and Robyn Nunley for the
purchase price of $438,900.00 as set out in the ... contract
introduced as Plaintiff's Exhibit 1." (Emphasis added.) It
is clear that the circuit court enjoined Aliant from
interfering with the contract. The circuit court did not
broadly order that Aliant was permanently enjoined from
interfering with any contract between the Carters and the
Nunleys that may be entered into in the future. Additionally,
the part of the circuit court's order concerning the potential
proceeds of the pending sale was dependent upon the Carters'
selling the property to the Nunleys. The Carters, however,
never sold the property to the Nunleys. Instead, while
Aliant's appeal to this Court was pending, the property was
foreclosed upon by MERS and then was sold to FNMA at an
auction. As a result, the circuit court's order enjoining
Aliant from interfering with the contract is now moot; events
occurring after the order was entered have eliminated any
potential controversy arising from that order. Thus, we do
not reach Aliant's arguments on the merits.
11
1140023
Aliant raises numerous arguments in its response to the
Carters' motion to dismiss Aliant's appeal as moot. First,
Aliant argues that, even though MERS foreclosed upon the
property and the property was sold to FNMA, "the Carters still
have the power to transfer their home to the Nunleys." Aliant
reasons that the Carters have a right to redeem the property
within one year from the date of the foreclosure and that, if
they redeem the property, they could then sell the property to
the Nunleys free of Aliant's judgment lien.
Aliant's argument is not persuasive, because it ignores
the fact that the circuit court's order concerned only the
contract, i.e., the sales contract at issue in the present
case. As stated above, the circuit court did not permanently
enjoin Aliant from ever enforcing its judgment lien against
the property. Now that the contract is not capable of
performance, the entirety of the circuit court's order is
moot. Assuming Aliant is correct in stating that the Carters
could redeem the property and then sell it to the Nunleys,
Aliant would not be enjoined by the circuit court's October 8,
2014, order from enforcing its judgment lien against the
property at some future date because the circuit court's order
12
1140023
enjoined Aliant only from interfering with the contract. This
situation is specifically addressed in § 6-5-248(d),
Ala. Code
1975, which states:
"When any debtor, mortgagor, their transferees,
their respective spouses, children, heirs, or
devisees redeem, all recorded judgments, recorded
mortgages, and recorded liens in existence at the
time of the sale, are revived against the real
estate redeemed and against the redeeming party and
further redemption by some party other than the
mortgagor
or
debtor
under
this
article
is
precluded."
Should the Carters redeem the property, Aliant's lien against
the property would be revived and, as explained above, would
not be subject to the circuit court's October 8, 2014, order.
Next, Aliant argues that its appeal is not moot because,
it argues, the issue whether it was wrongfully enjoined or
restrained must be decided. This is significant because "[a]
party that is wrongfully enjoined or restrained has 'a cause
of action for recovery under the surety bonds posted in
accordance with Rule 65(c)[, Ala. R. Civ. P].[ ]' Talladega
3
Rule 65(c), Ala. R. Civ. P., states:
3
"No restraining order or preliminary injunction
shall issue except upon the giving of security by
the applicant, in such sum as the court deems
proper, for the payment of such costs, damages, and
reasonable attorney fees as may be incurred or
suffered by any party who is found to have been
13
1140023
Little League, Inc. v. Anderson, 577 So. 2d 1293, 1296 (Ala.
1991)." Ex parte Waterjet Sys., Inc., 758 So. 2d 505, 510
(Ala. 1999). Aliant's argument is based on the premise that
the circuit court entered a temporary restraining order
against Aliant; however, that premise is incorrect. Although
the circuit court purported to enter a temporary restraining
order against Aliant, the circuit court actually entered a
permanent injunction against Aliant.
This Court has stated that "[i]t is well settled that the
purpose of granting a temporary restraining order or
preliminary injunction is to maintain the status quo until the
merits of the case can be determined. Hamilton v. City of
Birmingham, 28 Ala. App. 534, 189 So. 776 (1939)." Ex parte
Health Care Mgmt. Grp. of Camden, Inc., 522 So. 2d 280, 282
(Ala. 1988). The Carters' complaint consists of one
allegation
of
intentional
interference
with
a
contract
against
Aliant. The sole issue to be determined was whether Aliant
intentionally interfered with the contract by refusing to
wrongfully
enjoined
or
restrained;
provided,
however, no such security shall be required of the
State of Alabama or of an officer or agency thereof,
and provided further, in the discretion of the
court, no such security may be required in domestic
relations cases."
14
1140023
partially release its judgment lien against the property. The
circuit court's order decided that issue by determining that
Aliant had intentionally interfered with the contract and by
enjoining Aliant from further interfering with the contract.
The only relief requested by the Carters in their complaint
was entirely granted in the circuit court's October 8, 2014,
order.
Accordingly, the circuit court's order did not issue a
temporary restraining order preserving the status quo until
the merits of the case could be decided. Instead, the circuit
court decided the merits of the case and entered a permanent
injunction against Aliant; the circuit court's order is a
final judgment, which Aliant challenges. Accordingly, Rule
65(c), Ala. R. Civ. P., and its requirement that a bond be
provided in order to issue a restraining order or a
preliminary injunction does not apply. Aliant's argument
under Rule 65 does not convince this Court that its appeal is
not moot.
Moreover, we note that a bond was never actually issued
in this case. The circuit court's order required certain
proceeds of the pending sale to be paid into the circuit
15
1140023
court, which would then "act as the security for the issuance
of the temporary restraining order." However, as stated
above, the pending sale never came to fruition; thus, no
proceeds were paid into the circuit court as security for the
issuance of the "temporary restraining order."
Next, Aliant argues that its appeal is not moot because
"the question whether the [circuit] court erred in stripping
Aliant's judgment lien from the property must be decided
because that issue determines whether Aliant may redeem the
property from the ... foreclosure sale." Aliant's argument is
based on the following portion of the circuit court's order:
"This Court hereby Orders that all judgments of [the second
judgment creditor], [the third judgment creditor,] and Aliant
Bank ... shall herein be transferred from the subject property
and attach to the proceeds to the extent that such judgment
creditors prove their entitlement." Aliant argues that the
above portion of the circuit court's order "stripped" its
judgment lien against the property.
First, as explained above, the entirety of the circuit
court's order is moot and cannot be given effect because the
contract has been rendered incapable of being fulfilled.
16
1140023
Accordingly, the circuit court's order
does not
"strip"
Aliant
of its judgment lien against the property. Thus, as stated
4
above, we do not reach Aliant's arguments on the merits of
this appeal concerning whether "Alabama law provides [a]
procedure to 'avoid' a valid judgment lien." Second, Aliant
has misinterpreted the circuit court's judgment.
This portion
of the circuit court's order applied only if the pending sale
of the property occurred. The circuit court ordered that
certain proceeds from the pending sale of the property would
be paid into the circuit court and that the various judgment
creditors' liens against the property would be transferred
from the property to the proceeds paid into the circuit court.
However, the Carters never sold the property to the Nunleys;
thus, no proceeds from the sale were ever paid into the
circuit court. As a result, the judgment creditors' liens did
not transfer from the property. Therefore, Aliant's argument
does not demonstrate that its appeal is not moot.
Lastly, Aliant argues that its appeal is not moot because
"the question of whether a court may order property sold free
We offer no opinion as to the effect of MERS's
4
foreclosure and sale of the property on Aliant's judgment lien
against the property.
17
1140023
and clear of judgment liens must be decided because that issue
is 'capable of repetition, yet evading review.'" Aliant's
argument is unconvincing.
Aliant argues that the challenged action was too short in
duration to be fully litigated before its cessation or
expiration. In McCoo v. State, 921 So. 2d 450, 458 (Ala.
2005), this Court stated:
"The capable-of-repetition-but-evading-review
exception has been applied in contexts that
generally involve a significant issue that cannot be
addressed by a reviewing court because of some
intervening factual circumstance, most often that
the issue will be resolved by the passage of a
relatively brief period of time. See, e.g., Roe v.
Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147
(1973)(involving the termination of a pregnancy);
Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23
L. Ed. 2d 1 (1969)(involving challenges to election
procedures after the completion of the election);
and [State ex rel. ]Kernells [v. Ezell, 291 Ala.
440, 282 So. 2d 266, 270 (1973)] (same)."
Aliant also directs this Court's attention to Turner v.
Rogers, 564 U.S. 431 (2011), in which the United States
Supreme Court held that prison terms of one to two years did
not allow enough time for the matters concerning the
imprisonment to be fully litigated.
The present case is not the kind of case that fits within
the capable-of-repetition-but-evading-review exception. The
18
1140023
cases mentioned in McCoo and Turner as examples of cases that
do fit within the capable-of-repetition-but-evading-review
exception involve situations that necessarily end within a
brief passage of time (e.g., pregnancy, elections, and a
prison term of two years or less). A claim alleging
intentional interference with a contract is different from
matters such as pregnancy, elections, and prison terms of less
than two years because a claim alleging intentional
interference with a contract does not necessarily end within
a brief passage of time. The only reason review was cut short
in this case is because MERS happened to have a claim on the
property senior to Aliant's judgment lien. Once MERS
foreclosed on the property, the circuit court's order
enjoining Aliant from interfering with the contract became
moot because the contract had become impossible to perform.
Aliant argues that foreclosures in cases such as the present
case are "almost guaranteed" and that such foreclosures would
never allow enough time for appellate review. However, Aliant
has not presented any evidence or supporting authority
indicating that foreclosures are "almost guaranteed" in cases
such as this one. For instance, it is possible that in a
19
1140023
future
case
in
which
Aliant
is
sued
for
allegedly
intentionally interfering with a contract for seeking to
enforce its judgment lien that Aliant's judgment lien would be
the most senior lien, and no foreclosure would moot Aliant's
appeal. It could also be that there would be no foreclosure
at all. In short, cases involving judgment creditors that
have been sued for intentionally interfering with a contract
for the sale of property against which they have filed a
judgment lien are not the kind of cases that are necessarily
mooted by a brief passage of time.
This is a peculiar case in which a judgment creditor was
permanently enjoined from interfering with a contract for the
sale of property. Normally, a party that has been permanently
enjoined from interfering with a contract would have ample
time to seek appellate review. This case had the additional
wrinkle of a foreclosure, which made the contract that was the
basis of the action impossible to perform. As a result, the
circuit court's order enjoining Aliant became moot because
there was no longer a justiciable controversy. However, a
claim alleging intentional interference with a contract does
not typically become moot within a brief passage of time.
20
1140023
Aliant has failed to demonstrate that this case fits within
the capable-of-repetition-but-evading-review exception to the
mootness doctrine.
Conclusion
We conclude that there is no longer a justiciable
controversy between Aliant and the Carters, a fact that
renders the case moot. Therefore, this Court does not have
jurisdiction over Aliant's appeal; thus, we dismiss Aliant's
appeal.
APPEAL DISMISSED.
Moore, C.J., and Stuart, Bolin, Murdock, Main, and Wise,
JJ., concur.
Shaw and Bryan, JJ., concur in the result.
21 | December 31, 2015 |
64924e99-f5bb-437e-aafd-29e1c0b85d6a | Johnson v. Reddoch | N/A | 1121481 | Alabama | Alabama Supreme Court | REL: 12/18/2015
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, 2015-2016
____________________
1121481
____________________
Jeffrey Johnson, by and through his aunt and next friend,
Sue Thompson
v.
Jim Reddoch, as Commissioner of the Alabama Department
of Mental Health, and Beatrice J. McLean, individually
and as Director of Searcy Hospital
Appeal from Mobile Circuit Court
(CV-12-901693)
MURDOCK, Justice.
Jeffrey Johnson, by a through his aunt and next friend,
Sue Thompson, appeals from the Mobile Circuit Court's
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dismissal of his action against Jim Reddoch, in his official
capacity as commissioner of the Alabama Department of Mental
Health ("ADMH"), Beatrice J. McLean, in her official capacity
1
as director of Searcy Hospital ("Searcy"), and McLean and
fictitiously named defendants 1 through 8 in their individual
capacities. Johnson also appeals the circuit court's quashing
of a subpoena served on ADMH seeking records pertaining to
Johnson. We affirm in part and reverse in part.
I. Facts and Procedural History
At the time of the incident that is the subject of this
action, Searcy was a state-owned and state-operated facility
for the care of the mentally ill located in Mt. Vernon,
Alabama, and Johnson was a 40-year-old patient at Searcy who
suffered from paranoid schizophrenia. According to the
complaint, Johnson's condition is so severe that Johnson was
"required to be under constant 2-on-1 supervision by [ADMH]
Reddoch
resigned
as
commissioner
effective
June
30,
2015.
1
James V. Perdue was appointed as commissioner effective
July 1, 2015. Pursuant to Rule 43(b), Ala. R. App. P., Perdue
was automatically substituted as
an
appellee. Although Perdue
is now the appellee, because this case proceeded in the
circuit court and on appeal while Reddoch was commissioner, we
have chosen not to restyle the appeal.
2
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employees at Searcy Hospital." This supervision was supposed
to be in place 24 hours a day, 7 days a week.
On June 22, 2012, Johnson was severely beaten in his ward
at Searcy. He collapsed and he was taken to University of
South Alabama Hospital. Medical testing showed that, as a
result of the beating, he suffered severe
and
life-threatening
injuries, including internal bleeding, severe bruising to his
face and body, a fractured nose, and several broken ribs.
ADMH
policies
and
procedures
prohibit
employees,
including mental-health workers, from abusing, mistreating,
exploiting, or neglecting mental-health patients in their
care. Employees are also required to immediately report any
injuries sustained by a patient and to report if they have
knowledge of or suspect any mental-health worker of abusing,
mistreating, exploiting, or neglecting a patient. In
Johnson's case, he alleged, Searcy's mental-health workers
failed to keep him under the required constant supervision and
failed to immediately report his injuries.
ADMH closed Searcy on October 31, 2012. Johnson was
transferred to another ADMH facility, Bryce Hospital in
Tuscaloosa, Alabama. It is undisputed that, although McLean
3
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was the director of Searcy on June 22, 2012, she is not the
director of Bryce Hospital and she is no longer an employee of
the State of Alabama. It is also undisputed that Zelia Baugh
was the commissioner of ADMH on June 22, 2012; Reddoch became
the commissioner of ADMH on July 1, 2012.
On August 7, 2012, Johnson commenced in the Mobile
Circuit Court the present action by a through his aunt and
next friend, Sue Thompson. Johnson sought prospective
injunctive relief against Reddoch and McLean
in
their official
capacities.
Johnson
also
asserted
claims
against
fictitiously
named defendants 1 through 8, the mental-health workers
responsible for Johnson's care ("the fictitiously named
defendants"), in their individual capacities, for damages
based
on
noncompliance
with
ministerial
duties
and
checklists,
violations of nondiscretionary rules, and negligent, wanton,
and deliberate conduct. In his complaint, Johnson averred
that his counsel
"attempted in good faith to determine the identities
of the Fictitiously Named Defendants mentioned in
the Complaint. A review of the medical records
reveal[s] that the names of the individual mental
health works are illegible. It is known that
several mental health workers employed at Searcy
have been suspended. Despite direct requests made to
4
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the [ADMH], they will not identify the individual
mental health workers in any way to counsel."
On September 12, 2012, McLean filed a motion to dismiss
the claims against her on the ground that she possessed State
immunity under Article I, § 14, Ala. Const. 1901. On
September 26, 2012,
Reddoch
filed a virtually identical motion
to dismiss the claims against him on the same ground.
On October 9, 2012, Johnson filed his "First Amended
Complaint" in which he added a claim for damages against
McLean in her individual capacity, alleging that McLean
negligently failed to supervise ADMH employees by failing to
inform them of the policies and regulations they were required
to follow, negligently failed to have supervisors properly
train employees to monitor patients, and negligently allowed
employees to abuse, neglect, mistreat, and/or exploit
residents. More specifically, Johnson alleged that during
McLean's tenure as director of Searcy, the facility developed
a "very lax policy related to employees carrying out
ministerial
duties
and
following
set
policies
and
procedures."
Johnson also alleged that McLean knew that "the staffing at
Searcy
Hospital
was
insufficient
to
enable
adequate
habitation, monitoring, and care for residents, and to ensure
5
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safety of residents, including Jeffrey Johnson." Johnson's
amended complaint also reiterated his claims against Reddoch
and against the fictitiously named defendants.
On October 18, 2012, Reddoch and McLean filed separate
motions to dismiss the claims against them in the first
amended complaint. As to the claims asserted against them in
their
official
capacities,
Reddoch
and
McLean
reiterated
their
defense of State immunity. As to Johnson's claims against
McLean
in her individual capacity, McLean contended that those
claims were due to be dismissed based on State-agent immunity
as enunciated in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).
On June 28, 2013, the circuit court entered an order in
which it granted Reddoch's and McLean's motions to dismiss
Johnson's first amended complaint as to all claims asserted
against them. The order did not provide the reasons for the
dismissal of Johnson's claims against Reddoch and McLean. The
case-action summary stated that the case was "DISPOSED BY
(DISM W/O PREJ) ON 06/28/2013."
On July 22, 2013, Johnson filed a motion to alter, amend,
or vacate the judgment entered on June 28, 2013, under
Rule 59(e), Ala. R. Civ. P. In that motion, Johnson for the
6
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first time noted that "[w]ith the closing of Searcy Hospital,
[Johnson] has been transferred to Bryce Hospital, also
operated by [ADMH], in Tuscaloosa County." In a footnote in
the motion, Johnson asserted that "[n]either the motions to
dismiss nor this Court's order addressed [Johnson's] claims
asserted against [fictitiously named] Defendants 1 through 8.
Discovery is proceeding in an effort to identify appropriate
individuals to substitute for the current identifications."
On July 25, 2013, in an attempt to continue discovery as
to the fictitiously named defendants, Johnson served on ADMH
a subpoena for records titled "Notice of Intent to Serve
Subpoena on Non-Party, Alabama Department of Mental Health,
for Jeffrey Johnson Records." On August 2, 2013, ADMH filed
an "Objection to Subpoena and Motion to Quash," in which it
noted that Johnson's action had been dismissed "against all
named Defendants" on June 28, 2013. ADMH attached as an
exhibit to its motion a copy of the case-action summary
indicating that the case had been "disposed." ADMH contended
that the entire case had been dismissed and that Johnson's
postjudgment motion reflected the posture of the action. ADMH
argued that because there was no active case, it was under no
7
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obligation to respond to Johnson's subpoena. ADMH also
contended that the subpoena was "overly burdensome to this
State agency and requires production of privileged matters,
and confidential and private information in
violation of state
and federal laws regarding personal privacy of employees."
On August 21, 2013, the circuit court entered an order
denying Johnson's postjudgment motion. On September 5, 2013,
the circuit court entered an order granting the motion to
quash
Johnson's subpoena to ADMH without specifying its
reason
for doing so.
Johnson challenges on appeal both the circuit court's
dismissal of his claims against Reddoch and McLean and the
circuit court's refusal to allow nonparty discovery to
ascertain the identities of and other information regarding
the fictitiously named defendants.
II. Standard of Review
"'Inasmuch as the issue before us is whether the
trial court correctly denied a Rule 12(b)(6), Ala.
R. Civ. P., motion to dismiss, "[t]his Court must
accept the allegations of the complaint as true."
Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285, 288 (Ala. 2002). Moreover,
as the defendants sought only a Rule 12(b)(6)
dismissal without resort to facts supplied by
affidavit or other evidentiary material outside the
allegations of the complaint, and as the trial court
8
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accordingly treated the motion only as what it was,
a motion to dismiss and not a motion for summary
judgment with evidentiary materials outside the
allegations of the complaint, those allegations
themselves are the only potential source of factual
support for the defendants' claims of immunity. Rule
12(b), Ala. R. Civ. P.; Mooneyham v. State Bd. of
Chiropractic Examiners, 802 So. 2d 200 (Ala. 2001);
Garris v. Federal Land Bank of Jackson, 584 So. 2d
791 (Ala. 1991); Hales v. First Nat'l Bank of
Mobile, 380 So. 2d 797 (Ala. 1980)."
Ex parte Walker, 97 So. 3d 747, 749-50 (Ala. 2012).
"On appeal, a dismissal is not entitled to a
presumption of correctness. Jones v. Lee County
Commission, 394 So. 2d 928, 930 (Ala. 1981); Allen
v. Johnny Baker Hauling, Inc., 545 So. 2d 771, 772
(Ala. Civ. App. 1989). The appropriate standard of
review under Rule 12(b)(6) is whether, when the
allegations of the complaint are viewed most
strongly in the pleader's favor, it appears that the
pleader could prove any set of circumstances that
would entitle her to relief. Raley v. Citibanc of
Alabama/Andalusia, 474 So. 2d 640, 641 (Ala. 1985);
Hill v. Falletta, 589 So. 2d 746 (Ala. Civ. App.
1991). In making this determination, this Court
does not consider whether the plaintiff will
ultimately prevail, but only whether she may
possibly prevail. Fontenot v. Bramlett, 470 So. 2d
669, 671 (Ala. 1985); Rice v. United Ins. Co. of
America, 465 So. 2d 1100, 1101 (Ala. 1984). We note
that a Rule 12(b)(6) dismissal is proper only when
it appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would
entitle the plaintiff to relief. Garrett v. Hadden,
495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft,
Inc., 496 So. 2d 768, 769 (Ala. 1986)."
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993).
9
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III. Analysis
A. Does the Circuit Court's June 28, 2013, Order Constitute
a Final, Appealable Judgment?
At the outset, we note that there is a question as to
whether the judgment from which Johnson has appealed is a
final judgment.
"With some exceptions not applicable here, an
appeal lies only from a final judgment. Ex parte
Green, 58 So. 3d 135, 144 (Ala. 2010); see also Bean
v. Craig, 557 So. 2d 1249, 1253 (Ala. 1990); § 12-
22-2, Ala. Code 1975. 'The general rule is that a
trial court's order is not final [for purposes of
appeal] unless it disposes of all claims as to all
parties.' Dickerson v. Alabama State Univ., 852 So.
2d 704, 705 (Ala. 2002)."
First Commercial Bank of Huntsville v. Nowlin, 122 So. 3d 829,
831 (Ala. 2013) (footnote omitted).
Johnson asserts in his appellate brief, as he did in his
postjudgment motion, that the circuit court's June 28, 2013,
order did not dispose of all of his claims. Specifically, he
contends that the circuit court did not dispose of his claims
against the fictitiously named defendants. Despite this
2
Johnson argues in his appellate brief that "the trial
2
court was wrong" in viewing its order as a final judgment
because "the trial court's order did not effectively end
litigation as to the Fictitious[ly named] Defendants, and
[Johnson] is entitled to conduct discovery against the
Fictitious[ly named] Defendants (see Ala. R. Civ. P. 26)."
10
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assertion, Johnson urges this Court, "in the interest of
judicial economy," to "assume appellate jurisdiction over the
substance of the appeal and determine if the dismissals [of
claims against Reddoch and McLean] were proper."
As the above quotation from First Commercial Bank of
Huntsville indicates, we could not consider this appeal if
Johnson was correct that his claims against the fictitiously
named defendants remain pending before the circuit court,
because the June 28, 2013, order would not have disposed of
all claims as to all parties. Johnson is incorrect, however,
that his claims against the fictitiously named defendants
remain pending.
First, it should be noted that the case-action summary
states that the case was "DISPOSED BY (DISM W/O PREJ) ON
06/28/2013." The circuit court's dismissal of the claims
against Reddoch and McLean based on State immunity and State-
agent immunity -- the only arguments presented by those
parties in their motions to dismiss -- would have been with
prejudice. There would be no reason for the notation of a
Nonetheless, Johnson "timely filed this appeal to ensure that
no claim is forfeited." Id.
11
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dismissal without prejudice unless that notation was intended
to refer to the dismissal of the claims against the
fictitiously named defendants, who obviously did not file any
motions in the circuit court because they had not been served.
Further, as Johnson admits, the circuit court's refusal
to allow the issuance of a postjudgment, nonparty subpoena to
ADMH seeking information about the fictitiously named
defendants is a further indication that the circuit court
understood its order of June 28, 2013, to have effectively
ended Johnson's action.
Moreover, as Reddoch and McLean note, this Court has
rejected the idea that an action can be commenced or survive
against only fictitiously named parties. Thus, the dismissal
of, or a summary judgment as to, the only named defendants in
a civil action also disposes of any remaining allegations
against fictitiously named parties.
"In Ex parte Matthews, 447 So. 2d 154 (Ala.
1984), a complaint was filed naming Liberty Mutual
Insurance Company and several fictitious parties as
defendants. Liberty Mutual filed a motion to
dismiss the case, which the trial court granted with
the notation '[M]otion to dism. is granted. This
case is dismissed. All costs taxed against
plaintiff.' Both of the parties proceeded with
discovery for over a year, apparently unaware that
the motion had been granted. By consent of both
12
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parties, the trial court granted a 'motion to
reinstate' the case. Soon thereafter, the plaintiff
substituted Matthews for a fictitious party and the
trial court granted Liberty Mutual's motion for
summary judgment. This court held that a final
judgment could not be set aside based on the consent
of the named defendant, and then, in effect, the
suit resurrected against a fictitious defendant.
The Court said that a Rule 60(b), A[la]. R. Civ. P.,
motion is the appropriate procedure for a delayed
attack upon a judgment. That case explained that a
'motion to reinstate' in regard to named parties
could not be construed as a Rule 60(b)(6) motion for
relief from judgment. Because the judgment of the
trial court was final and there was no attack upon
that judgment during the proper time, the Court held
that there was no action pending as to those parties
substituted
for
fictitious
parties
after
the
purported motion to reinstate."
Toomey v. Foxboro Co., 528 So. 2d 302, 303 (Ala. 1988). Thus,
in Ex parte Matthews, 447 So. 2d 154 (Ala. 1984), the Court
considered the effect of the dismissal of the only named
defendant and the notation that "[t]his case is dismissed" to
be that the claims against the fictitiously named parties had
been dismissed as well.
In Toomey, the plaintiff filed a wrongful-death action
against Courtaulds North America, Inc. ("Courtaulds"), and
fictitiously named parties. Courtaulds filed a motion for a
summary judgment. The Toomey Court noted that, "[a]ccording
to the case action summary sheet, Judge Hocklander granted the
13
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motion on May 5, 1981, with the notation 'Motion for Summary
Judgment
granted.
Cause
dismissed,
costs
taxed
to
Plaintiff.'" 528 So. 2d at 302. Three months later, the
plaintiff filed an amended complaint in which she substituted
the Foxboro Company for a fictitiously named party; the
plaintiff made the
amendment expressly pursuant to Rule 15(a),
Ala. R. Civ. P.. The Foxboro Company filed a motion to
dismiss, which the circuit court eventually granted. The
plaintiff appealed. The Toomey Court ruled:
"The decision
in
Matthews
is
dispositive
of
this
appeal. On May 5, 1981, Judge Hocklander dismissed
the action with the notation 'Cause dismissed, costs
taxed to Plaintiff.' This was, in both form and
substance, a final judgment as to all the parties.
This case is, therefore, affirmed on the authority
of Matthews."
528 So. 2d at 303.
In Toomey, as in Matthews, the Court considered the entry
of a summary judgment in favor of the named defendant and the
notation that the case was being "dismissed" to mean that the
May 5, 1981, order was a final judgment as to all parties,
including the fictitiously named parties. And more recently,
in Weaver v. Firestone, 155 So. 3d 952, 963 (Ala. 2013), this
Court expressly rejected the arguments that Rule 9, Ala. R.
14
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Civ. P., permits a plaintiff to "file[] a complaint naming as
defendants only fictitious parties" and that a complaint
naming only fictitious partes "would have served to commence
an action against the alleged tortfeasors."
As was the case in Matthews and Toomey, and consistent
with our holding in Weaver, no action remained pending
following the circuit court's entry of its June 28, 2013,
order. That order therefore constituted a final judgment
subject to appeal.
B. Did the Circuit Court Properly Dismiss All Claims?
Reddoch and McLean contended, and the circuit court
apparently agreed, that they were entitled to State immunity
from Johnson's claims seeking injunctive relief against them
in their official capacities.
"Section 14 prohibits actions against state
officers in their official capacities when those
actions are, in effect, actions against the State.
Lyons v. River Road Constr., Inc., 858 So. 2d 257,
261 (Ala. 2003); Mitchell v. Davis, 598 So. 2d 801,
806 (Ala. 1992). 'In determining whether an action
against a state officer or employee is, in fact, one
against the State, [a] [c]ourt will consider such
factors as the nature of the action and the relief
sought. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.
1989). Such factors include whether 'a result
favorable to the plaintiff would directly affect a
contract or property right of the State,' Mitchell,
598 So. 2d at 806, whether the defendant is simply
15
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a 'conduit' through which the plaintiff seeks
recovery of damages from the State, Barnes v. Dale,
530 So. 2d 770, 784 (Ala. 1988), and whether 'a
judgment against the officer would directly affect
the financial status of the State treasury,' Lyons,
858 So. 2d at 261."
Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004).
Johnson contends that he is not seeking monetary relief
from Reddoch and McLean in their official capacities but,
rather, is simply seeking injunctive relief and that,
therefore, his claims against them in their official
capacities are not precluded by § 14.
"[C]ertain actions against State officials are not
regarded as actions against the State for purposes
of § 14. Patterson v. Gladwin Corp., 835 So. 2d
137, 142 (Ala. 2002). For example, '[i]njunctive
action may be maintained against a state official
[in his official capacity], if the official is
acting beyond the scope of his authority or acting
illegally.' St. Clair County v. Town of Riverside,
272 Ala. 294, 296, 128 So. 2d 333, 334 (1961)."
Ex parte Dangerfield, 49 So. 3d 675, 681 (Ala. 2010). In his
first amended complaint, Johnson sought "to enjoin [Reddoch
and McLean] ... to provide a safe environment for Jeffrey
Johnson that protects from abuse, neglect, exploitation and
mistreatment at the hands of other mental health workers or
patients at Searcy."
16
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The primary problem with Johnson's claims against Reddoch
and McLean in their official capacities, which seek only
injunctive relief, is that nothing in Johnson's complaint
alleges that Reddoch and McLean are currently "acting beyond
the scope of [their] authority or acting illegally." As noted
in the rendition of the facts, Searcy ceased operations on
October 31, 2012, and Johnson is now being treated at Bryce
Hospital.
Because
Johnson's
claims
for
prospective
injunctive
relief do not allege any type of ongoing or imminent
wrongdoing by Reddoch and McLean, those claims cannot be
maintained against the named defendants in their official
capacities.
Johnson also asserted claims for damages against McLean
and the fictitiously named defendants in their individual
capacities, alleging negligent and wanton conduct by the
defendants in connection with the alleged assault that
occurred on June 22, 2012. McLean contended, and the circuit
court apparently agreed, that she was entitled to State-agent
immunity under Ex Parte Cranman, 792 So. 2d 392 (Ala. 2000),
as to those claims.
17
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This Court, in Cranman, stated the test for State-agent
immunity as follows:3
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"(1)
formulating
plans,
policies,
or
designs;
or
"(2) exercising his or her judgment in the
administration of a department or agency of
government, including, but not limited to, examples
such as:
"(a)
making
administrative
adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring,
assigning, or supervising personnel; or
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner; or
"(4) exercising judgment in the enforcement of
the criminal laws of the State, including, but not
limited to, law-enforcement officers' arresting or
attempting to arrest persons; or
Cranman was a plurality opinion. The test set forth in
3
Cranman was subsequently adopted by a majority of the Court in
Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000).
18
1121481
"(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in
releasing prisoners, counseling or releasing persons
of unsound mind, or educating students.
"Notwithstanding
anything
to
the
contrary
in
the
foregoing statement of the rule, a State agent shall
not be immune from civil liability in his or her
personal capacity
"(1) when the Constitution or laws of the United
States, or the Constitution of this State, or laws,
rules, or regulations of this State enacted or
promulgated for the purpose of regulating the
activities
of
a
governmental
agency
require
otherwise; or
"(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his
or her authority, or under a mistaken interpretation
of the law."
Cranman, 792 So. 2d at 405. Johnson argues that the second
category of exceptions is applicable in this case.
McLean argues that she "was, at the time of the incident,
serving as the Director of Searcy Hospital" and that, in that
capacity, she "exercised
her
judgment in the administration of
Searcy Hospital." McLean cites three cases in which this
Court
previously
has
granted
State-agent
immunity
to
directors
at other ADMH facilities: Ex parte Alabama Dep't of Mental
Health & Mental Retardation, 937 So. 2d 1018 (Ala. 2006)
(directing trial court to enter summary judgment for two J.S.
19
1121481
Tarwater
Developmental
Center
directors
for
claims
arising
out
of alleged assault of ADMH patient); Vick v. Sawyer, 936 So.
2d 517 (Ala. 2006) (affirming a summary judgment for two
Albert P. Brewer Developmental Center directors on basis of
State-agent
immunity for claims arising out of alleged
assault
of ADMH patient); and Smith V. King, 615 So. 2d 69, 70 (Ala.
1993)
(granting
pre-Cranman
immunity
to
director
of
Thomasville Adult Adjustment Center).
Although the circumstances in the present case ultimately
may prove comparable to the circumstances in the cited cases,
the difficulty with McLean's argument is highlighted by the
fact that the defendants in each of the cited cases were
granted State-agent immunity at the summary-judgment stage.
We have said that a "'"motion to dismiss is typically not the
appropriate vehicle by which to assert ... qualified immunity
or State-agent immunity and ... normally the determination as
to the existence of such a defense should be reserved until
the
summary-judgment
stage,
following
appropriate
discovery."'" Ex parte Walker, 97 So. 3d 747, 750 (Ala. 2012)
(quoting Ex parte Alabama Dep't of Youth Servs., 880 So. 2d
393, 397-98 (Ala. 2003), quoting in turn Ex parte Alabama
20
1121481
Dep't of Mental Health & Mental Retardation, 837 So. 2d 808,
813-14 (Ala. 2002)). This Court has repeatedly observed that
"'"[i]t is a rare case involving the defense of [State-agent]
immunity that would be properly disposed of by a dismissal
pursuant to Rule 12(b)(6), [Ala. R. Civ. P.]."'" Ex parte
Alabama Dep't of Mental Health & Retardation, 837 So. 2d at
814 (quoting Ex parte Butts, 775 So. 2d at 177, quoting in
turn Patton v. Black, 646 So. 2d 8, 10 (Ala. 1994) (quoting
earlier cases)).
McLean alleges that she exercised her judgment in the
performance of her duties at Searcy and that the second
exception to State-agent immunity –- i.e., that she acted
willfully,
maliciously,
fraudulently,
in
bad
faith,
beyond
her
authority, or under a mistaken interpretation of the law –-
does not apply. We noted in the Standard of Review, however,
that, "'as the trial court ... treated the motion only as what
it was, a motion to dismiss and not a motion for summary
judgment
with
evidentiary
materials
outside
the
allegations
of
the complaint, [the allegations in the complaint] are the only
potential source of factual support
for
the defendants' claims
of immunity.'" ___ So. 3d at ___ (quoting Ex parte Walker, 97
21
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So. 3d at 749-50). In this case, the complaint does not
provide sufficient factual support for extending State-agent
immunity to McLean on Johnson's claims against her in her
individual capacity.
The Court in Ex parte Alabama Department of Mental Health
& Mental
Retardation,
supra, concluded that claims against the
then commissioner of ADMH in her individual capacity were
"fact intensive." As a result, the Court reasoned, the
commissioner's
"Rule 12(b) motion to dismiss is premature with
regard to these claims. No discovery has been
conducted in this case. After the parties have had
the opportunity to conduct discovery, Sawyer will
have the opportunity to seek a summary judgment on
the ground that she is entitled to State-agent
immunity."
837 So. 2d at 814. Similarly, it is entirely possible that
McLean will be able to produce sufficient facts to qualify for
State-agent immunity on a summary-judgment motion,
but
she has
not done so at this stage of the litigation.
Given that McLean has not established facts that entitle
her to State-agent immunity from Johnson's claims, it follows
that the fictitiously named defendants -- who have not filed
any motion with the circuit court -- likewise have not done
22
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so. If anything, the fictitiously named defendants, as the
mental-health
workers
actually
responsible
for
Johnson's
care,
may have more difficulty demonstrating that they fall within
one of the Cranman categories to which State-agent immunity
generally applies. Therefore, the circuit court erred in
dismissing Johnson's claims against the fictitiously named
defendants.
C. Did the Circuit Court Properly Quash the Nonparty
Subpoena?
Johnson also has challenged the circuit court's order
granting ADMH's motion to quash a nonparty subpoena seeking
information concerning the fictitiously named defendants. As
explained above, the circuit court erred in dismissing
Johnson's claims against McLean in
her
individual capacity and
hence against the fictitiously named defendants, and,
therefore, Johnson's case against the fictitiously named
defendants should have remained active at the time the circuit
court ruled on ADMH's motion to quash the subpoena. It is not
clear, however, whether the circuit court granted ADMH's
motion on the basis of ADMH's argument that there was no
active case or based on its argument that the requested
discovery was overly burdensome and that it sought privileged
23
1121481
information. We therefore instruct the circuit court on
remand to reconsider the issue of discovery pertaining to the
fictitiously named defendants in light of the conclusions
reached in this opinion.
IV. Conclusion
The circuit court correctly dismissed Johnson's claims
against Reddoch and McLean in their official capacities. The
circuit court erred in dismissing Johnson's claims against
McLean and the fictitiously named defendants in their
individual capacities. We remand the case for further
proceedings
consistent
with
this
opinion,
including
consideration of Johnson's subpoena for discovery served on
ADMH.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Bolin, Main, and Bryan, JJ., concur.
Moore, C.J., concurs in the result.
24 | December 18, 2015 |
a8d8392b-68fd-42f9-a0a8-e7d9451b6a79 | Marshall Dean Smith v. City of Atmore | N/A | 1130167 | Alabama | Alabama Supreme Court | REL: 11/25/2015
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, 2015-2016
____________________
1130167
____________________
Marshall Dean Smith
v.
City of Atmore
Appeal from Escambia Circuit Court
(CV-10-0160)
MURDOCK, Justice.
AFFIRMED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., concurs in part and dissents in part.
1130167
MOORE, Chief Justice (concurring in part and dissenting in
part).
Marshall Dean Smith has appealed the summary judgment
entered by the Escambia Circuit Court ("the trial court") in
favor of the City of Atmore ("the City") in Smith's lawsuit
alleging claims of negligent design and construction of the
City's water-drainage system, negligent maintenance of the
City's water-drainage system, continuing trespass, and
nuisance. Although I concur to affirm the summary judgment as
to
the
negligent-design
and
-construction
claims,
I
respectfully dissent from this Court's decision to affirm the
summary judgment as to the other claims because I believe that
Smith presented sufficient evidence to send his negligent-
maintenance claim, and, thus, his trespass and nuisance
claims, see note 1 and accompanying text, infra, insofar as
those claims related to the final two flooding events alleged
by Smith, to a jury.
When viewed in the light most favorable to Smith, the
nonmovant, see Nationwide Prop. & Cas. Ins. Co. v. DPF
Architects, P.C., 792 So. 2d 369, 372 (Ala. 2001), the
summary-judgment evidence reflects the following. Smith owns
two properties in the City, both on Tatom Avenue ("the Tatom
2
1130167
Avenue properties"). Those properties are located near the
Highland Avenue drainage system in an area known for its
flooding. Around 1984 a culvert was built in this area to
enable water to drain from the culvert into a ditch that is
approximately four blocks from the Tatom Avenue properties.
The City hired engineer Euel Screws in 2005 or 2006 to examine
problems with the ditch into which the culvert feeds. Screws
determined that the culvert and the ditch were not large
enough, which consequently caused them to overflow
with water.
Screws recommended that the City install larger piping for the
culvert as well as an additional ditch into which to drain the
water. Screws did not determine how much water the current
drains in the culvert could hold. He informed the City that he
needed to conduct additional studies to assess whether his
recommendations would alleviate the flooding. Despite his
recommendations, the City did not hire Screws to work on the
drainage system, nor did it implement any of his suggested
repairs.
Smith purchased the Tatom Avenue properties in 2008. The
properties subsequently flooded at least five times between
2008 and 2010. After the first flooding event, Smith
3
1130167
telephoned Don Whatley, the City's street superintendent, who
informed Smith that the area around the Tatom Avenue
properties had "flooded for several, several years."
After
the
fourth flooding event, Smith telephoned the City's code-
enforcement officer, Chris Black, who referred Smith to
Whatley. This time Whatley told Smith that the area around the
Tatom Avenue properties had "flooded forever."
Smith sued the City, among other defendants, in 2010,
asserting claims of negligent design and construction of the
drainage
system,
negligent
maintenance
of
the
drainage
system,
continuing trespass, and nuisance. Smith retained Kenneth
Underwood, an engineer, to serve as an expert witness.
Underwood reviewed the deposition testimony of Screws and
ariel photographs and maps of the area around the Tatom Avenue
properties, visited the area,
and
researched rainfall data for
the area.
Underwood determined that Screws had been correct in
believing that the culvert was not large enough to hold
regular rainfall without flooding the area around the Tatom
Avenue properties. Underwood explained that "[t]he design of
that storm water drainage system has not been maintained to
4
1130167
match increased runoff" and that the size of the existing
culvert "is a very likely contributor" to the flooding issues.
Underwood also stated that the drainage ditch had not "been
maintained by excavation ... to accommodate
storm
water runoff
without causing flooding during at least five events which
have caused" the flooding of the Tatom Avenue properties.
Underwood admitted that, although he agreed with Screws that
the piping for the culvert was undersized, he needed to
complete more "field work" to determine how big the culvert
should be to prevent flooding. He opined that the piping for
the culvert was "a very likely contributor" to –- and "could
be a partial cause" of –- the flooding at the Tatom Avenue
properties.
The trial court entered a summary judgment for the City,
holding that Smith's negligent-design and -construction
claims, as well as his negligent-maintenance claim, his
trespass claim, and his nuisance claim, insofar as those
claims were based on the first three flooding events, were
barred by § 11-47-23, Ala. Code 1975, because those claims
were not presented to the City within six months of when they
accrued. The trial court concluded that Smith had failed to
5
1130167
present
substantial evidence
of the
City's
negligent
maintenance of the drainage system, under the requirements of
§ 11-47-190, Ala. Code 1975, with respect to the two most
recent flooding events; specifically, the court held, Smith
had failed to prove causation. The trial court also entered a
summary judgment on Smith's nuisance and trespass claims as to
the two most recent flooding events because, it said, Alabama
courts have held that a plaintiff's nuisance and trespass
claims based on the same facts as the plaintiff's negligence
claims under § 11-47-190 survive or perish based on the
viability of the negligence claims.
1
Smith appealed the summary judgment in favor of the City
to this Court, which today affirms the judgment, without an
opinion.
See, e.g., Hilliard v. City of Huntsville, 585 So. 2d
1
889, 893 (Ala. 1991) (holding that "the viability of a
negligence action against a municipality under § 11–47–190
determines the success or failure of a nuisance action based
upon the same facts"); Long v. City of Athens, 24 So. 3d 1110,
1116 (Ala. Civ. App. 2009) (holding that, "because the trial
court properly entered the summary judgment on the Longs'
negligent-maintenance
claim,
the
trial
court's
disposal
of
the
Longs' nuisance and trespass claims was also proper"); cf.
Royal Auto., Inc. v. City of Vestavia Hills, 995 So. 2d 154,
160 (Ala. 2008).
6
1130167
Because the area surrounding the Tatom Avenue properties
has "flooded forever," it has probably continued to flood
since 2010, when this case began. It is safe to presume, as
well, that the Tatom Avenue properties will flood again if the
City has not yet taken the corrective measures recommended by
Screws and echoed by Underwood. Although the City has known
since at least 2005 that undersized piping for the culvert is
likely the cause of the flooding, the courts have relieved the
City of any responsibility for fixing the culvert because
causation has not been, in the courts' view, sufficiently
demonstrated.
To demonstrate that the City was liable for negligent
maintenance, Smith was required to
"present evidence from which a jury could reasonably
conclude that the flooding of [his] property was
proximately caused by the City's failure to provide
appropriate upkeep for the storm-drainage system in
its existing condition, ... rather than by the
City's failure to correct any alleged design or
construction problems with that system."
Reichert v. City of Mobile, 776 So. 2d 761, 765-66 (Ala.
2000). In my view, Smith presented substantial evidence of the
City's negligent maintenance of the drainage system when he
showed that the City was informed of a defect in the culvert
7
1130167
that was progressing over time; that the City had an
opportunity to correct the defect or upgrade the piping for
the culvert that was growing increasingly susceptible to
flooding; and that the City did not hire Screws or anyone else
to correct the defect or upgrade and maintain the piping. I
believe the testimony of Screws and Underwood on this issue
constituted substantial evidence, presented by experts,
demonstrating that the City was derelict in responding to a
known defective condition of the culvert.
I am concerned, as well, that the courts have encouraged
the City to continue ignoring known problems with the piping
for the culvert and the drainage system. The reason Screws was
unable to provide more evidence of causation is because the
City never hired him to do the necessary work to alleviate the
flooding. If the City continues to sit on its hands, as it
were, will it continue to profit from inactivity? Is the City
better off not hiring anyone to repair the conditions leading
to the flooding because doing so will ensure that causation
cannot be determined? Smith and others in his position, after
all, cannot legally hire someone to work on the piping for the
culvert or the drainage system that is owned and operated by
8
1130167
the City; thus, they are at a distinct disadvantage and must
wait anxiously for the City to correct a long-standing problem
that is sure to persist. I am concerned that the courts are
encouraging the City's profitable idleness by closing their
eyes to substantial evidence that should have gone before a
jury.
9 | November 25, 2015 |
1bb1a435-0660-463e-a79f-5b34e2d196b7 | Mid-Continent Casualty Company v. Advantage Medical Electronics, LLC | N/A | 1140908 | Alabama | Alabama Supreme Court | Rel: 11/06/2015
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, 2015-2016
____________________
1140908
____________________
Mid-Continent Casualty Company
v.
Advantage Medical Electronics, LLC
Appeal from Mobile Circuit Court
(CV-13-900646)
MAIN, Justice.
Mid-Continent Casualty Company ("Mid-Continent") appeals
from a judgment of the Mobile Circuit Court declaring that it
has a duty to defend its named insured, Advantage Medical
1140908
Electronics, LLC ("Advantage"), in a pending legal action
against Advantage. We affirm.
I. Facts and Procedural History
Advantage is a Mobile, Alabama, based company that
services and sells MRI and CT scanners, types of medical-
imaging devices. In December 2011, Advantage was hired by KEI
Medical Imaging Services, LLC ("KEI"), to pick up and
transport a used CT scanner machine that KEI had recently
purchased from a leasing company. The CT scanner was located
at a doctor's office in Aiken, South Carolina. Advantage was
hired to inspect the machine, to confirm that it was
operational, and then to de-install the machine and transport
it to KEI's facility in Texas.
On December 12, 2011, Advantage's owner, William Dixon,
and another worker, Michael Crummey, traveled to South
Carolina in a box van Advantage had rented for the purpose of
transporting the CT scanner from South Carolina to Texas.
After inspecting the CT scanner, Dixon and Crummey worked to
de-install and disassemble the scanner and to prepare it to be
moved. The main component of the CT scanner was a 4,500-pound
2
1140908
section known as the "gantry." In order to move the gantry,
1
Advantage used a specialized dolly system, which
required
that
castor wheels be bolted to each corner of the gantry. The
special dollies were provided to Advantage by KEI, who had
leased them for use in moving the CT scanner.
Once the CT scanner was disassembled, Dixon and Crummey
moved the CT scanner, including the gantry, outside the
building so that it could be loaded into the box van. Because
there was no loading dock at the location, Advantage planned
to use a roll-back flat-top tow truck to load the gantry into
the box van. Crummey telephoned local wrecker services in an
effort to find someone to assist in loading the gantry into
the box van. He spoke with Eddie Willing of Eddie's Towing
Company, who stated that he had had previous experience
loading medical equipment. Willing agreed to move the gantry
for $100.
When Willing arrived, he backed his tow truck up to the
gantry and lowered the roll-back wrecker bed to the ground
The CT scanner in this case consisted of several
1
components, including the gantry, a patient couch, a power
conditioner, a host-computer console, an image-reconstruction
computer console, and a contrast injector. The gantry is the
central component of the CT scanner, housing X-ray and data-
collection equipment.
3
1140908
near the gantry. Willing then attached a winch cable to the
gantry, engaged the winch, and pulled the gantry onto the back
of the wrecker bed. Willing raised the wrecker bed, secured
the gantry using tie-down chains, and drove the truck across
the parking lot to the box van. Willing backed the tow truck
up to the back of the box van and lowered the bed so it met
the rear of the box van. Willing released the winch, and the
gantry began to roll toward the box van. As the front two
wheels of the gantry entered the rear of the box van, Dixon,
who was standing in the rear of the box van waiting to receive
the gantry, heard a "big snap." At that moment the gantry
suddenly shifted to one side, struck the side of the box van,
and fell off the side of the tow truck. The damage to the
gantry was significant and rendered the CT
scanner
inoperable.
Dixon and Willing both testified that a bolt holding part of
the dolly system to the gantry had snapped, causing the gantry
to shift and to fall from the tow truck.
The loss was initially paid by KEI's insurer, Mid-Century
Insurance Company.
Mid-Century notified Advantage that it
had
determined that the damage to the CT scanner was the result of
Advantage's negligence, and it demanded that Advantage
4
1140908
reimburse it for the amount paid on the claim -- $180,000.
Advantage notified its commercial general-liability ("CGL")
insurer,
Mid-Continent,
of
the
claim,
and
Mid-Continent
denied
coverage for the loss. Advantage's policy is a standard form
2
CGL policy that requires Mid-Continent to "pay those sums that
the insured becomes legally obligated to pay as damages
because
of
...
'property
damage'
...
caused
by
an
'occurrence'" and to defend Advantage from any
lawsuit
seeking
such damages. In its letter denying Advantage's claim, Mid-
3
Continent cited several policy exclusions as the basis for
denying
coverage,
namely,
the
contractual-liability
exclusion;
the "auto" exclusion; the exclusion for personal property in
Mid-Continent also denied coverage for the loss under a
2
commercial automobile policy it had issued to Advantage. That
policy, however, is not at issue in this appeal.
The basic insuring agreement of the CGL policy provides
3
in pertinent part:
"We will pay those sums that the insured becomes
legally obligated to pay as damages because of
'bodily injury' or 'property damage' to which this
insurance applies. We will have the right and duty
to defend the insured against any 'suit' seeking
those damages. However, we will have no duty to
defend the insured against any 'suit' seeking
damages for 'bodily injury' or 'property damage' to
which this insurance does not apply. ..."
5
1140908
Advantage's "care, custody, or control"; and the "your work"
exclusion.
On March 20, 2013, Advantage commenced this action
against Mid-Continent in the Mobile Circuit Court. Advantage
4
sought a judgment declaring that Mid-Continent owed a duty
under the CGL policy Mid-Continent had issued to Advantage to
defend Advantage in any action seeking damages for the loss of
the CT scanner and to indemnify Advantage for any legal
liability it incurred as a result of the loss. Advantage
5
also asserted a breach-of-contract claim against Mid-
Continent.
On November 13, 2014, during the pendency of this action,
Mid-Century, as KEI's subrogee, sued Advantage in the Court of
Common Pleas for Aiken County, South Carolina ("the South
Carolina litigation"). The complaint filed in the South
Mid-Continent is the only defendant to the action. The
4
action was removed to the United States District Court for the
Southern District of Alabama on February 5, 2014. The
district court remanded the case to the Mobile Circuit Court
on May 5, 2014.
Advantage's action also seeks a declaration that Mid-
5
Continent owes a duty to defend and to indemnify Advantage
under the commercial automobile policy issued to Advantage.
As noted supra, note 2, that policy is not at issue in this
appeal.
6
1140908
Carolina litigation set forth a single count of negligence
against Advantage, alleging that the CT scanner was damaged as
a result of Advantage's failure to use reasonable care in
moving the scanner. The complaint set forth the following
factual allegations:
"6.
During the moving process, the Scanner was
mounted on four dollies, one on each
corner.
"7.
On December 12, 2011, [Advantage] began to
load the Scanner into a box truck for
transporting.
"8.
In order to load the Scanner onto the box
truck, a tilting roll-back truck was used
as an inclined plane to raise the Scanner
up to the level of the rear door of the box
truck.
"9.
While the Scanner was being loaded from the
roll-back into the box truck, [Advantage]
lost control of the Scanner and one of the
dollies struck the side of the roll-back.
"10.
When the subject dolly struck the side of
the roll-back, the screw connecting the
dolly to the Scanner broke, causing the
Scanner to become unbalanced.
"11.
In its unbalanced state, the Scanner fell
off of the roll-back and struck the ground,
causing severe damage to the Scanner. ..."
On July 12, 2014, Advantage filed a motion for a partial
summary judgment in the Mobile Circuit Court action,
7
1140908
requesting a summary judgment in its favor on its claim that
Mid-Continent owed a duty to defend Advantage in the South
Carolina litigation. Mid-Continent filed a cross-motion for
a summary judgment, arguing that, based on the various policy
exclusions cited in its letter denying coverage, it had no
duty to defend or to indemnify Advantage. In support of
6
their respective summary-judgment motions, the parties
submitted narrative statements of undisputed facts and
evidentiary
materials,
including,
once
filed,
the
complaint
in
the South Carolina litigation and the depositions of Dixon,
KEI's corporate representative, and Willing.
On February 11, 2015, the circuit court granted
Advantage's motion for a summary judgment and denied Mid-
Continent's motion. The circuit court held
that Mid-Continent
owed Advantage a duty to defend it in the South Carolina
litigation under the CGL policy. On April 13, 2015, the
circuit
court
entered
its
summary-judgment
order
and
certified
The summary-judgment motions were filed before the
6
commencement of the South Carolina litigation. Thus, Mid-
Continent initially asserted that Advantage's claims were
premature and not ripe for adjudication. Following the
commencement of the South Carolina litigation, Mid-Continent
amended its summary-judgment motion to argue that the facts
asserted in the complaint in the South Carolina litigation did
not allege a covered occurrence.
8
1140908
it under Rule 54(b), Ala. R. Civ. P., as a final judgment.
7
Mid-Continent filed this appeal.
II. Standard of Review
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[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)."
We agree with those decisions from other jurisdictions
7
that find a ruling as to a duty to defend under an insurance
policy is appropriate for Rule 54(b) certification, despite
pending claims concerning the duty to indemnify under the same
policy. See Still up in the Air? Appealability of Decisions
on the Duty to Defend, 26 No. 8 Ins. Litig. Rep 281 (May 14,
2004) (collecting state and federal court decisions).
9
1140908
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III. Analysis
An insurance company has two general duties under a
policy of insurance: a duty to defend and a duty to indemnify.
The duty to defend is broader than the duty to indemnify.
This appeal concerns only Mid-Continent's alleged duty to
defend Advantage in the South Carolina litigation.
"'It is well settled "that [an] insurer's duty
to defend is more extensive than its duty to
[indemnify]." United States Fid. & Guar. Co. v.
Armstrong, 479 So. 2d 1164, 1168 (Ala. 1985)
(citations omitted). Whether an insurance company
owes its insured a duty to provide a defense in
proceedings instituted against the insured is
determined primarily by the allegations contained in
the complaint. Id. at 1168. If the allegations of
the injured party's complaint show an accident or an
occurrence within the coverage of the policy, then
the insurer is obligated to defend, regardless of
the ultimate liability of the insured. Ladner & Co.
v. Southern Guar. Ins. Co., 347 So. 2d 100, 102
(Ala. 1977)(citing Goldberg v. Lumber Mut. Cas. Ins.
Co., 297 N.Y. 148, 77 N.E.2d 131 (1948)). However,
"[t]his Court ... has rejected the argument that the
insurer's obligation to defend must be determined
solely from the facts alleged in the complaint in
the action against the insured." Ladner, 347 So. 2d
at 103. In Pacific Indemnity Co. v. Run-A-Ford Co.,
276 Ala. 311, 161 So. 2d 789 (1964), this Court
explained:
"'"We are of [the] opinion that in deciding
whether a complaint alleges such injury,
10
1140908
the court is not limited to the bare
allegations of the complaint in the action
against [the] insured but may look to facts
which may be proved by admissible evidence
...."
"'276 Ala. at 318, 161 So. 2d at 795; see Ladner,
347 So. 2d at 103 (quoting this language). "[I]f
there is any uncertainty as to whether the complaint
alleges facts that would invoke the duty to defend,
the insurer must investigate the facts surrounding
the incident that gave rise to the complaint in
order to determine whether it has a duty to defend
the insured." Blackburn v. Fidelity & Deposit Co. of
Maryland, 667 So. 2d 661, 668 (Ala. 1995)(citing
United States Fid. & Guar. Co. v. Armstrong, 479 So.
2d 1164 (Ala. 1985)) (other citations omitted).'"
Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So. 2d
1006, 1009-10 (Ala. 2005) (quoting Acceptance Ins. Co. v.
Brown, 832 So. 2d 1, 14 (Ala. 2001)).
In the present appeal, it is undisputed that Advantage,
the named insured under the Mid-Continent CGL policy, is a
defendant in a "'suit' seeking damages for ... 'property
damage'" caused by an "occurrence." The question is whether
the incident falls within one or more of the coverage
exclusions in the policy so as to relieve Mid-Continent of its
duty to defend Advantage.
Policy exclusions are to be narrowly interpreted, and,
when an ambiguity exists in the language of an exclusion,
11
1140908
"'"the exclusion will be construed so as to limit the
exclusion to the narrowest application reasonable under the
wording."'" Porterfield v. Audubon Indem. Co., 856 So. 2d 789,
806 (Ala. 2002) (quoting Carpet Installation & Supplies of
Glenco v. Alfa Mut. Ins. Co., 628 So. 2d 560, 562 (Ala. 1993),
quoting in turn St. Paul Mercury Ins. Co. v. Chilton-Shelby
Mental Health Ctr., 595 So. 2d 1375, 1377 (Ala. 1992)). See
also American States Ins. Co. v. Martin, 662 So. 2d 245, 247
(Ala. 1995) ("Exclusions are to be interpreted as narrowly as
possible, so as to provide maximum coverage for the insured,
and are to be construed most strongly against the insurance
company that drafted and issued the policy."). Here, Mid-
Continent contends that four exclusions in the CGL policy
separately apply to relieve it of its duty to defend Advantage
in the South Carolina litigation: The "auto" exclusion; the
"care, custody, or control" exclusion; the "your work"
exclusion; and the contractual-liability exclusion. Mid-
Continent also relies on the "no-action" clause in the policy.
We discuss each in turn.
A. The "auto" exclusion
12
1140908
First, Mid-Continent contends that coverage is excluded
under the "auto" exclusion in the policy, which provides, in
pertinent part:
"This insurance does not apply to:
"....
"'Bodily injury' or 'property damage' arising out of
the ownership, maintenance, use or entrustment to
others of any ... 'auto' ... owned or operated by or
rented or loaned to any insured. Use includes
operation and 'loading or unloading.'"
The purpose of the auto exclusion in the CGL policy is to
proscribe coverage for liability that should more properly
fall under an automobile-liability policy. In this regard,
loading and unloading of an automobile or other vehicle are
generally considered "use" of the "auto," with one important
exception. The policy defines "loading or unloading" as
follows:
"'Loading or unloading' means the handling of
property:
"a.
After it is moved from the place where it is
accepted for movement into or onto an aircraft,
watercraft or 'auto';
"b.
While it is in or on an aircraft, watercraft or
'auto'; or
13
1140908
"c.
While it is being moved from an aircraft,
watercraft or 'auto' to the place where it is
finally delivered;
"but 'loading or unloading' does not include the
movement of property by means of a mechanical
device, other than a hand truck, that is not
attached to the ... 'auto.'"
(Emphasis added.)
Mid-Continent argues that because the accident occurred
while the gantry was being loaded into the box van (or
unloaded from the tow truck), the property damage arose out of
the "use" of an "auto." Thus, it contends, the auto exclusion
bars coverage under the CGL policy.
In the present case the CT scanner was damaged as the
gantry was being loaded into a box van by means of a tow
truck. Although the tow truck is an "auto" as defined by the
policy, it is undisputed that the tow truck was not "owned,
8
or operated by, or rented or loaned to" Advantage. Thus, the
The policy defines "auto" as:
8
"a.
A land motor vehicle, trailer or semitrailer
designed for travel on public roads, including
any attached machinery or equipment; or
"b.
Any other land vehicle that is subject to a
compulsory or financial responsibility law or
other motor vehicle insurance law in the state
where it is licensed or principally garaged."
14
1140908
unloading of the tow truck provides no basis for the
application of the auto exclusion.
The box van, however, is an "auto" "operated by or
rented" to Advantage. The policy provides that the "use" of
an "auto" includes "loading or unloading." Here, there is no
question that the CT scanner was being "loaded" into the box
van, as that word is commonly used. Significantly, however,
the definition in the policy of "loading and unloading"
contains an exception: "'loading or unloading' does not
include the movement of property by means of a mechanical
device, other than a hand truck, that is not attached to the
... 'auto.'" Here, there is no dispute that the gantry portion
of the CT scanner was being lowered into the box van by a tow
truck -– a mechanical device. Thus, this incident falls
within the exception to the definition in the policy of
"loading and unloading." The CT scanner was not being "loaded
or unloaded" as that term is defined by the CGL policy.
Therefore, the accident did not arise out the "use" of the box
van, and the auto exclusion is inapplicable. See Elk Run Coal
Co. v. Canopius U.S. Ins., Inc., 235 W. Va. 513, 775 S.E.2d 65
(2015) (holding that a front-end loader being used to load
15
1140908
coal onto a truck constituted a "mechanical device" under a
CGL policy and that, therefore, the auto exclusion was not
applicable); Continental Ins. Co. v. American Motorist Ins.
Co., 247 Ga. App. 331, 542 S.E.2d 607 (2000) (determining that
the auto exclusion in a CGL policy did not apply when the
accident occurred while the insured's vehicle was being
unloaded by means of a "pallet jack").
B. The care, custody, or control exclusion
Next, Mid-Continent contends that it has no duty to
defend Advantage because, it says, coverage is excluded under
the "care, custody, or control" exclusion, which provides:
"This insurance does not apply to:
"....
"j. Damage To Property
"'Property damage' to:
"....
"(4) Personal property in the care, custody or
control of the insured ...."
The general intent of this exclusion is to avoid coverage
under a CGL policy that should be covered separately under
property insurance. See 7A John Alan Appleman, Insurance Law
& Practice § 4493.03 (1979). This Court interpreted a "care,
16
1140908
custody or control" exclusion in the seminal case Fidelity &
Casualty Co. of New York v. Landers, 283 Ala. 697, 220 So. 2d
884 (1969). In that case, we held that, in order to fall
within the exclusion, the insured must be exercising
possessory control of the property:
"An overwhelming majority of cases support the view,
either expressly or by implication, that the [care,
custody or control exclusion] clause in the policy
considered should be construed as referring to
possessory handling of property as distinguished
from proprietary control. See citations in 62
A.L.R.2d, p. 1245. The issue here is whether or not
[the insured] was in possessory control of the
[property]. If in possessory control, [the insured]
was not covered by the policy."
283 Ala. at 699, 220 So. 2d at 887. Further, "[i]t is the
exclusive possession of the property at the time damage occurs
that is decisive of whether the exclusion is operative."
Insurance Law & Practice § 4493.03. Finally, we have stated
that whether the care, custody, or control exclusion applies
must be determined on a case-by-case basis:
"'We are of the opinion that what constitutes
"care, custody or control" or "exercising physical
control" depends not only upon whether the property
is realty or personalty, but as well upon many other
facts, such as the location, size, shape and other
characteristics of the property, what the insured is
doing to it and how, and the interest in and
relation of the insured and others to it. Whether
the property is realty or personalty, and the
17
1140908
precise legal relationship of the insured and others
to it, may be material in a given situation; but
when they are, they are merely facts (more or less
important, depending upon the circumstances) to be
taken in conjunction with all the facts, in
determining whether there is exclusion. ...'"
283 Ala. at 699, 220 So. 2d at 887 (quoting Michigan Mut.
Liab. Co. v. Mattox, 173 So. 2d 754, 757 (Fla. Dist. Ct. App.
1965), quoting in turn Elcar Mobile Homes, Inc. v. D.K.
Baxter, Inc., 66 N.J. Super. 478, 169 A.2d 509 (1961)).
In the present case Mid-Continent urges us to look no
further than the complaint in the South Carolina litigation to
confirm the application of the care, custody, or control
exclusion. Mid-Continent points to the allegations of the
complaint asserting that Advantage "lost control" and failed
to "maintain proper control" of the CT scanner. Although
those allegations certainly imply that Advantage was in some
type of control over the scanner, those allegations are not
dispositive as to the application of the "care, custody, or
control" exclusion for at least two reasons. First, the
complaint does not allege that Advantage exercised the type of
exclusive possessory control required to make the exclusion
applicable. Second, we are not limited to the bare allegations
of the underlying complaint in determining whether an insurer
18
1140908
has a duty to defend. See Hartford, 928 So. 2d at 1010. An
insurer should not be able to evade its obligation to defend
by ignoring the facts and relying on incorrect or incomplete
allegations in the complaint. Thus, contrary to Mid-
Continent's arguments, our analysis must consider the
undisputed evidence of Willing's involvement in the incident.
Although not set out in the factual allegations of the
complaint in the South Carolina litigation, it is undisputed
that the accident occurred while Willing's tow truck was
lowering the gantry by means of a winch into Advantage's box
van. Willing was hired, at least in part, because he had
experience loading and unloading medical equipment like the CT
scanner. Upon his arrival, Willing lowered the wrecker bed to
the ground near the gantry, attached his winch cable, and then
winched the gantry onto the wrecker bed. He then raised the
bed and secured the gantry with tie-down chains. He next
drove across the parking lot, backed the tow truck up to the
box van, and lowered the wrecker bed until it was aligned with
the back of the box van. Willing then removed the tie downs
and, using a control panel on his tow truck, began to release
the winch cable. The gantry fell from the wrecker as Willing
19
1140908
was lowering it into the box van. Thus, at the time of the
accident, Willing, who was lowering the gantry from his tow
truck by means of a winch he was operating, was exercising
some control over the gantry.
Under the peculiar facts of this case, we cannot say that
the circuit court erred in finding that the care, custody, or
control exclusion did not preclude Mid-Continent's duty to
defend. Mid-Continent has failed to cite any authority
tending to establish that, under the facts of this case,
Advantage was in exclusive possessory control of the CT
scanner at the time of the accident. Our research has
revealed several analogous cases in which courts have found
the party in Willing's position to be the party exercising
care, custody, or control over the equipment being loaded or
unloaded. See Appicelli Sales & Serv., Inc. v. Citizens Mut.
Ins. Co., 40 Mich. App. 287, 199 N.W.2d 242 (1972) (holding
that the company using a wrecker winch to unload a cherry
picker from a flatbed trailer had care, custody, or control of
cherry picker during unloading process, when cherry
picker
was
damaged); Torrington Co. v. Aetna Cas. & Surety Co., 264 S.C.
636, 216 S.E.2d 547 (1975) (holding that heavy equipment that
20
1140908
was dropped during unloading was under care, custody, or
control of company operating the crane used to unload the
equipment). Accordingly, under the facts and
arguments before
us, we do not find that the circuit court erred in failing to
apply the "care, custody, or control" exclusion.
C. The "your work" exclusion
Next, Mid-Continent asserts that it has no duty to defend
Advantage in the South Carolina litigation because, it says,
coverage is excluded under the "your work" exclusion. That
exclusion –- exclusion j(6) under the policy -– precludes
coverage for:
"'Property damage' to:
"....
"(6)
That particular part of any property
that must be restored, repaired or
replaced because 'your work' was
incorrectly performed on it."
The "your work" exclusion is one of the common business-risk
exclusions
found
in
liability-insurance
policies.
The
purpose
of the "your work" exclusion is to prevent coverage for the
insured's own faulty workmanship, a normal risk associated
with operating a business. See 9A Lee R. Russ et al., Couch
on Insurance § 129:17. The exclusion is intended to prevent
21
1140908
liability insurance from becoming a performance bond for the
insured's work.
Here, Mid-Continent argues that because Advantage was
engaged to transport the CT scanner, its attempt to load the
gantry into the box van was a part of its "work." The policy
defines "your work," in pertinent part, as "[w]ork or
operations performed by you or on your behalf." Although the
gantry was being loaded by Willing, it is undisputed that this
work was being done on Advantage's behalf. Thus, we agree
with Mid-Continent that the loading of the gantry qualified as
"your work" under the policy.
Advantage, however, argues that the evidence before the
circuit court indicated that Advantage's work was not
"incorrectly performed" on the CT scanner. To the contrary,
Advantage argues, the accident was the result of the sudden
and unexpected failure of a bolt that attached one of the
dollies to the gantry. Advantage therefore contends that,
notwithstanding the allegations of the complaint in the South
Carolina litigation, the accident in this case did not occur
because Advantage was incorrectly performing its work on the
CT scanner, but because a bolt supplied by a third party
22
1140908
unexpectedly failed. Thus, it contends, the exclusion should
not apply.
The "your work" exclusion applies to property that is
damaged because the insured's work "was incorrectly performed
on it." (Emphasis added.) We confess that, under the facts
of this case, there is some ambiguity in the phrase "work ...
incorrectly performed on it" and whether the
transportation of
an item constitutes work "on it." There is some authority for
the proposition that it does not. In Essex Insurance Co. v.
Inland Marine Sales, LLC, 387 F. Supp. 2d 978 (W.D. Ark.
2005), the insured's agent was removing a houseboat from the
water with a trailer so that the engine of the boat could be
inspected. While it was being moved, the boat fell from the
trailer and was damaged. In that case, the court concluded
that the "your work" exclusion did not apply because the
damage to the houseboat occurred "while [the insured] was
moving the boat rather than actually repairing it or servicing
its parts." 387 F. Supp. 2d at 983. Furthermore, in
Cincinnati Insurance Co. v. Federal Insurance Co., 166 F.
Supp. 2d 1172 (E.D. Mich. 2001), the court held that the
exclusion did not apply when the evidence showed that the
23
1140908
machine part fell, not because of the insured's incorrectly
performing work on the machine, but because a brake
mistakenly became disengaged.
In response to Advantage's argument, Mid-Continent cites
no authority to suggest that an accident occurring during the
movement of property constitutes work "incorrectly performed
on" the property for the purpose of the j(6) exclusion.
Instead, Mid-Continent merely argues that there remain
questions of fact as to the cause of the accident and
challenges the admissibility of the extrinsic testimony
concerning the sudden shearing of the dolly bolt. We fail to
understand Mid-Continent's contentions in this regard,
particularly in light of Mid-Continent's own "statement of
undisputed facts" submitted to the circuit court,
which
stated
that "the two hex bolts on one of the dollies sheared off
making the gantry unbalanced ... [and b]ecause of its
instability, the CT scanner fell off the rollback truck." Nor
did Mid-Continent argue in its summary-judgment filings that
there were any material questions of fact precluding summary
judgment as to this issue.
24
1140908
Further, we note that exclusion j(6) does not exclude
coverage for all property damage caused by an insured's faulty
workmanship. Rather, the meaning of exclusion j(6) is plain
that property damage is excluded from coverage under that
provision only as to the "particular part[s]" of the property
that were themselves the subject of the defective work. In
interpreting this exclusion, the United States Court of
Appeals for the Fifth Circuit has stated:
"[E]xclusion j(6) bars coverage only for property
damage to parts of a property that were themselves
the subject of defective work by the insured; the
exclusion does not bar coverage for damage to parts
of a property that were the subject of only
nondefective work by the insured and were damaged as
a result of defective work by the insured on other
parts of the property."
Mid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215
(5th Cir. 2009). This statement is consistent with our prior
interpretations of similar faulty-workmanship exclusions.
See, e.g., Berry v. South Carolina Ins. Co., 495 So. 2d 511
(Ala. 1985); United States Fid. & Guar. Co. v. Bonitz
Insulation Co. of Alabama, 424 So. 2d 569, 573 (Ala. 1982).
Here, we are faced with undisputed evidence that only one
constituent part of the CT Scanner –- the gantry –- was being
moved at the time of the accident. The allegations of the
25
1140908
complaint in the South Carolina litigation, however, allege
physical damage to the entire CT Scanner. Thus, even if mere
movement of the property constitutes work on the CT scanner,
to the extent parts of the scanner other than the gantry were
damaged, exclusion j(6) would not exclude coverage as to those
other parts, and Mid-Continent would be required to defend.
Based on the arguments and facts before us on appeal, and
the requirement that exclusionary provisions be narrowly
interpreted, we cannot say the circuit court erred in refusing
to find that exclusion j(6) precluded Mid-Continent's duty to
defend Advantage in the South Carolina litigation.
D. Contractual-liability exclusion
Next, Mid-Continent contends that coverage is excluded
under the contractual-liability exclusion. That exclusion
provides, in part: "This insurance does not apply to
...'Bodily injury' or 'property damage' for which the insured
is obligated to pay damages by reason of the assumption of
liability in a contract or agreement."
Mid-Continent
contends
that because Advantage was retained by KEI to move the
scanner, the accident arose out of a
contractual
relationship.
Thus, it argues, the contractual-liability exclusion applies.
26
1140908
The complaint in the South Carolina litigation,
however,
makes
no claim that any contractual obligations were breached or
that Advantage is liable based on a contractual assumption of
liability. Rather, the complaint asserts a single count of
negligence, in which it contends that Advantage failed to
exercise reasonable care in transporting the CT scanner.
Accordingly, the contractual-liability exclusion does not
apply. See Townsend Ford, Inc. v. Auto-Owners Ins. Co., 656
So. 2d 360, 364 (Ala. 1995) (noting that the contractual-
liability exclusion relieves an insurer from defending claims
against its insured involving indemnity contract liability);
United States Fid. & Guar. Co. v. National Tank & Mach. Works,
Inc., 402 So. 2d 925, 927 (Ala. 1981) ("Those allegations do
not depend upon any 'liability assumed by the Insured under
any contract' but upon an alleged breach of duty implied by
law; hence [the contractual-liability] exclusion does not
apply.").
E. No-action clause
Finally, Mid-Continent argues that the trial court erred
in entering a summary judgment in favor of Advantage because,
it argues, Advantage's declaratory-judgment action is barred
27
1140908
by the "no-action" clause in the policy until a final judgment
has been entered against Advantage. The no-action clause
provides:
"3.
Legal Action Against Us
"No person or organization has a right under
this Coverage Part:
"a.
To join us as a party or otherwise bring us
into a 'suit' asking for damages from an
insured; or
"b.
To sue us on this Coverage Part unless all
of its terms have been fully complied with.
"A person or organization may sue us to recover
on an agreed settlement or on a final judgment
against an insured; but we will not be liable
for damages that are not payable under the
terms of this Coverage Part or that are in
excess of the applicable limit of insurance.
..."
This provision is intended to prevent direct actions against
an insurer for liability owed by the insured until there is a
final judgment or settlement against the insured. Mid-
Continent argues that Advantage must first suffer a final
judgment in the South Carolina litigation before it can obtain
a judgment declaring that Mid-Continent has a duty to defend
in the South Carolina litigation. We find this construction
untenable and simply not supported by the policy language or
28
1140908
the authority cited on appeal. See Eureka Fed. Sav. & Loan
Ass'n v. American Cas. Co. of Reading, Pa., 873 F.2d 229, 232-
33 (9th Cir. 1989) (no-action clause does not bar insured's
declaratory-judgment action).
IV. Conclusion
This case concerns Mid-Continent's duty to defend
Advantage in the South Carolina litigation. Based upon both
the allegations in the complaint and the undisputed facts, the
Mobile Circuit Court concluded that the policy exclusions did
not allow Mid-Continent to evade its obligation to provide a
defense under the CGL policy it had issued to Advantage, and
it entered a final judgment in favor of Advantage. For the
reasons set forth above, the judgment of the circuit court is
affirmed.
AFFIRMED
Moore, C.J., and Stuart, Bolin, Parker, Wise, and Bryan,
JJ., concur.
Murdock and Shaw, JJ., dissent.
29
1140908
MURDOCK, Justice (dissenting).
I believe the Court has misunderstood and misapplied both
the "care, custody, or control" exclusion and the "your work"
exclusion in the underlying policy. I therefore respectfully
dissent.
30 | November 6, 2015 |
417e28d6-f7b0-49ed-acf3-eb589549f94f | Limon v. Sandlin | N/A | 1140544 | Alabama | Alabama Supreme Court | REL:10/23/2015
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, 2015-2016
_________________________
1140544
_________________________
Evangeline Limon and Eladio Limon
v.
Sandra Sandlin et al.
Appeal from Jefferson Circuit Court
(CV-14-901610)
SHAW, Justice.
Evangeline Limon and Eladio Limon, the plaintiffs below,
appeal from the trial court's dismissal of their claims
against the defendants, William Ellis Ogburn, Sr. ("Bill"),
Sandra Sandlin, and William Ogburn ("Will") (sometimes
1140544
hereinafter collectively referred to as "the defendants"), as
untimely filed. We reverse and remand.
Facts and Procedural History
The plaintiffs' daughter was, at all times pertinent
hereto, a minor and was romantically involved with Will, who
was also then a minor and who is Bill and Sandra's son. It is
alleged that during the course of their relationship, the
plaintiffs' daughter became pregnant by Will. The pregnancy
1
was purportedly concealed from the plaintiffs.
In December 2011, the defendants sought the permission of
the plaintiffs to take the plaintiffs' daughter on a trip to
New York, purportedly to see Broadway shows and to meet some
of Will's family. According to the plaintiffs, however, the
true purpose for the trip was for the plaintiffs' minor
daughter to obtain an abortion in New York, a state that had
not enacted a parental-notification law applicable to minors
seeking an abortion. The plaintiffs' daughter had the
2
Although the record before us is unclear as to the exact
1
age of the plaintiffs' daughter at the time of her pregnancy,
she was, apparently, at least 16 years of age in December
2011. See appellees' brief, at p. 1.
By contrast, § 26-21-3, Ala. Code 1975, specifically
2
provides
that,
except
in
certain
enumerated
circumstances,
"no
physician shall perform an abortion upon an unemancipated
2
1140544
abortion while in New York, and the abortion was also
allegedly concealed from the plaintiffs.
3
According to the plaintiffs, "[u]pon returning from New
York, [the] Plaintiffs' daughter began acting distantly,"
began using drugs, and ultimately "dropped out" of school. In
or around May 2013, after the plaintiffs had allegedly gone
"to great lengths to help her," without success, the
plaintiffs' daughter disclosed the true circumstances of the
December 2011 trip to New York.
On April 17, 2014, the plaintiffs sued the defendants,
alleging negligence, "interference with parental rights," the
tort of outrage, and fraud. In response, Sandra and Will4
moved for a more definite statement as to the plaintiffs'
fraud count and/or to dismiss the plaintiffs' complaint on
various grounds, including the ground that the claims were
filed after the expiration of the applicable two-year
minor unless the physician or his or her agents first obtain
the written consent of either parent or the legal guardian of
the minor."
As best we are able to discern from the record, the
3
abortion occurred on or around December 30, 2011.
Bill, who was apparently divorced from Sandra when the
4
motion was filed, did not join in the motion.
3
1140544
limitations period. Anticipating the likelihood of a tolling
argument by the plaintiffs, Sandra and Will specifically
argued in their motion that, according to the allegations in
the plaintiffs' complaint, the change in the plaintiffs'
daughter's
behavior
was
noticeable
immediately
upon
her
return
from the trip to New York in December 2011. Thus, according
to Sandra and Will, the "[p]laintiffs had facts in late
December
2011/early
January
2012
that
'upon
closer
examination,' would have led to the discovery of the events
complained-of"; therefore, they argued, the "savings clause"
found in § 6-2-3, Ala. Code 1975, did not apply to toll the
5
two-year statute of limitations. At or around this time,
Bill, appearing separately and pro se, filed an answer to the
plaintiffs' complaint.
In opposition to the motion, the plaintiffs argued that
all of their claims were timely pleaded. They further
Section 6–2–3, commonly known as Alabama's "savings
5
clause," states:
"In actions seeking relief on the ground of
fraud where the statute has created a bar, the claim
must not be considered as having accrued until the
discovery by the aggrieved party of the fact
constituting the fraud, after which he must have two
years within which to prosecute his action."
4
1140544
contended that they first discovered –- and were first able to
discover -- "the fraud that had been perpetrated against them"
in May 2013, when the plaintiffs' daughter first informed them
of what had actually occurred during the trip to New York.
On June 24, 2014, the trial court entered an order
dismissing all of the plaintiffs' claims, except the fraud
count, as untimely. The trial court subsequently dismissed
6
the fraud count based on a finding that that count, as stated,
lacked the specificity required by Rule 9(b), Ala. R. Civ. P.;
however, as provided for in Rule 12(e), Ala. R. Civ. P., the
trial court allowed the plaintiffs 10 days to file either a
more definite statement of that particular claim or an
amendment to their complaint.
In response, the plaintiffs filed an amended complaint
reasserting the three previously dismissed claims and
realleging
the
fraud
claim
with
additional
factual
allegations
detailing the defendants' solicitation of the plaintiffs'
The plaintiffs attempted to appeal the trial court's
6
dismissal
of
their
tort-of-outrage,
negligence,
and
"parental-
interference" claims (case no. 1131273). By order issued on
December 15, 2014, this Court dismissed the appeal on the
ground that it was, in light of the pending fraud count, from
a nonfinal judgment.
5
1140544
permission for the plaintiffs' daughter to travel with them to
New York. Sandra and Will moved to strike the three claims in
the amended complaint that the trial court had previously
dismissed and sought dismissal of the remaining fraud count
pursuant to Rule 9(b) and also on the ground that it was
untimely. Bill filed a pro se notice adopting Sandra and
Will's motion.
The trial court subsequently entered an order concluding
that the plaintiffs' fraud count was likewise untimely and due
to be dismissed. As a result, the trial court dismissed the
entire action with prejudice. The plaintiffs appeal.
Standard of Review
"'[A] Rule 12(b)(6) dismissal is proper only
when it appears beyond doubt that the plaintiff can
prove no set of facts in support of the claim that
would entitle the plaintiff to relief.' Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993) (citations
omitted). 'Next, the standard for granting a motion
to dismiss based upon the expiration of the statute
of limitations is whether the existence of the
affirmative defense appears clearly on the face of
the pleading.' Braggs v. Jim Skinner Ford, Inc.,
396 So. 2d 1055, 1058 (Ala. 1981) (citations
omitted)."
Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189, 1193 (Ala.
2003).
Discussion
6
1140544
The plaintiffs maintain on appeal that the trial court
erred in dismissing their claims as untimely because, they
say, they could not reasonably have discovered
the
defendants'
deception until May 2013 and they sufficiently pleaded their
fraud claim so as to bring that claim, as well as what they
describe as their three "derivative" claims, within the
savings clause found in § 6-2-3. See note 5, supra.
Initially, we note, as the defendants also observe, that the
plaintiffs' contention that they sufficiently pleaded their
fraud claim so as to comply with Rule 9(b) is not presently
before us, and we make no determination in that regard,
because the trial court's stated reason for dismissing the
fraud count was that that claim –- like the plaintiffs' other
claims –- was filed after the applicable limitations period
had expired.
As
indicated
on the face of their
complaints, the plaintiffs' fraud claim was based on conduct
that occurred in December 2011; therefore, in the absence of
tolling, the applicable two-year statute of limitations as to
that particular claim would have expired in December 2013 –-
well before the plaintiffs filed the underlying action in
April 2014. In support of their claim that they have
7
1140544
sufficiently demonstrated their entitlement to application of
the savings clause, the plaintiffs cite DGB, LLC v. Hinds, 55
So. 3d 218, 226 (Ala. 2010), and Papastefan v. B & L
Construction Co., 356 So. 2d 158 (Ala. 1978).
Contrary to the plaintiffs' contentions, the defendants
maintain that the plaintiffs' fraud claim accrued in either
late December 2011 or January 2012, when, they contend, "[the
alleged fraud] ought to have been discovered," because, they
argue, at that time the plaintiffs possessed "[f]acts which
[would] provoke inquiry in the mind of a man of reasonable
prudence, and which, if followed up, would have led to a
discovery of the fraud." Willcutt v. Union Oil Co. of
California, 432 So. 2d 1217, 1219 (Ala. 1983). More
specifically, the defendants note that DGB provides:
"Because § 6–2–3 applies to the fraudulent
concealment of the existence of a cause of action,
... if the investors have sufficiently alleged the
fraudulent concealment of their claims, § 6–2–3 may
apply even to their non-fraud claims. This Court
has stated: 'When, as in this case, the plaintiff's
complaint on its face is barred by the statute of
limitations, the complaint must also show that he or
she falls within the savings clause of § 6–2–3.'
Miller v. Mobile County Bd. of Health, 409 So. 2d
420, 422 (Ala. 1981). '[T]he burden is upon he who
claims the benefit of § 6–2–3 to show that he comes
within it.' Amason v. First State Bank of Lineville,
369 So. 2d 547, 551 (Ala. 1979). However, a
8
1140544
'dismissal based on the statute of limitations is
proper only if, from the face of the complaint, it
is apparent that the tolling provisions do not
apply.' Travis v. Ziter, 681 So. 2d 1348, 1351 (Ala.
1996).
"This Court has held that to show that a
plaintiff's claims fall within the savings clause of
§ 6–2–3 a complaint must allege the time and
circumstances of the discovery of the cause of
action. See, e.g., Angell v. Shannon, 455 So. 2d
823, 823-24 (Ala. 1984); Papastefan v. B & L Constr.
Co., 356 So. 2d 158, 160 (Ala. 1978). The complaint
must also allege the facts or circumstances by which
the defendants concealed the cause of action or
injury and what prevented the plaintiff from
discovering the facts surrounding the injury. See,
e.g., Smith v. National Sec. Ins. Co., 860 So. 2d
343, 345, 347 (Ala. 2003); Lowe v. East End Mem'l
Hosp. & Health Ctrs., 477 So. 2d 339, 341-42 (Ala.
1985); Miller, 409 So. 2d at 422. See also Amason,
369 So. 2d at 550."
55 So. 3d at 225-26 (emphasis added).
The
plaintiffs
argue
that,
in
keeping
with
the
requirements established by this Court in DGB and set out
above, they properly alleged in their complaints
"(1) the circumstances surrounding the discovery of
Defendants'
fraud
--
namely,
their
daughter
ultimately disclosing the circumstances surrounding
her abortion; (2) the facts and circumstances by
which Defendants concealed their tortious conduct --
namely, Defendants devising a plan to fraudulently
obtain Plaintiffs' permission [for the plaintiffs'
daughter] to accompany Defendants to New York while
knowing the true purpose of the trip was to obtain
an abortion without parental consent; and (3) what
prevented Plaintiffs from discovering the tortious
9
1140544
conduct of Defendants -- namely, the nature of the
ultimate achievement of the fraud, an abortion, and
the type of psychological struggle Plaintiffs'
daughter was experiencing, prevented Plaintiffs from
reasonably discovering the truth within two years of
the initial fraudulent conduct."
(Plaintiffs' brief, at pp. 20-21.) We agree. Unlike
generalized allegations of concealment, which this Court has
previously deemed insufficient, here, "the [plaintiffs] have
7
alleged [much] more than just the circumstances of their
discovery of their claims and that the defendants concealed
them." DGB, 55 So. 3d at 227. As the plaintiffs point out,
their original complaint, on its face, alleges that
information regarding the nature of the New York trip and the
abortion was concealed from them in 2011, alleges that their
discovery of the injury within two years of the abortion was
prevented by their daughter's psychological struggle, and
alleges that they did not have actual knowledge of the true
circumstances of the trip to New York –- and, thus, the claims
arising from the defendants' alleged conduct -- until May
2013. Therefore, the plaintiffs' "allege the facts or
See Smith v. National Sec. Ins. Co., 860 So. 2d 343, 345,
7
347 (Ala. 2003); Lowe v. East End Mem'l Hosp. & Health Ctrs.,
477 So.2d 339, 341-42 (Ala. 1985); and Miller v. Mobile Cnty.
Bd. of Health, 409 So. 2d 420, 422 (Ala. 1981).
10
1140544
circumstances
by
which the
defendants concealed
[the
plaintiffs'] causes of action or injury," as well as the
circumstances of the discovery of that concealment. DGB, 55
So. 3d at 227. See Papastefan, 356 So. 2d at 160 ("To
withstand a motion to dismiss, it is necessary that a
complaint show the time and circumstances of the discovery of
the alleged fraud." (citations omitted)).
Further, as the plaintiffs note, "[b]ecause § 6-2-3
applies to the fraudulent concealment of the existence of a
cause of action, ... if [they] have sufficiently alleged the
fraudulent concealment of their claims, § 6-2-3 may apply even
to their non-fraud claims." DGB, 55 So. 3d at 225-26. As DGB
explains:
"This Court has stated: 'We have recognized that §
6-2-3 may be "applied to other torts not arising in
fraud in appropriate cases, and applies to a
fraudulent concealment of the existence of a cause
of action."' Holdbrooks v. Central Bank of Alabama,
N.A., 435 So. 2d 1250, 1251 (Ala. 1983) (quoting
Tonsmeire v. Tonsmeire, 285 Ala. 454, 457, 233 So.
2d 465, 467 (Ala. 1970)). More specifically, this
Court has explained, regarding a predecessor of § 6-
2-3:
"'While
this
statute
is
usually
applicable to cases wherein fraud is the
basis of the cause of action, it is the
settled construction that its purpose is to
make available at law the rule theretofore
11
1140544
prevailing in equity; and applies to a
fraudulent concealment of the existence of
a cause of action from the party in whose
favor the cause of action exists. A party
cannot
profit
by
his
own
wrong
in
concealing a cause of action against
himself until barred by limitation. The
statute of limitations cannot be converted
into an instrument of fraud.'
"Hudson v. Moore, 239 Ala. 130, 133, 194 So. 147,
149 (1940) overruled on other grounds by Ex parte
Sonnier, 707 So. 2d 635 (Ala. 1997) (emphasis
added)."
55 So. 3d at 224-25 (footnote omitted).
In light of the foregoing, and having concluded that the
plaintiffs
included
sufficient
allegations
in
their
complaints
of the defendants' alleged fraudulent concealment so as to
trigger the savings clause of § 6–2–3, we similarly conclude
that the savings clause applies not only to the plaintiffs'
fraud count, but also to the remaining tort-based claims
asserted in the plaintiffs' complaint. Finally, although the
defendants challenge the reasonableness of the plaintiffs'
inquiry following the return of the plaintiffs' daughter from
New York, as we noted in DGB, having concluded that the
plaintiffs sufficiently alleged the facts and circumstances
that prevented their discovery of their stated causes of
action against the defendants, "[a]ny question regarding the
12
1140544
reasonableness of the [plaintiffs'] actions or inaction
is
not
yet before us." 55 So. 3d at 228.8
Conclusion
The dismissal of the plaintiffs' claims on statute-of-
limitations grounds was, at this stage of the proceedings,
error. Accordingly, we reverse the order of dismissal and
remand the case for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Parker, and Wise, JJ., concur.
We express no opinion as to the merits of the plaintiffs'
8
claims.
13 | October 23, 2015 |
b9cc6f13-95df-4aeb-828e-e50f327f75ca | Ex parte Benjamin Howlet. | N/A | 1150062 | Alabama | Alabama Supreme Court | Rel:12/04/2015
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, 2015-2016
____________________
1150062
____________________
Ex parte Benjamin Howlet
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Benjamin Howlet
v.
State of Alabama)
(Colbert Circuit Court, CC-97-313.62;
Court of Criminal Appeals, CR-14-0953)
BOLIN, Justice.
WRIT DENIED. NO OPINION.
1150062
Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
2
1150062
MOORE, Chief Justice (dissenting).
I respectfully dissent from this Court's denial of
Benjamin Howlet's petition for a writ of certiorari. The
circuit court summarily dismissed Howlet's petition for
postconviction relief filed pursuant to Rule 32, Ala. R. Crim.
P. Howlet appealed, and the Court of Criminal Appeals affirmed
the circuit court's dismissal. See Howlet v. State (No. CR-14-
0953, September 18, 2015), ___ So. 3d ___ (Ala. Crim. App.
2015) (table). This petition for certiorari review followed.
Howlet was convicted of two counts of capital murder. See
§§
13A-5-40(a)(17)
and
13A-5-40(a)(18),
Ala.
Code
1975.
Howlet
and his attorney signed and filed a form waiving Howlet's
right to be present at arraignment. In the present case, the
Court of Criminal Appeals in its unpublished memorandum cites
Ex parte Howlet, 801 So. 2d 30 (Ala. 2000), which indicates
that Howlet was convicted on April 22, 1998.
In Lancaster v. State, 638 So. 2d 1375, 1376 (Ala. 1994),
this Court cited Rule 9.1, Ala. R. Crim. P., and concluded
that in a capital-murder case, from arraignment
to
sentencing,
a defendant cannot waive his or her right to be present.
Effective December 1, 1997, Rule 9.1(b), Ala. R. Crim. P., was
3
3
1150062
amended to allow a capital-murder defendant to waive his or
her right to be present at all proceedings except sentencing.
I am concerned that Howlet's waiver of his right to be
present at arraignment may have occurred before the amendment
of Rule 9.1 and that he was not afforded due process. To
assume otherwise without a factual determination is highly
improper in a capital case. I would issue the writ to
determine whether Howlet waived his right to be present at
arraignment before or after Rule 9.1 was amended to allow for
such a waiver.
4
4 | December 4, 2015 |
3672568e-8d15-44c1-8511-83fcc9dcdf5e | Adams v. Boan | 559 So. 2d 1084 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1084 (1990)
Margie ADAMS and Tammy Adams
v.
Michelle BOAN, as administratrix of the estate of Keith Lamar Adams, deceased.
88-1105.
Supreme Court of Alabama.
March 16, 1990.
*1086 Danny D. Henderson of Spurrier, Rice & Henderson, Huntsville, and William A. Owens, Jr., Athens, for appellants.
Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, Athens, for appellee.
HOUSTON, Justice.
Who should administer the estate of Keith Lamar Adams, deceased?
The Probate Court of Limestone County granted letters of administration on Adams's estate to Michelle Boan. Ms. Margie Adams, Adams's mother, and Ms. Tammy Adams, from whom Adams was divorced and who is the mother of Adams's minor children (referred to here as "appellants"), petitioned the probate court to remove Ms. Boan as administratrix of Adams's estate. The administration of the Adams estate was removed to the Circuit Court of Limestone County. That court, after hearing ore tenus evidence, found that at the time of Adams's death, he and Ms. Boan were husband and wife by a common law marriage and denied the petition to remove her as administratrix. This appeal followed. We affirm.
After a one-month acquaintance, Adams, a divorced man, cohabited with Ms. Boan for approximately four months. Adams was then hospitalized for seven or eight weeks. It was during that time, Ms. Boan said, that she began to consider them to be married. Ms. Boan produced a letter that Adams had written to her from the hospital in which he referred to himself as her husband. After being released from the hospital, Adams gave Ms. Boan a wedding band. They resumed living together and continued to live together, at various locations, until Adams's death approximately two years later. Ms. Boan testified that she and Adams shared household duties and living expenses. Four witnesses testified that they had heard Adams refer to Ms. Boan as his wife, and three of those witnesses and four others testified that they considered Adams and Ms. Boan to be married. Three other witnesses testified that they did not consider Adams and Ms. Boan to be married. Members of Adams's family testified that they did not consider Adams and Ms. Boan to be married. Some documents, such as a joint bank account, an automobile certificate of title, an automobile insurance application, a library card, and a bill of sale for the purchase of chickens, list Adams and Ms. Boan as married. Some documents, such as her driver's license, a bill of sale for an automobile, their employment applications, and their income tax forms, list Ms. Boan and Adams as single.
Where the trial court has heard ore tenus evidence and has made findings based on that evidence, we presume that the trial court's judgment based on those findings is correct, and it will be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all the evidence and after making all the inferences that can be logically made from the evidence, Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989); and King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987); and the trial court's judgment will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment. Clark v. Albertville Nursing Home, Inc., supra; McCrary v. Butler, 540 So. 2d 736 (Ala. 1989). Because there was evidence to support the trial court's factual findings, we must affirm its judgment based on those findings, unless there was a misapplication of the law to the facts.
The elements of a valid common law marriage in Alabama are: (1) capacity; (2) present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Copeland v. Richardson, 551 So. 2d 353 (Ala.1989); Downs v. Newman, 500 So. 2d 1062 (Ala.1986).
The appellants argue that, as a matter of law, Ms. Boan lacked the capacity to create a valid common law marriage. We disagree. The record indicates that Ms.
*1087 Boan was 16 years old when the agreement to be married was formed and that she was 18 when Adams died. The minimum age for contracting marriage is 14. Ala.Code 1975, § 30-1-4. In White v. Hill, 176 Ala. 480, 58 So. 444 (1912), a valid common law marriage was found where the man, although a minor, was over 17, the minimum age required at that time to be able to contract marriage. See Ala.Code of 1907, § 4879. The appellants argue that the marriage should not be considered valid because Ala.Code 1975, § 30-1-5, requires a person under the age of 18 who is intending to marry to acquire the consent of her parents. While this is true, we note that the predecessor to § 30-1-5 existed when White v. Hill was decided, and this Court did not rule that such a requirement invalidated the common law marriage. Moreover, this Court held in Robertson v. Robertson, 262 Ala. 114, 77 So. 2d 373 (1955), that § 30-1-5 is merely directory and that failure to adhere to its provisions is not grounds for annulling a marriage. Also, it should be noted that § 30-1-5 addresses marriages solemnized by formality, not common law marriages. Where a marriage is solemnized by formality, it is possible for a probate court to receive proof of parental consent, either orally or written.
There must be a present agreement or mutual consent to enter the marriage relationship, permanent and exclusive of all others. Downs v. Newman, supra; Boswell v. Boswell, 497 So. 2d 479 (Ala. 1986). The appellants contend that a present agreement or mutual consent to be husband and wife did not exist between Adams and Ms. Boan because, they say, Adams did not intend for the relationship to be "permanent and exclusive of all others." Specifically, they argue that the facts are undisputed that Adams had an ongoing, sexually intimate, affair with a woman other than Ms. Boan, and a brief affair with yet another woman. Ms. Boan testified that neither she nor Adams had sexual relations with anyone else from the time they agreed to be married to the time of Adams's death. There was credible evidence that at the time Adams and Ms. Boan agreed to be married, Adams was not engaged in an affair with another woman. This would support the trial court's finding that there was a present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others.
Once the man and woman have established a present agreement or mutual consent to enter into the marriage relationship, permanent and exclusive of all others, a common law marriage is equal in validity with a ceremonial marriage. Hudson v. Hudson, 404 So. 2d 82 (Ala.Civ.App.1981). In Skipworth v. Skipworth, 360 So. 2d 975, 977 (Ala.1978), this Court stated the following concerning a present agreement or consent to be husband and wife:
Once there is a marriage, common law or ceremonial, it is not "transitory, ephemeral, or conditional." Turner v. Turner, 251 Ala. 295, 297, 37 So. 2d 186, 188-89 (1948). Once married, by common law or by ceremony, the spouses are married. There is no such thing as being a "little bit" married; and once married, one spouse's liaison amoureuse does not end the marital status, whether that status was created by common law or by ceremony, though it may afford the other spouse a ground for judicially terminating the legal relationship.
Adams and Ms. Boan may not have achieved that idyllic relationship described by then-67-year-old Justice William O. Douglas in his hymn to marriage that concludes his majority opinion in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510 (1965);[1] but *1088 Justice Douglas's admirable sentiments refer to the "being there" and not to the process of getting there. There was enough evidence of permanence and exclusivity that we cannot hold that the trial court misapplied the law to the facts, or that his factual findings were plainly and palpably wrong.
The appellants also argue that the evidence before the trial court did not sufficiently prove that there was public recognition of the existence of the marriage. They point out that Adams and Ms. Boan declared themselves single on their tax forms and employment applications and that they did not hold themselves out as married to members of Adams's family.
Following an agreement to be husband and wife, a man and a woman must so live as to gain public recognition that they are living as husband and wife rather than in a state of concubinage. Downs v. Newman, supra; Beck v. Beck, 286 Ala. 692, 246 So. 2d 420 (1971). The manner in which a couple must live in order to gain public recognition of the existence of the marriage is well stated in Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L. Ed. 822 (1884):
112 U.S. at 495, 5 S. Ct. at 280-81 (emphasis added), cited with approval by this Court in Gilbreath v. Lewis, 242 Ala. 510, 7 So. 2d 485 (1942); Piel v. Brown, 361 So. 2d 90 (Ala.1978); and Downs v. Newman, supra. Having reviewed the record, we find evidence of each of the criteria listed in Maryland v. Baldwin, supra, from which the trial court could have found that there was public recognition of a marriage between Adams and Ms. Boan.
We affirm.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." | March 16, 1990 |
e3c3a042-a228-4fec-a9f9-c7ab07789c79 | Federal Insurance Company v. Reedstrom | N/A | 1141153 | Alabama | Alabama Supreme Court | REL: 12/18/2015
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, 2015-2016
____________________
1141153
____________________
Federal Insurance Company
v.
Kert Reedstrom
Appeal from Marshall Circuit Court
(CV-14-900463)
STUART, Justice.
Federal Insurance Company appeals the order of the
Marshall Circuit Court denying its motion to compel
arbitration of the breach-of-contract claim asserted against
it by Kert Reedstrom. We reverse and remand.
1141153
I.
In 2008, Reedstrom entered into a written employment
agreement with Marshall-Jackson Mental Health Board, Inc.,
d/b/a
Mountain
Lakes
Behavioral
Healthcare
("MLBHC"),
to
begin
serving as its executive director in Guntersville. During the
course of Reedstrom's employment with MLBHC, MLBHC held an
executive-liability,
entity-liability,
and
employment-
practices-liability policy issued by Federal Insurance ("the
Federal Insurance policy") that generally protected certain
MLBHC officers and employees described as "insureds" in the
policy from loss for actions committed in the course of their
employment with MLBHC. It is undisputed that Reedstrom was in
fact an "insured" covered by the Federal Insurance policy.
The Federal Insurance policy contained the following
arbitration provision:
"Any dispute between any insured and [Federal
Insurance]
based
upon,
arising
from,
or
in
consequence of any actual or alleged coverage under
this coverage section, or the validity, termination
or breach of this coverage section, including but
not limited to any dispute sounding in contract or
tort, shall be submitted to binding arbitration.
"[MLBHC], however, shall first have the option
to resolve the dispute by non-binding mediation
pursuant to such rules and procedures, and using
such mediator, as the parties may agree. If the
2
1141153
parties cannot so agree, the mediation shall be
administered by the American Arbitration Association
pursuant to its then prevailing commercial mediation
rules.
"If the parties cannot resolve the dispute by
non-binding mediation, the parties shall submit the
dispute to binding arbitration pursuant to the then-
prevailing commercial arbitration rules of the
American Arbitration Association, except that the
arbitration panel shall consist of one arbitrator
selected by the insureds, one arbitrator selected by
[Federal Insurance], and a third arbitrator selected
by the first two arbitrators."
A separate endorsement
to
the Federal Insurance policy further
highlighted the arbitration provision and explained that its
effect was that any disagreement related to coverage would be
resolved by arbitration and not in a court of law.
In July 2010, MLBHC terminated Reedstrom's employment
and, in December 2010, Reedstrom sued MLBHC in the Marshall
Circuit Court alleging that MLBHC's termination of his
employment constituted a breach of his employment contract.
Subsequently, MLBHC asserted various counterclaims against
Reedstrom based on his alleged misconduct while serving as
executive director. Thereafter, Reedstrom gave Federal
Insurance notice of the claims asserted against him and
requested coverage under the terms of the Federal Insurance
policy. Federal Insurance ultimately denied his claim,
3
1141153
however, and refused to provide him with counsel to defend
against MLBHC's claims.
In May 2014, Reedstrom and MLBHC's claims were the
subject of a jury trial, at the conclusion of which the jury
returned a verdict awarding Reedstrom $150,000 on his claim
against MLBHC and awarding MLBHC $60,000 on its claims against
Reedstrom. Consistent with its previous denial of his request
for
coverage,
Federal
Insurance
refused
Reedstrom's
request
to
satisfy the judgment entered against him.
On September 17, 2014, Reedstrom sued Federal Insurance,
asserting one claim of breach of contract and seeking $72,000
in damages –- $60,000 based on the judgment entered against
him and $12,000 for the attorney fees he incurred in defending
those claims. On November 7, 2014, Federal Insurance moved
the trial court to compel the arbitration of Reedstrom's claim
based on the arbitration provision in the Federal Insurance
policy that Reedstrom was alleging had been breached.
Reedstrom opposed the motion and, on May 20, 2015, the trial
court conducted a hearing to consider the parties' arguments
relating to arbitration. On June 16, 2015, the trial court
denied Federal Insurance's motion to compel arbitration, and,
4
1141153
on July 27, 2015, Federal Insurance appealed that judgment to
this Court pursuant to Rule 4(d), Ala. R. Civ. P.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
It is undisputed that there exists a contract calling for
arbitration –– the Federal Insurance policy –– and that that
contract
evidences
a
transaction
affecting
interstate
5
1141153
commerce. Inasmuch as Federal Insurance established these
undisputed facts when moving the trial court to compel
arbitration, the burden of proof shifted to Reedstrom to
establish that the arbitration provision in the Federal
Insurance policy was either invalid or did not apply to his
dispute with Federal Insurance. The trial court did not, in
its order denying Federal Insurance's motion to compel
arbitration, articulate the rationale for that denial;
however, Reedstrom argues to this Court that the denial was
proper because (1) Federal Insurance allegedly waived its
right to invoke the arbitration provision in the Federal
Insurance policy and (2) Reedstrom was not a signatory to the
Federal Insurance policy. Federal Insurance argues
that there
is no merit to either of those arguments; however, it also
argues that, to the extent the trial court even considered
those arguments, the trial court erred because, pursuant to
the arbitration provision in the Federal Insurance policy,
issues of arbitrability were to be decided by the arbitrators,
not a trial court.
In Anderton v. Practice-Monroeville, P.C., 164 So. 3d
1094, 1098-1102 (Ala. 2014), we recognized the general rules
6
1141153
that apply in arbitration cases providing that both waiver and
nonsignatory issues of the type raised by Reedstrom should be
resolved by the trial court before the underlying dispute is
sent to arbitration if, in fact, arbitration is ultimately
determined to be the proper forum for the dispute. However,
we also recognized that these general rules have their
exceptions. With specific regard to the waiver issue, we
stated:
"As a threshold matter, we address whether the
waiver issue is one for the circuit court or the
arbitrator to decide. This Court has stated that
'the issue whether a party has waived the right to
arbitration by its conduct during litigation is a
question for the court and not the arbitrator.'
Ocwen Loan Servicing, LLC v. Washington, 939 So. 2d
6, 14 (Ala. 2006). However, the general rule that
the court and not the arbitrator decides whether a
party has waived the right to arbitration has an
exception: issues typically decided by the court
will be decided by the arbitrator instead when there
is '"clear and unmistakable evidence"' of such an
agreement in the arbitration provision. First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,
944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (quoting
AT&T Techs., Inc. v. Communications Workers of
America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89
L.Ed.2d 648 (1986) (alterations omitted)); see also
Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 14
(1st Cir. 2005) (citing First Options)."
7
1141153
Anderton, 164 So. 3d at 1098 (footnote omitted). The
1
Anderton Court thereafter addressed the nonsignatory issue as
well, stating:
"The question whether an arbitration provision
may be used to compel arbitration of a dispute
between a nonsignatory and a signatory is a question
of substantive arbitrability (or, under the Supreme
Court's terminology, simply 'arbitrability'). In
First Options [of Chicago, Inc. v. Kaplan], 514 U.S.
[938,] 943–46 [(1995)], the Supreme Court analyzed
the question whether an arbitration agreement binds
a nonsignatory as a question of arbitrability. See
also Howsam [v. Dean Witter Reynolds], 537 U.S.
[79,] 84 [(2002)] (noting that in First Options the
Supreme Court held that the question 'whether the
arbitration contract bound parties who did not sign
the agreement' is a question of arbitrability for a
court to decide). More recently, the United States
Court of Appeals for the Eighth Circuit succinctly
addressed the threshold issue before us. In
Eckert/Wordell Architects, Inc. v. FJM Properties of
Willmar, LLC, 756 F.3d 1098 (8th Cir. 2014), a
nonsignatory sought to compel arbitration of a
dispute with a signatory, as in this case. The
court stated:
"'Whether a particular arbitration
provision may be used to compel arbitration
between a signatory and a nonsignatory is
Although this Court in Anderton held that an arbitrator
1
should decide whether a party has waived its right to
arbitration if
the
arbitration provision
clearly
and
unmistakably indicates that the parties agreed that the
arbitrator should make that decision, the Anderton Court
ultimately declined to consider whether the parties in that
case had made such an agreement because the appellants had
failed to raise that issue in a timely manner. 164 So. 3d at
1098-99.
8
1141153
a threshold question of arbitrability. See
Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 84–85, 123 S.Ct. 588, 154 L.Ed.2d
491
(2002)
(delineating
potentially
dispositive
threshold
issues
between
"questions
of
arbitrability"
and
"procedural
questions").
We
presume
threshold questions of arbitrability are
for a court to decide, unless there is
clear
and
unmistakable
evidence
the
parties
intended
to
commit
questions
of
arbitrability to an arbitrator. Id. at 83,
123 S.Ct. 588; Express Scripts, Inc. v.
Aegon Direct Mktg. Servs., Inc., 516 F.3d
695, 701 (8th Cir. 2008). We have
previously held the incorporation of the
AAA [American Arbitration Association]
Rules
into
a
contract
requiring
arbitration
to be a clear and unmistakable indication
the parties intended for the arbitrator to
decide
threshold
questions
of
arbitrability....
Eckert
Wordell's
drafting of the architectural services
contract here to incorporate the AAA Rules
requires the same result.'
"756 F.3d at 1100. See also Knowles v. Community
Loans of America, Inc. (No. 12–0464–WS–B, Nov. 20,
2012) (S.D. Ala. 2012) (not reported in F.Supp. 2d)
('A question as to "whether the arbitration contract
bound parties who did not sign the agreement" is one
that "raises a 'question of arbitrability' for a
court to decide."' (quoting Howsam, 537 U.S. at
84)).
"Like the Eighth Circuit, we have held 'that an
arbitration provision that incorporates rules that
provide for the arbitrator to decide issues of
arbitrability clearly and unmistakably evidences the
parties' intent to arbitrate the scope of the
arbitration provision.' CitiFinancial Corp. v.
Peoples, 973 So. 2d 332, 340 (Ala. 2007). See also
9
1141153
Joe Hudson Collision Ctr. v. Dymond, 40 So. 3d 704,
710 (Ala. 2009) (concluding that an arbitrator
decides issues of substantive arbitrability when the
arbitration provision incorporated the same AAA rule
as in the present case); and Wells Fargo Bank, N.A.
v. Chapman, 90 So. 3d 774, 783 (Ala. Civ. App. 2012)
(same). The relevant AAA rule incorporated by the
arbitration provision provides: 'The arbitrator
shall have the power to rule on his or her own
jurisdiction, including any objections with respect
to the existence, scope or validity of the
arbitration agreement.' Thus, although the question
whether an arbitration provision may be used to
compel arbitration between a signatory and a
nonsignatory
is
a
threshold
question
of
arbitrability usually decided by the court, here
that question has been delegated to the arbitrator.
The arbitrator, not the court, must decide that
threshold issue."
164 So. 3d at 1101-02. Thus, the law in Alabama is such that
a trial court considering a motion to compel arbitration
should resolve both waiver and nonsignatory issues unless the
subject arbitration provision clearly and unmistakably
indicates that those arguments should instead be submitted to
the arbitrator.
Like
the
arbitration
agreement
in
Anderton,
the
arbitration provision in this case provides that any
arbitration proceedings will be conducted "pursuant to the
then-prevailing commercial arbitration rules of the American
Arbitration
Association."
The
relevant
commercial
arbitration
10
1141153
rule, Rule 7(a), expressly provides, in its current form, that
"[t]he arbitrator shall have the power to rule on his or her
own jurisdiction, including any objections with respect
to
the
existence, scope, or validity of the arbitration agreement or
to the arbitrability of any claim or counterclaim." See Chris
Myers Pontiac-GMC, Inc. v. Perot, 991 So. 2d 1281, 1284 (Ala.
2008) (noting that we may take judicial notice of the
commercial arbitration rules of the American Arbitration
Association even when they do not appear in the record).
Thus, pursuant to Rule 7(a), both the question of whether
Federal Insurance has waived its right to enforce the
arbitration provision and the question of whether the
arbitration provision may be enforced against a nonsignatory
such as Reedstrom have been delegated to the arbitrators, and
the arbitrators, not the trial court, must decide those
threshold issues. Accordingly, the trial court erred to the
extent it considered those issues and resolved them adversely
to Federal Insurance so as to justify denying Federal
Insurance's motion to compel arbitration.
2
It is unnecessary for us to consider whether the trial
2
court correctly resolved the waiver and nonsignatory issues
because it was error for the court to consider those issues at
all. Accordingly, we express no opinion on the ultimate
11
1141153
IV.
Federal Insurance has appealed the order of the trial
court denying its motion to compel arbitration of the breach-
of-contract claim asserted against it by Reedstrom. The trial
court did not articulate its rationale for denying the motion
to compel arbitration; however, the denial was apparently
based on the court's resolving at least one of the
arbitrability issues raised by Reedstrom in his favor and
against Federal Insurance. However, because the subject
arbitration provision delegated to the arbitrators the
authority to resolve such issues, the trial court erred by
considering the waiver and nonsignatory issues raised by
Reedstrom instead of granting the motion to
compel
arbitration
and allowing the arbitrators to resolve those issues.
Accordingly, the judgment of the trial court is reversed and
the cause remanded for the trial court to enter an order
granting Federal Insurance's motion to compel arbitration.
REVERSED AND REMANDED.
Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Parker and Murdock, JJ., dissent.
merits of Reedstrom's arguments opposing the motion to compel
arbitration; that determination is for the arbitrators to
make.
12
1141153
MOORE, Chief Justice (dissenting).
I respectfully dissent. The Seventh Amendment to the
United States Constitution provides: "In Suits at common law,
where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved ...." Likewise,
Article I, § 11, Ala. Const. 1901, provides: "[T]he right of
trial by jury shall remain inviolate." Because of these
constitutional safeguards, this Court once held to the
following rule regarding the waiver of jury trials through
arbitration agreements:
"We
must
emphasize
that
any
arbitration
agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to
a trial by jury and, regardless of the federal
courts' policy favoring arbitration, we find nothing
in the [Federal Arbitration Act] that would permit
such a waiver unless it is made knowingly,
willingly, and voluntarily."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929 (Ala. 1997)
(emphasis added). See also Mall, Inc. v. Robbins, 412 So. 2d
1197, 1199 (Ala. 1982) ("This Court recently enunciated three
factors in determining
whether
to enforce a contractual waiver
of the right to trial by jury: (1) whether the waiver is
buried deep in a long contract; (2) whether the bargaining
power of the parties is equal; and (3) whether the waiver was
13
1141153
intelligently
and
knowingly
made"
(citing
Gaylord
Dep't
Stores
of Alabama v. Stephens, 404 So. 2d 586 (Ala. 1981))).
In contrast, I believe that the Court's decision in this
case, like another recent decision of this Court, is a far
departure from Allstar's requirement that a waiver be made
knowingly, willingly, and voluntarily. In this Court's recent
decision of American Bankers Insurance Co. of Florida v.
Tellis, [Ms. 1131244, June 26, 2015] ___ So. 3d ___ (Ala.
2015), this Court held that five policyholders had assented to
a predispute arbitration agreement with an insurance company,
even though they never received or signed copies of the
arbitration agreement. This Court reasoned that the insurance
policies referenced the form numbers of the stand-alone
arbitration provisions, which should have notified the
policyholders that they were agreeing to "something" in
addition to the plain language of the agreement. The Court
concluded
that
the policyholders
ratified the
entire
agreement, including the stand-alone arbitration provisions
that they did not even receive, because they had renewed the
policies and paid the required premiums.
14
1141153
Like the Court's decision in American Bankers, the
Court's decision in the present case makes it easier, instead
of more difficult, for people to unwittingly waive their right
to a trial by jury. In both cases, there was no evidence
indicating that the plaintiffs had signed an arbitration
agreement. Moreover, this case goes even one step further than
American Bankers: the plaintiffs in American Bankers were all
policyholders, but the plaintiff in this case was not even a
party to the original agreement. Dissenting in American
Bankers, I wrote: "Policyholders are entitled to know in
advance what their obligations are and whether they are
expected to give up their rights, instead of being subjected
to a game of insurance-company 'peek-a-boo.'" American
Bankers, ___ So. 3d at ____ (Moore, C.J., dissenting). Under
the reasoning of today's case, insurance companies can play
"peek-a-boo" not only with the constitutional rights of their
policyholders, but also with the constitutional rights of
persons who are not even parties to the insurance policy.
Furthermore, as to the specific issue whether to
arbitrate arbitrability, I believe that the Court's decision
is inconsistent with the precedent of the United States
15
1141153
Supreme Court. As to the issue of arbitrability, the United
States Supreme Court has held: "Courts should not assume that
the parties agreed to arbitrate arbitrability unless there is
'clea[r] and unmistakabl[e]' evidence that they did
so." First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)
(quoting AT&T Techs., Inc. v. Communications Workers of
America, 475 U.S. 643, 649 (1986) (emphasis added)). The Court
further noted in First Options:
"In this manner the law treats silence or ambiguity
about the question 'who (primarily) should decide
arbitrability' differently from the way it treats
silence or ambiguity about the question 'whether a
particular merits-related dispute is arbitrable
because it is within the scope of a valid
arbitration agreement'--for in respect to this
latter question the law reverses the presumption."
514 U.S. at 944-45. Thus, even the United States Supreme
Court, which usually favors construing
ambiguities
in favor of
arbitration, presumes that the issue of arbitrability is for
the court, not the arbitrator, to decide.3
The Court later held that some matters of arbitrability,
3
called
"procedural
arbitrability,"
are
for
the
arbitrator,
not
for the court, to decide. Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 84-85 (2002). However, this Court has held
that the issues "whether a valid agreement to arbitrate" and
"whether the specific dispute falls within the scope of that
agreement"
are
questions
of
"substantive
arbitrability,"
which
are for the court, not the arbitrator, to decide. Brasfield &
Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So. 3d 601, 604
16
1141153
However, in this case, the Court holds that it is for the
arbitrator,
not
the
court,
to
decide
the
issue
of
arbitrability. The Court reasons that, under Anderton v.
Practice-Monroeville, P.C., 164 So. 3d 1094 (Ala. 2014), the
issue of arbitrability is properly submitted to the
arbitrators so long as the arbitration agreement says that
arbitration will be governed by the rules of the American
Arbitration Association ("the AAA") and so long as those rules
provide that arbitrability will be decided by
the
arbitrators.
I dissented in Anderton, and I dissent in this case, partly
because I cannot agree that stating that the rules of the AAA
will govern the arbitration, without more, constitutes "clear
and unmistakable evidence" that the parties intended
to
submit
the issue of arbitrability to the arbitrators. Nothing on the
face of the policy indicates that the arbitrators would have
the power to decide whether they had the power to decide the
case. In the absence of such language, I cannot agree that a
mere reference to the AAA's rules constitutes "clear and
(Ala. 2009). "The question whether an arbitration provision
may be used to compel arbitration of a dispute between a
nonsignatory and a signatory is a question of substantive
arbitrability (or, under the Supreme Court's terminology,
simply 'arbitrability')." Anderton v. Practice-Monroeville,
P.C., 164 So. 3d 1094, 1101 (Ala. 2014).
17
1141153
unmistakable evidence" that the issue of arbitrability was
intended to be submitted to the arbitrator.
I believe that today's decision is the result of
following the crooked path of precedent. See Lorence v.
Hospital Bd. of Morgan Cnty., 294 Ala. 614, 618-19, 320 So. 2d
631, 634-35 (1975) (reproducing a poem by Sam Walter Foss
illustrating the dangers of blindly following precedent). As
I argued in my dissent in American Bankers, the right to trial
by jury has suffered greatly because of the decisions of the
United States Supreme Court, which have not even taken the
Seventh Amendment into account. I continue to maintain, as I
said in American Bankers, that predispute arbitration
agreements are unenforceable under the Seventh Amendment.
American Bankers, ___ So. 3d at ___ (Moore, C.J., dissenting);
see also Ex parte First Exchange Bank, 150 So. 3d 1010, 1010
(Ala. 2013) (Moore, C.J., concurring specially). But even if
predispute arbitration agreements are enforceable, Allstar
requires us to ask whether the agreement was made "knowingly,
intelligently,
and
voluntarily,"
and
First
Options
requires
us
to ask whether there is "clear and unmistakable evidence" that
the issue of arbitrability was intended to be submitted to the
18
1141153
arbitrators. Instead of protecting the right of trial by jury,
we have drifted far from that right, blindly following the
crooked path of precedent, arriving in a place where the right
to trial by jury is but a meaningless phrase in our cherished
Bill of Rights.
I respectfully dissent.
19
1141153
MURDOCK, Justice, (dissenting).
I respectfully dissent.
The main opinion notes that the general rule is that
questions of "arbitrability" are to be decided by the court,
not the arbitrator. __ So. 3d at __ (quoting Anderton v.
Practice-Monroeville, P.C., 164 So. 3d 1094, 1098 (Ala.
2014)). Such questions are to be decided by the arbitrator
only when the parties have "clearly and unmistakably" so
agreed. See First Options of Chicago, Inc. v. Kaplan, 514
U.S. 938, 944 (1995).
The Federal Insurance Company policy underlying this
dispute contains the following provision: "If the parties
cannot resolve the dispute by non-binding mediation, the
parties shall submit the dispute to binding arbitration
pursuant to the then-prevailing commercial arbitration rules
of
the
American
Arbitration
Association,"
i.e.,
the
Commercial
Rules of the American Arbitration Association ("the AAA").
Following
this
provision
is
a
statement
describing
agreed-upon
variations
from
the
particular
procedures
that
would
otherwise
be prescribed by the AAA rules for the selection of the
arbitrators.
20
1141153
In my view, the aforesaid language referencing the use of
the AAA's rules of procedure is sufficient to prescribe the
rules of procedure to be used when a matter otherwise falls
within the categories of disputes the parties have agreed to
arbitrate. (As set out in an earlier provision in the policy,
those categories are disputes "based upon, arising from, or in
consequence of any actual or alleged [insurance] coverage
under this coverage section, or the validity, termination or
breach of this coverage section."). I cannot agree, however,
that this reference to the use of AAA rules of procedure rises
to the level of a "clear and unmistakable" agreement that the
issue of arbitrability is to be one of those categories.4
I concurred in Ex parte Johnson, 993 So. 2d 875 (Ala.
4
2008), in which this Court found a reference to AAA rules of
procedure to be sufficient to assign issues of arbitrability
to the arbitrator. The underlying arbitrability issue in that
case, however, was whether class arbitration was appropriate,
a question that at the time had been deemed to be one of
"procedural arbitrability" by a plurality of the Court in
Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).
Matters of "procedural arbitrability," as discussed in note 5
infra, are not the type of "gateway" or "substantive"
arbitrability questions to which the general rule that,
absent
a "clear and unmistakable" agreement, the courts decide
"arbitrabililty" questions actually applies. In addition,
apart from any reference to the AAA rules, language in one of
the contracts at issue in Johnson directly and explicitly
stated that the issue of arbitrability would be decided by the
arbitrator.
21
1141153
It might be argued that the foregoing analysis is not
applicable to the issue of waiver referenced in the main
opinion because "waiver" was identified in Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79 (2002), as an issue of
"procedural arbitrability" as to which the aforesaid general
rule regarding who decides matters of "arbitrability" would
n o t
a p p l y
i n
t h e
f i r s t
p l a c e . 5
Since this Court issued its opinion in Johnson, federal
courts have indicated that the issue of class certification is
more
properly
considered
a
matter
of
substantive
arbitrability. See, e.g., Reed Elsevier, Inc. v. Crockett,
734 F.3d 594, 598 (6th Cir. 2013) (observing that in Oxford
Health Plans LLC v. Sutter, __ U.S. __, __ n.2, 133 S. Ct.
2064, 2068 n.2 (2013), and Stolt–Nielsen v. AnimalFeeds
International Corp., 559 U.S. 662 (2010), the Supreme Court
itself took care to note the plurality nature of the opinion
in Bazzle and concluding that "recently the [Supreme] Court
has given every indication, short of an outright holding, that
classwide arbitrability is
a
gateway question [for the courts]
rather than a subsidiary one [for the arbitrator]."). Based on
this development in the law (with which I agree), as well as
what I believe now to be a better understanding of applicable
legal principles regarding what is necessary for the parties
to assign an issue of "substantive arbitrability" to an
arbitrator, I could not repeat my Johnson vote today.
In
Howsam, the
United
States
Supreme
Court
explained that
5
the "general rule" discussed above and the issue of
"arbitrability" to which it relates are concerned with what
might be called "substantive arbitrability" issues, rather
than questions of "procedural arbitrability." The Court
explained:
"Linguistically speaking, one might call any
potentially dispositive gateway question a 'question
22
1141153
of arbitrability,' for its answer will determine
whether the underlying controversy will proceed to
arbitration on the merits. The Court's case law,
however, makes clear that, for purposes of applying
the interpretive rule, the phrase 'question of
arbitrability' has a far more limited scope. See 514
U.S., at 942. The Court has found the phrase
applicable in the kind of narrow circumstance where
contracting parties would likely have expected a
court to have decided the gateway matter, where they
are not likely to have thought that they had agreed
that an arbitrator would do so, and, consequently,
where reference of the gateway dispute to the court
avoids the risk of forcing parties to arbitrate a
matter that they may well not have agreed to
arbitrate.
"Thus, a gateway dispute about whether the
parties are bound by a given arbitration clause
raises a 'question of arbitrability' for a court to
decide. See id., at 943-946 (holding that a court
should decide whether the arbitration contract bound
parties who did not sign the agreement); John Wiley
& Sons, Inc. v. Livingston, 376 U.S. 543, 546-547
(1964) (holding that a court should decide whether
an arbitration agreement survived a corporate merger
and bound the resulting corporation). Similarly, a
disagreement about whether an arbitration clause in
a
concededly
binding
contract
applies
to
a
particular type of controversy is for the court.
See, e.g., AT&T Technologies,[ Inc. v. Communcations
Workers of America, 475 U.S. 643,] 651-652 [(1986)]
(holding that a court should decide whether a
labor-management layoff controversy falls
within the
arbitration
clause
of
a
collective-bargaining
agreement); Atkinson v. Sinclair Refining Co., 370
U.S. 238, 241-243 (1962) (holding that a court
should decide whether a clause providing for
arbitration of various 'grievances' covers claims
for damages for breach of a no-strike agreement).
23
1141153
In point of fact, however, this Court and some other courts
have concluded that Howsam did not intend to disturb the
traditional rule that the issue whether a party has waived the
right to arbitration by its conduct during litigation is a
substantive question of arbitrability for the court and not
the arbitrator. See Ocwen Loan Servicing, LLC v. Washington,
939 So. 2d 6, 12-14 (Ala. 2006) (thoroughly discussing the
issue of waiver). Furthermore, the general rule is without
question
applicable
to
the
substantive-arbitrability
signatory
issue in the present case. Accordingly, I must dissent.
Parker, J., concurs.
"At the same time the Court has found the phrase
'question of arbitrability' not applicable in other
kinds of general circumstance where parties would
likely expect that an arbitrator would decide the
gateway matter. Thus '"procedural" questions which
grow out of the dispute and bear on its final
disposition' are presumptively not for the judge,
but for an arbitrator, to decide. John Wiley, supra,
at 557 (holding that an arbitrator should decide
whether the first two steps of a grievance procedure
were completed, where these steps are prerequisites
to arbitration). So, too, the presumption is that
the arbitrator should decide 'allegation[s] of
waiver, delay, or a like defense to arbitrability.'
Moses H. Cone Memorial Hospital[ v. Mercury Constr.
Corp., 460 U.S. 1,] 24-25 [(1982)]."
537 U.S. at 83-84 (final emphasis added). See generally
Anderton, 164 So. 3d at 1104 n.4 (Murdock, J., dissenting).
24 | December 18, 2015 |
59dd6216-b7bb-4f80-88c7-acbe54e85883 | Ex parte Riverfront, LLC. | N/A | 1131061 | Alabama | Alabama Supreme Court | Rel: 11/06/2015
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, 2015-2016
____________________
1131061
____________________
Ex parte Riverfront, LLC
PETITION FOR WRIT OF MANDAMUS
(In re: Fish Market Restaurants, Inc., and George Sarris
v.
Riverfront, LLC)
(Tuscaloosa Circuit Court, CV-13-162)
PARKER, Justice.1
This case was originally assigned to another Justice; it
1
was reassigned to Justice Parker on June 30, 2015.
1131061
Riverfront, LLC, petitions this Court for a writ of
mandamus directing the Tuscaloosa Circuit Court to vacate its
order transferring an action filed against Riverfront by Fish
Market Restaurants, Inc., and George Sarris (hereinafter
referred to collectively as "Fish Market") to the Etowah
Circuit Court. We grant the petition and issue the writ.
Facts and Procedural History
This case first came before this Court in Ex parte
Riverfront, LLC, 129 So. 3d 1008 (Ala. 2013)("Riverfront I").
In Riverfront I, we explained that Riverfront and Fish Market
had entered into a lease for real property located in Gadsden.
The
lease
contained
a
forum-selection
clause
naming
Tuscaloosa
County as the venue in which any litigation concerning the
lease was to be brought.
As set forth in Riverfront I, a disagreement over the
lease led Fish Market to file a declaratory-judgment action
against Riverfront; Fish Market filed its action in the Etowah
Circuit Court. In response to Fish Market's complaint,
"Riverfront
filed
a
motion
to
dismiss
the
declaratory-judgment
action on the basis of improper venue or, in the alternative,
to transfer the case to the Tuscaloosa Circuit Court, pursuant
2
1131061
to the forum-selection clause." 129 So. 3d at 1011.
Significantly, Fish Market did not file a written response to
Riverfront's motion, nor did Fish Market present any oral
argument opposing Riverfront's motion at a hearing held on
Riverfront's motion. Regardless, without stating its reasons
for doing so, the Etowah Circuit Court denied Riverfront's
motion. Riverfront then petitioned this Court for a writ of
mandamus, which resulted in Riverfront I.
In Riverfront I, this Court determined that the lease
containing the forum-selection clause was valid and that the
forum-selection clause was enforceable. In determining that
the forum-selection clause was enforceable, this Court held
that Tuscaloosa County was not a "seriously inconvenient"
forum. 129 So. 3d at 1014. Regarding the issue whether the
2
Tuscaloosa
Circuit
Court
was
a
"seriously
inconvenient"
forum,
Riverfront I noted that Fish Market "did not present any
evidence or argument in the [Etowah] [C]ircuit [C]ourt
Riverfront I was considered by a division of this Court
2
consisting of Justices Stuart, Parker, Murdock, Shaw, and
Bryan. Justice Parker authored the main opinion, in which
Justices Stuart, Shaw, and Bryan concurred; Justice Murdock
concurred in the result, with an opinion. Riverfront I is
thus not a majority opinion. However, the result of the case,
as to which all Justices considering the case concurred, is
that the forum-selection clause in the lease is enforceable.
3
1131061
concerning whether the Tuscaloosa Circuit Court would be a
'seriously inconvenient' forum" and that, before this Court,
"Fish Market ha[d] not presented any argument in opposition to
Riverfront's argument" that Tuscaloosa County was not a
"seriously inconvenient" forum. 129 So. 3d at 1014.
Riverfront I concludes:
"Riverfront has established that it has a clear
legal
right
to
the
enforcement
of
the
forum-selection clause in the lease because Fish
Market has failed to establish that enforcement of
the clause would be unfair or unreasonable. The
[Etowah] [C]ircuit [C]ourt exceeded the scope of its
discretion in denying Riverfront's motion to dismiss
or, in the alternative, to transfer the case to the
Tuscaloosa Circuit Court. We direct the [Etowah]
[C]ircuit [C]ourt either to dismiss this cause,
without prejudice, pursuant to Rule 12(b)(3), Ala.
R. Civ. P., or to transfer the cause to the
Tuscaloosa Circuit Court, the forum agreed to in the
lease."
129 So. 3d at 1015.
On July 30, 2013, the Etowah Circuit Court transferred
the action to the Tuscaloosa Circuit Court. On October 22,
2013, Fish Market filed a motion to transfer the action, then
pending in the Tuscaloosa Circuit Court, back to the Etowah
Circuit Court. In its motion, Fish Market noted that
Riverfront I states that Fish Market failed to present any
argument or evidence in the Etowah Circuit Court in response
4
1131061
to Riverfront's original motion to transfer, which was the
subject of Riverfront I. Fish Market then argues, citing § 6-
3-21.1, Ala. Code 1975, that Tuscaloosa County "would be a
seriously inconvenient forum." On January 24, 2014,
Riverfront filed a response to Fish Market's motion to
transfer. Riverfront argued that "[t]he issue stated in [Fish
Market's] Motion to Transfer has previously been litigated
between the parties, and adjudicated in [Riverfront's] favor
by the Alabama Supreme Court." The Tuscaloosa Circuit Court
held a hearing on Fish Market's motion to transfer on April 1,
2014. Following the hearing, the parties each filed
additional documents presenting arguments similar to their
earlier arguments.
On May 12, 2014, the Tuscaloosa Circuit Court granted
Fish Market's motion to transfer, stating:
"Plaintiff Fish Market Restaurants, Inc. ('Fish
Market'), filed this action in Etowah County on
February
27,
2012.
Defendant
Riverfront,
LLC
('Riverfront'), filed a motion to dismiss or
transfer to Tuscaloosa County on March 26, 2012. The
trial court denied Riverfront's motion on May 24,
2012, and Riverfront filed a [petition for a] writ
of mandamus. The Alabama Supreme Court granted the
writ and the case was transferred to Tuscaloosa
County.
The
Court
determined
that
the
forum-selection clause in the lease was enforceable
because Fish Market failed to establish that
5
1131061
enforcement of the clause would be unfair or
unreasonable. The Alabama Supreme Court also noted
that [Fish Market] did not argue 'that enforcement
would be unreasonable on the basis that the selected
forum [the Tuscaloosa Circuit Court] would be
seriously inconvenient.' Ex parte Riverfront, LLC[,
129 So. 3d 1008, 1014-15] (Ala. 2013) (internal
citations omitted.)
"This matter is before the court on Fish
Market's motion to transfer to Etowah County based
on forum non conveniens. The lease between Fish
Market and Riverfront contains a forum-selection
clause.
However,
a
forum-selection
clause
is
unenforceable if the challenging party can establish
that enforcement of the clause would be 'seriously
inconvenient.' Ex parte D.M. White Constr. Co.,
Inc., 806 So. 2d 370, 372 (Ala. 2001). Pursuant to
Ala. Code [1975,] 6-3-21.1(a),
"'With respect to civil actions filed in an
appropriate venue, any court of general
jurisdiction shall, for the convenience of
parties and witnesses, or in the interest
of justice, transfer any civil action or
any claim in any civil action to any court
of general jurisdiction in which the action
might have been properly filed and the case
shall proceed as though originally filed
therein.'
"[Fish Market] cited several cases and made
numerous arguments as to why Tuscaloosa County would
be seriously inconvenient, and that Etowah County
would be a more convenient forum. The property and
restaurant which is the subject of this litigation
are less than a mile from the Etowah County
courthouse, yet over 100 miles from the Tuscaloosa
County courthouse. The witnesses are in Etowah
County. The restaurant would shut down for a day or
more for the witnesses to travel from Etowah County
to Tuscaloosa County. Transferring a case from one
6
1131061
county to another is proper if it is more convenient
for the parties and witnesses. See Ex parte Ford
Motor Credit, 561 So. 2d 244, 246-247, citing Ex
parte Southern Ry., 556 So. 2d [1082,] 1086 [(Ala.
1989)]: '[Section 6-3-21.1] contemplates transfer of
venue from a county in Alabama where venue is proper
to another county within the state where venue is
also proper, but more convenient for the parties and
witnesses [or in the interest of justice].'
"This Court finds that the forum-selection
clause in the contract is unenforceable because
Tuscaloosa County would be a seriously inconvenient
forum. Further, under Ala. Code [1975,] 6-3-21.1,
Etowah County is more convenient for the parties and
witnesses and it is in the interest of justice for
the case to be transferred.
"Accordingly, Plaintiff's motion to transfer is
due to be GRANTED and the case is hereby TRANSFERRED
to Etowah County."
(Capitalization
in
original.)
Riverfront
then
petitioned
this
Court for a writ of mandamus directing the Tuscaloosa Circuit
Court to vacate its order transferring the action back to the
Etowah Circuit Court.3
Standard of Review
Before this Court ordered Fish Market to file an answer
3
and brief on September 22, 2014, Fish Market filed what it
styled as an "Opposition to [Riverfront's] Petition for Writ
of Mandamus" on July 9, 2014, and a supplement to its
"opposition" on July 15, 2014. Fish Market then filed its
ordered answer and brief on October 8, 2014. We will consider
only the arguments raised in Fish Market's October 8, 2014,
response.
7
1131061
"A writ of mandamus is an extraordinary remedy,
and is appropriate when the petitioner can show (1)
a clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court. Ex parte
Inverness Constr. Co., 775 So. 2d 153, 156 (Ala.
2000). A writ of mandamus may not be issued to
control or review the exercise of discretion, except
in a case of abuse. Ex parte Auto–Owners Ins. Co.,
548 So. 2d 1029, 1030 (Ala. 1989)."
Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).
"[A] trial court's ruling on the question of enforcing a
forum-selection clause is reviewed to determine whether in
enforcing or refusing to enforce the forum-selection clause
the trial court exceeded its discretion." Riverfront I, 129
So. 3d at 1011-12 (citing Ex parte D.M. White Constr. Co., 806
So. 2d 370, 372 (Ala. 2001)).
Discussion
Riverfront argues that the Tuscaloosa Circuit Court
"failed to comply with this Court's mandate from Riverfront
I." Riverfront states that "this Court held that the forum-
selection clause is enforceable and mandated transfer of the
[l]awsuit to Tuscaloosa County." Riverfront then argues that
the Tuscaloosa Circuit Court considered "the same issue that
was decided by this Court -- enforceability of the forum-
8
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selection clause -- and reache[d] a contrary conclusion."
Riverfront
states
that
the
Tuscaloosa
Circuit
Court
determined
that the forum-selection clause is unenforceable on
the
ground
that Tuscaloosa
County is "seriously inconvenient" as
a
forum.
We agree with Riverfront; the Tuscaloosa Circuit
Court
entered
an order addressing an issue this Court had already decided
in Riverfront I, and it decided that issue contrary to this
Court.
As set forth above, in Riverfront I, this Court concluded
that the forum-selection clause was enforceable. Included
within the conclusion that the forum-selection clause is
enforceable is the conclusion that Tuscaloosa County is not a
"seriously inconvenient" forum. In fact, Riverfront argued
extensively in Riverfront I that Tuscaloosa County is not a
"seriously inconvenient" forum. See Riverfront I, 129 So. 3d
at 1014 (agreeing with Riverfront's argument that Tuscaloosa
County is not a "seriously inconvenient" forum). We found
Riverfront's
argument
persuasive
under
the
following
standard:
"'"In order to demonstrate that the chosen forum is
seriously inconvenient, the party challenging the
clause must show that a trial in that forum would be
so gravely difficult and inconvenient that the
challenging party would effectively be deprived of
9
1131061
his day in court. Ex parte Northern Capital Res.
Corp., 751 So. 2d [12] at 15 [(Ala. 1999)]."'"
129 So. 3d at 1014 (quoting Ex parte Soprema, Inc., 949 So. 2d
907, 913 (Ala. 2006)(quoting in turn Ex parte Rymer, 860 So.
2d 339, 342-43 (Ala. 2003))). Although Riverfront I is a
4
plurality opinion, a majority of this Court agreed to the
conclusion. Therefore, the mandate of this Court was that the
Etowah Circuit Court transfer Fish Market's action to the
Tuscaloosa Circuit Court because the forum-selection clause
was enforceable and Tuscaloosa County was not a "seriously
inconvenient" forum. The Etowah Circuit Court followed this
Court's mandate and transferred the action to the Tuscaloosa
Circuit Court. The Tuscaloosa Circuit Court's judgment, if it
is allowed to stand, would abrogate this Court's mandate by
requiring the Etowah Circuit Court to hear Fish Market's
We also relied upon the following portion of Ex parte
4
D.M. White, 806 So. 2d at 372:
"[A] ... forum-selection clause is enforceable
unless the challenging party can establish that ...
'"... enforcement would be unreasonable on the basis
that the [selected] forum would be seriously
inconvenient."' The burden on the challenging party
is difficult to meet. Ex parte CTB, [Inc., 782 So.
2d 188 (Ala. 2000)]. See also Professional Ins.
Corp. v. Sutherland, 700 So. 2d 347, 351 (Ala.
1997)."
10
1131061
action, which this Court determined the Etowah Circuit Court
could not do based on the enforceable forum-selection clause
in the lease.
The Tuscaloosa Circuit Court appears to be under the
mistaken impression that, because Fish Market failed
to
assert
any argument in the Etowah Circuit Court or before this Court
in Riverfront I, this Court did not decide the issue whether
Tuscaloosa County is a "seriously inconvenient" forum.
However, this Court clearly determined that the forum-
selection clause was enforceable. Necessary to, and an
essential part of, our conclusion in Riverfront I is the
holding
that
Tuscaloosa
County
is
not
a
"seriously
inconvenient" forum. That conclusion was reached regardless
of the fact that Fish Market failed to raise the argument;
Riverfront did raise the argument, and it was decided by this
Court. The Tuscaloosa Circuit Court does not have the
authority to overrule or disregard this Court's decision.
We note that our mandate in Riverfront I was directed to
the Etowah Circuit Court and not to the Tuscaloosa Circuit
Court. However, the Tuscaloosa Circuit Court's order would
essentially require the Etowah Circuit Court to violate this
11
1131061
Court's mandate. We ordered the Etowah Circuit Court to
transfer the action to the Tuscaloosa Circuit Court based on
the forum-selection clause in the lease, which we held was
enforceable.
The
Tuscaloosa
Circuit
Court's
order
transferring the action to the Etowah Circuit Court is an
effort to order the Etowah Circuit Court to take action in
direct contradiction of this Court's mandate to it. The
Tuscaloosa Circuit Court does not have the authority to
override a mandate of this Court.
Moreover, this Court's decision in Riverfront I is
binding on the parties, including Fish Market:
"As to issues actually determined by a judgment
in
a
mandamus
proceeding,
the
judgment
is
conclusive,
thus
precluding
the
parties
from
relitigating the same issues, and the same is true
as to issues necessarily determined in the judgment.
It has been held that a judgment in mandamus also
precludes the litigation of issues which could have
been raised and resolved in the prior proceeding,
but were not in fact resolved, at least where the
cause of action in the prior mandamus action is
identical to that in the later action in which the
res judicata effect of the judgment in the mandamus
suit is invoked."
52 Am. Jur. 2d Mandamus § 469 (2011)(footnotes omitted). As
set forth above, this Court did determine in Riverfront I that
Tuscaloosa County is not a "seriously inconvenient" forum;
12
1131061
that determination is binding on the parties and may not now
be relitigated. Further, Fish Market could have challenged
Tuscaloosa County as a "seriously inconvenient" forum in the
Etowah Circuit Court and before this Court in Riverfront I.
Fish Market did not do so and may not now have a second bite
at the forum apple and relitigate that issue. The matter has
been decided.
In its response, Fish Market argues that the Tuscaloosa
Circuit Court's order transferring the action had independent
bases. First, Fish Market states that the Tuscaloosa Circuit
Court's order was based on its holding that the forum-
selection clause is unenforceable because the Tuscaloosa
Circuit Court is a "seriously inconvenient" forum. As set
forth above, this Court held in Riverfront I that the forum-
selection
clause
is
enforceable
because
the
Tuscaloosa
Circuit
Court is not a "seriously inconvenient" forum. Second, Fish
Market states that the Tuscaloosa Circuit Court's order is
independently based on § 6-3-21.1, Ala. Code 1975, which
"provides when a civil action must be transferred under the
doctrine of forum non conveniens." Ex parte Indiana Mills &
Mfg., Inc., 10 So. 3d 536, 539 (Ala. 2008). Fish Market
13
1131061
points out that Riverfront makes no argument in its mandamus
petition concerning the Tuscaloosa Circuit Court's holding
that Fish Market's action was due to be transferred based on
§ 6-3-21.1. Accordingly, Fish Market argues, Riverfront has
failed to demonstrate it has a clear legal right to the relief
sought because Riverfront did not make any
argument
concerning
this independent basis for the Tuscaloosa Circuit Court's
order. We do not find Fish Market's argument persuasive.
Section 6-3-21.1 is not applicable in this case. Section
6-3-21.1(a), Ala. Code 1975, states, in pertinent part:
"With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
have been properly filed and the case shall proceed
as though originally filed therein."
(Emphasis added.) Section 6-3-21.1 only applies if there is
more than one court "in which the action might have been
properly filed." In Riverfront I, we held that the forum-
selection clause is enforceable and that the Tuscaloosa
Circuit Court is the only court in which Fish Market's action
against Riverfront may be prosecuted. After Riverfront I, the
Etowah Circuit Court was no longer a court in which Fish
14
1131061
Market's
action
"might
have
been
properly
filed."
Accordingly, there was no reason for Riverfront to address
that purportedly independent basis of the Tuscaloosa Circuit
Court's order because § 6-3-21.1 has no applicability in this
case. Fish Market's argument is unpersuasive.
Conclusion
Based on the foregoing, we grant Riverfront's mandamus
petition and direct the Tuscaloosa Circuit Court to vacate its
order transferring the action to the Etowah Circuit Court.
PETITION GRANTED; WRIT ISSUED.
Stuart, Main, and Bryan, JJ., concur.
Murdock, J., concurs in part and concurs in the result.
Shaw, J., dissents.
Bolin and Wise, JJ., recuse themselves.
15
1131061
MURDOCK, Justice (concurring in part and concurring in the
result).
I write to explain my agreement with certain aspects of
the main opinion and to explain why I part company with the
main opinion in certain limited respects.
First, I take note of the different purposes and natures
of the "seriously inconvenient forum" test referenced in Ex
parte D.M. White Construction Co., 806 So. 2d 370, 372 (Ala.
2001), and the forum non conveniens test of § 6-3-21.1(a),
Ala. Code 1975. The purpose of a forum-selection clause in
the first place is to allow the parties, by agreement, to
override the otherwise applicable rules (whether derived from
statutes or rules of procedure) regarding venue and forum
selection, including the forum non conveniens test. Lest we
nullify the ability of the parties to override the normal
rules concerning forum non conveniens, the test for, in turn,
overriding
the parties' agreement as to forum
necessarily
must
be different and more demanding than the otherwise applicable
forum non conveniens rule. Indeed, we have held that, in
order to satisfy the "seriously inconvenient
forum"
test, "the
party challenging the clause must show that a trial in [the
16
1131061
chosen] forum would be so gravely difficult and inconvenient
that the challenging party would effectively be deprived of
his day in court." Ex parte Rymer, 860 So. 2d 339, 342 (Ala.
2003) (citing Ex parte Northern Capital Res. Corp., 751 So. 2d
12, 15 (Ala. 1999)).
The foregoing is an unspoken corollary of the conclusion
reached in the main opinion that "[s]ection 6-3-21.1 is not
applicable in this case." __ So. 3d at __. In addition to the
observations made above, I agree with the grounds for this
conclusion otherwise stated in the main opinion.
I also agree with the main opinion's understanding of the
mandate of this Court in Ex parte Riverfront, LLC, 129 So. 3d
1008 (Ala. 2013) ("Riverfront I"). I momentarily part company
with the main opinion only as to my willingness to consider
certain briefs submitted by
Fish Market Restaurants, Inc., and
George Sarris (hereinafter referred to collectively as "Fish
Market") and as to one other aspect of the main opinion.
5
I see no reason not to consider the briefs submitted to
5
this Court by Fish Market before October 8, 2014. I
respectfully disagree with the approach to the contrary noted
in note 3 of the main opinion. __ So. 3d at __ n.3.
17
1131061
The main opinion states that "[n]ecessary to, and an
essential part of, our conclusion in Riverfront I is the
holding
that
Tuscaloosa
County
is
not
a
'seriously
inconvenient' forum." __ So. 3d at __. Although I certainly
would be inclined to agree that the test for determining
whether a forum is "seriously inconvenient" as stated above is
not met in this case based on the materials before us, I would
stop short of saying that it was necessary to our judgment in
Riverfront I to decide that issue. Indeed, as we noted in
Riverfront I, and as the trial court in the present case
reiterated, Fish Market did not argue in Riverfront I that
enforcement of the forum-selection clause would violate the
seriously inconvenient test. Yet it was Fish Market's burden,
as the plaintiff, to have made and carried that argument in
Riverfront I. Thus, I simply would say that having litigated
in the Etowah Circuit Court, and ultimately in this Court, the
issue of the enforceability of the forum-selection clause
without the introduction of this argument, Fish Market cannot
18
1131061
now use this argument as a basis for a "second bite" at that
issue.6
Justice Shaw is correct when he states in his dissent
6
that, in Riverfront I, I declined to provide the fifth vote in
support of a substantive analysis of the "seriously
inconvenient forum" issue. I declined to do so because the
party who had the burden of raising and pursuing that issue --
Fish Market -- had not raised and pursued it.
The fact that I did not join a substantive analysis of an
issue not properly before this Court does not detract from the
fact that I provided the fifth vote for the ultimate
"decision" and "judgment" reached in Riverfront I. That
decision and judgment -- and the mandate that resulted
therefrom -- was that the forum-selection clause was
enforceable and that the trial of this case must be conducted,
if at all, in the Tuscaloosa Circuit Court. That is, I
provided the fifth vote for the following "result" announced
at the end of the opinion in Riverfront I:
"Riverfront has established that it has a clear
legal
right
to
the
enforcement
of
the
forum-selection clause in the lease .... We direct
the circuit court either to dismiss this cause,
without prejudice, pursuant to Rule 12(b)(3), Ala.
R. Civ. P., or to transfer the cause to the
Tuscaloosa Circuit Court, the forum agreed to in the
lease."
129 So. 3d at 1015.
What "law of the case" might or might not have informed
the Court's "decision" or "judgment" as to where any trial
must be conducted is not the same as the decision or judgment
itself. The opinion in Riverfront I did not garner five votes
for a substantive analysis of the "seriously inconvenient"
issue, and the dissent therefore correctly observes that
"[t]here [was] no 'decision' of a majority of the Court in
Riverfront I rejecting an argument that 'enforcement [of the
forum-selection clause] would be unreasonable on the basis
19
1131061
that the selected forum would be seriously inconvenient.'"
___ So. 3d at ___. But that does not mean that no decision
was reached in Riverfront I as to where a trial of the case
must be conducted. The order of the Court set out at the end
of the opinion is no less a mandate because all the Justices
voting for it did not agree on all the potential reasons
therefor. Five Justices did agree on the order itself.
20
1131061
SHAW, Justice (dissenting).
Riverfront, LLC, petitions this Court for a writ of
mandamus directing the Tuscaloosa Circuit Court to vacate its
order transferring this lease dispute to the Etowah Circuit
Court. A prior decision of this Court, Ex parte Riverfront,
LLC, 129 So. 3d 1008 (Ala. 2013) ("Riverfront I"), enforced a
forum-selection clause in the lease agreement between
Riverfront and the plaintiffs below, Fish Market Restaurants,
Inc., and George Sarris (hereinafter collectively referred to
as "Fish Market"), and directed that the action either be
transferred from Etowah County to Tuscaloosa County or be
dismissed. For the reasons discussed below, I would deny the
petition. Therefore, I respectfully dissent.
Facts and Procedural History
The underlying action commenced when Fish Market filed a
declaratory-judgment action against Riverfront in the Etowah
Circuit Court. Riverfront filed a motion challenging venue,
arguing that a forum-selection clause in a lease between the
parties required Fish Market's action to be filed in
Tuscaloosa County. The parties disputed whether the lease
containing the forum-selection clause was properly entered
21
1131061
into; the Etowah Circuit Court was called upon to decide
whether the lease containing the clause was a product of a
"meeting of the minds" between the parties. The court
apparently agreed with Fish Market, that there had been no
meeting of the minds, and refused to transfer the action.
Riverfront petitioned for mandamus relief; Fish Market raised
that same meeting-of-the-minds argument in response to the
mandamus petition.
The main opinion in Riverfront I is essentially divided
into two parts: the first discusses whether there was a
meeting of the minds as to the lease. Specifically, Fish
Market argued that there was no meeting of the minds, which
argument this Court rejected. 129 So. 3d at 1013. The main
opinion in that decision then turned to the second issue:
Riverfront's argument "that Fish Market has failed to
demonstrate that the forum-selection clause is unreasonable
because Fish Market did not present any evidence or argument
in
the circuit court concerning whether the Tuscaloosa
Circuit
Court would be a 'seriously inconvenient' forum." 129 So. 3d
at 1014. Citing Ex parte Soprema, Inc., 949 So. 2d 907, 913
(Ala. 2006), the main opinion in Riverfront I stated:
22
1131061
"We conclude that Fish Market, the party
opposing enforcement of the forum-selection clause,
failed to present any evidence below or any argument
before this Court '"that enforcement of the [forum-
selection] clause would be unfair on the basis that
the [lease] '"[w]as affected by fraud, undue
influence, or overweening bargaining power or ...
[that] enforcement would be unreasonable on the
basis that the selected forum [the Tuscaloosa
Circuit Court] would
be seriously inconvenient."'"'"
Riverfront I, 129 So. 3d at 1014-15 (alterations in Riverfront
I) (quoting Ex parte D.M. White Constr. Co., 806 So. 2d 370,
372 (Ala. 2001), quoting in turn other cases). This Court
granted Riverfront's petition and directed the Etowah Circuit
Court either to dismiss the action or to transfer it to the
Tuscaloosa Circuit Court. Thereafter, the Etowah Circuit
Court entered an order transferring the action to the
Tuscaloosa Circuit Court.
Following the transfer, Fish Market filed in the
Tuscaloosa Circuit Court a motion seeking to transfer the
action back to the Etowah Circuit Court on the basis of, among
other things, the doctrine of forum non conveniens. See Ala.
Code 1975, § 6-3-21.1(a) ("With respect to civil actions filed
in an appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses, or in the
interest of justice, transfer any civil action or any claim in
23
1131061
any civil action to any court of general jurisdiction in which
the action might have been properly filed and the case shall
proceed as though originally filed therein."). Specifically,
Fish Market contended that "Tuscaloosa County would be a
seriously inconvenient forum and would effectively deny [Fish
Market] the right to obtain and present testimony from a large
number of witnesses."
The Tuscaloosa Circuit Court, following a hearing,
granted Fish Market's motion on two alternate theories:
"This Court finds that [(1)] the forum-selection
clause in the contract is unenforceable because
Tuscaloosa County would be a seriously inconvenient
forum. Further, [(2)] under Ala. Code [1975,]
6-3-21.1, Etowah County is more convenient for the
parties and witnesses and it is in the interest of
justice for the case to be transferred."
(Emphasis added.) In response, Riverfront filed the instant
petition for a writ of mandamus; we subsequently ordered
answers and briefs.
Discussion7
The main opinion sets out the correct standard of review.
7
___ So. 3d at ___. I see no reason to repeat it here.
24
1131061
After explaining how this case is eligible for mandamus
review, Riverfront's entire argument on the merits of the
petition is as follows:
"Alabama law requires a trial court's strict
compliance with the mandate of an appellate court.
[Ex parte] Edwards, 727 So. 2d [792,] 794 [(Ala.
1998)] (holding that when an appellate court remands
a case, the trial court's authority is limited to
compliance with the directions provided by the
appellate court). 'The appellate court's decision is
final as to all matters before it, becomes the law
of the case, and must be executed according to the
mandate.' Ex parte Alabama Power Co., 431 So. 2d 151
(Ala. 1983). On remand, the trial court's duty is to
comply with the mandate and it may not revisit or
resurrect issues decided by the appellate court.
Gray v. Reynolds, 553 So. 2d 79, 81 (Ala. 1989).
Accord Jones v. Regions Bank, 25 So. 3d 427, 438
(Ala. 2009); Ex parte Mobil Oil Corp., 613 So. 2d
350, 352 (Ala. 1993)('On remand, a trial court is
not free to reconsider issues finally decided by the
appellate court and must comply with the appellate
mandate.'); Erbe v. Eady, 447 So. 2d 778, 779 (Ala.
Civ. App. 1984) ('[t]he trial court is not free to
reconsider issues finally decided in the mandate').
"In
Riverfront
I,
this
Court
finally
decided
the
issue of enforceability of the forum-selection
clause.
After
considering
the
fairness
and
reasonableness of the forum-selection clause (i.e,
whether venue in Tuscaloosa Circuit Court would be
'seriously inconvenient'), this Court held that the
forum-selection clause is enforceable and mandated
transfer of the Lawsuit to Tuscaloosa County. [The
trial court's] Order considers the same issue that
was decided by this Court -- enforceability of the
forum-selection clause -- and reaches a contrary
conclusion. In stark contrast to the Riverfront I
mandate, [the trial court's] Order held that the
25
1131061
forum-selection clause is unenforceable on the
grounds
that
it
is
unreasonable
('seriously
inconvenient') and transferred the Lawsuit from
Tuscaloosa County.
"[The trial court's] Order simply cannot be
squared with the mandate from Riverfront I. This
Court's instructions were clear and concise: because
Riverfront has a 'clear legal right to the
enforcement of the forum-selection clause' the Court
required the transfer of the Lawsuit 'to the
Tuscaloosa Circuit Court, the forum agreed to in the
lease.' Riverfront I[, 129 So. 3d] at 1015. The
Court's
instructions
did
not
allow
for
reconsideration
of
its
final
determination.
Therefore, the Court should grant the writ and
compel [the trial court] to vacate the Order."
Petition, at 15-17.
I believe that the first paragraph more or less
accurately states the law: A trial court must comply with an
appellate court mandate, Ex parte Edwards, 727 So. 2d 792
(Ala. 1998); an appellate court's decision is final as to all
matters before it, becomes the law of the case, and must be
executed by the trial court according to that mandate, Ex
parte Alabama Power Co., 431 So. 2d 151 (Ala. 1983); and the
trial court may not revisit or resurrect issues decided by the
appellate court, Gray v. Reynolds, 553 So. 2d 79 (Ala. 1989),
Ex parte Mobil Oil Corp., 613 So. 2d 350 (Ala. 1993), Erbe v.
Eady, 447 So. 2d 778 (Ala. Civ. App. 1984), and Jones v.
26
1131061
Regions Bank, 25 So. 3d 427 (Ala. 2009). In the instant case,
we must decide what the "decision" is in Riverfront I that
became the "law of the case" and formed a "mandate" that the
Tuscaloosa Circuit Court could not "revisit." Riverfront
8
contends, as noted above, that the decision in Riverfront I
"finally decided the issue of enforceability of the
forum-selection clause." As explained below, I disagree.
Riverfront I is a plurality opinion. Before deciding the
issue of the enforceability of the forum-selection clause,
i.e., whether it was fair and whether the selected forum
(Tuscaloosa County) would be seriously inconvenient, the main
opinion decided the issue whether there was a "meeting of
minds" with respect to the lease that contained the forum-
selection clause. That discussion ends at the bottom of page
1013 of the main opinion. The next page, 129 So. 3d at 1014,
starts a discussion of whether "Fish Market has failed to
The "mandate" cases cited by Riverfront all involve the
8
context of the failure of trial courts whose judgments had
previously been reversed to follow the mandate issued to them.
In the present case, this Court issued a writ of mandamus to
the Etowah Circuit Court; the Tuscaloosa Circuit Court was not
the recipient of our writ. Riverfront cites no authority for
the proposition that a writ of mandamus to one circuit court
binds a different circuit court that was not a respondent in
the mandamus proceedings.
27
1131061
demonstrate that the forum-selection clause is unreasonable
because ... the Tuscaloosa Circuit Court would be a 'seriously
inconvenient' forum."
In his special writing concurring in the result in
Riverfront I, Justice Murdock "respectfully decline[d] ... to
join the discussion in note 2 and the accompanying text of the
main opinion as to whether the clause [was an outbound forum-
selection clause or an inbound forum-selection clause]." In
the next paragraph, he stated: "it appears to me that the only
question presented in this case is the one presented by the
position taken by [Fish Market] that the forum-selection
clause ... was not a function of 'a clear meeting of the minds
between the parties.'" 129 So. 3d at 1016 (emphasis added).
Justice Murdock then discusses the meeting-of-the-minds
argument and quotes several statements from the main opinion.
His discussion of the last such quotation is as follows:
"I fully agree with the statement in the main
opinion that 'Fish Market has not directed this
Court's attention to any authority indicating that
the ... testimony of an undisputed signatory to a
contract stating simply that he never received an
original copy of the contract demonstrates that the
parties had not mutually assented to the terms of
the contract.'"
28
1131061
129 So. 3d at 1017. The quoted language from the main opinion
appears as the last statement on page 1013. Justice Murdock's
next sentence in his writing states as follows: "I believe the
foregoing is sufficient analysis upon which to decide this
case, and I express no agreement or disagreement with any
portion of the analysis that follows the latter statement in
the main opinion." Id. (emphasis added). Again, the "latter
statement" is the statement that concludes page 1013. As
noted above, to everything that "follows" page 1013, Justice
Murdock "expressed no agreement or disagreement." As further
noted above, the second portion of the main opinion addressing
whether "the Tuscaloosa Circuit Court would be a 'seriously
inconvenient' forum" began on page 1014. I can only read this
to mean that Justice Murdock did not concur with the analysis
in the main opinion on the issue whether the Tuscaloosa
Circuit Court was a "convenient" forum, i.e., everything that
followed page 1013. Therefore, the portion of Riverfront I
addressing the issue of Fish Market's failure to challenge the
enforcement of the forum-selection clause on the basis that
the selected forum would be seriously inconvenient did not
obtain a majority of the Court. The only holding of a
29
1131061
majority that can safely be discerned is that there exists a
contract containing a forum-selection clause -- specifically,
the main opinion, which only four members of the Court joined,
and the portions of the main opinion that Justice Murdock
stated that he joined: "[T]he statement in the main opinion
that 'Fish Market has not directed this Court's attention to
any authority indicating that ... the parties had not mutually
assented to the terms of the contract," 129 So. 3d at 1017,
i.e., "the only question presented in this case[:] [whether]
the forum-selection clause in the January 18, 2007, contract
was not a function of 'a clear meeting of the minds between
the parties.'" 129 So. 3d at 1016 (emphasis added).
An opinion of this Court joined by less than five
Justices is not a "decision" of this Court. See Rule 16(b),
Ala. R. App. P. ("The concurrence of five justices in the
determination of any cause shall be necessary and sufficient
thereto ...."); First Nat'l Bank of Mobile v. Bailes, 293 Ala.
474, 479, 306 So. 2d 227, 231 (1975) (holding that an opinion
joined by four of five Justices "did not constitute a holding
of the Court"). Cf. Ala. Code 1975, § 12–3–16 ("The decisions
of the Supreme Court shall govern the holdings and decisions
30
1131061
of the courts of appeals ...."), and KGS Steel, Inc. v.
McInish, 47 So. 3d 780, 781 (Ala. Civ. App. 2009) (noting that
only "'decisions of the majority' of the Supreme Court" are
"decisions" for purposes of § 12–3–16 (quoting Willis v.
Buchman, 30 Ala. App. 33, 40, 199 So. 886, 892 (1940) (opinion
after remand))). Nor would such decision establish the law
9
of the case. Phoenix Ins. Co. v. Stuart, 289 Ala. 657, 664,
270 So. 2d 792, 798 (1972) (holding that where only three
members of a seven-member court agreed to a certain issue, the
holding was not the law of the case), and Holk v. Snider, 295
Ala. 93, 94, 323 So. 2d 425, 426 (1976) ("[T]he resolution of
an issue must be concurred in by the requisite number of
judges...."). There is no "decision" of a majority of the
Court in Riverfront I rejecting an argument that "enforcement
[of the forum-selection clause] would be unreasonable on the
There is an exception. Rule 16(b), Ala. R. App. P.,
9
provides that when, by reason of disqualification, the number
of Justices competent to sit in the determination of a cause
is reduced, a majority shall suffice, but at least four
Justices must concur. The concurrence of four Justices of a
seven-member court "would suffice" as a majority only when the
Court
is
reduced
to
seven
members
by
reason
of
disqualification. See Ex parte State of Alabama, [Ms.
1140643, June 12, 2015] ___ So. 3d ___, ___ n.5 (Ala. 2015)
(Shaw, J., dissenting). That was not the scenario in
Riverfront I.
31
1131061
basis
that
the
selected
forum
would
be
seriously
inconvenient," Riverfront I, 129 So. 3d at 1014-15 (internal
quotation marks omitted); thus, there is no mandate or law of
the case as to that issue. With no decision, law of the case,
or mandate, the Tuscaloosa Circuit Court was free to revisit
the issue whether that circuit was a seriously inconvenient
forum.
The main opinion here states that "a majority of this
Court"
agreed that Tuscaloosa was not a seriously inconvenient
forum. It cites Riverfront I, 129 So. 3d at 1014, as stating
that agreement. Justice Murdock stated, however, that he did
not agree with what was on that page or the ones that
followed. He even stated that a different issue, namely, a
meeting of the minds, was "the only question presented in this
case" and that that formed "sufficient analysis upon which to
decide this case." 129 So. 3d at 1016, 1017. He thus did not
cast the fifth vote necessary to form a majority on the issue
whether Tuscaloosa County was seriously inconvenient as a
forum.
The main opinion here takes the position that a transfer
to the Etowah Circuit Court would "abrogate this Court's
32
1131061
mandate" in Riverfront I. ___ So. 3d at ___. As noted above,
the only mandate of this Court was what five Justices agreed
to: That there was a meeting of the minds on the agreement of
the parties to the forum-selection clause and that the case
was due to be transferred under that provision. There was no
majority on the issue whether Tuscaloosa County was a
seriously inconvenient forum. Although a review of whether
the forum selected would be
seriously
inconvenient is normally
a part of, or inherent in, an analysis of whether a forum-
selection clause is to be enforced, Ex parte D.M. White
Constr. Co., 806 So. 2d 370, 372 (Ala. 2001), Justice
Murdock's special writing in Riverfront I specifically
disclaimed agreement (or disagreement) as to that portion of
the analysis.
In any event, Fish Market argued, and the Tuscaloosa
Circuit Court addressed, an alternate theory for transferring
the case not discussed in Riverfront I: That the doctrine of
forum non conveniens found in Ala. Code 1975, § 6-3-21.1,
required a transfer. The court stated: "Further, under Ala.
10
Section 6-3-21.1(a) states, in pertinent part: "[A]ny
10
court of general jurisdiction shall, for the convenience of
parties and witnesses, or in the interest of justice, transfer
33
1131061
Code [1975], § 6-3-21.1, Etowah County is more convenient for
the parties and witnesses and it is in the interest of justice
for the case to be transferred." There is no law of the case
on the issue whether Tuscaloosa County was inconvenient under
a § 6-3-21.1 analysis. And even if there was, Riverfront I in
no way impacts whether the "interest of justice"--a separate
analysis--would, under § 6-3-21.1, require a transfer.
Further, Riverfront wholly fails even to address the fact
that the Tuscaloosa Circuit Court transferred this case
pursuant to § 6-3-21.1. Fish Market argues that Riverfront
did not show a clear legal right for relief on this issue
because it makes no argument in its mandamus petition. The
11
main opinion in this case states in response: "We do not find
Fish Market's argument persuasive." ___ So. 3d at ___. The
any civil action or any claim in any civil action to any court
of general jurisdiction in which the action might have been
properly filed ...." This Code section "is 'compulsory,' Ex
parte Sawyer, 892 So. 2d 898, 905 n.9 (Ala. 2004), and the use
of the word 'shall' is 'imperative and mandatory.' Ex parte
Prudential Ins. Co. of America, 721 So. 2d 1135, 1138 (Ala.
1998)." Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536,
542 (Ala. 2008).
Fish Market also contends that Riverfront failed to
11
preserve the forum non conveniens challenge because it did not
address it in the trial court.
34
1131061
analysis that follows this statement, however, does not
address where in the petition Riverfront in fact made a forum
non conveniens argument. It cannot, because Riverfront made
no such argument. Instead, the main opinion here makes the
argument on behalf of Riverfront, which is contrary to the
standard for issuance of the writ: "A writ of mandamus is an
extraordinary remedy, and is appropriate when the petitioner
can show (1) a clear legal right to the order sought ...." Ex
parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).
Here, the main opinion is both making and addressing legal
arguments for a party, which this Court has said is not its
function. Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251
(Ala. 1994). As this Court has stated in the context of
mandamus petitions:
"The burden of establishing a clear legal right
to the relief sought rests with the petitioner. [Ex
parte Cincinnati Insurance Cos., 806 So. 2d 376, 379
(Ala. 2001)]. It is not this Court's function to do
independent
research
to
determine
whether
a
petitioner for a writ of mandamus has established a
clear legal right."
Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So. 2d 967,
972 (Ala. 2007). Riverfront cannot demonstrate a clear legal
35
1131061
right to the relief sought if it fails to address a basis for
the lower court's decision.
The main opinion curiously states that Riverfront was
not, in its mandamus petition, required to challenge the trial
court's application of § 6-3-21.1. Why not? Although the
trial court's application of § 6-3-21.1 might be incorrect,
the very purpose of mandamus review is for a petitioner to
point out a lower court's error, not for this Court to
independently search for such error. The main opinion in this
case stands for the following proposition: A petitioner for a
writ of mandamus need not raise, argue, or even mention a
lower court's error if, in fact, this Court's own independent
research and analysis shows that the lower court erred.
It is true that Fish Market should not be rewarded for
belatedly arguing the lack of convenience of the parties after
the action was transferred following Riverfront I. That said,
Riverfront has not shown a decision of this Court establishing
the law of the case on the issue of the relative convenience
of the forums. Under the particular facts of this case, the
Court should not prevent Fish Market from getting a "second
bite at the apple" by making Riverfront's case for it.
36
1131061
Riverfront has not shown "a clear legal right to the order
sought" or "an imperative duty upon the respondent to
perform." Ex parte BOC, 823 So. 2d at 1272. Thus, I believe
the petition is due to be denied.
37 | November 6, 2015 |
d39d1122-872c-4a7f-8e06-a0d63f38eca0 | Kruse v. Vanderbilt Minerals, LLC | N/A | 1121382 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1121382
____________________
Frank Kruse, administrator ad litem for the
Estate of Dansby W. Sanders
v.
Vanderbilt Minerals, LLC, f/k/a R.T. Vanderbilt Company,
Inc.
Appeal from Mobile Circuit Court
(CV-10-900327)
MURDOCK, Justice.
Frank Kruse, administrator ad litem for the estate of
Dansby W. Sanders, appeals from a summary judgment entered by
the Mobile Circuit Court in favor of R.T. Vanderbilt Company,
1121382
Inc., now known as Vanderbilt Minerals, LLC
("Vanderbilt"),
in
a wrongful-death action. We reverse and remand.
I. Facts and Procedural History
Dansby
W.
Sanders
("Dansby")
was
diagnosed
with
mesothelioma on February 11, 2009; he sued numerous
defendants
on February 11, 2010, alleging that he had been exposed to
asbestos through products manufactured and distributed by
those defendants during the 37-year period he worked for
Mobile Paint Company ("Mobile Paint"). Dansby filed an
amended complaint on September 1, 2010, naming Vanderbilt as
a defendant because of its role as a supplier of industrial
talc under the brand name "Nytal."
Dansby worked for Mobile Paint from 1965 to 2002. Mobile
Paint manufactured numerous types of architectural and
industrial paint. Until 1975, Mobile Paint's production
facility was located on Conception Street in the City of
Mobile ("the Conception plant"). It is undisputed that the
Conception plant was an antiquated building without adequate
ventilation and that the facility was dusty. In 1975, Mobile
Paint moved its operations to a band-new facility located in
Theodore ("the Theodore plant"). The Theodore plant had a
2
1121382
ventilation system and there were exhaust systems over the
individual paint-mixing vats. Dansby worked at both
facilities.
Each type of paint manufactured by Mobile Paint was
assembled by a recipe called a "batch ticket." Each batch
ticket indicated the type and amount of raw materials to be
used for a particular type of paint. Each type of raw
material on the batch ticket was assigned a code number.
Mobile Paint workers referred to the dry raw materials
generally as "pigment"; the dry raw materials included
colors,
fillers, hardeners, and talc. Many paints manufactured by
Mobile Paint, but not all, contained talc. At Mobile Paint,
code numbers 342 and 343 referred to specific types of talc:
code 342 referred to "Nytal 400" and code 343 referred to
"Nytal 300." Although workers usually identified raw
materials by code numbers, some workers could relate code
numbers to brand names, including Dansby's coworkers, Jimmy
Sanders (no relation to Dansby) and James Nord.
Mobile
Paint
consisted
of
separate
departments,
including, but not limited to, the "bull gang," warehouse,
production department, and filling department. The bull gang
3
1121382
received the materials on the loading dock and transported
them from boxcars and trucks to the warehouse, where they were
stored until needed. The mixing of raw materials occurred in
the production department. After a batch of paint was mixed,
it went to the filling department, where workers filled
containers with the mixed paint.
During his first three months at Mobile Paint, Dansby
worked on the bull gang. At the Conception plant, all raw
materials were unloaded by hand because there were no
forklifts. Jimmy Sanders testified that Nytal talc was one of
the products unloaded from boxcars. Dansby testified that
1
the boxcars were "all kinds of dusty"; coworker James Nord
testified that the boxcars were "totally dusty"; and Jimmy
2
Sanders testified that the dust in the boxcars was very bad,
almost like smoke, because of bags that had broken open.
Jimmy Sanders testified that he did not work on the bull
1
gang at the same time as Dansby because Jimmy Sanders had
moved into the filling department by the time Dansby was hired
by Mobile Paint. He stated, however, that the conditions
would have been the same and that the same products continued
to be unloaded for use at the Conception plant when Dansby
worked on the bull gang.
James Nord testified that he started working for Mobile
2
Paint on the bull gang in early 1966, so he worked in that
department a few months after Dansby had been promoted to
another department.
4
1121382
Jimmy Sanders stated that the workers had to transfer the
contents of broken bags to new bags, which also exposed the
workers to dust.
After working on the bull gang, Dansby was promoted to
work inside the plant in the filling department. From 1965 to
1975, Dansby worked in the filling department at the
Conception plant. In the filling department, Dansby hand-
filled cans of paint. Later, when Mobile Paint obtained
machinery that could fill the paint cans, he operated
automatic filling machines. Dansby testified that in his time
employed at Mobile Paint he spent "99 percent of [his] time"
in the filling department. Nord, who worked for a period in
the mixing department, testified that almost every day Dansby
had to visit the portion of the Conception plant where mixing
was done in order to "pull paint." Dansby did not wear a
3
mask when he went to pull paint. Nord testified that the
mixing department was very dusty because mixers cut open bags
of dry raw materials and poured them into the mills (the
machines that ground the pigments). The grinding of the
Pulling paint involved agitating tanks filled with paint
3
and skimming partially solidified latex from the top of the
tank, a process that, according to the workers, takes
approximately 10 minutes.
5
1121382
materials also created a lot of dust. Vanderbilt's shipping
records showed that it sold quantities of Nytal 300 and
Nytal 400 to the Conception plant in 1974 and 1975. Nord also
stated that Nytal 300 and Nytal 400 were used every day in
mixing paint at the Conception plant.
In 1975, Mobile Paint opened the Theodore plant. James
Hays, vice president of and technical director at Mobile
Paint, testified that Vanderbilt was a "major source" of talc
supplied to Mobile Paint from 1965 to 2009. More
specifically, Hays stated that the types of talc he recalled
being used at the Theodore Plant were "[t]he Nytal 200, 300,
and 400." Nord testified that "at the new factory" codes 342
and 343 were "very popular in just about all our oil paints."
He further confirmed that "343 was used a lot from the
mid-'70's to 2002 at [the] Theodore [plant]." Additionally,
Vanderbilt shipping records indicated that Mobile Paint
purchased large quantities of Nytal 300 from Vanderbilt in
1976 and 1977. In 1978, Mobile Paint also started purchasing
Nytal 400 from Vanderbilt, and it continued to purchase large
quantities of Nytal 300. Those records show that Mobile Paint
6
1121382
purchased Nytal 300 and 400 from Vanderbilt at least through
the year 2000.
At the Theodore plant, the mixing department was located
on the second floor of the plant, what the employees called
"the mezzanine." Everyone at the Theodore plant was required
to wear a mask when they were in the mixing department. Both
Jimmy Sanders and Nord testified that Dansby knew about this
requirement. Nord also testified that code 342 was not used
as often at the Theodore plant but that code 343 was used
every day and that mixing it produced a lot of dust.
Dansby continued to work in the filling department at the
Theodore plant from 1975 until his retirement in 2002. Just
as he did at the Conception plant, Dansby had to enter the
mixing area of the plant in order to pull paint. Nord
testified that Dansby entered the mixing area at least once
every day and sometimes three times a day from the day the
Theodore plant opened to the day Dansby retired because
pulling paint was part of his job. Nord testified that he
observed Dansby just about every day because of this schedule.
Jimmy Sanders also testified that he observed Dansby in the
mixing department. Both Jimmy Sanders and Nord testified that
7
1121382
they could not definitively state that during the periods
Dansby was in the mixing department talc was being added to a
batch of paint. Nord also stated that Dansby would have been
exposed to dust in his own area of the filling department
because it was located on the first floor below the mezzanine
and large amounts of dust floated down to the first floor from
the mezzanine and routinely had to be cleaned up.
Jimmy Sanders was specifically asked whether the Nytal
products contained asbestos.
"Q. ... [I]f they [the lawyers for the defendants]
were to ask you if you can testify if Dan Sanders
was ever exposed to an asbestos-containing product
after 1979, what would you say?
"A. MS. BROCK: Object to the form.
"[Sanders:] Yes. Since -- since the 341 and 342
was the asbestos -- was the asbestos material, oh,
yeah.
"BY MR. KEAHEY:
"Q. But sitting --
"A. I didn't know the difference, I didn't know
what it was -- that's what it was. No asbestos
because all we know, to just get it together and
mix it.
"Q. But you've learned since you left Mobile Paint
Company that the products you've talked about here
today, the pigments contained asbestos; is that
correct?
8
1121382
"MS. BROCK: Object to the form.
"[Sanders:] Yeah, I didn't know it until after Dan
died. I didn't know it, that's when I –-"
As noted above, on February 11, 2009, Dansby was
diagnosed with mesothelioma. On February 11, 2010, Dansby
sued multiple defendants alleging that they had manufactured
and distributed various products containing asbestos to which
Dansby was exposed while he worked for Mobile Paint and
further alleging that such exposure caused him to develop
mesothelioma. On September 1, 2010, Dansby amended his
complaint to add Vanderbilt as a defendant based on the fact
that it manufactured and sold industrial talc under the Nytal
brand name that Mobile Paint regularly used as a component in
its paint products. Dansby died on October 10, 2010. On
March 11, 2011, his widow Anna Sanders ("Sanders") filed an
amended complaint, both individually and as executor of
Dansby's estate, in which she added a wrongful-death cause of
action. Sanders died on August 3, 2013. On August 21, 2013,
Frank Kruse, administrator ad litem for Dansby's estate, was
substituted as a party plaintiff.
In November 2011, Vanderbilt submitted its "Responses to
Plaintiff's Interrogatories and Requests for Production of
9
1121382
Documents." In those responses, Vanderbilt repeatedly stated
that "R.T. Vanderbilt never manufactured or sold a product
that
contained
asbestos";
that
"R.T.
Vanderbilt
products
never
contained asbestos"; and that "[t]he talc did not contain
asbestos and does not pose the same health risks as asbestos."
Despite these categorical statements, Vanderbilt admitted in
its responses that, "[i]n the past, as a result of imprecise
definitions of asbestos, there was some confusion with the
distinction between non-asbestiform tremolite and tremolite
asbestos." Specifically,
"[i]n the 1970's, certain entities (including
[the National Institute for Occupational Safety and
Health]
and
[the
Mine
Safety
and
Health
Administration]) mistakenly assumed or identified
asbestos in the talc. As a result of incomplete or
faulty initial review, numerous efforts to correctly
characterize
the
mineral
components
of
R.T.
Vanderbilt talc have been undertaken. Many of these
studies have been sponsored by R.T. Vanderbilt as
part of the company's ongoing efforts to understand
the composition of its products. R.T. Vanderbilt
has also sponsored efforts to determine if its talc
is capable of causing diseases typically associated
with exposure to asbestos. ... These studies
confirm that R.T. Vanderbilt's talc does not cause
'asbestos-related' disease. Other studies not
sponsored by R.T. Vanderbilt ... confirm these
results."
Vanderbilt also related that
10
1121382
"[s]ome early analysis of specific talc grades
containing a small amount of fibrous talc mistakenly
identified these talc fibers as chrysotile. Other
analysis
identified
transitional
fibers
as
anthophyllite asbestos. As a result of the
incorrect analysis, R.T. Vanderbilt labeled specific
talc products that were produced from approximately
1974-1978 with an [Occupational Safety and Health
Administration] asbestos standard warning label.
The
warning
label
on
these
products
read
'Caution-Product Contains Asbestos Fibers: Avoid
Creating Dust. Breathing Asbestos Dust May Cause
Serious Bodily Harm.'"
On May 22, 2012, the trial court entered an amended
scheduling order in which it provided that, "[o]n or before
September 13, 2012, Defendants may file motions for summary
judgment on product identification and statute of limitations
issues." To facilitate any such motions, the order required
that "depositions of Plaintiff, Plaintiff's fact witnesses,
family members, and product identification coworker witnesses
shall be completed by August 13, 2012." The order also
provided that, "[o]n or before August 15, 2012, Plaintiff
shall identify expert witnesses to be called to testify in
this case." Depositions of the plaintiff's experts were to be
"completed on or before February 28, 2013."4
The trial court later amended the scheduling order such
4
that Sanders's experts were to be deposed by May 31, 2013.
11
1121382
On August 15, 2012, Sanders disclosed her expert
witnesses. Among the experts Sanders listed in the disclosure
were: Dr. Jerrold L. Abraham, a pathologist from Upstate
Medical University; Dr. Mark Rigler, a materials analyst and
microbiologist; materials analyst Richard L. Hatfield;
geologist and microscopist Sean Fitzgerald; and Dr. James R.
Millette,
an
environmental-materials
analyst.
Attached
to
the
disclosure as an exhibit was Dr. Abraham's report, in which he
stated:
"Most of the talc that the Mobile Paint Company used
came from RT Vanderbilt and Luzenac Corporation.
Some of the Vanderbilt talcs that were used from
1965 to 2002 include, but are not limited to NYTAL
200, NYTAL 300 and NYTAL 400. I am aware from my own
studies and those of other laboratories that NYTAL
contained
asbestiform
fibers,
including
anthophyllite as well as asbestiform talc."
Dr. Abraham also asserted:
"There are numerous well documented mesotheliomas
developing in persons exposed to asbestiform talc
such as that contained in the NYTAL products.
Detailed mineralogical analysis of both the NYTAL
products and fibers recovered from patients' lung
tissue have confirmed the unusual mix of asbestiform
and non-asbestiform fibers of talc with many
asbestiform 'transitional' fibers in which the
crystalline structure in a single fiber can be shown
to match anthophyllite asbestos in one region of the
fiber and talc in another."
Dr. Abraham concluded:
12
1121382
"Asbestos exposure is well known to be the cause
of nearly all malignant mesotheliomas. Based on all
the available information I can conclude to a
reasonable degree of medical certainty that Mr.
Sanders' exposure to talc containing asbestos fibers
(including asbestiform talc) was a substantial
contributing cause of his malignant mesothelioma and
death."
On September 13, 2012, in accordance with the scheduling
order, Vanderbilt submitted a motion for a summary judgment
related to product identification, i.e., a motion addressing
the issue whether Dansby had ever been exposed to talc
supplied by Vanderbilt. In the motion, Vanderbilt argued that
"[Sanders] has failed to come forth with any evidence that Mr.
Sanders was directly exposed to R.T. Vanderbilt talc while
working at Mobile Paint. Further, [Sanders] has failed to show
that Mr. Sanders' alleged exposure to R.T. Vanderbilt talc was
a
substantial
contributing
factor
to
his
injuries."
Vanderbilt
noted that "[a]t no time during Mr. Sanders' two-day
deposition did he identify R.T. Vanderbilt, Nytal or talc as
a product or material that he worked with or around at Mobile
Paint." Vanderbilt insisted that "[t]here is no evidence that
Mr. Sanders ever personally worked with any R.T. Vanderbilt
talc." Vanderbilt argued:
13
1121382
"To assume that Mr. Sanders was exposed to R.T.
Vanderbilt talc merely because he entered the
production department on occasion would be pure
speculation. First, not all paint contained talc.
... And not all talc used at Mobile Paint was R.T.
Vanderbilt talc. Second, there is no evidence that
anyone was ever working with talc, much less R.T.
Vanderbilt talc, in the production department when
[Dansby] was present."
Vanderbilt further argued in the motion that
"[e]ven
assuming,
arguendo, that Mr. Sanders was somehow exposed to R.T.
Vanderbilt talc, a mere showing of minimum exposure is
insufficient. In order to show causation in an asbestos
action, a plaintiff must show that the defendant's conduct was
a substantial factor in causing the harm." In short,
Vanderbilt argued in its summary-judgment motion that Sanders
failed to produce evidence indicating that Dansby had been
exposed to a Vanderbilt product during his employment with
Mobile Paint and that, even if she had produced such evidence,
he did not demonstrate that Dansby's exposure to a Vanderbilt
product was a substantial factor in his injuries and
subsequent death. No portion of Vanderbilt's summary-judgment
motion raised the issue of a lack of evidence indicating that
Vanderbilt's products contained asbestos. Vanderbilt did not
submit any supporting documents with its motion.
14
1121382
On September 17, 2012, the trial court set Vanderbilt's
motion to be heard on October 19, 2012. Subsequently, the
parties agreed to reschedule the hearing for November 2, 2012.
On October 22, 2012, Sanders filed her response to
Vanderbilt's summary-judgment motion. Sanders argued that,
"[d]espite
Vanderbilt's
contentions,
the
evidence
in
this
case
shows that genuine issues of material fact exist as to whether
Mr. Sanders was exposed to Vanderbilt's asbestos-containing
talc. The record contains ample evidence to support the
conclusion
that
Mr.
Sanders
breathed
the
dust
from
Vanderbilt's
talc."
The
above-quoted
statement
was
accompanied by a footnote that stated: "[Sanders's]
contention in this case is that R.T. Vanderbilt's Nytal talc
products contained asbestos. No doubt this will be addressed
in the next round of motions for summary judgment, but for the
purposes of its instant Motion Vanderbilt has not contested
[Sanders's] contention." Sanders in her response quoted
extensively from the deposition testimony of Dansby's
coworkers in an effort to show that Dansby had, in fact, been
exposed to Vanderbilt talc. She also contended that whether
Dansby's exposure to Vanderbilt talc was a substantial factor
15
1121382
in causing his injuries and subsequent death was an issue for
the jury. Sanders, like Vanderbilt, did not submit documents
along with her response to the motion for a summary judgment,
choosing instead to rely on evidence already submitted in the
record.
On November 2, 2012, the trial court held a hearing on
Vanderbilt's motion for a summary judgment. At the outset of
the
hearing,
Vanderbilt's
counsel
acknowledged
that
"[w]e
have
filed a Motion for Summary Judgment on the issue of product
identification of an asbestos containing product."
Instead
of
discussing the issue whether there was sufficient evidence
that Dansby had been exposed to a Vanderbilt product, however,
Vanderbilt's counsel proceeded to argue that "R.T. Vanderbilt
never
manufactured
asbestos
containing
products.
R.T.
Vanderbilt talc never contained asbestos. These are facts
that R.T. Vanderbilt has asserted from the very beginning of
being brought into this litigation." Vanderbilt's counsel
insisted that "asbestos content" is "essential to a product
identification motion." She further contended:
"It makes no sense to argue at this late date that
[Sanders] should be required to have time to prove
that -- to prove up evidence that our product did or
did not contain asbestos. [Sanders] is required to
16
1121382
come forward with that evidence now. He doesn't –-
she doesn't get a second bite at the apple. And
there's absolutely no evidence to dispute the fact
that R.T. Vanderbilt's talc did not contain
asbestos."
Sanders's counsel responded that, "as far as in product
identification and causation, asbestos content are basically
three different things. And we're here today on product
identification summary judgment. That's my understanding of
why we're here today. And we've more than met that burden."
Sanders's counsel proceeded to present multiple slides to the
trial court quoting the deposition testimony of
witnesses that
he argued illustrated how often Dansby was exposed to Nytal.
The following exchange between Sanders's counsel and
the
trial
court then occurred:
"MR. KEAHEY: But geologically at least [our]
experts have found now and will be willing to
testify that those products definitely contained
asbestos. But that's on down the road. And to me
that's causation. That's the expert discovery and
I didn't want to get into that today because it was
my understanding today we're just here strictly on
product identification. ... Again, these are just
copies of the invoices which that alone, if you just
take the invoices, and you take the fact that
[Dansby] was there within probably fifty feet on a
conservative estimate, between these products being
used,
that
more
than
gives
you
product
identification. And we go --
17
1121382
"THE COURT: You know what she's going to say, of
our product that contains no talc -- I mean,
contains no asbestos.
"MR. KEAHEY: Yes, sir, and they're contending that
it contains -- And that's going to really be the
real fight in the case to be honest with you. Their
people are going to say it didn't contain it and our
people are going to say it did. And it's going to be
a jury question. That's what happened in Delaware
about three or four months ago. And so the Nytal
product, the Nytal 400, 300 and 200, were simply
different grades of the Nytal 100 which was the
product at issue in the Delaware trial about three
to four months ago. And the plaintiff's experts in
that case did definitely convince the jury that that
product contained asbestos. Again, I'm just trying
-- I'm not trying to get over into causation and the
expert."
After
Sanders's
counsel
finished
his
argument,
Vanderbilt's counsel responded: "Your Honor, I don't know
where to begin. He still has not come forward with any
evidence in the record that there's asbestos in R.T.
Vanderbilt's talc." The trial court asked Vanderbilt's
counsel to explain why the issue whether the talc contained
asbestos was not a jury question. Vanderbilt's counsel
answered:
"Because there isn't a question of fact. He hasn't
pointed to an affidavit, a deposition, any verified
interrogatory responses. There's no evidence --
[Sanders] has the burden now -- [Sanders] has the
burden of coming forward with admissible evidence to
show there's a question of fact on our position that
18
1121382
there's no evidence that our product contains
asbestos. We have shown -- Excuse me. We have met
our burden in showing that there's a lack of
evidence to support [her] claim. Now, their burden
is to come forward looking at the specific evidence
in the record, not what's going on in another state,
not what is going on in Plaintiff's counsel's head,
not what he thinks talc litigation has become or
used to be or will be. We're talking about evidence
in the record. ..."
On the same day the hearing was held on Vanderbilt's
summary-judgment motion, November 2, 2012, Sanders filed a
motion to compel the production of, among other things,
"5 grams each of NYTAL 300 [and] NYTAL 400" for testing. On
December 21, 2012, Vanderbilt responded to the motion by
contending that "discovery closed on September 13, 2012, the
deadline
for
filing
product
identification
motions
for
summary
judgment" and by noting that during two years of litigation
Sanders had never requested such samples. Vanderbilt also
insisted that Sanders
"would have this Court believe that her experts have
been deprived of the opportunity to test Vanderbilt
talc -- nothing could be further from the truth.
R.T. Vanderbilt's talc is perhaps the most tested
talc in the world. Reliable tests show that R.T.
Vanderbilt talc does not contain asbestos, and no
regulatory agency considers any of the components in
Vanderbilt talc to be asbestos. The U.S. government
has tested R.T. Vanderbilt's talc, and these results
are in the public domain. [Sanders's] own experts
have been involved in litigation against R.T.
19
1121382
Vanderbilt. Not one but four of [Sanders's] experts
have tested R.T. Vanderbilt talc in the past.
[Sanders has] failed to show why her experts would
need samples to test when they have already tested
Vanderbilt talc in the past."
The response further claimed that "[Sanders's] own experts
have tested samples of the talc she now seeks. Specifically,
Jerrold L. Abraham, M.D.; James R. Millette, Ph.D.; Dr. Mark
Rigler; and Richard Hatfield have all tested R.T. Vanderbilt
talc and have been retained as experts in numerous talc cases
in the past."
In January 2013, Sanders filed a reply to Vanderbilt's
response to the motion to compel, in which she argued:
"Vanderbilt's
Response
begins
with
the
falsehood
that discovery closed in this case on September 13,
2012, basing this assertion on the fact that
September 13 was the deadline for defendants to file
motions
for
summary
judgment
on
product
identification and statute of limitations issues.
This is quite simply not an issue related to
Vanderbilt's motion for summary judgment, which was
purely based on product identification grounds and
which essentially conceded -- at least for the
purposes of that Motion -- that R.T. Vanderbilt's
talc contained asbestos. The asbestos content of
R.T. Vanderbilt's talc is properly addressed by
expert analysis of the talc, which is all that
[Sanders] seeks in this case. As contemplated by
the Scheduling Order in effect in this case, an
additional deadline exists for motions for summary
judgment which are not based purely on product
identification and/or the statute of limitations.
[Sanders] anticipates that Vanderbilt will avail
20
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itself of this opportunity and file an additional
motion for summary judgment which will no doubt
contest the asbestos content of its talc. But that
future deadline is immaterial to Vanderbilt's
argument that discovery closed on September 13 or
that the talc samples at issue were germane to its
prior-filed motion for summary judgment."
In a supplemental reply to Vanderbilt's response to the
motion to compel, Sanders stated that her "experts have NOT,
in fact, tested any of the NYTAL line of [Vanderbilt] talc
products and several other [Vanderbilt] talc products."
(Capitalization in original.) Sanders attached to her
supplemental reply a joint report authored by Dr. Rigler and
Hatfield. In the report, Dr. Rigler and Hatfield stated, in
part:
"Talc products manufactured by [Vanderbilt] such as
Nytal and Motildene talcs, in addition to containing
fibrous talc, contains an amount of tremolite and
anthophyllite
asbestos.
The
fact
that
R.T.
Vanderbilt talc products contain asbestos has been
proven by analytical laboratories numerous times
over
the
years.
Analyses
performed
by
R.T.
Vanderbilt, by this laboratory (MAC, LLC), by MVA
Scientific Consultants (Millette Van Der Wood and
Associates), and by MC line Laboratories all confirm
the presence of these forms of asbestos in Nytal
talc. ...
"It is our opinion that data from these
laboratories have conclusively shown that R.T.
Vanderbilt talc products contain, or have contained
in the past, various asbestiform minerals including
tremolite, anthophyllite, and chrysotile."
21
1121382
The trial court heard arguments on Sanders's motion to
compel on January 25, 2013, and on January 29, 2013, the court
denied the motion.
Dr. Rigler was deposed on April 12, 2013. In his
deposition, Dr. Rigler stated: "R.T. Vanderbilt talcs,
specifically the ones that I'm referring to in my report, have
contained asbestos and may continue to contain asbestos at
this time if they are of the same batch, lot, year, that type
of thing, so that they have been verified to contain
asbestos." Dr. Rigler also testified that he had produced a
summary of his report finding that 11 Vanderbilt talc products
"were verified to contain asbestos." He stated that those
products included, among others, "Nytal 400."
Sean Fitzgerald was deposed on May 10, 2013. Fitzgerald
testified that, "with a reasonable degree of scientific
certainty, ... the talc that was used by Mr. Sanders contained
asbestos, [and] the way it was used created exposure." More
specifically with regard to the asbestos content
of
Vanderbilt
talc, Fitzgerald was asked by Vanderbilt's counsel:
"[I]f you're asked at the trial, have you tested a
Nytal sample, you would say?
"A. Yes.
22
1121382
"Q. And if you were asked at trial if you found --
if there was asbestos in the Nytal sample you
tested, you would say?
"A. Yes."
Fitzgerald was also asked: "If you are asked at the trial of
this case whether or not the tremolite or anthophyllite in
Nytal was asbestiform, what's your answer going to be?" He
answered: "They were asbestiform." Finally, Fitzgerald was
asked:
"But in your opinion, the industrial talc sold by
Vanderbilt also includes tremolite asbestos and
anthophyllite asbestos, right?
"A. It does."
Dr. Millette was deposed on May 9, 2013. At his
deposition, Dr. Millette produced over 500 pages of
documentation on the testing of Vanderbilt talc products. In
a 2010 report, Dr. Millette stated that he found asbestos in
Nytal talc. Specifically, he stated that "Nytal 100 talc and
Nytal 100 HR talc (Samples V0087 and V0088) contain elongated
particles (particles with a minimum aspect ratio of 3:1).
These particles are mineral in nature and therefore are
elongated mineral particles (EMPs). Both samples contain
23
1121382
fibrous tremolite, fibrous talc, fibrous anthophyllite and
fibrous transitional (anthopho-talc) minerals."
On July 7, 2013, the trial court entered a summary
judgment in favor of Vanderbilt. In the sole paragraph
constituting the findings of fact, the trial court stated:
"The record shows that R.T. Vanderbilt never manufactured or
sold an asbestos-containing product.
The record
further
shows
that R.T. Vanderbilt's talc did not contain asbestos." Based
on that finding, the trial court concluded:
"Pretermitting whether Dansby Sanders was
directly exposed to R.T. Vanderbilt talc, R.T.
Vanderbilt has met its burden on summary judgment by
showing that no genuine issue of material fact
exists as to whether Mr. Sanders was exposed to an
asbestos-containing
product
for
which
R.T.
Vanderbilt is responsible. Moreover, R.T. Vanderbilt
presented
affirmative
evidence
that
it
never
manufactured or sold talc that contained asbestos.
Even if Mr. Sanders was exposed to R.T. Vanderbilt's
talc as [Sanders] alleges, the undisputed evidence
shows that the talc did not contain asbestos. Thus,
R.T. Vanderbilt has met its burden on summary
judgment by showing an absence of evidence exists to
support [Sanders's] claims."
(Emphasis added.) The trial court further concluded that,
"[p]ursuant to Ala. R. Civ. P. Rule 54(b), this Court finds
there is no just reason for delay and expressly directs the
24
1121382
Clerk to enter final judgment in favor of Defendant R.T.
Vanderbilt Company, Inc."
On July 19, 2013, Sanders filed a "Motion for
Reconsideration of the Summary Judgment Entered in Favor of
Vanderbilt Minerals, LLC," in which Sanders asked the trial
court to vacate the summary judgment. In the motion to
vacate, Sanders sought to "direct the Court's attention to
specific evidence on the record at the time of the summary
judgment hearing and to supplement the record with newly
discovered evidence," which she contended would demonstrate
that there was a genuine issue of fact as to whether Nytal
talc contained asbestos. Sanders noted that both Jimmy
Sanders's testimony that Nytal talc contained asbestos
and Dr.
Abraham's report stating that Nytal talc contained asbestos
were in the record before Vanderbilt filed its summary-
judgment motion. Additionally, Sanders cited the deposition
of Dr. Rigler, the expert report of Dr. Rigler and Hatfield,
the deposition testimony of Fitzgerald, and the report of Dr.
Millette as all confirming that Nytal talc contained asbestos.
Sanders observed that those additional
pieces of
evidence
were
not available at the time Vanderbilt filed its motion for a
25
1121382
summary judgment because the depositions of her experts were
not scheduled to be completed until May 31, 2013. Even so,
Sanders noted, the experts' opinions were available before
the
trial court entered its order on summary judgment, which found
that "the undisputed evidence shows that the talc did not
contain asbestos." Based on the evidence in the record,
Sanders argued, the trial court should vacate its summary
judgment in favor of Vanderbilt.
On August 19, 2013, Vanderbilt submitted its response to
Sanders's motion to vacate. In that response, Vanderbilt
argued that Sanders
"knew the opinions of her experts, as she disclosed
their opinions on August 15, 2012, before Vanderbilt
even filed its motion for summary judgment. [Sanders
has] failed to submit any explanation, much less a
reasonable one, as to why she failed to submit an
affidavit of any of her experts with their opinions
about Vanderbilt's talc."
As to the deposition testimony of Jimmy Sanders, Vanderbilt
contended that "any speculative testimony by Dansby Sanders'
coworkers that they believed NYTAL contained asbestos is
insufficient to create a material issue of fact where there is
no evidence to show that Dansby Sanders worked with Vanderbilt
talc." Thus, Vanderbilt returned to its original argument
26
1121382
that Sanders had failed to demonstrate that Dansby had been
exposed to a Vanderbilt product.
The trial court denied the motion to vacate without
further explanation. In his capacity as administrator ad
litem, Kruse appeals the trial court's judgment.
5
II. Standard of Review
"In Pittman v. United Toll Systems, LLC, 882 So.
2d 842 (Ala. 2003), this Court set forth the
standard of review applicable to a summary judgment:
"'This Court's review of a summary
judgment is de novo.
"'"In
reviewing
the
disposition
of
a
motion
for
summary judgment, 'we utilize the
same standard as the trial court
in
determining
whether
the
evidence before [it] made out a
genuine issue of material fact,'
Bussey v. John Deere Co., 531 So.
2d 860, 862 (Ala. 1988), and
whether the movant was 'entitled
to a judgment as a matter of
law.' Wright v. Wright, 654 So.
2d 542 (Ala. 1995); Rule 56(c),
Ala. R. Civ. P. When the movant
makes a prima facie showing that
there is no genuine issue of
material fact, the burden shifts
to
the
nonmovant
to
present
substantial
evidence
creating
Kruse informs this Court in his appellate brief that
5
Vanderbilt is now the only remaining defendant in this action.
Vanderbilt does not dispute that assertion.
27
1121382
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.' Wright, 654 So. 2d
at 543 (quoting West v. Founders
Life Assurance Co. of Florida,
547 So. 2d 870, 871 (Ala. 1989)).
Our review is further subject to
the caveat that this Court must
review the record in a light most
favorable to the nonmovant and
must
resolve
all
reasonable
doubts against the movant. Wilma
Corp.
v.
Fleming
Foods
of
Alabama, Inc., 613 So. 2d 359
(Ala. 1993) [overruled on other
grounds, Bruce v. Cole, 854 So.
2d 47 (Ala. 2003)]; Hanners v.
Balfour Guthrie, Inc., 564 So. 2d
412, 413 (Ala.1990)."'
"882 So. 2d at 844 (quoting Hobson v. American Cast
Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1997))."
Johnson v. Brunswick Riverview Club, Inc., 39 So. 3d 132, 135
(Ala. 2009).
III. Analysis
Kruse argues that the trial court erred in entering a
summary judgment in favor of Vanderbilt on a ground not argued
in Vanderbilt's motion for a summary judgment. Kruse
28
1121382
observes, correctly, that Vanderbilt's written motion for a
summary judgment did not raise the issue whether Sanders had
presented any evidence indicating that Vanderbilt products
contained asbestos. Instead, the summary-judgment motion
argued that Sanders had failed to demonstrate that Dansby had
been exposed to a Vanderbilt product during his employment
with Mobile Paint. Accordingly, Sanders's response to the
motion
addressed
solely
the
issue
of
"product
identification,"
i.e., whether Dansby had ever been exposed to a Vanderbilt
product. Sanders's response even noted that she expected
6
Vanderbilt to file another summary-judgment motion at a later
time challenging the assertion that its products contained
asbestos.
Two weeks later at the hearing on the motion, Vanderbilt
raised the issue of asbestos content, and its counsel
discussed solely that issue throughout
the hearing.
Sanders's
counsel responded by observing that she had experts who would
testify as to the issue of asbestos content but that the issue
This
Court
has
stated
that
"[b]ecause
'product
6
identification is one element of causation,' ... the
'threshold requirement of any products liability action is
identification
of
the
injury-causing
product
and
its
manufacturer.'" Sheffield v. Owens-Corning Fiberglass Corp.,
595 So. 2d 443, 450 (Ala. 1992) (citations omitted).
29
1121382
before the trial court for the present
summary-judgment
motion
was whether Dansby had been exposed to a Vanderbilt product.
Sanders's counsel's argument to the trial court in the hearing
reflected that understanding. Nonetheless, and despite the
directives of the trial court in its scheduling order as to
the timing of discovery and motions for summary judgment
relating to the issue of product identification as opposed to
its directives regarding the completion of discovery and
filing of motions regarding other issues, the trial court
entered a summary judgment for Vanderbilt solely on the basis
of a purported lack of evidence in the record demonstrating
that
Vanderbilt's
products
contained
asbestos.
Kruse
contends
that the trial court clearly erred by so concluding.
Vanderbilt responds that Kruse
"grasps at straws ... because R.T. Vanderbilt did
not explicitly indicate that its talc was not
asbestos-containing in its original summary judgment
brief. This argument is meant to distract from the
real issue, which is that [Sanders] failed to
produce sufficient evidence to support a finding
that Mr. Sanders was 'directly exposed' to an
asbestos-containing
product
supplied
by
R.T.
Vanderbilt."
Vanderbilt's brief, p. 10. Vanderbilt insists that it "did
argue that Mr. Sanders was not exposed to an asbestos-
30
1121382
containing R.T. Vanderbilt product in its original summary
judgment motion." Id. at 10-11. It then cites pages of its
motion that contain language nearly identical to the passage
in its brief quoted above, i.e., that Sanders failed to
produce evidence indicating that "Mr. Sanders was 'directly
exposed' to an asbestos-containing product supplied by R.T.
Vanderbilt." The bulk of the remainder of Vanderbilt's brief
on appeal discusses the evidence pertaining to Dansby's
exposure to Vanderbilt products at Mobile Paint.
In responding to Kruse's argument, Vanderbilt performs a
sort of sleight-of-hand by conflating two issues into one.
Whether Dansby was exposed to a Vanderbilt product (product
identification)
and
whether
Vanderbilt
talc
contained
asbestos
are different issues. Consistent with the trial court's
scheduling order and the corresponding state of discovery at
the time it filed its motion for a summary judgment,
Vanderbilt clearly argued only the issue of product
identification/exposure in that motion. Contrary to that
scheduling order and the state of discovery regarding issues
other than product identification, and contrary to
the
content
of its summary-judgment motion, Vanderbilt argued only the
31
1121382
issue of asbestos content at the hearing on that motion.
Before us, Vanderbilt argues as if the two issues are one and
the same and, therefore, that Sanders had no reason to be
caught unaware in the trial court. We disagree.
"'When the basis of a summary-judgment motion is a
failure of the nonmovant's evidence, the movant's burden ...
is limited to informing the court of the basis of its motion
-- that is, the moving party must indicate where the nonmoving
party's case suffers an evidentiary failure.'" Farr v. Gulf
Agency, 74 So. 3d 393, 398 (Ala. 2011) (quoting Rector v.
Better Homes, Inc., 820 So. 2d 75, 80 (Ala. 2001)). As noted,
Vanderbilt argued in its summary-judgment motion that Sanders
failed to present sufficient evidence that Dansby had been
exposed to a Vanderbilt product during his employment at
Mobile Paint. It did not indicate that Sanders's case
suffered from a lack of evidence that Vanderbilt talc
contained asbestos. Despite this, the trial court entered a
summary judgment in favor of Vanderbilt on the latter basis.
"[A] defendant who moves for a summary judgment on
the ground of 'a failure of the [plaintiff's]
evidence ... must indicate where the [plaintiff's]
case suffers an evidentiary failure.' Kennedy v.
Western Sizzlin Corp., 857 So. 2d 71, 78 (Ala.
2003). If such a summary-judgment motion 'does not
32
1121382
inform the trial court (and the [plaintiff]) of a
failure of the [plaintiff's] evidence on a fact or
issue, no burden shifts to the [plaintiff] to
present substantial evidence on that fact or issue.
Therefore, summary judgment for a failure of proof
not asserted by the motion for summary judgment is
inappropriate.' Tanner v. State Farm Fire & Cas.
Co., 874 So. 2d 1058, 1068 n.3 (Ala. 2003)
(citations omitted).
"Thus, ... a trial court should not grant a
summary judgment, and an appellate court will not
affirm one, on the basis of an absence of
substantial evidence to support an essential element
of a claim or affirmative defense unless the motion
for a summary judgment has properly raised that
absence of evidence and has thereby shifted to the
nonmoving party the burden of producing substantial
supporting evidence."
Hollis v. City of Brighton, 885 So. 2d 135, 140 (Ala. 2004).
See also Turner v. Westhampton Court, L.L.C., 903 So. 2d 82,
87 (Ala. 2004) (stating that "[s]ummary judgment cannot be
entered against the nonmoving party on the basis of a failure
of that party's proof unless the motion for summary judgment
has challenged that failure of proof"). Based on the
foregoing, it is clear that the trial court erred in entering
a summary judgment in favor of Vanderbilt on the basis of a
purported lack of record evidence that Vanderbilt products
contained asbestos.
33
1121382
Furthermore, in her motion to vacate the judgment,
Sanders
subsequently
presented
substantial
evidence
that
Nytal
talc contained asbestos. Vanderbilt argues that that evidence
came too late and that Kruse offers no reason why the evidence
could not have been presented in response to its motion for a
summary judgment. "[O]nce the trial court enters a summary
judgment, '[a] post-judgment motion may not be used to
belatedly submit evidence in opposition to a motion for a
summary judgment.' White v. Howie, 677 So. 2d 752, 754 (Ala.
Civ. App. 1995)." Ex parte City of Montgomery, 758 So. 2d
565, 568 (Ala. 1999) (abrogated on other grounds).
The obvious reason Sanders did not present the evidence
earlier is that the summary-judgment motion did not indicate
that asbestos content was an issue being challenged at that
time. Moreover, in addition to the content of the summary-
judgment motion itself, the trial court's scheduling order
provided that depositions of Sanders's experts would
not
occur
until after the deadline for filing "product identification"
motions for a summary judgment by any of the defendants.
As Sanders's counsel stated in the hearing on the
summary-judgment motion, asbestos content of Vanderbilt
34
1121382
products is an issue for expert testimony, but Sanders's
experts had yet to be deposed, in accordance with the trial
court's own scheduling order, and thus discovery on that issue
had not been completed at the time Vanderbilt filed its
summary-judgment motion.
Vanderbilt complains that Sanders could have submitted
affidavits from her experts before the trial court ruled on
Vanderbilt's
summary-judgment
motion
because
Sanders
knew
what
her experts would testify to when they submitted their expert-
disclosure statement, which was before Vanderbilt filed its
motion. But again, Vanderbilt's argument ignores the fact
that the Sanders had no reason to believe that affidavits from
her experts on the issue of asbestos content were necessary to
rebut the summary-judgment motion. The fact that Sanders was
put on notice of the issue at the summary-judgment hearing is
of no consequence because "[t]his Court has repeatedly
recognized that '"[t]he trial court can consider only that
material before it at the time of submission of the motion"
and that any material filed thereafter "comes too late."'"
Bean v. State Farm Fire & Cas. Co., 591 So. 2d 17, 20 (Ala.
1991) (quoting Sheetz, Aiken & Aiken, Inc. v. Spann, Hall,
35
1121382
Ritchie, Inc., 512 So. 2d 99, 101 (Ala. 1987), quoting in turn
Osborn v. Johns, 468 So. 2d 103, 108 (Ala. 1985)). Moreover,
after the hearing Sanders still had no reason to believe that
the trial court would enter a summary judgment on the issue of
the asbestos content in Nytal talc, given that the trial court
listened to Sanders's counsel's entire presentation at the
hearing addressing the issue of Dansby's exposure to Nytal
talc and, as part of that presentation, counsel's insistence
that product identification/exposure was the only issue
properly before the trial court.7
Even though the trial court's reason for entering a
summary judgment in favor of Vanderbilt was flawed, "we can
affirm a summary judgment on any valid legal ground presented
by the record, whether that ground was considered by, or even
Vanderbilt
also
objects
that
some
of
the
evidence
Sanders
7
presented in her motion to vacate the judgment was not in the
form of admissible evidence. See Tanksley v. ProSoft
Automation, Inc., 982 So. 2d 1046, 1053 (Ala. 2007) (stating
that "[d]ocuments submitted in support of or in opposition to
a summary-judgment motion are generally required to be
certified or otherwise authenticated; if they are not, they
constitute inadmissible hearsay and are not considered on
summary judgment"). At a minimum, this is not true of the
deposition testimony from Jimmy Sanders, Dr. Rigler, and Sean
Fitzgerald, which in
itself
was
substantial
evidence
demonstrating a genuine issue of fact as to whether Nytal
contained asbestos.
36
1121382
if it was rejected by, the trial court, unless due-process
constraints require otherwise." Wheeler v. George, 39 So. 3d
1061, 1083 (Ala. 2009). Vanderbilt clearly presented in its
summary-judgment motion the argument that was contemplated by
the trial court's scheduling order, i.e., the argument that
Sanders had failed to present substantial evidence
that Dansby
was exposed to Nytal supplied by Vanderbilt during his
employment with Mobile Paint.
In examining the issue of Dansby's exposure to Nytal, we
note at the outset that Vanderbilt, in its motion for a
summary judgment, and Sanders, in her response to the motion,
argued for two different standards for establishing exposure
based on the same case: Sheffield v. Owens-Corning Fiberglass
Corp., 595 So. 2d 443 (Ala. 1992). In its motion for a
8
summary
judgment,
Vanderbilt
cited Sheffield
for
the
proposition that, "[t]o sustain an asbestos action, a
The fact that the parties' arguments are based on
8
Sheffield is not surprising, given that Sheffield is the only
case from this Court that has substantively addressed the
issue of what a plaintiff is required to show in order to
establish that he or she was exposed to a defendant's asbestos
product. Nearly all the cases in this Court that have
involved asbestos exposure have addressed the issue of the
accrual of the cause of action, which is not an issue in this
appeal. See Griffin v. Unocal Corp., 990 So. 2d 291 (Ala.
2008), and the cases cited therein.
37
1121382
plaintiff must at the very least show that he was exposed to
an
asbestos-containing
product
manufactured
by
the
defendant."
Vanderbilt also cited Sheffield for its further contention
that "[t]he plaintiff must produce sufficient evidence to
support a finding that the plaintiff was 'directly exposed' to
that defendant's asbestos-containing products."
Conversely, in her response to the motion for a summary
judgment, Sanders argued that
"[a]ny assertion by [Vanderbilt] in this case that
[Sanders] is required to show ... that Mr. Sanders
worked directly with or in close proximity to an
asbestos-containing product of the defendants which
was
a
substantial
factor
in
causing
his
asbestos-related injury fails in light of the
Alabama Supreme Court's findings in Sheffield."
Instead, Sanders insisted, "[t]he Supreme Court of Alabama in
Sheffield held that the plaintiff bears the burden of proof on
the issue of causation and must, at a minimum, demonstrate
that the asbestos product manufactured by a specific
manufacturer was present at the plaintiff's job site."
We question whether the standard Kruse asserts that
Sheffield established -- the presence of the asbestos-
containing product at the plaintiff's "job site" -- means
anything different than the standard Vanderbilt argues that
38
1121382
Sheffield supplied -- direct exposure to the asbestos-
containing product. A standard other than direct exposure
would not be logical, given that a plaintiff obviously must
establish that the product in question caused his or her
injuries. Indeed, corroboration for that standard comes from
what appears to be the majority rule for causation used by
most courts throughout the country in asbestos
litigation:
the
"frequency-regularity-proximity" test propounded in Lohrmann
v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).9
The Lohrmann court -- applying Maryland law -- stated that, to
establish proximate causation, "the plaintiff must introduce
evidence which allows the jury to reasonably conclude that it
is more likely than not that the conduct of the defendant was
a substantial factor in bringing about the result." 782 F.2d
at 1162. The Lohrmann court concluded that this meant that,
"[t]o support a reasonable inference of substantial causation
from circumstantial evidence, there must be evidence of
exposure to a specific product on a regular basis over some
"Courts in every circuit but the D.C. Circuit, and the
9
First, Second, and Fifth Circuits have adopted the Lohrmann
test. In addition, Michigan, Massachusetts, New Jersey,
Illinois, Pennsylvania, Maryland, Nebraska, and Oklahoma have
adopted the test." Slaughter v. Southern Talc Co., 949 F.2d
167, 171 n.3 (5th Cir. 1991).
39
1121382
extended period of time in proximity to where the plaintiff
actually worked." 782 F.2d at 1162-63.
Regardless, for purposes of this case we need not decide
which of the two standards urged by the parties before us is
the correct standard (or whether we should even understand the
standard argued by Kruse to be really stating a different
standard than the one argued by Vanderbilt). In this case,
Sanders satisfied even the possibly more challenging standard
urged by Vanderbilt.
First, Sanders produced substantial evidence that the
particular asbestos-containing product at issue -- Nytal talc
-- was supplied by Vanderbilt to Mobile Paint at its
Conception plant and then at its Theodore plant. Vanderbilt's
own shipping records indicated that Nytal talc was supplied to
Mobile Paint at the Conception plant in 1974 and 1975 and that
it was shipped to the Theodore plant through at least the year
2000. Additionally, James Hays, vice president of Mobile
Paint, testified that Vanderbilt was a "major source" of talc
supply for Mobile Paint from 1962 until 2009, and he
specifically stated that Nytal was the product supplied by
Vanderbilt during that period. Further, Dansby's coworker
40
1121382
James Nord testified that Nytal-coded products were "very
popular" at the Theodore plant and that code 343, Nytal 300,
"was used a lot from the mid-'70's to 2002 at Theodore."
Second, Sanders also produced substantial evidence as to
the extent of Dansby's exposure to Nytal. Witnesses confirmed
the presence and use of Nytal on a daily basis at both the
Conception plant and then at the Theodore plant. Witnesses
also testified to the dusty conditions created when pigments
were added to the paint mixture. Witnesses testified that
Dansby entered the area where Nytal was used multiple times
per day for 37 years. In addition, at least one witness
further testified that the filling room at the Theodore plant,
where Dansby worked beginning in the mid-1970s, was located
beneath the mixing room and that dust from the mixing area
entered Dansby's work area on a regular basis.
In sum, when the evidence is viewed, as it must be, in
the light most favorable to Kruse, the summary judgment
entered by the trial court cannot be sustained on mere
product-identification grounds. A reasonable inference exists
that Dansby was exposed to Nytal talc supplied by Vanderbilt
during the period he was employed by Mobile Paint. Whether
41
1121382
that exposure was a "substantial factor" in causing Dansby's
mesothelioma is a separate issue.
IV. Conclusion
Based on the foregoing, the trial court erred in entering
a summary judgment in favor of Vanderbilt. The trial court
entered its judgment on a basis not contemplated by its own
scheduling order and, in fact, not presented in the motion for
a summary judgment filed in keeping with that order (and, in
any
event,
Sanders
subsequently
presented
substantial
evidence
contradicting that basis for the summary judgment). Sanders
also presented substantial evidence that Dansby was
exposed
to
Nytal talc supplied by Vanderbilt during his employment at
Mobile Paint, thus demonstrating a genuine issue of fact as to
the issue actually raised in the motion for a summary
judgment. Accordingly, the judgment of the trial court is due
to be reversed and the cause remanded.
REVERSED AND REMANDED.
Moore, C.J., and Main and Bryan, JJ., concur.
Bolin, J., concurs in the result.
42 | September 30, 2015 |
16d2c7dc-e8c9-4759-a82d-ff5db51a01aa | U.S. Bank National Ass'n v. Shepherd | N/A | 1140376, 1140450 | Alabama | Alabama Supreme Court | REL: 11/20/2015
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, 2015-2016
____________________
1140376
____________________
U.S. Bank National Association, as trustee for Structured
Asset Investment Loan Trust, Mortgage Pass-Through
Certificates, Series 2004-4
v.
Emily Faye Shepherd and Chester Shepherd
____________________
1140450
____________________
Bank of America, N.A.
v.
Emily Faye Shepherd and Chester Shepherd
Appeals from Lamar Circuit Court
(CV-11-900021)
1140376, 1140450
STUART, Justice.
U.S. Bank National Association ("USB"), successor in
interest to Bank of America, N.A., which is the successor by
merger to LaSalle Bank, National Association, as trustee for
Structured Asset Investment Loan Trust, Mortgage Pass-Through
Certificates, Series 2004-4 ("the Trust"), and Bank of
America,
N.A.
("BOA"),
separately
appeal
a
$3,920,000
judgment
entered against them by the Lamar Circuit Court on trespass
and wantonness claims asserted by Chester Shepherd and Emily
Faye Shepherd. USB also appeals the trial court's judgment in
favor of the Shepherds on its claims related to an alleged
error in a mortgage executed by the Shepherds upon which the
Trust had foreclosed. We reverse and remand.
I.
In the late 1970s, the Shepherds began receiving property
in Vernon from Emily's family, culminating in their ownership
of three contiguous parcels of real estate located northeast
of the intersection of Holliday Road and Aberdeen Road. As
denominated by the parties, "Parcel 1" is located at 48
Holliday Road and houses a residence built by the Shepherds in
1980, "Parcel 2" is located at 3742 Aberdeen Road and houses
2
1140376, 1140450
a beauty parlor operated by Emily, and "Parcel 3" consists of
unimproved pastureland behind and adjacent to the other two
parcels.
In April 1999, the Shepherds obtained a $61,000 loan from
Superior Bank. That loan was secured by a mortgage; however,
the recorded mortgage did not contain a legal description of
the encumbered property. In December 2001, the Shepherds
secured a home-equity line of credit with Citizens State Bank
with a mortgage on Parcel 2.
In approximately October 2003, the Shepherds applied to
refinance the April 1999 mortgage loan issued by Superior Bank
with H&R Block, Inc. An appraisal was conducted on Parcel 1
in conjunction with that application, which reported
the
value
of the property to be $86,000. Chester and Emily have both
testified that it was their intent that the new mortgage
encumber Parcel 1; however, at some point during the
application
process
Chester
noticed
that
the
legal
description
of the encumbered property used in the draft documents was
actually the legal description for Parcel 2. The conversation
log maintained by H&R Block indicates that Chester notified it
of a problem with the legal description during the application
3
1140376, 1140450
process; however, the mistake was apparently never corrected,
because, when Linda Meadows, an independent notary public,
brought the closing papers to the Shepherds on December 26,
2003, the mortgage indicated that the encumbered property was
located at "48 Hol[l]iday Road, Vernon," and that it was the
Shepherds' "residence," but the attached legal description of
the property described Parcel 2, on which was not located the
residence but Emily's beauty parlor. Chester testified that,
when he told Meadows of the error in the legal description,
she telephoned Mark Muncher, the H&R Block loan officer in
charge of the Shepherds' loan, and that, after speaking with
Muncher, she told them that Muncher had instructed her to have
them go ahead with the closing and that the error in the legal
description would be corrected at a later time. Accordingly,
1
the Shepherds executed all the documents with which they were
presented, borrowing $68,800, part of which was used to pay
the mortgage-transaction fees and to pay off the balance of
the April 1999 Superior Bank note, and approximately $7,000 of
Paragraph 29 of the December 2003 mortgage obligated the
1
Shepherds to assist H&R Block in correcting any clerical
errors found to exist in the mortgage, and, during the closing
process, the Shepherds also executed a limited power of
attorney authorizing H&R Block to correct such errors.
4
1140376, 1140450
which was disbursed to the Shepherds. Chester testified that
he contacted Muncher and H&R Block repeatedly in the ensuing
months trying to get the error in the legal description
corrected but that they took no action regarding the error.
In April 2004, the Shepherds' December 2003 mortgage was
assigned to Option One Mortgage Corporation, a subsidiary of
H&R Block. In August 2005, the December 2003 mortgage was
assigned to the Trust, which had been created by Lehman
Brothers Holdings, Inc., in April 2004, and which was
administered
by
LaSalle
Bank,
National
Association,
as
trustee
until USB replaced it as trustee on September 6, 2011. It
2
appears, however, that Option One Mortgage continued to
service the December 2003 mortgage even after it was assigned
to the Trust, at least until Option One Mortgage itself was
acquired by Homeward Residential Holdings, Inc., in
April
2008
and Homeward Residential began servicing the mortgage.
3
LaSalle Bank was acquired by and merged into BOA in
2
October 2007; however, actions in this case were still taken
in the name of LaSalle Bank even after that date of merger
when LaSalle Bank presumably would have ceased operating as a
separate entity.
As the Supreme Judicial Court of Massachusetts has
3
explained in an unrelated case involving many of these same
entities –- USB, Lehman Brothers Holdings, and Option One
Mortgage –– the object of the transactions involving the
5
1140376, 1140450
Chester has testified that he telephoned Option One Mortgage
multiple times attempting to get the legal description of the
property encumbered by the December 2003 mortgage corrected;
however, he testified that it never responded to his requests.
Sometime in the early summer of 2004, Chester, who was
self-employed,
began
having
health
problems
that
prevented
him
from working, and the Shepherds fell behind in their payments
on the December 2003 mortgage. On August 31, 2004, Chester
filed a petition for bankruptcy relief under Chapter 13 of the
United States Bankruptcy Code in the United States Bankruptcy
Court for the Northern District of Alabama. In that petition,
Chester listed Option One Mortgage as a secured creditor
pursuant to a mortgage he alleged it held on Parcel 1.
However,
Chester's
bankruptcy
petition
was
eventually
dismissed after he failed to make the payments required by the
court-approved repayment plan.
In a letter dated June 27, 2005, the Shepherds were
contacted by Morris Schneider & Prior, LLC ("Morris
Shepherds' December 2003 mortgage and the Trust was to pool a
number of mortgages and then convert them "into mortgage-
backed securities that can be bought and sold by investors ––
a process known as securitization." U.S. Bank, N.A. v.
Ibanez, 458 Mass. 637, 641, 941 N.E.2d 40, 46 (2011).
6
1140376, 1140450
Schneider"), an Atlanta law firm that had been retained to
collect on the debt owed Option One Mortgage by the
Shepherds. Morris Schneider advised the Shepherds via letter
4
that its collection efforts could include the commencement of
foreclosure proceedings on the property located at
48
Holliday
Road. Chester attempted to resolve the problem with the legal
description in the December 2003 mortgage with Morris
Schneider also; however, he states that Morris Schneider was
not responsive. In response to Morris Schneider's collection
efforts, however, Chester, on August 8, 2005, filed another
Chapter 13 bankruptcy petition. That petition again listed
Parcel 1 as being subject to a mortgage held by Option One
Mortgage. Tim Wadsworth, the attorney handling Chester's
bankruptcy petition also contacted Morris Schneider on the
Shepherds' behalf multiple times in an attempt to correct the
legal description in the December 2003 mortgage; however, he
was unsuccessful. The Shepherds simultaneously began efforts
to sell Parcel 1 and even brought a prospective purchaser to
Morris Schneider stated in that letter that it was
4
representing LaSalle Bank as trustee of the Trust, the
creditor on the Shepherds' loan. No explanation is given for
the other evidence in the record indicating that the December
2003 mortgage was not assigned to the Trust until August 2005
–– after this letter was sent.
7
1140376, 1140450
meet with Wadsworth; however, no sale was completed after
Wadsworth advised them all of the title issues stemming from
the error in the legal description of the property encumbered
by the December 2003 mortgage.
Meanwhile, on September 9, 2005, Morris Schneider, now
aware of the problem with the December 2003 mortgage, filed a
substitute mortgage in the Lamar County Probate Court. This
substitute mortgage was the same as the December 2003 mortgage
with the exception of the legal description of the encumbered
property, which was now the legal description for Parcel 3.
5
The Shepherds were not advised that a substitute mortgage had
been filed; Morris Schneider presumably acted pursuant to the
limited power of attorney executed by the Shepherds at the
closing on the December 2003 mortgage. Even after filing the
substitute
mortgage,
however,
Morris
Schneider
did
not
respond
to Wadsworth's or Chester's continued efforts to contact it
throughout the first half of 2006 regarding the erroneous
legal description in the December 2003 mortgage.
USB asserts that the likely reason why the substitute
5
mortgage erroneously described Parcel 3 instead of Parcel 1 is
because the Lamar County tax records indicate that the
Shepherds' homestead claim is attached to Parcel 3.
8
1140376, 1140450
Sometime in September 2006, the Shepherds voluntarily
moved out of their residence on Parcel 1 and moved into a
house they shared with Emily's brother that was located on yet
another parcel of family property adjacent to Parcel 1. The
Shepherds were not ordered out of the house by Morris
Schneider, Option One Mortgage, LaSalle Bank, the Trust, or
any other entity associated with the December 2003 mortgage;
rather, they testified that they were tired of dealing with
the situation and wanted to avoid any eventual eviction ––
even though no eviction was imminent because they were
protected by the automatic stay imposed when Chester filed for
bankruptcy protection in August 2005. Upon moving out, the
Shepherds disconnected all the utilities at the residence and
also ceased making the required home-insurance premium
payments. However, Chester continued to park his vehicle at
the residence on Parcel 1, and he also took care of the yard
work at times.
On March 26, 2007, the bankruptcy court dismissed
Chester's bankruptcy case because of his failure to make all
the required payments under the bankruptcy repayment plan. On
August 23, 2007, Morris Schneider mailed the Shepherds a
9
1140376, 1140450
notice indicating that their debt was being accelerated and
that a foreclosure sale of the property securing the debt
would be held. The legal description of the property attached
to that notice and subsequently published in the West Alabama
Gazette described Parcel 2. On September 20, 2007, the
foreclosure sale was conducted, and the Trust paid $96,624 ––
the amount owed by the Shepherds at that time –– to obtain a
foreclosure deed. That deed described Parcel 3.
On September 24, 2007, Option One Mortgage took
possession of the residence on Parcel 1, installed new locks,
and, for the first time, prevented the Shepherds from having
access to the residence. Option One Mortgage subsequently
listed the residence on Parcel 1 for sale with a real-estate
agent and later attempted to sell it via auction as well.
During this process, it received broker-price opinions, title
reports, and surveys indicating that there were problems with
the title to Parcel 1. Those title issues apparently
prevented the closure of any sale of Parcel 1 for years, even
though, in separate events, the property was once "sold" at
auction and, in June 2008, a signed sales contract was
executed with a different prospective buyer.
10
1140376, 1140450
Finally, on approximately August 1, 2011, the Shepherds
received a letter from Litvak Beasley & Wilson, LLP ("Litvak
Beasley"), a Florida law firm purporting to
represent Fidelity
National
Title
Insurance
Company,
explaining
that
the
December
2003 mortgage and the September 2007 foreclosure deed failed
to properly describe the Shepherds' real property and that the
Shepherds needed to execute various documents to correct the
issue. However, on August 19, 2011, before any further
attempt to address the issue could be made, the residence on
Parcel 1 caught fire and was severely damaged, along with
Chester's truck, which was parked in the carport at the time.
Force-placed insurance had been obtained for the residence
after the Shepherds stopped paying their home-insurance
premiums, and the $68,465 that was paid out under that force-
placed policy was subsequently applied to the Shepherds'
outstanding loan balance.
On September 28, 2011, an action was filed in the Lamar
Circuit Court by Litvak Beasley, purportedly on behalf of
"LaSalle
Bank,
National
Association,
as
trustee
for
Structured
Asset
Investment
Loan
Trust,
Mortgage
Pass-Through
Certificates, Series 2004-4," asking the trial court to quiet
11
1140376, 1140450
and confirm the Trust's title to Parcels 1, 2, and 3, pursuant
to § 6-6-540, Ala. Code 1975. Although the action identified
6
LaSalle Bank, acting as trustee for the Trust, as the
plaintiff, LaSalle Bank had actually ceased operations after
merging into BOA in October 2007 (see note 2 infra); moreover,
USB had been named the new trustee of the Trust on September
6, 2011, approximately two weeks before the complaint
initiating this action was filed.
The
Shepherds
thereafter
filed
an
answer
and
counterclaims,
asserting,
as
amended,
claims
of
negligence
and
wantonness, trespass, slander of title, and breach of
contract. The gravamen of their counterclaims was that they
had executed a mortgage encumbering Parcel 2, that a
Section 6-6-540 provides:
6
"When any person is in peaceable possession of
lands, whether actual or constructive, claiming to
own the same, in his own right or as personal
representative or guardian, and his title thereto,
or any part thereof, is denied or disputed or any
other person claims or is reputed to own the same,
any part thereof, or any interest therein or to hold
any lien or encumbrance thereon and no action is
pending to enforce or test the validity of such
title, claim, or encumbrance, such person or his
personal
representative
or
guardian,
so
in
possession, may commence an action to settle the
title to such lands and to clear up all doubts or
disputes concerning the same."
12
1140376, 1140450
substitute mortgage had then been filed without their
knowledge encumbering Parcel 3, that a foreclosure had been
noticed for Parcel 2 but the foreclosure deed had purported to
convey Parcel 3, and that "LaSalle" had subsequently
"exercised possession over Parcels 1, 2, and 3, even though
LaSalle never had any interest in Parcels 1 or 2, and despite
the invalidity of the foreclosure as to Parcel 3."
USB thereafter obtained Alabama counsel and, on December
10, 2012, filed an amended complaint that was eventually
accepted by the trial court. That amended complaint
identified the plaintiff as USB, acting as trustee for the
Trust, and noted that USB was the successor in interest to
BOA, which was the successor by merger to LaSalle Bank, which
had initially acted as trustee for the Trust. The amended
complaint further alleged three counts, each providing an
alternative basis for the trial court to grant the Trust clear
title to Parcels 1 and 2. The first count was an amended
version of the claim made in the initial complaint asking the
court to quiet title pursuant to § 6-6-540. However, this
time USB sought to quiet title only to Parcels 1 and 2 –– not
Parcel 3 –– and USB accordingly named Citizens State Bank as
13
1140376, 1140450
a defendant based on any interest it might claim in Parcel 2
as a result of the mortgage executed by the Shepherds
encumbering Parcel 2 in December 2001.
The second count set forth in the amended complaint asked
the trial court to enter a judgment pursuant to § 6-6-220 et
seq., Ala. Code 1975, declaring that the Shepherds' December
2003 mortgage and the subsequent foreclosure deed obtained
after that mortgage was foreclosed upon encompassed Parcels 1
and 2, because, USB claimed, that was the intent of the
parties and any error in the documents indicating otherwise
was the product of the mutual mistake of the parties and/or a
scrivener's error. The third count asserted by USB asked the
trial court to reform the legal descriptions of the property
subject to the December 2003 mortgage and resulting
foreclosure deed pursuant to § 35-4-150 et seq., Ala. Code
1975, inasmuch as, USB alleged, it was the intent of the
Shepherds to convey, and H&R Block to receive, an interest in
Parcels 1 and 2 at the time the December 2003 mortgage was
executed and any failure of the document to reflect that
intent was the result of a mutual mistake and/or a scrivener's
error.
14
1140376, 1140450
On July 22, 2013, USB moved the trial court to enter a
summary judgment on its reformation claim and to dismiss the
Shepherds' counterclaims. USB simultaneously filed a motion
noting that it was renouncing any claim to Parcels 2 or 3 and
that, accordingly, Citizens State Bank should be dismissed as
a defendant; accordingly, on July 31, 2013, the trial court
dismissed Citizens State Bank from the case. The Shepherds
thereafter stated that they did not oppose the dismissal of
their negligence, slander-of-title, and breach-of-contract
claims, and, on October 10, 2013, the trial court dismissed
those claims, while denying USB's request for a judgment as a
matter of law in its favor on any other claims.
On December 19-20, 2013, the trial court conducted a two-
day nonjury trial on USB's claims and the Shepherds'
wantonness and trespass claims. On August 12, 2014, the trial
court entered a 17-page judgment in favor of the Shepherds on
all counts. The trial court specifically declined to reform
the December 2003 mortgage because, it reasoned, there was no
mutual mistake inasmuch as the Shepherds and H&R Block were
both aware at the time the mortgage was executed that the
included legal description of encumbered property described
15
1140376, 1140450
Parcel 2. The trial court did not specifically address USB's
arguments invoking § 6-6-540 or requesting a declaratory
judgment, but those claims were broadly denied as well.
With regard to the Shepherds' counterclaims, the trial
court held that the Shepherds had proven their trespass claim
inasmuch as the Trust's agents had taken possession of Parcel
1 in September 2007 without any legal right to do so. It
further held that the Shepherds had proved their wantonness
claim and that the conduct of the various parties toward the
Shepherds "was knowing, intentional, malicious and was
done in
conscious and deliberate disregard, causing damage to the
Shepherds." Accordingly, the trial court awarded the
Shepherds $80,000 in compensatory damages based on the loss of
their residence, $150,000 for mental anguish suffered by
Chester, $750,000 for mental anguish suffered by Emily, and an
additional $2,940,000 in punitive damages. This combined
$3,920,000 judgment was entered in favor of the Shepherds and
against USB as trustee of the Trust, but also against BOA and
LaSalle Bank, although not as trustee.
On September 11, 2014, USB moved the trial court pursuant
to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate its
16
1140376, 1140450
judgment or, in the alternative, to order a new trial or to
remit the damages. That motion argued that the trial court
had committed various errors in the August 12 judgment with
regard to the findings of fact, the conclusions of law, and
the damages award; however, it also argued that the trial
court had erred in entering judgment against BOA and LaSalle
Bank. Following a November 14, 2014, hearing, the trial court
denied USB's motion on December 10, 2014.
Sometime in late November 2014, BOA became aware of the
judgment entered against it when the Shepherds initiated
garnishment proceedings against it. On December 4, 2014, BOA
moved the trial court to set aside the judgment against it and
LaSalle Bank pursuant to Rule 60(b), Ala. R. Civ. P., inasmuch
as, BOA claimed, neither it nor LaSalle Bank had ever owned or
serviced the Shepherds' mortgage and neither was ever served
with process or made a party to the underlying action.
Essentially, BOA argued, it was involved in this case only
because the original complaint had erroneously listed LaSalle
Bank as trustee of the Trust, even though the amended
complaint had then noted that USB was the actual trustee of
the Trust, having succeeded BOA in that position before the
17
1140376, 1140450
complaint was filed, and that BOA had itself succeeded LaSalle
Bank as trustee following its acquisition of LaSalle Bank. On
January 27, 2015, the trial court denied BOA's motion.
USB filed its notice of appeal on January 15, 2015,
challenging the judgment entered by the trial court (docketed
as appeal no. 1140376). BOA filed its own notice of appeal on
February 3, 2015 (docketed as appeal no. 1140450). On March
25, 2015, this Court granted USB and BOA's joint motion to
consolidate the appeals.
II.
This case was decided by the trial court without a jury.
This Court has described the standard of review it generally
applies to a judgment entered following a bench trial as
follows:
"'[W]hen
a
trial
court
hears
ore
tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.' Philpot
v. State, 843 So. 2d 122, 125 (Ala. 2002). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083,
1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.
2d 77, 79 (Ala. 1985)). 'Additionally, the ore
tenus rule does not extend to cloak with a
presumption
of
correctness
a
trial
judge's
18
1140376, 1140450
conclusions of law or the incorrect application of
law to the facts.' Id."
Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).
III.
On appeal, USB and BOA make a number of arguments;
however, we first consider USB's argument that the trial court
should have reformed the December 2003 mortgage to reflect the
true intent of the parties to that document that it encumber
Parcel 1 as opposed to Parcel 2. Section 35-4-153, Ala. Code
1975, sets forth the applicable law; it provides:
"When, through fraud, or a mutual mistake of the
parties, or a mistake of one party which the other
at the time knew or suspected, a deed, mortgage, or
other conveyance 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, insofar as this can be
done without prejudice to rights acquired by third
persons in good faith and for value."
This Court has further explained that reformation of a deed or
mortgage pursuant to § 35-4-153 is appropriate only when
there is "[c]lear, convincing, and satisfactory" evidence
indicating that the conveyance does not truly express the
parties' intent. Mullinax v. Mullinax, 495 So. 2d 646, 648
(Ala. 1986). See also Beasley v. Mellon Fin. Servs. Corp.,
569 So. 2d 389, 394 (Ala. 1990) ("In order to reform a deed
19
1140376, 1140450
pursuant to the statute so as to express the intentions of the
parties thereto, the party seeking reformation has the burden
of proving with clear, convincing, and satisfactory evidence
that the intention he seeks to substitute was that of both
parties."). We further note that § 35-4-151, Ala. Code 1975,
provides that a party bringing a reformation action is
"entitled" to reformation once evidence of intent is
established.
In this case, there was unambiguous testimony from all
the parties to the December 2003 loan establishing that they
intended for the December 2003 mortgage to encumber only
Parcel 1, the lot containing the Shepherds' residence.
Muncher, the H&R Block loan officer who handled the Shepherds'
mortgage application, testified as follows when questioned by
counsel for USB:
"Q:
In terms of the refinance loan, do you have an
understanding of what the mortgage was intended
to encumber?
"A:
What, in terms of paying off their ––
"Q:
What ––
"A:
–– home loan?
"Q:
–– piece of property was being secured?
20
1140376, 1140450
"A:
Yeah. The residence. Yeah. Their primary
dwelling.
"Q:
So if the legal description on the eventual
loan that is executed didn't encumber their
dwelling house, would that be an error?
"A:
Absolutely."
When questioned by counsel for USB, Chester also repeatedly
testified that it was his intent that the December 2003
mortgage encumber Parcel 1:
"Q:
Now would it also be fair to say that it was
you and your wife's intent that that mortgage
covered the house and lot?
"A:
Correct.
"....
"Q:
What you and your wife wanted to do was to fix
that mortgage so it would cover the house and
lot?
"A:
Oh, yes. That's what we intended to.
"....
"Q:
That's what you wanted to do, is to change the
–– or to correct that so that as opposed to the
beauty shop, it was on the house and lot?
"A:
That's –– that was my intention, was to
mortgage the lot and the house.
"Q:
And that intention continued on forward?
"A:
Correct. That's what I wanted to get done,
seen about.
21
1140376, 1140450
"....
"Q:
But the intention has never changed that that
mortgage covered the house and lot; isn't that
correct?
"A:
That's right."
Subsequently,
Emily
confirmed
Chester's
testimony
when
counsel
for USB asked her about her intent at the time she executed
the December 2003 mortgage:
"Q:
Is it fair to say that when you closed the 2003
mortgage in December of 2003, that it was your
intention that that mortgage cover the house
and the lot that you all lived in?
"A:
The house. Yes.
"Q:
Is it your intention that it did not or should
not have covered the beauty shop; is that fair?
"A:
Yes.
"Q:
It's your intention it should not have covered
the pasture land?
"A:
Yes.
"Q:
So it was for the house and lot?
"A:
Yes."
Thus, it is undisputed that both H&R Block and the
Shepherds intended for the December 2003 mortgage to encumber
Parcel 1 rather than Parcel 2. However, in spite of this
clear, convincing, and satisfactory evidence indicating that
22
1140376, 1140450
the December 2003 mortgage did not "truly express the
intention of the parties," § 35-4-153, the trial court
declined to reform the December 2003 mortgage because, at the
time of execution, the parties were cognizant that the
property described in the attached legal description was
Parcel 2. Thus, the trial court concluded, there was no
mutual mistake and § 35-4-153 could not be invoked to reform
the December 2003 mortgage. In support of this analysis, the
trial court cited Beasley, in which this Court stated:
"Where the sole ground for reformation is mistake,
the mistake must be mutual as to all of the parties,
but only in the sense that they must all have agreed
to the same terms and have mistakenly assumed that
those
terms
were
properly
expressed
in
the
instrument."
569 So. 2d at 394. The Shepherds argue that nobody
"mistakenly assumed" that the legal description in the
December 2003 mortgage referred to Parcel 1; rather, they
argue, everybody had actual knowledge that the property
described was Parcel 2 even though they intended for the
property described to be Parcel 1. Thus, they argue,
reformation was not appropriate and the trial court correctly
declined to apply § 35-4-153.
23
1140376, 1140450
Section 35-4-153 allows for the reformation of a mortgage
"when, through ... a mutual mistake of the parties, ... a ...
mortgage ... does not truly express the intention of the
parties." In this case, it is undisputed that a mistake was
made –– the preparer of the December 2003 mortgage erroneously
attached a legal description of Parcel 2 to the document when
it is undisputed that the parties intended the mortgage to
encumber Parcel 1, and the attached legal description should
have described that property. Where this case differs from
the "typical" reformation scenario, however, is that the
parties
apparently
recognized
the
mistake
before
executing
the
mortgage, but nevertheless executed it with the intent of
correcting the legal description later. The question
accordingly becomes whether, if H&R Block and the Shepherds
executed the December 2003 mortgage with full knowledge of
that mistake, there was, in fact, any mistake at all. We
conclude that, in this unique circumstance, there was still a
mistake such that reformation under § 35-4-153
is
appropriate.
This Court has stated that, "[i]n construing a contract,
the primary concern of the court is to ascertain the true
intent of the parties." Gwaltney v. Russell, 984 So. 2d 1125,
24
1140376, 1140450
1131 (Ala. 2007). In this case, the true intent of all the
parties has been made manifest by clear and direct testimony,
and it is undisputed that all parties to the December 2003
loan intended for the mortgage to encumber Parcel 1. That was
the agreement the parties had made, and the December 2003
mortgage failed to clearly capture that intent only because of
a mistake by the preparer. In Beasley, this Court explained:
"Where the reformation is based on mistake, the
existence of a valid agreement to which the
instrument can be made to conform is essential. The
trial court cannot make the instrument express a new
contract for the parties. Rather, the principle on
which reformation is based is clear –– if the intent
of the parties was to convey the property actually
described, but the parties were induced to enter
into the agreement by a mistake as to the extent or
nature of the contract, there can be no reformation;
however, 'if the intent was to convey the property
as it was known to exist, but the mistake was in the
description, reformation is proper.' McClintock on
Equity, Ch. 8, § 95 at 258 (1948). (Emphasis
added.) Such an error establishes mutuality of
mistake, and, when one seeks reformation it is
immaterial who employed the draftsman."
569 So. 2d at 393-94. Nobody disputes that in this case the
Shepherds intended to convey to H&R Block a security interest
in Parcel 1, but there was a mistake in the legal description
of the property. Therefore, because "'the intent was to
convey the property as it was known to exist, but the mistake
25
1140376, 1140450
was in the description, reformation is proper.'" Id. Although
Beasley elsewhere indicates that reformation is proper only
when the parties have "mistakenly assumed" that their agreed-
upon terms were properly expressed in the document effecting
the conveyance, 569 So. 2d at 394, nothing in the language of
§ 35-4-153 prevents reformation merely because the parties
were all aware of the mistake in the executed document. The
determining factor is still the parties' intent, and even at
the time the Shepherds and H&R Block were executing the
December 2003 mortgage fully aware that the legal description
of the encumbered property mistakenly described Parcel 2, it
is undisputed that their intent was to encumber Parcel 1 and,
in fact, that they thereafter acted as if Parcel 1 were the
encumbered property. To decline reformation under these
circumstances would require this Court to ignore the
undisputed facts and, instead, to effectively enforce a new
agreement the parties never made or desired.
Having
concluded
that
USB
established
by
clear,
convincing, and satisfactory evidence that it was entitled to
reformation of the December 2003 mortgage to reflect the
undisputed true intent of the parties to the December 2003
26
1140376, 1140450
loan, we turn to the judgment entered on the Shepherds'
trespass and wantonness claims. In Boyce v. Cassese, 941 So.
2d 932, 945 (Ala. 2006), this Court stated:
"A trespass to property is a wrong against the right
of possession or entry. Jefferies v. Bush, 608 So.
2d 361, 362 (Ala. 1992); AmSouth Bank v. City of
Mobile, 500 So. 2d 1072 (Ala. 1986). If a party
enters property or possesses property under a legal
right, entry or possession pursuant to that right
cannot constitute a trespass."
In Sharpe v. Wells Fargo Home Mortgage (In re Sharpe), 391
B.R. 117, 159-61 (Bankr. N.D. Ala. 2008), the United States
Bankruptcy Court for the Northern District of Alabama further
considered Alabama law regarding a mortgagee's right to take
possession
of
mortgaged
property
after
the
borrower's
default,
explaining:
"Researching possession in the context of a
mortgage is complicated under Alabama law because of
references in older cases to mortgages where the
collateral was personal property not real property.
Historically chattel mortgages were common and
possession upon default in those situations involved
a right to possess the personal property. There is
however one case that appears to have established
the same general rule for both types of property.
The opinion in Harmon v. Dothan Nat. Bank, 186 Ala.
360, 64 So. 621 (1914) includes:
"'Under the theory of mortgages prevailing
in this state, nothing can be clearer than
the proposition that after default the
legal title of the mortgagee is perfect.
27
1140376, 1140450
Indeed, foreclosure adds nothing to the
legal title, and its only office and value
is to cut off the equity of redemption.
The mortgagee's legal title carries, of
course, the right of possession, and, in
the case of chattels, possession taken by
the mortgagee after default leaves in the
mortgagor no interest except an equity of
redemption –– which is cognizable and
enforceable only in a court of equity.'
"[186 Ala. at 363, 64 So.] at 622.
"The above is clarified in Moorer v. Tensaw Land
& Timber Co., 246 Ala. 223, 20 So. 2d 105 (1944).
The opinion there includes:
"'A mortgage effective at law passes the
legal title to the mortgagee, who is
entitled to the immediate possession of the
land even before default, unless it is
provided in it (or by separate instrument)
that the possession shall remain in the
mortgagor. ...'
"[246 Ala.] at 227, 20 So. 2d 105.
"....
"...
Upon
the
plaintiffs'
default,
the
defendant
had a right to possession of the property. Because
it had a right to possession, it could not be guilty
of trespass, whether direct or indirect."
(Footnotes omitted.) The undisputed evidence in this case
similarly establishes that the Shepherds were in default at
the time the Trust's agents allegedly trespassed onto Parcel
1. The December 2003 mortgage explicitly provides that "[i]f
28
1140376, 1140450
Borrower fails to perform the covenants and agreements
contained in this security instrument ... then Lender may do
and pay for whatever is necessary to protect the value of the
Property and Lender's rights in the Property." This provision
surely entails the right to enter and to secure the subject
property. Because the Trust had a right to possession of
Parcel 1 at the time of the alleged trespass, it could not be
guilty of trespass. The trial court's judgment in favor of
7
the Shepherds on their trespass claim is accordingly due to be
reversed. Boyce, 941 So. 2d at 945.
The Shepherds' wantonness claim similarly was based in
large part on actions the Trust's agents took that were lawful
and appropriate based on the Shepherds' default and the
Trust's security interest in Parcel 1. In its order entering
judgment, the trial court described the Shepherds' wantonness
claim as follows:
"The Shepherds have asserted a claim of
wantonness based on the actions of the Bank. After
This is true even though the December 2003 mortgage had
7
not been reformed at that time. We have held in this opinion
that USB is entitled to reformation of the December 2003
mortgage, and reformation, once granted, is "effective as of
the date of the instrument to be reformed." Monroe v. Martin,
726 So. 2d 701, 703 (Ala. Civ. App. 1998) (citing Beason v.
Duke, 246 Ala. 387, 389, 20 So. 2d 717, 718 (1945)).
29
1140376, 1140450
it was on notice, the Bank had a duty to stop
foreclosure; not take possession; cooperate and
communicate with the Shepherds to cure the title
problems; allow a sale to avoid foreclosure; put the
Shepherds back into possession; cease efforts to
sell the residence; and not cloud the title to other
parcels of the Shepherds' property."
As explained above, however, once the Shepherds defaulted,
the
Trust did have the right to foreclose on Parcel 1, to take
possession of Parcel 1, to block the Shepherds from possessing
Parcel 1, and to attempt to sell Parcel 1. Those actions were
within the Trust's rights as mortgagee, and it accordingly
cannot be liable for wantonness based on those actions.
Moreover, to the extent the trial court held that the
Shepherds had proven their wantonness claim based on the
actions of the Trust that clouded the title to other parcels
of property owned by the Shepherds, this Court has rejected
the notion that such actions constitute wantonness. In
Alabama Power Co. v. Laney, 428 So. 2d 21, 22 (Ala. 1983),
this Court reversed a judgment entered on negligence and
wantonness claims in a property-dispute case, explaining that
"[a] review of Alabama law shows that this state does not
afford a cause of action for any negligence or wantonness in
30
1140376, 1140450
asserting claim of title to real property in a boundary line
dispute." The Laney Court further explained:
"Each property owner has a perfect legal right to
protect his title. Therefore, this Court finds that
there is no reason to create a new cause of action
recognizing a legal duty to not assert or claim
ownership to real property that is owned or claimed
by another. Adequate remedies exist for landowners
damaged by assertions of claim by another without
the recognition of a new cause of action.
"For example, actions for slander of title are
brought under section 6–5–211, Code 1975, which
states, 'The owner of any estate in lands may
commence an action for libelous or slanderous words
falsely and maliciously impugning his title.' The
language of this statute makes it clear that it was
enacted with situations such as this case in mind."
428 So. 2d at 23. Although this is not a boundary-line-
dispute case, the same logic applies. If the Shepherds
believed the actions of the Trust clouded the title to their
other property, they could have pursued a slander-of-title
claim. The Shepherds did initially assert such a claim, but
they thereafter consented to its dismissal. Under Laney,
however, they could not continue to pursue a slander-of-title
claim under the guise of a wantonness claim.
The last basis put forth by the trial court for entering
a judgment in favor of the Shepherds on their wantonness claim
is that the Trust breached a duty to "cooperate and
31
1140376, 1140450
communicate with the Shepherds to cure the title problems."
With regard to this specific claim, and, indeed, all the other
wantonness claims previously discussed as well, we note that
the relationship between the Shepherds and the Trust is based
upon the mortgage and is therefore a contractual one; that is
to say, "the duties and breaches alleged by [the Shepherds]
clearly would not exist but for the contractual relationship
between the parties." Prickett v. BAC Home Loans, 946
F.Supp.2d 1236, 1244 (N.D. Ala. 2013). This Court has held
that the proper avenue for seeking redress when contractual
duties are breached is a breach-of-contract claim, not a
wantonness claim. See, e.g., Barber v. Business Prods. Ctr.,
Inc., 677 So. 2d 223, 228 (Ala. 1996), overruled on other
grounds by White Sands Grp., LLC v. PRS II, LLC, 32 So. 3d 5
(Ala. 2009). Following this principle, federal courts
applying Alabama law have repeatedly rejected attempts to
assert wantonness claims based on a lender's actions handling
and servicing a mortgage once the mortgage is executed. For
example, in James v. Nationstar Mortgage, LLC, 92 F.Supp.3d
1190, 1198-1200 (S.D. Ala. 2015), the United States District
Court for the Southern District of Alabama stated:
32
1140376, 1140450
"As defendants correctly point out in their
motion, a veritable avalanche of recent (and
apparently unanimous) federal precedent has found
that no cause of action for negligent or wanton
servicing of a mortgage account exists under Alabama
law. See, e.g., Ott v. Quicken Loans, Inc., [No.
2:13-CV-441-WHA] (M.D. Ala. Jan. 20, 2015) ('Alabama
law recognizes no such form of action in this
context. Specifically, there is an emerging
consensus that Alabama law does not recognize a
cause of action for negligent or wanton mortgage
servicing.') (citations and internal quotation marks
omitted); Branch Banking and Trust Co. v. EBR
Investments LLC, [No. 2:14-CV-01578-WMA] (N.D. Ala.
Jan. 16, 2015) ('Numerous federal courts, including
the undersigned, have concluded that Alabama law
does not recognize a cause of action for negligent
or wanton mortgage servicing.') (citations and
internal quotation marks omitted); Alverson v. PNC
Bank, [No. 14-00387-CB-B] (S.D. Ala. Dec. 15, 2014)
('Alabama law does not recognize a tort-like cause
of action for breach of a duty created by contract,
at least not between the parties to a contract;
therefore, a mortgagor cannot maintain a cause of
action against ... a mortgagee for negligent or
wanton servicing of a mortgage contract.').
"The point is simple. Every single one of these
cases (and many others not cited herein) rejects the
availability of negligence and wantonness claims
under Alabama law under comparable circumstances to
those identified by the [plaintiffs]. Every one of
these cases undercuts the legal viability of [the
plaintiffs' negligence and wantonness claims], and
rejects the very arguments articulated by the
[plaintiffs] in opposing dismissal of those causes
of action. ... This ground having been thoroughly
and exhaustively plowed in the aforementioned case
authorities, no constructive purpose would be served
by re-plowing it here. Suffice it to say that the
Court agrees with these decisions' construction of
Alabama law, and particularly their recognition that
33
1140376, 1140450
the mortgage servicing obligations at issue here are
a creature of contract, not of tort, and stem from
the underlying mortgage and promissory note executed
by the parties, rather than a duty of reasonable
care generally owed to the public. To the extent
that the [plaintiffs] seek to hold defendants liable
on theories of negligent or wanton servicing of
their mortgage, [those negligence and wantonness
claims] fail to state claims upon which relief can
be granted."
(Footnotes omitted.) The James court has correctly stated
Alabama law as it applies to claims alleging that lenders have
acted wantonly with regard to servicing and handling
mortgages. We further note that, in this case, the December
2003 mortgage specifically discusses the correction of
clerical errors and provides that "Borrower further agrees
that Lender will not be liable to Borrower for any damages
incurred by Borrower that are directly or indirectly caused by
any such error." For all these reasons, the trial court
8
erred by entering a judgment in favor of the Shepherds on
their wantonness claim.
IV.
USB also notes that, although the Shepherds are claiming
8
that they were damaged by the Trust's extended failure to
cooperate in curing the title problems, the Shepherds had the
same legal rights as the Trust and could have taken action to
reform the December 2003 mortgage or quiet title to their
property at any time without regard to the Trust's cooperation
or lack thereof. (Trust's reply brief, pp. 18-19.)
34
1140376, 1140450
Having concluded that the Trust established that it was
entitled to have the December 2003 mortgage reformed to
express the true intent of the parties to the December 2003
transaction, it is unnecessary to consider the other bases for
relief asserted by USB, including its arguments concerning
the
amount of mental-anguish and punitive damages awarded by the
trial court. Moreover, because the $3,920,000 judgment
entered in favor of the Shepherds on their trespass and
wantonness claims is due to be reversed, it is also
unnecessary to consider whether it was proper for the trial
court to enter that judgment against BOA and LaSalle Bank.
The trial court's judgment is reversed and the cause
remanded for the trial court to enter a judgment reforming the
December 2003 mortgage consistent with the intent of the
parties to the December 2003 transaction as established by the
undisputed evidence at trial and for any other proceedings
consistent with this opinion.
1140376 –– REVERSED AND REMANDED.
1140450 –– REVERSED AND REMANDED.
Parker, Shaw, and Wise, JJ., concur.
Moore, C.J., concurs in the result.
35 | November 20, 2015 |
32986f10-54d1-4a42-b848-00166db53051 | Ex parte S.C. | N/A | 1141195 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1141195
____________________
Ex parte S.C.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: S.C.
v.
DeKalb County Department of Human Resources)
(DeKalb Juvenile Court, JU-13-10.02;
Court of Civil Appeals, 2140248)
STUART, Justice.
WRIT DENIED. NO OPINION.
1141195
Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Stuart, J., concurs specially.
Moore, C.J., and Murdock, J., dissent.
2
1141195
STUART, Justice (concurring specially).
The DeKalb Juvenile Court terminated the parental rights
of S.C., the father, to his minor child. The Court of Civil
Appeals affirmed the juvenile court's judgment, without an
opinion. S.C. v. DeKalb Cnty. Dep't of Human Res. (No.
2140248, July 24, 2015), ___ So. 3d ___ (Ala. Civ. App.
2015)(table).
The father petitioned this Court
for
certiorari
review of the Court of Civil Appeals' decision, arguing that
the record did not contain clear and convincing evidence of
the child's dependency so as to support the termination of his
parental rights.
"This court's standard of appellate review of
judgments terminating parental rights is well
settled. A juvenile court's factual findings, based
on ore tenus evidence, in a judgment terminating
parental rights are presumed to be correct and will
not be disturbed unless they are plainly and
palpably wrong. See F.I. v. State Dep't of Human
Res., 975 So. 2d 969, 972 (Ala. Civ. App. 2007).
Additionally, we will reverse a juvenile court's
judgment terminating parental rights if the record
shows that the judgment is not supported by clear
and convincing evidence. F.I., 975 So. 2d at 972.
'Clear and convincing' evidence has been defined as
'"'[e]vidence that, when weighed against evidence in
opposition, will produce in the mind of the trier of
fact a firm conviction as to each essential element
of the claim and a high probability as to the
correctness of the conclusion.'"' J.A. v. Etowah
County Dep't of Human Res., 12 So. 3d 1245, 1252
(Ala. Civ. App. 2009)(quoting L.M. v. D.D.F., 840
3
1141195
So. 2d 171, 179 (Ala. Civ. App. 2002)(quoting in
turn § 6–11–20(b)(4), Ala. Code 1975)). '"Proof by
clear and convincing evidence requires a level of
proof greater than a preponderance of the evidence
or the substantial weight of the evidence, but less
than beyond a reasonable doubt."' Southeast Envtl.
Infrastructures, L.L.C. v. Rivers, 12 So. 3d 32, 48
(Ala. 2008)(quoting § 6–11–20(b)(4), Ala. Code
1975).
"Our juvenile courts use a two-pronged test to
determine whether to terminate parental rights:
"'A juvenile court is required to
apply a two-pronged test in determining
whether to terminate parental rights: (1)
clear and convincing evidence must support
a finding that the child is dependent; and
(2) the court must properly consider and
reject all viable alternatives to a
termination of parental rights.'
"B.M. v. State, 895 So. 2d 319, 331 (Ala. Civ. App.
2004) (citing Ex parte Beasley, 564 So. 2d 950, 954
(Ala. 1990))."
C.S.B. v. State Dep't of Human Res., 26 So. 3d 426, 429-30
(Ala. Civ. App. 2009).
Section 12-15–319, Ala. Code 1975, provides:
"(a) If the juvenile court finds from clear and
convincing
evidence,
competent,
material,
and
relevant in nature, that the parents of a child are
unable
or
unwilling
to
discharge
their
responsibilities to and for the child, or that the
conduct or condition of the parents renders them
unable to properly care for the child and that the
conduct or condition is unlikely to change in the
foreseeable future, it may terminate the parental
rights of the parents. In determining whether or not
4
1141195
the parents are unable or unwilling to discharge
their responsibilities to and for the child and to
terminate the parental rights, the juvenile court
shall consider the following factors including, but
not limited to, the following:
"....
"(2)
Emotional
illness,
mental
illness, or mental deficiency of the
parent, or excessive use of alcohol or
controlled substances, of a duration or
nature as to render the parent unable to
care for needs of the child.
"....
"(7) That reasonable efforts by the
Department of Human Resources or licensed
public or private child care agencies
leading toward the rehabilitation of the
parents have failed.
"....
"(9) Failure by the parents to provide
for the material needs of the child or to
pay a reasonable portion of support of the
child, where the parent is able to do so.
"....
"(12) Lack of effort by the parent to
adjust his or her circumstances to meet the
needs of the child in accordance with
agreements reached, including agreements
reached with local departments of human
resources
or
licensed
child-placing
agencies, in an administrative review or a
judicial review."
5
1141195
Mindful of the foregoing principles and that every parent
has a prima facie right to the custody of his or her child and
that that right may be overcome only by clear and convincing
evidence that the termination of parental rights is in the
best interests of the child, see D.A. v. Calhoun Cnty. Dep't
of Human Res., 892 So. 2d 963 (Ala. Civ. App. 2004), I concur
with the majority that a review of the facts, as presented by
the father in his petition for certiorari review, establishes
that the juvenile court's judgment terminating the father's
parental rights is supported by clear and
convincing
evidence.
The facts before this Court indicate that, although the
father had secured stable housing for him and the child and
had consistently visited with the child, who was in foster
care, during the pendency of this case, the father is
otherwise currently unable to discharge his parental duties
properly and that his inability to properly care for the child
will likely persist in the foreseeable future. After the
child entered the care of the DeKalb County Department of
Human Resources ("DHR"), the father met with a DHR worker and
the following goals were set for the father to satisfy before
he could be reunited with the child:
6
1141195
1. The father would obtain safe and stable housing;
2. The father would obtain employment;
3. The father would submit to a psychological
evaluation;
4. The father would remain bonded with the child
through visitation;
5. The father would have transportation;
6. The father would submit to "random color-code
drug and alcohol monitoring";
7. The father would submit to a substance-abuse
assessment at The Bridge, a substance-abuse center;
and
8. The father would complete counseling and
parenting classes.
The facts, as presented by the father, indicate that at
the time of the hearing the father had obtained stable
housing; that the father had had periodic employment but was
at
that
time
unemployed
with
no
pending
employment
opportunity; that the father had completed a psychological
evaluation; that the father had fairly consistently visited
with the child; that the father had obtained transportation
but that it was unreliable; that the father had not
consistently submitted to drug and alcohol monitoring; that
the father had not submitted to a substance-abuse assessment
7
1141195
at The Bridge; that the father had been arrested for third-
degree criminal
mischief, possession of a
controlled
substance, and possession of drug paraphernalia since DHR had
become involved with the family; and that the father had not
engaged in, much less completed, counseling or parenting
classes. The father did testify that he loved his child and
that he wanted to be a father again, but he does not include
in his statement of facts testimony indicating that he
understood the needs of the child beyond the need for housing
or that he understood the steps he needed to take to improve
his parenting skills to be able to personally care for the
child.
The facts, as presented by the father, establish that the
juvenile court's judgment to terminate his parental rights is
not, as the dissent urges, the result of the father's poverty.
The judgment is based on clear and convincing evidence that,
with the exception of attaining housing, the father did not
work toward reunification with the child by changing his
conduct and circumstances and by developing his parenting
skills so that he could provide for the child.
Rule 39(a), Ala. R. App. P., provides:
8
1141195
"Certiorari review is not a matter of right, but of
judicial discretion. A petition for a writ of
certiorari will be granted only when there are
special and important reasons for the issuance of
the writ."
Because
the
facts,
as
presented
by
the
father,
demonstrate that the juvenile court's judgment to terminate
the father's parental rights is supported by clear and
convincing evidence, I conclude that the father has not
pleaded a "special and important reason" for the issuance of
the writ, and I concur with the majority's decision to deny
the father's petition for a writ of certiorari.
9
1141195
MOORE, Chief Justice (dissenting).
I respectfully dissent from the denial of the petition
for a writ of certiorari filed by S.C. ("the father"). I would
grant the petition because, in my opinion, the father's
verified statement of facts does not support the finding that
the father's minor child, a daughter, was dependent. Rather,
the facts suggest that the DeKalb Juvenile Court ("the
juvenile court") found the child to be dependent because of
the father's living conditions, which are a result of his
poverty. I would grant the petition to examine the record for
evidence of dependency and to ensure that the State is not
separating this child from her natural parent because of
conditions common among the poor and underprivileged.
Having received a report about the child's living
conditions, the DeKalb County Department of Human Resources
("DHR") became involved with the family on January 9, 2013.1
Beth McDaniel, a DHR caseworker, testified that, when she
visited the residence in which the child was living with the
father and the mother she found the mother, the father, and
the child living in a 10' x 10' block building with dirt
The mother is not a party to this proceeding.
1
10
1141195
floors, a poorly kept roof, and no electricity or running
water. She testified that, although the building had a wood
2
heater, the wood stacked outside the building was wet. She
stated that two mattresses were lying on the dirt floor and
that clothes and other belongings were stacked throughout the
residence, including on the mattresses and on the wood heater.
The child was placed in foster care. DHR held an
individualized-service-plan ("ISP") meeting on January 21,
2013, which both the father and the mother attended. DHR also
held
several subsequent ISP
meetings.
These meetings
established, among other things, that, as part of the ISP, the
father and the mother should obtain safe and stable housing
and employment, should undergo psychological evaluations and
drug and alcohol monitoring, should maintain visitation with
the child while she was in foster care, should submit to a
substance-abuse
assessment,
and
should
complete
counseling
and
parenting classes; that the child should be examined for
sexual abuse; and that the child should remain in a foster
The father's petition refers to testimony from different
2
hearings. It is unclear from the petition how many hearings
were held and at which hearings the testimony occurred.
11
1141195
home. At some point during these proceedings, the mother and
the father separated.
McDaniel testified that, after the father and the mother
moved out of their residence and separated, the father began
living in a house owned by his grandmother, who no longer
resided in the house. The child would visit the father at this
house. The father testified that he had been living in this
house for approximately one year. The house was safe and had
three bedrooms, a new roof, electricity, running water, and
multiple sources of heat, including a gas heater, a wood
heater, and electric heat. McDaniel testified that the living
conditions in the house were adequate.
DHR referred the father to counseling with Michael Smith,
a licensed counselor who had contracted with DHR to provide
counseling services for DHR. Smith testified that he met with
the father for an initial session on November 5, 2013, and
that, during the session, the father communicated with him but
blamed others for his troubles rather than accepting personal
responsibility. Smith testified that he scheduled a second
session with the father for November 24, 2013, but that the
father did not appear for the session. Smith testified that he
12
1141195
was unable to reach the father by telephone and that he had no
further contact with the father after the first session. Smith
stated that the father did not contact him about rescheduling;
that his clients have access to his cell-phone number and can
call, text, or e-mail him; and that a client's lack of a
telephone would interfere with the client's ability to
communicate with him. The father lacked a telephone. Smith
admitted that he did not send any letters to the father and
that he informs clients during their initial session that it
is their responsibility to contact him if they miss a session.
Smith contacted the father's caseworker at DHR to advise her
that the father had missed a session.
The father testified that he was unemployed and that he
had difficulty finding a job because he dropped out of school
in the 11th grade and never earned a General Equivalency
Diploma (GED). He testified that he had held several jobs
since DHR became involved with his child. He claimed that he
lost jobs because he missed work to attend hearings in this
case. His latest job was, he says, at Bass Tree Service, but
he said he lost that job after his employer died in a
work-related accident. The father says he worked for two
13
1141195
months at a heating, air, and tree-service business but was
laid off with other workers. Before that job, he says, he
worked for Trees Unlimited for approximately two months but
lost that job because he missed work to attend hearings in
this case. The father also testified that he worked odd jobs
and sold scrap metal and had "walked all over" for two months
trying to obtain employment.
According to the father, there is no evidence indicating
that the child was ever sexually abused. The father submitted
to a psychological evaluation by Dr. David Wilson at Gadsden
Psychological Services, LLC, on June 25, 2013. Dr. Wilson
determined that the father had good verbal skills, that he
communicated adequately, and that he possessed good nonverbal
skills. Dr. Wilson's only concern was with the father's
short-term or working memory. Wilson testified that the
father
"reads pretty well in the average range." He also testified
that the father was capable of raising the child. Dr. Wilson
indicated, however, that the father needed to accept
responsibility for his actions and undergo counseling.
While the child was in foster care, DHR allowed the
father and the mother to have supervised visitation with the
14
1141195
child for two hours each Friday. McDaniel testified that,
although the mother was inconsistent with her visitation, the
father consistently visited the child. The father recently
visited the child on her birthday, hung balloons for her
birthday party, and bought her a gift.
The father alleges that the child struggles in her foster
homes and is now in her fifth foster home. McDaniel testified
that the first foster home was not a good fit for the child,
that the child was removed from the second foster home because
of allegations of sexual abuse by the foster parent, and that
the third foster home was merely a temporary placement while
the allegations of sexual abuse by the previous foster parent
were investigated. After the investigation revealed no sexual
abuse, the child was returned to the second foster home until
those foster parents moved out of state and chose to no longer
be foster parents. The child was removed from her fourth
foster home because the foster parents could not deal with her
behavior. The child was in her fifth foster home at the time
of the termination hearing.
The father testified that he had an operational vehicle
during the pendency of this case. Although his truck allegedly
15
1141195
was broken down on the date of one hearing, he stated that he
had walked approximately 30 miles to attend the hearing.
In August 2013 the father was arrested for criminal
mischief in the third degree when he broke a window in his
grandmother's house. In 2014 he was arrested for unlawful
possession of a controlled substance and unlawful possession
of drug paraphernalia. DHR asked him to undergo drug
assessments at a substance-abuse center and to submit to
random alcohol and drug screening. DHR had no evidence
indicating that the father tested positive for drugs at the
time of his arrests. The father denies the drug-related
charges and claims he was merely riding in a vehicle with
someone who was in possession of drugs. The father alleges
that the drugs belonged to the owner of the vehicle and that
the father did not know the drugs were in the vehicle. The
father testified that he has not been arrested for drugs since
2014. McDaniel testified that, although the father did not
fully comply with the order that he submit to alcohol and drug
screening, he was in compliance with that order at the time of
the termination hearing. The father participates in a drug-
rehabilitation organization called Addicts for Christ.
16
1141195
McDaniel testified that the father never tested positive on a
DHR drug screen.
The father testified that he loves his daughter with all
of his heart and wants to be a father to her again. He says
the child was placed in foster care because of a housing
issue, but he now has adequate housing. The father testified
that he feels as if he has been jumping through hoops but
getting nowhere. I do not believe that Rule 39, Ala. R. App.
P., should serve as another hoop to nowhere. I would issue the
writ to evaluate the facts and merits of the father's case.
17 | September 30, 2015 |
2ac046a3-6cf8-492f-bd54-00621bbbddab | Ross v. Marion | N/A | 1140604, 1140605, 1140606 | Alabama | Alabama Supreme Court | REL:11/06/2015
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, 2015-2016
____________________
1140604
____________________
Walter R. Ross, Jr., M.D.
v.
Anita Marion
____________________
1140605
____________________
Noland Hospital Birmingham, LLC, and Noland Health Services,
Inc.
v.
Anita Marion
____________________
1140606
____________________
Anita Marion
v.
Bernis Simmons, M.D.
Appeals from Jefferson Circuit Court
(CV-2011-900717)
MOORE, Chief Justice.
Anita Marion ("Marion") sued Noland Hospital Birmingham,
LLC, and
Noland Health Services, Inc. (hereinafter referred to
collectively as "Noland"), Walter R. Ross, Jr., M.D., and
Bernis Simmons, M.D., in the Jefferson Circuit Court seeking
damages resulting from the death of her husband, Arthur Marion
("Arthur"). Following a trial, the jury returned a verdict in
favor of Dr. Simmons but against Dr. Ross and Noland. Dr. Ross
and
Noland,
in
cases
no.
1140604
and
no.
1140605,
respectively, appeal from the judgments against them, and
Marion, in case no. 1140606, appeals from the judgment in
favor Dr. Simmons. For the reasons stated herein, we reverse
the judgments in cases no. 1140604 and no. 1140605 and remand
the cause for a new trial as to those defendants, and we
affirm the judgment in case no. 1140606.
2
1140604, 1140605, 1140606
I. Facts and Procedural History
On February 27, 2009, Arthur underwent a kidney-stone-
removal procedure at St. Vincent's East hospital in
Birmingham. Dr. Taylor Bragg performed the procedure, and Dr.
Simmons
was
the
anesthesiologist.
During
the
procedure,
Arthur
suffered a heart attack. Arthur was revived, but the heart
attack
caused
him
to
suffer
hypoxic
encephalopathy
(deprivation of oxygen to the brain), which left him in a
nonresponsive state. On March 19, 2009, Arthur
was
transferred
from St. Vincent's to Noland Hospital Birmingham and was
admitted by Dr. Ross. Arthur remained at Noland Hospital until
April 27, 2009, when he was transferred back to St. Vincent's
to receive dialysis for renal failure. Arthur passed away on
April 28, 2009.
Marion filed this wrongful-death action on February 28,
2011, against, among other defendants, Dr. Ross, Dr. Simmons,
1
and Noland. Although Marion asserted various theories of
The
other
defendants
included
St.
Vincent's
East,
Eastern
1
Urology Associates, P.A., Donald Taylor Bragg, M.D., Mell L.
Duggan, Jr., M.D., Kelly Carmack, CRNA, Mary Greenway, SRNA,
Frank Heckathorn, "RPh, DPh," Tom Novitski, "RPh,"
and
various
fictitiously named defendants. Before trial, Marion dismissed
most of these defendants and settled her claims against the
others.
3
1140604, 1140605, 1140606
liability, the essence of her claim against Dr. Simmons was
that he breached the applicable standard of care by failing to
position Arthur properly during his kidney-stone-removal
procedure and that this breach caused Arthur's blood to be
unable to circulate properly, which in turn caused Arthur's
heart attack and hypoxic encephalopathy. As to her claim
against Dr. Ross, Marion claimed that Dr. Ross breached the
applicable standard of care by prescribing Rocephin, an
antibiotic, to treat an infection Arthur was developing.
Arthur had a documented allergy to Ancef, which, like
Rocephin, is in a class of antibiotics called cephalosporins.
Marion alleged that Dr. Ross failed to note Arthur's allergy
to Ancef and that, if Dr. Ross had noted the allergy, he would
not have prescribed a cephalosporin to treat Arthur's
infection. Marion also alleged that Noland breached the
applicable standard of care by failing to train its nurses to
check for contraindications to medications. Marion alleged
that the administration of Rocephin caused Arthur to develop
a severe allergic reaction known as toxic
epidermal necrolysis
("TEN"). Marion alleged that TEN caused Arthur to develop
sepsis, which, in turn, caused his death.
4
1140604, 1140605, 1140606
The trial lasted from September 8, 2014, through October
3, 2014. Dr. Ross, Dr. Simmons, and Noland moved for a
judgment as a matter of law at the close of Marion's evidence
and again at the close of all evidence. Both motions
challenged the sufficiency of the evidence, and both motions
were denied. After closing arguments, the trial court
instructed the jury and sent it to deliberate.
On October 3, 2014, which was the third day of the jury's
deliberation, Dr. Ross, Dr. Simmons, and Noland moved for a
mistrial. Counsel for Dr. Ross and Noland argued:
"MR. [MICHAEL] BELL[, counsel for Dr. Ross and
Noland]: Judge, I need to make a motion. But I want
to start by making this very clear, clear as I know
how, we are not suggesting that the Court or anyone
associated with the Court has done anything
intentionally wrong. Not at all. We -- what this
relates to is the jury asking questions in the
morning yesterday and then in the afternoon. And
there are multiple cases that say that a Court
cannot instruct a jury outside the presence of
counsel without notifying us, all counsel, and
giving us an opportunity to participate in whatever
questions and answers may happen. No one is
suggesting that anything that the Court did or Court
personnel
did
was
intentionally
improper
and
violative of that rule. But we do know and we
learned yesterday that the jury asked questions
about whether the verdict had to be unanimous,
burden of proof, and then, ultimately, the third
question where we were involved, in terms of what
the evidence was on whether the Rocephin caused the
death. And under various cases, we've got the --
5
1140604, 1140605, 1140606
George [Knox, counsel for Dr. Simmons,] gave Jori
[Jordan, the trial court's law clerk,] one of the
cases, the Savage[ Indus., Inc. v. Duke] case[, 598
So. 2d 856 (Ala. 1992),] this morning. And then
there's the [Petty-]Fitzmaurice [v. Steen] case, 871
So. 2d 771 [(Ala. 2003)]. The only way for us to
preserve and raise that issue at this stage is by
motion for a mistrial. So we -- that's the only way
we can deal with it at this stage, and we're
obligated to raise it timely in relation to while
the jury is still deliberating and once we are on
notice of those questions and answers taking place
without us being notified and us being present and
participate in. So at this time, we do need to move
for mistrial."
The trial court denied the motion, explaining:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
Toward the end of the discussion, the trial court said: "So
I'm sure they will have plenty of questions. We generally ask
them to write their questions down, and then we'll call you in
and let you know what they ask. And that's it."
The jury returned a verdict in favor of Dr. Simmons but
against Dr. Ross in the amount of $100,000 and against Noland
in the amount of $1,300,000. Noland and Dr. Ross each filed a
postjudgment motion for a judgment as a matter of law, or, in
6
1140604, 1140605, 1140606
the alternative, for a new trial, or to alter or amend the
judgment. In those motions, Noland and Dr. Ross argued again
that they were entitled to a new trial because of the trial
court's communications with the jury. Noland and Dr. Ross also
attached affidavits of several jurors, saying, among other
things, that Jori Jordan, the trial court's law clerk, entered
the jury room and had discussions with the jurors. Marion
opposed the motions, submitting affidavits from the trial
court's clerk and several other jurors, denying that the
discussions had taken place.
On January 26, 2015, the trial court denied Noland's and
Dr. Ross's motions, stating, in pertinent part:
"The Defendants' claim that the Court's clerk
was overheard to say in the jury room that their
verdict must be unanimous and that there could be no
hung jury. Submitted affidavits show statements to
be in conflict.
"The Court in its instruction to the jury
informed them that their verdict must be unanimous.
That there could not be what we call a 'jury
quotient.'
"Each juror when asked individually before the
Court, if this was their true and lawful verdict,
answered in the affirmative."
Dr. Ross and Noland filed their notices of appeal to this
Court on March 6, 2015 (cases no. 1140604 and no. 1140605,
7
1140604, 1140605, 1140606
respectively); Marion filed her notice of appeal on March 9,
2015 (case no. 1140606). Marion explicitly stated in her
notice of appeal that she was not challenging the jury's
verdict as to Dr. Simmons; she asks only that, if this Court
reverses the judgments in her favor against Dr. Ross and
Noland and remands the cause for a new trial, her claim
against Dr. Simmons be reinstated as well.
II. Standard of Review
"'It is well established that a ruling on a
motion for a new trial rests within the sound
discretion of the trial judge. The exercise of that
discretion carries with it a presumption of
correctness, which will not be disturbed by this
Court unless some legal right is abused and the
record plainly and palpably shows the trial judge to
be in error.'"
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694
(Ala. 1989) (quoting Hill v. Sherwood, 488 So. 2d 1357 (Ala.
1986)).
III. Discussion
A. Dr. Ross's and Noland's Appeals (cases no. 1140604 and no.
1140605)
Although Dr. Ross and Noland raise multiple issues on
appeal, one issue is dispositive: Whether the trial court
erred in denying the motions for a new trial based on the
8
1140604, 1140605, 1140606
communications between the trial court and the jury that
occurred outside the presence of the parties and counsel.
Dr. Ross and Noland argue that the trial court should
have granted their motions for a new trial based on Matthews
v. Liberty Mutual Insurance Co., 286 Ala. 598, 243 So. 2d 703
(1971). In Matthews, after the jury was sent to deliberate, a
juror knocked on the door of the jury room and told the
bailiff that the jury had a question for the judge. The
bailiff informed the judge, who then went into the jury room.
The judge testified that he asked who was the foreman, and,
after hearing the jury's question, he said only this:
"'"Ladies and gentlemen, when you consider this case, you are
to consider all the evidence and you are to consider all the
matters presented to you by the Court, and you are to consider
them together."'" 286 Ala. at 601-02, 243 So. 2d at 706. A
motion for a mistrial followed, which the trial court denied.
The judge explained that his "'purpose in going in to the jury
room was to ascertain whether or not such matters were
represented there that would call for the presence of
counsel.'" 286 Ala. at 602, 243 So. 2d at 706.
9
1140604, 1140605, 1140606
On appeal, this Court held:
"We understand the general rule to be that the
judge may not, in the absence of counsel, further
instruct the jury, after their retirement, without
making a reasonable effort to notify counsel or
without some special circumstances or excuse being
shown which reasonably prevented notice. Kuhl v.
Long, [102 Ala. 563, 15 So. 267 (1893)]; Feibelman
v. Manchester Fire Assurance Co., [108 Ala. 180, 19
So. 540 (1895)].
"Our court concluded in Feibelman, supra:
"'We can not inquire, in such a case,
what instructions were given by the court
to the jury--whether they were correct or
incorrect, prejudicial or otherwise. ...
The only safe course therefore, when it is
established that the court, without some
overruling
necessity
therefor,
gave
instructions to the jury ... in the absence
of
the
complaining
suitor's
counsel,
engaged in representing him on the trial,
and without reasonable notice to them and
opportunity to be present, is to withhold
all inquiry and investigation into the
correctness of the instructions or action
of
the
court,
and
treat
them
as
conclusively prejudicial, by reason of the
suitor's deprivation of his constitutional
right. ...'"
Matthews, 286 Ala. at 604, 243 So. 2d at 708. The Court cited
the following as the rationale for this rule:
"'It has been wisely stated that 'next to the
tribunal being in fact impartial is the importance
of its appearing so'. Shrager v. Basil Dighton Ltd.,
(1924) 1 K.B. 274, 284. This applies in a special
way to the Judge and his relationship with the jury.
10
1140604, 1140605, 1140606
Without doubting the worthy motives or the well-
intentioned solicitude of the Judge for the wishes
and welfare of the jurors, private communication by
a Judge to or with the jury in the jury room and in
the absence of counsel is almost certain to create
suspicions and a belief of unfairness in the minds
of many people.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 707-08 (quoting
Glendenning v. Sprowls, 405 Pa. 222, 224, 174 A.2d 865, 866
(1961)) (emphasis omitted).
"'Whether or not injury or injustice has
resulted to the litigants by reason of the conduct,
is not our primary concern. Rather, our concern is
with
the
implication
that
attaches
to
the
administration of justice under these
circumstances.
Confidence in our judicial system is imperiled if
such conduct is countenanced in jury trials. Conduct
which if proved would give rise to doubt and
disrespect, or the mere appearance of such conduct
as will not meet with the approval of public
opinion, must be severely condemned. It is only
through the granting of a new trial in situations
like this, as well as vigilant effort by the
officers of the court to prevent such occurrences,
that public confidence in the jury system may be
preserved.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 708 (quoting Daniels
v. Bloomquist, 258 Iowa 301, 306-07, 138 N.W.2d 868, 872
(1965)).
Applying those principles to the case before it, the
Matthews Court found that the trial judge did not have an
"overruling
necessity"
for
communicating
with
the
jury
outside
11
1140604, 1140605, 1140606
the presence of the parties and the parties' counsel and
without giving the parties and counsel reasonable notice and
an opportunity to be present. Although the Court believed the
trial judge was "motivated by a sincere desire to expedite the
trial" and "intended no harm" in his actions, the Court held
that the conduct in question was "of such prejudicial nature
in this instance to warrant reversal." 286 Ala. at 605-06, 243
So. 2d at 710.
In the present case, when Dr. Ross, Dr. Simmons, and
Noland moved for a mistrial, they alleged that, in the absence
of the parties' counsel, the trial court answered questions
about whether the verdict had to be unanimous and about the
burden of proof. The trial court answered:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
This statement suggests that the jury had asked questions
about the burden of proof and about whether the verdict had to
be unanimous, that the trial court had answered those
12
1140604, 1140605, 1140606
questions, and that the trial court informed the parties and
counsel after the fact.
Furthermore, in the motions for a new trial, the
attorneys for Dr. Ross and Noland submitted affidavits that
further raised the question whether the trial court had
improperly instructed the jury. Michael Bell's affidavit
provided, in relevant part:
"3. ... On the afternoon of October 2, 2014,
Judge Helen Shores Lee summoned all counsel to
chambers. ... After I arrived, Judge Lee informed
all counsel that: (1) the jury had asked questions
about the burden of proof; and (2) that the jury's
then pending-question was asking where it was
supposed to look for evidence that Rocephin killed
Mr. Marion.
"4. Counsel and Judge Lee discussed and agreed
upon an appropriate response to the jury's question
about locating evidence. The Court was to instruct
the jury that it had received all of the evidence
during the trial and that was all that it could
consider.
Ms.
Jordan
returned
to
the
jury
deliberation room to deliver this instruction. Ms.
Jordan remained in the jury room for more than a few
minutes.
"5. During the chambers conference on the
afternoon of October 2, 2014, while I was present,
the Court did not tell counsel how it had responded
to the jury's prior questions regarding the burden
of proof and whether the verdict had to be
unanimous. The Court did not inform counsel when the
jury had raised those questions, and the Court did
not involve counsel in responding to those questions
from the jury."
13
1140604, 1140605, 1140606
The affidavit of John Thompson, another attorney representing
Dr. Ross and Noland, said essentially the same thing, adding
that Judge Lee had informed the parties that the jury had also
asked "whether the verdict had to be unanimous."
In its order denying the motions for a new trial, the
trial court admitted to instructing the jury that its verdict
had to be unanimous, but it did not address the defendants'
concern that the trial court had instructed the jury on the
burden of proof. Instead, the trial court appeared to reason
that there was no actual prejudice resulting from the giving
of the additional instructions without counsel's presence.
However, "'[w]hether or not injury or injustice has resulted
to the litigants by reason of the conduct, is not our primary
concern. Rather, our concern is with the implication that
attaches to the administration of justice under these
circumstances.'" Matthews, 286 Ala. at 603, 243 So. 2d at 708
(quoting Daniels, 258 Iowa at 306-07, 138 N.W.2d at 872).
There is no evidence indicating that the trial court attempted
to contact counsel or that it had an "overruling necessity"
for failing to do so. Matthews 286 Ala. at 604, 243 So. 2d at
708.
14
1140604, 1140605, 1140606
The only attempt Marion makes to rebut Dr. Ross's and
Noland's arguments is to say that the "affidavits submitted by
the parties to the trial court speak for themselves." Marion
argues that no misconduct occurred and that this Court should
defer to the discretion of the trial court. However, the
affidavits in question address whether the trial court's law
clerk improperly instructed a single juror as to whether the
jury verdict had to be unanimous. Marion makes no attempt to
address the trial court's concession that the jury was
instructed that the verdict had to be unanimous. Marion also
makes no attempt to address Dr. Ross's and Noland's
allegations –- and the trial court's apparent concession –-
that the trial court instructed the jury as to the burden of
proof outside the presence of the parties and counsel.
Under these circumstances, we have no choice but to
reverse the judgments against Dr. Ross and Noland and to
remand the cause for a new trial. Like the Court in Matthews,
we "are quite certain that the capable and conscientious trial
judge (in whom we repose the highest confidence) intended no
harm" and "was motivated by a sincere desire to expedite the
trial," but we also believe that "we should treat such
15
1140604, 1140605, 1140606
communications
as
'conclusively
prejudicial'
being
a
deprivation of the constitutional right to a fair trial to
which every party litigant is entitled." Matthews, 268 Ala. at
605, 243 So. 2d at 710.
B. Marion's Appeal (case no. 1140606)
On appeal Marion requests that we reinstate her claim
against Dr. Simmons if we reverse the judgments against Dr.
Ross and Noland and remand the cause for a new trial. Marion's
appeal "is in the nature of a conditional cross-appeal, which
becomes ripe for review in the event that the judgment under
review is reversed as a result of the appeal." Huntsville City
Bd. of Educ. v. Sharp, 137 So. 3d 917, 923 (Ala. Civ. App.
2013). Because we are reversing the judgments as to Dr. Ross
and Noland, we may consider Marion's claim against Dr.
Simmons.
Marion argues that, in the interests of justice, this
Court has the authority to grant a new trial as to Dr. Simmons
as well. Marion argues that the improper communications
between the trial court should equally taint the verdict as to
Dr. Simmons just as much as it taints the verdict as to Dr.
Ross and Noland. However, Dr. Simmons argues, among other
16
1140604, 1140605, 1140606
things, that this claim was not properly preserved because it
was not first made to the trial court.
"Generally this Court will not address the merits of an
argument that is raised for the first time on appeal." Crusoe
v. Davis, [Ms. 1130798, Feb. 20, 2015] ___ So. 3d ___, ___
(Ala. 2015). There is no reason Marion could not have asked
the trial court in her opposition to the defendants'
postjudgment motions to grant a new trial as to Dr. Simmons if
the trial court found that a new trial was warranted as to Dr.
Ross and Noland. Thus, we decline Marion's request to reverse
2
the trial court's judgment as to her claim against Dr.
Simmons.
IV. Conclusion
In cases nos. 1140604 and 1140605, the judgments for Dr.
Ross and Noland are reversed and the cause is remanded for a
new trial as to those two defendants. In case no. 1140606, the
judgment is affirmed.
1140604 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Marion did not file a reply brief in case no. 1140606.
2
17
1140604, 1140605, 1140606
Shaw and Bryan, JJ., concur in the result.
1140605 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Shaw and Bryan, JJ., concur in the result.
1140606 -- AFFIRMED.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Shaw, J., concurs in the result.
18 | November 6, 2015 |
81b88e78-54a8-47c1-abe2-c8e77070f954 | Ex parte Juan Oziel Rios. | N/A | 1141213 | Alabama | Alabama Supreme Court | rel: 09/30/2015
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, 2015
____________________
1141213
____________________
Ex parte Juan Oziel Rios
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Juan Oziel Rios
v.
State of Alabama)
(Jefferson Circuit Court, CC-10-3244.61;
Court of Criminal Appeals, CR-14-0939)
BRYAN, Justice.
WRIT DENIED. NO OPINION.
1141213
Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Moore, C.J., concurs specially.
Murdock, J., dissents.
2
1141213
MOORE, Chief Justice (concurring specially).
I concur with this Court's denial of Juan Oziel Rios's
petition for a writ of certiorari. I write separately because,
as I stated recently in Ex parte Brooker, [Ms. 1141160, Sept.
11, 2015] __ So. 3d __ (Ala. 2015), I believe a mandatory
sentence of life imprisonment without the possibility of
parole for a nonviolent, drug-related crime may be excessive
and unjustified. The Court of Criminal Appeals affirmed the
trial court's denial of Rios's Rule 32, Ala. R. Crim. P.,
petition in an unpublished memorandum. Rios v. State (No.
CR-14-0939, July 2, 2015), __ So. 3d __ (Ala. Crim. App. 2015)
(table).
The Court of Criminal Appeals' unpublished memorandum
presents the following facts:
"'On October 19, 2010, Rios was traveling
eastbound on Interstate 20 in his tractor-trailer.
Deputy Tim Sanford of the Jefferson County Sheriff's
Office observed Rios's tractor-trailer traveling
slower than normal and swerving onto the shoulder of
the interstate.
"'Deputy Sanford stopped Rios and told Rios he
was subject to a Department of Transportation
inspection.
After
Deputy
Sanford
began
the
inspection, he noticed Rios was sweating profusely.
Deputy
Sanford
noted
Rios's
tractor-trailer
contained a load of paper towels being carried from
Dallas,
Texas, to Lithia Springs, Georgia, and the
3
1141213
back two pallets of paper towels were stacked
differently than the others.
"'Deputy Sanford asked Rios if there was
anything illegal in the tractor-trailer. Rios
appeared fidgety and denied having anything illegal
in his vehicle. Rios then consented to a search of
the tractor-trailer. While searching the trailer,
Deputy Sanford noticed several anomalies, including
construction discrepancies in the roof of the
trailer. These anomalies raised Deputy Sanford's
suspicions, so, with Rios's consent, Deputy Sanford
allowed his canine to perform a sweep of the
tractor-trailer. The canine immediately alerted
Deputy Sanford to the presence of narcotics. Deputy
Sanford and Officer Lane Thompson of the Hoover
Police Department, one of Deputy Sanford's back-up
officers, ultimately found a secret compartment in
the ceiling of the trailer containing 80.42
kilograms of cocaine.'"
(Quoting unpublished memorandum affirming Rios's conviction
and sentence. State v. Rios (No. CR-11-0981, Sept. 21, 2012),
152 So. 3d 461 (Ala. Crim. App. 2012) (table).) The trial
court convicted Rios for
trafficking cocaine and sentenced him
under § 13A-12-231(2)(d), Ala. Code 1975, to a mandatory term
of life imprisonment without the possibility of parole. The
Court of Criminal Appeals affirmed Rios's conviction and
sentence by unpublished memorandum. State v. Rios (No. CR-11-
0981, Sept. 21, 2012), 152 So. 3d 461 (Ala. Crim. App. 2012)
(table). As was the case in Brooker, the statute in this case
gave the sentencing court no discretion to sentence Rios, who
4
1141213
apparently had no prior convictions, for a term less than life
imprisonment without the possibility of parole.
In Alabama, a trial court has sentencing discretion when
a defendant has been convicted of a violent offense such as
armed robbery, rape, or even murder. See, e.g., §§ 13A-8-41,
13A-6-61, 13A-6-2, and 13A-5-6, Ala. Code 1975. Moreover,
under the Habitual Felony Offender Act ("HFOA"), § 13A-5-9,
Ala. Code 1975, a trial court has sentencing discretion when
an offender has been convicted of multiple prior violent
felonies. Yet in cases such as this, where a first-time
offender has trafficked 10 kilograms or more of cocaine, the
trial court must sentence the defendant to life imprisonment
without the possibility of parole. No exceptions. No
discretion. Before 2000, trial courts faced similar mandatory
sentencing guidelines when applying the HFOA, as they do today
under § 13A-12-231(2)(d), Ala. Code 1975. However, in 2000,
the legislature amended the HFOA "to allow a sentence to be
imposed for certain habitual offenders less severe than life
imprisonment
without
parole
under
certain
circumstances,"
thus
giving sentencing courts some discretion. Kirby v. State, 899
So. 2d 968, 969 (Ala. 2004) (describing the reasoning and
5
1141213
rationale behind the amendment to the HFOA). See also Gill v.
State, 157 So. 3d 881 (Ala. 2014) (Moore, C.J., dissenting).
Moreover, the legislature considered this amendment to be so
important that it was made retroactive by § 13A–5–9.1, Ala.
Code 1975 (repealed effective March 13, 2014, see Act No.
2014–165, Ala. Acts 2014). See also Kirby, 899 So. 2d at 970-
75; Gill, 157 So. 3d at 884-87. I urge our legislators to
revisit the mandatory statutory sentencing scheme of §
13A-12-231(2)(d) and similar statutes, as they did with the
HFOA, to determine whether those statutes appropriately serve
the purposes of our criminal-justice system.
6 | September 30, 2015 |
6a06a558-2355-4e31-bd01-c4936b5525c2 | Ex parte Gary Paul Schreiner. | N/A | 1140934 | Alabama | Alabama Supreme Court | REL:11/06/2015
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, 2015-2016
____________________
1140934
____________________
Ex parte Gary Paul Schreiner
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Gary Paul Schreiner
v.
State of Alabama)
(Mobile Circuit Court, CC-14-2389;
Court of Criminal Appeals, CR-14-0003)
PER CURIAM.
WRIT QUASHED. NO OPINION.
1140934
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, dissent.
2
1140934
MOORE, Chief Justice (dissenting).
Gary Paul Schreiner was convicted of trafficking in more
than 28, but less than 500, grams of methamphetamine. § 13A-
12-231(11)a., Ala. Code 1975. He was sentenced as a habitual
offender to life imprisonment. See §§ 13A-5-9 and 13A-12-
231(13), Ala. Code 1975. The Court of Criminal Appeals
1
affirmed Schreiner's conviction and sentence. Schreiner v.
State, [Ms. CR-14-0003, April 17, 2015] ___ So. 3d ___ (Ala.
Crim. App. 2015). Having initially granted Schreiner's
petition for a writ of certiorari, this Court now quashes the
writ. Because, in my view, the statute setting out the
2
offense of trafficking in methamphetamine is ambiguous as to
the meaning of the word "mixture," and thus subject to the
rule of lenity, I would reverse Schreiner's conviction and
sentence.
Schreiner was also fined $50,000, as required by the
1
statute. § 13A-12-231(11)a., Ala. Code 1975.
Like the denial of a petition for a writ of certiorari,
2
the quashing of a writ of certiorari, although leaving the
original affirmance in
effect,
State v. HealthSouth Corp., 121
So. 3d 334, 334 (Ala. Civ. App. 2013), constitutes no
expression of approval on the merits of the opinion of the
lower appellate court. Ex parte Jenkins, 723 So. 2d 649, 658
n. 13 (Ala. 1998).
3
1140934
On June 14, 2012, Joseph Goff, a corporal with the City
of Mobile Police Department, served an arrest warrant on
Schreiner at a mobile home in Satsuma, a town about 15 miles
north of Mobile. Shirtless and without shoes when Cpl. Goff
arrived, Schreiner asked Cpl. Goff to "grab him a pair of
tennis shoes" and directed him to a pair of shoes. Inside one
shoe Cpl. Goff discovered three bags of what appeared to be
methamphetamine. Inside the other shoe he found a digital
scale. Cpl. Goff summoned Raylene Busby and Greg O'Shea,
deputies with the Mobile County narcotics unit, to the mobile
home. After obtaining a search warrant, they searched the
mobile home and found, among other items commonly used in the
manufacture of methamphetamine, a jar of "meth oil," a toxic
liquid that is an intermediate stage in the process of
manufacturing methamphetamine.
The Alabama Department of Forensic Sciences determined
that the granular substance found in Schreiner's tennis shoe
weighed 1.439 grams and tested positive for methamphetamine
and
pseudoephedrine,
a
decongestant
commonly
used
in
manufacturing methamphetamine. The meth oil tested positive
for the same ingredients and weighed 151.91 grams.
4
1140934
Based on the weight of the meth oil, Schreiner was
indicted for trafficking in methamphetamine. The relevant
statute states: "Any person ... who is knowingly in actual or
constructive
possession
of,
28
grams
or
more
of
methamphetamine or any mixture containing methamphetamine ...
is guilty of a felony, which felony shall be known as
'trafficking
in
methamphetamine.'"
§
13A-12-231(11)a.
(emphasis added). Deputy Busby testified that the oil found in
the mobile home tested positive for methamphetamine but that
the amount of methamphetamine in relation to the amount of
pseudoephedrine, a legal substance, in the mixture was
unknown. She also testified that as little as one-tenth of one
gram of methamphetamine in a cup of water would cause the
liquid in the cup to test positive for methamphetamine and
would support a trafficking charge. By contrast, she stated,
a person in possession of that same tenth of a gram of
methamphetamine in granular form would be charged with only
possession of methamphetamine.
Schreiner moved for a judgment of acquittal on the ground
that the meth oil discovered in the mobile home was not "28
grams or more of ... any mixture containing methamphetamine"
5
1140934
as required by § 13A-12-231(11)a. Schreiner argued that in
using the word "mixture" in the statute the legislature
intended to refer to either "an actual finished final product
of
methamphetamine,
or
methamphetamine
in
the
granular
state."
To interpret the statute otherwise, Schreiner argued, would
cause a person to be guilty of trafficking in methamphetamine
if the person merely added a minute amount of methamphetamine
to a large amount of liquid. The circuit court denied
Schreiner's motion for a judgment of acquittal.
The federal courts, interpreting a federal statute
analogous to § 13A-12-231(11)a., are split over whether the
term "mixture" as used in the statute includes only usable or
marketable mixtures as opposed to waste products that contain
trace amounts of a controlled substance or intermediate
products such as meth oil, which are not marketable without
further processing. For a synopsis of this split in opinion,
see Sewell v. United States, 507 U.S. 953 (1993) (White and
Blackmun, JJ., dissenting from denial of certiorari). This
Court has held that "all legal substances that are contained
in a 'mixture' should be weighed along with the illegal drug
6
1140934
contained therein." Ex parte Fletcher, 718 So. 2d 1132, 1135
(Ala. 1998).
I find it unnecessary to address the argument that the
term "mixture" is limited to usable mixtures because in my
view an ambiguity exists in the statute that should control
the result. The statute states that "possession of 28 grams or
more
of
methamphetamine
or
any
mixture
containing
methamphetamine" is a felony. In my view the term "any mixture
containing methamphetamine" in the context of the statute is
susceptible to two meanings. It may mean "possession of 28
grams or more of methamphetamine or any mixture containing
[any amount of] methamphetamine." But it may also reasonably
be read to mean "possession of 28 grams or more of
methamphetamine or any mixture containing [at least 28 grams
of] methamphetamine." The latter interpretation requires that
the minimum weight of the actual banned substance be present,
whether in pure form or mixed with other legal substances.
Such an interpretation is more faithful to the overall
sentencing scheme, which graduates the penalty as
the
quantity
of methamphetamine increases. See § 13A-12-231(11)a.-d., Ala.
Code 1975.
7
1140934
Under the rule of lenity, "an ambiguous criminal statute
is to be construed in favor of the accused." Staples v. United
States, 511 U.S. 600, 619 n.17 (1994). See also Ex parte Hyde,
778 So. 2d 237, 239 (Ala. 2000) (noting "the fundamental rule
that criminal statutes are construed strictly against the
State"). I would reverse the judgment of the Court of Criminal
Appeals on the ground that Schreiner is entitled to the
benefit of the rule of lenity in the court's interpretation of
the methamphetamine-trafficking statute.
8 | November 6, 2015 |
aeb99ea8-e254-402e-9da5-9cb578365e5d | City of Pike Road v. City of Montgomery | N/A | 1140487 | Alabama | Alabama Supreme Court | REL: 12/11/2015
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, 2015-2016
____________________
1140487
____________________
City of Pike Road
v.
City of Montgomery and Dow Corning Alabama, Inc.
Appeal from Montgomery Circuit Court
(CV-14-901583)
STUART, Justice.
The City of Pike Road appeals the judgment entered by the
Montgomery
Circuit
Court
holding
that
a
manufacturing
facility
1140487
owned and operated by Dow Corning Alabama, Inc., located at
1
1940 Ohio Ferro Road in Mt. Meigs ("the Mt. Meigs facility"),
an unincorporated part of Montgomery County, is within the
police jurisdiction of the City of Montgomery as opposed to
the police jurisdiction of Pike Road. We affirm.
I.
The boundaries of an Alabama municipality's police
jurisdiction are set by § 11-40-10(a), Ala. Code 1975, which,
at all times relevant to this action, provided:
"The police jurisdiction in cities having 6,000 or
more inhabitants shall cover all adjoining territory
within three miles of the corporate limits, and in
cities having less than 6,000 inhabitants and in
towns, such police jurisdiction shall extend also to
the adjoining territory within a mile and a half of
the corporate limits of the such city or town."2
In approximately January 2012, following a change in the
methodology Montgomery used to draw the boundaries of its
police jurisdiction, Montgomery contacted Dow Corning Alabama
We note that, although Dow Corning Alabama was listed as
1
an appellee on the notice of appeal and has filed an
appellee's brief, its arguments on appeal are aligned with the
arguments of the appellant, the City of Pike Road.
The Alabama Legislature has since amended § 11-40-10,
2
making minor changes to the language of subsection (a) that
became effective September 1, 2015. See Act No. 2015-361,
Ala. Acts 2015, enacted on June 5, 2015.
2
1140487
and advised it that its Mt. Meigs facility was now located
within
Montgomery's
police
jurisdiction;
accordingly,
Montgomery stated, the Mt. Meigs facility was subject to all
applicable
Montgomery
taxes,
rules,
regulations,
and
ordinances. Dow Corning Alabama thereafter agreed that it
would henceforth remit sales and use taxes to Montgomery as
required by § 11-51-206, Ala. Code 1975.
3
Dow Corning Alabama was also notified at that time that
any capital improvements it subsequently planned for the Mt.
Meigs facility would have to comply with all applicable
Montgomery building and zoning regulations and requirements.
In the spring of 2014, Dow Corning Alabama did in fact
initiate several capital improvements at the Mt. Meigs
Section 11-51-206 at that time provided, in part:
3
"The council or other governing body shall have
the authority to levy and assess by ordinance within
the police jurisdiction of any said city or town all
taxes authorized by this article; provided, that
said levy and assessment shall not exceed one-half
the amount levied and assessed for like businesses,
sales or uses conducted within the corporate limits,
fees and penalties excluded."
The legislature amended the language of § 11-51-206 in Act No.
2015-361, Ala. Acts 2015. See note 2, supra.
3
1140487
facility, and it obtained the required permits and bonds from
Montgomery at a cost of $3,942.
In association with those capital improvements, Dow
Corning Alabama also retained a local engineering firm to
assist it in seeking the rezoning of the property on which the
Mt. Meigs facility was located to a less restrictive
classification. On August 4, 2014, a representative of that
engineering firm met with an official in
Montgomery's
planning
department to discuss possible rezoning of the property and
was told that the Mt. Meigs facility was now located within
the police jurisdiction of Pike Road and was thus no longer
subject to Montgomery's zoning regulations. In subsequent
meetings with Pike Road officials later that week, those
officials confirmed that the Mt. Meigs facility was now
located in Pike Road's police jurisdiction and that Dow
Corning Alabama would need to begin remitting all applicable
sales and use taxes to Pike Road beginning in September 2014.
Dow Corning Alabama accordingly purchased a building permit
from Pike Road for $2,542 covering the same capital project
for which it had already purchased a building permit from
Montgomery.
4
1140487
The assertion that the Mt. Meigs facility was now located
within the police jurisdiction of Pike Road was based on the
fact that the United States Census Bureau's 2013 estimate of
the population of Pike Road was 7,506; thus, Pike Road took
the position that, as a city "having 6,000 or more
inhabitants," its police jurisdiction automatically extended
three miles from the Pike Road city limits pursuant to § 11-
40-10(a). In fact, on February 10, 2014, the Pike Road city
council had adopted Resolution No. 006-2014 declaring as much
and stating that "[n]otice is hereby given that by operation
of § 11-40-10, the police jurisdiction of Pike Road, Alabama
now covers all territory within three miles of the corporate
limits." Ten days after the adoption of Resolution No. 006-
2014, planning officials from Montgomery and Pike Road met and
produced a new map setting forth the respective police
jurisdictions of the two cities. That map indicated that the
Mt. Meigs facility was within three miles of the city limits
of both Montgomery and Pike Road; however, because it was
closer to the city limits of Pike Road, the Montgomery and
Pike Road officials agreed that it was subject only to Pike
Road's jurisdiction. See § 11-51-91(c), Ala. Code 1975 ("When
5
1140487
the place at which any business, trade, or profession is done
or carried on is within the police jurisdiction of two or more
municipalities which levy the licenses thereon authorized by
this section, the licenses shall be paid to, issued, and
collected by that municipality only whose boundary
measured to
the nearest point thereof is closest to the business, trade,
or profession.").4
In late August 2014, Dow Corning Alabama contacted
Kimberly Fehl, the city attorney for Montgomery, to confirm
that the Mt. Meigs facility was no longer subject to
regulation from Montgomery. In an August 28, 2014, letter,
Fehl notified Dow Corning Alabama that Montgomery took the
position that Resolution No. 006-2014 was of no effect and
that the Mt. Meigs facility was still solely within the police
jurisdiction of Montgomery:
Although § 11-51-91(c) addresses only the payment of
4
business license fees, the parties agree that the "rule of
proximity" set forth in that statute determines which
municipality should exercise jurisdiction for all purposes
when police jurisdictions overlap. Advisory opinions issued
by the Alabama Attorney General support this view. See 197
Ala. Op. Att'y Gen. 84-00025 (November 28, 1984), and Ala. Op.
Att'y Gen. No. 2007-023 (December 14, 2006).
6
1140487
"Resolution 006-2014 reflects the population of
the Town of Pike Road,
according to the U.S.
[5]
Census Bureau, has now exceeded 6,000. Although the
U.S. Census Bureau 'estimates' increase and decrease
in municipal population, it is [Montgomery's]
position that an annual projected estimate by the
U.S. Census Bureau is not valid authority to extend
the police jurisdiction [to] three miles and collect
license and taxes in that area. We are unaware of
any census taken for the Town of Pike Road that
qualifies under Alabama law. Resolution 006-2014
only references the U.S. Census as authority to
expand the [police jurisdiction], and according to
the last certified U.S. Census, the Town of Pike
Road had a population of 5,406."6
On the advice of counsel, Dow Corning Alabama thereafter
engaged with the planning departments of both Montgomery and
Pike Road as it continued work on its ongoing capital
improvements,
even
though
this
at
times
necessitated
receiving
simultaneous inspections and approvals from both cities and,
Pursuant to § 11-40-6, Ala. Code 1975, municipalities
5
"containing 2,000 or more inhabitants shall be called cities"
and "municipalities containing less than 2,000 inhabitants
shall be called towns." It is undisputed that Pike Road has
more than 2,000 inhabitants and is thus, legally, a "city."
Pike Road acknowledges this fact but states in its reply brief
that it nevertheless continues to refer to itself as the "Town
of Pike Road," for most purposes, "to reflect [its] rural
character." Pike Road's reply brief, p. 7, n. 2.
The Montgomery official who initially worked with Pike
6
Road officials to adjust the police-jurisdiction map after
Resolution No. 006-2014 was adopted has since submitted a
sworn affidavit indicating that, in developing that map, she
had simply assumed that Pike Road would not have adopted a
resolution without a valid legal basis.
7
1140487
at least one time, inspectors from Montgomery refused to
provide a requested inspection and permit because they
continued to believe that Pike Road had jurisdiction over the
location.
Finally, on September 19, 2014, Dow Corning Alabama
initiated an interpleader action in the Montgomery Circuit
Court asking that court to resolve the dispute between
Montgomery and Pike Road and authorizing Dow Corning Alabama
to interplead all disputed sales- and use-tax payments
pursuant to Rule 22, Ala. R. Civ. P., until the dispute was
resolved. Dow Corning Alabama also sought an injunction
7
barring both cities from enforcing any building requirements
or zoning regulations until the matter was resolved and
requiring the ultimately prevailing city to recognize any
capital
improvements
commenced
during
the
course
of
litigation
as being grandfathered once the dispute was resolved. Both
Montgomery and Pike Road subsequently consented to an order of
interpleader being entered, and, on October 16, 2014, the
trial court entered the requested order.
Dow Corning Alabama also requested the trial court to
7
award it attorney fees and costs out of the interpleaded funds
at the conclusion of the action, as allowed by Rule 22(c),
Ala. R. Civ. P.
8
1140487
Montgomery and Pike Road thereafter both filed answers
and moved the trial court to enter either a judgment on the
pleadings or a summary judgment. On January 14, 2015, the
trial court entered a judgment on the pleadings in favor of
Montgomery. Both Pike Road and Dow Corning Alabama thereafter
moved the trial court to alter, amend, or vacate its judgment,
and, on February 11, 2015, the trial court entered an amended
order again entering a judgment on the pleadings in favor of
Montgomery and stating, in relevant part:
"1. The court finds that [Pike Road] has two
options available for establishing whether its
number of inhabitants exceeds 6,000 for the purposes
of extending its police jurisdiction from one and a
half miles to three miles beyond its corporate
limits pursuant to § 11-40-10(a).
"a. Pike Road can wait for the next U.S.
decennial census (since the 2010 census
reports Pike Road as having less than 6,000
inhabitants); or
"b. It can conduct its own municipal
census in accordance with the requirements
of §§ 11-47-90 through -95, Ala. Code 1975.
"Pike Road has produced no evidence ... indicating
that a U.S. decennial census has found its
population exceeds 6,000 and it has produced no
evidence that it has conducted a statutory municipal
census, pursuant to §§ 11-47-90 through -95,
establishing it has more than 6,000 residents. ...;
"....
9
1140487
"4. The land on which [the Mt. Meigs facility] is
located
currently
remains
within
the
police
jurisdiction of Montgomery;
"5. [Dow Corning Alabama] shall remit all
municipally levied sales and use taxes which become
due after the entry of this order directly to
Montgomery;
"6. Any licenses, permits, inspections, and
approvals necessary to be obtained by [Dow Corning
Alabama] in connection with the capital improvements
and projects being undertaken in respect of [the Mt.
Meigs facility] shall henceforth be obtained from
Montgomery
only;
provided,
however,
that
any
projects commenced by [Dow Corning Alabama] prior to
the
date
of
the
entry
of
this
order
are
grandfathered under the zoning regulations of
Montgomery as a legal non-conforming use;
"7. The court hereby grants [Dow Corning Alabama's]
motion
for
an
award
of
counsel
fees
and
disbursements incurred in the foregoing action
pursuant to Rule 22(c), Ala. R. Civ. P. ...;
"8. The clerk of the court is hereby ordered to
disburse the previously interpleaded funds by paying
to [Dow Corning Alabama] the sum of $36,489.57, or
so much of said sum as may be satisfied by such
funds, as reimbursement for counsel fees and
disbursements as ordered and awarded in the previous
paragraph, with any balance of interpleaded funds
being paid to Montgomery; and
"9. Except for the sales and use taxes previously
interpleaded herein by [Dow Corning Alabama], [Dow
Corning Alabama] is hereby fully released and
discharged from any liability whatsoever, whether
claimed by Montgomery, Pike Road, or otherwise, for
any municipally levied sales or use taxes otherwise
payable to any party or person during the pendency
of this litigation."
10
1140487
Pike Road immediately filed a notice of appeal and moved the
trial court to stay its judgment pending appeal; however, on
February 25, 2015, the trial court denied Pike Road's request
for a stay.
On March 13, 2015, Dow Corning Alabama timely moved the
trial court to alter or amend its judgment. In support of
8
its motion, Dow Corning Alabama stated that it had learned, in
the period after the trial court's February 11 judgment: (1)
that a portion of the real property upon which the Mt. Meigs
facility was located was situated within a mile and a half of
Pike Road's city limits, and (2) that the Montgomery Circuit
Court had, in an unrelated case decided August 27, 2013, made
a finding of fact that "[t]he population of [Pike Road]
exceeds 6,000 residents." Town of Pike Road v. Taxpayers &
Citizens of Pike Road (case no. CV-2013-901203.00). Dow
Corning Alabama submitted evidence substantiating its claims
with its motion, and Pike Road thereafter submitted a response
supporting Dow Corning Alabama's motion, while Montgomery
This Court thereafter issued an order noting that Pike
8
Road's notice of appeal would be held in abeyance pursuant to
Rule 4(a)(5), Ala. R. App. P., until all postjudgment motions
were resolved.
11
1140487
submitted a response opposing it. On March 27, 2015, the
9
trial court denied the motion to alter, amend, or vacate its
judgment, and, upon receiving notice of the same, this Court
returned Pike Road's appeal to the active docket and all
applicable time requirements began to run.
On August 27, 2015 –– after briefing was completed in the
case –– Pike Road submitted to this Court a new submission
accompanied by documentary evidence indicating that new facts
had arisen, which facts, Pike Road claimed, mooted some of the
issues involved in this appeal. Specifically, Pike Road
alleged that it had completed two annexations in July 2015
that resulted in Pike Road's city limits extending to the
border of the property upon which the Mt. Meigs facility was
located; accordingly, Pike Road argued, the Mt.
Meigs
facility
was
now
undisputedly
located
in
Pike
Road's
police
jurisdiction, regardless of whether that police jurisdiction
extends a mile and a half or three miles from Pike Road's city
limits. Montgomery thereafter filed its response to Pike
Dow
Corning Alabama
presumably
would
prefer
to
be
subject
9
to taxation by Pike Road rather than Montgomery because, as
Dow Corning Alabama recognized in its initial complaint, "the
sales and use tax rates levied by Montgomery ... are higher
than the rates levied by Pike Road."
12
1140487
Road's submission, arguing that Pike Road's arguments came too
late and that, in any event, it remained to be seen whether in
fact
the
July
2015
annexations
were
legally
valid.
Accordingly, Montgomery urges
this Court to decide
this appeal
based on the record as it existed at the time the appeal was
filed.
II.
"When a motion for judgment on the pleadings is made
by a party, 'the trial court reviews the pleadings
filed in the case and, if the pleadings show that no
genuine issue of material fact is presented, the
trial court will enter a judgment for the party
entitled to a judgment according to the law.'
B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603
So. 2d 989, 991 (Ala. 1992). See also Deaton, Inc.
v. Monroe, 762 So. 2d 840 (Ala. 2000). A judgment
on the pleadings is subject to a de novo review.
Harden v. Ritter, 710 So. 2d 1254, 1255 (Ala. Civ.
App. 1997). A court reviewing a judgment on the
pleadings accepts the facts stated in the complaint
as true and views them in the light most favorable
to the nonmoving party. Id. at 1255–56."
Universal Underwriters Ins. Co. v. Thompson, 776 So. 2d 81, 82
(Ala. 2000). We accordingly review de novo the judgment
entered by the trial court.
III.
The trial court's judgment declaring that the Mt. Meigs
facility is located within the police jurisdiction of
13
1140487
Montgomery rests on the premise that a municipality's police
jurisdiction expands to the area within three miles of its
city limits pursuant to § 11-40-10(a) only when a decennial
census conducted by the United States Census Bureau or a
municipal census conducted pursuant to § 11-47-90 et seq.,
Ala. Code 1975, establishes that the population of that
municipality exceeds 6,000 inhabitants. Before considering
the other arguments raised by the parties, we first consider
the validity of that premise.
As this Court has stated several times:
"The fundamental rule of statutory construction
is to ascertain and give effect to the intent of the
legislature in enacting the statute. Words used in
a statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says. If the
language of the statute is unambiguous, then there
is no room for judicial construction and the clearly
expressed intent of the legislature must be given
effect. Tuscaloosa County Comm'n v. Deputy
Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687
(Ala. 1991)."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346
(Ala. 1992). In this case, however, § 11-40-10 is silent with
regard to the issue now before the Court –– how a
municipality's
population
should
be
determined
for
purposes
of
14
1140487
determining its police jurisdiction. Because the plain
language of § 11-40-10 does not give explicit guidance on this
issue, we must ascertain the legislature's intent through
other means. In James v. McKinney, 729 So. 2d 264, 267 (Ala.
1998), this Court was similarly called upon to construe a
statute that failed to explain how to make a certain
classification; after noting the ambiguity of the
statute,
the
Court explained that "a court should examine
related
statutes"
in order to determine legislative intent in such situations.
10
See also Dunn v. Alabama State Univ. Bd. of Trustees, 628 So.
2d 519, 523 (Ala. 1993) ("In construing a statute, we are
permitted, indeed required, to compare statutes addressing
'related subject[s].' House v. Cullman County, 593 So. 2d 69,
75 (Ala. 1992) (quoting 2A Sutherland Stat. Const., § 51.02
(4th ed.)).").11
The ambiguous statute in James was § 41-32-2, Ala. Code
10
1975, and the issue before the Court was whether certain State
employees were subject to the merit system. 729 So. 2d at
266-67.
In Watkins v. Board of Trustees of Alabama State
11
University, 703 So. 2d 335, 341 (Ala. 1997), this Court
identified a paragraph in Dunn as dictum and stated that,
"[t]o the extent that this dictum relied on by the trial court
and [the appellee] is contrary to our holding in the present
case, it is disapproved." 703 So. 2d at 341. We subsequently
stated in Underwood v. Alabama State University, 51 So. 3d
15
1140487
Although § 11-40-10 contains no provision for how a
municipality's population should be determined, § 11-40-6,
Ala. Code 1975, does, stating unequivocally that "[t]he last
census, whether federal or taken as authorized in this title,
shall be used in determining the population of a city or a
town." Pike Road argues that this directive should relate
12
only to determining population for purposes of deciding
1010, 1013 (Ala. 2010), that Watkins "overruled" Dunn. In
fact, however, Watkins did not overrule the holding of Dunn,
it merely "disapproved" of the identified dictum.
Section 11-40-6 states in its entirety:
12
"Municipal
corporations
now
existing
or
hereafter organized under this title containing
2,000 or more inhabitants shall be called cities.
All incorporated municipalities containing less than
2,000 inhabitants shall be called towns. The last
census, whether federal or taken as authorized in
this title, shall be used in determining the
population of a city or town.
"At the next election more than four months
after the one hundred twentieth day after the first
day of the first regular business session of the
Legislature held next after the publication by the
federal government of the regular federal decennial
population census for Alabama, if the municipality
shows a population which authorizes a change in its
government under this title, the proper officers for
such a city shall be elected and perform the duties
prescribed in this title."
(Emphasis added.)
16
1140487
whether a municipality is a city or a town; however, the clear
language of the statute is not so limiting –– the relevant
sentence in its entirety states only that "[t]he last census,
whether federal or taken as authorized in this title, shall be
used in determining the population of a city or a town." This
Court cannot, as Pike Road effectively urges, modify the
statute to read "the last census, whether federal or taken as
authorized in this title, shall be used in determining the
population of a city or a town for the purpose of determining
whether said municipality is properly classified as a city or
a town." See, e.g., Elmore County Comm'n v. Smith, 786 So. 2d
449, 455 (Ala. 2000) ("We will not read into a statute what
the Legislature has not written.").
Pike Road, however, argues that § 11-40-6 and § 11-40-10
"don't even remotely deal with the same subject other than
they both relate generally to municipalities," and it
accordingly argues that § 11-40-6 is essentially irrelevant
when construing § 11-40-10. Pike Road's brief, p. 27.
However, Pike Road fails to recognize that the principle of in
pari materia does not require that the statutes being analyzed
share an identical subject matter. To the contrary, this
17
1140487
Court has indicated that the subject matter of the statutes
being analyzed need only be "related," "similar," or the "same
general[ly]." See James, 729 So. 2d at 267 ("In determining
legislative
intent,
a
court
should
examine
related
statutes."); Ex parte Johnson, 474 So. 2d 715, 717 (Ala. 1985)
("It is a fundamental principle of statutory
construction
that
statutes covering the same or similar subject matter should be
construed in pari materia."); and Willis v. Kincaid, 983 So.
2d 1100, 1103 (Ala. 2007) ("'[S]tatutes must be construed in
pari materia in light of their application to the same general
subject matter.'" (quoting Opinion of the Justices No. 334,
599 So. 2d 1166, 1168 (Ala. 1992))). Pike Road has conceded
that § 11-40-6 and § 11-40-10 have, at least, the same general
subject
matter
––
municipalities;
it
is
accordingly
altogether
proper to construe the two statutes in pari materia.
13
We emphasize, however, that our analysis of § 11-40-6
13
and § 11-40-10 is based on the plain language of those two
statutes and their similar subject matter and not, as
Montgomery has urged us to consider, the proximity and
organization of the statutes in the Alabama Code. See § 1-1-
14(a), Ala. Code 1975 ("The classification and
organization
of
the titles, chapters, articles, divisions, subdivisions and
sections of this Code, and the headings thereto, are made for
the purpose of convenient reference and orderly arrangement,
and no implication, inference or presumption of a legislative
construction shall be drawn therefrom.").
18
1140487
We further note that Pike Road has identified multiple
classification statutes in the Alabama Code that tie the
population of a municipality solely to the federal decennial
census,
see,
e.g.,
§§
11-40-14,
11-43-2,
11-43-7.1,
11-43-190,
11-48-30, and 11-51-128, Ala. Code 1975, as well as multiple
other classification statutes like § 11-40-10 in which no
specific
method
for
determining
a
municipality's
population
is
set forth, see, e.g., §§ 11-32-1, 11-40-23, 11-42-58, and 11-
43-5.1, Ala. Code 1975, and it accordingly argues that, "[i]f
... the Alabama Legislature intended that the population of
municipalities be governed by § 11-40-6 for all purposes, why
would the Legislature then find it necessary to set forth a
means of ascertainment in some statutes but not others?"
14
Justice Murdock, in his dissent, similarly asks the
14
question, "[g]iven that so much variation exists in the
Alabama Code as to how a municipality's population should be
ascertained for various purposes, why is § 11-40-6 the one
statute that must be read in pari materia with all the
statutes that contain no specific method of determining a
municipality's population to supply the 'default rule'?" ___
So. 3d at ___. The answer is simple: Of all the statutes
cited in this case, only in § 11-40-6 did the legislature use
broad language that is not limited in its scope. Compare §
11-40-6 ("The last census, whether federal or taken as
authorized in this title, shall be used in determining the
population of a city or a town.") with, e.g., § 11-43-2 ("In
all cities and towns having a population of less than 12,000
inhabitants according to the last or any subsequent federal
census, the legislative functions shall be exercised by the
19
1140487
Pike Road's reply brief, at p. 15. It seems apparent,
however, that the legislature explicitly stated in some
statutes that population should be determined solely by the
federal
decennial
census
because
those
statutes
are
exceptions
to the default rule set forth in § 11-40-6 that a
municipality's population may be determined either by federal
decennial census or by a duly conducted municipal census, and
no method of discerning population is set forth in the other
cited statutes precisely because the default rule of § 11-40-6
applies. This conclusion
that § 11-40-6 supplies the default
15
mayor and five aldermen.").
In his dissent, Justice Murdock criticizes this
15
opinion's interpretation of Title 11 of the Alabama Code so as
to recognize a default rule in § 11-40-6, stating:
"[I]f the legislature intended there to be a rule of
general
application
for
the
determination
of
municipal populations, it easily could have enacted
a general statute to that end, rather than leaving
it to this Court to comb through other statutes in
an effort to discover the existence of such a rule."
___ So. 3d at ___. We note only that the legislature likewise
could have enacted a general stand-alone statute articulating
the default rule Justice Murdock advocates –– that a
municipality might endeavor to prove its population for a
particular purpose by any available means unless the
legislature
has
specifically
restricted
the
means
available
as
it relates to that particular purpose –– but the legislature
has not elected to do so.
20
1140487
rule for the methods that a municipality might use to
establish its population –– rooted in the plain-language
declaration of that statute that "[t]he last census, whether
federal or taken as authorized in this title, shall be used in
determining the population of a city or a town" –– is not
undermined by the fact that the legislature has in certain
instances opted to further restrict the methods available;
rather, it reflects the Court's duty to interpret statutes
together so as "'to form one harmonious plan and give
uniformity to the law'" while nevertheless recognizing the
prerogative of the legislature to carve out exceptions to the
general rules it creates. Ex parte Coffee Cnty. Comm'n, 583
So. 2d 985, 988 (Ala. 1991) (quoting League of Women Voters v.
Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974)).16
Giving universal effect to the legislature's plain
16
directive in § 11-40-6 that "[t]he last census, whether
federal or taken as authorized in this title, shall be used in
determining the population of a city or a town" promotes
uniformity in the law not only by providing a default rule
that is simple for municipalities to apply, but also by
reducing
the
possibility
of
contradictory
rulings
in
different
trial courts. For example, in this case Pike Road initially
justified the extension of its police jurisdiction solely on
the annual projected population estimate made by the United
States Census Bureau. However, one trial court might consider
such an estimate to be sufficient evidence of a municipality's
population, while another trial court might deem it to be too
speculative.
This
possibility
further highlights an
21
1140487
Finally, our conclusion that the directive in § 11-40-6
providing that "[t]he last census, whether federal or taken as
authorized in this title, shall be used in determining the
population of a city or a town" applies to all other statutes
requiring the determination of a municipality's population in
the absence of a more specific directive in the subject
statute also explains what might otherwise appear to be a
contradiction in our caselaw. In support of its arguments,
Montgomery has cited City of Bridgeport v. Citizens Action
Committee, 571 So. 2d 1089 (Ala. 1990), in which we considered
§ 28-2A-1 et seq., Ala. Code 1975, which authorizes
municipalities of a certain size to hold a municipal-option
referendum
on
the
question
whether
to
change
their
classification from "dry" to "wet" or vice versa. The City of
Bridgeport held such a referendum, and, after the fact, the
question arose whether Bridgeport had properly established
that it actually had the 4,000 inhabitants necessary to hold
additional benefit to the default rule set out by the
legislature in § 11-40-6 –– it promotes judicial economy
inasmuch as it prevents a court from being called upon to
weigh evidence regarding a municipality's population. The
only relevant question is instead what the last decennial
federal census or a duly performed municipal census has
established the municipality's population to be.
22
1140487
such a referendum. 571 So. 2d at 1090. In concluding that it
had not, this Court stated:
"There is no provision in §§ 28–2A–1 through –4
for how population is to be determined for purposes
of an election. However, this Court has stated that
§ 28–2A–1 does not require that only a decennial
census conducted by the United States Department of
Commerce, Bureau of the Census, be used to determine
the population of a municipality. Dennis v.
Pendley, 518 So. 2d 688, 690 (Ala. 1987). The
Alabama Code recognizes two methods for determining
the population of a municipality. Sections 11–47–90
and –91 authorize a municipality to conduct its own
census and provide strict guidelines to ensure the
integrity of the census."
571 So. 2d at 1091 (emphasis added). Thus, Montgomery argues,
City of Bridgeport directly supports the trial court's
conclusion that a municipality may establish its population
only via a decennial census conducted by the United States
Census Bureau or by a municipal census conducted pursuant to
§ 11-47-90 et seq. See also Dennis v. Pendley, 518 So. 2d
17
688, 690 (Ala. 1987) (noting that "[§] 28-2A-1 does not say
that only a decennial census can be used to determine
population" and recognizing, consistent with § 11-40-6, that
We further note that the City of Bridgeport specifically
17
argued on appeal that it should be able to establish its
population by any "means properly serviceable to that end";
this Court stated that there was "no merit to this argument."
571 So. 2d at 1091.
23
1140487
a municipality might also determine population via
a
municipal
census).
18
Pike Road, however, cites Ryan v. City of Tuscaloosa, 155
Ala. 479, 46 So. 638 (1908), in support of its position. In
Ryan, this Court considered whether Tuscaloosa could issue
certain bonds in light of Ala. Const. 1901, § 225, which
generally bars municipalities "having a population of less
than six thousand" from taking on debt exceeding a defined
level. 155 Ala. at 485-88, 46 So. at 641. Certain citizens
of Tuscaloosa sought to prevent a referendum to decide whether
the bonds would issue based on the fact that the most recent
federal
decennial
census
indicated
that
Tuscaloosa's
population was less than 6,000; however, this Court declined
to intervene, reasoning:
Section 11-47-90 broadly authorizes a municipality to
18
conduct a municipal census, and § 11-47-92, Ala. Code 1975,
authorizes a city or town to elect to contract with the United
States Census Bureau to perform such a census if the city or
town desires. The municipal census in Dennis was apparently
conducted by the United States Census Bureau pursuant to § 11-
47-92. 518 So. 2d at 689. As Justice Lyons notes in his
separate writing, the Dennis Court did not address the
limiting language of § 11-47-93, Ala. Code 1975, in its
opinion, and it is ultimately unnecessary for us to consider
§ 11-47-93 because there is no indication that Pike Road has
even contemplated employing the United States Census
Bureau
to
conduct a municipal census.
24
1140487
"[Section
225]
predicates
the
limitation
of
indebtedness upon 'population.' That is the
condition, the fact, upon which the limitation
operates. The complainant's insistence, in legal
effect, leads to the proposition –– to the
construction –– that the ascertainment of the
condition (population) must be by the last federal
census. The most casual reading of the section of
the organic law demonstrates that the instrument is
wholly silent as to the means for the ascertainment
of the population of the city or town; and a census,
official though it is, is but a means for the
ascertainment of the number of persons. Can we, by
construction, supply this means? We think not. If
so it was ruled, the result would be, not only an
unwarranted
interpolation
of
a
most
material
provision into the section, but also to render the
section utterly unavailable, possibly for near ten
years between decennial federal censuses, to towns
and cities having, at the time such census was
taken, less than 6,000 population, notwithstanding
within a month thereafter the population was greater
than 6,000. In short, under the construction urged
for complainant, it is easily conceivable that for
nine years and more the privilege of the section
would be denied to towns and cities having in fact
the requisite population at the time the bonds were
desired to be issued; but to such a result the
makers
of
the
Constitution
have,
under
no
interpretation, written.
"A
conclusive
reason,
however,
in
support
of
the
view expressed, is found in the fact that in other
places in the instrument the decennial federal
census
is
provided
as
the
means
for
the
ascertainment of the population for the purpose of
apportionment of representation in the legislative
branch of the government. From this it is evident
that, in omitting mention of such census in the
section under consideration, a clear intent is
manifested
to
leave
the
ascertainment,
upon
25
1140487
occasion, of the population to means properly
serviceable to that end."
155 Ala. at 487-88, 46 So. at 641. Thus, Pike Road argues
that, because § 11-40-10 does not dictate what method should
be used to determine a municipality's population, the
legislature must have similarly intended "to leave the
ascertainment ... of the population to means properly
serviceable to that end." 155 Ala. at 488, 46 So. at 641.
Pike Road further argues that it submitted ample evidence to
the
trial
court
conclusively
demonstrating
that
its
population
is now well in excess of 6,000 inhabitants.
Montgomery argues that Ryan is irrelevant because it
involved the interpretation of a provision of the Alabama
Constitution,
and,
it
argues,
"[c]onstitutional
provisions
are
subject to completely different construction rules than are
statutes." Montgomery's brief, at p. 26. Although we
disagree with the breadth of that assertion, the fact that
Ryan involved the construction of a constitutional provision
while City of Bridgeport involved the construction of a
statute is the basis for the different results reached in
26
1140487
those cases. Constitutional provisions stand on their own
19
and are unaffected by statutes, even those dealing with the
same subject matter. See, e.g., Ex parte Illinois Cent. Gulf
R.R., 537 So. 2d 899, 903 (Ala. 1988) ("The Legislature is
without power to alter a constitutional right through
statutory change."), and Board of Revenue of Jefferson Cnty.
v. State, 172 Ala. 138, 149, 54 So. 757, 761 (1910)
("Constitutional mandates and restrictions cannot be altered,
contracted, or expanded, by [legislative declaration].").
Thus, in considering how to determine a municipality's
population for purposes of § 225, this Court rightly did not
look to the Alabama Code, but it did look to other
This
Court
has
recognized
that
there
are
some
19
differences
that
must
be
considered
when
construing
constitutional provisions as opposed to statutes, but it has
also recognized that the same rules of construction generally
apply. See, e.g., Clark v. Container Corp. of America, Inc.,
589 So. 2d 184, 190 n. 4 (Ala. 1991) ("The Constitution is
subject to the same general rules of construction as are other
laws; Alabama State Docks Dep't v. Alabama Public Service
Comm'n, 288 Ala. 716, 724, 265 So. 2d 135, 143 (1972), 'due
regard being had to the broader objects and scope of the
constitution as a charter of popular government.' 16
Am.Jur.2d Constitutional Law, § 91, at 417 (1979)."), and
Summers v. State, 244 Ala. 672, 673, 15 So. 2d 502, 503 (1943)
(noting that, "in the main, general principles governing the
construction of statutes apply also to the construction of
constitutions," but recognizing that "constitutions usually
deal with larger topics and are couched in broader phrases
than legislative acts").
27
1140487
constitutional provisions and, after noting that at least one
other provision did tie a municipality's population to the
federal decennial census, concluded that the drafters of § 225
manifested a clear intent to leave the ascertainment of a
municipality's population for § 225 purposes "to means
properly serviceable to that end" inasmuch as they omitted any
mention of the federal decennial census. 155 Ala. at 488, 46
So. at 641.
In City of Bridgeport, however, this Court was tasked
with deciding the proper way to determine a municipality's
population with regard to certain specified statutes,
specifically § 28-2A-1 et seq., Ala. Code 1975. Although the
City of Bridgeport Court did not detail its analysis, it
apparently considered those statutes in pari materia with
other statutes dealing with municipal structure and
powers
and
concluded that "[t]he Alabama Code recognizes two methods for
determining the population of a municipality": the federal
decennial census and a municipal census conducted pursuant to
§ 11-47-90 et seq. 571 So. 2d at 1091. Thus, although in
Ryan the Court concluded that a municipality's population
could be determined by any serviceable means and in City of
28
1140487
Bridgeport the
Court concluded
that
a
municipality's
population could be determined only by federal decennial
census or municipal census, both decisions were correct,
inasmuch as the statutes being interpreted in City of
Bridgeport had to be read in pari materia with § 11-40-6, but,
as explained in Board of Revenue of Jefferson Cnty. and Ex
parte Illinois Central Gulf R.R., in Ryan, § 11-40-6, as a
mere statute, had no bearing on the interpretation of § 255,
a constitutional provision.
IV.
Having concluded that the trial court correctly held that
a municipality's police jurisdiction expands to include the
area within three miles of the municipality's city limits
pursuant to § 11-40-10(a) only after either a federal
decennial census or a municipal census establishes that the
population of that municipality exceeds 6,000 inhabitants, we
now turn to the other issues raised by the parties. Pike Road
has also argued that the trial court was required, but failed,
to take judicial notice of the fact that it had, in the
unrelated case of Town of Pike Road v. Taxpayers & Citizens of
Pike Road, made a finding of fact that "[t]he population of
29
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[Pike Road] exceeds 6,000 residents." Pike Road argues that
it is well established both that a trial court "may take
judicial notice of the population of municipalities within
their jurisdiction," Meadows v. City of Birmingham, 582 So. 2d
603, 606 (Ala. Crim. App. 1991), and that "[e]ach court takes
judicial knowledge of its own records," Evans v. State, 341
So. 2d 749, 750 (Ala. Crim. App. 1976); accordingly, Pike Road
argues, the trial court exceeded its discretion by failing to
take judicial notice of the fact that it had already found the
population of Pike Road to exceed 6,000 residents in a
previous proceeding before it inasmuch as Pike Road had
specifically requested it to take such notice and had provided
the court with all the information necessary to do so. See
Rule 201(d), Ala. R. Evid. (stating that it is mandatory for
a court to take judicial notice "if requested by a party and
supplied with the necessary information").
However, Pike Road fails to recognize that Rule 201, Ala.
R. Evid., applies only to the judicial notice of a fact that
is "not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination
30
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by resort to sources whose accuracy cannot reasonably be
questioned." Rule 201(b), Ala. R. Evid. In this case, the
population of Pike Road is the subject of dispute; moreover,
there is no unimpeachable source to which one can readily turn
to determine that population. In other reported cases where
an appellate court has taken judicial notice of the population
of a municipality, that fact is generally not in dispute, and
the population is easily determined by reference to a reliable
source –– often a census. See, e.g., Lifestar Response of
Alabama, Inc. v. Lemuel, 908 So. 2d 207, 219 (Ala. 2004) ("We
take judicial notice of the fact that the population of the
City of Montgomery as of the last federal decennial census,
taken in the year 2000, was 201,568."), and Value Oil Co. v.
City of Northport, 284 Ala. 103, 105, 222 So. 2d 358, 359-60
(1969) ("[W]e judicially know that the population of
Northport, as contained in the last Federal census, is 5,245
...."). See also Taxpayers & Citizens of Fort Payne v. City
of Fort Payne, 252 Ala. 231, 234, 40 So. 2d 439, 441 (1949)
("The apparent purpose [of the municipal-census statutes] is
to provide a procedure for obtaining an official census, with
all the advantages of an official census, including a
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permanent official record of which a court is required to take
judicial notice."). We further note that, for all that
appears, the only evidence presented in Town of Pike Road v.
Taxpayers & Citizens of Pike Road indicating that the
population of Pike Road exceeded 6,000 inhabitants was Pike
Road's claim to that effect; the same judgment containing that
finding of fact also states that no citizen appeared "in
opposition"
to
Pike
Road's
bond-validation
petition,
and
there
is no indication that the issue of Pike Road's population was
actually litigated. For all these reasons, we conclude that
the trial court in this case did not exceed its discretion by
declining to take judicial notice of the finding of fact made
in unrelated litigation that Pike Road's population exceeded
6,000 inhabitants. See Henry v. Butts, 591 So. 2d 849, 852
(Ala. 1991) ("Whether to take judicial notice of a fact is in
the discretion of the trial court.").
V.
Finally, we must consider the effect of Pike Road's
submission to this Court of facts indicating that it has now
annexed certain properties so that it is now without question
that the Mt. Meigs facility is in its police jurisdiction.
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Pike Road argues that it is proper for this Court to consider
those facts even though they were never presented to the trial
court because, Pike Road argues, these facts "moot" the issue
whether Pike Road's police jurisdiction extends one and one-
half miles from its city limits or three miles from its city
limits; either way, Pike Road argues, the Mt. Meigs facility
is now undisputedly in Pike Road's police jurisdiction. In
support of this argument, Pike Road cites South Alabama Gas
District v. Knight, 138 So. 3d 971, 975 (Ala. 2013), in which
we stated that "[e]vents occurring subsequent to the entry or
denial of an injunction in the trial court may properly be
considered by this Court to determine whether a cause,
justiciable at the time the injunction order is entered, has
been rendered moot on appeal."
The principle explained in Knight, however, is not
applicable in the present case. First, it is evident that
Pike Road does not actually want this Court to hold that this
appeal is moot because doing so would require us to dismiss
the appeal; in fact, Pike Road seeks a reversal of the trial
court's judgment. See Norrell v. Adams, 275 Ala. 382, 382,
155 So. 2d 338, 339 (1963) ("It seems clear that the case is
33
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moot. Accordingly, we have no alternative but to dismiss the
appeal. It has been held that if an event, pending appeal,
makes determination of the appeal unnecessary, or renders it
clearly impossible for the appellate court to grant effectual
relief, the appeal will be dismissed."). Second, the July
2015 annexations identified by Pike Road would have no effect
on the correctness of the trial court's February 11, 2015,
judgment holding that Montgomery was entitled to the
interpleaded funds and was the municipality authorized to
exercise jurisdiction over the Mt. Meigs facility at that
time. Those interpleaded funds properly belong to the
municipality in whose police jurisdiction the Mt. Meigs
facility was located at the time the funds were paid into the
court, and, for the reasons explained supra,
that municipality
was Montgomery. Any changes to Montgomery's and Pike Road's
police jurisdictions that have occurred after February 11,
2015, have no bearing on which municipality was entitled to
those funds or in whose police jurisdiction the Mt. Meigs
facility was located at the time of the trial court's February
11, 2015, judgment. If events have occurred subsequent to
that judgment so that there is now a new dispute regarding
34
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those police-jurisdiction boundaries and whether they have
changed, Montgomery, Pike Road, Dow Corning Alabama, or any
other affected party may initiate a new action seeking a
judgment deciding that dispute; this Court will not endeavor
to resolve that new dispute in the context of this appeal.
VI.
Pike Road appealed the judgment entered by the trial
court declaring that, pursuant to § 11-40-10, Pike Road's
police jurisdiction extended only a mile and a half from its
city limits inasmuch as neither a federal decennial census nor
a duly conducted municipal census had established that the
population
of
Pike
Road
exceeds
6,000
inhabitants.
Accordingly, the trial court held that the Mt. Meigs facility
was located in the police jurisdiction of Montgomery as
opposed to the police jurisdiction of Pike Road. Having found
no error in the trial court's application of § 11-40-6 and §
11-40-10 or any other errors that would require a reversal,
that judgment is now affirmed.
AFFIRMED.
Bolin, Parker, and Main, JJ., concur.
35
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Lyons, Special Justice, concurs in the result.*
Moore, C.J., and Murdock, Shaw, and Wise, JJ., dissent.
Bryan, J., recuses himself.
*Retired Associate Justice Champ Lyons, Jr., was
appointed on November 18, 2015, to serve as a Special Justice
in regard to this appeal.
36
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LYONS, Special Justice (concurring in the result).
This appeal presents the issue of how to apply a statute
that
makes municipal
population determinative
of
the
applicability of the statute when the statute is silent on how
to compute that population. Specifically, § 11-40-10, Ala.
Code 1975, establishes the police jurisdiction of a
municipality with a population of 6,000 or more at three miles
and of a municipality of lesser population at one and one-half
miles. Dueling police jurisdictions between the City of Pike
Road and the City of Montgomery are the result of a dispute
over the appropriate population of Pike Road and therefore the
mileage applicable to Pike Road's police jurisdiction.
Section 11-40-10 is silent on the method of computing the
population of a municipality. Section 11-40-6, Ala. Code
1975, prescribes population brackets used to differentiate
between a town and a city. Section 11-40-6 permits reliance
for those population brackets on "the last census, whether
federal or taken as authorized in this title." Section
11-47-90 et seq., Ala. Code 1975, authorizes a municipality to
conduct a census or to obtain a special federal census. No
other provision for census can be found in Title 11.
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Pike Road relied upon a 2013 estimate by the United
States Census
Bureau
to establish its population as sufficient
to justify a three-mile police jurisdiction. The trial court
found Pike Road's method of computing its population to be
inconsistent
with the requirements of §§ 11-47-90 through
-95,
Ala. Code 1975. The main opinion upholds the trial court's
judgment because § 11-40-6 applies, and it mandates adherence
to the last federal decennial census or to the procedures
found in §§ 11-47-90 through -95. Three previous cases have
addressed a similar issue in the context of § 28-2A-1, Ala.
Code 1975, which authorizes a municipality to conduct a "wet-
dry"
referendum
and
limits
its
applicability
to
municipalities
with a certain population. Section 28-2A-1 mirrors § 11-40-10
to the extent that it is also silent on the means of computing
that population.
What is now codified as § 28-2A-1 was enacted in 1984 as
Act No. 84-408. In Alabama Citizens Action Program v.
Kennamer, 479 So. 2d 1237 (Ala. 1985), the issue presented was
whether the 1970 federal decennial census or the more recent
1980 census governed in order to determine eligibility for a
wet-dry referendum. The Court stated:
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"In the absence of any such designation [that
would establish the 1970 census as the benchmark],
we will not assume that the legislature in 1984
intended to refer to the 1970 census. Neither do we
conclude that the statute is vague. Section 11-40-6
of Code of 1975, which sets forth the test for
determining whether a municipal corporation should
be called a city or town, states: 'The last census,
whether federal or taken as authorized in this
title, shall be used in determining the population
of a city or town.' Furthermore, Act No. 84-408 has
been codified in Chapter 2A of Title 28 of the Code.
Another
chapter
of
the
same
title
defines
'population' as '[t]he population according to the
last preceding or any subsequent decennial census of
the United States.' Code of 1975, § 28-3A-2(21).
"We conclude that in the absence of a
designation to the contrary the population of cities
for the purposes of Act No. 84-408 is determined by
the last preceding federal decennial census."
Kennamer, 479 So. 2d at 1242. Kennamer addresses the issue
without limiting the inquiry to the means afforded by § 11-40-
6, citing it only as illustrative of other instances in the
Code where the legislature
embraced
the last preceding federal
census as a benchmark.
In Dennis v. Pendley, 518 So. 2d 688 (Ala. 1987), the
municipality relied upon a special federal census, conducted
after the most recent federal decennial census, to establish
its eligibility to conduct a wet-dry referendum. The
principal issue in Dennis was whether the municipality was
39
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locked into the most recent federal decennial census or could
rely upon a more recent special federal census. 518 So. 2d at
690. The Court, without referring to any other provision of
the Alabama Code, accepted the municipality's special federal
census and sustained its eligibility to conduct the wet-dry
referendum. Id.
Section
11-47-92,
Ala.
Code
1975,
authorizes
a
municipality to obtain a special federal census, and § 11-47-
93, Ala. Code 1975, restricts the use of such a census to
establishing population as the basis for determining the levy
or collection of taxes or the distribution of revenues. The
Court in Dennis did not discuss the compatibility of the
special federal census with the purpose of determining
population for ascertainment of eligibility to conduct a wet-
dry referendum. However, an attorney general's opinion had
previously concluded that there was a
sufficient
nexus between
revenue and a determination that a municipality could be "wet"
to trigger availability of a special federal census pursuant
to §§ 11-47-92 and -93. Ala. Op. Att'y Gen. No. 85-00404
(June 26, 1985). Although Dennis does not refer to § 11-40-6,
the Court’s acceptance of a special federal census is
40
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consistent with the reference in § 11-40-6 to a census "taken
as authorized in [Title 11]," assuming the correctness of the
aforementioned attorney general's opinion with respect to the
limitations on the use of a special federal census in § 11-47-
93.
In City of Bridgeport v. Citizens Action Committee, 571
So. 2d 1089 (Ala. 1990), the municipality attempted to
establish population sufficient to allow a wet-dry referendum
pursuant to § 28-2A-1. The City of Bridgeport did not rely on
a recent special federal census as was the case in Dennis;
instead, it conducted its own census, but its methodology did
not satisfy the requirements of § 11-47-90 and § 11-47-91,
Ala. Code 1975. This Court stated:
"More specifically, the City of Bridgeport claims
the trial court erred in holding it to the strict
requirements of § 11-47-90, which governs the term
'census,' and further claims that a 'municipality
has common law authority to conduct a population
count by "means properly serviceable to that end,"'
citing as authority for this proposition Ryan v.
City of Tuscaloosa, 155 Ala. 479, 46 So. 638 (1908).
However, we find no merit to this argument."
571 So. 2d at 1091. Bridgeport thus dismisses without
analysis the contention that a municipality can resort to the
41
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common law for standards for determining its population.
Bridgeport also cites Dennis with approval:
"There is no provision in §§ 28-2A-1 through -4
for how population is to be determined for purposes
of an election. However, this Court has stated that
§ 28-2A-1 does not require that only a decennial
census conducted by the United States Department of
Commerce, Bureau of the Census, be used to determine
the population of a municipality. Dennis v.
Pendley, 518 So. 2d 688, 690 (Ala. 1987). The
Alabama Code recognizes two methods for determining
the population of a municipality. Sections 11-47-90
and -91 authorize a municipality to conduct its own
census and provide strict guidelines to ensure the
integrity of the census."
571 So. 2d at 1091 (emphasis added).
Sections 11-40-90 through -95 authorize a municipality to
conduct its own census or to request a special federal census.
The reference to "two methods" in the Alabama Code must be
taken as referring to the two methods that a municipality can
invoke independent of the decennial federal census, an
activity for determining population authorized by the United
States Code occurring every 10 years without any action by the
municipality. Bridgeport then limits the criteria for
determining population to §§ 11-47-90 and -91 without
reference to § 11-40-6. The Court, in a footnote, observes
that the City did not elect to conduct a special federal
42
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census as provided in § 11-47-92. 571 So. 2d at 1090 n. 2.
Based on Dennis, and, assuming the correctness of the attorney
general's opinion, the City could have done so.
In summary, Kennamer holds that the statute establishing
eligibility to conduct a wet-dry referendum based on
population should be construed as subject to the most recent
federal decennial census. Kennamer should be limited to the
context of a proceeding where no contention is made as to the
availability of a census more recent than the last decennial
census. Dennis recognizes the availability of a special
federal census to determine eligibility consistent with § 11-
47-93 as interpreted in the attorney general's opinion and
consistent with the methodology set forth in § 11-40-6, but
without referring to that section. Bridgeport holds that a
municipality electing to conduct its own census must strictly
comply with §§ 11-47-91 and 11-47-92.
It is axiomatic that a municipality can rely on the most
recent federal decennial census in computing its population.
In §§ 11-40-90 through -95, the legislature has conferred
authority on a municipality to compute its current population
independent of the most recent federal decennial census. This
43
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Court, without citing § 11-40-6, clearly held in Bridgeport
that these sections displaced any common-law authority of a
municipality to calculate its population.
Pike Road asserts that Bridgeport is "wrong," presumably
asking the Court to overrule it. I am not inclined to do so,
although I am not prepared to embrace § 11-40-6 as
justification for adherence to
Bridgeport.
Although the Court
in Bridgeport cites no authority for its refusal to embrace
Ryan v. City of Tuscaloosa, 155 Ala. 479, 46 So. 638 (1908),
this Court in Ex parte Jones, 212 Ala. 259, 102 So. 234
(1924), construing what is now §§ 11-47-90, 11-47-91, and 11-
47-94, known then as the "Municipal Census Act," supplies the
20
rationale. The Court in Jones was asked to apply these
statutes in the context of a municipality's eligibility to
impose a tax pursuant to a general revenue statute. 212 Ala.
at 160, 102 So. at 234. The Court noted the absence of any
reference to the Municipal Census Act in the revenue statute
Sections 11-47-93 and 11-47-94, providing for a special
20
federal census, were added by Ala. Acts 1953, Act No. 845.
Whether a special federal census is available to compute
population as the basis for taxing within a police
jurisdiction is a question not before this Court.
44
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at issue. The Court then directed its attention to what is
now § 11-47-94, which provides:
"Where the census of any city or town in this
state has been or may hereafter be taken as provided
by this article and the report of the census thus
taken has been or may hereafter be filed with the
Secretary of State, the census, purporting to be a
true and correct enumeration of the inhabitants
residing in said cities and towns, is and shall be
ratified, confirmed and validated and the report of
said census which has been or may hereafter be filed
shall for all purposes govern and be taken as the
true and correct census for all such cities and
towns in the state when so taken. The form of
government of such cities and towns shall be
governed and controlled by such census when the same
is so taken and a report thereof is filed in
accordance with the provisions of this section."
(Emphasis added.) The Court then limited the reach of the
phrase "shall for all purposes govern" as follows:
"The Municipal Census Act using the very general
words 'shall for all purposes govern' should be
construed in the light of the object and purpose of
that enactment expressed in part, at least, in the
concluding sentence of the first section thereof, to
the effect that the form of government of such
cities and towns shall be controlled by such census.
This later act is properly to be construed as
applicable for all purposes concerning municipal
government and powers and liabilities and duties
arising therefrom."
212 Ala. at 261, 102 So. at 235 (emphasis added). The issue
in this proceeding is whether Pike Road is entitled to a
three-mile police jurisdiction. This issue sufficiently
45
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implicates "municipal government and powers and liabilities
and duties arising therefrom" so as to trigger the limitations
in § 11-47-94. Id. Consequently, the provisions in that
chapter of the Code govern Pike Road's effort to create a
census independent of the most recent federal decennial
census.
Nor does Ryan support overruling Bridgeport. As the main
opinion notes, Ryan operates in the realm of application of a
constitutional provision. The parties in Ryan agreed that the
then current population of the City of Tuscaloosa exceeded the
population determined by the preceding federal decennial
census. 155 Ala. at 486, 46 So. at 641. The Ryan Court
upheld
the City's computation of its population independent
of
the preceding federal decennial census. 155 Ala. at 488, 46
So. at 641. However, the opinion in two places indicates that
no statute was available for this proceeding. The majority
opinion concludes by stating: "To what extent the legislation
may be constitutionally enacted toward the evidential
ascertainment of population in such cases we do not decide."
155 Ala. at 489, 46 So. at 642. Furthermore, a note appended
to the vote line states:
46
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"TYSON, C.J., concurs in the conclusions reached as
to all the objections save the fifth [dealing with
the availability of means other than a federal
decennial census for computing population], as to
which he entertains the opinion that the last
decennial federal census is the criterion for the
finding vel non of the condition (population) upon
which the limitation is based, in the absence of
state legislation authorizing the taking of a
census."
Id. (emphasis added). In addition, a municipal-census
statute, the precursor to § 11-47-90, was enacted by the
legislature on August 13, 1907. Although Ryan was decided on
May 12, 1908, the meeting of the Tuscaloosa city council where
the City voted to hold an election on the bond issue took
place in November 1906, several months before the enactment of
the statute. 155 Ala. at 482, 46 So. at 640.
For the foregoing reasons, I do not consider Bridgeport
to have been wrongly decided. However, because I conclude
that the trial court's application of the requirements of §§
11-47-90 and 11-47-91 is required by § 11-47-94, as construed
in Ex parte Jones –– a case this Court has not been asked to
overrule –– rather than § 11-40-6, I concur in the result.
47
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MOORE, Chief Justice (dissenting).
I respectfully dissent. I agree with Justice Murdock
that § 11-40-6, Ala. Code 1975, does not dictate the method by
which the City of Pike Road must determine its population for
purposes of determining its police jurisdiction under
§
11-40-
10(a), Ala. Code 1975. I also agree with Justice Murdock
that, under the applicable precedents, we should find that the
legislature simply did not specify the method by which a city
must determine its population under § 11-40-10(a). I believe
that Pike Road has demonstrated that it has more than 6,000
inhabitants. Therefore, I respectfully dissent.
48
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MURDOCK, Justice (dissenting).
I respectfully must dissent. I am concerned that the main
opinion supplies a rule for determining the population of
municipalities that is not present in § 11-40-10(a), Ala. Code
1975, the statute actually at issue in this case. Further, I
am concerned that it arrives at this result through a
misapplication of the "plain meaning" and the in pari materia
rules of statutory construction.
The main opinion agrees with the trial court's premise
that
"a municipality's police jurisdiction expands to the
area within three miles of its city limits pursuant
to § 11-40-10(a) only when a decennial census
conducted by the United States Census Bureau or a
municipal census conducted pursuant to § 11-47-90
et seq., Ala. Code 1975, establishes that the
population of that municipality exceeds 6,000
inhabitants."
___ So. 3d at ___. The statute the main opinion discusses,
however, is not § 11-40-10(a) -- the statute that defines the
territorial extent of police jurisdictions for municipalities
depending upon the populations of those municipalities -- but
rather § 11-40-6, Ala. Code 1975, a statute that classifies a
municipality as a city or a town based on population for
purposes entirely unrelated to the police jurisdiction.
49
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The main opinion is correct that § 11-40-6 states that
"[t]he last census, whether federal or taken as authorized in
this title, shall be used in determining the population of a
city or town." Consequently, if we were being asked to
interpret § 11-40-6, we would rightly conclude that "the
language of the statute is unambiguous" and that there are
only two ways to determine the population of a municipality
for the purpose of designating it as either a city or a town.
IMED Corp. v. Systems Eng'g Assocs., 602 So. 2d 344, 346 (Ala.
1992).
But the dispute in this case does not concern whether a
municipality should be designated as a city or town; it is
about
the
territorial
extent
of
Pike
Road's
police
jurisdiction. That issue is plainly the subject of § 11-40-
10(a), not § 11-40-6. As the main opinion is forced to admit,
however, "§ 11-40-10 is silent with regard to the issue now
before the Court." ___ So. 3d at ___ (emphasis added).
Even if it is assumed that the language of § 11-40-6, and
in particular its last sentence, is relevant to the issue in
this case, the main opinion attributes much more to that
sentence than it can support. The main opinion rejects Pike
50
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Road's argument that the last sentence of the first paragraph
of § 11-40-6 "should relate only to determining population for
purposes of deciding whether a municipality is a city or a
town" because, it says, "the clear language of the statute is
not so limiting." ___ So. 3d at ___. It notes that the
sentence in question, standing alone, does not expressly
state, as Pike Road urges, that "'[t]he last census, whether
federal or taken as authorized in this title, shall be used in
determining the population of a city or a town for the purpose
of
determining whether
said
municipality is
properly
classified as a city or a town.'" Id. at ___. The main
opinion therefore concludes that reading the last sentence in
the way Pike Road advocates would require us to "modify"
§ 11-40-6 in a manner contrary to legislative intent. Id. at
___.
But meaning, plain or otherwise, cannot be ascertained in
the absence of context. The main opinion acknowledges the
axiom repeated in IMED Corp., 602 So. 2d at 346, that "[t]he
fundamental rule of
statutory construction is to ascertain and
give effect to the intent of the legislature in enacting the
statute." This Court also has observed that, "[i]n
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determining the intent of the legislature, we must examine the
statute as a whole." Ex parte Exxon Mobil Corp., 926 So. 2d
303, 309 (Ala. 2005). The last sentence of the first paragraph
of § 11-40-6 -- "[t]he last census, whether federal or taken
as authorized in this title, shall be used in determining the
population of a city or town" -- cannot be read outside the
context of the first two sentences of the same paragraph,
which
state:
"Municipal
corporations
now
existing
or
hereafter
organized under this title containing 2,000 or more
inhabitants shall be called cities. All incorporated
municipalities
containing
less
than
2,000
inhabitants
shall
be
called towns." Viewed in the context of those first two
sentences, the last sentence of the first paragraph of
§ 11-40-6 clearly refers to how a municipality's population
must be determined for the purpose of designating whether a
municipality is a city or town. This is why the sentence ends
with the phrase "determining the population of a city or town"
rather than "determining the population of a municipality."
Still more contextual confirmation of this meaning is
found in the second paragraph of § 11-40-6, which states:
"At the next election more than four months
after the one hundred twentieth day after the first
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day of the first regular business session of the
Legislature held next after the publication by the
federal government of the regular federal decennial
population census for Alabama, if the municipality
shows a population which authorizes a change in its
government under this title, the proper officers for
such a city shall be elected and perform the duties
prescribed in this title."
(Emphasis added.) The second paragraph (which does not even
mention the alternative of a census performed by a
municipality) reinforces that the focus of § 11-40-6 is
whether a municipality is to be considered a city or a town
for purposes of its form of government.
In short, the purpose of § 11-40-6 is to establish the
difference between cities and towns, and thus the appropriate
form of government, by setting a population threshold. In
that context, the purpose of the last sentence of the first
paragraph of § 11-40-6 in particular is to state the methods
by which population may be ascertained for the purpose of
determining whether a municipality is to be designated as a
city or a town. The "plain language" of § 11-40-6 certainly
does not dictate that the purpose of the last sentence of its
first paragraph is, as the main opinion claims, to set "the
default rule" that "applies to all other statutes requiring
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the determination of a municipality's population in the
absence of a more specific directive." ___ So. 3d at ___.
The main opinion correctly observes that "'statutes
covering the same or similar subject matter should be
construed in pari materia.'" ___ So. 3d at ___ (quoting
Ex parte Johnson, 474 So. 2d 715, 717 (Ala. 1985)). The main
opinion reasons that the subject matter of § 11-40-6 is
sufficiently related to the subject matter of § 11-40-10 such
that the statutes should be read in pari materia.
"Statutes are in pari materia -- pertain to the same
subject matter -- when they ... have the same purpose or
object." 2B Norman J. Singer & J.D. Shambie Singer, Statutes
and Statutory Construction § 51:3 (7th ed. 2012). Sections
11-40-6 and 11-40-10 deal with similar subject matters only in
the broad sense that they both discuss municipalities and
their populations. They do not, however, have the same
purpose. As noted above, § 11-40-6 concerns whether, based on
its population, a municipality is considered a city or a town
(and therefore whether it is to be governed as a city or as a
town); § 11-40-10, on the other hand, concerns the territorial
extent of a municipality's police jurisdiction, regardless of
54
1140487
its designation as a city or a town (or its government as
such). Indeed, under § 11-40-10 it is possible for one
municipality designated as a city to have a police
jurisdiction that extends only a mile and a half beyond its
corporate limits while another municipality designated as a
city could have a police jurisdiction that extends three miles
beyond its corporate limits. The fact that the municipal
designations provided in § 11-40-6 do not affect the
territorial
extent
of
the
police
jurisdictions
of
municipalities delineated in § 11-40-10 illustrates that the
two statutes have different objects.
Another fact highlighted by Pike Road also demonstrates
why the in pari materia principle should not be applied to
these statutes. Pike Road observes that there are
"multiple classification statutes in the Alabama
Code that tie the population of a municipality
solely to the federal decennial census, see, e.g.,
§§ 11-40-14, 11-43-2, 11-43-7.1, 11-43-190, 11-48-
30, and 11-51-128, Ala. Code 1975, as well as
multiple other classification statutes like § 11-40-
10 in which no specific method for determining a
municipality's population is set forth, see, e.g.,
§§ 11-32-1, 11-40-23, 11-42-58, and 11-43-5.1, Ala.
Code 1975 ...."
___ So. 3d at ___. Given that so much variation exists in the
Alabama Code as to how a municipality's population should be
55
1140487
ascertained for various purposes, why is § 11-40-6 the one
statute that must be read in pari materia with all the
statutes that contain no specific method of determining a
municipality's population to supply "the default rule"?
The main opinion's answer apparently is that the last
sentence of the first paragraph of § 11-40-6 contains no
specific limitation on the rule stated therein, but, as
already observed, this answer ignores the fact that we must
read that sentence in the context of the statute in which it
appears. It seems at least as plausible to conclude that the
fact that the legislature has designated specific ways to
determine municipal populations in so many statutes but has
chosen not to designate a specific method in other statutes
indicates that, for the purposes of those other statutes, the
legislature simply did not intend to prescribe or limit the
ways by which a municipality's population could
be
determined.
In other words, we should take the statutes as they are,
instead of reading into them a "default rule" that we pluck
from a single statute that has its own specific, stated
purpose. For that matter, if the legislature intended there
to be a rule of general application for the determination of
56
1140487
municipal populations, it easily could have enacted a general
statute to that end, rather than leaving it for this Court to
comb through other statutes in an effort to discover the
existence of such a rule.
21
The main opinion responds to this criticism with the
21
following argument: "[T]he legislature likewise could have
enacted
a
general
stand-alone
statute
articulating
the
default
rule Justice Murdock advocates –– that a municipality might
endeavor to prove its population for a particular purpose by
any available means unless the legislature has specifically
restricted the means available as it relates to that
particular purpose –– but the legislature has not elected to
do so." ___ So. 3d at ___n. 15. I do not advocate a default
rule, however -- at least not some special default rule
requiring some special legislative enactment as the main
opinion suggests.
In a different sense, the fact is that Alabama law does
indeed already embrace "the default rule," if one wants to
call it that, attributed to me by the main opinion's response,
i.e., that a party to an action may endeavor to prove a
relevant fact by "any available means" unless the law
specifically prescribes otherwise. By their terms, the
Alabama Rules of Evidence (as tempered by constitutional
constraints) are expressly applicable in the absence of a
specific legislatively prescribed exception or override. As
to a given statute or statutory scheme, it is not necessary
for the legislature to reiterate expressly that the Alabama
Rules of Evidence apply or to expressly negate the absence of
any exception to the applicability of those Rules. The
silence of a given statute as to how to prove a fact made
relevant by that statute means that any means "available" to
that end under the Rules of Evidence is in fact available. In
other words, and viewed more generally, the analytical
construct asserted by the main opinion essentially would mean
that the legislature could never simply remain silent and
thereby allow a generally applicable rule to govern in a
matter; it would instead have to expressly and specifically
57
1140487
The main opinion cites City of Bridgeport v. Citizens
Action Committee, 571 So. 2d 1089 (Ala. 1990), in support of
its conclusion. In City of Bridgeport, some citizens brought
an action to enjoin the City of Bridgeport ("Bridgeport") from
holding a referendum scheduled to occur on June 5, 1990, to
become a "wet" county as authorized by § 28-2A-1 et seq., Ala.
Code 1975. The citizens contended that Bridgeport did not
have a sufficient population to be permitted to hold a wet-dry
referendum. Under § 28-2A-4, Bridgeport had to have a
population of at least 4,000 citizens to hold a wet-dry
referendum, but that statute did not specify how the
municipality's population was to be determined.
The most recent federal decennial census –- 1980 –-
determined Bridgeport's population to be 2,974. Bridgeport
had increased its population between 1980 and 1990, however,
through
four
separate
annexations.
Following
the
annexations,
Bridgeport "attempted to authorize a special census, pursuant
to § 11-47-90, to determine whether it had become large enough
speak in every instance to announce that the general rule and
no other does in fact govern, something already true of
general rules by their nature. See Dennis v. Pendley, 518
So. 2d 688 (Ala. 1987), discussed infra; see also Ryan v. City
of Tuscaloosa, 155 Ala. 479, 46 So. 638 (1908), also discussed
infra.
58
1140487
to conduct a wet-dry referendum." 571 So. 2d at 1090.
Following a hearing, the trial court concluded that Bridgeport
had not established that it had the requisite population to
hold the referendum, and it issued an injunction preventing it
from holding the referendum.
On appeal, Bridgeport contended that
"the language of § 28-2A-4 is ambiguous in regard to
how a municipality is to determine its population
and that it is the function of this Court to clarify
the legislative intent pertaining to this statute.
More specifically, the City of Bridgeport claims the
trial court erred in holding it to the strict
requirements of § 11-47-90, which governs the term
'census,' and further claims that a 'municipality
has common law authority to conduct a population
count by "means properly serviceable to that end,"'
citing as authority for this proposition Ryan v.
City of Tuscaloosa, 155 Ala. 479, 46 So. 638
(1908)."
571 So. 2d at 1091. Conversely, the citizens contended that
"when a municipality conducts a census to determine its
population count for the purpose of a wet-dry referendum, such
a census must fully comply with the requirements set forth in
§§ 28-2A-1 through -4 and §§ 11-47-90 through -95." Id.
This Court agreed with the citizens, stating:
"There is no provision in §§ 28–2A–1 through –4
for how population is to be determined for purposes
of an election. However, this Court has stated that
§ 28–2A–1 does not require that only a decennial
59
1140487
census conducted by the United States Department of
Commerce, Bureau of the Census, be used to determine
the population of a municipality. Dennis v. Pendley,
518 So. 2d 688, 690 (Ala. 1987). The Alabama Code
recognizes
two
methods
for
determining
the
population of a municipality. Sections 11–47–90 and
–91 authorize a municipality to conduct its own
census and provide strict guidelines to ensure the
integrity of the census. ...
"....
"The
record
indicates
that
the
City
of
Bridgeport failed to comply with these statutory
guidelines. There is no evidence of record that the
appointed enumerator, John Lewis, was ever confirmed
by the city council. The record also reveals that
the college students that assisted Lewis with the
census were employed by him and were not appointed
or confirmed by the mayor. In addition, there is no
evidence of record to indicate that the students
took
the
oath
required
of
enumerators.
The
individual who conducted the actual count or tally
of the census papers, Inda Galovich, also was not
appointed or confirmed as a census enumerator. The
final results of the census were never certified
under seal nor filed with the Alabama Secretary of
State. Clearly, the City of Bridgeport has failed to
comply with the statutes governing the census-taking
process."
571 So. 2d at 1091-92.
The main opinion focuses on the statement in City of
Bridgeport that "[t]he
Alabama
Code recognizes two methods for
determining the population of a municipality." 571 So. 2d at
1091. If the Bridgeport Court was attempting to state a
"default rule" that there are only two ways for a municipality
60
1140487
to determine population for any given statutory end, the
Court's failure to mention or even cite § 11-40-6 in support
of that conclusion is inconsistent with the main opinion's
confidence in the present case in the general applicability of
the last sentence of the first paragraph of § 11-40-6.
Further, the main opinion, I submit, ignores the context of
the case. The essential holding of City of Bridgeport is that
if a municipality wishes to conduct its own census, it must do
so in compliance with the requirements prescribed for a
municipal self-census in § 11-47-90 and § 11-47-91.
Bridgeport could not prove such compliance and therefore lost
the case.
22
The main opinion notes that Bridgeport argued that "a
22
'municipality has common law authority to conduct
a
population
count by "means properly serviceable to that end,"'" but that
this Court summarily stated that "we find no merit to this
argument." 571 So. 2d at 1091; see ___ So. 3d at ___ n.17.
Again, the Bridgeport Court's statement must be considered in
the context of the fact that the City was attempting to rely
upon a self-census that did not meet requirements expressly
imposed by the legislature in §§ 11-47-90 and 11-47-91 for
such a census. It is axiomatic that where the legislature has
expressly spoken to a particular issue the common law is
displaced. Thus, there was no merit to Bridgeport's claiming
"common law authority" to perform a municipal self-census. In
contrast, Pike Road based its municipal population on the
United States Census Bureau's 2013 estimate of the population
of Pike Road, not on a self-census that failed to comply with
the applicable statutes as Bridgeport attempted to do.
61
1140487
The main opinion overlooks an enlightening case cited by
the Bridgeport Court, Dennis v. Pendley, 518 So. 2d 688 (Ala.
1987). Dennis involved the City of Clanton's attempt to hold
a wet-dry referendum on November 4, 1986. The attempt was
challenged, in part, on the basis that Clanton had not proved
that it had the requisite population of 7,000 inhabitants for
eligibility to hold such a referendum. The trial court
enjoined Clanton from holding the referendum.
This Court reversed the judgment of the trial court. In
doing so, the Dennis Court first turned aside the appellee's
citation of a case that appeared to set a default rule for
determining a municipality's population because, as with City
of Bridgeport, the context of the Court's statement had to be
kept in mind. The Dennis Court explained:
"Appellee Pendley argues that, based on the
authority of Alabama Citizens Action Program v.
Kennamer, 479 So. 2d 1237 (Ala. 1985), only a
preceding decennial census may be used to determine
population for purposes of § 28-2A-1. We disagree.
Kennamer's statement that '[i]n the absence of a
designation to the contrary the population of cities
for the purposes of Act No. 84-408 is determined by
the last preceding federal decennial census,' 497
So. 2d at 1242, must be read in the context of the
facts of that particular case. There, the question
was which of two decennial censuses to use, not
whether, if available, something other than a
decennial census could be reasonably utilized to
62
1140487
obtain a valid population count. We find that the
interim census conducted by the United States
Department of Commerce, Bureau of the Census, which
determined Clanton's population to be 7,403 as of
September 27, 1986, does serve just such a
function."
518 So. 2d at 690 (emphasis omitted).
The Dennis Court then noted that the purpose behind the
population threshold for holding a wet-dry referendum would
not be thwarted by allowing a municipality's population to be
determined more frequently than every 10 years.
"Section 28-2A-1 makes no provision for how
population is to be determined. It is the court's
function to make clear the intent of the legislature
when some degree of ambiguity is found in a statute.
Sutherland Stat. Const., § 45.02 (4th ed. 1984). The
primary rule of statutory construction is to
ascertain
and
effectuate
legislative
intent.
Alabama v. Tennessee Valley Authority, 467 F. Supp.
791 (N.D. Ala. 1979). See also State v. AAA Motor
Lines, Inc., 275 Ala. 405, 155 So. 2d 509 (1963). In
attempting to ascertain the legislative intent, we
can turn to § 28-2A-3[,] part of the statute itself.
There, it is stated that the purpose of requiring
that a municipality have a population of at least
7,000 in order to have a municipal motion election
pursuant to § 28-2A-1, is that it is 'the judgment
of the legislature that municipalities with a lesser
population would be unable to support and maintain
such [necessary] protection [for public welfare,
health, peace, and morals of the people].' This
shows no basis for requiring ten-year gaps between
the times that the population may be determined."
63
1140487
518 So. 2d at 690. Similarly, there is no reason to believe
that the purposes behind the 6,000-inhabitant population
threshold for increasing a municipality's police jurisdiction
would be thwarted by allowing a municipality to establish its
population in some way other than the federal decennial census
or the municipal-census statutes.
Ultimately -- and importantly -- the Dennis Court simply
relied upon the fact that the legislature had not specified
the method that could be used to determine a municipality's
population for purposes of conducting a wet-dry referendum.
"Section 28-2A-1 does not say that only a
decennial
census
can
be
used
to
determine
population. We decline to reach such a conclusion
in the absence of a clear legislative intent.
Clanton has complied with the requirements of § 28-
2A-1, and had a population in excess of 7,000 when
it held its municipal option election."
518 So. 2d at 690 (emphasis added).
The same reasoning employed by this Court in Dennis was
also employed in Ryan v. City of Tuscaloosa, 155 Ala. 479, 46
So. 638 (1908). As the portion of Ryan quoted in the main
opinion indicates, ___ So. 3d at ___, the Ryan Court drew a
negative inference from the fact that other provisions of the
Alabama Constitution restricted population determinations to
64
1140487
the federal census results, but the provision at issue in the
case did not. The Ryan Court concluded that, "in omitting
mention of [the federal] census in the section under
consideration, a clear intent is manifested to leave the
ascertainment, upon occasion, of the population to means
properly serviceable to that end." 155 Ala. at 488, 46 So. at
641. There is no reason the same inference should not be
drawn as to the legislature's intent in not specifying a
method in § 11-40-10 for determining a municipality's
population.23
The main opinion distinguishes Ryan on the basis of the
23
fact that it concerned a provision of the Alabama Constitution
rather than a statute, because the interpretation of a statute
is at issue in this case. I see no reason why that
distinction should make a difference for applying Ryan's
rationale here. Indeed, the same rationale was applied in
Dennis, which did involve the interpretation of a statute. In
Ryan, the Court was ascertaining the intent of the drafters of
the Alabama Constitution, while in this case we are charged
with ascertaining the intent of the legislature in drafting
§ 11-40-10. But the legal principle employed in Ryan that the
inclusion of a specific requirement in one provision and the
omission of that requirement in another similar but more
general provision indicates a purposeful intent not to limit
the more general provision with the same specific requirement
follows, regardless of whether the provision is a part of a
constitution or a code. The legislature plainly could have
specified in § 11-40-10 exactly how a municipality's
population should be determined, and we know this precisely
because of the existence of other statutes that turn on a
municipality's population that do contain prescribed methods
of determining population. In my view, to ignore this fact
65
1140487
turns a blind eye to one of the best clues for divining
legislative intent in this case.
66
1140487
SHAW, Justice (dissenting).
I respectfully dissent. Justice Murdock's critique of
the main opinion's statutory-construction analysis is, in my
view, compelling, and, I believe, disproves a holding that
Ala. Code 1975, § 11-40-10(a), allows a municipality to
establish its population via only the federal
decennial census
or a municipal census conducted pursuant to Ala. Code 1975, §
11-47-90 et seq. Therefore, I would reverse the trial court's
judgment and remand the case for further proceedings that
include a determination of Pike Road's population
for
purposes
of § 11-40-10(a).
67 | December 11, 2015 |
c8c11cb0-962b-4eda-ad1b-397f1eb38514 | Brookwood Medical Center v. Borden | N/A | 1131284 | Alabama | Alabama Supreme Court | REL: 11/13/2015
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, 2015-2016
_________________________
1131284
_________________________
Brookwood Health Services, Inc., d/b/a Brookwood Medical
Center
v.
Wilfred Borden and Pam Borden
Appeal from Jefferson Circuit Court
(CV-12-902811)
WISE, Justice.
The
remaining
defendant
below,
Brookwood Health
Services,
Inc., d/b/a Brookwood Medical Center ("Brookwood"), appeals
from a judgment in favor of the plaintiffs, Wilfred Borden and
1131284
Pam Borden. We reverse and render a judgment for Brookwood.
Facts and Procedural History
On September 8, 2010, Dr. Thomas A. Staner, a board-
certified neurosurgeon and neurologist, performed a lumbar
laminectomy on Wilfred at Brookwood Medical Center. Wilfred
was released from the hospital on Friday, September 10, 2010.
On the evening of Saturday, September 11, 2010, Wilfred was at
home lying in bed. According to Wilfred, when he rolled over
and sat up on the side of the bed, he suddenly had
excruciating pain up and down his lower back and legs; his
legs felt like they were on fire; and his feet felt like
somebody was sticking him with pins and needles. Wilfred
called for his wife, Pam. Pam and his daughters went to the
bedroom. After he told Pam what was going on, he asked her to
massage his legs. Although Pam and his daughters were
massaging Wilfred's legs, he could not feel it.
Pam telephoned Dr. Staner around 7:30 p.m. After she and
Wilfred had both talked to him, Dr. Staner told them that
Wilfred needed to get to the Brookwood Medical Center
emergency room ("ER") right away. Pam called an ambulance
because Wilfred could not feel his weight on his feet and did
2
1131284
not trust that he could stand up. An ambulance arrived and
took Wilfred to the ER, and Pam drove to the ER in her
vehicle.
Dr. Ricky Phillips saw Wilfred in the ER, and he
consulted with Dr. Staner by telephone. In his notes, Dr.
Phillips indicated that he saw Wilfred at 9:10 p.m.; that
Wilfred had lost sensation, primarily in his left foot; that
Wilfred was not able to "wiggle" his ankles; that Wilfred said
he could not wiggle his toes; and that sensation was nearly
absent in Wilfred's feet. However, his notes indicated that
Wilfred was able to lift both legs off the gurney
individually; that Wilfred was continent; and that Wilfred's
distal pulses were normal. Dr. Staner testified that Dr.
Phillips told him that Wilfred was able to lift both of his
legs off the gurney and that Wilfred was continent.
A CT scan was performed on Wilfred. Dr. Greg Jackson, a
radiologist, reviewed the CT scan, and Dr. Staner reviewed it
from home as well. Dr. Phillips's notes indicated that the CT
scan "show[ed] a small hematoma, but no obvious acute change."
Dr. Phillips discussed Wilfred with Dr. Staner, and they
decided upon the following plan: "[B]ed the patient down,
3
1131284
pain medication and Dr. Staner will take over management of
the patient." Dr. Phillips entered the admission orders for
Wilfred, which called for a neurovascular check every two
hours. Additionally, the orders provided: "CALL ADMITTING
PHYSICIAN FOR ANY QUESTIONS, PROBLEMS, CHANGE OF STATUS OR FOR
FURTHER ORDERS." (Capitalization in original.)
Wilfred was subsequently admitted to 4 Main, which is an
orthopedic floor at Brookwood Medical Center. Tonya Tolbert,
a registered nurse who worked on 4 Main, received Wilfred
around midnight. Around 12:15 a.m., Tolbert performed an
initial baseline assessment on Wilfred and a neurovascular
check. When Wilfred arrived on the floor, he was wet, and the
nursing notes Tolbert prepared after Wilfred arrived indicate
that he was incontinent. Tolbert's notes also indicate that
Wilfred could not move his legs and that his pedal pulses,
i.e., the pulses on his feet, were weak or faint.
At 7:00 a.m. on September 12, 2010, Amy Jeffers, a
registered nurse who worked for Brookwood at that time,
started her shift on 4 Main. When she came on shift, she
received a detailed report from Tolbert regarding her
patients, including Wilfred. She testified that, according to
4
1131284
the doctor's admission orders, she performed a neurovascular
check on Wilfred every two hours.
At 10:00 a.m. on September 12, 2010, Dr. Staner came to
the hospital and saw Wilfred. Dr. Staner testified that, when
he saw Wilfred, Wilfred had a lot of pain in his back and legs
but that the pain might have been some better than earlier.
Dr. Staner asked Wilfred to move his legs, but Wilfred said
that he could not. When Dr. Staner assisted Wilfred in moving
his legs, Wilfred barely moved his legs an inch under great
pain and effort. Dr. Staner testified that that was a big
difference from the night before when Dr. Phillips indicated
that Wilfred had moved his legs in the ER. Dr. Staner later
found out that Wilfred had become incontinent of urine and
stool, which also was a major change from his condition when
Dr. Staner had talked to Dr. Phillips. Dr. Staner testified
that no nurse at Brookwood Medical Center had telephoned him
and notified him that Wilfred had lost the ability to move his
legs and had become incontinent.
Subsequently, Dr. Staner ordered a myelogram CT. In the
myelogram, he saw a hematoma or blood clot that was causing
compression of the cauda equina, a collection of nerves that
travel through the spine and then exit the spinal canal at
5
1131284
different levels. Virtually all the nerves that go into the
legs, bladder, rectum, and genital areas are contained within
the cauda equina. At 2:00 p.m., Dr. Staner performed another
surgery to evacuate the hematoma. He testified that, if he
had been notified of Wilfred's condition at 12:15 a.m., when
Wilfred was received on 4 Main, he would have come to the
hospital at that time and ordered the myelogram CT, and, if
the results of the myelogram warranted, he would have
performed surgery on Wilfred between 4:00 a.m. and 5:00 a.m.
Wilfred suffered damage to the cauda equina as the result
of the compression caused by the hematoma. Dr. Saran Rosner,
a board-certified neurologist, testified that cauda equina
syndrome is where there is a common path of pain, weakness,
and numbness of the nerves that goes into the legs. There can
be various causes for cauda equina syndrome, including a
hematoma resulting from surgery. Dr. Rosner testified that
Wilfred
suffered
a
postoperative
complication
after
the
lumbar
laminectomy of the lower back, which was a hematoma or blood
clot that was squeezing or compressing the cauda equina. As
a consequence of that complication, Wilfred developed cauda
equina syndrome. Dr. Rosner testified that, in his opinion,
6
1131284
Wilfred
had
significant
and
substantial
cauda
equina
syndrome.
He stated:
"Well, his manifestations of the cauda equina
syndrome were basically virtually a full-blown
picture of what can happen if the cauda equina gets
compressed. In other words, those nerves are under
pressure and they stop working. So we had weakness,
first in his ankles, moving his feet either up or
down or side to side. Couldn't move them in any
direction. Later, he developed more nerves being
affected by the pressure of the clot. He had
difficulty or inability to lift his legs. He had
numbness in his legs. He also had terrible pain
down his legs. When you start squashing those
nerves with a big blood clot, it causes pain, causes
very severe pain. You can imagine if someone
pressed on a raw nerve or a whole bunch of raw
nerves, it's going to cause some very substantial
pain. He had pain. He has weakness. He has
numbness and also had some impairment of his ability
to urinate normally and control his bladder
function."
Dr. Rosner testified that, in Wilfred, who had a postoperative
symptomatic
epidural
hematoma,
cauda
equina
syndrome
presented
a neurosurgical emergency. He also testified that surgical
timing is a critical factor with regard to the type of
hematoma Wilfred suffered.
Dr. Rosner discussed articles that dealt with the fact
that patients with cauda equina syndrome caused by a hematoma
who had surgery within 12 hours of the onset of symptoms had
a better outcome than patients who did not have surgery within
7
1131284
the first 12 hours. During the Bordens' direct examination of
Dr. Rosner, the following occurred:
"[COUNSEL FOR THE BORDENS:] ... Dr. Rosner, I
want you to assume that Dr. Staner had been able to
perform surgery, like he's testified under oath he
would have done somewhere between 4 and 5 p.m.[sic].
And consistent with what he testified to yesterday
in front of these ladies and gentlemen of the jury.
Do you have an opinion based on reasonable medical
probability, more likely than not, as to whether
[Wilfred's] neurological outcome would have been
substantially and significantly improved if surgery
had been done between four and five o'clock?
"[DR. ROSNER:] Yes, I do.
"[COUNSEL FOR THE BORDENS:] Would you please
tell the Court and the ladies and gentlemen of the
jury what your opinion is in that regard, please.
"[COUNSEL FOR THE BORDENS:] I think that if Mr.
Borden underwent surgery during this time period
within the first twelve hours, less than twelve
hours of the symptoms, that he would have enjoyed a
better operative result.
"[COUNSEL FOR THE BORDENS:] And do you believe
that his neurological outcome would have been
substantially and significantly improved probably?
"[DR. ROSNER:] Yes, I do.
"....
"[COUNSEL FOR THE BORDENS:] So if Dr. Staner,
he would have been able to be within that
twelve-hour window if the surgery had been done
between four and five; right?
"[DR. ROSNER:] Yes, sir.
8
1131284
"[COUNSEL FOR THE BORDENS:] And that would have
stopped the compression that was occurring on his
cauda equina nine-and-a-half or ten hours earlier
than what it ended up being?
"[DR. ROSNER:] That's correct.
"[COUNSEL FOR THE BORDENS:] So did the
additional nine-and-a-half or ten hours of that
compression, that squeezing of the cauda equina,
probably cause
[Wilfred] Borden harm neurologically?
"[DR.
ROSNER:]
Yes.
He
was
rapidly
deteriorating. He wasn't a stable patient. He came
in with a certain deficit and remained stable over
12 hours, 14 hours. He progressed not only quickly
from nine o'clock, when some of his exams are
documented, until twelve o'clock, when he has a very
dramatically different examination. So over just
two or three hours, he's really slid downhill.
"Then with that increased pressure, increased
neurological deficit, increased compromise, it stays
there untreated for another 14 hours from 12:30 in
the morning until 2 p.m. in the afternoon. So 14
hours go by on a man who is rapidly deteriorating.
You have to believe that if you take that clot out
and arrest this deterioration, this sliding down the
slope, if you get the clot out, get the pressure off
the nerves expeditiously, that he's going to enjoy
a better outcome. That extra 14 hours of sitting
with the clot sitting on the nerves neither
reasonably or by common sense but also medically
just doesn't make sense.
"[COUNSEL FOR THE BORDENS:] And did that
additional time probably materially and adversely
affect his outcome, in your opinion?
"[DR. ROSNER:] Yes.
9
1131284
"[COUNSEL FOR THE BORDENS:] Meaning that his
outcome
would
have
been
substantially
and
significantly better if the surgery had been done
within the twelve-hour window of time?
"[DR. ROSNER:] Yes."
Dr. Rosner testified that he believed that Dr. Staner's care
had fallen below the standard of care of a neurosurgeon when
he did not initially come to the hospital after talking to the
Bordens at 7:30 p.m. He also testified that, in his opinion,
the initial CT scan that was done on September 11, 2010,
showed compression of the thecal sac, which surrounds the
cauda equina.
After his surgery on September 12, 2010, Wilfred
remained hospitalized until he was admitted to rehabilitation
at Brookwood Medical Center. He was discharged from
rehabilitation on October 1, 2010. After he was discharged
and returned home, he went to
some rehabilitation appointments
at St. Vincent's East. As a result of the damage caused by
the hematoma, Wilfred is permanently disabled and unable to
work, suffers from constant pain, has problems walking, and
suffers from incontinence of bladder and bowel and from
impotence.
10
1131284
On September 7, 2012, Wilfred and Pam sued Dr. Staner,
Alabama Neurosurgeons, P.C., Dr. Staner's practice, and
Brookwood in the Jefferson Circuit Court. Wilfred asserted a
claim under the Alabama Medical Liability Act against the
defendants, and Pam asserted a claim based on loss of
consortium.
Brookwood filed a motion for a summary
judgment. On February 19, 2014, the trial court entered an
order granting Brookwood's summary-judgment motion as to any
claim alleging a duty and breach of the standard of care on
the part of Brookwood's ER department. However, it denied the
motion for a summary judgment as to the Bordens' claims
against Brookwood based an alleged breach of the standard of
care by Brookwood's medical/surgical nurses.
The case went to trial on the Bordens' claims against
Brookwood, Dr. Staner, and Alabama Neurosurgeons. However,
during the trial, the Bordens dismissed their claims against
Staner and Alabama Neurosurgeons, with prejudice. The trial
continued with Brookwood as the sole remaining defendant.
At the close of the Bordens' evidence, Brookwood moved
for a judgment as a matter of law. The trial court granted
the motion as to the issue of future medical expenses but
denied it as to the Bordens' remaining claims. Brookwood
11
1131284
renewed its motion for a judgment as a matter of law at the
close of all the evidence, and the trial court denied that
motion. After deliberating for approximately six hours, the
jury returned a verdict in favor of Wilfred as to his medical-
malpractice claim and fixed damages at $5 million. It also
found in favor of Pam as to her loss-of-consortium claim and
fixed damages at $2.5 million. The trial court entered a
judgment on the jury's verdict.
On March 28, 2014, Brookwood filed a "Defendant's Motion
for Judgment as a Matter of Law, or in the Alternative, Motion
for New Trial, or in the Alternative, Motion for Remittitur."
After the Bordens filed their response, the trial court
conducted a hearing on Brookwood's postjudgment motion.
Thereafter, it entered a detailed order denying the motion,
which it subsequently amended on June 24, 2014. Brookwood
appealed.
Standard of Review
"'When reviewing a ruling on a motion for
a JML [judgment as a matter of law], this
Court uses the same standard the trial
court used initially in deciding whether to
grant or deny the motion .... 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
12
1131284
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 Fla., 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 Investors Life Ins.
Co., 875 So. 2d 1143, 1152 (Ala. 2003)."
Crutcher v. Williams, 12 So. 3d 631, 641-42 (Ala. 2008).
Discussion
Brookwood argues that the trial court erred in denying
its preverdict motions for a judgment as a matter of law and
its postjudgment motion. Specifically, it contends that the
Bordens did not present sufficient evidence to support their
claims under the Alabama Medical Liability Act because the
Bordens did not present expert testimony to establish that the
13
1131284
nurses on 4 Main had breached the applicable standard of care.
"To maintain a medical-malpractice action, the
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)."
Lyons v. Walker Reg'l Med. Ctr., 791 So. 2d 937, 942 (Ala.
2000).
"'However, "[a]n exception to this rule
[requiring expert testimony] exists 'in a
case 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,] 161 [(Ala. 1984)]
(quoting Dimoff v. Maitre, 432 So. 2d 1225,
1226–27 (Ala. 1983)). This Court has
recognized the following situations as
falling within this exception:
"'"'1)
where
a
foreign
instrumentality is found in the
14
1131284
plaintiff's
body
following
surgery; 2) where the injury
complained of is in no way
connected to the condition for
which
the
plaintiff
sought
treatment; 3) where the plaintiff
employs a recognized standard or
authoritative medical text or
treatise to prove what is or is
not proper practice; and 4) where
the
plaintiff
is
himself or
herself
a
medical
expert
qualified
to
evaluate
the
doctor's
allegedly
negligent
conduct.'"
"'Allred [v. Shirley], 598 So. 2d [1347,]
1350 [(Ala. 1992)] (quoting Holt v. Godsil,
447 So. 2d 191, 192–93 (Ala. 1984)
(citations omitted in Allred)).'
"Anderson v. Alabama Reference Labs., 778 So. 2d
806, 811 (Ala. 2000); see also Sorrell v. King, 946
So. 2d [854,] 861–62 [(Ala. 2006)]; Ex parte
HealthSouth Corp., 851 So. 2d 33, 37 (Ala. 2002)."
Cobb v. Fisher, 20 So. 3d 1253, 1257-58 (Ala. 2009).
In this case, the Bordens did not present any expert
testimony indicating that Tolbert or Jeffers breached the
applicable standard of care. The only testimony as to the
standard of care came from Tolbert and Jeffers. Both Tolbert
and Jeffers testified that the standard of care required them
to comply with the doctor's orders and to notify Dr. Staner if
there was any change in Wilfred's condition. Tolbert and
15
1131284
Jeffers repeatedly testified that the standard of care for a
registered nurse at Brookwood Medical Center would require a
nurse to notify the doctor of Wilfred's inability to move his
legs and incontinence if that had been a change in his
condition. Tolbert agreed that, based on the ER records,
there had been changes in Wilfred's condition from the time he
was admitted to the ER until she received him as a patient on
4 Main. However, she testified that, before she received
Wilfred, she received a telephone call from an ER nurse
regarding Wilfred. Tolbert testified that the ER nurse told
her that Wilfred was a two-day postoperative patient who had
had back surgery; that he was incontinent; that he was going
to be on 23-hour observation; that he would have nothing by
mouth, as he was going to have surgery; that he could not move
his legs; and that he arrived at the ER complaining that he
could not move his legs. Tolbert testified that she did not
document the call from the ER nurse in her notes. Tolbert
testified that her findings in her initial assessment of
Wilfred and the neurovascular assessment she performed at
12:15 a.m. were consistent with the oral report she had
received from the ER. She further testified that, consistent
16
1131284
with the oral report she had received from the ER, there was
no change in Wilfred's condition from the time she received
him on 4 Main until her shift ended.
During Brookwood's cross-examination of Tolbert, the
following occurred:
"[COUNSEL FOR BROOKWOOD:] When you were
providing nursing care to Mr. Borden ... did you do
your best to provide that type of nursing care that
you like to provide to patients?
"[TOLBERT:] Yes, I did.
"[COUNSEL FOR BROOKWOOD:] And did you follow
the orders that were in place for Mr. Borden?
"[TOLBERT:] Yes, I did.
"[COUNSEL FOR BROOKWOOD:] Did you try to do
everything that you were supposed to do when you
received him as a patient?
"[TOLBERT:] Yes."
She testified that the standard of care required her to follow
orders written by the physicians and that she did that in this
case. Later, in the cross-examination, the following
occurred:
"[COUNSEL FOR BROOKWOOD:] And if a nurse calls
you and tells you that you have a patient coming who
is incontinent of urine, they're having difficulty
moving, decreased sensation, you don't need to
review the record to check out that information, do
you?
17
1131284
"[TOLBERT:] No, I do not. I need to ask the
patient that's coming up, do you know what's going
on with them.
"[COUNSEL FOR BROOKWOOD:] And can you rely upon
those verbal reports that you get from the other
nurses?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] And on this night,
when you received Mr. Borden, did you find him to be
exactly the way he was told to you that he would be
when you talked to the emergency room?
"[TOLBERT:] Yes."
Tolbert testified that she knew that Dr. Staner was the
physician responsible for Wilfred. She also testified that,
if she had any questions, concerns, or anything to be
reported, she would contact Dr. Staner and that, if she had
seen any changes in Wilfred's condition, she would have called
Dr. Staner. During Brookwood's cross-examination of Tolbert,
the following occurred:
"[COUNSEL FOR BROOKWOOD:] Did you know that you
could call any admitting physician with any
questions that you have about your patient?
"[TOLBERT:] Any time. Any time there's a
problem, I can call the doctor, yes.
"[COUNSEL FOR BROOKWOOD:] And would you do
that?
"[TOLBERT:] Yes.
18
1131284
"[COUNSEL FOR BROOKWOOD:] Had you had a
question about Mr. Borden, would you have called Dr.
Staner to ask him about that?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] Was there any
question that you had when you received him that you
felt like you needed additional instructions?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] Problems. Did any
problems come up during the night that you felt like
you needed to discuss with Dr. Staner?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] Change of status.
Now, you know the allegation in this case is that
there was a change of status that you failed to
notify Dr. Staner about; right?
"[TOLBERT:] Yes, in this case.
"[COUNSEL FOR
BROOKWOOD:]
That's
the
claim
that
[counsel for the Bordens] has made?
"[TOLBERT:] Yes.
"[COUNSEL
FOR
BROOKWOOD:]
Directed
against
your
nursing care.
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] Tell the ladies and
gentlemen of the jury, Ms. Tolbert, did you ever see
a change of status that required a report to Dr.
Staner?
"[TOLBERT:] No, I did not see any change in
status to report to Dr. Staner.
19
1131284
"[COUNSEL FOR BROOKWOOD:] Had you observed a
change of status that you felt like was in the best
interest of the patient to report to Dr. Staner,
would there have been any hesitation on your part to
do that?
"[TOLBERT:] No. I would have called Dr. Staner
if there was a change in [Wilfred's] condition.
"[COUNSEL FOR BROOKWOOD:] Is it reasonable for
you, as a nurse, to expect the admitting physician
to know why the patient is being admitted?
"[TOLBERT:] Yes.
"[COUNSEL FOR
BROOKWOOD:]
Was
it
reasonable
for
you on the night or the early morning hours of
September 12 to expect that Dr. Staner already knew
about the incontinence?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] That he already knew
about decreased sensation?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] That he already knew
about decrease in movement?
"[TOLBERT:] Yes.
"[COUNSEL FOR
BROOKWOOD:]
Did
you
understand
or
was it your understanding at the time that those
were the very conditions that were leading to his
admission to your floor?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] And that you were to
observe the patient and see if his status changed
from that baseline that you had at the time?
20
1131284
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] And did you see any
change from the baseline that you received with Mr.
Borden?
"[TOLBERT:] No, I did not see any changes that
was bad to report to Dr. Staner.
"[COUNSEL FOR BROOKWOOD:] Did you know how he
was at 9:10 when Dr. Phillips had examined him?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] Were you in the
emergency room then?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] Did you have any
information other than what the nurses told you at
the time or the nurse told you at the time when his
care was transferred up to your care on your floor?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] At least based on the
report you had, were you expecting a patient that
did have neurological compromise?
"[TOLBERT:] Yes.
"[COUNSEL FOR
BROOKWOOD:]
And
is
that something
that you expected the attending physician to already
know about?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] And that was the
reason for his admission?
"[TOLBERT:] Yes."
21
1131284
Subsequently, the following occurred:
"[COUNSEL FOR BROOKWOOD:] In providing care to
Mr. Borden, was there ever any change of status that
you were required to report to Dr. Staner under the
standard of care?
"[TOLBERT:] No.
"[COUNSEL FOR BROOKWOOD:] Did you meet your
obligations to Mr. Borden?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] Did you provide that
degree of care, skill and diligence generally
exercised by nurses under the same circumstances?
"[TOLBERT:] Yes, sir, I did."
Tolbert also testified that the applicable standard of
care did not require her to question the ER nurse who had
telephoned her upon Wilfred's admission regarding whether Dr.
Staner was aware of the condition of the patient. She further
testified that, in exercising the standard of care, she was
entitled to rely on information she received from other nurses
at Brookwood Medical Center. Subsequently, the following
occurred:
"[COUNSEL FOR BROOKWOOD:] ... And was it your
thought at the time, based on the condition of Mr.
Borden when he came up to your floor, that you would
expect a physician to have seen him in the emergency
room?
22
1131284
"[TOLBERT:] Yes. I knew he was seen in the
emergency room. I thought he saw him.
"[COUNSEL FOR BROOKWOOD:] And know his
condition?
"[TOLBERT:] Yes.
"[COUNSEL
FOR
BROOKWOOD:]
And
enter
appropriate
orders on it?
"[TOLBERT:] Yes.
"[COUNSEL FOR BROOKWOOD:] And then you took
that patient from that point on, and did you follow
those orders to a T?
"[TOLBERT:] Yes, I did."
Additionally, Jeffers testified that, when she was
working on 4 Main at Brookwood Medical Center, she received
patients onto the floor who had come up from the ER. When
asked if she would get a report from the ER about a patient
that would be coming up to 4 Main, she responded:
"Yes. They could give us one over the phone. The
ER would give us one over the phone, and then we'd
write our own notes and things."
However, Jeffers testified that, under the standard of care
applicable to a nurse working on 4 Main, she was not required
to record a report she received from the ER about a patient.
Subsequently, the following occurred:
23
1131284
"[COUNSEL FOR BROOKWOOD:] The purpose of that
report is just so that you can assess the patient
that's coming onto the floor; is that true?
"[JEFFERS:] Oh, yes. Definitely."
At trial, Tolbert repeatedly testified that she had
complied with the applicable standard of care. Additionally,
Jeffers testified that she believed that Tolbert had complied
with the applicable standard of care.
In its order denying Brookwood's postjudgment motion, the
trial court found that, viewing the testimony in the light
most favorable to the Bordens, sufficient evidence existed
from which a reasonable jury could find that both Tolbert and
Jeffers had breached the standard of care. The trial court
stated:
"For example, the jury could disbelieve Nurse
Tolbert's testimony about having received an oral
report from an emergency room nurse. Accordingly,
if the jury were to disbelieve that portion of Nurse
Tolbert's testimony, the only logical conclusion
would be that there had been a change in Mr.
Borden's condition, and failing to report such a
change would have been a breach of duty."
However, the Bordens did not present any evidence to dispute
Tolbert's testimony that she had received a report from the ER
nurse regarding Wilfred. At trial, the Bordens' counsel
pointed out that Tolbert had not documented any such report.
24
1131284
However, both Tolbert and Jeffers testified that the standard
of care applicable to nurses did not require them to document
when they received a report from another nurse. Further, the
nursing portion of the disposition section of the ER records
includes the following notation:
"ER Admission Notification
"....
"Report: Report called to receiving RN
"
The ER records indicate that "PCK" is Penny C. Knight, a
registered nurse. Therefore, the undisputed evidence before
the jury established that an ER nurse had called a report to
Tolbert. Further, the Bordens' own
testimony established that
Wilfred experienced urinary incontinence while he was in the
ER and that an ER nurse was aware of that incontinence.
Wilfred testified that he vividly remembered an incident in
the ER when he put his hands beneath his blanket and felt that
he was wet. He testified that he asked Pam to bend down, that
he told Pam that he thought he was wet, and that Pam lifted
the blanket and said that he was wet. Additionally, Pam
testified that she remembered Wilfred leaving to get the CT
scan and then coming back into the room they had been in in
25
1131284
the ER. She was not sure if it was right before he went to
the CT scan or after he had come back, but Wilfred had his
hands under the covers and said that he was wet. When she
lifted his sheet, he was urinating on himself, but he did not
know it. Pam said she told the nurse that she would change
him if the nurse would get something to change him. Pam said
that, after the nurse got her some clean sheets and a gown to
put on him, she changed Wilfred. Pam testified that Wilfred
had another bout of incontinence before going up to 4 Main,
that she told the nurse that he was wet again, and that she
changed his sheets again. Pam further testified that Wilfred
wet himself on the way up to 4 Main, that she did not know
that he had wet himself again until they actually got to 4
Main, and that she thought that she had helped Tolbert change
Wilfred before they moved him from the gurney to the bed.
In its order denying Brookwood's postjudgment motion, the
trial court stated:
"Also, based upon the seriousness of Mr. Borden's
conditions, a jury could find that Nurse Tolbert and
Nurse Jeffers failures to report Mr. Borden's
condition to Dr. Staner, regardless of any change,
was a breach of doctor's orders which required a
nurse to report any questions or problems as well as
a breach of the document in the nurses' notes
26
1131284
requiring
notification
of
a
neurovascular
compromise."
However, there was no expert testimony that would support such
a finding by the jury. Tolbert testified that there were no
problems during her shift that would have required her to
telephone Dr. Staner and that she had complied with the
portion of Dr. Staner's orders to report any changes in
condition.
The Bordens' counsel questioned Tolbert about
that
language on the neurovascular flow sheet, and the following
occurred:
"[PLAINTIFFS' COUNSEL:] Let me read the third
paragraph that is highlighted. 'Notify physician of
any
neurovascular
compromise
and
document
notification in the nurses' notes.' Did I read that
correctly? Did I read that correctly, ma'am?
"[TOLBERT:] Yes.
"[PLAINTIFFS' COUNSEL:] And that is part of the
order, isn't it?
"[TOLBERT:] It's not an order. That's just on
the form on the nursing notes.
"[PLAINTIFFS'
COUNSEL:]
Aren't
you
expected
and
required by Brookwood to follow that directive, to
'Notify
the
physician
of
any
neurovascular
compromise and document that notification in the
nursing notes'? Aren't you expected and required to
do that?
"[TOLBERT:] Yes. If there's any changes in my
neurovascular, to notify the doctor. There was no
changes.
27
1131284
"[PLAINTIFFS' COUNSEL:] Nurse Tolbert, that
says nothing about changes, does it?
"[TOLBERT:] No, it doesn't.
"[PLAINTIFFS' COUNSEL:] That's a very simple
question. It says nothing about changes, does it?
"[TOLBERT:] He came up with compromise, so why
would
I
notify
him
if
he's
already
been
compromised."
Tolbert did not testify that the standard of care would
require a nurse to notify the admitting physician of any
neurovascular compromise regardless of whether there had been
change in the patient's condition. Further, during
Brookwood's cross-examination of Jeffers, the following
occurred:
"[COUNSEL FOR BROOKWOOD:] One more thing. On
the neurovascular flow sheet you see right above,
there's a sentence that says 'Notify physician of
any
neurovascular
compromise
and
document
notification in the nursing notes.' Do you see
that?
"[JEFFERS:] Yes.
"[COUNSEL FOR BROOKWOOD:] As a nurse that was
working at Brookwood back in 2010, do you understand
that language to have been an order from a physician
as to how to care for a patient?
"[JEFFERS:] Yes. I mean, it's telling you what
to do.
"[COUNSEL FOR BROOKWOOD:] Well, if this is
telling you what to do, can you tell me the
28
1131284
difference between a -- if he's got all these things
that you have, these are compromises in his
neurovascular system; right?
"[JEFFERS:] Yes.
"[COUNSEL FOR BROOKWOOD:] If he has all of
these things, and we just talked about that there
were some changes that were going on in Mr. Borden,
then if there's this language on the flow sheet,
why, as a nurse, would you not be required under the
standard of care to alert the doctor?
"[JEFFERS:] Because there was no change. He
was the same from the shift before. In some cases,
a little bit better, even if it was just temporary.
So that, to me, indicates that, you know, he hadn't
changed over the course of the night. When he came
into the ER, he was the same as when I was assessing
him. The ER, I would imagine, notifies the
physician."
Additionally, the
Bordens
did not present any expert testimony
to dispute Tolbert's testimony regarding the neurovascular
flow sheet and did not present any expert testimony to
establish that the standard of care would have required
Tolbert or Jeffers to notify Dr. Staner of any neurovascular
compromise even if there had not been any change in Wilfred's
condition. Further, although the doctor's admission orders
required a neurovascular check every two hours, the orders
specified that the admitting physician should be called only
if there were changes in condition, problems, or questions or
for other orders.
29
1131284
In this case, the Bordens did not present expert
testimony to establish a breach of the applicable standard of
care. Additionally, this was not a case where the want of
skill or lack of care was so apparent as to be understood by
a layperson and required only common knowledge and experience
to understand. Therefore, the trial court erred when it
denied Brookwood's motions for a judgment as a matter of law
as to Wilfred's medical-malpractice claim. See Jones v.
Bradford, 623 So. 2d 1112 (Ala. 1993).
Conclusion
Because there was no expert testimony that established
that Tolbert or Jeffers breached the applicable standard of
care, the trial court erred in denying Brookwood's motions for
a judgment as matter of law as to Wilfred's medical-
malpractice claim. Because we are reversing the judgment as
to Wilfred's claim, we must also reverse the judgment entered
on Pam's derivative loss-of-consortium claim. See Delta
Health Grp., Inc. v. Stafford, 887 So. 2d 887 (Ala. 2004).
Accordingly, we reverse the trial court's judgment and render
a judgment as a matter of law in favor of Brookwood.1
Based on our resolution of this issue, we pretermit
1
discussion as to the parties' remaining arguments.
30
1131284
REVERSED AND JUDGMENT RENDERED.
Stuart, Bolin, Murdock, Shaw, and Main, JJ., concur.
Moore, C.J., and Bryan, J., dissent.
31 | November 13, 2015 |
2386ab96-613b-4e37-85ac-d890b3d1410e | Kristopher Vanderwall v. M.C. | N/A | 1130041 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1130036
____________________
Ex parte Kristopher Vanderwall
PETITION FOR WRIT OF MANDAMUS
(In re: M.C.
v.
Tallassee Rehabilitation, P.C., and Kristopher Vanderwall)
____________________
1130041
____________________
Kristopher Vanderwall
v.
M.C.
Proceedings from Elmore Circuit Court
(CV-10-900200)
MURDOCK, Justice.
Kristopher Vanderwall has filed both an appeal and a
petition for a writ of mandamus challenging orders of the
Elmore Circuit Court in an action filed against him by M.C.
We dismiss the appeal, and we deny Vanderwall's petition.
I. Facts
On November 12, 2009, M.C. had an appointment to receive
physical
therapy
at
Tallassee
Rehabilitation,
P.C.
("Tallassee
Rehab"), pursuant to a referral by her physician for treatment
of back pain. M.C. arrived at Tallassee Rehab around 8:30 or
9:00 a.m. and was seen by Vanderwall, a physical therapist,
whom she had never met.
According
to
M.C.,
the
following
then
occurred.
Vanderwall took her to a room, where he instructed her to put
on a gown. Vanderwall left the room and closed the door.
M.C. took off her jacket and shirt and put on a gown. She did
not take off her bra or her pants. Vanderwall returned to the
room, unhooked M.C.'s bra and told her to lie on the table in
the room; M.C. did as she was instructed, but, after she was
2
1130036 and 1130041
on the table, Vanderwall started to move his hands over her
body, removing her bra and the gown. Vanderwall then began to
rub M.C.'s breasts, and he removed M.C.'s pants and panties
and placed his fingers into her buttocks and genitals. In
deposition testimony, M.C. testified that she was shocked and
scared by Vanderwall's actions and that she did not know what
to do.
Vanderwall testified that "any and all transactions and
interactions" he had with M.C. on November 12, 2009, were "in
connection with the rendition of physical therapy services."
He stated that his actions were within the standard of care
for a physical therapist and that "[n]othing inappropriate
occurred during the delivery of physical therapy to [M.C.]."
He also stated that the services he did in fact perform were
conducted pursuant to an order he received from M.C.'s
physician, Dr. Melvin Russell. Vanderwall testified that
there was no therapy or medical reason for him to touch M.C.'s
breasts or her genitals and that he did not do so.
M.C. alleges that Vanderwall has a pattern of this kind
of behavior and that he molested at least two other women in
2009 while administering physical therapy. In 2010, those two
3
1130036 and 1130041
women filed an action in the Elmore Circuit Court against
Vanderwall and Tallassee Rehab alleging that Vanderwall had
molested them.1
M.C. filed a complaint against Vanderwall and Tallassee
Rehab in which she sought money damages based on a claim of
assault and battery against Vanderwall and a claim of
negligent or wanton hiring against Tallassee Rehab. Both
defendants answered the complaint and denied the allegations.
Along with the complaint, M.C. filed requests for discovery
from Vanderwall. Included in the discovery requests were
interrogatories 9 and 10, which provided:
"9. Has anyone complained to you that they were
inappropriately touched by you while at Tallassee
Rehab? If so, please identify every person.
"10. Has anyone complained to you or to any of your
employers that they were inappropriately touched by
you while at an employer's facility? If so, please
identify said person."
On August 30, 2010, Vanderwall filed objections to M.C.'s
discovery requests. One of Vanderwall's objections was that
interrogatories
9 and
10
were
inappropriate
because,
M.C. complained to Tallassee Rehab about Vanderwall's
1
actions, and, as a result of the accusation, Tallassee Rehab
placed Vanderwall on indefinite suspension without pay.
Vanderwall
left
Tallassee
Rehab's
employment
in
December
2009.
4
1130036 and 1130041
Vanderwall asserted, the Alabama Medical Liability Act,
§ 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the
AMLA"), which he argued applies, and specifically § 6-5-551,
2
Ala. Code 1975, prohibits "conducting discovery with regard
to
any other act or omission or from introducing at trial
evidence of any other act or omission."
On January 14, 2011, M.C. filed a motion to compel
discovery. In the motion, M.C. contended that "[t]his case is
not a medical malpractice case, but an assault and battery
case alleging that [M.C.] was molested by Mr. Vanderwall."
Accordingly, M.C. argued, Vanderwall could not use the AMLA as
a basis on which to refuse to answer M.C.'s interrogatories
concerning other acts. Vanderwall responded with a motion for
a protective order in which he argued that the AMLA did apply
to M.C.'s action and that, therefore, under § 6-5-551, he
should not be obligated to respond to M.C.'s discovery
requests that sought information about other acts.
On March 8, 2011, the trial court held a hearing on
M.C.'s motion to compel discovery. Following the hearing, the
See George H. Lanier Mem'l Hosp. v. Andrews, 901 So. 2d
2
714, 721 (Ala. 2004) (explaining the relationship between the
provisions of the AMLA set out in § 6-5-480 et seq. and those
set out in § 6-5-540 et seq.).
5
1130036 and 1130041
parties
submitted
additional
materials
and
arguments
concerning the issue.
On January 6, 2012, Tallassee Rehab filed a "Petition and
Motion" seeking a ruling from the trial court that M.C.'s
action was governed by the AMLA. On January 26, 2012,
Vanderwall filed a joinder in Tallassee Rehab's "Petition and
Motion." On February 8, 2012, M.C. filed a response in
opposition to the motion. On April 6, 2012, the trial court
held a hearing on the defendants' joint motion seeking a
ruling that the action was governed by the AMLA. On April 7,
2012, the trial court entered an order allowing M.C. 14 days
to amend her complaint to add a count seeking a judgment
declaring that general tort-law principles pertaining to
assault and battery and negligent or wanton hiring governed
her claims for relief and that the AMLA was not the law that
applied to her claims for relief against the defendants.
On April 20, 2012, M.C. filed an amended complaint in
which she sought a judgment declaring "that the AMLA does not
apply" to the claims she asserted against Vanderwall and
Tallassee Rehab. The defendants filed answers to the amended
complaint.
6
1130036 and 1130041
On November 13, 2012, M.C. filed a motion to dismiss her
claim against Tallassee Rehab. The trial court entered an
order on December 4, 2012, dismissing the claims against
Tallassee Rehab
with prejudice, and the case
proceeded against
only Vanderwall.
On April 19, 2013, M.C. filed a motion for a partial
summary judgment as to her declaratory-judgment "claim" –-
i.e., a ruling that general tort-law principles governing
assault and battery claims, rather than the AMLA, applied to
her
assault
and
battery
claims
against
Vanderwall.
Subsequently, on May 9, 2013, Vanderwall filed a motion for a
partial summary judgment in his favor as to the same "claim."
That is, Vanderwall sought a decision by the trial court that
the AMLA did apply to M.C.'s assault and battery claims
against him.
On July 2, 2013, the trial court held a hearing on the
motions for a partial summary judgment and on M.C.'s motion to
compel discovery. On August 29, 2013, the trial court entered
an order granting M.C.'s motion for a partial summary
judgment, stating, in pertinent part:
"The Court finds that the Motion for Partial
Summary Judgment filed on behalf of [M.C.] is due to
7
1130036 and 1130041
be granted and the Court finds that the Alabama
Medical Liability Act is not applicable to this
case. It is hereby ORDERED and ADJUDGED that the
said Motion for Partial Summary Judgment filed on
behalf of the Plaintiff, [M.C.], is due to be and is
hereby GRANTED, related to Count III, Declaratory
Judgment Relief, only. The Court holds that under
the facts of this case, none of the provisions of
the Alabama Medical Liability Act, including, but
not limited to § 6-5-551, are applicable to this
case.
"The Court further finds that this matter
involves a controlling question of law as to which
there are substantial grounds for a difference of
opinion, that an immediate appeal from the Order
would materially advance the ultimate termination of
litigation, and that the appeal would avoid
protracted and expensive litigation.[ ] The Court
3
further makes a specific and express determination
that there is no just reason for delay and that said
judgment shall be entered as a final judgment
pursuant to Rule 54(b) of the Alabama Rules of Civil
Procedure. This Order does not apply to any other
Counts contained within the Plaintiff's Complaint."
On the same day, the trial court entered an order on
M.C.'s motion to compel discovery, and it provided, in
pertinent part:
This sentence appears to presage the certification of a
3
question of law for permissive appellate review under Rule 5,
Ala. R. App. P. No such question is stated in the trial
court's order, however. See generally Rule 5(a), Ala. R. App.
P. ("The trial judge must include in the certification a
statement of the controlling question of law."). Moreover,
whether the AMLA is applicable to any given set of facts is
not a "question of law" within the meaning of Rule 5(a).
8
1130036 and 1130041
"This cause came before the Court for hearing on
the Motion to Compel filed by [M.C.]. Based upon
the Court's determination that the Alabama Medical
Liability Act is not applicable to this case, the
Court finds as follows:
"1. [Vanderwall] is hereby ordered to provide
responses to Interrogatories 9 and 10 propounded by
[M.C.],
which
seek
complaints
wherein
other
individuals
have
asserted
that
they
were
inappropriately touched by [Vanderwall], as well as
the complainant's identity."
Vanderwall appeals the partial summary judgment in favor
of M.C. Vanderwall also petitions this Court for a writ of
mandamus directing the trial court to vacate both the partial
summary judgment for M.C. and its order granting M.C.'s motion
to compel discovery of other acts.
II. Analysis
A. Vanderwall's Appeal (case no. 1130041)
It is incumbent upon us first to address the "vehicles"
by which Vanderwall seeks appellate review of the trial
court's orders.
As noted, Vanderwall has filed an appeal
from the partial summary judgment in favor of M.C., an order
the trial court purportedly certified as a final judgment
pursuant to Rule 54(b), Ala. R. Civ. P. Even though neither
4
Rule 54(b) provides, in relevant part:
4
"When more than one claim for relief is presented in
9
1130036 and 1130041
party has raised the issue of the appropriateness of the trial
court's Rule 54(b) certification, the appropriateness of that
certification implicates the fundamental issue of this
Court's jurisdiction to entertain the appeal; it is therefore
an issue we consider ex mero motu. Summerlin v. Summerlin,
962 So. 2d 170, 172 (Ala. 2007) (determining ex mero motu that
a Rule 54(b) certification was not appropriate under the facts
of the case).
It is well established that, "'for a Rule 54(b)
certification of finality to be effective, it must fully
adjudicate at least one claim or fully dispose of the claims
as they relate to at least one party.'" Certain Underwriters
at Lloyd's, London v. Southern Natural Gas Co., 939 So. 2d 21,
28 (Ala. 2006) (quoting Haynes v. Alfa Fin. Corp., 730 So. 2d
178, 181 (Ala. 1999) (emphasis omitted)). A trial court's
determination upon a request by an injured party for a
declaration as to what law or legal principles govern the
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."
10
1130036 and 1130041
injured party's claims against an alleged wrongdoer, even if
that request is framed as a separate "count" in a complaint,
is rarely, if ever, appropriate for certification as a final
judgment under Rule 54(b). This is clearly so when there
remain pending in the wake of any such determination claims by
the plaintiff against the defendant for monetary, injunctive,
or other relief based upon that law and the set of facts to
which that law is claimed to be applicable. In such a case,
the determination as to applicable law is but a subsidiary
step on the path to the full adjudication of the plaintiff's
cause of action against the alleged wrongdoer.
To qualify as a judgment by a trial court that is
amenable to execution and appeal, a decision by a trial court
must be one that decides the substantive rights of the
parties. This Court stated in McCulloch v. Roberts, 290 Ala.
303, 305, 276 So. 2d 425, 426 (1973) (quoting Carter v.
Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932)), that
"'[t]he test of the finality of a decree sufficient to support
an appeal is that it ascertains and declares the rights of the
parties ....'" In Lunceford v. Monumental Life Insurance Co.,
641 So. 2d 244, 246 (Ala. 1994) (quoting Bean v. Craig, 557
11
1130036 and 1130041
So. 2d 1249, 1253 (Ala. 1990)), we observed that "[a] final
judgment is an order 'that conclusively determines the issues
before the court and ascertains and declares the rights of the
parties involved.'" See also Jewell v. Jackson & Whitsitt
Cotton Co., 331 So. 2d 623, 625 (Ala. 1976) ("A final judgment
is a terminative decision by a court of competent jurisdiction
which demonstrates there has
been complete adjudication of all
matters in controversy between the litigants within the
cognizance of that court. That is, it must be conclusive and
certain in itself."); State v. Brantley Land, L.L.C., 976 So.
2d 996, 999 (Ala. 2007) ("'"Only a fully adjudicated whole
claim against a party may be certified under Rule 54(b)."'"
(quoting James v. Alabama Coalition for Equity, Inc., 713 So.
2d
937,
942
(Ala.
1997),
quoting
in
turn
Sidag
Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84
(5th Cir. 1987) (emphasis omitted))).
As this Court stated in Banyan Corp. v. Leithead, 41
So. 3d 51, 54 (Ala. 2009), a trial court errs in certifying an
order as a final, appealable judgment under Rule 54(b) when
"the order ... did not completely dispose of any of the
12
1130036 and 1130041
substantive claims in th[e] case." Professors Wright and
Miller put it this way:
"It would not be far amiss to think of Rule 54(b) as
involving matters separate from all that remains,
while [28 U.S.C.] § 1292(b) involves matters that
are central to all that remains. And so Rule 54(b)
cannot be used to enter judgment on deciding claims
closely related to claims that remain ...."
16 Charles Alan Wright et al., Fed. Prac. & Proc. § 3929.1
(3d ed. 2012).
Echoing Professors Wright and Miller, the United States
Court of Appeals for the Eighth Circuit has explained that
"[a] declaration of rights is not an appealable order, in the
absence of a permissive interlocutory appeal under 28 U.S.C.
§ 1292(b), when claims to injunctive relief or damages
remain." National Corn Growers Ass'n, Inc. v. Bergland, 611
F.2d 730, 733 (8th Cir. 1980) (emphasis added). And the
United States Court of Appeals for the Third Circuit has
explained that a Rule 54(b) "cannot be invoked to certify a
partial summary judgment as final when a plaintiff seeks to
recover for the same loss on different theories and the
district court has resolved its claim on less than all the
theories advanced." Gerardi v. Pelullo, 16 F.3d 1363, 1368
(3d Cir. 1994).
13
1130036 and 1130041
In this case, the ruling on the declaratory-judgment
count of M.C.'s complaint did not adjudicate a "claim" that
provided any substantive relief to any party; it simply
determined what law would apply to M.C.'s claims against
Vanderwall. The trial court's declaration was substantively
no different than a determination by any trial court as to
what law governs a plaintiff's substantive claims. Such a
determination does not constitute an adjudication of a claim
for relief.
In short, as this Court stated in Baker v. Bennett, 644
So. 2d 901, 903 (Ala. 1994):
"Rule 54(b) allows the court to direct the entry
of a final judgment as to one or more, but fewer
than all, of the claims or parties upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment. The ruling of the trial court involved in
[Vanderwall's] appeal granted no relief to anyone,
and it did not determine a separate claim. The
facts here do not present the type of situation that
Rule 54(b) was intended to cover. Therefore, the
trial court's ruling was not a final judgment and
was not appealable."
"'When it is determined that an order appealed from is
not a final judgment, it is the duty of the Court to dismiss
the appeal ex mero motu.'" State v. Lawhorn, 830 So. 2d 720,
725 (Ala. 2002) (quoting Powell v. Republic Nat'l Life Ins.
14
1130036 and 1130041
Co., 293 Ala. 101, 102, 300 So. 2d 359, 360 (1974)). Thus,
Vanderwall's appeal of the trial court's August 29, 2013,
order entering a partial summary judgment for M.C. is due to
be dismissed.
B. Vanderwall's Petition for a Writ of Mandamus (case no.
1130036)
In his petition for writ of mandamus, Vanderwall seeks
relief in two respects. First, he seeks to use a writ of
mandamus at this preliminary juncture to challenge the trial
court's
interlocutory
decision
that
general
tort-law
principles, rather than the AMLA, will govern the litigation
of M.C.'s claims against him. To the extent it is aimed at
preempting the entry of a final judgment against him based on
general tort-law principles, Vanderwall's petition to this
Court for a writ of mandamus is an inappropriate use of the
writ.
"Mandamus is
an
extraordinary
remedy
and
will
be
granted only where there is '(1) a clear legal right
in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc.,
586 So. 2d 889, 891 (Ala. 1991). This Court will
not issue the writ of mandamus where the petitioner
has '"full and adequate relief"' by appeal. State
v. Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526
15
1130036 and 1130041
(1972) (quoting State v. Williams, 69 Ala. 311, 316
(1881))."
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala.
2003). Assuming for the sake of argument that the trial court
is in error in not applying the AMLA to M.C.'s claims against
Vanderwall and, further, that the trial court eventually
enters a final judgment against Vanderwall on that basis,
Vanderwall would at that time have an adequate remedy by way
of an appeal. As in any appeal, he would be able to challenge
both the legal holdings of the trial court and its factual
findings. Thus, to the extent it relates to the potentially
erroneous nature of some final judgment yet to be entered
against Vanderwall, Vanderwall's petition for a writ of
mandamus is due to be denied.
That said, we also must address Vanderwall's request for
mandamus relief as it relates to the discovery issue.
Specifically, Vanderwall contends that the trial court's
August 29, 2013, order granting M.C.'s motion to compel
discovery against Vanderwall violates the prohibition on
discovery of other acts and omissions stated in § 6-5-551 of
the AMLA.
16
1130036 and 1130041
This Court has held that, generally, appellate review of
a discovery order may be afforded by the appeal of a final
judgment in the case but that, "[i]n certain exceptional
cases, ... review by appeal of a discovery order may be
inadequate...." Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d at
813. One of the "exceptional cases" the Ocwen Court noted is
"when a privilege is disregarded." This Court has previously
determined that
"[t]he exemption from discovery offered by § 6-
5-551, Ala. Code 1975, which prohibits a party in a
medical-malpractice
action
'from
conducting
discovery with regard to any other act or omission,'
i.e., any act or omission other than the one that
allegedly renders the health-care provider liable,
is
treated
as
a
privilege
for
purposes
of
determining whether in issuing the discovery order
the trial court has disregarded a privilege, thus
warranting review of the discovery order by way of
a petition for a writ of mandamus."
Ex parte Gentiva Health Servs., Inc., 8 So. 3d 943, 946-47
(Ala. 2008). Thus, the trial court's August 29, 2013,
discovery order is reviewable by a petition for a writ of
mandamus.
Whether
the
information
M.C.
requested
in
interrogatories
9 and 10 pertaining to other acts allegedly committed by
Vanderwall is shielded from discovery under § 6-5-551
17
1130036 and 1130041
necessarily requires us to determine whether the AMLA governs
M.C.'s assault and battery claims against Vanderwall. If the
AMLA applies, then the trial court erred in granting M.C.'s
motion to compel discovery and Vanderwall's petition for the
writ of mandamus is due to be granted. If the AMLA does not
apply, then Vanderwall's mandamus petition is due to be
denied.
"The AMLA applies '[i]n any action for injury or damages
or wrongful death, whether in contract or in tort, against a
health care provider for breach of the standard of care.'
§ 6-5-548(a), Ala. Code 1975." Mock v. Allen, 783 So. 2d 828,
832 (Ala. 2000) (emphasis added). Section 6-5-542, Ala. Code
1975 defines a "health care provider" as "[a] medical
practitioner, dental practitioner, medical institution,
physician, dentist, hospital, or other
health care provider
as
those terms are defined in Section 6-5-481." Section 6-5-
481(8) in turn defines "other health care providers" as "[a]ny
professional
corporation
or
any
person
employed
by
physicians,
dentists, or hospitals who are directly involved in the
delivery of health care services."
This Court previously has stated that,
18
1130036 and 1130041
"although perhaps not perfectly consistent, our
caselaw considering § 6–5–481(8), and especially our
more recent decisions such as Cackowski [v. Wal–Mart
Stores, Inc., 767 So. 2d 319 (Ala. 2000)], and
Anderson [v. Alabama Reference Labs., 778 So. 2d 806
(Ala. 2000)], generally stand for the following
proposition: a corporation or person seeking to be
considered an 'other health care provider' under the
AMLA
need
not
prove
an
employer/employee
relationship or a contractual relationship with a
physician, dentist, or hospital to establish that it
or he is 'employed' by a physician, dentist, or
hospital,
although
such
a
relationship
would
certainly fall within the statute; however, at a
minimum a physician, dentist, or hospital must have
made use of that corporation or person in the
physician's, dentist's, or hospital's delivery of
health-care services to the plaintiff-patient."
Ex parte Partners in Care, Inc., 986 So. 2d 1145, 1148 (Ala.
2007) (emphasis omitted).
We are not asked in this case to revisit those cases in
which this Court has held that the requirement that a person
or corporation be "employed by" a physician, dentist, or
hospital does not require an employment or equivalent
contractual
relationship,
but
requires
only
that
the
physician
(or dentist or hospital) "make use of" the person (or
corporation) in question. See, e.g., Cackowski v. Wal–Mart
Stores, Inc., 767 So. 2d 319, 324–25 (Ala. 2000) (holding that
a pharmacist's filling of a doctor's prescription for a
patient is part of the physician's treatment of his or her
19
1130036 and 1130041
patient so that the pharmacist was included within the AMLA
definition of "other health care provider"); see also Ex parte
Partners in Care, Inc., 986 So. 2d at 1148 (describing
Anderson v. Alabama Reference Labs., 778 So. 2d 806, 810 (Ala.
2000), as a case in which this Court held "that a medical
laboratory was an 'other health care provider' because its
testing of a specimen was an integral part of the physician's
delivery of health-care services to the patient").5
Vanderwall
argues
that
the
complained-of
conduct
allegedly occurred during the delivery of professional
services and that, therefore, "the AMLA and its discovery
provisions apply to the case regardless of the description of
the cause of action under which [M.C.] has filed." M.C.
M.C. does, however, argue that, for someone who does not
5
fall within any of the categories expressly named in § 6-5-542
to be considered a health-care provider for purposes of the
AMLA, that person must be "carrying out the physician's orders
and be inextricably linked to a physician's treatment of his
patients." M.C.'s position in this regard focuses solely on
the fact that the particular manner in which Vanderwall
touched M.C. was not ordered by a physician; she does not
argue that, in general, the provision of physical-therapy
services upon the referral of a physician is not covered by
the AMLA. The issue thus framed in this case cannot be
differentiated from the issue discussed below -- whether a
claim of sexual misconduct or assault by someone who would
otherwise be deemed to a be a health-care provider is governed
by the AMLA.
20
1130036 and 1130041
responds, and the trial court concluded, that "[t]he AMLA
applies only to medical malpractice actions ..., which by
definition are actions for redress of a medical injury." M.C.
states in her brief to this Court that "[her] position is that
the mere fact that she was present for physical therapy does
not place her claim under the A.M.L.A." She argues that the
alleged sexual assault "bear[s] no relation to the medical
services provided," and that, therefore, those acts "cannot
be
deemed 'professional services.'"
Vanderwall cites Mock in support of his position that
this case is governed by the AMLA. Like M.C. in the present
case, the plaintiff in Mock argued that "that the AMLA does
not apply to his case because '[t]he acts of intentional
sexual assault of which [he] complains were for no medical
reason.'" 783 So. 2d at 832. This Court, however, stated as
follows in Mock with respect to the applicability of the AMLA:
"[M]ost of the reported cases where appellate courts
have declined to hold that the physician's conduct
constituted
professional
malpractice
involved
either
an intimate sexual relationship or sexual misconduct
having
no
connection
with
the
rendering
of
professional services. See St. Paul Ins. Co. of
Illinois v. Cromeans, 771 F. Supp. 349, 352-53 (N.D.
Ala. 1991) (physician's sexual conduct toward minor
patients -- masturbating in front of them, fondling
the patients, attempting to convince patients to
21
1130036 and 1130041
have sex with him -- did not constitute professional
services, and, thus, physician's conduct was not
covered by his malpractice insurance); McQuay v.
Guntharp, 336 Ark. 534, 540-41, 986 S.W.2d 850, 853
(1999) (physician's fondling of a patient's breasts
while using a stethoscope to listen to her heart and
lungs did not constitute malpractice); Atienza v.
Taub, 194 Cal. App.3d 388, 393, 239 Cal. Rptr. 454,
457 (1987) (sexual relationship between patient and
physician who was treating her for an industrial
injury did not constitute malpractice); Odegard v.
Finne, 500 N.W.2d 140, 143 (Minn. Ct. App. 1993)
(sexual relationship between patient and physician
who
was
treating
her
for
colitis
was
not
malpractice); Mindt v. Winchester, 151 Or. App. 340,
345, 948 P.2d 334, 336 (1997) (sexual relationship
between patient's wife and the physician treating
the patient for infertility was not malpractice);
New Mexico Physicians Mut. Liability Co. v. LaMure,
116 N.M. 92, 95-96, 860 P.2d 734, 736-37 (1993)
(physician's sexual assault of patient he was
treating for an infected thumb was not malpractice
and thus was not covered under his malpractice
insurance); Standard Fire Ins. Co. v. Blakeslee, 54
Wash. App. 1, 9, 771 P.2d 1172, 1176 (1989) (sexual
assault
of
patient
by
her
dentist
was
not
malpractice and thus was not covered by dentist's
malpractice insurance).
"By contrast, in cases where the alleged sexual
misconduct
occurs
as
part
of
a
physician's
examination and/or treatment of a patient, the
conduct is considered to have occurred during the
delivery of professional services, and is therefore
cognizable as a medical-malpractice claim. See
Hagan v. Antonio, 240 Va. 347, 397 S.E.2d 810 (1990)
(physician's act of fondling patient's breasts and
making improper comments during what was supposed to
be a routine breast examination occurred during the
delivery of professional services). Here, Mock went
to Dr. Allen complaining of pain to his neck, back,
left hip/groin area, and left leg. It was incumbent
22
1130036 and 1130041
upon Dr. Allen to examine the painful areas
thoroughly in order to diagnose Mock's complaint.
Moreover, Dr. Allen testified that he wanted to rule
out radiculopathy, a nerve condition originating in
the spinal area and extending through the groin and
into the leg. Given these circumstances, Dr. Allen's
alleged sexual misconduct occurred while he was
providing professional services and/or treating
Mock's
physical
injuries.
Accordingly,
the
misconduct Mock accuses Dr. Allen of falls within
the ambit of the AMLA."
783 So. 2d at 832-33 (emphasis added).
Conversely, M.C. argues "sexual molestation could not be
part of [her] examination or treatment" and that,
"[e]ven if Mr. Vanderwall was deemed to be a
'healthcare provider' as defined by the A.M.L.A.,
his actions are outside the scope of the A.M.L.A.
The Alabama Supreme Court has specifically rejected
Mr. Vanderwall's argument that all claims against a
healthcare provider are covered by the A.M.L.A.,
stating specifically, 'We do not agree that the AMLA
applies to all claims against health-care providers
arising out of the relationship between the health-
care provider and the patient.' The A.M.L.A.
applies only to medical malpractice actions in the
context of patient-doctor and patient-hospital
relationships, which by definition are actions for
redress of a medical injury. Ex parte Addiction and
Mental Health Services, Inc., d/b/a Bradford Health
Services, 948 So. 2d 533, 53[5] (Ala. 2006)."
M.C.'s argument and Vanderwall's invocation of Mock for the
contrary
position
necessitate
a
reexamination
of
that
decision
in the present case.
23
1130036 and 1130041
This Court relied upon Mock in O'Rear v. B.H., 69 So. 3d
106 (Ala. 2011):
"Dr. O'Rear bases his argument on his contention
that all B.H.'s causes of action arose in connection
with Dr. O'Rear's providing B.H. with medical
services. In this context, he relies on Mock v.
Allen, 783 So. 2d 828 (Ala. 2000), in which the
Court held that the claims of the plaintiff, Mock,
against his doctor, Allen, for sexual assault were
governed by the Act. In Mock, Mock alleged that his
treating physician touched him improperly during his
treatment for various injuries to his head, spine,
and hip that resulted from an automobile accident.
In Mock, there was no instance of alleged improper
touching that did not occur outside the doctor's
office or hospital during a scheduled treatment.
Thus, Mock stands for the principle that a sexual
assault that occurs during the course of medical
treatment is subsumed under the proof requirements
of the Act. Similarly, we note that this Court has
held that other actions that occur during the course
of medical treatment are subsumed under the Act.
See, e.g., Mobile Infirmary v. Delchamps, 642 So. 2d
954 (Ala. 1994) (negligence and breach-of-warranty
claims are governed by the Act); Benefield v. F.
Hood Craddock Clinic, 456 So. 2d 52 (Ala. 1984)
(fraud claims subsumed by the Act); and Sellers v.
Edwards, 289 Ala. 2, 265 So. 2d 438 (1972) (assault
and battery governed by the Act). However, in each
of these cases, as in Mock, the cause of action
arose as a direct result of a particular medical
treatment by the defendant medical-service provider.
Thus, we agree with Dr. O'Rear that his acts of
prescribing medications in return for sexual conduct
that occurred while B.H. was being treated by Dr.
O'Rear are governed by the proof requirements of the
Act."
Id. at 114-15 (emphasis added).
24
1130036 and 1130041
Under Mock and O'Rear, the pertinent issues are simply
place and time. Did the alleged sexual assault occur within
"the doctor's office or hospital" and did it occur "while [the
defendant] was providing professional services"? There is no
dispute in this case that the place and time requirements
articulated in Mock and O'Rear are satisfied; the alleged
sexual misconduct occurred in the place and during the time
that Vanderwall otherwise was engaged in treating M.C. for her
back pain. Thus, under the interpretation of the AMLA
enunciated in Mock and reiterated in O'Rear,
M.C.'s
allegation
of sexual misconduct would be governed by the proof
requirements of the AMLA.
We cannot in good conscience, however, continue to adhere
to the rule articulated in Mock and O'Rear. We previously
have observed that stare decisis "'is a golden rule, not an
iron rule.'" Goldome Credit Corp. v. Burke, 923 So. 2d 282,
292 (Ala. 2005) (quoting Ex parte Nice, 407 So. 2d 874, 883
(Ala. 1981) (Jones, J., dissenting)). In those rare cases
where, in retrospect, a rule announced in a previous case is
not plausible, the doctrine of stare decisis does not prevent
this Court's reexamination of it.
25
1130036 and 1130041
"Although we have a healthy respect for the
principle of stare decisis, we should not blindly
continue to apply a rule of law that does not accord
with what is right and just. In other words, while
we accord 'due regard to the principle of stare
decisis,' it is also this Court's duty 'to overrule
prior decisions when we are convinced beyond ...
doubt that such decisions were wrong when decided or
that time has [effected] such change as to require
a change in the law.' Beasley v. Bozeman, 294 Ala.
288, 291, 315 So.2d 570, 572 (1975) (Jones, J.,
concurring specially)."
Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543, 545-46
(Ala. 2000) (footnote omitted). "As strongly as we believe in
the stability of the law, we also recognize that there is
merit, if not honor, in admitting prior mistakes and
correcting them." Jackson v. City of Florence, 294 Ala. 592,
598, 320 So. 2d 68, 73 (1975).6
In this instance, Vanderwall has asked us to apply an
interpretation of the AMLA from cases that exalt a broad
We also note that, apart from O'Rear, there are no
6
decisions employing the rationale of Mock and that Mock cannot
be said to have created some reliance interest on the part of
prospective tortfeasors. See generally Ex parte Capstone
Bldg. Corp., 96 So. 3d 77, 89 n.8 (Ala. 2012) (noting that a
court may consider "'the plausibility of the existing
interpretation of a statute, the extent to which that
interpretation has been fixed in the fabric of the law, and
the strength of arguments for changing the interpretation'"
(quoting 20 Am. Jur. 2d Courts § 131 (2005))); see also 20 Am.
Jur. 2d Courts § 136 (2005) ("The application of stare decisis
is less compelling in tort cases than in property or contract
settings.").
26
1130036 and 1130041
reading of the statute over the plain text. Mock and O'Rear
posit that the legislature intended the AMLA to apply to any
action in which the alleged injury was inflicted by a medical
provider at the same place and time as medical treatment,
rather than applying only to actions in which the alleged
injury occurred because of medical treatment.
M.C. challenges
that interpretation. She argues that the AMLA was intended to
address alleged violations of a "standard of care" applicable
to "medical treatment" and that "sexual molestation of a
female by a male physical therapist is not a matter of
'medical injury' subject to the AMLA when the physical
therapist admits that there is no medical reason to touch the
female's breasts or genitalia." We agree with M.C. We do not
believe the legislature intended for the protections afforded
under the AMLA to apply to health-care providers who are
alleged to have committed acts of sexual assault; such acts do
not, by any ordinary understanding, come within the ambit of
"medical treatment" or "providing professional services."
The dissenting opinion in Mock written by Justice Lyons
(in which Justice Lyons quotes an earlier writing in the case
27
1130036 and 1130041
from Justice See) explains the correct interpretation of the
AMLA:
"'The Legislature declared that it
enacted the AMLA in response to increasing
health-care
costs
caused
by
"the
increasing
threat of legal
actions for alleged medical
injury." Ala. Code 1975, § 6-5-540. The
AMLA
applies
to
actions
against
a
health-care provider alleging a "breach of
the standard of care." Ala. Code 1975,
§ 6-5-540 et seq. A breach of the standard
of care is the "fail[ure] 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." § 6-5-548. Thus, the AMLA
applies to conduct that is, or that is
reasonably related to, the provision of
health-care
services
allegedly
resulting
in
a medical injury. Just as the Alabama
Legal Services Liability Act does not apply
to every action against a person who is a
lawyer,
see
Cunningham
v.
Langston,
Frazer,
Sweet & Freese, P.A., 727 So. 2d 800 (Ala.
1999), the AMLA does not apply to every
action against a person who is a doctor,
see Thomasson v. Diethelm, 457 So. 2d 397
(Ala. 1984). It does not, I believe, apply
to an action alleging sexual molestation,
where the health-care provider concedes
that the acts complained of were not
medically
relevant.
Although
Mock's
claims
arise out of conduct that took place at a
time when there was a doctor-patient
relationship
for
the
purpose
of
examination
and treatment, see Thomasson, that fact
alone cannot subject to the provisions of
the AMLA all conduct by the doctor, however
28
1130036 and 1130041
unrelated to the provision of medical
services.'"
Mock, 783 So. 2d at 836-37 (Lyons, J., dissenting) (emphasis
added). See also Ex parte Addiction & Mental Health Servs.,
Inc., 948 So. 2d 533, 535 (Ala. 2006) ("'By definition, a
"medical-malpractice action" is one for redress of a "medical
injury." See § 6-5-540 (purpose of the [AMLA] is to regulate
actions
for
"alleged
medical
injury")....'"
(quoting
Taylor
v.
Smith, 892 So. 2d 887, 893 (Ala. 2004))).
From the foregoing, it is clear that the AMLA is not just
concerned with who committed the alleged wrongful conduct or
when and where that conduct occurred, but also with whether
the harm occurred because of the provision of medical
services. Vanderwall testified that there was no therapeutic
or medical reason for him to touch M.C.'s breasts or her
genitals in the course of treating her for back pain.
Consequently, it is undisputed that M.C.'s allegation of
injury does not stem from the provision of medical services.
Therefore,
"[a]lthough [Vanderwall's] acts might have occurred
during the same time frame within which he was
providing some medical care to [M.C.], and although
[Vanderwall's] acts may have occurred in the same
location where [Vanderwall] provide[d] medical care
29
1130036 and 1130041
to patients, [Vanderwall's] acts in [allegedly
sexually assaulting M.C. instead of administering
care for her back pain] were not part of providing
medical care to [M.C.] so as to be governed by the
AMLA."
O'Rear, 69 So. 3d at 122 (Murdock, J., concurring in the
result).
Our conclusion today is buttressed by numerous cases from
other
jurisdictions
that
have
concluded
that
sexual
molestation is not included within any ordinary understanding
of the provision of medical services. In Kaufmann v.
Schroeder, 241 Ill. 2d 194, 349 Ill. Dec. 151, 946 N.E.2d 345
(2011), for example, the Illinois Supreme Court had to
determine whether a plaintiff's action alleging that a doctor
sexually assaulted her while she was under sedation was time-
barred based on the application of the Illinois Tort Immunity
Act. As the court explained: "The ultimate issue before this
court ... is whether the injuries for which Kaufmann seeks
recovery in her claims against [the hospital] are injuries
'arising out of patient care' within the meaning of section
8-101(b) of the Act." 241 Ill. 2d at 199, 349 Ill. Dec. at
154, 946 N.E.2d at 348. The court concluded that Kaufmann's
action fell outside this provision, reasoning:
30
1130036 and 1130041
"[I]n Orlak [v. Loyola University Health System, 228
Ill. 2d 1, 319 Ill. Dec. 319, 885 N.E.2d 999
(2007)], this court reiterated that 'arising out of
patient care' did not encompass 'but for' causation.
Rather, it meant that the injury had '"[t]o
originate; to stem (from)," or "to result (from)"'
the patient's medical care or treatment. See Orlak,
228 Ill. 2d at 14-15, 319 Ill. Dec. 319, 885 N.E.2d
999 (quoting Black's Law Dictionary 115 (8th ed.
2004)).
"In the case before this court, Kaufmann did not
allege that she was injured because of the medical
treatment she received. In other words, she did not
claim that the 'unnecessary' exam and sedation she
received during her hospitalization harmed her in
any way. Rather, the harm resulted from the sexual
assault. The sedation that was given and the
'unnecessary' exam (if one was, in fact, performed)
were not part of Kaufmann's medical treatment, but
simply a means by which Schroeder was able to
accomplish his sexual assault on Kaufmann.
"In sum, we find that Kaufmann's injury arose
out of Dr. Schroeder's sexual assault and not any
medical care she received from him. The sexual
assault, itself, was not medical care, nor was there
even any pretense that Dr. Schroeder's sexual acts
were necessitated by, or in any way related to, the
medical care he was providing to Kaufmann. There was
no suggestion by Schroeder that there existed a
medical reason for his actions."
241 Ill. 2d at 200-01, 349 Ill. Dec. at 155, 946 N.E.2d at
349.
In Burke v. Snyder, 899 So. 2d 336, 340 (Fla. Dist. Ct.
App. 2005), a Florida district court held that "a claim of
sexual misconduct by a doctor during a medical examination or
31
1130036 and 1130041
procedure is not a claim 'arising out of the rendering of ...
medical care or services'" so as to fall within Florida's
medical-malpractice statute. The court reasoned:
"In this case, ... the complaint makes no
mention of any pretense of medical care by the
doctor
or
any
psychological
manipulation
or
seduction of the plaintiff. The plaintiff does not
allege that Dr. Snyder engaged in sexual conduct
under the guise of medical diagnosis, treatment or
care. She does not allege that she was induced to
have sexual relations with Dr. Snyder in furtherance
of medical diagnosis, treatment, or care. On the
contrary, she alleges that the sexual assault
occurred 'suddenly and unexpectedly' within minutes
after the start of her first office visit with
Dr. Snyder."
899 So. 2d at 340.
In Doe v. Cherwitz, 894 F. Supp. 344 (S.D. Iowa 1995),
the United States District Court for the Southern District of
Iowa concluded that a plaintiff's allegation of sexual
misconduct against a doctor did not fall within the coverage
of Iowa's medical-malpractice statute, reasoning:
"The injuries alleged in the instant case, according
to plaintiff's allegations and evidence presented in
connection with the previous motions for summary
judgment, arose out of forcible sexual intercourse
perpetrated by defendant Cherwitz against the will
of the plaintiff when she was undergoing a medical
examination by Cherwitz.
"Section 614.1(9) is, by its terms, limited to
claims 'arising out of patient care.' Defendants
32
1130036 and 1130041
rely on one sentence in Langner[ v. Simpson, 533
N.W.2d 511 (Iowa 1995)]: 'All of the claims in the
Langners' petition arose out of injuries allegedly
suffered while Kathy was under the care of Simpson
and the hospital.' Langner, 533 N.W.2d at 516.
Defendants read the phrase 'while Kathy was under
the care of Simpson and the hospital' too broadly.
That language must be read in the context of the
facts of the Langner case. I do not believe the
Iowa Supreme Court meant to hold, or would hold if
this case were presented to it, that section
614.1(9) applies to willful non-treatment tortious
activity by the physician, simply because it
occurred when the patient was seeing the physician
for medical reasons. Obviously, that is not what
the legislature intended in enacting the statute,
and its careful choice of language -- arising from
patient care -- clearly limits the protection of the
statute to claims resulting from patient care
activity. Rape is not patient care activity. I
believe the Iowa Supreme Court would hold that
willful tortious activity outside the realm of
patient care, such as that alleged in this case, is
not governed by the statute."
894 F. Supp. at 345-46.
In Descant v. Administrators of Tulane Educational Fund,
639 So. 2d 246, 250 (La. 1994), the Louisiana Supreme Court
held that the state's medical-malpractice act
"does not protect the provider from all acts of
misconduct between the provider and his patients. It
is only triggered by the negligent care and
treatment of the patient. Were the provider to
commit an intentional tort against his patient or
negligently injure his patient in a manner unrelated
33
1130036 and 1130041
to medical treatment, the limitation of liability
would not be available."7
In short, the simple fact is that sexual misconduct by a
health-care provider toward a patient is not medical
treatment, and it does not result in a "medical injury" as
such an injury as is understood under the AMLA. The AMLA
addresses the provision of medical services to patients and
failures to meet the applicable standard of care in providing
those services. M.C.'s action against Vanderwall is not
concerned with such matters. Accordingly, the trial court did
not err in granting M.C.'s motion to compel discovery on the
ground that the AMLA does not govern M.C.'s claims against
Vanderwall.
III. Conclusion
Based on the foregoing, we dismiss Vanderwall's appeal of
the partial summary judgment as being from a nonfinal
judgment. We deny Vanderwall's petition for a writ of
mandamus both insofar as it challenges the partial summary
In addition to cases directly addressing a state's
7
medical-liability act, "the majority of jurisdictions have
concluded that professional liability policies do not provide
coverage for health care practitioners who sexually assault
their patients" because such acts do not constitute the
provision of "professional services." Physicians Ins. Co. v.
Pistone, 555 Pa. 616, 621, 726 A.2d 339, 342 (1999).
34
1130036 and 1130041
judgment in favor of M.C. and insofar as it challenges the
order granting M.C.'s motion to compel discovery.
1130036 –- PETITION DENIED.
Moore, C.J., and Bolin, Parker, Main, Wise, and Bryan,
JJ., concur.
Murdock, J., concurs specially.
Stuart, J., concurs in the result.
Shaw, J., dissents.
1130041 –- APPEAL DISMISSED.
Moore, C.J., and Bolin, Parker, Shaw, Main, Wise, and
Bryan, JJ., concur.
Murdock, J., concurs specially.
Stuart, J., concurs in the result.
35
1130036 and 1130041
MURDOCK, Justice (concurring specially).
The dissent charges that, in overruling Mock v. Allen,
783 So. 2d 828 (Ala. 2000), the main opinion "changes the law"
and "abandons precedent." ___ So. 3d at ___ (Shaw, J.,
concurring in case no 1130041 and dissenting in case no.
1130036). To begin, under the declarative theory of law, the
main opinion does not "change the law." ___ So. 3d at ___.
No opinion of this Court ever does that. We simply recognize,
as this Court has done countless times throughout it history,
that one or more prior opinions of this Court incorrectly
stated the law and that we are correcting that error. As is
customary when this or any appellate court realizes the error
of some prior decision, we "overrule" prior precedent.
Citing Moore v. Prudential Residential Services Ltd.
Partnership, 849 So. 2d 914, 926 (Ala. 2002), and Ex parte
McKinney, 87 So. 3d 502, 509 n.7 (Ala. 2011), the dissent
suggests that this Court has an ironclad rule that, unless a
party explicitly requests that we overrule a case, we will not
do so. The dissent even chooses to use the terms "loosey-
goosey" and acting "on a whim" to describe what it perceives
to be this Court's variance from the rule expressed in Moore
36
1130036 and 1130041
and McKinney. Even if the dissent's ironclad approach to
overruling precedent was the law, I see no warrant for the
dissent to invoke the quoted verbiage in an effort to make its
point. In point of fact, however, our precedents -- as they
relate to overruling precedents -- do not reflect a rule quite
so "ironclad" as the dissent suggests.
To begin, it is worth noting that there is no such rule
expressed in the Alabama Rules of Appellate Procedure. And in
fact, this Court recently overruled a case even while
specifically noting that it had not been asked to do so. See
Travelers Indem. Co. of Connecticut v. Miller, 86 So. 3d 338,
347 (Ala. 2011).
The authorities the dissent cites for its "rule" are not
as black and white as the dissent claims. In Moore, the Court
stated: "Stare decisis commands, at a minimum, a degree of
respect from this Court that makes it disinclined to overrule
controlling precedent when it is not invited to do so." 849
So. 2d at 926 (emphasis added). Moore simply made the point
that we do not as a regular practice overrule cases when not
invited to do so, but it did not say that we never do so.
37
1130036 and 1130041
Furthermore, it does not explain what being "invited to do so"
actually entails.
Ex parte McKinney expresses the same idea, but is even
less definitive as to what an invitation entails. The Court
in McKinney noted that there exists "a disinclination to
overrule existing caselaw in the absence of either a specific
request to do so or an adequate argument asking that we do
so." 87 So. 3d at 509 n.7 (emphasis added). We have
expressed the idea similarly before. See Ex parte Carlisle,
26 So. 3d 1202, 1207 (Ala. 2009) (commenting on "[t]he
principle of stare decisis and this Court's reluctance to
consider abandoning precedent in the absence of an adequate
argument to us that we should do so" (emphasis added)). Thus,
under McKinney, overcoming our "disinclination" is not solely
dependent upon a "specific request" for overruling precedent,
but also includes evaluating whether the party made an
"adequate argument" that "invites" us to overrule the
precedent at issue. In fact, in nearly every case in which
this Court has expressed its preference for not overruling
precedent when it has not been specifically asked to do so,
the Court has noted that the party that the overruling would
38
1130036 and 1130041
have favored made no argument at all in contradiction of the
precedent at issue. See, e.g., American Bankers Ins. Co. of
Florida v. Tellis, [Ms. 1131244, June 26, 2015] ___ So. 3d
___, ___ n.3 (Ala. 2015); Fort Morgan Civic Ass'n, Inc. v.
City of Gulf Shores, 100 So. 3d 1042, 1047 n.7 (Ala. 2012);
Clay Kilgore Constr. Co. v. Buchalter/Grant, L.L.C., 949
So. 2d 893, 898 (Ala. 2006) (also cited in the dissent);
Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 896
(Ala. 2008); and Moore, 849 So. 2d at 925-26.
Such clearly is not the case here. M.C. argues that the
Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540
et seq., Ala. Code 1975 ("the AMLA"), applies only to actions
that involve medical malpractice, or "medical injury," and
that sexual assault "bears no relation to medical services."
Her argument directly contradicts the holding in Mock, and the
parties to this case expressly argue over the applicability of
the AMLA to this case. Yet, according to the dissent, this
Court is forbidden from examining the correctness of the rule
enunciated in Mock solely because M.C. did not specifically
state that Mock should be overruled. The cases cited above
illustrate that we are under no such prohibition. In fact,
39
1130036 and 1130041
"while we accord 'due regard to the principle of
stare decisis,' it is also this Court's duty 'to
overrule prior decisions when we are convinced
beyond ... doubt that such decisions were wrong when
decided or that time has [effected] such change as
to require a change in the law.' Beasley v. Bozeman,
294 Ala. 288, 291, 315 So. 2d 570, 572 (1975)
(Jones, J., concurring specially)."
Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543, 545-46
(Ala. 2000). In other words, our duty, first and foremost, is
to the correctness of law. That is not something the parties
ultimately dictate to us.
"'"Appellate review does not consist of supine
submission to erroneous legal concepts.... Our duty
is to enunciate the law on the record facts. Neither
the parties nor the trial judge, by agreement or by
passivity, can force us to abdicate our appellate
responsibility."'"
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) (quoting Forshey v. Principi, 284 F.3d
1335, 1357 n. 20 (Fed. Cir. 2002), quoting in turn Empire Life
Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th
Cir. 1972)).
The dissent pejoratively describes the change in the law
we make today as "a more comfortable result" for us. It is
indeed "more comfortable." And it is more comfortable for
good reason. Any just law is designed to produce fair and
40
1130036 and 1130041
just results. When the law is followed, therefore, it should
not be surprising that a "comfortable result" is achieved.
And here the result achieved is in fact one dictated by
the law in question (the AMLA), which is what we are sworn to
uphold. As this Court has observed:
"'The doctrine of stare decisis tends to
produce certainty in our law, but it is
important to realize that certainty per se
is but a means to an end, and not an end in
itself. ... When it appears that the evil
resulting from a continuation of the
accepted rule must be productive
of greater
mischief to the community than can possibly
ensue
from
disregarding
the
previous
adjudications on the subject, courts have
frequently
and
wisely
departed
from
precedent, 14 Am.Jur., Courts, § 126.'"
Ex parte State Farm Fire & Cas. Co., 764 So. 2d at 545 n.3
(quoting Fox v. Snow, 6 N.J. 12, 25, 76 A.2d 877, 883-84
(1950) (Vanderbilt, C.J., dissenting)).
41
1130036 and 1130041
SHAW, Justice (concurring in case no. 1130041 and dissenting
in case no. 1130036).
I concur to dismiss the appeal in case no. 1130041; I
respectfully dissent from denying the petition for a writ of
mandamus in case no. 1130036.
In Mock v. Allen, 783 So. 2d 828 (Ala. 2000), this Court
rejected the argument that the Alabama Medical Liability Act,
§ 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the
AMLA"), "[did] not apply ... because '[t]he acts of
intentional sexual assault of which [the patient] complains
were for no medical reason'" and were "outside the scope of
the physician's professional services and did not constitute
professional malpractice." Instead, the rule has been as
follows:
"[M]ost of the reported cases where appellate courts
have declined to hold that the physician's conduct
constituted
professional
malpractice
involved
either
an intimate sexual relationship or sexual misconduct
having
no
connection
with
the
rendering
of
professional services. ...
"By contrast, in cases where the alleged sexual
misconduct
occurs
as
part
of
a
physician's
examination and/or treatment of a patient, the
conduct is considered to have occurred during the
delivery of professional services, and is therefore
cognizable as a medical-malpractice claim. ..."
42
1130036 and 1130041
783 So. 2d at 832-33 (emphasis added).
Under the precedent established by Mock, the AMLA is
applicable in this case. To be clear, the application of Mock
and the AMLA in no way denies the plaintiff a cause of action
or the ability to seek damages for any alleged misconduct by
the defendant. Instead, under Mock, the plaintiff's claim is
litigated
pursuant
to
certain
statutorily
prescribed
substantive and procedural requirements. The main opinion in
this case instead changes the law and abandons precedent.
We have described our adherence to precedent under the
doctrine of stare decisis as follows:
"As Justice Somerville observed in his dissent in
Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala.
334, 340, 110 So. 574, 580 (1925), 'The doctrine of
stare decisis, though not without its limitations,
is the only thing that gives form, and consistency,
and stability to the body of the law. Its structural
foundations, at least, ought not to be changed
except for the weightiest reasons.'• In Lindsay v.
United States Savings & Loan Ass'n, 120 Ala. 156,
167, 24 So. 171, 174 (1898), this Court commented:
"'The observations of Chancellor Kent are
instructive, and have been often quoted by
courts and text writers: "If a decision has
been
made
upon
solemn
and
mature
consideration, the presumption is in favor
of its correctness, and the community have
a right to regard it as a just declaration
or exposition of the law, and to regulate
their actions by it."'•
43
1130036 and 1130041
"... Recently we stated, 'Judges adhering to the
rule of stare decisis defer to prior precedent to
obtain the beneficial effect of predictability in
the law even when enticed to embrace what appears to
be a more logically sound rule.'• Keck v. Dryvit
Sys., Inc., 830 So. 2d 1, 7-8 (Ala. 2002)."
Exxon Corp. v. Department of Conservation & Natural Res., 859
So. 2d 1096, 1102 (Ala. 2002) (emphasis omitted).
The plaintiff does not ask this Court to overrule Mock;
instead, the majority elects to do so on its own initiative.
"However, this Court has long recognized a disinclination to
overrule existing caselaw in the absence of either a specific
request to do so or an adequate argument asking that we do
so." Ex parte McKinney, 87 So. 3d 502, 509 n.7 (Ala. 2011).
This is because "[s]tare decisis commands, at a minimum, a
degree of respect from this Court that makes it disinclined to
overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
44
1130036 and 1130041
inclined
to
abandon precedent without a specific invitation to
do so"). Because the plaintiff attempts to distinguish Mock
but does not ask us to overrule it, I would follow the
doctrine of stare decisis and apply that precedent. I express
no opinion as to whether Mock correctly interpreted or applied
the AMLA, because I do not believe that the issue is before
us.
Despite no "specific request" to overrule Mock, the
majority navigates around this requirement by noting that
"[the plaintiff's] argument and [the defendant's] invocation
of Mock for the contrary position necessitate a reexamination
of that decision in the present case." ___ So. 3d at ___. I
must respectfully submit that a party presenting an argument
contrary to precedent and the opposing party pointing this out
does not constitute a "specific request" or an "adequate
argument asking" this Court to overrule that controlling
precedent. Ex parte McKinney, supra. Indeed, virtually any
argument citing a case can now be deemed a request to overrule
a decision. This new rule effectively negates the idea that
one must present a "specific request" to overrule a prior
decision and replaces it with a loosey-goosey test that allows
45
1130036 and 1130041
this Court to overrule a prior decision on a whim. Thus, yet
another exception to our general requirements regarding the
proper
presentation of arguments for appellate review has
been
created. See Ex parte Pollard, 160 So. 3d 835, 837 (Ala.
2014) (Shaw, J., dissenting) (noting the unclear standard of
preserving issues for review found in Ex parte Jenkins, 26 So.
3d 464 (Ala. 2009), and its potential for abuse).
Mock provided a clear distinction between sexual
misconduct that occurred with no connection to treatment,
which, Mock held, falls outside the AMLA, and sexual
misconduct that occurs during treatment, which, Mock held,
falls within the AMLA. The main opinion erases this
distinction. Appropriate medical care or treatment might, in
certain cases where such care or treatment occurs as part of
a physician's examination and/or treatment of a patient,
require touching that, in another context, would constitute
sexual assault. The AMLA would require a plaintiff alleging
assault under this scenario to provide certain expert
testimony to show that the touching was outside the standard
of care--i.e., that the touching was medically improper or not
necessary--and restrict some of the evidence that might
46
1130036 and 1130041
otherwise be discoverable and admissible at trial. The
application
of
this
statutory
procedure
might
seem
uncomfortable in a sensitive case like one alleging a sexual
assault because it seemingly provides some measure of
protection to the defendant physician. Now, under the rule
embraced in the main opinion, when there is an allegation of
sexual assault, the plaintiff will have to show only the
elements of that tort outside of any strictures imposed by the
AMLA. This is a more comfortable result than the application
of the previous rule. However, a future case could involve a
physician who was clearly permitted by the applicable
standard
of care to touch a patient, but who is nonetheless sued
alleging assault and is deprived of the substantive and
procedural rules of the AMLA when those rules may be clearly
needed. Once again, in light of this uncomfortable result and
without the restraint of stare decisis, the Court may
vacillate back to a Mock-type analysis. This potential for
uncertainty and instability in the law, fickle as it is, is
exactly what stare decisis is intended to prevent. I thus
respectfully dissent.
47 | September 30, 2015 |
ba4f712e-01cb-447b-b8d6-03919698b17d | Noland Hospital Birmingham, LLC, and Noland Health Services, Inc. v. Anita Marion. | N/A | 1140605 | Alabama | Alabama Supreme Court | REL:11/06/2015
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, 2015-2016
____________________
1140604
____________________
Walter R. Ross, Jr., M.D.
v.
Anita Marion
____________________
1140605
____________________
Noland Hospital Birmingham, LLC, and Noland Health Services,
Inc.
v.
Anita Marion
____________________
1140606
____________________
Anita Marion
v.
Bernis Simmons, M.D.
Appeals from Jefferson Circuit Court
(CV-2011-900717)
MOORE, Chief Justice.
Anita Marion ("Marion") sued Noland Hospital Birmingham,
LLC, and
Noland Health Services, Inc. (hereinafter referred to
collectively as "Noland"), Walter R. Ross, Jr., M.D., and
Bernis Simmons, M.D., in the Jefferson Circuit Court seeking
damages resulting from the death of her husband, Arthur Marion
("Arthur"). Following a trial, the jury returned a verdict in
favor of Dr. Simmons but against Dr. Ross and Noland. Dr. Ross
and
Noland,
in
cases
no.
1140604
and
no.
1140605,
respectively, appeal from the judgments against them, and
Marion, in case no. 1140606, appeals from the judgment in
favor Dr. Simmons. For the reasons stated herein, we reverse
the judgments in cases no. 1140604 and no. 1140605 and remand
the cause for a new trial as to those defendants, and we
affirm the judgment in case no. 1140606.
2
1140604, 1140605, 1140606
I. Facts and Procedural History
On February 27, 2009, Arthur underwent a kidney-stone-
removal procedure at St. Vincent's East hospital in
Birmingham. Dr. Taylor Bragg performed the procedure, and Dr.
Simmons
was
the
anesthesiologist.
During
the
procedure,
Arthur
suffered a heart attack. Arthur was revived, but the heart
attack
caused
him
to
suffer
hypoxic
encephalopathy
(deprivation of oxygen to the brain), which left him in a
nonresponsive state. On March 19, 2009, Arthur
was
transferred
from St. Vincent's to Noland Hospital Birmingham and was
admitted by Dr. Ross. Arthur remained at Noland Hospital until
April 27, 2009, when he was transferred back to St. Vincent's
to receive dialysis for renal failure. Arthur passed away on
April 28, 2009.
Marion filed this wrongful-death action on February 28,
2011, against, among other defendants, Dr. Ross, Dr. Simmons,
1
and Noland. Although Marion asserted various theories of
The
other
defendants
included
St.
Vincent's
East,
Eastern
1
Urology Associates, P.A., Donald Taylor Bragg, M.D., Mell L.
Duggan, Jr., M.D., Kelly Carmack, CRNA, Mary Greenway, SRNA,
Frank Heckathorn, "RPh, DPh," Tom Novitski, "RPh,"
and
various
fictitiously named defendants. Before trial, Marion dismissed
most of these defendants and settled her claims against the
others.
3
1140604, 1140605, 1140606
liability, the essence of her claim against Dr. Simmons was
that he breached the applicable standard of care by failing to
position Arthur properly during his kidney-stone-removal
procedure and that this breach caused Arthur's blood to be
unable to circulate properly, which in turn caused Arthur's
heart attack and hypoxic encephalopathy. As to her claim
against Dr. Ross, Marion claimed that Dr. Ross breached the
applicable standard of care by prescribing Rocephin, an
antibiotic, to treat an infection Arthur was developing.
Arthur had a documented allergy to Ancef, which, like
Rocephin, is in a class of antibiotics called cephalosporins.
Marion alleged that Dr. Ross failed to note Arthur's allergy
to Ancef and that, if Dr. Ross had noted the allergy, he would
not have prescribed a cephalosporin to treat Arthur's
infection. Marion also alleged that Noland breached the
applicable standard of care by failing to train its nurses to
check for contraindications to medications. Marion alleged
that the administration of Rocephin caused Arthur to develop
a severe allergic reaction known as toxic
epidermal necrolysis
("TEN"). Marion alleged that TEN caused Arthur to develop
sepsis, which, in turn, caused his death.
4
1140604, 1140605, 1140606
The trial lasted from September 8, 2014, through October
3, 2014. Dr. Ross, Dr. Simmons, and Noland moved for a
judgment as a matter of law at the close of Marion's evidence
and again at the close of all evidence. Both motions
challenged the sufficiency of the evidence, and both motions
were denied. After closing arguments, the trial court
instructed the jury and sent it to deliberate.
On October 3, 2014, which was the third day of the jury's
deliberation, Dr. Ross, Dr. Simmons, and Noland moved for a
mistrial. Counsel for Dr. Ross and Noland argued:
"MR. [MICHAEL] BELL[, counsel for Dr. Ross and
Noland]: Judge, I need to make a motion. But I want
to start by making this very clear, clear as I know
how, we are not suggesting that the Court or anyone
associated with the Court has done anything
intentionally wrong. Not at all. We -- what this
relates to is the jury asking questions in the
morning yesterday and then in the afternoon. And
there are multiple cases that say that a Court
cannot instruct a jury outside the presence of
counsel without notifying us, all counsel, and
giving us an opportunity to participate in whatever
questions and answers may happen. No one is
suggesting that anything that the Court did or Court
personnel
did
was
intentionally
improper
and
violative of that rule. But we do know and we
learned yesterday that the jury asked questions
about whether the verdict had to be unanimous,
burden of proof, and then, ultimately, the third
question where we were involved, in terms of what
the evidence was on whether the Rocephin caused the
death. And under various cases, we've got the --
5
1140604, 1140605, 1140606
George [Knox, counsel for Dr. Simmons,] gave Jori
[Jordan, the trial court's law clerk,] one of the
cases, the Savage[ Indus., Inc. v. Duke] case[, 598
So. 2d 856 (Ala. 1992),] this morning. And then
there's the [Petty-]Fitzmaurice [v. Steen] case, 871
So. 2d 771 [(Ala. 2003)]. The only way for us to
preserve and raise that issue at this stage is by
motion for a mistrial. So we -- that's the only way
we can deal with it at this stage, and we're
obligated to raise it timely in relation to while
the jury is still deliberating and once we are on
notice of those questions and answers taking place
without us being notified and us being present and
participate in. So at this time, we do need to move
for mistrial."
The trial court denied the motion, explaining:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
Toward the end of the discussion, the trial court said: "So
I'm sure they will have plenty of questions. We generally ask
them to write their questions down, and then we'll call you in
and let you know what they ask. And that's it."
The jury returned a verdict in favor of Dr. Simmons but
against Dr. Ross in the amount of $100,000 and against Noland
in the amount of $1,300,000. Noland and Dr. Ross each filed a
postjudgment motion for a judgment as a matter of law, or, in
6
1140604, 1140605, 1140606
the alternative, for a new trial, or to alter or amend the
judgment. In those motions, Noland and Dr. Ross argued again
that they were entitled to a new trial because of the trial
court's communications with the jury. Noland and Dr. Ross also
attached affidavits of several jurors, saying, among other
things, that Jori Jordan, the trial court's law clerk, entered
the jury room and had discussions with the jurors. Marion
opposed the motions, submitting affidavits from the trial
court's clerk and several other jurors, denying that the
discussions had taken place.
On January 26, 2015, the trial court denied Noland's and
Dr. Ross's motions, stating, in pertinent part:
"The Defendants' claim that the Court's clerk
was overheard to say in the jury room that their
verdict must be unanimous and that there could be no
hung jury. Submitted affidavits show statements to
be in conflict.
"The Court in its instruction to the jury
informed them that their verdict must be unanimous.
That there could not be what we call a 'jury
quotient.'
"Each juror when asked individually before the
Court, if this was their true and lawful verdict,
answered in the affirmative."
Dr. Ross and Noland filed their notices of appeal to this
Court on March 6, 2015 (cases no. 1140604 and no. 1140605,
7
1140604, 1140605, 1140606
respectively); Marion filed her notice of appeal on March 9,
2015 (case no. 1140606). Marion explicitly stated in her
notice of appeal that she was not challenging the jury's
verdict as to Dr. Simmons; she asks only that, if this Court
reverses the judgments in her favor against Dr. Ross and
Noland and remands the cause for a new trial, her claim
against Dr. Simmons be reinstated as well.
II. Standard of Review
"'It is well established that a ruling on a
motion for a new trial rests within the sound
discretion of the trial judge. The exercise of that
discretion carries with it a presumption of
correctness, which will not be disturbed by this
Court unless some legal right is abused and the
record plainly and palpably shows the trial judge to
be in error.'"
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694
(Ala. 1989) (quoting Hill v. Sherwood, 488 So. 2d 1357 (Ala.
1986)).
III. Discussion
A. Dr. Ross's and Noland's Appeals (cases no. 1140604 and no.
1140605)
Although Dr. Ross and Noland raise multiple issues on
appeal, one issue is dispositive: Whether the trial court
erred in denying the motions for a new trial based on the
8
1140604, 1140605, 1140606
communications between the trial court and the jury that
occurred outside the presence of the parties and counsel.
Dr. Ross and Noland argue that the trial court should
have granted their motions for a new trial based on Matthews
v. Liberty Mutual Insurance Co., 286 Ala. 598, 243 So. 2d 703
(1971). In Matthews, after the jury was sent to deliberate, a
juror knocked on the door of the jury room and told the
bailiff that the jury had a question for the judge. The
bailiff informed the judge, who then went into the jury room.
The judge testified that he asked who was the foreman, and,
after hearing the jury's question, he said only this:
"'"Ladies and gentlemen, when you consider this case, you are
to consider all the evidence and you are to consider all the
matters presented to you by the Court, and you are to consider
them together."'" 286 Ala. at 601-02, 243 So. 2d at 706. A
motion for a mistrial followed, which the trial court denied.
The judge explained that his "'purpose in going in to the jury
room was to ascertain whether or not such matters were
represented there that would call for the presence of
counsel.'" 286 Ala. at 602, 243 So. 2d at 706.
9
1140604, 1140605, 1140606
On appeal, this Court held:
"We understand the general rule to be that the
judge may not, in the absence of counsel, further
instruct the jury, after their retirement, without
making a reasonable effort to notify counsel or
without some special circumstances or excuse being
shown which reasonably prevented notice. Kuhl v.
Long, [102 Ala. 563, 15 So. 267 (1893)]; Feibelman
v. Manchester Fire Assurance Co., [108 Ala. 180, 19
So. 540 (1895)].
"Our court concluded in Feibelman, supra:
"'We can not inquire, in such a case,
what instructions were given by the court
to the jury--whether they were correct or
incorrect, prejudicial or otherwise. ...
The only safe course therefore, when it is
established that the court, without some
overruling
necessity
therefor,
gave
instructions to the jury ... in the absence
of
the
complaining
suitor's
counsel,
engaged in representing him on the trial,
and without reasonable notice to them and
opportunity to be present, is to withhold
all inquiry and investigation into the
correctness of the instructions or action
of
the
court,
and
treat
them
as
conclusively prejudicial, by reason of the
suitor's deprivation of his constitutional
right. ...'"
Matthews, 286 Ala. at 604, 243 So. 2d at 708. The Court cited
the following as the rationale for this rule:
"'It has been wisely stated that 'next to the
tribunal being in fact impartial is the importance
of its appearing so'. Shrager v. Basil Dighton Ltd.,
(1924) 1 K.B. 274, 284. This applies in a special
way to the Judge and his relationship with the jury.
10
1140604, 1140605, 1140606
Without doubting the worthy motives or the well-
intentioned solicitude of the Judge for the wishes
and welfare of the jurors, private communication by
a Judge to or with the jury in the jury room and in
the absence of counsel is almost certain to create
suspicions and a belief of unfairness in the minds
of many people.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 707-08 (quoting
Glendenning v. Sprowls, 405 Pa. 222, 224, 174 A.2d 865, 866
(1961)) (emphasis omitted).
"'Whether or not injury or injustice has
resulted to the litigants by reason of the conduct,
is not our primary concern. Rather, our concern is
with
the
implication
that
attaches
to
the
administration of justice under these
circumstances.
Confidence in our judicial system is imperiled if
such conduct is countenanced in jury trials. Conduct
which if proved would give rise to doubt and
disrespect, or the mere appearance of such conduct
as will not meet with the approval of public
opinion, must be severely condemned. It is only
through the granting of a new trial in situations
like this, as well as vigilant effort by the
officers of the court to prevent such occurrences,
that public confidence in the jury system may be
preserved.'"
Matthews, 286 Ala. at 603, 243 So. 2d at 708 (quoting Daniels
v. Bloomquist, 258 Iowa 301, 306-07, 138 N.W.2d 868, 872
(1965)).
Applying those principles to the case before it, the
Matthews Court found that the trial judge did not have an
"overruling
necessity"
for
communicating
with
the
jury
outside
11
1140604, 1140605, 1140606
the presence of the parties and the parties' counsel and
without giving the parties and counsel reasonable notice and
an opportunity to be present. Although the Court believed the
trial judge was "motivated by a sincere desire to expedite the
trial" and "intended no harm" in his actions, the Court held
that the conduct in question was "of such prejudicial nature
in this instance to warrant reversal." 286 Ala. at 605-06, 243
So. 2d at 710.
In the present case, when Dr. Ross, Dr. Simmons, and
Noland moved for a mistrial, they alleged that, in the absence
of the parties' counsel, the trial court answered questions
about whether the verdict had to be unanimous and about the
burden of proof. The trial court answered:
"They have asked questions, that's why I called you
all in yesterday and read -- let you know what they
had asked. They always ask questions. And, you know,
we always call counsel in and let them know what
they ask. If -- you know, sometimes lawyers will
suggest how we respond back to them, you know like
George did yesterday. And I don't think that rises
to a level for a mistrial."
This statement suggests that the jury had asked questions
about the burden of proof and about whether the verdict had to
be unanimous, that the trial court had answered those
12
1140604, 1140605, 1140606
questions, and that the trial court informed the parties and
counsel after the fact.
Furthermore, in the motions for a new trial, the
attorneys for Dr. Ross and Noland submitted affidavits that
further raised the question whether the trial court had
improperly instructed the jury. Michael Bell's affidavit
provided, in relevant part:
"3. ... On the afternoon of October 2, 2014,
Judge Helen Shores Lee summoned all counsel to
chambers. ... After I arrived, Judge Lee informed
all counsel that: (1) the jury had asked questions
about the burden of proof; and (2) that the jury's
then pending-question was asking where it was
supposed to look for evidence that Rocephin killed
Mr. Marion.
"4. Counsel and Judge Lee discussed and agreed
upon an appropriate response to the jury's question
about locating evidence. The Court was to instruct
the jury that it had received all of the evidence
during the trial and that was all that it could
consider.
Ms.
Jordan
returned
to
the
jury
deliberation room to deliver this instruction. Ms.
Jordan remained in the jury room for more than a few
minutes.
"5. During the chambers conference on the
afternoon of October 2, 2014, while I was present,
the Court did not tell counsel how it had responded
to the jury's prior questions regarding the burden
of proof and whether the verdict had to be
unanimous. The Court did not inform counsel when the
jury had raised those questions, and the Court did
not involve counsel in responding to those questions
from the jury."
13
1140604, 1140605, 1140606
The affidavit of John Thompson, another attorney representing
Dr. Ross and Noland, said essentially the same thing, adding
that Judge Lee had informed the parties that the jury had also
asked "whether the verdict had to be unanimous."
In its order denying the motions for a new trial, the
trial court admitted to instructing the jury that its verdict
had to be unanimous, but it did not address the defendants'
concern that the trial court had instructed the jury on the
burden of proof. Instead, the trial court appeared to reason
that there was no actual prejudice resulting from the giving
of the additional instructions without counsel's presence.
However, "'[w]hether or not injury or injustice has resulted
to the litigants by reason of the conduct, is not our primary
concern. Rather, our concern is with the implication that
attaches to the administration of justice under these
circumstances.'" Matthews, 286 Ala. at 603, 243 So. 2d at 708
(quoting Daniels, 258 Iowa at 306-07, 138 N.W.2d at 872).
There is no evidence indicating that the trial court attempted
to contact counsel or that it had an "overruling necessity"
for failing to do so. Matthews 286 Ala. at 604, 243 So. 2d at
708.
14
1140604, 1140605, 1140606
The only attempt Marion makes to rebut Dr. Ross's and
Noland's arguments is to say that the "affidavits submitted by
the parties to the trial court speak for themselves." Marion
argues that no misconduct occurred and that this Court should
defer to the discretion of the trial court. However, the
affidavits in question address whether the trial court's law
clerk improperly instructed a single juror as to whether the
jury verdict had to be unanimous. Marion makes no attempt to
address the trial court's concession that the jury was
instructed that the verdict had to be unanimous. Marion also
makes no attempt to address Dr. Ross's and Noland's
allegations –- and the trial court's apparent concession –-
that the trial court instructed the jury as to the burden of
proof outside the presence of the parties and counsel.
Under these circumstances, we have no choice but to
reverse the judgments against Dr. Ross and Noland and to
remand the cause for a new trial. Like the Court in Matthews,
we "are quite certain that the capable and conscientious trial
judge (in whom we repose the highest confidence) intended no
harm" and "was motivated by a sincere desire to expedite the
trial," but we also believe that "we should treat such
15
1140604, 1140605, 1140606
communications
as
'conclusively
prejudicial'
being
a
deprivation of the constitutional right to a fair trial to
which every party litigant is entitled." Matthews, 268 Ala. at
605, 243 So. 2d at 710.
B. Marion's Appeal (case no. 1140606)
On appeal Marion requests that we reinstate her claim
against Dr. Simmons if we reverse the judgments against Dr.
Ross and Noland and remand the cause for a new trial. Marion's
appeal "is in the nature of a conditional cross-appeal, which
becomes ripe for review in the event that the judgment under
review is reversed as a result of the appeal." Huntsville City
Bd. of Educ. v. Sharp, 137 So. 3d 917, 923 (Ala. Civ. App.
2013). Because we are reversing the judgments as to Dr. Ross
and Noland, we may consider Marion's claim against Dr.
Simmons.
Marion argues that, in the interests of justice, this
Court has the authority to grant a new trial as to Dr. Simmons
as well. Marion argues that the improper communications
between the trial court should equally taint the verdict as to
Dr. Simmons just as much as it taints the verdict as to Dr.
Ross and Noland. However, Dr. Simmons argues, among other
16
1140604, 1140605, 1140606
things, that this claim was not properly preserved because it
was not first made to the trial court.
"Generally this Court will not address the merits of an
argument that is raised for the first time on appeal." Crusoe
v. Davis, [Ms. 1130798, Feb. 20, 2015] ___ So. 3d ___, ___
(Ala. 2015). There is no reason Marion could not have asked
the trial court in her opposition to the defendants'
postjudgment motions to grant a new trial as to Dr. Simmons if
the trial court found that a new trial was warranted as to Dr.
Ross and Noland. Thus, we decline Marion's request to reverse
2
the trial court's judgment as to her claim against Dr.
Simmons.
IV. Conclusion
In cases nos. 1140604 and 1140605, the judgments for Dr.
Ross and Noland are reversed and the cause is remanded for a
new trial as to those two defendants. In case no. 1140606, the
judgment is affirmed.
1140604 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Marion did not file a reply brief in case no. 1140606.
2
17
1140604, 1140605, 1140606
Shaw and Bryan, JJ., concur in the result.
1140605 -- REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Main, and Wise, JJ.,
concur.
Shaw and Bryan, JJ., concur in the result.
1140606 -- AFFIRMED.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Shaw, J., concurs in the result.
18 | November 6, 2015 |
65523682-97d5-4898-9a74-5b635f11635d | Ex parte J.C. and R.C. | N/A | 1150071 | Alabama | Alabama Supreme Court | rel: 11/25/2015
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, 2015-2016
____________________
1150071
____________________
Ex parte J.C. and R.C.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: K.U.
v.
J.C. and R.C.)
(Montgomery Juvenile Court, JU-07-692.03;
Court of Civil Appeals, 2140140)
STUART, Justice.
WRIT DENIED. NO OPINION.
1150071
Bolin, Murdock, Shaw, Main, and Bryan, JJ., concur.
Moore, C.J., Parker and Wise, JJ., dissent.
2
1150071
MOORE, Chief Justice (dissenting).
I respectfully dissent from this Court's denial of J.C.
and R.C.'s petition for a writ of certiorari. The Montgomery
Juvenile Court awarded custody of S.C. ("the child") to J.C.
("the father") and R.C. ("the stepmother"). K.U. ("the
maternal grandmother") appealed from the judgment. The Court
of Civil Appeals reversed the judgment of the juvenile court
and ordered that custody of the child remain with the maternal
grandmother. K.U. v. J.C., [Ms. 2140140, October 9, 2015] ___
So. 3d ___ (Ala. Civ. App. 2015). This petition followed.
The Court of Civil Appeals provided the following
procedural history:
"On
January
29,
2008,
the
juvenile
court
entered
a consent judgment ('the 2008 Montgomery judgment')
awarding the maternal grandmother and T.W. ('the
paternal grandmother') joint legal and physical
custody of the child, whose date of birth is
December 19, 2005. On July 1, 2008, the Autauga
Juvenile Court entered a judgment ('the 2008 Autauga
judgment') in a dependency case awarding the
maternal grandmother and the paternal grandmother
joint legal and physical custody of F.C., the
child's sister, whose date of birth is November 22,
2004. On February 15, 2013, the father and the
stepmother filed, in the juvenile court, a petition
to modify the custody of the child and F.C. On March
28, 2013, the maternal grandmother filed an answer
to the petition. Subsequently, the juvenile court
transferred the petition to modify the physical
custody of F.C. to the Autauga Juvenile Court. In
3
3
1150071
April 2014, the father consented to a judgment being
entered by the Autauga Juvenile Court pursuant to
which the custody of F.C. was awarded to the
maternal
grandmother,
and
the
father’s
custody-modification
petition
as
to
F.C.
was
dismissed. After a trial, the juvenile court entered
a judgment awarding custody of the child to the
father and the stepmother."
___ So. 3d at ___ (footnotes omitted). The evidence indicates
that, at the time the 2008 judgment was entered by the
Montgomery Juvenile Court, the father and the birth mother
were in the midst of a divorce. The maternal and paternal
grandmothers agreed with the father and the mother that it was
in the best interests of the child to temporarily have custody
assigned to the grandmothers until either the mother or the
father was able to properly take care of the child. Pursuant
to this agreement and consistent with the 2008 judgment, the
child moved in with the maternal grandmother. Eventually the
father found a stable job, remarried, and had a son named
A.C., but the maternal grandmother never agreed to relinquish
custody of the child. The father has continued to maintain his
visitation schedule with the child, has sustained a paternal
relationship with her, and has been involved in her daily
life. Additionally, the stepmother and the child have bonded,
and the paternal
grandmother
testified that the stepmother has
4
4
1150071
acted as a surrogate mother because the birth mother is not
very involved in the child's life.
The evidence also shows that the maternal grandmother and
the father and stepmother all have taken good care of the
child and have provided a loving and caring environment.
Although the child and her sister, F.C., are very close and
have always lived together, the child has also enjoyed being
a big sister to A.C.
The petitioners' verified statement of facts included the
following alleged excerpts from the juvenile court's November
5, 2014, order:
"i. The 'Court had the opportunity to observe
all of the parties involved, all of the witnesses,
and to examine any and all of the exhibits that were
entered into evidence.'
"ii. The 'Court has taken ample time to review
the entire record as a whole in this matter and has
heavily weighed the various factors involving all of
the same.'
"iii. This 'Court is well aware of the [Ex
parte] McLendon[, 455 So. 2d 863 (Ala. 1984),]
standard with regard to modifications of custody.
This Court is of the considered opinion that the
overwhelming evidence and testimony in this matter
indicate that the Father and Step-Mother (J.C. and
R.C.) of this child are the proper persons to have
the legal and physical custody, care, and control of
child, (S.C.).'
5
5
1150071
"iv. This 'Court is of the opinion that in all
cases involving custody of a child, the welfare and
best interests of the child are of the highest and
most paramount importance. The Court finds from the
overwhelming testimony and evidence presented that
the Father and Step-Mother are the fit and proper
persons to be granted custody of the child. This
Court retains the notion in this matter that the
child's welfare is the pinnacle of this litigation,
and the child being with the Father and Step-Mother
would serve this notion. ...'
"v. '... [T]he testimony now suggests that the
child would be best served by being in the care,
custody, and control of her natural Father and her
Step-Mother.'
"vi. 'The Court heard extensively from both of
the [joint legal and joint physical custodians] ....
[T]he undisputed testimony from each Grandmother and
from the Father suggests that the agreement for the
child to be in the custody of the Grandmothers was
to be temporary; and that the Father initially, and
now with his Wife of several years, has attempted to
regain primary care of the child since shortly after
entering into the temporary agreement. While it
appears that [the paternal grandmother] has been
supportive and encouraging of the same, it also
appears to the Court that [the maternal grandmother,
K.U.,] has impeded the process of parent-child
reunification at all costs ... The Court is not
convinced
that
[K.U.]
produced
any
evidence
outweighing the evidence produced by [J.C. and R.C.]
regarding permanent placement of the child; nor does
the Court believe that [K.U.] continues to place the
best interest of the child over her own interests.
The evidence produced by [J.C. and R.C. and the
paternal grandmother] has convinced the Court that
it would be beneficial to the child to be placed in
[J.C. and R.C.'s] home and the Court is convinced
that any possible or slight disruption to the minor
child would be outweighed by the substantial benefit
6
6
1150071
that the child will gain from these changes.'
(Emphasis added.)
"vii. 'This Court has determined what is in the
best interest and welfare of this minor child, to
include consideration of the McClendon standard, and
has reduced the decision to this writing. The Court
made this determination from the weight of the
evidence before it and in the conscience of the
Court. After the Court had an opportunity to spend
a significant amount of time hearing this matter,
observing the parties, and contemplating this matter
and the record, along with the Guardian ad Litem's
report, the Court is of the considered opinion that
the child in question in this matter shall be
reunified with the Father, and shall be in his home.
This Court will reunify this family.' (Emphasis
added.)
"viii. '... [T]he evidence is more than
sufficient to support this Court's conclusion that
the child's manifest best interest and welfare will
be best served in the custody of [J.C. and R.C.].'"
The Court of Civil Appeals reversed the judgment of the
juvenile court, permitting the maternal grandmother to retain
custody of the child and holding that the juvenile court
improperly applied the standard enunciated in Ex parte
McLendon, 455 So. 2d 863 (Ala. 1984).
I believe that the writ should issue to consider whether
the Court of Civil Appeals improperly reweighed the evidence.
The ore tenus rule in child-custody cases is well established:
"When evidence in a child custody case has been
presented ore tenus to the trial court, that court's
7
7
1150071
findings of fact based on that evidence are presumed
to be correct. The trial court is in the best
position to make a custody determination -- it hears
the evidence and observes the witnesses. Appellate
courts do not sit in judgment of disputed evidence
that was presented ore tenus before the trial court
in a custody hearing. See Ex parte Perkins, 646 So.
2d 46, 47 (Ala. 1994), wherein this Court, quoting
Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ.
App. 1993), set out the well-established rule:
"'"Our standard of review is very
limited in cases where the evidence is
presented
ore
tenus.
A
custody
determination of the trial court entered
upon
oral
testimony
is
accorded
a
presumption
of
correctness
on
appeal,
Payne
v. Payne, 550 So. 2d 440 (Ala. Civ. App.
1989), and Vail v. Vail, 532 So. 2d 639
(Ala. Civ. App. 1988), and we will not
reverse unless the evidence so fails to
support the determination that it is
plainly and palpably wrong, or unless an
abuse of the trial court's discretion is
shown. To substitute our judgment for that
of the trial court would be to reweigh the
evidence. This Alabama law does not allow.
Gamble v. Gamble, 562 So. 2d 1343 (Ala.
Civ. App. 1990); Flowers v. Flowers, 479
So. 2d 1257 (Ala. Civ. App. 1985)."'
"It is also well established that in the absence
of specific findings of fact, appellate courts will
assume that the trial court made those findings
necessary to support its judgment, unless such
findings would be clearly erroneous. See the cases
collected at 3 Ala. Digest 2d Appeal & Error §
846(5) (1993).
"....
8
8
1150071
"Neither the Court of Civil Appeals nor this
Court is allowed to reweigh the evidence in this
case. This case, like all disputed custody cases,
turns on the trial court's perception of the
evidence. The trial court is in the better position
to evaluate the credibility of the witnesses ... and
the trial court is in the better position to
consider all of the evidence, as well as the many
inferences that may be drawn from that evidence, and
to decide the issue of custody."
Ex parte Bryowsky, 676 So. 2d 1322, 1324-26 (Ala. 1996)
(emphasis added). In reversing the juvenile court's judgment,
the Court of Civil Appeals relied on McLendon. In McLendon, a
divorce judgment had incorporated the agreement of divorcing
parents and had awarded custody of a minor child to the
paternal grandparents. Sometime after the divorce, the mother
remarried and was able to provide a stable environment and
financial support for
the
minor child. Eventually, the mother,
who apparently had had infrequent visits with the minor child
while the child was living with the paternal grandparents,
picked up the minor for visitation and took the minor to
California without the grandparents' knowledge. After the
grandparents obtained a court order in California, the minor
child was returned to the grandparents in Alabama, where the
custody matter at issue in the case ensued. In McLendon, we
reversed the Court of Civil Appeals' affirmance of the
9
9
1150071
juvenile court's decision and held that the child would remain
in the custody of the grandparents, stating:
"It is not enough that the parent show that she
has remarried, reformed her lifestyle, and improved
her financial position. Carter v. Harbin, 279 Ala.
237, 184 So. 2d 145 (1966); Abel v. Hadder, 404 So.
2d 64 (Ala. Civ. App. 1981). The parent seeking the
custody change must show not only that she is fit,
but also that the change of custody 'materially
promotes'•the child's best interest and welfare.
"....
"We have examined the record carefully and
conclude that the parties are equally capable of
taking care of the child, and that both would
provide her with a nurturing, loving home. The most
that the mother has shown is that her circumstances
have improved, and she is now able to provide for
the child in the same manner in which the
grandparents have been providing for her. She failed
to show that changing the custody materially
promotes the welfare and best interest of the
child."
455 So. 2d at 866.
The undisputed facts before us indicate not only that the
father has stabilized his life and remarried and that both the
maternal grandmother, on the one hand, and the father and
stepmother, on the other, would provide caring, stable homes
for the child, but also that a change in custody would
"materially promote" the child's best interest and welfare.
Those facts include, but are not limited to, the following: 1)
10
0
1150071
The father has an established paternal relationship with the
child; 2) the child has developed a strong relationship with
the stepmother, who has acted as a surrogate mother to the
child because of the general lack of involvement of the
child's birth mother in the child's life; 3) the child has
enjoyed being a big sister to her half brother; and 4) the
father and stepmother appear to offer the child a more active
and involved home life. Moreover, there appear to be other
facts, in addition to the four mentioned above, that would
further distinguish this case from McLendon: 1) While both a
grandfather and a grandmother were present to raise the child
in McLendon, in the present case, there is only one
grandparent -- the maternal grandmother –- who is functioning
in a single-parent role; 2) the mother in McLendon had
infrequent periods of visitation with the child, but the
father in this case has consistently followed his visitation
schedule; and 3) the mother in McLendon essentially kidnapped
the child from the grandparents, but no similar fact is
present here.
For the Court of Civil Appeals to reweigh the evidence
and to assume it knows better than the trial judge, who heard
11
1
1150071
and observed the witnesses in this case, violates the ore
tenus rule and is contrary to our established precedent. In
this case, the welfare of a minor child is at stake, and,
according to the juvenile court and the guardian ad litem
appointed by the court to protect the minor child, the best
interest of the minor child will not be served by leaving the
child with the maternal grandmother. I would not disturb the
juvenile court's ruling.
12
2 | November 25, 2015 |
43e98742-3aea-4f22-859b-5a05138c1813 | Bearden v. Ellison | 560 So. 2d 1042 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 1042 (1990)
Clifford BEARDEN and Mary Grace Bearden
v.
Clarence ELLISON and Lillian Ellison.
88-1291.
Supreme Court of Alabama.
March 16, 1990.
J. Michael Joiner of Joiner and Kramer, Alabaster, for appellants.
J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.
HOUSTON, Justice.
This appeal involves a boundary line dispute between two coterminous landowners. We affirm.
After a thorough review of the record and the briefs in this case, we find that a presentation of the facts is unnecessary to resolve the issue presented and that a recitation of the facts would not aid the Bench and the Bar in any way.
*1043 The issue before us is whether there was sufficient evidence from which the trial court could find that Clarence and Lillian Ellison (referred to in the trial court's order as "Plaintiffs") adversely possessed the disputed strip of property adjacent to the property owned by Clifford and Mary Grace Bearden (referred to in the trial court's order as "Defendants").
The trial court's order reads as follows:
"The Plaintiffs or their attorneys, shall within forty five (45) days from today's date, mark the said line by placing on the North end, and on the South end (adjacent to Shelby County Highway # 52 right-of-way), permanent markers, and shall select a surveyor to survey the said fence line. The Plaintiffs or their attorneys shall then report to the Court in writing concerning their actions, and present the said survey and surveyor's report, and the Defendants will have thirty (30) days from that date to object to the placement of markers and boundary line survey. Upon report, presentation of survey, and expiration of time for objection, the Court will enter a final order establishing the survey description of the boundary line between the parties. The cost of said survey shall be taxed as a part of the court costs in this action, and court costs shall be divided equally between the Plaintiffs and Defendants."
Where a trial court hears ore tenus testimony, as in this case, its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous. See City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala. 1989); King v. Travelers Ins. Co., 513 *1044 So. 2d 1023 (Ala.1986); Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986); see, also, Meeks v. Hill [1990] 557 So. 2d 1238 (Ala. 1990). The trial court's judgment will be affirmed if there is credible evidence to support the judgment. City of Birmingham v. Sansing Sales of Birmingham, Inc., supra; see, also, American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989). Furthermore, where the trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment unless such findings would be clearly erroneous. See Robinson v. Hamilton, supra. The presumption of correctness is particularly strong in boundary line disputes and adverse possession cases, because the evidence in such cases is difficult for an appellate court to review. Seidler v. Phillips, 496 So. 2d 714 (Ala.1986); Wallace v. Putnam, 495 So. 2d 1072 (Ala.1986); Drennen Land & Timber Co. v. Angell, 475 So. 2d 1166 (Ala.1985); May v. Campbell, 470 So. 2d 1188 (Ala.1985).
A boundary line dispute is subject to a unique set of requirements that is a hybrid of the elements of statutory adverse possession and adverse possession by prescription. See Robinson v. Hamilton, supra. In a boundary line dispute, coterminous landowners may alter the boundary line between their tracts by agreement plus possession for ten years. See Robinson v. Hamilton, supra; see, also, Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616 (Ala.1980).
In Carpenter v. Huffman, 294 Ala. 189, 191, 314 So. 2d 65, 67 (1975), Justice Jones summarized the applicability of our adverse possession statute (Ala.Code, 1975, § 6-5-200) as it relates to coterminous landowners:
Quoted with approval in Mardis v. Nichols, 393 So. 2d 976, 977 (Ala.1981); in Robinson v. Hamilton, supra, at 10; and in Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala.1989).
In an adverse possession case, such as this, the claimant must prove by clear and convincing evidence that his possession was hostile, notorious, open, continuous, and exclusive for a 10-year period. Mardis v. Nichols, supra; see Seidler v. Phillips, 496 So. 2d 714 (Ala.1986); Lilly v. Palmer, 495 So. 2d 522 (Ala.1986); see, also, Brown v. Alabama Great Southern R.R., supra; Sims v. Vandiver, 504 So. 2d 250 (Ala.1987). While statements of intent may be entitled to consideration by the trial court, it is primarily the acts of the adverse claimant that a trial court must look at to determine objectively whether the claimant has exerted a claim of right to a disputed area openly and exclusively for ten years. Kubiszyn v. Bradley, 292 Ala. 570, 298 So. 2d 9 (1974).
"`To determine whether an adverse claimant's acts were "a sufficient indication to all the world that [he] claimed ownership of the property in question... we must look collectively to all the possessory acts of the claimant." Hurt v. Given, 445 So. 2d 549, 551 (Ala.1983). An adverse possessor need only use the land "in a manner consistent with its nature and characterby such acts as would ordinarily be performed by the true owners of such land in such condition." *1045 Hand v. Stanard, 392 So. 2d 1157 (Ala.1980).'"
Daugherty v. Miller, 549 So. 2d 65, 67 (Ala. 1989), quoting Drennen Land & Timber Co. v. Angell, supra, at 1172 (Ala.1985).
It is undisputed that the Ellisons obtained the property adjoining the Beardens' property by warranty deed in 1948. The Ellisons disputed any permissive use of the property and testified that the Beardens told them that the fence that separated the two properties was the boundary line of their property. The Ellisons presented numerous witnesses who testified that for approximately 40 years the Ellisons not only lived on the property in question but also cut timber, cultivated vegetable and flower gardens, grazed cattle, and cleared pasture land up to the barbed wire fence separating the two parcels of land.
It is undisputed that the Beardens erected the fence in its present location and have used only the property on their side of the fence. However, the Beardens disputed that they ever told the Ellisons that the fence was the boundary line and they argued that the Ellisons' use of the property was permissive.
The presence of a fence, which is an outstanding symbol of possession, coupled with normal acts of use in appropriation of the land, sufficiently satisfies the requirements of adverse possession. See Lilly v. Palmer, supra; W.T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So. 2d 763 (1957); see, also, Graham v. Hawkins, 281 Ala. 288, 202 So. 2d 74 (1967). The maintenance of a house, the cultivation of land and gardens, the pasturing of animals, and the mowing of fields are normal acts of use and serve as sufficient possessory acts to meet the requirements of adverse possession under the facts at issue in this case. Lilly v. Palmer, supra; see, James v. Mizell, 289 Ala. 84, 265 So. 2d 866 (1972); Cambron v. Kirkland, 287 Ala. 531, 253 So. 2d 180 (1971); see, also, Hurt v. Given, 445 So. 2d 549 (Ala.1983).
In the present case, the trial court, in holding that the Ellisons had adversely possessed the property on their side of the fence, found that the Ellisons had used that property as their own for more than 38 years preceding the filing of the complaint; that the Ellisons' use of the property was not permissive; and that the Ellisons and the Beardens had acknowledged and recognized the fence as the boundary line between the two parcels of property since the late 1940's. That finding is supported by the Ellisons' testimony and that of their witnesses.
Because those facts were disputed, we are bound by the ore tenus standard of review. Having read the testimony presented by the Beardens, which places the testimony of the Ellisons' witnesses in dispute and calls for resolution by the trier of fact, we hold that there is clearly more than sufficient evidence to uphold the trial court's finding that the Ellisons had "acquired title to all disputed property ... by adverse possession."
We have thoroughly reviewed all of the Beardens' arguments; and, after careful consideration of those arguments, we are persuaded that there was credible evidence from which the trial court could have reasonably inferred that the Ellisons' use of the property complied with the requirements of adverse possession.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | March 16, 1990 |
37bb3f6a-39d7-40ff-8035-d0c561d23560 | Kirkley v. Phillips | N/A | 1130812, 1130850 | Alabama | Alabama Supreme Court | REL:11/20/2015
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, 2015-2016
____________________
1130812
____________________
Karen Ann Kribel Kirkley, individually and as personal
representative of the Estate of B.J. Kirkley, deceased, et
al.
v.
Donna Jo Kirkley Phillips and Kirkley Limited Liability
Company
____________________
1130850
____________________
Donna Jo Kirkley Phillips and Kirkley Limited Liability
Company
v.
Karen Ann Kribel Kirkley, as personal representative of the
Estate of B.J. Kirkley, deceased, et al.
Appeals from Lee Circuit Court
(CV-11-900507)
BOLIN, Justice.
Karen Ann Kribel Kirkley, individually and as personal
representative of the estate of B.J. Kirkley ("Mr. Kirkley"),
deceased; Holly S. Muncie; and J. Alexander Muncie III
("Alex"), as trustee of the Karen Ann Kribel Kirkley
Testamentary
Trust
(hereinafter
sometimes
referred
to
collectively as "the estate plaintiffs"), appeal from the Lee
Circuit Court's March 7, 2014, "order regarding granting of
new trial" in favor of Donna Jo Kirkley Phillips and Kirkley
Limited Liability Company ("Kirkley LLC") (appeal no.
1130812). Donna Jo and Kirkley LLC cross-appeal from the same
order, but have also filed a motion to dismiss the appeal
filed by the estate plaintiffs on the basis that the March 7,
2014, order is not a final order and that the monetary
judgment in the case has been satisfied (appeal no. 1130850).
The motion to dismiss was submitted for consideration with the
merits of the appeals. Because we conclude that the March 7,
2014, order is not a final order, the appeals are dismissed.
See Rule 54(b), Ala. R. Civ. P.
2
1130812, 1130850
I. Facts and Procedural History
These appeals are the result of a family dispute that
occurred following the death of Mr. Kirkley on July 9, 2011,
concerning his will and his interest in Kirkley LLC. The
individuals involved in the dispute are: Mr. Kirkley's widow,
Karen; Karen's daughter, Holly; Holly's husband, Alex, the
trustee
of
Karen's
testamentary
trust;
Mr.
Kirkley's
daughter,
Donna Jo; Donna Jo's husband, Keith William Phillips; Mr.
Kirkley's daughter, Lisa Kirkley Thompson; and Mr. Kirkley's
son, Steven Randall Kirkley.
Kirkley LLC was formed on November 7, 1995; the operating
agreement for the limited liability company was adopted the
same day. The members of Kirkley LLC were Mr. Kirkley, who
owned a 74.11968 interest in the company; Donna Jo, who owned
a 13.44016 percent interest; and Keith, who owned a 12.44016
percent interest. Kirkley LLC's sole asset is a one-third
interest in Ridgewood Village Mobile Home Park located in
Auburn.
On October 20, 2011, Mr. Kirkley's will was admitted to
probate, and Karen was appointed personal representative of
his estate. Mr. Kirkley's will provided that his interest in
3
1130812, 1130850
Kirkley LLC was to flow through his estate to several
beneficiaries, including Karen, Holly, Lisa, and Steven. The
bequests to Karen, Lisa, and Steven were made via testamentary
trusts. Holly was to receive her bequest outright. Although
Mr. Kirkley purported to dispose of his interest in Kirkley
LLC through his will, the operating agreement for Kirkley LLC
("the operating agreement") provided that, in the event of a
death of a member, the surviving members had the option of
continuing the company by paying the fair market value of the
deceased
member's
membership
interest
to
the
deceased
member's
estate within 90 days of the deceased member's death.
Specifically, Section 12.4 of operating agreement states:
"(C) In the event of the death of a Member, the
surviving members shall have the following option
based on unanimous consent of all the surviving
members:
"(i) Continue the Limited Liability Company by,
within ninety (90) days, causing the value of the
Company to be established by an appraisal of the
Company's property by an independent licensed
appraisal agency and an audit of the Company's books
and records by a certified public accountant to
determine the fair market value of the deceased
Member's membership interest. The fair market value
of the deceased Member's membership interest shall,
within ninety days, be paid to the estate of the
deceased Member by the surviving Members who shall
then own all of the assets and liabilities of the
Company."
4
1130812, 1130850
After Mr. Kirkley died, Donna Jo and Keith (hereinafter
referred to as "the Phillipses") sought to exercise their
option to purchase Mr. Kirkley's interest and to continue
Kirkley LLC. Specifically, the Phillipses delivered to the
estate a "Notice of Exercise of Option to Purchase"; they
obtained an appraisal and an audit of the books and records of
Kirkley LLC as of the date of Mr. Kirkley's death; they
provided to the estate the valuation and audit, which
represented that the fair market value of Mr. Kirkley's
interest in Kirkley LLC was $540,000; they filed with the Lee
County Probate Court on October 7, 2011, a "Petition to
Receive Tender of Option Price"; and they delivered to the
probate court a $540,000 cashier's check made payable to the
estate, requesting that the court hold the check "until [Mr.
Kirkley's] Will is admitted to probate and a personal
representative is appointed for the [e]state."
On October 20, 2011, Karen, individually and as personal
representative of the estate, filed a complaint, seeking a
judgment determining, among other things, the fair market
value of Mr. Kirkley's interest in Kirkley LCC at the time of
his death. The complaint named as defendants: the Phillipses;
5
1130812, 1130850
Holly; Alex, as the trustee of Karen's testamentary trust;
fictitious party "A" as the trustee of the Lisa Kirkley
Thompson Testamentary Trust; and fictitious party "B" as the
trustee of the Steven Randall Kirkley Testamentary Trust.1
Holly and Alex were subsequently realigned as plaintiffs.
On November 7, 2011, the Phillipses filed an answer and
a counterclaim (1) asserting a claim of breach of contract;
(2) seeking a judgment declaring that they had tendered and
paid the estate the fair market value of Mr. Kirkley's
interest in Kirkley LLC on a timely basis; and (3) seeking
specific performance of the operating agreement, i.e., an
order directing the estate to perform its obligations under
the operating agreement, including its obligation to pay to
the Phillipses their costs, expenses, and reasonable attorney
fees. The Phillipses subsequently filed an additional
counterclaim for attorney fees pursuant to the Alabama
Litigation Accountability Act, § 12–19–270 et seq., Ala. Code
1975 ("the ALAA").
At the time the initial complaint was filed, no trustee
1
had been named for Lisa and Steven's testamentary trusts.
Donna Jo was subsequently appointed trustee of both trusts.
6
1130812, 1130850
On December 4, 2012, the estate plaintiffs filed an
amended complaint, naming additional defendants, including
Kirkley LLC, and asserting additional legal claims. The
complaint also sought a judgment declaring, among other
things, the rights and duties of the parties pursuant to the
provisions of Mr. Kirkley's will as opposed to the operating
agreement.2
On October 31, 2013, the trial court entered an order
setting out the equitable claims asserted by the parties:
"There are several non-jury claims pending,
including: various claims for declaratory judgment
by [the estate plaintiffs]; a claim for declaratory
judgment, specific performance, and counterclaim
against [the estate plaintiffs] for fees and costs
under the [ALAA] on behalf of Kirkley LLC and [the
Phillipses]; and a claim for declaratory judgment by
[the trustee] for the Lisa and Steven Kirkley Trusts
[i.e, asserting that the filing of the estate
plaintiffs' amended complaint violated the in
terrorem clause of Mr. Kirkley's will]."
On January 15, 2013, the Lisa Kirkley Thompson
2
Testamentary
Trust
and
the
Steven
Randall
Kirkley
Testamentary
Trust ("the trusts") filed a counterclaim, seeking a judicial
determination
that
the amended
complaint
initiated
a
proceeding that would prevent the provisions of Mr. Kirkley's
will from being carried out in violation of the in terrorem
clause contained in the will, thus revoking the benefits
provided in the will to Karen and Holly. On May 1, 2013, the
trusts filed a second counterclaim, alleging claims of breach
of confidential relationship, breach of fiduciary duty, and
conversion and demanding an accounting. The trusts are not
parties to these appeals.
7
1130812, 1130850
On November 5, 2013, the case proceeded to trial, at
which time the trial court sought to separate the legal claims
from the equitable claims. Before the case was submitted to
the jury on the legal claims, counsel for the estate
plaintiffs decided to proceed only on behalf of Karen, as
personal representative of Mr. Kirkley's estate, and to
dismiss "[a]ny and all claims" against Keith. The trial court
also entered a judgment as a matter of law in favor of the
estate plaintiffs as to the breach-of-contract claim asserted
by the Phillipses. The trial court then charged the jury on
the claims asserted by the estate plaintiffs alleging breach
of fiduciary duty and wantonness, and also erroneously
charged
the jury as to a breach-of-contract claim against the
Phillipses, because such a claim was never pleaded by the
estate plaintiffs.
On November 8, 2013, the jury returned a verdict in favor
of the estate, awarding it $277,500 in compensatory damages
and $700,000 in punitive damages. Following the entry of the
verdict, the estate filed, among other things, a motion to tax
costs; it also sought an award of prejudgment interest and an
award of attorney fees and costs pursuant to the operating
8
1130812, 1130850
agreement.
Donna
Jo
and
Kirkley
LLC
filed
various
3
postjudgment motions, including a motion for a new trial. The
trial court conducted a hearing on the pending posttrial
motions, including a Hammond/Green Oil hearing.
4
On March 7, 2014, the trial court entered an "order
regarding granting of new trial," which states, in pertinent
part:
"The parties appeared before this Court on
February 13, 2014, regarding [Donna Jo and Kirkley
LLC's] motion for a new trial. Hon. Davis
Whittelsey and Hon. Jonathan Corley appeared on
behalf of the plaintiff, Karen Kirkley, as personal
representative of the Estate of B.J. Kirkley. Hon.
Joseph Dean, Jr., Hon. Melanie Atha and Hon. Roy
Crawford appeared on behalf of the defendants, Donna
[Jo] Phillips and Kirkley LLC. The jury claims
against Keith Phillips were voluntarily dismissed by
[the estate plaintiffs] prior to submission of the
case to the jury for consideration of the verdict.[5]
The operating agreement provides that "[i]n connection
3
with any litigation, including appellate proceedings, arising
out of or under this Agreement, the prevailing party in such
litigation shall be entitled to recover reasonable attorneys'
fees and costs from the losing party."
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
4
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).
The trial court noted in a footnote in its order that
5
"Keith Phillips was sued in his capacity as a Member of
Kirkley LLC" and that "[t]he defense has asserted that [the
estate plaintiffs] dismissed all claims against Keith at
trial, including all equitable issues. The Court makes no
ruling on this issue for the purposes of this Order."
9
1130812, 1130850
"Presiding over this particular trial was
problematic for the court. The case has included at
least a dozen litigants, multitudes of legal and
equitable claims, and a flurry of pleadings and
motions. The interaction between the attorneys
trying the case can conservatively be described as
heated. The court made a cognizant attempt,
following a series of lengthy hearings, to limit the
issues submitted to the jury to those with
substantive merit. However, the verdict in this
case demonstrates to the court that its efforts to
uncloud
the
main
issues
for
the
jury
were
unsuccessful. The defense raised multiple grounds
for a new trial in its motion. While the court does
not discount the potential validity of some of these
grounds, the court finds that the points discussed
below are the most significant.
"A. New Trial
"One point raised in [Donna Jo and Kirkley
LLC's] motion for a new trial was there was no claim
for breach of contract made by the [estate
plaintiffs] against [Donna Jo and Kirkley LLC].
Accordingly, [Donna Jo and Kirkley LLC] assert that
it was error for the jury to award any damages for
breach of contract. Upon examination of the
pleadings and the transcript in this case, the court
agrees that the claim for breach of contract was
submitted to the jury without being pled in the
final restated complaint and without sufficient
evidentiary
support
during
the
trial.
Unfortunately, neither party brought this erroneous
instruction to the Court's attention at the time the
jury charge was given.
"Additionally, the court agrees that the
evidence was insufficient to support a finding of
wanton conduct on the part of Donna [Jo] Phillips.
Defense counsel did move for judgment as a matter of
law at trial and renewed the motion subsequent to
10
1130812, 1130850
the verdict. Judgment as a matter of law was due to
be granted on this issue.
"Because the verdict reached in this case was
general in nature, the court cannot ascertain
whether the assessment of damages was based on a
good count or a bad count. Furthermore, the record
indicates on page 1626 that they jury may have
considered the breach of contract claim when,
subsequent to instruction, they were brought back
into the courtroom with the following question: 'If
we find the contract was breached, does the Will
take precedence?' Due to the confusion created by
introduction of this issue to the jury, the court is
of the opinion that a new trial is due to be
granted.
"The court reserved the decision of a number of
equitable issues for after the jury trial. In
hindsight, this was a flawed approach as the jury
was permitted to hear a vast amount of evidence
outside the scope of what it was ultimately asked to
consider. For example, the court did not make a
binding, pre-trial ruling as to whether or not
Section 12.4 of the Kirkley LLC operating agreement
was clear or ambiguous. The effect of this was that
the parties spent a great deal of time calling
witnesses who could offer parol evidence as to the
intention of [Mr. Kirkley], including the gifts that
were made in his will. Therefore, in essence, the
trial became a dispute over the will of [Mr.
Kirkley] and not about the operating agreement of
Kirkley LLC. However, the will was wholly
irrelevant to the claims that the defendants' acts
pursuant to the operating agreement were wanton or
[that they had] breached a fiduciary duty. The
prejudicial nature of this evidence further adds
support to the court's opinion that a new trial is
due to be granted.
"Therefore, [Donna Jo and Kirkley LLC's] motion
for a new trial is granted on the following grounds:
11
1130812, 1130850
"(1) The verdict failed to do justice between the
parties;
"(2) The verdict was excessive so as to demonstrate
bias, passion, prejudice, corruption or other
improper motive; and
"(3) The verdict was contrary to the law and the
evidence.
"....
"B. Equitable Issues
"The parties have filed several declaratory
judgment actions in this case. The Court has
previously held that [Mr. Kirkley's] assignment of
his one-third interest in Ridgewood Village to
Kirkley LLC was valid, and that the Estate does not
hold
any
interest
in
the
Ridgewood
Village
partnership. Thus, the Court held that Ridgewood
Village has continuously met its obligations by
paying distributions to Kirkley LLC. It has no
obligations with respect to the Estate of [Mr.
Kirkley]. The court has also held that the
transfers of interest in Kirkley LLC made by [Mr.
Kirkley] during his lifetime to [the Phillipses] are
valid.
"1. The Kirkley LLC Operating Agreement
"Going
forward
with
the
equitable
issues
in
this
case, the court finds that the Kirkley LLC operating
agreement is not ambiguous. ...
"2. The Option to Purchase
"The parties have also asked this court to
declare whether the option was exercised under the
terms of the operating agreement. The court heard
testimony from several witnesses at trial who
discussed contested issues such as licensure and
12
1130812, 1130850
fair market value. However, the plain language of
the operating agreement does not place any emphasis
on these terms when describing the mechanism by
which the option can be exercised. Section 12.4(B)
states that '[t]he option to purchase granted
pursuant to this Subsection 12.4(B) shall be
exercised by giving written notice thereof to the
Member in Default and the other Members within the
foregoing described sixty (60) day period in which
the option to purchase may be exercised.' ... The
parties do not contest that written notice was given
within a sixty-day period to Karen Kirkley,
executrix of [Mr. Kirkley's] estate, on August 23,
2011, by being hand-delivered to her mailbox. This
court finds that providing notice on August 23,
2011, was timely under the terms of the operating
agreement as it was within 60 days of [Mr.
Kirkley's] death on July 9, 2011. Therefore, [the
Phillipses] did exercise the option to purchase as
directed under the terms of the operating agreement.
"3. Right to Kirkley LLC Income Distributions
"One of
the
remaining issues
between
the
parties
is when the right to receive [Mr. Kirkley's]
membership distributions was transferred from his
estate to [the Phillipses]. Subsection 12.4(C)(i)
of the operating agreement states that '[t]he fair
market value of the deceased Member's membership
interest shall, within ninety (90) days, be paid to
the estate of the deceased Member by the surviving
Members who shall then own all of the assets and
liabilities of the Company.' The parties do not
contest that a check payable to the Estate of
$540,000 was given to the Probate Court of Lee
County within 90 days of [Mr. Kirkley's] death.
What they do contest is whether the amount to be
valued was a controlling, full membership interest
or a non-controlling, mere economic interest, and
they contest whether the $540,000 that was tendered
was
the
fair
market
value
under
either
circumstances.
13
1130812, 1130850
"... [T]he Court agrees that ownership of [Mr.
Kirkley's] interest vested in [the Phillipses] when
[they]
delivered
written
notice
pursuant
to
[Section] 12.4(B) of the operating agreement. This
finding further supports the court's decision to set
aside the jury verdict and grant a new trial, given
that the compensatory damages awarded stemmed from
the lack of monthly income distributions by Kirkley
LLC to the estate. These damages, as well as the
punitive damages that followed, cannot stand because
the estate had no interest in Kirkley LLC and no
right to distributions subsequent to exercise of the
option.
"4. Valuation of Kirkley LLC Membership
Interests
"The remaining issues between the parties
concern valuations of the interest which [the
Phillipses] elected to purchase. Before the court
can value the interest, it must resolve the issue as
to whether the interest being valued is a full
membership or partial membership interest. In other
words, is the membership being valued on the basis
of voting rights or simply a right to economic
distributions?
"It is undisputed that [Mr. Kirkley] owned a
74.11968% full membership interest, with voting
rights
and
the
right
to
receive
economic
distributions, on the last day he was alive.
According to the language of Section 12.4(B), the
'Defaulted Interest' is what is being purchased.
The 'Defaulted Interest' is that which was in
existence 'immediately prior to the occurrence of
the Activating Event.' The 'Activating Event' was
[Mr. Kirkley's] death. The operating agreement also
states that the interest that was in existence
'immediately prior to the occurrence of the
Activating Event' is 'the entire interest in the
Company of such Member.' Therefore, [Mr. Kirkley's]
'entire interest' in Kirkley LLC was that 74.11968%
14
1130812, 1130850
full
membership
interest.
Furthermore,
the
operating agreement does not state that the interest
to be valued is that which may belong to the estate
in the event [the Phillipses] chose not to exercise
the option–-in other words, merely an economic
interest with no voting rights. In fact, the
operating agreement does not use the term 'economic
interest.' Therefore, the court finds that the
plain language of Section 12.4(B) of the operating
agreement states that the interest to be valued is
the 'entire interest' or full membership of [Mr.
Kirkley] in Kirkley LLC.
"....
"... Therefore,
the
final,
fair market
value
for
[Mr. Kirkley's] membership interest is $1,102,639.
[6]
Given that [the Phillipses] bound themselves to pay
the fair market value by exercising their option to
purchase [Mr. Kirkley's] shares, the estate is due
a judgment in the amount of $1,102,639.
"In making this equitable finding as a result of
the declaratory judgment claims of the parties, the
court finds that the estate is not entitled to
further interest on the judgment–-particularly
because no breach of contract action was pled by the
[estate
plaintiffs].
Any
garnishment
action
previously initiated by [the estate] will need to be
re-filed if it is based upon the jury verdicts
announced at trial as they have been set aside. If
[counsel for Donna Jo and Kirkley LLC] would like to
be heard regarding a claim of exemption or motion to
stay execution of judgment, those motions will also
need to be re-filed or amended. Of course, the
court orders that the $540,000 check made payable to
The trial court performed its own valuation of the fair
6
market value of Mr. Kirkley's 74.11968% membership interest
based on the testimony of the experts who testified at the
trial.
15
1130812, 1130850
the estate and being held by the probate court of
Lee County be released to the estate without further
delay. However, execution is stayed for a period of
90 days with respect to any portion of the judgment
which is not satisfied by the $540,000 check.
"5. The Will of [Mr. Kirkley]
"The plaintiff has filed a declaratory judgment
action which asks this court to determine the
rights, duties and obligations of the parties
pursuant to the provisions of the will of [Mr.
Kirkley]. This is a very broad request, and the
only issue apparent to this court is whether the
operating agreement of Kirkley LLC or the will
governs disposition of [Mr. Kirkley's] Membership
Interest. From the testimony of witnesses at trial
such as [Donna Jo]; [Karen], Robert Petty [and]
Nancy Davis [attorneys for Mr. Kirkley during his
life], and [Alex], it appears that [Mr. Kirkley]
mistakenly believed that he could give away his
interests of the LLC free from any encumbrances.
While the Court can appreciate arguments regarding
what his intent may have been, it does not change
the fact that a testator cannot outright devise a
gift that he does not outright own. Therefore, this
court finds that any devise of [Mr. Kirkley's]
interest in Kirkley LLC through his will is clearly
subject to [the Phillipses'] right to exercise their
option to purchase pursuant the LLC's operating
agreement. Since the option has been exercised, the
will beneficiaries will have rights to the proceeds
of this sale in the percentages dictated by the
terms of the will. Even if the option were not
exercised, the will beneficiaries' interests would
still be subject to restrictions as set forth in
12.2 and 12.4(C)(ii-iv) of the operating agreement.
"C. Remaining Claims
"Any post-judgment motions filed pursuant to
Rules 50 or 59 of the Alabama Rules of Civil
16
1130812, 1130850
Procedure which have not been specifically addressed
or rendered moot by granting a new trial are deemed
denied. The parties are permitted to file a
restated complaint, answer or counterclaim within 60
days if there are claims or issues that they would
still like to litigate. No additional claims or
parties may be added. Each claim should cite to the
date of the original pleading in which it can be
found. If a right to a jury trial exists for a
particular claim, a renewed jury demand should be
filed."
The trial court did not certify its March 7, 2014, order
as final pursuant to Rule 54(b), Ala. R. Civ. P. On May 1,
2015, this Court, in both appeals, remanded the cause for a
determination as to whether the March 7, 2014, order was a
final order that would support the appeals. This Court
subsequently learned that the case had been reassigned from
Judge Jacob A. Walker III to Judge Ben Fuller because Judge
Walker had recused himself. Because of the complexity of the
case, this Court granted Judge Fuller additional time in which
to respond to our remand order. On July 16, 2015, Judge Fuller
filed with this Court an order stating that "there being no
just reason for additional delay this Court's order of March
7, 2014, is certified as final pursuant to the provisions of
Rule 54(b), Alabama Rules of Civil Procedure."
II. Rule 54(b), Ala. R. Civ. P.
17
1130812, 1130850
These appeals challenge the merits of the March 7, 2014,
order of the Lee Circuit Court granting a new trial. As
previously indicated, Donna Jo and Kirkley LLC also challenge
the finality of the March 7, 2014, order, in part, on the
basis that the order does not adjudicate all the claims
between all the parties. This Court does not address the
merits of these appeals because we conclude that the trial
court's Rule 54(b) certification of the March 7, 2014, order
as final was improper and, thus, that the appeals are due to
be dismissed.
With regard to the finality of judgments adjudicating
fewer than all claims in a case, Rule 54(b) provides:
"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."
In Loachapoka Water Authority, Inc. v. Water Works Board
of Auburn, 74 So. 3d 419, 422–23 (Ala. 2011), this Court
stated:
"'If a trial court certifies a judgment as final
pursuant to Rule 54(b), an appeal will generally lie
18
1130812, 1130850
from that judgment.' Baugus v. City of Florence,
968 So. 2d 529, 531 (Ala. 2007) (emphasis added).
However, this Court will not consider an appeal from
a judgment certified as final under Rule 54(b) if it
determines that the trial court exceeded its
discretion in concluding that there is 'no just
reason for delay.' Rule 54(b); see also Scrushy v.
Tucker, 955 So. 2d 988, 996 (Ala. 2006) ('Whether
there was "no just reason for delay" is an inquiry
committed to the sound discretion of the trial
court, and, as to that issue, we must determine
whether the trial court exceeded its discretion.').
"A trial court exceeds its discretion in
determining that there is 'no just reason for delay'
when '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, 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)). See also Centennial Assocs., Ltd.
v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009) ('"It
is uneconomical for an appellate court to review
facts
on
an
appeal
following
a
Rule
54(b)
certification that it is likely to be required to
consider again when another appeal is brought after
the [trial] court renders its decision on the
remaining claims or as to the remaining parties."'
(quoting 10 Charles Alan Wright et al., Federal
Practice and Procedure § 2659 (1998)))."
III. Discussion
A. Miscellaneous Matters
Initially, we note that the parties refer to the March 7,
2014, order as having two parts, i.e., the new-trial part
19
1130812, 1130850
(addressing the merits, i.e., the legal claims) and the
declaratory-judgment part (addressing the equitable claims).
We address only the declaratory-judgment aspect of the March
7, 2014, order concerning the equitable claims Donna Jo and
Kirkley LLC assert remain pending for adjudication in the
trial court.
Secondly, it is unclear whether Keith is a party subject
to the declaratory-judgment part of the March 7, 2014, order.
The estate plaintiffs assert that they dismissed only the
legal claims against Keith, while Keith asserts in a restated
counterclaim that the estate plaintiffs dismissed "[a]ny and
all claims" against him, i.e, both legal and equitable claims.
The trial court made no definitive ruling as to whether Keith
remained a party as to the declaratory-judgment part of the
order. Rather, the trial court noted in the March 7, 2014,
order that it declined to make any ruling on the issue.
Specifically, the order states that "[t]he jury claims
against
Keith Phillips were voluntarily dismissed by [the estate
plaintiffs] prior to the submission of the case to the jury
for consideration of the verdict." The order contains a
footnote in which the trial court added that "[t]he defense
20
1130812, 1130850
has asserted that [the estate plaintiffs] dismissed all
claims
against Keith at trial, including all equitable issues" and
stated: "[T]he Court makes no ruling on this issue for the
purposes of this Order." Although we reference Keith
throughout this opinion, this Court, too, makes no ruling on
the issue whether he remains a party for purposes of the
declaratory-judgment part of the March 7, 2014, order.
Rather, we conclude that any ruling on that issue is reserved
for the trial court.
The parties also dispute whether Holly, individually, and
Karen's testamentary trust, are parties for purposes of the
declaratory-judgment part of the March 7, 2014, order. As
previously indicated, before the case was submitted to the
jury, counsel for the estate plaintiffs -- i.e., Karen,
individually and as personal representative of the estate;
Holly; and Alex, as trustee of Karen's testamentary trust --
decided to proceed only on behalf of Karen, as personal
representative of Mr. Kirkley's estate. Karen, as personal
representative, maintains that Holly, individually, and Alex,
as trustee of Karen's testamentary trust, are proper parties
to the appeal from the declaratory-judgment part of the March
21
1130812, 1130850
7, 2014, order because, she says, that part of the order
states that "the will beneficiaries will have rights to the
proceeds of this sale in the percentages dictated by the terms
of the will." We agree. Karen and Holly were beneficiaries
under Mr. Kirkley's will. The bequest to Karen was made via
a testamentary trust, of which Alex is the trustee, while the
bequest to Holly was made outright. Because the trial court
addressed, in the declaratory-judgment part of the order, an
issue
pertaining
to
the
will
beneficiaries,
those
beneficiaries were entitled to appeal from that part of the
order.
Lastly, we note that, since the parties filed these
appeals,
the
trial
court
has
continued
to
exercise
jurisdiction over the proceedings. For example, Judge Walker
entered an order, dated June 5, 2014, granting Donna Jo and
Kirkley LLC's "Petition to Receive Tender of Remainder of
Option Price," directing the circuit clerk "to receive,
deposit and hold the proceeds of the [$562,639 check] until
the estate acknowledges its obligations to fully fund the
testamentary trusts of Steven Randall Kirkley and
Lisa Kirkley
Thompson, and offers proof that same has been accomplished;
22
1130812, 1130850
thereafter, to direct that $562,639 to the estate, enter a
satisfaction of judgment on the record." On June 6, 2014,
Karen, as personal representative of the estate, filed in the
trial court a "Notice of Non-Acceptance of Conditional Tender
of Remainder of Option Price and Motion to Compel Responses to
Post-Judgment Discovery Requests," in which she argued, among
other things, that Judge Walker had no jurisdiction to enter
the June 5, 2014, order. Donna Jo and Kirkley LLC also filed
in the trial court a "Motion to Quash Processes of
Garnishment."
Judge Walker entered an "order
setting
hearing"
for July 7, 2014, in which he temporarily stayed the issuance
of garnishments filed by the estate and instructed the parties
to be prepared to address at the hearing certain issues
pertaining to the garnishments –- including some of the very
issues that are the subject of these appeals, i.e., whether
the declaratory-judgment part of the March 7, 2014, order is
a final order and whether Keith remains a party for purposes
of the declaratory-judgment part of the order.
However,
before
the hearing, Judge Walker recused himself from the case, and
the hearing never occurred. On February 3, 2015, Donna Jo and
Kirkley LLC filed in this Court a "Motion For Temporary
23
1130812, 1130850
Remand," in which they stated that Judge Fuller had granted
discovery in the trial court, which resulted in the production
of documentation relevant to whether the monetary
judgment had
been satisfied; Donna Jo and Kirkley LLC request in the motion
that this Court temporarily remand the cause to allow the
trial court to determine whether the record on appeal should
be supplemented so that this Court can decide whether the
monetary judgment has been satisfied. As can be seen,
although Judge Fuller certified the March 7, 2014, order as
final in all respects, he continues to exercise jurisdiction
over certain aspects of the case, further evidence that the
March 7, 2014, order is not final in all respects.
B. The Trusts
As previously indicated (see note 2, supra), the Lisa
Kirkley Thompson Testamentary Trust and the Steven Randall
Kirkley Testamentary Trust ("the trusts") are not parties to
these appeals. However, the trusts filed a counterclaim below
in which they requested a judgment declaring that the claims
asserted by the estate plaintiffs in the amended complaint
violated Item XII of Mr. Kirkley's will, the in terrorem
clause, which states:
24
1130812, 1130850
"If any beneficiary under this Will shall
contest the probate or validity of this Will or any
provision thereof or shall institute or join in
(except as a party defendant) any proceeding to
contest the validity of this Will or to prevent any
provision thereof from being carried out in
accordance with its terms (regardless of whether or
not the contest or proceedings are instituted in
good faith and with reasonable cause), all benefits
provided for that beneficiary are revoked and those
benefits
shall
pass
to
the
non-contesting
beneficiaries or his or her issue in the proportion
that the share of the non-contesting residuary
beneficiary bears to the aggregate of the effective
shares of all of the non-contesting residuary
beneficiaries ...."
The trial court indicated in its October 31, 2013,
pretrial order that the trusts' in terrorem claim remained
pending. At the close of the evidence, the trial court also
acknowledged that the in terrorem claim was an equitable
claim. However, the March 7, 2014, order does not
definitively address the in terrorem claim. Donna Jo and
Kirkley LLC assert that that claim remains pending in the
trial court, while the estate plaintiffs assert that March 7,
2014, order disposed of the claim. The trial court noted in
the March 7, 2014, order that "the estate" has filed a
declaratory-judgment action asking the court to determine the
rights, duties, and obligations of the parties under the
provisions of Mr. Kirkley's will. The trial court noted that
25
1130812, 1130850
this was a broad request and that "the only issue apparent to
this Court" is whether the operating agreement or the will
govern the disposition of Mr. Kirkley's membership
interest
in
Kirkley LLC. Specifically, the trial court noted that a
testator "cannot outright devise a gift that he does not
outright own" and that any devise under the will was subject
to the Phillipses' right to exercise their option to purchase
Mr. Kirkley's membership interest pursuant to the operating
agreement. The trial court noted that because the Phillipses
had exercised their right, the will beneficiaries would have
rights to the proceeds of the sale in the percentages dictated
by the will. The estate plaintiffs contend that the trial
court's finding impliedly disposes of the trusts' in terrorem
claim. For purposes of this opinion, this Court makes no
ruling as to whether the March 7, 2014, order disposes of the
in terrorem claim, insofar as the trusts are not parties to
this appeal. Rather, we acknowledge only that the parties
dispute whether the March 7, 2014, order disposes of the claim
and that any ruling on that claim is reserved for the trial
court. As noted in one of the pleadings filed by Donna Jo and
Kirkley LLC, if the trusts are successful on their in terrorem
26
1130812, 1130850
claim, then Karen and Holly will have no claim to the proceeds
from the sale of Mr. Kirkley's former interest in Kirkley LLC,
a result clearly inconsistent with the trial court's ruling
that "the will beneficiaries will have rights to the proceeds
of this sale in the percentages dictated by the terms of the
will." And, "if the proceeds are distributed prior to a
decision on the in terrorem clause claim, Karen and Holly
could well receive benefits to which they are not entitled."
We note that if the trusts' counterclaim, the facts of which
are common to and/or intertwined with the merits of the appeal
and cross-appeal, remains pending in the trial court, this
Court could be faced with repeated appellate review, which is
disfavored. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892
So. 2d 354 (Ala. 2004) (noting that appellate review in
piecemeal fashion is not favored). As this Court has stated:
"'It is uneconomical for an appellate court
to review facts on an appeal following a
Rule 54(b) certification that it is likely
to be required to consider again when
another appeal is brought after the
district court renders its decision on the
remaining claims or as to the remaining
parties.
"'An appellate court also should not
hear appeals that will require it to
27
1130812, 1130850
determine questions that remain before the
trial court with regard to other claims.'
"(Footnotes omitted.)"
Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281
(Ala. 2009)(quoting 10 Charles Alan Wright et al., Federal
Practice and Procedure § 2659 (1998)). See also Loachapoka, 74
So. 3d at 424 (noting that "'[r]epeated appellate review of
the same underlying facts would be a probability in this
case,'" (quoting Smith v. Slack Alost Dev. Servs. of Alabama,
LLC, 32 So. 3d 556, 562 (Ala. 2009))), and Day v. Davis, 989
So. 2d 1118, 1121 (Ala. Civ. App. 2008)(stating that "[w]hen
claims 'are so interrelated that they should be adjudicated
simultaneously and not piecemeal,' a Rule 54(b) certification
is not appropriate. Bridges v. Bridges, 598 So. 2d 935, 936
(Ala. Civ. App. 1992)").
At the close of all the evidence, the parties also
addressed the trusts' claim for an accounting. The trial
court noted on the record: "I just think the better way to
handle it is I will probably just order an accounting."
Specifically, the trial court noted:
"I just think based on some of the answers, you
know, there is going to have to be some type of
limited accounting as to ... what's in these trust
28
1130812, 1130850
accounts and ... what's in the estate and what
passed ... directly [to Karen] based on rights of
survivorship."
Because the trial court clearly indicated its intent to order
some type of limited accounting posttrial, and because the
court's March 7, 2014, order does not specifically address the
trusts' demand for an accounting, this claim, too, appears to
remain pending in the trial court.
C. The Restated Counterclaim
The trial court's March 7, 2014, order permitted the
parties "to file a restated complaint, answer,
or
counterclaim
... if there are claims or issues they would still like to
litigate." (Emphasis added.) On May 6, 2014, Keith filed the
following restated counterclaim:7
"Pursuant to
the
Court's
[March
7,
2014,
order],
counterclaim plaintiff hereinafter enumerates his
claims and issues which remain pending for the
Court's consideration. Since the entry of the
order, counterclaim defendants have filed a Notice
of Appeal with the Alabama Supreme Court. While it
may be appropriate for the consideration of these
issues by the Court to be deferred until such time
as the appellate court has ruled on the issues on
appeal, this pleading is made in order to preserve
these issues as required by the order.
Donna Jo and Kirkley LLC imply in their brief to this
7
Court that Keith filed the restated counterclaim on behalf of
all the counterclaim plaintiffs, i.e., Donna Jo, Keith, and
Kirkley LLC.
29
1130812, 1130850
"1. Counterclaim plaintiff renews Count One of
Keith William Phillips' Counterclaim filed November
7,
2011
(Breach
of
Contract),
specifically
including, but not limited to, the demand for
legally allowable interest, costs, expenses and
reasonable attorney's fees (to which he is entitled
under Section 12.3 and Section 14.7 of the Operating
Agreement
of
Kirkley
LLC
(the
'Operating
Agreement')).
"2. Counterclaim plaintiff renews Count Two of
Keith William Phillips' Counterclaim filed November
7,
2011
(Declaratory
Judgment),
specifically
including, but not limited to, the demand that the
Court declare whether all relevant and material
obligations of the Operating Agreement have been
satisfied. This would include a demand that the
Court declare that Keith William Phillips is the
undisputed owner of 48.06803% of the estate's
74.11968% interest in Kirkley LLC-–35.62787%–-and
$259,567.36 (48.06803% of the $540,000 paid into the
Probate Court and withdrawn by the estate following
the court's order regarding granting of new trial
entered March 7, 2014) is the undisputed fair market
value and option price for such interest. Moreover,
[the Phillipses] assert that the obligations of the
estate to Keith William Phillips for attorneys' fees
and costs which he is entitled to under Section 12.3
and Section 14.7 of the operating agreement have
heretofore not been adjudicated by the court.
"3. Counterclaim plaintiff renews Count Three
of Keith William Phillips' Counterclaim filed
November
7,
2011
(Specific
Performance),
specifically including, but not limited to, his
demand for costs, expenses and reasonable attorney's
fees (to which he is entitled under Section 12.3 and
Section 14.7 of the operating agreement), and renews
his demand that the Court retain jurisdiction over
this
action
for
purposes
of
enforcing
the
declaratory judgment.
30
1130812, 1130850
"4. Counterclaim plaintiff renews Count Eight
of Keith William Phillips' Third Counterclaim filed
May 15, 2013 (Alabama Litigation Accountability
Action Complaint)."
D. The ALAA Claim
Donna Jo and Kirkley LLC assert that the counterclaim for
attorney fees under the ALAA remains pending for adjudication
in the trial court. Pursuant to the ALAA, a trial court must
assess attorney fees against a party who brings an action or
asserts a claim or defense that is "without substantial
justification." Ala. Code 1975, § 12–19–272(a). In Casey v.
McConnell, 975 So. 2d 384, 388-89 (Ala. Civ. App. 2007), the
Court of Civil Appeals explained:
"The ALAA provides that the court must award
attorney fees and costs as a part of its judgment on
the merits of the case; it does not create a new or
separate cause of action that can be brought after
a case is litigated and given a final adjudication
on the merits. Ala. Code 1975, § 12-19-270;
Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1201
(Ala. 2002). The language of the ALAA allows the
trial court to consider the outcome of proceedings
when making its determination as to whether a
party's
action
was
without
substantial
justification. Ala. Code 1975, § 12-19-273(7);
Gonzalez, 844 So. 2d at 1201; and Meek v.
Diversified Prods. Corp., 575 So. 2d 1100, 1103
(Ala. 1991). Thus, the trial court can hold a
separate hearing on an ALAA claim after the entry of
a final judgment on the merits provided that the
trial court specifically reserves jurisdiction to
hear the ALAA claim. Gonzalez, 844 So. 2d at 1201.
31
1130812, 1130850
Otherwise, a judgment that does not reserve
jurisdiction to hear the ALAA claim at a later date
puts an end to all controversies at issue, including
the ALAA claim. Gonzalez, 844 So. 2d at 1201-02; see
also Baker v. Williams Bros., Inc., 601 So. 2d 110,
112 (Ala. Civ. App. 1992)."
In this case, the initial trial judge entered a pretrial
order dated October 31, 2013, denying the estate plaintiffs'
motion to dismiss
"Donna
Phillips, Keith
Phillips, and Kirkley
LLC's counterclaim for fees and costs under the [ALAA]" and
noting that the claims remained pending. However, the trial
judge neither ruled on the ALAA claim in its March 7, 2014,
order nor expressly reserved jurisdiction to hear the claim at
a later date. Rather, the trial judge expressly permitted the
parties to file within 60 days of the March 7, 2014, order a
restated complaint, an answer, or a counterclaim addressing
any claims and/or issues that they would still like to
litigate; Keith reasserted the ALAA claim in his restated
counterclaim. Because the request for attorney fees under the
ALAA was made before the trial court entered its March 7,
2014, order, because the order permitted the parties to file
a restated complaint, answer, or counterclaim as to any claims
they still would like to litigate, because Keith filed a
restated counterclaim reasserting the ALAA claim, and because
32
1130812, 1130850
the trial judge who initially entered the order did not
certify the order as a final order under Rule 54(b), Ala. R.
Civ. P., we conclude that the initial trial judge, prior to
his recusal, impliedly reserved jurisdiction over the ALAA
claim so as to rule on that claim.
E. Attorney Fees and Costs Under the Operating Agreement
Finally, Donna Jo and Kirkley LLC assert that, although
the March 7, 2014, order addressed the claim seeking a
judicial
determination
that
the
Phillipses
had
satisfied
their
obligations under the operating agreement, the order does not
address the Phillipses' claim for specific performance, in
which they requested that the estate be ordered to
specifically perform its obligations under the operating
agreement –- including its obligation, as the losing party in
the litigation, to pay attorney fees and costs to the
prevailing party. Section 14.7 of the operating agreement
states:
"In connection with any litigation, including
appellate proceedings, arising out of or under this
Agreement, the prevailing party in such litigation
shall be entitled to recover reasonable attorneys'
fees and costs from the losing party."
33
1130812, 1130850
The operating agreement expressly provides that the
prevailing party in litigation shall be entitled to recover
attorney fees and costs from the prevailing party. The trial
court noted in the record posttrial that the claim for
attorney fees and costs under the operating agreement was
"reserved for another day." However, the March 7, 2014, order
does not address the claim. Donna Jo and Kirkley LLC maintain
that that claim remains pending in the trial court. We note
that the parties have not addressed the issue concerning how
an unresolved claim for attorney fees and costs provided for
under a contract not directly at issue affects the purported
finality of a judgment. In State Board of Education v.
Waldrop, 840 So. 2d 893, 899 (Ala. 2002)(citing Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 199–200 (1988)), this
Court stated that "a decision on the merits disposing of all
claims is a final decision from which an appeal must be timely
taken, whether a request for attorney fees remains for
adjudication." In Budinich, the United States Supreme Court
explained that, "[a]t common law, attorney's fees were
regarded as an element of 'costs' awarded to the prevailing
party ..., which are not generally treated as part of the
34
1130812, 1130850
merits judgment." 486 U.S. at 200 (citation omitted). The
Supreme Court further stated that "Courts and litigants are
best served by the bright-line rule, which accords with
traditional understanding, that a decision on the merits is a
'final decision' ... whether or not there remains for
adjudication a request for attorney's
fees attributable
to
the
case." 486 U.S. at 202-03. We further note, however, that
some Courts have distinguished Budinich on the basis that an
exception to the bright-line rule exists where attorney fees
are awarded pursuant to a contract. See, e.g., In re Porto,
645 F.3d 1294, 1300 (11th Cir. 2011)("We recognize that this
Court and others have held that when attorney's fees are
awarded pursuant to a contract or are computed as part of the
damages award, an order on the merits does not become final
and appealable
until the attorney's fees issue
is
resolved.");
Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v.
Medpartners, Inc., 312 F.3d 1349, 1355 (11th Cir. 2002)("In
this Circuit, a request for attorneys' fees pursuant to a
contractual clause is considered a substantive issue; and an
order that leaves a substantive fees issue pending cannot be
'final.'"); and Ierna v. Arthur Murray Int'l, Inc., 833 F.2d
35
1130812, 1130850
1472, 1476 (11th Cir. 1987)(noting that, "[w]hen the parties
contractually provide for attorneys' fees, the award is an
integral part of the merits of the case" and that, "[b]ecause
the parties provided in their agreement for costs and expenses
to be awarded to the prevailing party, the award is integral
to the merits"). Suffice it to say, this Court makes no
ruling on the issue whether the attorney fees provided for in
the operating agreement constitute an integral part of the
merits of this case or whether they are collateral thereto,
insofar as the parties have not briefed the issue. Rather, in
light of the entirety of our foregoing discussion, it is
abundantly apparent to this Court that this case does not
present the type of situation that Rule 54(b) was intended to
cover.
IV. Conclusion
The trial court certified the March 7, 2014, order as
final in all respects. However, we conclude that this case
does not present the type of situation that Rule 54(b) was
intended to cover, insofar as the trial court certified as
final claims that clearly remain pending in the trial court.
Additionally, the trial court failed to make any ruling in the
36
1130812, 1130850
order regarding whether Keith Phillips remains a party to the
equitable claims asserted in the proceedings, and, despite
certifying the order as final in all respects, the trial court
has continued to exercise jurisdiction over the case by
entertaining motions filed by the parties and conducting
additional discovery. For these reasons, we conclude that the
March 7, 2014, order is not a final appealable order and that
the trial court exceeded its discretion in determining that
there was no just reason for delay and in certifying the order
as final under Rule 54(b), Ala. R. Civ. P. Accordingly, the
appeals are dismissed. "A nonfinal judgment will not support
an appeal." Whitehurst v. Peak, 819 So.2d 611, 615 (Ala.
2001). See also Pavilion Dev., L.L.C. v. JBJ P'ship, 142 So.
3d 535, 542 (Ala. 2013) ("In light of the fact that the trial
court's order failed to address the claims of all the assorted
parties claiming an interest in the subject property, we can
reach no other conclusion but that the trial court exceeded
its discretion in certifying its judgment as final for
purposes of an immediate appeal.").
1130812 –- APPEAL DISMISSED.
1130850 –- APPEAL DISMISSED.
37
1130812, 1130850
Moore, C.J., and Murdock and Bryan, JJ., concur.
Main, J., concurs in the result.
38 | November 20, 2015 |
cfb78608-6fa8-4c98-b866-2051d81dfd59 | Ex parte David Paul Pittman. | N/A | 1141190 | Alabama | Alabama Supreme Court | REL:09/30/2015
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, 2015
____________________
1141190
____________________
Ex parte David Paul Pittman
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: David Paul Pittman
v.
State of Alabama)
(Eufaula Circuit Court, CC-12-330;
Court of Criminal Appeals, CR-14-0021)
BOLIN, Justice.
WRIT DENIED. NO OPINION.
1141190
Stuart, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Parker and Murdock, JJ., dissent.
2
1141190
MOORE, Chief Justice (dissenting).
I respectfully dissent from this Court's denial of David
Paul Pittman's petition for a writ of certiorari. Pittman
pleaded guilty to second-degree rape, § 13A-6-62, Ala. Code
1975, reserving the right to appeal the denial of his motion
in limine. He was sentenced to 102 months' imprisonment; that
sentence was split, and he was ordered to serve 24 months'
imprisonment. The Court of Criminal Appeals affirmed the
judgment of the circuit court in an unpublished memorandum.
Pittman v. State (No. CR-14-0021, July 2, 2015), __ So. 3d __
(Ala. Crim. App. 2015) (table).
The facts before us indicate that Pittman filed his
motion
in
limine
seeking
a
pretrial
ruling
on
the
admissibility of evidence of the complaining witness's sexual
history to show that the complaining witness had a motive to
lie about having been raped by Pittman. The first basis for
Pittman's motion was to argue he was not the source of the
complaining
witness's
sexually
transmitted
disease.
The
second
basis for Pittman's motion was to exercise his constitutional
rights to confront and to cross-examine witnesses, to testify
in his own defense, and to have compulsory process to secure
3
1141190
witnesses. The Court of Criminal Appeals' unpublished
memorandum presented the following exchange between Pittman's
attorney and the circuit court at the hearing on the motion in
limine:
"'Judge, she was caught earlier in the week, the
complaining witness, with a little boy, and what I
think the evidence will show, alone locked in the
room.
"'Her parents confront her and question her as
to whether she is sexually active. She claims she is
not.
"'The complaining witness' father says, "Well,
I'm going to take you to the health clinic and get
you tested and find out whether you are lying or
not."
"'....
"'So that gives her motive. She is concerned
that she is about to get caught being sexually
active. She fears her parents [sic] disapproval and
she's got to have an out, and she blames Mr.
Pittman. That's what we want to argue.'"
Pittman's petition to this Court asserts that the complaining
witness's father, on the morning of July 8, 2011, repeated the
threat to take her to the doctor for testing. Later that
afternoon, she told her father that Pittman had raped her in
the early morning hours of that same day. The Court of
Criminal Appeals' memorandum also stated:
4
4
1141190
"Defense
counsel
further
explained
when
asked
by
the circuit court how he was going to prove the
complaining witness engaged in sexual activity
before the rape that he 'intend[ed] to do it through
cross-examining
[the
complaining
witness]
and
cross-examining her mother and her father and say,
"Isn't it true that y'all suspected your daughter
was sexually active?"' ... Defense counsel conceded
to the circuit court 'I don't know that I can prove
that she was sexually active with 100 percent
certainty, but I can prove that her parents were
worried about it and that they had reason to suspect
she was....'"
The district attorney originally alleged that the
complaining witness had been infected with the herpes virus by
Pittman. After being tested, Pittman was found not to have
herpes. Because Pittman could not have infected the
complaining witness, the State abandoned this allegation. The
circuit
court,
after
hearing
the
preceding
arguments
regarding
the admissibility of the evidence, denied the motion. The
Court of Criminal Appeals affirmed Pittman's conviction,
concluding that Pittman had failed to furnish evidence of
specific instances of the complaining witness's sexual
behavior as required by Rule 412(b)(1), Ala. R. Evid., and was
arguing with "nothing more than conjecture."
Pittman argues in his petition to this Court that he
should have been permitted to offer in his defense evidence
5
5
1141190
indicating that the parents of the complaining witness
suspected her of sexual activity and that the complaining
witness had herpes. I believe this evidence could be relevant
to the complaining witness's alleged motive in accusing
Pittman and that it is not barred by Rule 412, Ala. R. Evid.,
the rape-shield rule.
Generally, Rule 412, Ala. R. Evid., prohibits admitting
evidence in rape cases that is "offered to prove that any
complaining witness engaged in other sexual behavior." Rule
412(b) provides three exceptions, however, one of which
permits "evidence the exclusion of which would violate the
constitutional rights of the defendant." I believe Pittman's
constitutional rights to be confronted with witnesses against
him, protected by the Sixth Amendment to the United States
Constitution, may have been violated by the denial of his
motion in limine.
Pittman argues that the Court of Criminal Appeals'
decision conflicts with Olden v. Kentucky, 488 U.S. 227
(1988). In Olden, a defendant convicted of rape was prohibited
by a Kentucky court from offering evidence that the alleged
victim cohabited with another man and had a motive to lie
6
6
1141190
about being raped. The United States Supreme Court reversed
the judgment of the Kentucky Court of Appeals, stating:
"We emphasized [in Davis v. Alaska, 415 U.S. 308
(1974),] that 'the exposure of a witness' motivation
in testifying is a proper and important function of
the
constitutionally
protected
right
of
cross-examination.' ... '[A] criminal defendant
states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in
otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the
witness, and thereby "to expose to the jury the
facts from which jurors ... could appropriately draw
inferences relating to the reliability of the
witness."'"
488 U.S. at 231 (emphasis added). I believe that we should
issue the writ to consider whether, if Pittman's motion in
limine had been granted, a reasonable jury then "could [have]
appropriately draw[n] inferences relating to the reliability
of the [complaining][w]itness." Instead, it appears Pittman
was unable to confront his accuser, to cross-examine the
complaining witness and her parents, and potentially to
discredit the complaining witness's testimony.
Rule 412 protects victims of sexual crimes from undue
harassment and humiliation by a defendant who seeks to cloud
the minds of the jury with irrelevant issues. See Moseley v.
State, 448 So. 2d 450, 456 (Ala. Crim. App. 1984). However,
7
7
1141190
our attempts to protect complaining witnesses must not
victimize a defendant by removing his confrontation
and
cross-
examination rights under the Sixth and Fourteenth Amendments
of the United States Constitution and under Article I, § 6, of
the Alabama Constitution of 1901. I would grant Pittman's
petition to examine whether Rule 412 in this case was applied
unconstitutionally.
8
8 | September 30, 2015 |
499f3263-a4a5-42bd-a009-d35c86474e14 | Horwitz v. Kirby | N/A | 1130246 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1130246
____________________
Kelly Horwitz
v.
Cason Kirby
Appeal from Tuscaloosa Circuit Court
(CV-13-901093)
PER CURIAM.
Kelly Horwitz appeals from the Tuscaloosa Circuit Court's
denial of her contest of an election for the office of
Tuscaloosa Board of Education, District 4. We reverse and
remand.
1130246
Facts and Procedural History
Horwitz and Cason Kirby were both candidates in the
August 27, 2013, election for District 4 of the Tuscaloosa
Board of Education. Kirby was certified as the winner of the
election. The certified vote totals were 416 votes for Kirby
and 329 votes for Horwitz.
On September 6, 2013, pursuant to § 11-46-69, Ala. Code
1975, Horwitz filed a statement of contest regarding the
1
Section 11-46-69, Ala. Code 1975, provides, in pertinent
1
part:
"(a) The
election
of
any
person
declared
elected
to any office of a city or town may be contested by
any person who was at the time of the election a
qualified elector of such city or town for any of
the following causes:
"(1) Misconduct, fraud, or corruption
on the part of any election official, any
marker, the municipal governing body, or
any other person;
"(2) The person whose election to
office is contested was not eligible
thereto at the time of such election;
"(3) Illegal votes;
"(4) The rejection of legal votes; or
"(5)
Offers
to
bribe,
bribery,
intimidation,
or
other
misconduct
calculated to prevent a fair, free, and
2
1130246
August 27, 2013, election. On September 13, 2013, the trial
court conducted a hearing to establish dates for trial and
further procedures. With the agreement of the parties, the
trial court ordered that on October 11, 2013, Horwitz would
provide Kirby with notice of the number of alleged illegal
voters and the grounds for challenging each voter. The
parties agreed that the case would be given priority and that
it would be set for trial on October 31, 2013. The trial
court also stated:
"It was further recognized and agreed that no voter
would be compelled to testify for whom he or she
voted under Section 17-16-42 of the Code of Alabama
and Rule 506 of the Alabama Rules of Evidence until
his or her vote was determined to be illegal."
On October 11, 2013, Horwitz filed a "Notice of the
Nature of the Evidence" and listed 397 allegedly illegal
votes, which included votes
cast by approximately 375 students
and members of Greek organizations on the University of
Alabama campus, i.e., fraternities and sororities. Horwitz
argued that the votes were illegal based on lack of residency,
bribery or misconduct, and ineligibility. In her memorandum
of law supporting her notice, Horwitz argued that the primary
full exercise of the elective franchise."
3
1130246
basis for her claim regarding lack of residency was an
assertion that a substantial number of voters had not resided
in or had their domicile in District 4 for 30 days prior to
the August 27, 2013, election, as required by § 11-46-38(b),
Ala. Code 1975. According to the trial court, Horwitz
"contended that a substantial number of students,
particularly members of Greek organizations, moved
into sorority and fraternity houses or other
dwellings, such as apartments, within thirty days of
August 27, 2013, but, prior to that time, did not
reside in the district."
Kirby denied Horwitz's allegations and argued that,
before moving into the sorority houses, fraternity houses, or
other dwellings in August 2013, the students had either
resided in other dorms or dwellings in District 4 or had lived
in District 4 the previous year but had simply visited their
family homes or resided elsewhere during the summer. Kirby
also argued that those voters had established their domicile
in District 4 and their intent to return to the district
before their temporary absence from the district during the
summer.
Kirby filed an objection and a motion to dismiss, in
which he argued that Horwitz's notice of the evidence was not
4
1130246
sufficient to comply with the requirements set forth in
§ 17-16-48, Ala. Code 1975.
2
On October 15, 2013, the trial court conducted a hearing
to determine whether Horwitz's notice of the evidence was
sufficient and to address Kirby's objection and motion to
dismiss. On October 17, 2013, the trial court entered an
order denying the motion to dismiss and holding that Horwitz's
notice was sufficient and that the election contest would
proceed.
On October 21, 2013, the trial court conducted a status
conference for the purpose of determining the procedure for
the trial of the case. During this status conference, a
Section 17-16-48, Ala. Code 1975, provides:
2
"No testimony must be received of any illegal
votes or of the rejection of any legal votes in any
contested election commenced under the provisions of
this article unless the party complaining thereof
has given to the adverse party notice in writing of
the number of illegal votes and by whom given and
for whom given, and at what precinct or voting place
cast, or the number of legal votes rejected, and by
whom offered, and at what precinct or voting place
cast, which the party expects to prove on the trial.
Such notice must be served personally or left at the
residence or usual place of business of the adverse
party at least 10 days before the taking of
testimony in reference to such votes."
5
1130246
procedure was established whereby the evidence of the
legality
or illegality of the ballots challenged by Horwitz would be
presented to the trial court on October 31 and November 6 by
way of affidavits to be collected from challenged voters. The
purpose of this approach was to avoid the necessity of a
weeks-long trial involving live testimony from approximately
400 voters and other witnesses on the variety of factual
issues that could bear on such issues as domicile and possible
illegal inducements to vote. Moreover, this approach also
dovetailed
with
the
trial
court's
properly
announced
intention
of not requiring any voter to testify as to for whom he or she
had voted until it was first determined that his or her vote
was illegal. If, based on the affidavit testimony submitted
by Horwitz in this first phase of the trial ("Phase I"), at
least 87 votes were found to be illegal, the contest would
proceed to a second phase or "final hearing" on November 18
("Phase II"), in which the voters who cast the illegal ballots
could be subpoenaed to testify at trial as to for whom they
voted. (Also in Phase II, those who cast the allegedly
illegal ballots who did not return an affidavit for purposes
of Phase I could be subpoenaed to testify regarding issues
6
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relating to the legality of their ballots and, if their votes
were found to be illegal, for whom they had voted.)
As recounted in Kirby's brief to this Court:
"[T]he Court ordered, and the parties agreed, that
the trial proceedings would begin on October 31st
and would essentially be bifurcated. The Court
ordered, and the parties agreed, that Contestant and
Contestee would prepare an affidavit form with
questions addressing the issues in this contest to
be submitted to all challenged voters rather than
have a hearing with nearly 400 challenged voters.
The parties elected to use these affidavits as trial
evidence to establish qualifications of the voters
or lack thereof. The affidavit, if possible, would
solicit certain information to allow the Court to
sufficiently determine the legality of each vote and
would be trial evidence. The Court placed no
restrictions on the parties as to what questions
would be included in the affidavit other than to
instruct the parties that, if an agreement could not
be reached, the Court itself would develop the
questions for the affidavit.
"Pursuant to the Order, for all affidavits
submitted prior to October 31st, the Court would
hold a hearing on October 31, 2013, on evidence and
arguments as to whether the testimony contained in
the affidavits sufficiently established domicile or
inducement to vote. The Court further set a second
hearing for November 6, 2013, to determine the same
issues for affidavits gathered at or after the
October 31st hearing."
(Emphasis added.)3
The affidavits were a way to more efficiently determine
3
whether there was a prima facie case in the sense of there
being at least 87 illegal ballots, thereby warranting
7
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proceeding to the next phase of compelling the voters who cast
those ballots to testify for whom they voted. As the trial
court explained at the October 31 hearing:
"The Court believes I have made it very clear that
today was when we are taking testimony by affidavit.
That was the vehicle. ... It by nature has to be
because there has to be a determination made by the
Court as to whether or not a vote is illegal before
a question can be compelled to be answered by the
Court for whom that person voted. We are in that
stage of the trial right now."
Record Vol. 7, p. 127 (emphasis added). Later in the
October 31 hearing, the Court stated:
"It was the Court's intention through our scheduling
conference, and the Court is of the opinion that it
was the agreement of the parties that we were to
proceed with affidavits for evidentiary purposes for
determining the legality of a vote and that today
would be the day for which the first batch would be
argued as to whether or not further testimony would
be required of those voters, further testimony
required of those voters with regard to for whom
they voted, that we would establish legality at this
stage. That was the Court's understanding of where
we were with regard to our status conference,
scheduling conference."
Record Vol. 7, p. 149 (emphasis added). See also Record
Vol. 7, pp. 139-40 (statement by court); Record Vol. 7, p. 141
(statement by counsel for Horwitz); Record Vol. 7, p. 129
(statement by counsel for Kirby); Record Vol. 7, pp. 134-35
(statement by counsel for Kirby: "There was no exceptions to
go under the affidavits and try to examine these students and
try to find something."). Later, the trial court repeated that
"[t]he Court intends to have all the evidence it needs by the
close of the hearing on November 6 to determine the legality
of the votes challenged," Record Vol. 7, p. 156, and that
8
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The parties subsequently submitted an agreed-upon
affidavit. The trial court accepted the affidavit and ordered
that it be distributed to the challenged voters.
On October 31, 2013, and November 6, 2013, the trial
court conducted hearings on the affidavits that had been
submitted. On or about November 7, 2013, Horwitz filed a
post-hearing memorandum of law. In her memorandum, Horwitz
attached exhibits in which she provided a "detailed analysis"
regarding various categories of votes that she contended were
illegal.
On November 13, 2013, the trial court entered its "Final
Order Denying Contest" ("the final order") in which, among
other things, it concluded that the affidavits established
"[i]t was clear to this Court and to, apparently, the
contestee that the affidavits were to be determinative of
whether or not a vote was legal and further testimony would be
taken on the illegal vote." Record Vol. 7, pp. 168-69
(emphasis added).
In the November 6 hearing, the trial court further
explained that, if there was to be any live testimony at the
Phase II hearing on November 18 from voters for whom no
affidavit was received, it too would be limited to the
questions on the affidavit: "[T]estimony on legality of votes
... will be restricted to the same questions as the affidavit
contains now. That is the method the Court set out and the
parties agreed to initially." Record Vol. 7, p. 211.
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that no more than 70 illegal votes had been cast in the
election. On November 24, 2013, Horwitz filed a motion to
alter, amend, or vacate the trial court's judgment; that
motion was denied by operation of law on February 24, 2014.
Horwitz appealed the trial court's order denying her election
contest.
Standard of Review
"Before we begin our discussion, we first
consider the standard of review applicable. At oral
argument, the contestee Hale argued that the ore
tenus standard of review should apply and that
applying that standard would support the dismissal.
This Court has stated:
"'In reviewing the trial court's
findings of fact in [an] election contest,
we apply the same standard used by
appellate courts when the trial court in a
nonjury case has taken a material part of
the evidence through ore tenus testimony;
that is, we will not disturb the trial
court's findings of fact unless those
findings are plainly and palpably wrong and
not supported by the evidence.'
"Williams v. Lide, 628 So. 2d 531, 534 (Ala. 1993),
citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.
2d 788, 797 (1942). That same principle of law is
also stated in such cases as Gaston v. Ames, 514 So.
2d 877 (Ala. 1987), and Cougar Mining Co. v. Mineral
Land & Mining Consultants, Inc., 392 So. 2d 1177
(Ala. 1981).
"Should we apply the ore tenus standard to this
case, in which there was no evidence presented ore
10
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tenus that was relevant to the main legal issues
before this Court and in which, as to the number of
votes cast for the two candidates, the case was
decided based upon deposition testimony and a review
of documentary evidence, consisting mostly of
absentee affidavits and ballots? We think not. Our
appellate courts have held on several occasions
that, where no testimony is presented ore tenus, a
reviewing court will not apply the presumption of
correctness to a trial court's findings of fact and
that the reviewing court will review the evidence de
novo. See Hospital Corp. of America v. Springhill
Hospitals, Inc., 472 So. 2d 1059, 1060–61 (Ala. Civ.
App. 1985), where the Court of Civil Appeals stated:
"'The rationale behind the ore tenus
rule has historically been that the trial
court
deserves
a
presumption
of
correctness
when it is in a position to actually see
[the witnesses] and hear the testimony,
observing firsthand the demeanor of the
witnesses. Christian v. Reed, 265 Ala.
533, 92 So. 2d 881 (1957); Steed v. Bailey,
247 Ala. 407, 24 So. 2d 765 (1946); Barran
v. Barran, 431 So. 2d 1278 (Ala. Civ. App.
1983). Considering that the trial court
heard only part of the testimony of one
witness, including only a partial direct
examination and no cross examination, and
that
the
case
was
otherwise
tried
exclusively on the basis of numerous
depositions and exhibits, we hold that the
ore
tenus
rule
does
not
apply.
Consequently,
no
presumption
of
correctness
will be accorded the trial court's findings
on the evidence, and this court will sit in
judgment on the evidence as if it had been
presented de novo. Smith v. Dalrymple, 275
Ala. 529, 156 So. 2d 622 (1963); Lepeska
Leasing Corp. v. State Department of
Revenue, 395 So. 2d 82 (Ala. Civ. App.),
writ denied, 395 So. 2d 85 (Ala. 1981).'
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"See also, Muscogee Constr. Co. v. Peoples Bank &
Trust Co., 286 Ala. 258, 238 So. 2d 883 (1970), and
Continental Elec. Co. v. City of Leeds, 473 So. 2d
1056 (Ala. Civ. App. 1984)."
Eubanks v. Hale, 752 So. 2d 1113, 1122 (Ala. 1999).
Similarly, in this case, no ore tenus evidence was
presented. Our review of this election contest and the
evidence before us therefore is de novo.
Analysis
The duty of a trial court in an election contest is
clear:
"If, on the trial of the contest of any
election, either before the judge of probate or the
circuit court, it shall appear that any person other
than the one whose election is contested, received
or would have received, had the ballots intended for
the person and illegally rejected been received, the
highest number of legal votes, judgment must be
given declaring such person duly elected, and such
judgment shall have the force and effect of
investing the person thereby declared elected, with
full right and title to have and to hold the office
to which the person is declared elected. If it
appears that two or more persons have, or would have
had, if the ballots intended for them and illegally
rejected had been received, the highest and equal
number of votes for such office, judgment must be
entered declaring the fact, and such fact must be
certified to the officer having authority to fill
vacancies in the office the election to which was
contested. If the person whose election is
contested is found to be ineligible to the office,
judgment must be entered declaring the election void
and the fact certified to the appointing power. If
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the party whose election is contested is found to
have been duly and legally elected, judgment must be
entered declaring the party entitled to have and to
hold the office to which the party was so elected."
§ 17-16-59, Ala. Code 1975.
I. Voters Challenged Based on Residency
Horwitz first argues that the trial court erroneously
found that 108 "University students who indicated no
intention
to abandon their former domicile prior to registering to vote
in Tuscaloosa were retroactively domiciled in District 4 from
the first day they lived there."
Section 11-46-38, Ala. Code 1975, provides:
"(a) At
all
municipal elections the
elector
must
vote only in the ward or precinct of his or her
residence where he or she is registered to vote and
at the box or voting machine to which he or she has
been assigned.
"(b) No person may vote at any election unless
he or she is a registered and qualified elector of
the State of Alabama, who has resided in the county
30 days and in the ward 30 days prior to the
election, and who has registered not less than 10
days prior to the date of the election at which he
or she offers to vote ...."
(Emphasis added.)4
Section 11-46-38 continues with a provision for voters
4
who have resided within a given ward but who change their
residence from that ward to another in the same city within 30
days of an election. Neither party makes any argument to this
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It was undisputed that the challenged voters registered
more than 10 days before the date of the election. Therefore,
the only question is whether certain voters "resided" in
District 4 30 days prior to the election. In order to
"reside" for this purpose, one must establish "domicile":
"The parties correctly assert that 'the terms
"legally resides," "inhabitant," "resident," etc.,
when used in connection with political rights are
synonymous with domicile.' Mitchell v. Kinney, 242
Ala. 196 at 203, 5 So. 2d 788 (1942)."
Osborn v. O'Barr, 401 So. 2d 773, 775 (Ala. 1981).
"The terms ... denote the place where the person is
deemed in law to live, which may not always be the
place of one's actual dwelling, and are to be
contra-distinguished from temporary abode. Caheen v.
Caheen, 233 Ala. 494, 172 So. 618 [(1937)]; Allgood
v. Williams, 92 Ala. 551, 8 So. 722 [(1891)].
"....
"The law is also established that a domicile,
once acquired, is presumed to exist until a new one
has been gained 'facto et animo [in fact and
intent].' Bragg v. State, 69 Ala. 204 [(1881)];
Caheen case, supra. And in order to displace the
former, original domicile by the acquisition of one
of choice, actual residence and intent to remain at
the new one must concur. 'Domicile of choice is
entirely a question of residence and intention, or,
as it is frequently put, of factum and animus.' 28
C.J.S., Domicile, p. 11, § 9."
Court regarding the potential applicability in this case of
that provision.
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Ex parte Weissinger, 247 Ala. 113, 117, 22 So. 2d 510, 513-14
(1945) (emphasis added).
"Thus, a temporary relocation away from one's
established domicile does not result in a change of
domicile without proof of intent to establish
domicile elsewhere."
25 Am. Jur. 2d Domicile § 25 (2014) (footnotes omitted).
"'Domicile is "established by physical presence in a place in
connection with a certain state of mind concerning one's
intent to remain there." Mississippi Bank [Band] of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989).'" In re Kline,
350 B.R. 497, 501 (Bankr. D. Idaho 2005) (quoting In re
Halpin, 94 I.B.C.R. 197, 197 (Bankr. D. Idaho 1994)).
"As a general proposition a person can have but one
domicile, and when once acquired is presumed to
continue until a new one is gained facto et animo,
and what state of facts constitutes a change of
domicile is a mixed question of law and fact. Lucky
v. Roberts, 211 Ala. 578, 580, 100 So. 878, 879
[(1924)], and cases cited.
"One who asserts a change of domicile has the
burden of establishing it. Caldwell v. Pollak, 91
Ala. 353, 357, 8 So. 546 [(1890)]. And 'where facts
are conflicting, the presumption is strongly in
favor of an original, or former, domicile, as
against an acquired one,' etc. 28 C.J.S., Domicile,
p. 36, § 16."
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Ex parte Weissinger, 247 Ala. at 117, 22 So. 2d at 514
(emphasis added).
5
"Temporary absence from one's residence for the
purposes of his employment and the like, without the
intent to abandon the home town and acquire a
domicile elsewhere permanently, or for an indefinite
time, does not forfeit his right to vote. Pope v.
Howle, 227 Ala. 154, 149 So. 222 [(1933)]; Caheen v.
Caheen, 233 Ala. 494, 172 So. 618 [(1937)]; 8
Alabama Digest, Elections, 264."
Wilkerson v. Lee, 236 Ala. 104, 107, 181 So. 296, 298 (1938).
In Pope v. Howle, 227 Ala. 154, 156, 149 So. 222, 223
(1933), this Court stated:
"Domicile of the elector is a mixed question of law
and fact, dependent upon the intention and acts of
the elector. ... In Holmes v. Holmes, 212 Ala.
597, 599, 103 So. 884, 886 [(1925)], the law of
domicile is thus stated: 'A domicile once acquired
is presumed to continue until a change, facto et
animo, is shown. Bragg v. State, 69 Ala. 204
[(1881)]. If there was a change, there must have
been both an abandonment of his former domicile with
no
present
intention
to
return,
and
the
establishment of another place of residence with
intention to remain permanently, or, at least, for
The dissent ultimately concludes that college students
5
have "the option of maintaining their domicile in their
hometown and voting by absentee ballot or registering to vote
where they attend school." ___ So. 3d at ___. The necessary
premise for such a choice by the voter would be antithetical
to the "proposition [that] a person can have but one
domicile," and that that domicile is a function of certain
criteria, or a certain "state of facts." Weissinger, 247 Ala.
at 117, 22 So. 2d at 514. It is a "mixed question of law and
fact," not of the voter's "option" or choice.
16
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an unlimited time; the former may be inferred from
the latter. Allgood v. Williams, 92 Ala. 551, 8 So.
722 [(1891)]; Caldwell v. Pollak, 91 Ala. 353, 8 So.
546 [(1890)]; Young v. Pollak, 85 Ala. 439, 5 So.
279 [(1888)]; Merrill's [Heirs] v. Morrissett [76
Ala. 433 [(1884)]], supra.'"
(Emphasis added.)
The authorities are in agreement, then, that there must
be not only a decided intention to abandon one's former
domicile as such, but also a "certain state of mind" as to
making a new locale one's home. The application of this
general rule to students results in a general rule that their
place of domicile does not change simply because they leave
home to attend college:
"[I]t is a settled principle of law, recognized
expressly or by implication in virtually every case
discussed herein ... that an individual's mere
presence in a particular community as a student
results neither in his acquisition of a voting
residence there nor in the loss of his existing
voting residence elsewhere, such presence being
regarded as temporary in the absence of independent
facts and circumstances indicating a contrary
intent."
William H. Danne, Jr., Annotation, Residence of Students for
Voting Purposes, 44 A.L.R.3d 797, 818 (1972)
(emphasis added).
This is no less true "even if [the student] is uncertain as to
17
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his future plans and, therefore, [might] settle in the school
community following the completion of his studies." Id.6
A relatively recent Illinois case involving a question of
venue in a wrongful-death case is instructive as to issues
that often arise in domicile cases
involving
college
students:
"Illinois courts generally construe the term
'resident' to mean the place where an individual
intends to live on a permanent basis. The subjective
intent of the person whose residence is at issue
controls the determination. Webb v. Morgan, 176 Ill.
App.3d 378, 386, 125 Ill. Dec. 857, 531 N.E.2d 36,
41 (1988). Obviously, Nick could not have intended
to remain in a university fraternity house on a
permanent basis. Such housing is, by definition,
temporary. Perhaps he enjoyed living in Decatur and
hoped to remain there upon graduation; perhaps he
hoped to return to Glen Carbon, where he had grown
up and still had friends. Perhaps he hoped to move
elsewhere. As a practical matter, most 20–year–old
university students do not know where they will live
It appears that the trial court and the dissent, as well
6
as many of the students whose votes are in question in this
case, equate the idea of an "uncertainty" on the part of
student as to his or her plans following graduation with an
intent to remain "indefinitely" in the town where his or her
college is located. At one juncture, the dissent speaks of
students who "may decide to remain in the place[] where they
attend school indefinitely and may plan to try to seek
employment" there. ___ So. 3d at ___. Until such time as a
student actually does decide to remain indefinitely in the
place where he or she attends school, he or she does not
satisfy the requisite standard. Uncertainty as to whether one
will remain in a given place is not the same as actually
having formed a present intent to remain in that place
indefinitely.
18
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on a permanent basis after graduation. Fortunately,
however, we need not ascertain Nick's subjective
intent in order to determine his residence. Once a
residence is established, it is presumed to
continue, and a person only establishes a new
residence if that person physically moves to a new
home and lives there intending to make it his
permanent home. Webb, 176 Ill. App.3d at 386, 125
Ill. Dec. 857, 531 N.E.2d at 41. Unless such a
change of residence has been established, a person
does not lose his original residence. Webb, 176 Ill.
App.3d at 386, 125 Ill. Dec. 857, 531 N.E.2d at 41.
Prior to attending college, Nick unquestionably
resided with his mother, Brenda, in Glen Carbon.
Thus, he was a Madison County resident at that time.
For the reasons discussed, we do not think the
record contains any evidence to demonstrate that
Nick had acquired a new residence. He was thus a
Madison County resident at the time of his death."
Schwalbach v. Millikin Kappa Sigma Corp., 363 Ill. App. 3d
926, 932-33, 300 Ill. Dec. 788, 794, 845 N.E.2d 677, 683
(2005).
In Ptak v. Jameson, 215 Ark. 292, 298-99, 220 S.W.2d 592,
595 (1949), the Arkansas Supreme Court explained:
"The court announced the rule to be applied in
passing upon the eligibility of the student that 'A
student who comes to Fayetteville for the sole
purpose of securing an education does so without
making a change of residence. It is necessary to
have a bona fide intention to make Fayetteville his
home permanently or for an indefinite period and not
to limit it to the time necessary to get an
education.' This appears to conform with the weight
of authority as shown in the annotation to the case
of Anderson v. Pifer, 37 A.L.R. 134."
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This Court's decision several years ago in Ex parte
Coley, 942 So. 2d 349 (Ala. 2006), follows the foregoing
principles and, in addition, makes clear that evidence of a
variety of factors, at least where available, must be
considered and that the voter's own self-serving statement is
not dispositive of the domicile issue. The issue in Coley was
where a college student was domiciled when a wrongful-death
action was filed against her. The action was filed in
Jefferson Circuit Court in January 2005 against Tyne Coley by
the personal representatives of the deceased's estate.
Jefferson County was the county in which Coley's parents lived
and where she lived until she started attending Judson College
in Perry County in September 2002. Coley filed a motion to
transfer the case to Perry County, arguing that her domicile
had changed to Perry County by the time the action was filed.
The trial court denied Coley's motion, and she petitioned this
Court for a writ of mandamus. This Court explained:
"[T]he question is whether Coley had, when this
action was filed in January 2005, effectively
changed her domicile to Perry County. In answering
the question, the trial court was to consider
whether Coley physically resided in Perry County and
whether she had the intention to remain there
permanently so that she had abandoned Jefferson
County as her domicile."
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942 So. 2d at 352 (emphasis added). After quoting the
requirements for a change of domicile from Weissinger, supra,
quoted above, the Coley Court noted that "Coley has the burden
of establishing that she had abandoned Jefferson County as her
county of residence and reestablished permanent residence in
Perry County; the presumption is against a finding that she
had." 942 So. 2d at 353 (emphasis added; citing Weissinger).
In evaluating whether Coley had changed her domicile from
Jefferson County to Perry County at the time the action was
filed, this Court listed several facts as evidence of Coley's
domicile. First, it noted facts that Coley listed in support
of her argument that she had changed her domicile to Perry
County by the time the action was filed:
"Coley offered the following facts to the trial
court, and argues them to this Court, in order to
show that she had the requisite intention to change
her county of permanent residence to Perry County.
Coley graduated from Pinson High School in Jefferson
County in 2002. In September 2002, she began
attending Judson College in Perry County. Judson
College requires its students to live in on-campus
housing. Thus, from September 2002 through June 2005
(which encompasses the date of the accident) Coley
lived on the campus of Judson College in Perry
County. Coley also contends that she did not return
to Jefferson County to visit her parents on
weekends, but stayed with her parents at their
second home, a farm in Perry County. Coley also
contends that she did not return to Jefferson County
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during the summer months of her college years;
instead, she either attended summer school at Judson
College or worked at a camp in St. Clair County.
Coley says that during those summers she spent only
a night or two with her parents in Jefferson County.
Coley also contends that she spent Thanksgiving and
Christmas holidays at her parents' farm in Perry
County. Coley stated in her affidavit filed in
February 2005 that she does not consider her
parents' home in Jefferson County to be her home;
that she no longer has a bedroom there; and that she
considers her permanent residence to be her parents'
farm in Perry County.
"Coley further contends that she 'is registered
to vote in Perry County.' Coley includes her
voter-registration card, which indicates that she
was registered to vote in Perry County as of June
27, 2005, the date of her deposition, and also
indicates 'last change: 05/05/2005.' Coley does not
state that she was registered to vote in Perry
County as of January 2005, when this action was
filed."
942 So. 2d at 353-54 (footnotes omitted; emphasis added).
Next, the Court noted facts the plaintiffs listed in support
of their argument that Jefferson County remained Coley's
domicile at the time the action was filed:
"In support of their argument that in January
2005 Coley had not exhibited the intention to reside
permanently in Perry County, the Pottses argue:
(1) that Coley was registered to vote in Jefferson
County when this action was filed;[ ] (2) that
7
In Harris v. McKenzie, 703 So. 2d 309, 311 (Ala. 1997),
7
this Court found "[r]egistration to vote [to be] a 'potent
consideration' for a court to take into account when
determining one's domicile." (Quoting Ambrose v. Vandeford,
22
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Coley's bank accounts list her home address as being
in Jefferson County; (3) that Coley represented to
lenders that she was a resident of Jefferson County;
(4) that Coley represented to the Internal Revenue
Service and the Alabama Department of Revenue on her
tax returns filed in April 2005 that she was a
resident of Jefferson County; (5) that Coley
represented to health-care providers that she was a
resident of Jefferson County; (6) that Coley
represented to the driver's license division of the
State of Alabama that she resided in Jefferson
County when she renewed her driver's license in
October 2004; and (7) that Coley is a member of a
church in Jefferson County."
942 So. 2d at 354 (footnote omitted).
277 Ala. 66, 70, 167 So. 2d 149, 153 (1964).) And this may be
assumed true for cases in which the question of the right to
vote itself is not the issue. In this regard, it is important
to note that Ambrose, the case quoted in Harris, involved a
challenge to the venue of a probate action and that Harris
itself did not involve a challenge to an elector's right to
register to vote. Instead, the question in Harris was whether
a candidate for the city council of Alabaster who had
registered to vote in that city 27 years before the election
in question (and who had physically resided in that city for
all but 8 of those 27 years) was a resident of the ward for
which he was a candidate in 1996.
In contrast, where the propriety of a resident's
registering to vote is itself the issue, it obviously makes
little sense to consider as particularly "potent" that very
act of registration. Were we to embrace such bootstrap or
circular reasoning in cases where the right to vote in a given
election is the issue, especially where the registration is in
anticipation of that particular election, we would greatly
weaken, and as a practical matter eliminate in most cases, our
law's domiciliary requirement and the presumption set by law
for college students and other electors that a domicile for
purposes of voting once established continues.
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Despite the evidence to the contrary, particularly
Coley's own testimony, this Court concluded that Coley had not
changed her domicile at the time the action was filed,
reasoning as follows:
"The evidence regarding Coley's intention to
abandon Jefferson County as her permanent residence
and establish permanent residency in Perry County is
conflicting. '[W]here facts are conflicting, the
presumption is strongly in favor of an original, or
former, domicile, as against an acquired one.'
Weissinger, 247 Ala. at 117, 22 So. 2d at 514.
Because of the presumption against a change of
domicile, the conflicting evidence as to domicile,
and the fact that the burden rests on Coley to prove
the change of domicile, we cannot conclude that the
trial court erred in concluding that in January 2005
Coley had not abandoned Jefferson County as her
county of permanent residence and established
permanent residency in Perry County."
942 So. 2d at 354.
Horwitz argues that information from the submitted
affidavits demonstrates that two groups of voters did not meet
the 30-day domicile requirement to vote in the August 27,
2013, election.
8
In his brief, Kirby argues that, with regard to some of
8
the voters Horwitz challenges on appeal, Horwitz raises
arguments she did not present in the trial court; that she
challenges voters who had submitted affidavits before the
October 31, 2013, hearing, but whom she did not challenge
until the November 6, 2013, hearing; that she challenges some
voters on different grounds than those provided in her notice
of election contest; or that she challenges voters on appeal
24
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First, Horwitz contends that "[t]here are 55 voters who
registered to vote in Tuscaloosa County ... at an address in
District 4 where they had not resided for 30 days next
preceding the election, but who had lived someplace in
District 4 the previous spring" before leaving the city for
the summer. Concerning those 55 voters, Horwitz noted that
9
in their affidavits all but 2 of them listed an address
outside Tuscaloosa on their driver's licenses and
listed
their
even though she had previously abandoned her challenge to
those voters in the trial court.
Horwitz challenges on appeal the same voters she
challenged in the trial court. Further, in its final order,
the trial court noted that Kirby had raised some of these same
arguments but stated that it had considered all the evidence
offered by Kirby; that it had reviewed all the affidavits
submitted; and that it had reviewed evidence on all
affidavits, regardless of "whether produced at the October
31st hearing, the November 6th hearing, or thereafter." Thus,
Kirby's argument in this regard is unavailing.
In his brief, Kirby argues that Horwitz did not challenge
9
1 of those 55 voters, W.O.K., in the November 6, 2013, hearing
and that, thus, he cannot be challenged on appeal. The record
indicates, however, that W.O.K. was named in Horwitz's
original list of challenged voters submitted in October 2013,
that W.O.K.'s affidavit was submitted as a challenged voter,
and that W.O.K. was named as a challenged voter in Horwitz's
post-hearing brief. Therefore, W.O.K. is not being challenged
for the first time on appeal.
25
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vehicles as registered in a different county. Many of these
10
voters had renewed their driver's licenses in their hometowns
during the summer of 2013. Sixteen of those 55 voters filed
income taxes in 2013, and all of those voters listed their
hometown addresses as their residences on those returns.
Also, of those 55 voters, 35 of them were registered to vote
in a location other than Tuscaloosa in May 2013 (the other 20
apparently not having registered to vote anywhere as of May
2013). In addition, 25 of the 35 voters who had been
registered elsewhere in May actually voted in a location
outside Tuscaloosa in the last election in which they voted
before the August 27, 2013, election.
All 55 voters listed an address outside Tuscaloosa as the
address to which they have the University of Alabama send
their grades. Thirty of those 55 voters stated that they did
their banking with a bank outside Tuscaloosa. Of these 55,
all but 42 answered undecided or "indefinite" (or to like
effect) when asked about their career plans after graduation.
Although many indicated uncertainty or wrote the word
One of the two other voters did not have a driver's
10
license and the other one changed the address on his driver's
license during the election contest.
26
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"indefinitely" when asked how long they would remain in
Tuscaloosa, 53 of the 55 stated that, "after graduation, I do
not have definite plans where I intend to live."
Horwitz described the second category of voters who did
not meet the 30-day residency requirement to vote in the
August 27, 2013, election as follows:
"There are 53 voters who registered to vote in
August 2013 who moved into District 4 more than 30
days prior to the election (according to their
affidavits), but whose affidavits provide strong
evidence that they had no intention to 'abandon
completely' their former domicile any earlier than
the day they at least registered to vote in
Tuscaloosa."
(Footnote and emphasis omitted.) Concerning these 53 voters,
Horwitz observes that in their affidavits 52 of them listed
their former domicile outside Tuscaloosa as the address on
their driver's licenses while 1 did not provide a driver's
license
address
but had an out-of-state license. Forty-nine of
those voters had cars registered outside Tuscaloosa County.
Several of those 53 voters renewed their driver's licenses
shortly before the August election, and at least 6 of them
renewed their driver's license after the date they provided as
their July move-in date into their District 4 address. Twenty-
one of those 53 voters still had out-of-state driver's
27
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licenses as of October 2013. Horwitz also notes that 36 of
the 53 voters were registered to vote in a city other than
Tuscaloosa before they registered for the August 27, 2013,
election. Moreover, 25 of those 36 voters actually voted in
those other cities in an election before the August 27, 2013,
election. Additionally, 19 of those 53 voters filed income
taxes in 2013, and all of those voters listed their pre-
college addresses outside Tuscaloosa as their residences on
those returns.
All 53 voters listed an address outside District 4 as the
address to which they have the University of Alabama send
their grades. Twelve of those 53 voters stated that they did
their banking with a bank outside Tuscaloosa. Thirty-four
provided either no answer or answered "undecided" (or similar
answer) when asked if they knew their career plans after
completing school in Tuscaloosa. Similar to the group of 55
discussed above, although many of the 53 indicated they were
uncertain how long they would stay in Tuscaloosa, 50 of the 53
indicated that they did not have definite plans to live in
Tuscaloosa "after graduation." The remaining three, F.R.B.,
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C.S., and A.C.M., indicated that they did have definite plans
to stay in Tuscaloosa.
11
As noted above, our review of this case is de novo.
Based on our review of the affidavits and applying the legal
presumptions and principles described above, especially the
presumption our law recognizes as to students who attend a
college somewhere other
than their hometowns, we conclude that
all but 3 of the 108 ballots described above were due to be
rejected in the District 4 election. As noted, our cases
emphasize the principle that a person can have only one
domicile and that, once a domicile is acquired, it is presumed
to be a person's domicile until a new domicile is gained in
fact and intent. See Weissinger, 247 Ala. at 117, 22 So. 2d
at 513. When a court seeks to determine if a person has
established a new domicile, it must evaluate whether the
person "had the intention to remain there permanently so that
[the person] had abandoned [the previous] domicile." Coley,
942 So. 2d at 352. As the Court stated more fully in Pope:
"'A domicile once acquired is presumed to continue
until a change, facto et animo, is shown. Bragg v.
State, 69 Ala. 204 [(1881)]. If there was a change,
We consider the ballots of these three voters to have
11
been properly counted in the election.
29
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there must have been both an abandonment of his
former domicile with no present intention to return,
and the establishment of another place of residence
with intention to remain permanently, or, at least,
for an unlimited time; the former may be inferred
from the latter.'"
227 Ala. at 156, 149 So. at 223 (quoting Holmes v. Holmes, 212
Ala. 597, 599, 103 So. 884, 886 (1925) (emphasis added)).
Further still, our cases make it clear that when there is
conflicting evidence as to whether a person has changed his or
her domicile, "'the presumption is strongly in favor of an
original, or former, domicile, as against an acquired one.'"
Coley, 942 So. 2d at 354 (quoting Weissinger, 247 Ala. at 117,
22 So. 2d at 514).
As indicated in Coley, as well as in the other
authorities previously discussed, these general principles
find particular application in the case of students who remove
themselves from their
"hometowns"
for the purpose of attending
college in another locale. To reiterate:
"[I]t is a settled principle of law, recognized
expressly or by implication in virtually every case
discussed herein ... that an individual's mere
presence in a particular community as a student
results neither in his acquisition of a voting
residence there nor in the loss of his existing
voting residence elsewhere, such presence being
regarded as temporary in the absence of independent
30
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facts and circumstances indicating a contrary
intent."
Danne, 44 A.L.R.3d at 818 (emphasis added). And again, this
is no less true "even if [the student] is uncertain as to his
future plans and, therefore, [might] settle in the school
community following the completion of his studies." Id.
All but 3 of the 108 students whose votes are at issue
stated that they had not formed a definite intent to live in
any particular
place
following graduation. As noted, however,
more than the absence of a definite intent to return to one's
former domicile is necessary for the law to recognize one's
abandonment of that domicile and the adoption of a new one.
The trial court appears to have reached a contrary
conclusion by drawing from the decision in District of
Columbia v. Murphy, 314 U.S. 441 (1941), in which the United
States Supreme Court stated that "persons are domiciled [in
the District of Columbia] who live here and have no fixed and
definite intent to return and make their homes where they were
formerly domiciled." 314 U.S. at 454-55. In Murphy, however,
the Court was specifically addressing the issue of domicile
for federal employees who come to work in the District of
Columbia. In evaluating the issue, the Court specifically
31
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noted that "[t]he District of Columbia is an exceptional
community" where "[t]hose in Government service ... are not
engaged in local enterprise, although their service may be
localized" and, "[b]ecause of its character as a federal city,
there is no local political constituency with whose
activities
those living in it may identify themselves as a symbol of
their acceptance of a local domicile." 314 U.S. at 452. The
Court further stated that "it is apparent that the present
cases are not governed by the tests usually employed in
[domicile] cases where the element of federal service in the
Federal City is not present." 314 U.S. at 454.
Despite the fact that the Murphy Court made it clear that
it was applying a different test for domicile because of the
unique situation of federal employees working in the District
of Columbia, that Court still observed that "[a]ll facts which
go to show the relations retained to one's former place of
abode are relevant in determining domicile." Murphy, 314 U.S.
at 457. It listed among those facts the place where the
person has voted, the type of job the person holds, i.e.,
whether the job is "continuous or emergency, special or
war-time in character; whether requiring fixed residence in
32
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the District or only intermittent stays," and "[w]hat
relations has he to churches, clubs, lodges, and investments
that identify him with the District." Id. Perhaps most
notably for present purposes, the Murphy Court
emphasized
that
"[o]ne's testimony with regard to his intention is of course
to be given full and fair consideration, but is subject to the
infirmity of any self-serving declaration, and may frequently
lack persuasiveness or even be contradicted or negatived by
other declarations and inconsistent acts." 314 U.S. at 456.
Therefore,
just
as
in
Coley,
"[b]ecause
of
the
presumption against a change of domicile [and]
the
conflicting
evidence as to domicile," we cannot conclude that 105 of the
108 voters Horwitz challenged for failure to meet the
residency requirement had established Tuscaloosa as their new
domicile before they voted in the August 27, 2013, election.
Before turning to another set of voters at issue in the
election contest, it is important to address two other ideas
cited by the trial court as bases for its judgment. First,
the trial court based its judgment in part on its holding
that "Alabama [has]
codified a presumption that student
voters
are domiciled in the district where they are residing and
33
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attending college" by enacting § 17-3-11, [Ala. Code 1975,]
which provides for boards of registrars annually to go to
certain college campuses to register qualified voters. The
12
issue of domiciliary status is not mentioned in the statute,
however. Neither the text nor the history of § 17-3-11, Ala.
Code 1975, indicate that it creates any such presumption.
The Coley Court gave no indication that a presumption
exists that a college student is domiciled where he or she is
attending college. To the contrary, the Court specifically
stated that "Coley has the burden of establishing that she had
abandoned Jefferson County as her county of residence and
Section § 17-3-11(a) states:
12
"The board of registrars in each county shall visit
each college or university, whether public or
private, having an enrollment of 500 or more, which
is located therein, at least once during the school
year for the purpose of registering voters, and
shall remain there for one full working day,
weekends and holidays excepted. They shall give at
least 12 days' notice of the time and place where
they will attend to register applicants for
registration, by bills posted at three or more
public places and by advertisement once a week for
three consecutive weeks in a campus newspaper, if
there is one published on the campus. Each college
or university affected by the provisions of this
section shall provide space and accommodations for
said board of registrars on their campus."
34
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reestablished permanent residence in Perry County [where she
attended college]; the presumption is against a finding that
she had." Coley, 942 So. 2d at 353 (emphasis added). Further
still, as Horwitz correctly notes, § 17-11-3, Ala. Code 1975,
contains a specific provision making clear that a student may
vote absentee if he or she "is enrolled as a student at an
educational institution located outside the county of his or
her personal residence attendance at which prevents his or her
attendance at the polls." § 17-11-3(a)(4), Ala. Code 1975.
If anything, § 17-11-3(a)(4) says as much or more about where
the legislature anticipated college students would vote as
does § 17-3-11.
Finally, the trial court cited § 17-3-32, Ala. Code 1975,
in support of its conclusion that the students' presence in
Tuscaloosa to attend college established a presumption that
they were domiciled there. Section 17-3-32 provides:
"No person shall lose or acquire a domicile
either by temporary absence from his or her domicile
without the intention of remaining or by navigating
any of the waters of this state, the United States,
or the high seas, without having acquired any other
lawful domicile, or by being absent from his or her
domicile in the civil or military service of the
state or the United States."
35
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Beyond ensuring the right to vote to members of our armed
forces stationed in Alabama, § 17-3-32 does nothing more than
codify the presumption in favor a domicile once established.
The trial court employed § 17-3-32 to conclude that students
who left Tuscaloosa for the summer of 2013 did not cease to
reside in Tuscaloosa because of that temporary absence. But
employing the statute in this way skips over the simple fact
that the students in question had acquired a domicile before
ever arriving in Tuscaloosa to attend college. Especially
because we are dealing here with college students, the statute
must first be applied to the individual's absence from the
hometown he or she left for the purpose of attending college.
Again, based on the applicable presumption as to the
continuance of domicile, especially as it relates to students
who attend college in a city other than their "hometown," and
on our careful review of the evidence introduced as to the 108
students in question, we find that 105 of those students did
not overcome that presumption. The ballots of those students
therefore must be rejected.
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II. Other Potentially Illegal Votes Based on
Residency-Related Issues
In addition to the 108 votes discussed above, Horwitz
contends that the affidavits establish the illegality of
another 62 votes. Based on the presumptions and legal
13
principles discussed above, we find the actual number of
ballots within this group of 62 that are in fact illegal to be
54.
14
A.
Horwitz argued that there were three newly registered
voters who did not live in District 4 on the day of the
election: A.B.J., S.H.M., and Z.G.S. Horwitz submitted an
affidavit from Paula Marques, in which Marques stated:
"On November 5-6, 2013, I viewed the Interactive
District Map on the website of the City of
Tuscaloosa, the specific address of which is
tuscaloosa.maps.arcgis.com. In the inquiry box I
entered the below addresses. A true and accurate
screenshot of these inquiries is attached as
Exhibit A."
The trial court found there to be "no more than 70"
13
potentially
illegal
ballots,
although
this
number
included
the
ballots of 25 voters from whom no affidavit was received.
14These voters are discussed below in the same lettered
categories used by Horwitz in Exhibit A to her postjudgment
motion.
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The screenshot of the district map thus introduced by
Horwitz appears to support her allegations regarding S.M.H.
and Z.G.S. The same cannot be said of A.B.J., whose address
actually appears to be in District 4. Accordingly, only two
of those three votes appear to be illegal.
B.
Horwitz argued that 23 voters were not eligible to vote
in the District 4 election because they did not live in
District 4 during the 30 days preceding the election and
because their previous residence in Tuscaloosa was not in
District 4. Based on the affidavit evidence and an
examination of the maps introduced into evidence by Horwitz,
we agree that the addresses for 22 of these voters were
located outside District 4. The evidence did not, however,
support her allegations as to one of those voters.15
With regard to G.M.A., Horwitz stated:
15
"This voter moved into District 4 after July 28. She
spent the summer in New York, and prior to that, she
lived at 800 31st Avenue, which is outside District
4."
In her affidavit, G.M.A. indicated that, from August 2012
through May 2013, she lived at 800 31st Avenue in Tuscaloosa.
However, Marques's affidavit did not indicate
the
district for
800 31st Avenue. Rather, Marques's affidavit indicated that
38
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C.
Horwitz also argues that there were six voters who cast
provisional ballots that were counted but that should be
excluded as illegal. Horwitz presented evidence indicating
that the address of one of these voters, A.F., as written on
her provisional ballot, was not in District 4. Additionally,
with regard to four voters -- S.J., S.N., R.S., and A.L.T. –-
Horwitz introduced evidence indicating that the Tuscaloosa
addresses at which they resided before August 2013 were
located outside District 4. Finally, as to the sixth of these
voters, C.P., Horwitz correctly points out that, in her
affidavit, C.P. stated that, on July 28, 2013, her address was
in Robinson, Texas, and that C.P. did not provide any other
Tuscaloosa address prior to that. Accordingly, all 6 of those
votes are due to be rejected as illegal.
D.
Horwitz identifies another group of 17 voters who had
registered to vote in Tuscaloosa in anticipation of the 2012
800 31st Street was in District 7. Further, the screenshot of
the district map also shows the district for 800 31st Street
not 800 31st Avenue. Thus, Horwitz did not present any
evidence to establish that 800 31st Avenue was not in
District 4.
39
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presidential election but who had moved out of District 4
before the August 27, 2013, election. We agree that 16 of
those voters failed to meet the residency requirement, and
their votes must be rejected as illegal. As to the 17th
voter, V.L.H., Horwitz asserted: "This voter's affidavit
states that she live[d] at 205 20th Street East on the day of
the
election."
Horwitz presented evidence indicating that 205
20th Street East is not in District 4. But in her affidavit
V.L.H. actually stated that on the day of the election she
lived at 405 20th Street East. Horwitz did not present any
evidence to specifically show that 405 20th Street East is not
in District 4.
E.
Horwitz also argued that the registrations of 12 voters
were void because they provided incorrect addresses on their
voter-registration forms. Two of those voters -- Z.S.B. and
A.H. -- did not return affidavits. Therefore, those voters
would have been included in the 25 votes the trial court
separately assumed could be proven to be illegal votes. With
regard to the remaining 10 of these voters, we note as
follows.
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1.
Two of the 10 voters in this category -- M.B.B. and
C.A.L. -- indicated in their affidavits that they did not live
at the addresses listed on their registration forms.
Therefore, their votes were illegal and should not be counted.
2.
Horwitz also contends that, with regard to seven of those
voters, the addresses they listed on
their
voter
registrations
did not correspond to any of the locations they stated under
oath in their affidavits to be the places they had lived. Her
argument regarding two of those voters -- K.A.J. and V.L.M. --
is incorrect. The respective addresses listed for their voter
registrations were the same as the addresses they provided as
their current address and their address as of August 27, 2013.
Therefore, it appears that Horwitz proved illegality only as
to five of those seven voters.
3.
Horwitz also argues that the registration of J.H.A. was
void. Specifically, she contends:
"At no point in time did this voter live where he
registered to vote. The address he provided when he
registered to vote is 902 University Blvd. That
address appears no place on his affidavit as a place
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he has ever lived. Further, that address is Graves
Hall, College of Education, which is not a
residence. Thus, his voter registration is void and
his vote does not count. As noted below, his newly
registered fraternity brother, A.H., provided the
same fictitious residence when he registered to
vote. Both young men are members of Phi Gamma
Delta."
Contrary to Horwitz's assertion, however, the residential
address listed for J.H.A. on Kirby's charts is not 902
University
Boulevard.
Rather, it is 976 University Boulevard,
which is the same address J.H.A. listed on his affidavit.
Further, Horwitz has not presented any other evidence to
indicate
that
the
address
listed
on
J.H.A.'s
voter
registration was 902 University Boulevard. Additionally,
Horwitz did not present any evidence indicating that
976 University Boulevard is not a residence. Therefore, she
has not presented any evidence to establish that J.H.A.'s
registration was void and that his vote was illegal.
4.
In sum, of the 12 voters discussed in this subsection E,
only 7 cast illegal votes.
F.
Finally, Horwitz identifies one voter, K.B.J., who "moved
her registration to Montgomery prior to the August 27th
42
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election, but still voted in Tuscaloosa on that date." This
ballot is due to be rejected.
G.
Based on the foregoing, it appears that there were 54,
rather than 62, additional votes that were illegal.
Additionally, we determined in Part I of our analysis that,
under applicable presumptions and legal principles, 105
students had not established a change of domicile to
Tuscaloosa at least 30 days prior to the August 27, 2013,
election. In sum, Phase I of the contest yielded a total of
159 illegal votes based on domicile and other eligibility
issues discussed in Parts I and II of this opinion. This
number, of course, is in excess of the 87 illegal votes
Horwitz was required to show before she could proceed to
Phase II of the election contest.16
III. Votes Horwitz Contends were Illegal Based on
Misconduct
Horwitz also argues that the trial court erroneously
denied her claim that certain votes were due to be excluded on
As previously noted, 25 additional voters did not return
16
an affidavit. Under the protocol established by the trial
court, those voters may be subpoenaed to testify in Phase II,
i.e., in the "final hearing."
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the ground of voter misconduct. Specifically, she contends
that the trial court erred when it concluded "that an
inducement offered to a person to vote must be expressly
conditioned on voting for a specific candidate to constitute
misconduct under Alabama's elections laws."
Section 11-46-69, Ala. Code 1975, provides that one of
the causes for which an election may be contested is when
there are "[o]ffers to bribe, bribery, intimidation, or other
misconduct calculated to prevent a fair, free, and full
exercise of the elective franchise." § 11-46-69(a)(5).
Although the trial court found that "the law is not clear as
to whether an offer to bribe must be contingent on voting for
a particular candidate, the offer must be communicated to a
voter, or whether the offer must be communicated to and
accepted by a voter in order to invalidate that voter's vote,"
it ultimately concluded that "there must be an offer of
inducement to vote for a specific candidate that is at least
communicated to a voter before a vote can be invalidated."
Horwitz counters that Code sections that define specific
offenses for interfering with an election indicate that a
specific inducement for a particular candidate is not
44
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necessary in order to determine that a vote is illegal as a
result of bribery. For example, Horwitz cites certain
subsections of § 11-46-68, Ala. Code 1975, which she says
criminalize any attempt in a municipal election to influence
a vote through bribery, regardless of whether the attempt
involves an inducement to vote for a particular candidate:
"(e) Any person who buys or offers to buy any
vote of any qualified elector at any municipal
election by the payment of money or the promise to
pay the same at any future time or by the gift of
intoxicating liquors or other valuable thing shall
be guilty of a misdemeanor and, on conviction
thereof, shall be fined not less than $50.00 nor
more than $100.00.
"(f) Any person who by bribery or offering to
bribe or by any other corrupt means attempts to
influence any elector in giving his vote in a
municipal election or to deter him from giving the
same or to disturb or to hinder him in the full
exercise of the right of suffrage at any municipal
election must, on conviction, be fined not less than
$50.00 nor more than $500.00.
"(g) Any person who, by the offer of money or
the gift of money or by the gift of intoxicating
liquor or other valuable thing to any qualified
elector at any municipal election or by the loan of
money to such elector with the intent that the same
shall not be repaid, attempts to influence the vote
of such elector at such election, shall be guilty of
a misdemeanor and, on conviction, shall be fined not
less than $50.00 nor more than $500.00."
Horwitz also cites § 17-17-34, Ala. Code 1975, which provides:
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"It shall be unlawful for any person to pay or
offer to pay, or for any person to accept such
payment, either to vote or withhold his or her vote,
or to vote for or against any candidate. Any person
who violates this section shall be guilty, upon
conviction, of a Class C misdemeanor."
Even assuming for present purposes that Horwitz is
correct and that the law does not require that an otherwise
improper inducement to vote in a municipal election be tied to
a vote for a particular candidate in order to be illegal, she
still did not provide any admissible evidence indicating that
any such bribery occurred. As the trial court correctly
observed:
"At the October 15th hearing on the sufficiency of
Contestant's Notice, Contestant submitted Facebook
[social-media] messages, emails, and tweets [social-
media messages] as evidence of inducement. However,
these submissions are inadmissible hearsay. Courts
are not permitted to base findings on allegations
but rather only on admissible evidence."
Additionally,
Horwitz
did
not
present
evidence
indicating
that
the challenged voters actually saw any of the e-mails or
social-media messages or that any of the challenged voters
received the wristbands that were allegedly being handed out
in exchange for an "I Voted" sticker. Although Horwitz did
17
The wristbands allegedly would have entitled the voters
17
to a free drink at certain participating establishments that
served liquor.
46
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present some evidence indicating that members of a certain
sorority had tickets to and/or attended a Backstreet Boys
concert, she did not present any evidence to support her
allegation that members of that sorority were told that if
they registered to vote but did not vote they would not
receive a ticket to the concert.
Horwitz does not dispute that she failed to present
admissible evidence of voter misconduct in the form of
bribery. She argues, however, that she was precluded from
presenting admissible evidence because, she says, the trial
court did not allow her to depose any of the voters who were
allegedly tied to the bribery schemes.
Horwitz's argument is unavailing because of the format of
the bifurcated trial. As previously noted, the determination
of the illegality of votes resulting from both residency and
inducement issues was, for those voters who returned
affidavits, to be made based on those affidavits and any other
evidence introduced at the October 31 and November 6 hearings.
See discussion supra.
18
Because Horwitz agreed to the format of Phase I in which
18
contested votes would be screened through the affidavit
process, we likewise find no substance to her more general
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The affidavit form distributed to the voters contained
questions as to whether the voter had been asked by another to
vote or had been pressured to vote, and whether the voter had
cast his or her ballot voluntarily. This line of questions
stopped short of inquiring into whether the voter had been
induced to vote by an offer of something of value. Nor were
there any questions as to whether those voters were even aware
of the e-mails or social-media messages upon which Horwitz
relied to attempt to establish voter misconduct. Horwitz did
not call any witnesses to establish a connection between the
votes she challenged for misconduct and the schemes she
alleged induced those votes. Instead, Horwitz
relied
entirely
on the affidavits and evidence she concedes was inadmissible
hearsay. Therefore, the trial court did not err in concluding
that Horwitz failed to prove the illegality of votes based on
misconduct in the form of bribery.
Conclusion
Based on the applicable law and facts, we conclude that
Phase I of the election contest yielded a total of 159 ballots
argument that the trial court erred when it limited her to
presenting testimony by means of affidavits of the challenged
voters rather than by live testimony.
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due to be rejected. Accordingly, the judgment of the trial
court is reversed and the cause is remanded to the trial court
for the conduct by the trial court of Phase II of the contest
in accordance with this opinion.
REVERSED AND REMANDED.
Bolin, Parker, Murdock, and Main, JJ., concur.
Moore, C.J., and Shaw and Bryan, JJ., concur in the
result.
Stuart and Wise, JJ., dissent.
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WISE, Justice (dissenting).
I respectfully dissent from the holding in the main
opinion regarding the domicile of students for purposes of
registering to vote in the places where those students attend
school. I believe the reasoning in the main opinion would
place an unnecessary burden on students who wish to vote and
could potentially have a chilling effect on future voter
participation.
In Ex parte Phillips, 275 Ala. 80, 152 So. 2d 144 (1963),
this Court stated:
"Since every person must have a domicile, the law
assigns to persons incapable of acquiring a domicile
through choice, a domicile by operation of law. This
first domicile so assigned is the domicile of
origin. Beale, Conflict of Laws, Vol. 1, page 210.
The place of the birth of a person is considered as
his domicile of origin, if at the time of his birth
it is the domicile of his parents. Daniel v. Hill,
52 Ala. 430 [(1875)]. A domicile of origin, as in
the
case
of
domicile
of
choice,
when
once
established is continuing until another domicile is
acquired. Daniel v. Hill, supra; Merrill's Heirs v.
Morrissett, 76 Ala. 433 [(1884)]; Ex parte Bullen,
236 Ala. 56, 181 So. 498 [(1938)]; Ex parte State ex
rel. Altman, 237 Ala. 642, 188 So. 685 [(1939)].
"....
"In order to acquire a domicile of choice there
must be both an abandonment of the former domicile
with no present intention of return, and the
establishment of another place of residence with the
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intention to remain permanently, or at least for an
unlimited time; and the intent to remain permanently
may be inferred from the intent to remain for an
unlimited time. Holmes v. Holmes, 212 Ala. 597, 103
So. 884 ([1925)]; Merrill's Heirs v. Morrissett,
supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722
[(1891)].
"It is also well settled by our decisions that
a domicile once acquired continues until a new
domicile is effectuated. Holmes v. Holmes, supra;
Pope v. Howle, 227 Ala. 154, 149 So. 222 ([1933)];
Glover v. Glover, 18 Ala. 367 [(1850)]; Mitchell v.
Kinney, 242 Ala. 196, 5 So. 2d 788 [(1942)]."
275 Ala. at 82-83, 152 So. 2d at 146-47 (emphasis added).
Also, in Wilkerson v. Lee, 236 Ala. 104, 106-07, 181 So. 296,
298 (1938), this Court stated:
"A
voter
having
acquired
a
legal
residence,
been
duly registered as a voter of the county and
precinct or ward, ... may retain such residence
until he has abandoned and removed therefrom with
the
intent
to
become
a
resident
elsewhere.
Temporary absence from one's residence for the
purposes of his employment and the like, without the
intent to abandon the home town and acquire a
domicile elsewhere permanently, or for an indefinite
time, does not forfeit his right to vote. Pope v.
Howle, 227 Ala. 154, 149 So. 222 [(1933)]; Caheen v.
Caheen, 233 Ala. 494, 172 So. 618 [(1937)]; 8
Alabama Digest, Elections, 264."
(Emphasis added.) Thus, when determining whether a student
attending school away from his or her hometown has acquired a
new domicile for voting purposes, this Court must look at
whether the person (a) had an intent to abandon his or her
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hometown and (b) intended to acquire a domicile elsewhere
permanently or for an indefinite time. However, the main
opinion goes further and imposes a requirement
applicable
only
to students -- that the students have definite plans to reside
in the city in which they are attending school after they
graduate. This appears to go further than our previous
caselaw regarding the establishment of a new domicile.
In this case, most of those students whose votes are
challenged and who are addressed in Part I of the main opinion
indicated that they intended to remain in Tuscaloosa
indefinitely; all but a handful of those students indicated
that they did not have definite plans after graduation.
Additionally, nothing in the affidavits submitted by those
students indicated that they had any intent to return to their
parents' home after they graduated. Rather, most indicated
that they had no clear intent to return to their parents' home
after graduation. Thus, this was not a situation where the
evidence supported a finding that the students were
temporarily absent from their parents' home with an intent to
return after they completed their schooling. This fact,
coupled with the students' stated intention of remaining in
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Tuscaloosa indefinitely and with the fact that these students
took the affirmative action of registering to vote in
Tuscaloosa, seems to satisfy the requirements of
Wilkerson for
establishing a change in domicile for voting purposes.
Note 7 of the main opinion reads:
"In Harris v. McKenzie, 703 So. 2d 309, 311
(Ala. 1997), this Court found '[r]egistration to
vote [to be] a "potent consideration" for a court to
take into account when determining one's domicile.'
(Quoting Ambrose v. Vandeford, 277 Ala. 66, 70, 167
So. 2d 149, 153 (1964).)"
___ So. 3d at ___ n. 7. After noting that Harris relied on
Ambrose v. Vandeford, 277 Ala. 66, 70, 167 So. 2d 149, 153
(1964), which involved a challenge to venue, the main opinion
goes on to state:
"In
contrast,
where
the
propriety
of
a
resident's registering to vote is itself the issue,
it obviously makes little sense to consider as
particularly
'potent'
that
very
act
of
registration."
___ So. 3d at ___ n. 7. However, when determining whether a
student has decided to change his or her domicile for voting
purposes, what can be more demonstrative of the student's
intent than the act of registering to vote in the city and
county of his or her new domicile? By registering to vote in
the city and county in which the student is attending school,
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the student is relinquishing the right to vote in his or her
previous domicile, i.e., his or her hometown. The student is
also expressing a desire to become involved in the political
process of the city, county, and state in which the student is
actually living and where the student spends the majority of
his or her time, rather than in the community in which the
student’s parents live or in a political community with which
the student may maintain little to no contact. Moreover,
19
these students play an important role in the financial,
social, and religious fabric of the community where they
attend school. College students certainly contribute to the
financial base of the area; they frequent area retail shops,
service stations, grocery stores, and restaurants, just to
name a few of the places college students spend money. Many
I note that two of the cases relied on in the main
19
opinion -- Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510
(1945), and Ex parte Coley, 942 So. 2d 349 (Ala. 2006) -- also
involved a determination of domicile for purposes of venue in
civil litigation rather than a determination of domicile for
voting purposes. Some of the general principles in those
cases might be relevant to determining a person's domicile for
voting purposes. However, I believe that a determination of
domicile for purposes of deciding whether a person is even
qualified
to
register
to
vote
in
a
county
raises
considerations vastly different from a determination of
whether a party in a civil action has established his or her
domicile for purposes establishing proper venue for the
action.
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students
rent
apartments
and
obtain
employment
while
attending
school. Students attend churches and synagogues, become
involved in charitable work, and volunteer in political
campaigns within these communities. Because these students
have such a significant impact on the community in which they
live and attend school, they should rightly enjoy all the
privileges other citizens in that community enjoy. To deny
these student citizens the right to vote in the community of
their chosen domicile, i.e., where they live and attend
school, is, in my opinion, nonsensical.
The main opinion also focuses on various other factors in
determining whether the students were domiciled in Tuscaloosa
for purposes of registering to vote. Specifically, it looks
at such factors as whether the students have previously
registered to vote and/or voted elsewhere; the addresses
listed on the students' driver's licenses and the dates those
licenses were renewed; the county and state where the
automobiles the students "own or drive" are registered; the
addresses listed on the students' federal and state income tax
returns; the addresses to which their school registration
information is sent; the addresses to which their grades are
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sent; and the location of the banks with which they have
checking or savings accounts. I do not believe that this
Court should focus on these factors, which, at times, shed
very little light on the students' actual intent regarding
their domicile. Although the factors evaluated in the main
opinion might be relevant in determining whether the students
in question intended to change their domicile at some time
before they actually registered to vote, these factors should
not be determinative of whether students even have a right to
register to vote in the city in which they attend school.
Rather, I believe that the main opinion's reliance on these
factors ignores the reality of student life today.
College students leave home to attend school when they
are young and have little life experience. Some students may
initially plan to return home after they complete their
education. However, as they adjust to life at school, become
part of the community in which their school is located, and
mature, those plans frequently change. Thus, plans change and
the students change, and they no longer intend to return to
their hometown after they leave school. Other students leave
their parents' homes to attend school with no intention of
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ever returning to their parents' homes after they complete
school. These two groups of students may decide to remain in
the places where they attend school indefinitely and may plan
to try to seek employment or to attend graduate school there.
These students might not have any definite postgraduation
plans because they do not know where they will actually find
employment after graduation; they do not know if they will
attend graduate school or where they will be accepted if they
do; and they do not know what opportunities will be available
to them when they graduate. If a student does not intend to
return to his or her parents' home and decides to remain
indefinitely in the city in which the student attends school,
why should that student be considered domiciled in his or her
hometown and required to vote absentee merely because the
student has not formulated definite plans after graduation?
Additionally, the main opinion looks at the fact that
some of the students in this category had previously
registered and/or voted elsewhere to indicate that those
students did not intend to change their domicile. This
category included some students who had registered to vote
before they ever became students at the University of Alabama;
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some students who registered to vote after they became
students at the University of Alabama; and others who provided
information that was not clear as to whether they had
registered to vote before or after they became students at the
University of Alabama. Of those who had previously registered
to vote elsewhere, some never voted in those other locations;
some voted in the other location before they became students
at the University of Alabama, while others voted after they
became students at the University of Alabama. Some of those
students indicated that they had voted by absentee ballot.
However, the fact that students had previously registered
and/or voted elsewhere but then changed their voter
registration to Tuscaloosa County is, in my opinion, equally
suggestive that it was the intention of those students to
change their domicile.
The main opinion also focuses on the addresses the
students had listed on income-tax returns, had provided to the
University of Alabama for registration purposes, and to which
they had their grades sent. Although some students remain in
the city in which they attend school year round, many students
are temporarily absent during holidays, school breaks,
and
the
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summer. Although some students return to their parents' home
for the summer, others travel or visit with friends and other
relatives. Other students temporarily live in
other
locations
while they work or complete internships. Some students
participate in study-abroad programs during the summer.
Thus,
for practical purposes, many students might use
their
parents'
address for important matters such as tax returns, school
registration, and semester grades. Also, with regard to
grades
and
school-registration
materials,
many
of
the
students
whose votes are being challenged indicated that their grades
and/or registration materials were sent not by conventional
mail, but to e-mail addresses or were obtained online, and
they did not provide any address to which that information had
been mailed. Further, some students have their grades and
20
When discussing the 108 students in Part I, the main
20
opinion indicates that all of those voters listed an address
outside Tuscaloosa as the address to which the University
sends their grades. It is true that many students indicated
that their grades were sent to their parents' addresses.
However, there were also many students who indicated that
their grades were sent to an e-mail address or were obtained
online and who did not provide any mailing address, much less
an address outside Tuscaloosa, to which grades were sent.
Other students did
not
provide any information regarding where
their grades were sent. Additionally, one student indicated
that her grades were sent only to her Tuscaloosa address. Two
other students indicated that their grades were sent both to
an address outside
Tuscaloosa
and to those students' addresses
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registration information sent to their parents because their
parents provide financial support.
21
The main opinion also looks to the location of the banks
at which the students had checking or savings accounts.
Initially, I note that, in Ex parte Coley, 942 So. 2d 349
(Ala. 2006), when determining whether Coley had established
that she had changed her domicile for venue purposes, this
Court looked at the fact that Coley's bank accounts listed her
home address as being in the county in which her parents
resided. However, the affidavits in this case do not elicit
any specific information regarding the addresses listed
on
the
students' bank accounts. Rather, the affidavits included the
following language:
"I have a checking or saving account with _____
located in _______."
Moreover, many of the students indicated that the banks at
which they did business were located in Tuscaloosa. Others
indicated that their banks were located in other cities.
in Tuscaloosa. Therefore, the assertion that all the voters
listed an address outside Tuscaloosa to which their grades
were to be sent is not accurate.
In fact, one student stated in his affidavit that his
21
grades were sent to his parents' address "cause my parents pay
for my education."
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However, relying on the location of the banks at which the
students did business to determine their intent to maintain a
domicile ignores three separate considerations. First, some
students open bank accounts before they leave for school and
do not change their established bank accounts once they are
living in the city where they attend school. In fact, one
student indicated on her affidavit that her father had opened
the account in another town but that she used the local branch
of that bank in Tuscaloosa. Second, heavy reliance on the
location of the bank also ignores the reality of banking
today. Even if a student's home bank might technically be
located in the city or town where he or she lived before
starting school, many banks have branches throughout
the
state
and the country. Also, even if the bank did not have a branch
in Tuscaloosa, with the advent of electronic banking, debit
cards, and automatic-teller machines, people can access their
funds, deposit checks, make transfers, open accounts, apply
for loans, and handle other banking needs without ever going
to a physical bank building. Thus, a student may not transfer
an account to another bank located in the town where the
student is attending school, even though he or she intends to
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change his or her domicile. Finally, for some students who
are receiving financial support from their parents, having an
account in the town or city in which their parents live might
make it more convenient for their parents to deposit money
into their accounts.
The main opinion also looks at the state and county in
which the automobiles the students owned or drove were
registered. However, this factor should not weigh heavily in
a determination as to a student's domicile. The affidavits
asked about the automobile that the student "own[s] or
drive[s]," but never asked about who actually owned the
automobile. If the student does not actually own the
automobile the student is driving, how can where that
automobile is registered shed any light on whether the student
is actually domiciled in Tuscaloosa or elsewhere? Thus, the
affidavits do not provide this Court with enough information
regarding the registration of the automobiles to use in
determining whether the students were domiciled in Tuscaloosa
for voting purposes.
Finally, the main opinion looks at the states where the
students' driver's licenses were issued, the addresses listed
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on those driver's licenses, and the dates the licenses were
renewed. Many of those students who had licenses issued by
other states or Alabama licenses that listed an address for
somewhere other than Tuscaloosa had been renewed in 2012 or
before. For those students, this information does not shed
any light on their intent regarding domicile at the time they
registered to vote. With regard to those students who renewed
their licenses in 2013, that information could be relevant in
determining whether those students intended to change their
domicile before they actually registered to vote in
Tuscaloosa. However, it should not be used in determining
whether students who were living in Tuscaloosa and who
subsequently took the affirmative action of registering to
vote in Tuscaloosa were actually domiciled there for purposes
registering to vote.
Moreover, I believe that the holding in the main opinion
regarding the domicile of a student is contrary to legislative
intent.
Section 17-11-3, Ala. Code 1975, provides, in pertinent
part:
"(a) Any qualified elector of this state may
apply for and vote an absentee ballot by mail or by
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hand delivery, as provided in Sections 17-11-5 and
17-11-9,[Ala. Code 1975,] in any primary, general,
special, or municipal election, if he or she makes
application in writing therefor not less than five
days prior to the election in which he or she
desires to vote and meets one of the following
requirements:
"....
"(4) The person is enrolled as a
student at an educational institution
located outside the county of his or her
personal residence attendance at which
prevents his or her attendance at the
polls."
(Emphasis added.) This statute merely provides that a student
may vote by absentee ballot in the county in which he or she
resided before leaving to attend school. This would be
appropriate for students who intend to return to their
hometowns after school and who wish to maintain their
domiciles at their previous residences while they are
attending school. Additionally, this provision is consistent
with § 17-3-32, Ala. Code 1975, which provides, in pertinent
part, that "[n]o person shall lose or acquire a domicile ...
by temporary absence from his or her domicile without the
intention of remaining."
Also, nothing in these statutes suggests that a student
who has left home to attend school must vote by absentee
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ballot or that the student cannot register to vote in the
county where he or she attends school. Further, the statutes
do not suggest that students must maintain their previous
domicile based on the fact that they do not have definite
plans after they graduate. Rather, these statutes merely
allow a student who wishes to maintain his or her domicile at
his or her parents' residence to do so. These statutes do not
create a presumption that a student's domicile automatically
remains at the parents' residence. This seems specifically
clear when reading these statutes in conjunction with § 17-3-
11, Ala. Code 1975.
Section 17-3-11(a) provides:
"The board of registrars in each county shall visit
each college or university, whether public or
private, having an enrollment of 500 or more, which
is located therein, at least once during the school
year for the purpose of registering voters, and
shall remain there for one full working day,
weekends and holidays excepted. They shall give at
least 12 days' notice of the time and place where
they will attend to register applicants for
registration, by bills posted at three or more
public places and by advertisement once a week for
three consecutive weeks in a campus newspaper, if
there is one published on the campus. Each college
or university receiving state funds that is affected
by the provisions of this section shall provide
space and accommodations for the board of registrars
on their campus."
65
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(Emphasis added.) It is true that this statute does not
actually speak to domicile. Further, I agree with the main
opinion that the trial court was incorrect in finding that
§
17-3-11
creates
a
presumption
that
a
student
is
automatically domiciled in the city in which he or she attends
school. However, I believe that, when this statute is read in
conjunction with § 17-11-3, Ala. Code 1975, it sheds light on
the legislature's intent regarding voting by students who
leave their parents' homes to attend school. I read these
statutes, together, as providing an avenue by which any
student who wishes to retain his or her former domicile while
attending school may do so, but, if a student intends to
change his or her domicile to the place where he or she
attends school, the student has a right to register to vote in
that county. In both situations, it is the student's intent
regarding domicile that should be the controlling factor.
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Additionally, § 17-3-52, Ala. Code 1975, provides, in
22
pertinent part:
"The board of registrars shall have power to
examine, under oath or affirmation, all applicants
for registration, and to take testimony touching the
qualifications of such applicants, but no applicant
shall be required to answer any question, written or
oral, not related to his or her qualifications to
register. In order to aid the registrars to
judicially determine if applicants to register have
the qualifications to register to vote, each
applicant shall be furnished by the board a written
application, which shall be uniform in all cases
with no discrimination as between applicants, the
form and contents of which application shall be
promulgated by rule by the Secretary of State of the
State of Alabama. The application shall be so
worded that there will be placed before the
registrars information necessary or proper to aid
them to pass upon the qualifications of each
applicant."
23
The 2014 Cumulative Supplement pocket part to the
22
Alabama Code contains only what appear to be updated voter-
registration forms, which previously were appended to the
statute by a Code Commissioner's note. There is no text and
no description of how these forms became part of the Code. I
assume it was not the intention of the Code Commissioner to
delete the text.
Prior to January 1, 2007, this statute provided that the
23
form would be prescribed by this Court and that this Court
would file the form with the Secretary of State.
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The approved voter-registration forms provide, in pertinent
24
part:
"To register to vote in the State of Alabama, you
must:
"!
Be a citizen of the United States.
"!
Reside in Alabama.
"!
Be at least 18 years old on or before
election day.
"!
Have
not
been
convicted
of
a
disqualifying felony, or if you have
been convicted, you must have had your
civil rights restored.
"!
Not have been declared 'mentally
incompetent' by a court."
The form then asks for the following information:
1) "Address where you live: (Do not use post office
box)";
2) "Address where you receive your mail";
3) "Address where you were last registered to vote
(Do not use post office box)."
Finally the form includes the following voter declaration:
"! I am a U.S. citizen
"! I live in the State of Alabama
"! I will be at least 18 years old on or before
election day
"! I am not barred from voting by reasons of a
disqualifying felony conviction
The Code Commissioner's Notes to § 17-3-52 indicate
24
that the original two voter-registration forms had been
approved by this Court on October 22, 1999. As to the
language quoted, the new forms are substantially the same as
the original forms.
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"! I have not been judged 'mentally incompetent' in
a court of law"
The form specifically asks where the applicant lives and
requires the applicant to verify that he or she lives in
Alabama. It also asks for the previous address at which the
applicant had last registered to vote but does not attempt to
elicit any information
regarding whether the applicant had any
intent to abandon his or her previous domicile and does not
elicit any information
regarding whether the applicant has any
intent to remain at the new address permanently or
indefinitely. However, this form is supposed to provide a
registrar with all the information necessary to aid in passing
upon an applicant's qualifications.
The main opinion holds that a student cannot vote in the
place where he or she is living and attending school unless
the student has formed definite plans to remain in that place
after completing his or her education. This holding seems
inconsistent with the fact that the voter-registration forms
merely ask for information regarding where the applicant
lives, coupled with a statute that requires registrars to
visit local campuses having an enrollment of 500 or more, for
the sole purpose of registering students to vote. Under the
69
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holding of the main opinion, it appears that these forms and
the registrars' presence on campus would lead students astray
and actually encourage the students to register to vote in
places where they are not qualified to vote based on their
presumed domicile.
Further, the definition in the main opinion of domicile
for a student would also impose additional fact-finding
measures upon the registrars who are required to register
students on college campuses. Because students would be
presumed to maintain their previous domicile in their
hometowns absent an intent to remain in the city in which they
are attending school after graduation and some affirmative
actions to establish that intent, registrars
would
be
required
to go beyond the written applications and to question each
student applicant as to: (1) his or her previous domicile,
regardless of whether he or she had previously registered
elsewhere; (2) his or her definite plans for the future; and
(3) whether he or she had undertaken any affirmative actions
to establish a new domicile in the place in which he or she
attends
school.
This
seems
inconsistent
with
the
legislature's stated intent that applicants will be provided
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with uniform, written applications that will aid
registrars
in
determining whether an applicant is qualified to vote and its
intent that the application will provide registrars with the
information they need to determine a voter's qualifications.
When reading all of these statutes in conjunction with
one another, it appears that the legislature intended to give
students the option of maintaining their domicile in their
hometown and voting by absentee ballot or registering to vote
where they attend school. It also appears that § 17-3-11 was
an attempt to facilitate students' ability to vote where they
attend school by having registrars come to school campuses and
register any interested students to vote. However, the main
opinion in this case would have the opposite effect. It
appears that it would prevent many, if not most, students from
voting in the cities in which they live and attend school.
Rather, it would force students to comply with a more
burdensome absentee-ballot process. I believe that such a
holding places undue obstacles in the path of students who
wish to vote. Additionally, I believe that the decision could
potentially
discourage
students
from
any
political
involvement
in the city in which they live, spend money, and have
71
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developed significant ties during their time as students.
Therefore, I must respectfully dissent from the holding of
main opinion that a student cannot be domiciled in the city in
which he or she attends school unless that student has
indicated that he or she has definite plans to remain there
after he or she graduates and has taken affirmative steps,
other than registering to vote, to demonstrate that he or she
intends to make that place his or her domicile.
Stuart, J., concurs.
72 | September 30, 2015 |
589ed152-72b5-41d6-9495-9464be1de93e | Ex parte W. F., W.L.C., and R. J. J. | N/A | 1131472 | Alabama | Alabama Supreme Court | rel: 10/30/2015
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, 2015-2016
____________________
1131472
____________________
Ex parte W.F., W.L.C., and R.J.J.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: W.F., W.L.C., and R.J.J.
v.
State of Alabama)
(Lowndes Circuit Court, CC-13-35; CC-13-36; CC-13-37;
CC-13-38; CC-13-39; CC-13-40; CC-13-41; CC-13-42; and
CC-13-43;
Court of Criminal Appeals, CR-13-1188)
MOORE, Chief Justice.
1131472
R.J.J., W.L.C., and W.F. (hereinafter referred to
collectively as "the petitioners") were convicted in the
Lowndes Circuit Court of hunting after dark, hunting from a
public road, and hunting with the aid of an automobile. The
Court of Criminal Appeals affirmed their convictions by an
unpublished memorandum. W.F. v. State (No. CR-13-1188, Aug.
22, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)(table). We
granted their petition for a writ of certiorari to review the
Court of Criminal Appeals' decision.
I. Facts and Procedural History
On January 3, 2013, the petitioners, who were juveniles
at the time, met at R.J.J.'s house. They loaded groceries into
a truck with the intent of taking the groceries to a hunting
cabin in Lowndes County belonging to a relative of one of the
petitioners. W.F. brought his new AR-15 rifle along and placed
it in the backseat of the truck. According to R.J.J., he and
the other two petitioners are "gun enthusiasts," and W.F.
brought the rifle
along
for "[s]afety and protection." R.J.J.,
who has a permit to carry a concealed weapon in Alabama,
testified that he carries a gun wherever he goes, including
when he travels at night. He further testified that the
2
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magazine for W.F.'s rifle was on the truck's front center
console.
At approximately 6:30 or 6:45 p.m., the petitioners left
R.J.J.'s house. R.J.J. drove, W.F. was in the front passenger
seat, and W.L.C. was in the backseat. They intended to drop
the groceries off at the cabin and then return immediately to
R.J.J.'s house because R.J.J.'s parents had ordered pizza for
them.
After the petitioners had driven for approximately 15 or
20 minutes, R.J.J. pulled up to a stop sign on Brown Hill Road
at the intersection of Brown Hill Road and Highway 29. W.L.C.
and R.J.J. testified that the truck came to a complete stop
and that they waited at the stop sign to allow a car traveling
south on Highway 29 to pass through the intersection before
proceeding. W.L.C. testified that the windows of the truck
were up at the time and that no shots were fired from the
truck. Both R.J.J. and W.L.C. testified that W.F.'s rifle was
not fired at any time that night.
Russell Morrow, a retired conservation and enforcement
officer for the State of Alabama and a reserve deputy for the
Lowndes County Sheriff's Department, lives on Brown
Hill Road.
3
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Morrow testified that the area is frequented by wildlife,
including deer. After nightfall at approximately 7:00 p.m. on
January 3, 2013, Morrow was standing next to his vehicle near
his house. From that vantage point, he could see a truck
stopped at the stop sign approximately 140 yards away. The
left turn signal on the truck was engaged. Morrow could not
see any individuals through the windows of the truck. Morrow
testified, in contradiction to W.L.C. and R.J.J., that there
was no southbound traffic on Highway 29 at the time.
Morrow testified that "the truck sat there and sat there.
Then I heard two high powered rounds go off from the vehicle."
Morrow has 25 years of experience in law enforcement and
testified that he was familiar with the sound of a firearm.
Morrow believed, but did not know for sure, that the sounds
came from the driver's side of the truck. Morrow did not see
a muzzle flash and could not see any intended target.
After he heard the shots, the truck turned left and
headed south on Highway 29. Morrow got into his own vehicle
and followed the truck as it traveled south on Highway 29 and
then onto another road before stopping at a gate outside the
hunting cabin. The petitioners got out of the truck to open
4
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the gate, and Morrow got out of his vehicle. Morrow and the
petitioners provided different accounts of the conversation
that ensued.
Morrow testified that he asked the petitioners "what they
were shooting at" and that they denied shooting at anything.
Morrow testified that one of the petitioners "said that it was
firecrackers" that Morrow had heard but that, when Morrow
asked the petitioners to show him the firecrackers, the
petitioners "said it wasn't firecrackers" and acknowledged
that they had a rifle in the truck.
W.L.C., however, testified that Morrow "yelled at us,"
saying "that we shot something back at the stop sign or he
said we shot the stop sign, shot a deer." According to W.L.C.,
Morrow repeatedly stated that the petitioners had fired a
weapon while the truck was stopped at the intersection, and
the petitioners denied doing so. R.J.J. testified that Morrow
first accused the petitioners of shooting a pistol at a stop
sign, but that then Morrow "kind of changed it" and asked
"where was the deer, and things of that nature." R.J.J.
testified that Morrow asked where the pistol was and that
R.J.J. said that they had a rifle. W.L.C. testified that
5
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Morrow asked the petitioners if they had a gun in the vehicle
and that the petitioners said that they did. Morrow told the
petitioners that he was going to call the sheriff's
department.
The petitioners unlocked the gate and drove up to the
cabin. They locked the gate behind them to prevent Morrow from
following them. From outside the gate, Morrow could see
movement and "lights where they were going in and out" of the
cabin, but he could not make out what the petitioners were
doing. W.L.C. testified that he and the other petitioners were
unloading the groceries from the truck and placing them inside
the cabin. Morrow said that the petitioners remained in or
around the cabin for 30 minutes.
While the petitioners were at the cabin, Morrow contacted
Lowndes County Sheriff John Williams, who dispatched two
deputies to the cabin. Before the deputies arrived, the
petitioners pulled the truck up to the gate as if to leave.
Morrow blocked the gate and told the petitioners that they
could not leave until the sheriff deputies arrived. Deputy
Reginald McKitt and Deputy Andrew Bryant were the deputies who
responded to the scene. Deputy McKitt testified that
6
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approximately 30 minutes had passed from the time he was
dispatched until he arrived at the cabin. Morrow told Deputy
McKitt that he had heard gunshots coming from the petitioners'
truck when the truck was stopped on Brown Hill Road. Deputy
McKitt asked the petitioners if there was a weapon in the
truck, and they confirmed that there was. Deputy McKitt asked
for permission to search the truck, and the petitioners
consented to the search.
Deputy McKitt discovered W.F.'s unloaded rifle, with no
magazine inserted, in the rear floorboard of the truck.
Although Morrow testified that the rifle was equipped with a
flash suppressor, R.J.J. said that the rifle did not have a
flash suppressor but that it did have "a compensator that
reduces kick." The deputies testified that the rifle smelled
as though it had been cleaned with cleaning fluid, and Morrow
opined that the rifle had been "freshly wiped down with a
solvent." W.L.C. testified that the rifle was not cleaned that
night.
Deputy McKitt testified that he could not determine if
the weapon had been fired recently. He further testified that
he did not find a magazine in the truck. However, R.J.J. and
7
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W.L.C. testified that the magazine was in the truck and that
the magazine contained tracer rounds. According to W.L.C.,
"tracers are a phosphorous tip that, when shot from a gun, it
glows. You can see it travel like a line through the sky --
through the air, especially at night." Morrow testified that
he had not seen the alleged shots.
Morrow asked the deputies to perform a computer check of
the serial number of the rifle, and he assisted them in
locating the number. Deputy McKitt testified that "nothing
came back in the system about the weapon." The rifle was
returned to the truck, and all parties left the scene. Morrow
testified that, in his opinion, an AR-15 rifle firing
ammunition out of the window of a vehicle would have thrown
the shell casings back into the vehicle. Deputy McKitt did not
find any shell casings in the truck. The next morning, Morrow
searched for but found no shell casings in the area near the
stop sign at the intersection of Brown Hill Road and Highway
29.
On January 7, 2013, Morrow signed out arrest warrants
against the petitioners for hunting after dark, hunting from
a public road, and hunting with the aid of an automobile. The
8
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Lowndes Circuit Court granted the petitioners' request to be
tried as youthful offenders and consolidated their cases for
trial. The circuit court held a bench trial at which Morrow,
the deputies, W.L.C., and R.J.J. testified. At the close of
the State's evidence, the petitioners moved for a judgment of
acquittal, arguing that the State failed to prove their guilt
beyond a reasonable doubt. The State opposed the petitioners'
motion on the ground that it had established a prima facie
case of the petitioners' guilt under Rogers v. State, 491 So.
2d 987 (Ala. Crim. App. 1985). The circuit court denied the
petitioners' motion. At the close of all the evidence, the
petitioners again moved for a judgment of acquittal, which the
court again denied.
At the conclusion of the trial, the circuit court found
the petitioners guilty of hunting at night in violation of §
9-11-235, Ala. Code 1975, hunting from a public road in
1
Section 9-11-235 provides, in pertinent part:
1
"It shall be unlawful, except as to trapping as
otherwise provided by law, for a person to take,
capture, or kill, or attempt to take, capture, or
kill any bird or animal protected by the laws of
this state between sunset and daylight of the
following day, except that the Commissioner of
Conservation and Natural Resources may by a duly
promulgated regulation, allow the taking, catching,
9
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violation of § 9-11-257, Ala. Code 1975, and hunting with the
2
or killing of raccoons or opossums between sunset
and daylight in any county or counties within the
state. ...
"Any person violating this section shall be
guilty of a Class B misdemeanor and, upon conviction
thereof, shall be punished for the first offense by
a fine of not less than two thousand dollars
($2,000) nor more than three thousand dollars
($3,000) and may be imprisoned in the county jail
for a period not to exceed six months. In addition,
the
court
shall
revoke
all
hunting
license
privileges for a period of three years from the date
of conviction."
Section 9-11-257 provides:
2
"Any person, except a duly authorized law
enforcement officer acting in the line of duty or
person authorized by law, who hunts or discharges
any firearm from, upon, or across any public road,
public highway, or railroad, or the right-of-way of
any public road, public highway, or railroad, or any
person, except a landowner or his or her immediate
family hunting on land of the landowner, who hunts
within 50 yards of a public road, public highway, or
railroad, or their rights-of-way, with a centerfire
rifle, a shotgun using slug or shot larger in
diameter than manufacturer's standard designated
number four shot, or a muzzleloading rifle .40
caliber or larger in this state, shall be guilty of
a misdemeanor and, upon conviction, shall be
punished for the first offense by a fine of not less
than one thousand dollars ($1,000), and shall be
punished for the second and each subsequent offense
by a fine of not less than two thousand dollars
($2,000) and shall have all hunting license
privileges revoked for one year from the date of
conviction."
10
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aid of an automobile in violation of Rule 220-2-.11(1), Ala.
Admin.
Code
(Department
of
Conservation
and
Natural
Resources). The circuit court ordered each of the petitioners
3
to pay $4,000 in fines plus court costs, revoked their hunting
privileges for 3 years, and sentenced them to 6 months in the
Lowndes County jail for the night-hunting conviction, 30 days
for the hunting-with-the-aid-of-an-automobile
conviction, and
30 days for the hunting-from-a-public-road conviction, the
sentences to be served concurrently. The circuit court
suspended the petitioners' jail sentences and placed them on
unsupervised probation for two years. The petitioners moved
for an arrest of judgment and a judgment of acquittal or, in
the alternative, a new trial. That motion was denied by
operation of law.
The petitioners appealed their convictions and the denial
of their postjudgment motion to the Court of Criminal Appeals.
The Court of Criminal Appeals unanimously affirmed the
Rule 220-2-.11(1) provides:
3
"It shall be unlawful to concentrate, drive,
rally, molest or to hunt, take, capture or kill or
attempt to hunt, take, capture or kill any bird or
animal from or by the aid of
"(1) Any automobile ...."
11
1131472
judgment of the circuit court in an unpublished memorandum and
denied the petitioners' application for rehearing. The
petitioners then petitioned this Court for a writ of
certiorari. We granted the petition to consider the argument
that the decision of the Court of Criminal Appeals affirming
their convictions conflicts with Alabama precedent requiring
the State to prove (1) every element of an offense and (2)
that the accused acted with a culpable mental state.
II. Standard of Review
"A motion for a judgment of acquittal tests the legal
sufficiency of the evidence." State v. Grantland, 709 So. 2d
1310, 1311 (Ala. Crim. App. 1997).
"'In
determining
the
sufficiency
of
the
evidence
to sustain a conviction, a reviewing court must
accept as true all evidence introduced by the State,
accord
the
State
all
legitimate
inferences
therefrom, and consider all evidence in a light most
favorable to the prosecution. Faircloth v. State,
471 So. 2d 485 (Ala. Cr. App. 1984), aff'd, 471 So.
2d 493 (Ala. 1985).' Powe v. State, 597 So. 2d 721,
724 (Ala. 1991). It is not the function of this
Court to decide whether the evidence is believable
beyond a reasonable doubt, Pennington v. State, 421
So. 2d 1361 (Ala. Cr. App. 1982); rather, the
function of this Court is to determine whether there
is legal evidence from which a rational finder of
fact could have, by fair inference, found the
defendant guilty beyond a reasonable doubt. Davis v.
State, 598 So. 2d 1054 (Ala. Cr. App. 1992). Thus,
'[t]he role of appellate courts is not to say what
12
1131472
the facts are. [Their role] is to judge whether the
evidence is legally sufficient to allow submission
of an issue for decision [by] the [fact-finder].' Ex
parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)
(emphasis original)."
Ex parte Woodall, 730 So. 2d 652, 658 (Ala. 1998). "'"This
Court reviews pure questions of law in criminal cases de
novo."'" Ex parte Knox, [Ms. 1131207, June 26, 2015] ___ So.
3d ___, ___ (Ala. 2015) (quoting Ex parte Morrow, 915 So. 2d
539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890 So. 2d
1056, 1059 (Ala. 2003)).
III. Discussion
The petitioners challenge the sufficiency of the State's
evidence. They contend that the State produced no evidence
indicating that the petitioners had in their possession an
artificial light suitable for night hunting and that the State
produced
tenuous
evidence
indicating
that
the
petitioners
were
in an area frequented by protected wildlife. The petitioners
also contend that the State's circumstantial evidence failed
to link the petitioners to the shots allegedly fired and that
evidence of two shots fired could not support three hunting
convictions. Finally, the petitioners contend that the State
failed to prove that the petitioners had the intent to hunt.
13
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The State suggests that the petitioners are improperly
challenging the weight of the evidence on appeal. According to
the State, the circuit court was in the best position to make
the findings that the headlights on the truck were suitable
for night hunting and that the area where the shots were
allegedly fired was frequented by wildlife. The State also
argues that the determination of the petitioners' intent was
best left to the circuit court as the finder of fact.
In opposing the petitioners' motion for a judgment of
acquittal made at the close of the State's evidence, counsel
for the State argued:
"And, Judge, under Rogers v. State[, 491 So. 2d
987 (Ala. Crim. App. 1985)], a prima facie case for
night hunting is established when the State
demonstrates that the accused is in an area where
... deer or other protected animals are thought to
frequent, has in their possession a weapon or other
device suitable for taking, capturing, or killing an
animal protected by State law at night and where the
appella[nt] was discovered after dark in an area
inh[a]bited by deer having in his possession a rifle
suitable for taking deer, that the evidence of
guilty intent is sufficient under Rogers v. State
for that.
"The other charges were hunting from a public
road, which he has testified as to and the Court can
take judicial notice as to Highway 29 and Brown Hill
Road being a public road here in Lowndes County.
14
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"Also, hunting from a vehicle, he has testified
as to the vehicle. So the actual taking is not
required, Judge, to show a prima facie case. Just
the frequented area that has protected animals, the
possession of a weapon, in this case, also a
vehicle, and it being after dark. And he's testified
to the shots being fired from the vehicle."
As demonstrated by counsel's argument, the State pursued a
theory of liability based on Rogers v. State, 491 So. 2d 987
(Ala. Crim. App. 1985), in which the Court of Criminal Appeals
stated:
"We find, based upon the language of § 9-11-235,
Code of Alabama 1975, that a prima facie case for
night hunting is established when the state
demonstrates that the accused (1) is in an area
which deer or other protected animals are thought to
frequent, (2) has in his possession a light, and (3)
has in his possession a weapon or other device
suitable for taking, capturing, or killing an animal
protected by state law, (4) at night."
491 So. 2d at 990 (opinion on return to remand). The State
introduced evidence to show that, at night and in an area
frequented by "protected animals," the petitioners had in
their "possession" "a light," i.e., the headlights or left
turn signal on the truck and that they had in their
"possession" W.F.'s rifle. Under Rogers, the State is not
required to show that an accused fired a weapon: mere
possession of a weapon and a light at night in an area
15
1131472
frequented by wildlife constitutes sufficient proof of night
hunting. Therefore, evidence indicating that shots were fired
from the truck in which the petitioners were traveling, though
referenced by the State on appeal, is not necessary to support
the State's theory of culpability under Rogers.
Although only § 9-11-235 (night hunting) was before the
Court of Criminal Appeals in Rogers, the State in this case
relied on Rogers as support for the charges that the
petitioners violated § 9-11-257 (hunting from a public road)
and Rule 220-2-.11(1) (hunting with the aid of an automobile).
Having offered evidence under Rogers to establish that the
petitioners were hunting after dark, the State sought to
establish prima facie cases of the other charges by
introducing evidence of an additional fact to support each
respective charge: Specifically, the State produced evidence
indicating that the petitioners were in an automobile and on
a public road at the time they "possessed" the rifle and light
at night in an area frequented by wildlife. The State thereby
invoked Rogers to support all three hunting charges.
However, the State argues to this Court, as it argued to
the Court of Criminal Appeals, that the evidence also
16
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supported a finding that each of the petitioners was guilty of
aiding and abetting the others in the commission of the
charged offenses. "A person is legally accountable for the
behavior of another constituting a criminal offense if, with
the intent to promote or assist the commission of the offense
... [h]e aids or abets such other person in committing the
offense ...." § 13A-2-23(2), Ala. Code 1975. "For one to be
convicted as an aider or abettor, evidence showing an offense
to have been committed by a principal is necessary, although
it is not required that the principal be convicted or even his
identity established." Evans v. State, 508 So. 2d 1205, 1207
(Ala. Crim. App. 1987).
"Complicity
is
a
theory
for
imposing
criminal
culpability, for which aiding and abetting may be an element."
Ex parte Farrell, 591 So. 2d 444, 447 (Ala. 1991). In the
circuit court, however, the State did not pursue a complicity
theory by attempting to prove that each of the petitioners
rendered assistance to the others in the commission of hunting
offenses. Rather, the State pursued a theory under Rogers by
seeking to prove that each petitioner was in possession of a
weapon and a light at night in an area frequented by wildlife.
17
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The State may not advance a new legal theory on appeal that it
failed to argue below. Ex parte Knox, supra. Thus, evidence
that one of the petitioners contrived a story about
firecrackers when questioned by Morrow, while potentially
relevant to an aiding-and-abetting theory, is not relevant to
the theory the State pursued in the circuit court. The
sufficiency of the State's evidence in this case stands or
falls on Rogers.
In evaluating the State's reliance on Rogers, we must
consider whether the elements of a prima facie case of night
hunting as stated in Rogers are consistent with the night-
hunting statute. The night-hunting statute, § 9-11-235,
makes
it a class B misdemeanor to "take, capture, or kill, or
attempt to take, capture, or kill any bird or animal protected
by the laws of this state between sunset and daylight of the
following day." (Emphasis added.) Thus, under the statute,
attempting to hunt after dark is equivalent to the completed
offense of night hunting. Clearly, under the facts here, where
there is no evidence indicating that a protected bird or
animal was taken, captured, or killed, the State could prove
only an attempt.
18
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"A person is guilty of an attempt to commit a crime if,
with the intent to commit a specific offense, he does any
overt act towards the commission of such offense." § 13A-4-
2(a), Ala. Code 1975. "An attempt to commit a crime consists
of three elements: First, the intent to commit the crime;
second, the performance of some overt act towards the
committing of the crime; and, third, the failure to consummate
the crime." Ard v. State, 358 So. 2d 792, 793 (Ala. Crim. App.
1978). The elements of night hunting as set out in Rogers do
not include the taking, capturing, or killing of a protected
bird or animal. Consequently, the theory of
liability advanced
in Rogers, if valid, requires only a showing that the accused
attempted to take, capture, or kill a protected bird or animal
at night.
Therefore, the dispositive issue before us is whether
merely possessing a weapon and a light at night in an area
frequented
by
wildlife,
without
any
other
attendant
circumstances, constitutes attempted hunting at night, a
violation of § 9-11-235. Although one guilty of criminal
attempt must intend to commit the crime, the elements of night
hunting as set out in Rogers do not include a culpable mental
19
1131472
state. Thus, the validity of Rogers depends on whether the
elements set out in that case establish both (1) an overt act
toward the commission of night hunting and (2) specific intent
to hunt at night.
We consider whether possessing a light and a weapon
suitable for hunting, at night and in an area frequented by
wildlife, is an overt act toward the commission of hunting
after dark. In Minshew v. State, 594 So. 2d 703 (Ala. Crim.
App. 1991), the Alabama Court of Criminal Appeals considered
whether there was sufficient evidence to sustain
a
defendant's
conviction for attempted murder. After repeatedly threatening
to kill the victim, the defendant was later discovered hiding
behind a truck in the driveway of the victim's residence with
a loaded .357 magnum derringer. The court referenced both the
defendant's prior threats and his possession of a loaded
firearm as sufficient indicia of his intent to kill. Also,
because of the defendant's prior threats, "[t]he jury was
therefore warranted in drawing the conclusion that his intent
was to kill, and by lying in wait, armed, at [the victim's]
residence, he had performed an overt act towards the
effectuation of that intent." 594 So. 2d at 712.
20
1131472
Minshew
considered
evidence
indicating
that
the
defendant
possessed a firearm in a place that might yield the
opportunity to commit a crime in light of all the attendant
circumstances; Rogers, however, authorizes trial courts to
consider similar evidence in a vacuum. Whereas
the
defendant's
prior threats in Minshew helped make his subsequent conduct an
overt act toward the commission of a criminal offense, the
Court of Criminal Appeals in Rogers determined that certain
conduct always qualifies as an overt act, regardless of the
attendant
circumstances.
We
must
determine
whether
the
conduct
specified in Rogers, taken by itself, satisfies Alabama's
criterion of an overt act toward the commission of a criminal
offense necessary to constitute an attempt in every
conceivable situation.4
Although
the
soundness
of
Rogers
presents
this
Court
with
4
a question of law and not of fact, we are mindful that the
facts of the instant case exemplify the extreme to which the
theory of liability in Rogers may be pushed. Rogers involved
a defendant, with a gun slung over his shoulder, circling a
pasture on his motorcycle and using the headlight of the
motorcycle to pan the pasture. When a conservation officer
attempted to stop the defendant, the defendant gunned the
motorcycle and sped to a nearby house. He went inside and
removed his shirt, shoes, and socks in an apparent attempt to
create the impression that he had not been out of the house.
The defendant was charged with and convicted of hunting at
night. Here, by contrast, the State sought to establish that
riding down a public road in a truck with a weapon inside
21
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"An 'overt act' is more than 'mere intention' or
'preparation' to commit a specific crime. Whiddon v.
State, 53 Ala. App. 280, 283, 299 So. 2d 326, 329-30
(1973). 'The attempt is complete and punishable,
when an act is done with intent to commit the crime,
which is adapted to the perpetration of it, whether
the purpose fails by reason of interruption, or for
other extrinsic cause. The act must reach far enough
towards the accomplishment of the desired result to
amount to the commencement of consummation.' Id.
(Emphasis added.)"
Ex parte A.T.M., 804 So. 2d 171, 174 (Ala. 2000).
"'Preparation alone is not sufficient. Something more is
required than mere menace, preparation, or planning.'"
Minshew, 594 So. 2d at 709 (quoting Whiddon v. State, 53 Ala.
App. 280, 283, 299 So. 2d 326, 329-30 (1973)). To prove an
attempt, the State must show that the defendant "made any
move" to perform activity constituting the core of the
underlying offense. A.T.M., 804 So. 2d at 174.
In Ex parte James, 468 So. 2d 889 (Ala. 1984), this Court
considered whether a defendant convicted of first-degree
robbery had committed an overt act toward the commission of
attempted theft. Attempted theft requires "some overt act in
constituted "possession" of a weapon, and that, if the turn
signal or headlights of the truck were engaged, the occupant
was in "possession" of a light for purposes of night hunting.
We consider Rogers as it may be applied to any situation, and
we do so in light of its illustrative application to the
relevant circumstances of the instant case.
22
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furtherance of a completed taking away or carrying away of the
personal property of another." 468 So. 2d at 891. Like
attempted
night
hunting
and
completed
night
hunting,
attempted
theft and completed theft are one and the same offense. See §
13A-8-40, Ala. Code 1975.
The defendant in James told the assistant manager of a
Winn-Dixie grocery store that another man standing at the
register had a gun, and he instructed the assistant manager to
"do as he says." 468 So. 2d at 890. The Court held that the
defendant's statement did not constitute attempted theft
because "it appears that no property was touched, that the
defendant did not attempt to touch any, and that defendant did
not ask for, or even remotely allude to, any property." 468
So. 2d at 891.
Rogers is inconsistent with the requirement of A.T.M. and
with our application of that requirement in James--that one
committing criminal attempt make some move to perform the
activity forming the core of the underlying offense. Although
the core of theft is asportation of property, the core of
night hunting is the taking, capturing, or killing of a
protected bird or animal. Merely traveling in a vehicle with
23
1131472
a weapon through the habitat of protected wildlife at night
falls short of making a move that amounts to "the commencement
of consummation" of the offense. A.T.M., 804 So. 2d at 174.
Such acts may be "remote preparatory acts not reasonably in
the chain of causation," but they do not constitute attempt.
Huggins v. State, 41 Ala. App. 548, 550, 142 So. 2d 915, 917
(1962).5
In stating the prima facie elements of night hunting in
Rogers, the Court of Criminal Appeals set a lower evidentiary
standard of proof than does the night-hunting statute itself.
However, the constitutional doctrine of separation of powers
precludes the judiciary from changing a criminal
offense.
Beck
v. State, 396 So. 2d 645, 662 (Ala. 1980). "[A] court may
explain the language [in a statute], but it may not detract
from or add to the statute ...." Water Works & Sewer Bd. of
There must be some showing of intent to commit the crime
5
alleged. For example, to be convicted of the crime of
possession of burglar's tools, § 13A-7-8, Ala. Code 1975, it
is "insufficient to establish that he had a felonious intent"
to show that a defendant merely possesses "common hand tools
such as a hammer, a screwdriver, pliers, etc., which could
facilitate a forcible entry into premises." McGlon v. State,
504 So. 2d 745, 746 (Ala. Crim. App. 1987). See also id., 504
So. 2d at 746 (emphasizing it is "the intention to use the
'explosive, tool, instrument or other article' in the
commission of a 'forcible entry' or 'theft by a physical
taking'" that is "the most important element of the offense").
24
1131472
Selma v. Randolph, 833 So. 2d 604, 607 (Ala. 2002) (quoted
with approval in City of Prichard v. Balzer, 95 So. 3d 1, 3
(Ala. 2012)). Appellate courts are "'not at liberty to rewrite
statutes.'" Walker v. Montgomery Cnty. Bd. of Educ., 85 So. 3d
1008, 1012 (Ala. Civ. App. 2011) (quoting Ex parte Carlton,
867 So. 2d 332, 338 (Ala. 2003)).
Because we determine that the conduct specified in Rogers
as constituting a prima facie case of night hunting does not,
by itself and in every case, constitute an overt act toward
the commission of the offense of night hunting, we need not
determine whether such conduct creates the reasonable
inference that the actor intends to hunt after dark. The
theory of night hunting crafted by the Court of Criminal
Appeals in Rogers is inconsistent with the statute making
night hunting a criminal offense.
This Court has never relied upon Rogers. Indeed, this
Court reversed the judgment of the Court of Criminal Appeals
in the only decision that has referenced Rogers. In Phillips
v. State, 771 So. 2d 1061 (Ala. Crim. App. 1998), the Court of
Criminal Appeals held that hunting over a baited field, a
violation of § 9-11-244, Ala. Code 1975, is a strict-liability
25
1131472
offense with no requirement of a culpable mental state. The
court noted that Rogers similarly did not require proof of a
culpable mental state for the offense of night hunting. We
reversed that court's judgment in Ex parte Phillips, 771 So.
2d 1066 (Ala. 2000), holding that a culpable mental state is
an element of hunting over a baited field in the absence of an
express statement in the statute to the contrary. See § 13A-2-
4(b), Ala. Code 1975 ("A statute defining a crime, unless
clearly indicating a legislative intent to impose strict
liability, states a crime of mental culpability.").
Because our review in the instant case presents this
Court with its first opportunity to address Rogers, we are not
going to decline to pass upon the validity of that case merely
because it is assumed by the parties. See Travelers Indem. Co.
of Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(expressly overruling a case without being asked to do so
because the case was an "aberration" upon which this Court had
not sufficiently relied, and reversing the judgment of the
court below). Accordingly, we decline to follow Rogers.
In determining whether, in the absence of Rogers, the
State made out a prima facie case of each of the charged
26
1131472
hunting offenses, the applicable standard is substantial
evidence:
Whether
the
convictions
are
supported
by
substantial
evidence, i.e., "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." American Nat'l Fire Ins. Co. v. Hughes, 624 So. 2d
1362, 1366-67 (Ala. 1993) (quoting West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)).
The State has failed to prove the offenses by substantial
evidence.
The State invoked Rogers as the basis of all the hunting
charges against the petitioners. Because we reject Rogers
today, and because the State has failed to present substantial
evidence that the petitioners are guilty of the charged
hunting offenses, all of the petitioners' convictions must be
vacated. As noted previously, the State did not try the case
below on the theory that each of the petitioners aided and
abetted one another in the commission of the charged hunting
offenses. That theory, therefore, is no longer available to
the State, because "the Double Jeopardy Clause bars retrial
when a conviction is reversed solely on the basis of an
27
1131472
insufficiency of the evidence." Lindley v. State, 728 So. 2d
1153, 1157 (Ala. 1998). We therefore reverse the judgment of
the Court of Criminal Appeals and remand for that court to
instruct the circuit court to vacate the petitioners'
convictions and sentences and to enter a judgment acquitting
the petitioners of all charges.
REVERSED AND REMANDED.
Parker and Wise, JJ., concur.
Murdock and Bryan, JJ., concur in the result.
Stuart, Bolin, Shaw, and Main, JJ., dissent.
28
1131472
MURDOCK, Justice (concurring in the result).
The elements of illegal hunting (or attempted illegal
hunting) as described in Rogers v. State, 491 So. 2d 987 (Ala.
Crim. App. 1985), do not equate to the elements of the
offenses described in §§ 9-11-235 and 9-11-257, Ala. Code
1975, and Rule 220-2-.11(1), Ala. Admin. Code (Department of
Conservation and Natural Resources), specifically in relation
to the elements of intent and an overt act. I agree that
this Court should not follow Rogers. I concur in the result
reached by the main opinion in this case.
29
1131472
STUART, Justice (dissenting).
I respectfully dissent from the majority's decision to
reverse the judgment of the Court of Criminal Appeals
affirming the convictions of W.F., W.L.C., and R.J.J.
(hereinafter referred to collectively as "the petitioners")
for various hunting offenses. The main opinion states:
"We granted the petition to consider the argument
that the decision of the Court of Criminal Appeals
affirming their convictions conflicts with Alabama
precedent requiring the State to prove (1) every
element of an offense and (2) that the accused acted
with a culpable mental state."
___ So. 3d at ___. The judgment of the Court of Criminal
Appeals affirming the
trial
court's denial of the petitioners'
motion for a judgment of acquittal does not conflict with
precedent requiring the State to present sufficient evidence
of every element of the offenses of night hunting, hunting
from a public road, and hunting from a vehicle to sustain the
convictions. The Court of Criminal Appeals recognized that to
establish a prima facie case of those offenses the State must
present evidence of each element of the offenses, including
the requisite culpable mental state; conducted a review of
the evidence to determine whether the State had presented
sufficient evidence of every element of the offenses; and
30
1131472
concluded that the evidence in the record established a prima
facie case that the petitioners did engage in night hunting,
hunting on a public road, and hunting from a vehicle.
The main opinion states:
"In determining whether, in the absence of
Rogers [v. State, 491 So. 2d 987 (Ala. Crim. App.
1985)], the State made out a prima facie case of
each of the charged hunting offenses, the applicable
standard is substantial evidence: Whether the
convictions are supported by substantial evidence,
i.e., '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.' American Nat'l Fire Ins.
Co. v. Hughes, 624 So. 2d 1362, 1366-67 (Ala.
1993)(quoting West v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989))."
___ So. 3d at ___.
I believe the following is a more complete statement of
the applicable law:
"When a motion [for judgment of acquittal] is
made on the ground that the State has failed to
establish a prima facie case, it is the duty of the
trial court to determine the sufficiency of the
evidence
to
sustain
a
conviction
under
the
indictment. In its determination, the trial court
should consider only the evidence before the [trier
of fact] at the time the motion is made and must
consider it most favorably to the State. When there
is legal evidence from which the [trier of fact]
could, by fair inference, find the defendant guilty
[of the offense charged], the trial court should
submit [the case to the trier of fact for
determination]. ..."
31
1131472
Andrews v. State, 473 So. 2d 1211, 1213-14 (Ala. Crim. App.
1985). Moreover, "[i]n dealing with the sufficiency of the
evidence no conviction should be had upon guesswork and
suspicion, but must be based upon substantial evidence as to
every material element of the crime of such a character as to
convince a fair and impartial jury of the guilt of the
accused." Blue v. State, 246 Ala. 73, 79, 19 So. 2d 11, 16
(1944).
When a defendant moves for a judgment of acquittal at the
close of the State's case, at the close of all the evidence,
or in a posttrial motion, the defendant is asking the trial
court to determine, as a matter of law, whether the State
presented sufficient evidence of each element of the charged
offense to sustain a conviction. A conviction is based upon
evidence supporting a finding that the defendant violated a
statutory offense. The elements the State must prove to
sustain a conviction are provided by the legislature in the
statute defining the offense, not by the judiciary in caselaw
and not by counsel in argument. As the main opinion
recognizes, "the constitutional doctrine of separation of
powers precludes the judiciary from changing a criminal
32
1131472
offense. Beck v. State, 396 So. 2d 645, 662 (Ala. 1980)." ___
So. 3d at ___. Therefore, because an appellate court is
"'"not at liberty to rewrite statutes,"'" ___ So. 3d at ___,
and "'may not detract from or add to the statute,'" ___ So. 3d
at ___, the elements of an offense can be found only in the
statute charging the offense and cannot be changed by caselaw.
In other words, although an appellate court may interpret a
statute defining an offense, it cannot change the elements
required to prove the offense. The sufficiency of the State's
evidence to sustain a conviction does not stand or fall on
proof of the elements of an offense as defined in caselaw; the
sufficiency of the State's evidence to sustain a conviction
stands or falls on the proof of the elements of the offense as
provided by the legislature in the statute. Thus, a trial
court, when determining whether the State has presented
sufficient evidence of each element of an offense to sustain
a conviction, must determine if the State presented
substantial evidence of each element of the offense as the
offense is defined in the statute. Appellate review of the
trial court's decision likewise rests upon whether the State
presented sufficient evidence of the elements of the offense
33
1131472
as defined by the statute. See Ex parte Bankston, 358 So. 2d
1040, 1042 (Ala. 1978)("The role of appellate court is not to
say what the facts are. Our role ... is to judge whether the
evidence is legally sufficient to allow submission of an issue
for decision [by the trier of fact].").
"'In
reviewing
a
conviction
based
on
circumstantial evidence, this court must view that
evidence in the light most favorable to the
prosecution. The test to be applied is whether the
[the trier of fact] might reasonably find that the
evidence excluded every reasonable hypothesis except
that of guilt; not whether such evidence excludes
every reasonable hypothesis but guilt, but whether
a [trier of fact] might reasonably so conclude.
United States v. Black, 497 F.2d 1039 (5th Cir.
1974); United States v. McGlamory, 441 F.2d 130 (5th
Cir. 1971); Clark v. United States, 293 F.2d 445
(5th Cir. 1961).
"'"(W)e must keep in mind that the test to
be applied is not simply whether in the
opinion of the trial judge or the appellate
court the evidence fails to exclude every
reasonable hypothesis but that of guilt;
but rather whether the [trier of fact]
might so conclude. Harper v. United
States, 405 F.2d 185 (5th Cir. 1969);
Roberts v. United States, 416 F.2d 1216
(5th Cir. 1969). The procedure for
appellate review of the sufficiency of the
evidence has been aptly set out in Odom v.
United States, 377 F.2d 853, 855 (5th Cir.
1967):
"'"'Our obligation, therefore, is
to
examine
the
record
to
determine whether there is any
34
1131472
theory of the evidence from which
the [trier of fact] might have
excluded every hypothesis except
guilty beyond a reasonable doubt.
Rua v. United States, 5 Cir.,
1963, 321 F.2d 140; Riggs v.
United States, 5 Cir., 1960, 280
F.2d 949. In Judge Thornberry's
words,
"'"'"... the standard
utilized by this Court
is not whether in our
opinion
the
evidence
and
all
reasonable
inferences
therefrom
failed to exclude every
hypothesis other than
guilt,
but
rather
whether
there
was
evidence from which the
[trier of fact] might
r e a s o n a b l y
s o
conclude." Williamson
v. United States, 5th
Cir., 1966, 365 F.2d
12,
14.
(Emphasis
supplied)"'
"'"The sanctity of the [trier-of-fact] function
demands that this court never substitute its
decision for that of the [trier of fact]. Our
obligation is [to] examine the welter of
evidence to determine if there exists any
reasonable theory from which the [trier of
fact] might have concluded that the defendant
was guilty of the crime charged." McGlamory,
441 F.2d at 135 and 136.'
"Cumbo v. State, 368 So. 2d 871, 874-75 (Ala. Crim.
App. 1978)."
35
1131472
Salva v. State, 885 So. 2d 231, 236-37 (Ala. Crim. App. 2003).
The petitioners were charged with hunting at night, a
violation of § 9-11-235, Ala. Code 1975; hunting from a public
road, a violation of § 9-11-257, Ala. Code 1975; and hunting
with the aid of an automobile, a violation of Rule 220-2-
.11(1), Ala. Admin. Code (Department of Conservation and
Natural Resources).
The legislature defined the offense of night hunting as
follows:
"It shall be unlawful, except as to trapping as
otherwise provided by law, for a person to take,
capture, or kill, or attempt to take, capture, or
kill any bird or animal protected by the laws of
this state between sunset and daylight of the
following day, except that the Commissioner of
Conservation and Natural Resources may by a duly
promulgated regulation, allow the taking, catching,
or killing of raccoons or opossums between sunset
and daylight in any county or counties with the
state. ...
"Any person violating this section shall be
guilty of a Class B misdemeanor and, upon conviction
thereof, shall be punished for the first offense by
a fine of not less than two thousand dollars
($2,000) nor more than three thousand dollars
($3,000) and may be imprisoned in the county jail
for a period not to exceed six months. In addition,
the
court
shall
revoke
all
hunting
license
privileges for a period of three years from the date
of conviction.
36
1131472
"No
provision of
this section
shall
be
construed
to prohibit the nighttime hunting of foxes with
dogs."
§ 9-11-235, Ala. Code 1975.
The legislature defined the offense of hunting from a
public road as follows:
"Any person, except a duly authorized law
enforcement officer acting in the line of duty or
person authorized by law, who hunts or discharges
any firearm from, upon, or across any public road,
public highway, or railroad, or the right-of-way of
any public road, public highway, or railroad, or any
person, except a landowner or his or her immediate
family hunting on land of the landowner, who hunts
within 50 yards of a public road, public highway, or
railroad, or their rights-of-way, with a centerfire
rifle, a shotgun using slug or shot larger in
diameter than manufacturer's standard designated
number four shot, or a muzzleloading rifle .40
caliber or larger in this state, shall be guilty of
a misdemeanor and, upon conviction, shall be
punished for the first offense by a fine of not less
than one thousand dollars ($1,000), and shall be
punished for the second and each subsequent offense
by a fine of not less than two thousand dollars
($2,000) and shall have all hunting license
privileges revoked for one year from the date of
conviction."
§ 9-11-257, Ala. Code 1975.
The offense of hunting with the aid of an automobile is
defined as follows:
"It shall be unlawful to concentrate, drive,
rally, molest or to hunt, take, capture or kill or
37
1131472
attempt to hunt, take, capture or kill any bird or
animal from or by the aid of
"(1) Any automobile ...."
Rule
220-2-.11(1),
Ala.
Admin.
Code
(Department
of
Conservation and Natural Resources).
Because the foregoing statutes and rule do not include an
express statement of mens rea, § 13A-2-4(b), Ala. Code 1975,
provides the culpable mental state, stating:
"Although no culpable mental state is expressly
designated in a statute defining an offense, an
appropriate culpable mental state may nevertheless
be required for the commission of that offense, or
with respect to some or all of the material elements
thereof, if the proscribed conduct necessarily
involves such culpable mental state. A statute
defining a crime, unless clearly indicating a
legislative intent to impose strict liability,
states a crime of mental culpability."
In Ex parte Phillips, 771 So. 2d 1066 (Ala. 2000), this
Court addressed whether evidence of a culpable mental state
was required to sustain a conviction for hunting on a baited
field, see § 9-11-244, Ala. Code 1975. Like the statutes and
the rule defining the offenses of night hunting, hunting on a
public road, and hunting from a vehicle, the statute defining
hunting on a baited field does not designate a culpable mental
state. In Ex parte Phillips, this Court held that application
38
1131472
of § 13A-2-4(b), Ala. Code 1975, required that evidence of a
"low level of mental culpability" be presented to sustain a
conviction for hunting on a baited field. This Court held
that the evidence must show that the defendant "either knew or
should have known that the area over which he was hunting was
baited." 771 So. 2d at 1068.
Reading §§ 9-11-235, 9-11-257, Rule 220-2-.11(1), and §
13A-2-4(b) in pari materia, a person commits the offenses of
night hunting, hunting on a public road, and hunting from a
vehicle when a person knew or should have known that he was
taking, capturing, or killing, or attempting
to
take,
capture,
or kill a protected bird or animal at night on a public road
and from a vehicle. Thus, to establish a prima facie case of
night hunting on a public road and from a vehicle, the State
must present evidence that the defendant 1) knowingly 2)
engaged in the taking, capturing, or killing or in the attempt
to take, capture, or kill 3) a protected bird or animal 4)
from a vehicle 5) located on a public road 6) at night.
6
It is worthy of noting that the legislature when defining
6
the offense of taking deer at night in § 9-11-251, Ala. Code
1975, specifically included as an element of the offense the
use of a light. Section 9-11-251 provides: "It shall be
unlawful for any person, firm or corporation to take, capture
or kill deer at night in Alabama by any means or device,
39
1131472
A review of the record establishes that the State
presented sufficient evidence to prove that the petitioners
were hunting at night from a vehicle on a public road.
Russell Morrow, the retired conservation and enforcement
officer for the State of Alabama and a reserve deputy for the
Lowndes County Sheriff's Department, testified that he
saw
the
petitioners, stopped on a public road at night, in a vehicle
with its left turn signal and headlights engaged; that he
heard two high-powered shots fired from inside the vehicle;
that the rural area in which the petitioners had stopped the
vehicle was frequented by wildlife; that the weapon retrieved
from the petitioners' vehicle after they had been in the
hunting cabin for 30 minutes smelled like it had been recently
cleaned; and that, when he asked the petitioners what they
were shooting at, the petitioners initially denied
shooting
at
anything, then stated that they were shooting firecrackers,
and later recanted, admitting that they had a rifle in the
truck. Morrow's testimony that he heard shots fired from the
including but not limited to the use of any type of light."
Unlike the offense of taking deer at night, the legislature
did not include in its definition of the offense of night
hunting the use of a light as a means of taking, capturing, or
killing or attempting to take, capture, or kill a protected
bird or animal.
40
1131472
vehicle is evidence indicating that the petitioners knowingly
engaged in an overt act toward the commission of the offenses.
Evidence of the requisite mens rea may also be inferred from
Morrow's testimony that the petitioners initially stated that
they
were
shooting
firecrackers,
their
subsequent
admission
to
having a rifle in the truck, and the testimony that the rifle
had recently been cleaned. From the foregoing evidence,
albeit circumstantial, the trial court, as the fact-finder,
7
could have concluded that the State had proven all the
elements of night hunting from a vehicle on a public road to
support the petitioners' convictions.
In Ward v. State, 610 So. 2d 1190, 1191-92 (Ala. Crim.
7
App. 1992), the Court of Criminal Appeals stated:
"Circumstantial
evidence
is
not
inferior
evidence, and it will be given the same weight as
direct evidence, if it, along with the other
evidence is susceptible of a reasonable inference
pointing unequivocally to the defendant's guilt.
Ward v. State, 557 So. 2d 848 (Ala. Cr. App. 1990).
In reviewing a conviction based in whole or in part
on circumstantial evidence, the test to be applied
is whether the jury might reasonably find that the
evidence excluded every reasonable hypothesis except
that of guilt; not whether such evidence excludes
every reasonable hypothesis but guilt, but whether
a jury might reasonably so conclude. Cumbo v.
State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert.
denied, 368 So. 2d 877 (Ala. 1979)."
41
1131472
Because an analysis of the evidence in the record
supports the judgment of the Court of Criminal Appeals that
the trial court properly concluded that the State presented
sufficient evidence of each element of the charged offenses to
sustain the petitioners' convictions, I respectfully dissent
from the decision to reverse the judgment of the Court of
Criminal Appeals and to order that the petitioners'
convictions be vacated.
Bolin, J., concurs.
42 | October 30, 2015 |
7c241a7d-4a90-4320-b9b2-9a5915cd80ec | Ex parte Kristopher Vanderwall. | N/A | 1130036, 1130041 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1130036
____________________
Ex parte Kristopher Vanderwall
PETITION FOR WRIT OF MANDAMUS
(In re: M.C.
v.
Tallassee Rehabilitation, P.C., and Kristopher Vanderwall)
____________________
1130041
____________________
Kristopher Vanderwall
v.
M.C.
Proceedings from Elmore Circuit Court
(CV-10-900200)
MURDOCK, Justice.
Kristopher Vanderwall has filed both an appeal and a
petition for a writ of mandamus challenging orders of the
Elmore Circuit Court in an action filed against him by M.C.
We dismiss the appeal, and we deny Vanderwall's petition.
I. Facts
On November 12, 2009, M.C. had an appointment to receive
physical
therapy
at
Tallassee
Rehabilitation,
P.C.
("Tallassee
Rehab"), pursuant to a referral by her physician for treatment
of back pain. M.C. arrived at Tallassee Rehab around 8:30 or
9:00 a.m. and was seen by Vanderwall, a physical therapist,
whom she had never met.
According
to
M.C.,
the
following
then
occurred.
Vanderwall took her to a room, where he instructed her to put
on a gown. Vanderwall left the room and closed the door.
M.C. took off her jacket and shirt and put on a gown. She did
not take off her bra or her pants. Vanderwall returned to the
room, unhooked M.C.'s bra and told her to lie on the table in
the room; M.C. did as she was instructed, but, after she was
2
1130036 and 1130041
on the table, Vanderwall started to move his hands over her
body, removing her bra and the gown. Vanderwall then began to
rub M.C.'s breasts, and he removed M.C.'s pants and panties
and placed his fingers into her buttocks and genitals. In
deposition testimony, M.C. testified that she was shocked and
scared by Vanderwall's actions and that she did not know what
to do.
Vanderwall testified that "any and all transactions and
interactions" he had with M.C. on November 12, 2009, were "in
connection with the rendition of physical therapy services."
He stated that his actions were within the standard of care
for a physical therapist and that "[n]othing inappropriate
occurred during the delivery of physical therapy to [M.C.]."
He also stated that the services he did in fact perform were
conducted pursuant to an order he received from M.C.'s
physician, Dr. Melvin Russell. Vanderwall testified that
there was no therapy or medical reason for him to touch M.C.'s
breasts or her genitals and that he did not do so.
M.C. alleges that Vanderwall has a pattern of this kind
of behavior and that he molested at least two other women in
2009 while administering physical therapy. In 2010, those two
3
1130036 and 1130041
women filed an action in the Elmore Circuit Court against
Vanderwall and Tallassee Rehab alleging that Vanderwall had
molested them.1
M.C. filed a complaint against Vanderwall and Tallassee
Rehab in which she sought money damages based on a claim of
assault and battery against Vanderwall and a claim of
negligent or wanton hiring against Tallassee Rehab. Both
defendants answered the complaint and denied the allegations.
Along with the complaint, M.C. filed requests for discovery
from Vanderwall. Included in the discovery requests were
interrogatories 9 and 10, which provided:
"9. Has anyone complained to you that they were
inappropriately touched by you while at Tallassee
Rehab? If so, please identify every person.
"10. Has anyone complained to you or to any of your
employers that they were inappropriately touched by
you while at an employer's facility? If so, please
identify said person."
On August 30, 2010, Vanderwall filed objections to M.C.'s
discovery requests. One of Vanderwall's objections was that
interrogatories
9 and
10
were
inappropriate
because,
M.C. complained to Tallassee Rehab about Vanderwall's
1
actions, and, as a result of the accusation, Tallassee Rehab
placed Vanderwall on indefinite suspension without pay.
Vanderwall
left
Tallassee
Rehab's
employment
in
December
2009.
4
1130036 and 1130041
Vanderwall asserted, the Alabama Medical Liability Act,
§ 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the
AMLA"), which he argued applies, and specifically § 6-5-551,
2
Ala. Code 1975, prohibits "conducting discovery with regard
to
any other act or omission or from introducing at trial
evidence of any other act or omission."
On January 14, 2011, M.C. filed a motion to compel
discovery. In the motion, M.C. contended that "[t]his case is
not a medical malpractice case, but an assault and battery
case alleging that [M.C.] was molested by Mr. Vanderwall."
Accordingly, M.C. argued, Vanderwall could not use the AMLA as
a basis on which to refuse to answer M.C.'s interrogatories
concerning other acts. Vanderwall responded with a motion for
a protective order in which he argued that the AMLA did apply
to M.C.'s action and that, therefore, under § 6-5-551, he
should not be obligated to respond to M.C.'s discovery
requests that sought information about other acts.
On March 8, 2011, the trial court held a hearing on
M.C.'s motion to compel discovery. Following the hearing, the
See George H. Lanier Mem'l Hosp. v. Andrews, 901 So. 2d
2
714, 721 (Ala. 2004) (explaining the relationship between the
provisions of the AMLA set out in § 6-5-480 et seq. and those
set out in § 6-5-540 et seq.).
5
1130036 and 1130041
parties
submitted
additional
materials
and
arguments
concerning the issue.
On January 6, 2012, Tallassee Rehab filed a "Petition and
Motion" seeking a ruling from the trial court that M.C.'s
action was governed by the AMLA. On January 26, 2012,
Vanderwall filed a joinder in Tallassee Rehab's "Petition and
Motion." On February 8, 2012, M.C. filed a response in
opposition to the motion. On April 6, 2012, the trial court
held a hearing on the defendants' joint motion seeking a
ruling that the action was governed by the AMLA. On April 7,
2012, the trial court entered an order allowing M.C. 14 days
to amend her complaint to add a count seeking a judgment
declaring that general tort-law principles pertaining to
assault and battery and negligent or wanton hiring governed
her claims for relief and that the AMLA was not the law that
applied to her claims for relief against the defendants.
On April 20, 2012, M.C. filed an amended complaint in
which she sought a judgment declaring "that the AMLA does not
apply" to the claims she asserted against Vanderwall and
Tallassee Rehab. The defendants filed answers to the amended
complaint.
6
1130036 and 1130041
On November 13, 2012, M.C. filed a motion to dismiss her
claim against Tallassee Rehab. The trial court entered an
order on December 4, 2012, dismissing the claims against
Tallassee Rehab
with prejudice, and the case
proceeded against
only Vanderwall.
On April 19, 2013, M.C. filed a motion for a partial
summary judgment as to her declaratory-judgment "claim" –-
i.e., a ruling that general tort-law principles governing
assault and battery claims, rather than the AMLA, applied to
her
assault
and
battery
claims
against
Vanderwall.
Subsequently, on May 9, 2013, Vanderwall filed a motion for a
partial summary judgment in his favor as to the same "claim."
That is, Vanderwall sought a decision by the trial court that
the AMLA did apply to M.C.'s assault and battery claims
against him.
On July 2, 2013, the trial court held a hearing on the
motions for a partial summary judgment and on M.C.'s motion to
compel discovery. On August 29, 2013, the trial court entered
an order granting M.C.'s motion for a partial summary
judgment, stating, in pertinent part:
"The Court finds that the Motion for Partial
Summary Judgment filed on behalf of [M.C.] is due to
7
1130036 and 1130041
be granted and the Court finds that the Alabama
Medical Liability Act is not applicable to this
case. It is hereby ORDERED and ADJUDGED that the
said Motion for Partial Summary Judgment filed on
behalf of the Plaintiff, [M.C.], is due to be and is
hereby GRANTED, related to Count III, Declaratory
Judgment Relief, only. The Court holds that under
the facts of this case, none of the provisions of
the Alabama Medical Liability Act, including, but
not limited to § 6-5-551, are applicable to this
case.
"The Court further finds that this matter
involves a controlling question of law as to which
there are substantial grounds for a difference of
opinion, that an immediate appeal from the Order
would materially advance the ultimate termination of
litigation, and that the appeal would avoid
protracted and expensive litigation.[ ] The Court
3
further makes a specific and express determination
that there is no just reason for delay and that said
judgment shall be entered as a final judgment
pursuant to Rule 54(b) of the Alabama Rules of Civil
Procedure. This Order does not apply to any other
Counts contained within the Plaintiff's Complaint."
On the same day, the trial court entered an order on
M.C.'s motion to compel discovery, and it provided, in
pertinent part:
This sentence appears to presage the certification of a
3
question of law for permissive appellate review under Rule 5,
Ala. R. App. P. No such question is stated in the trial
court's order, however. See generally Rule 5(a), Ala. R. App.
P. ("The trial judge must include in the certification a
statement of the controlling question of law."). Moreover,
whether the AMLA is applicable to any given set of facts is
not a "question of law" within the meaning of Rule 5(a).
8
1130036 and 1130041
"This cause came before the Court for hearing on
the Motion to Compel filed by [M.C.]. Based upon
the Court's determination that the Alabama Medical
Liability Act is not applicable to this case, the
Court finds as follows:
"1. [Vanderwall] is hereby ordered to provide
responses to Interrogatories 9 and 10 propounded by
[M.C.],
which
seek
complaints
wherein
other
individuals
have
asserted
that
they
were
inappropriately touched by [Vanderwall], as well as
the complainant's identity."
Vanderwall appeals the partial summary judgment in favor
of M.C. Vanderwall also petitions this Court for a writ of
mandamus directing the trial court to vacate both the partial
summary judgment for M.C. and its order granting M.C.'s motion
to compel discovery of other acts.
II. Analysis
A. Vanderwall's Appeal (case no. 1130041)
It is incumbent upon us first to address the "vehicles"
by which Vanderwall seeks appellate review of the trial
court's orders.
As noted, Vanderwall has filed an appeal
from the partial summary judgment in favor of M.C., an order
the trial court purportedly certified as a final judgment
pursuant to Rule 54(b), Ala. R. Civ. P. Even though neither
4
Rule 54(b) provides, in relevant part:
4
"When more than one claim for relief is presented in
9
1130036 and 1130041
party has raised the issue of the appropriateness of the trial
court's Rule 54(b) certification, the appropriateness of that
certification implicates the fundamental issue of this
Court's jurisdiction to entertain the appeal; it is therefore
an issue we consider ex mero motu. Summerlin v. Summerlin,
962 So. 2d 170, 172 (Ala. 2007) (determining ex mero motu that
a Rule 54(b) certification was not appropriate under the facts
of the case).
It is well established that, "'for a Rule 54(b)
certification of finality to be effective, it must fully
adjudicate at least one claim or fully dispose of the claims
as they relate to at least one party.'" Certain Underwriters
at Lloyd's, London v. Southern Natural Gas Co., 939 So. 2d 21,
28 (Ala. 2006) (quoting Haynes v. Alfa Fin. Corp., 730 So. 2d
178, 181 (Ala. 1999) (emphasis omitted)). A trial court's
determination upon a request by an injured party for a
declaration as to what law or legal principles govern the
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."
10
1130036 and 1130041
injured party's claims against an alleged wrongdoer, even if
that request is framed as a separate "count" in a complaint,
is rarely, if ever, appropriate for certification as a final
judgment under Rule 54(b). This is clearly so when there
remain pending in the wake of any such determination claims by
the plaintiff against the defendant for monetary, injunctive,
or other relief based upon that law and the set of facts to
which that law is claimed to be applicable. In such a case,
the determination as to applicable law is but a subsidiary
step on the path to the full adjudication of the plaintiff's
cause of action against the alleged wrongdoer.
To qualify as a judgment by a trial court that is
amenable to execution and appeal, a decision by a trial court
must be one that decides the substantive rights of the
parties. This Court stated in McCulloch v. Roberts, 290 Ala.
303, 305, 276 So. 2d 425, 426 (1973) (quoting Carter v.
Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932)), that
"'[t]he test of the finality of a decree sufficient to support
an appeal is that it ascertains and declares the rights of the
parties ....'" In Lunceford v. Monumental Life Insurance Co.,
641 So. 2d 244, 246 (Ala. 1994) (quoting Bean v. Craig, 557
11
1130036 and 1130041
So. 2d 1249, 1253 (Ala. 1990)), we observed that "[a] final
judgment is an order 'that conclusively determines the issues
before the court and ascertains and declares the rights of the
parties involved.'" See also Jewell v. Jackson & Whitsitt
Cotton Co., 331 So. 2d 623, 625 (Ala. 1976) ("A final judgment
is a terminative decision by a court of competent jurisdiction
which demonstrates there has
been complete adjudication of all
matters in controversy between the litigants within the
cognizance of that court. That is, it must be conclusive and
certain in itself."); State v. Brantley Land, L.L.C., 976 So.
2d 996, 999 (Ala. 2007) ("'"Only a fully adjudicated whole
claim against a party may be certified under Rule 54(b)."'"
(quoting James v. Alabama Coalition for Equity, Inc., 713 So.
2d
937,
942
(Ala.
1997),
quoting
in
turn
Sidag
Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84
(5th Cir. 1987) (emphasis omitted))).
As this Court stated in Banyan Corp. v. Leithead, 41
So. 3d 51, 54 (Ala. 2009), a trial court errs in certifying an
order as a final, appealable judgment under Rule 54(b) when
"the order ... did not completely dispose of any of the
12
1130036 and 1130041
substantive claims in th[e] case." Professors Wright and
Miller put it this way:
"It would not be far amiss to think of Rule 54(b) as
involving matters separate from all that remains,
while [28 U.S.C.] § 1292(b) involves matters that
are central to all that remains. And so Rule 54(b)
cannot be used to enter judgment on deciding claims
closely related to claims that remain ...."
16 Charles Alan Wright et al., Fed. Prac. & Proc. § 3929.1
(3d ed. 2012).
Echoing Professors Wright and Miller, the United States
Court of Appeals for the Eighth Circuit has explained that
"[a] declaration of rights is not an appealable order, in the
absence of a permissive interlocutory appeal under 28 U.S.C.
§ 1292(b), when claims to injunctive relief or damages
remain." National Corn Growers Ass'n, Inc. v. Bergland, 611
F.2d 730, 733 (8th Cir. 1980) (emphasis added). And the
United States Court of Appeals for the Third Circuit has
explained that a Rule 54(b) "cannot be invoked to certify a
partial summary judgment as final when a plaintiff seeks to
recover for the same loss on different theories and the
district court has resolved its claim on less than all the
theories advanced." Gerardi v. Pelullo, 16 F.3d 1363, 1368
(3d Cir. 1994).
13
1130036 and 1130041
In this case, the ruling on the declaratory-judgment
count of M.C.'s complaint did not adjudicate a "claim" that
provided any substantive relief to any party; it simply
determined what law would apply to M.C.'s claims against
Vanderwall. The trial court's declaration was substantively
no different than a determination by any trial court as to
what law governs a plaintiff's substantive claims. Such a
determination does not constitute an adjudication of a claim
for relief.
In short, as this Court stated in Baker v. Bennett, 644
So. 2d 901, 903 (Ala. 1994):
"Rule 54(b) allows the court to direct the entry
of a final judgment as to one or more, but fewer
than all, of the claims or parties upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment. The ruling of the trial court involved in
[Vanderwall's] appeal granted no relief to anyone,
and it did not determine a separate claim. The
facts here do not present the type of situation that
Rule 54(b) was intended to cover. Therefore, the
trial court's ruling was not a final judgment and
was not appealable."
"'When it is determined that an order appealed from is
not a final judgment, it is the duty of the Court to dismiss
the appeal ex mero motu.'" State v. Lawhorn, 830 So. 2d 720,
725 (Ala. 2002) (quoting Powell v. Republic Nat'l Life Ins.
14
1130036 and 1130041
Co., 293 Ala. 101, 102, 300 So. 2d 359, 360 (1974)). Thus,
Vanderwall's appeal of the trial court's August 29, 2013,
order entering a partial summary judgment for M.C. is due to
be dismissed.
B. Vanderwall's Petition for a Writ of Mandamus (case no.
1130036)
In his petition for writ of mandamus, Vanderwall seeks
relief in two respects. First, he seeks to use a writ of
mandamus at this preliminary juncture to challenge the trial
court's
interlocutory
decision
that
general
tort-law
principles, rather than the AMLA, will govern the litigation
of M.C.'s claims against him. To the extent it is aimed at
preempting the entry of a final judgment against him based on
general tort-law principles, Vanderwall's petition to this
Court for a writ of mandamus is an inappropriate use of the
writ.
"Mandamus is
an
extraordinary
remedy
and
will
be
granted only where there is '(1) a clear legal right
in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc.,
586 So. 2d 889, 891 (Ala. 1991). This Court will
not issue the writ of mandamus where the petitioner
has '"full and adequate relief"' by appeal. State
v. Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526
15
1130036 and 1130041
(1972) (quoting State v. Williams, 69 Ala. 311, 316
(1881))."
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala.
2003). Assuming for the sake of argument that the trial court
is in error in not applying the AMLA to M.C.'s claims against
Vanderwall and, further, that the trial court eventually
enters a final judgment against Vanderwall on that basis,
Vanderwall would at that time have an adequate remedy by way
of an appeal. As in any appeal, he would be able to challenge
both the legal holdings of the trial court and its factual
findings. Thus, to the extent it relates to the potentially
erroneous nature of some final judgment yet to be entered
against Vanderwall, Vanderwall's petition for a writ of
mandamus is due to be denied.
That said, we also must address Vanderwall's request for
mandamus relief as it relates to the discovery issue.
Specifically, Vanderwall contends that the trial court's
August 29, 2013, order granting M.C.'s motion to compel
discovery against Vanderwall violates the prohibition on
discovery of other acts and omissions stated in § 6-5-551 of
the AMLA.
16
1130036 and 1130041
This Court has held that, generally, appellate review of
a discovery order may be afforded by the appeal of a final
judgment in the case but that, "[i]n certain exceptional
cases, ... review by appeal of a discovery order may be
inadequate...." Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d at
813. One of the "exceptional cases" the Ocwen Court noted is
"when a privilege is disregarded." This Court has previously
determined that
"[t]he exemption from discovery offered by § 6-
5-551, Ala. Code 1975, which prohibits a party in a
medical-malpractice
action
'from
conducting
discovery with regard to any other act or omission,'
i.e., any act or omission other than the one that
allegedly renders the health-care provider liable,
is
treated
as
a
privilege
for
purposes
of
determining whether in issuing the discovery order
the trial court has disregarded a privilege, thus
warranting review of the discovery order by way of
a petition for a writ of mandamus."
Ex parte Gentiva Health Servs., Inc., 8 So. 3d 943, 946-47
(Ala. 2008). Thus, the trial court's August 29, 2013,
discovery order is reviewable by a petition for a writ of
mandamus.
Whether
the
information
M.C.
requested
in
interrogatories
9 and 10 pertaining to other acts allegedly committed by
Vanderwall is shielded from discovery under § 6-5-551
17
1130036 and 1130041
necessarily requires us to determine whether the AMLA governs
M.C.'s assault and battery claims against Vanderwall. If the
AMLA applies, then the trial court erred in granting M.C.'s
motion to compel discovery and Vanderwall's petition for the
writ of mandamus is due to be granted. If the AMLA does not
apply, then Vanderwall's mandamus petition is due to be
denied.
"The AMLA applies '[i]n any action for injury or damages
or wrongful death, whether in contract or in tort, against a
health care provider for breach of the standard of care.'
§ 6-5-548(a), Ala. Code 1975." Mock v. Allen, 783 So. 2d 828,
832 (Ala. 2000) (emphasis added). Section 6-5-542, Ala. Code
1975 defines a "health care provider" as "[a] medical
practitioner, dental practitioner, medical institution,
physician, dentist, hospital, or other
health care provider
as
those terms are defined in Section 6-5-481." Section 6-5-
481(8) in turn defines "other health care providers" as "[a]ny
professional
corporation
or
any
person
employed
by
physicians,
dentists, or hospitals who are directly involved in the
delivery of health care services."
This Court previously has stated that,
18
1130036 and 1130041
"although perhaps not perfectly consistent, our
caselaw considering § 6–5–481(8), and especially our
more recent decisions such as Cackowski [v. Wal–Mart
Stores, Inc., 767 So. 2d 319 (Ala. 2000)], and
Anderson [v. Alabama Reference Labs., 778 So. 2d 806
(Ala. 2000)], generally stand for the following
proposition: a corporation or person seeking to be
considered an 'other health care provider' under the
AMLA
need
not
prove
an
employer/employee
relationship or a contractual relationship with a
physician, dentist, or hospital to establish that it
or he is 'employed' by a physician, dentist, or
hospital,
although
such
a
relationship
would
certainly fall within the statute; however, at a
minimum a physician, dentist, or hospital must have
made use of that corporation or person in the
physician's, dentist's, or hospital's delivery of
health-care services to the plaintiff-patient."
Ex parte Partners in Care, Inc., 986 So. 2d 1145, 1148 (Ala.
2007) (emphasis omitted).
We are not asked in this case to revisit those cases in
which this Court has held that the requirement that a person
or corporation be "employed by" a physician, dentist, or
hospital does not require an employment or equivalent
contractual
relationship,
but
requires
only
that
the
physician
(or dentist or hospital) "make use of" the person (or
corporation) in question. See, e.g., Cackowski v. Wal–Mart
Stores, Inc., 767 So. 2d 319, 324–25 (Ala. 2000) (holding that
a pharmacist's filling of a doctor's prescription for a
patient is part of the physician's treatment of his or her
19
1130036 and 1130041
patient so that the pharmacist was included within the AMLA
definition of "other health care provider"); see also Ex parte
Partners in Care, Inc., 986 So. 2d at 1148 (describing
Anderson v. Alabama Reference Labs., 778 So. 2d 806, 810 (Ala.
2000), as a case in which this Court held "that a medical
laboratory was an 'other health care provider' because its
testing of a specimen was an integral part of the physician's
delivery of health-care services to the patient").5
Vanderwall
argues
that
the
complained-of
conduct
allegedly occurred during the delivery of professional
services and that, therefore, "the AMLA and its discovery
provisions apply to the case regardless of the description of
the cause of action under which [M.C.] has filed." M.C.
M.C. does, however, argue that, for someone who does not
5
fall within any of the categories expressly named in § 6-5-542
to be considered a health-care provider for purposes of the
AMLA, that person must be "carrying out the physician's orders
and be inextricably linked to a physician's treatment of his
patients." M.C.'s position in this regard focuses solely on
the fact that the particular manner in which Vanderwall
touched M.C. was not ordered by a physician; she does not
argue that, in general, the provision of physical-therapy
services upon the referral of a physician is not covered by
the AMLA. The issue thus framed in this case cannot be
differentiated from the issue discussed below -- whether a
claim of sexual misconduct or assault by someone who would
otherwise be deemed to a be a health-care provider is governed
by the AMLA.
20
1130036 and 1130041
responds, and the trial court concluded, that "[t]he AMLA
applies only to medical malpractice actions ..., which by
definition are actions for redress of a medical injury." M.C.
states in her brief to this Court that "[her] position is that
the mere fact that she was present for physical therapy does
not place her claim under the A.M.L.A." She argues that the
alleged sexual assault "bear[s] no relation to the medical
services provided," and that, therefore, those acts "cannot
be
deemed 'professional services.'"
Vanderwall cites Mock in support of his position that
this case is governed by the AMLA. Like M.C. in the present
case, the plaintiff in Mock argued that "that the AMLA does
not apply to his case because '[t]he acts of intentional
sexual assault of which [he] complains were for no medical
reason.'" 783 So. 2d at 832. This Court, however, stated as
follows in Mock with respect to the applicability of the AMLA:
"[M]ost of the reported cases where appellate courts
have declined to hold that the physician's conduct
constituted
professional
malpractice
involved
either
an intimate sexual relationship or sexual misconduct
having
no
connection
with
the
rendering
of
professional services. See St. Paul Ins. Co. of
Illinois v. Cromeans, 771 F. Supp. 349, 352-53 (N.D.
Ala. 1991) (physician's sexual conduct toward minor
patients -- masturbating in front of them, fondling
the patients, attempting to convince patients to
21
1130036 and 1130041
have sex with him -- did not constitute professional
services, and, thus, physician's conduct was not
covered by his malpractice insurance); McQuay v.
Guntharp, 336 Ark. 534, 540-41, 986 S.W.2d 850, 853
(1999) (physician's fondling of a patient's breasts
while using a stethoscope to listen to her heart and
lungs did not constitute malpractice); Atienza v.
Taub, 194 Cal. App.3d 388, 393, 239 Cal. Rptr. 454,
457 (1987) (sexual relationship between patient and
physician who was treating her for an industrial
injury did not constitute malpractice); Odegard v.
Finne, 500 N.W.2d 140, 143 (Minn. Ct. App. 1993)
(sexual relationship between patient and physician
who
was
treating
her
for
colitis
was
not
malpractice); Mindt v. Winchester, 151 Or. App. 340,
345, 948 P.2d 334, 336 (1997) (sexual relationship
between patient's wife and the physician treating
the patient for infertility was not malpractice);
New Mexico Physicians Mut. Liability Co. v. LaMure,
116 N.M. 92, 95-96, 860 P.2d 734, 736-37 (1993)
(physician's sexual assault of patient he was
treating for an infected thumb was not malpractice
and thus was not covered under his malpractice
insurance); Standard Fire Ins. Co. v. Blakeslee, 54
Wash. App. 1, 9, 771 P.2d 1172, 1176 (1989) (sexual
assault
of
patient
by
her
dentist
was
not
malpractice and thus was not covered by dentist's
malpractice insurance).
"By contrast, in cases where the alleged sexual
misconduct
occurs
as
part
of
a
physician's
examination and/or treatment of a patient, the
conduct is considered to have occurred during the
delivery of professional services, and is therefore
cognizable as a medical-malpractice claim. See
Hagan v. Antonio, 240 Va. 347, 397 S.E.2d 810 (1990)
(physician's act of fondling patient's breasts and
making improper comments during what was supposed to
be a routine breast examination occurred during the
delivery of professional services). Here, Mock went
to Dr. Allen complaining of pain to his neck, back,
left hip/groin area, and left leg. It was incumbent
22
1130036 and 1130041
upon Dr. Allen to examine the painful areas
thoroughly in order to diagnose Mock's complaint.
Moreover, Dr. Allen testified that he wanted to rule
out radiculopathy, a nerve condition originating in
the spinal area and extending through the groin and
into the leg. Given these circumstances, Dr. Allen's
alleged sexual misconduct occurred while he was
providing professional services and/or treating
Mock's
physical
injuries.
Accordingly,
the
misconduct Mock accuses Dr. Allen of falls within
the ambit of the AMLA."
783 So. 2d at 832-33 (emphasis added).
Conversely, M.C. argues "sexual molestation could not be
part of [her] examination or treatment" and that,
"[e]ven if Mr. Vanderwall was deemed to be a
'healthcare provider' as defined by the A.M.L.A.,
his actions are outside the scope of the A.M.L.A.
The Alabama Supreme Court has specifically rejected
Mr. Vanderwall's argument that all claims against a
healthcare provider are covered by the A.M.L.A.,
stating specifically, 'We do not agree that the AMLA
applies to all claims against health-care providers
arising out of the relationship between the health-
care provider and the patient.' The A.M.L.A.
applies only to medical malpractice actions in the
context of patient-doctor and patient-hospital
relationships, which by definition are actions for
redress of a medical injury. Ex parte Addiction and
Mental Health Services, Inc., d/b/a Bradford Health
Services, 948 So. 2d 533, 53[5] (Ala. 2006)."
M.C.'s argument and Vanderwall's invocation of Mock for the
contrary
position
necessitate
a
reexamination
of
that
decision
in the present case.
23
1130036 and 1130041
This Court relied upon Mock in O'Rear v. B.H., 69 So. 3d
106 (Ala. 2011):
"Dr. O'Rear bases his argument on his contention
that all B.H.'s causes of action arose in connection
with Dr. O'Rear's providing B.H. with medical
services. In this context, he relies on Mock v.
Allen, 783 So. 2d 828 (Ala. 2000), in which the
Court held that the claims of the plaintiff, Mock,
against his doctor, Allen, for sexual assault were
governed by the Act. In Mock, Mock alleged that his
treating physician touched him improperly during his
treatment for various injuries to his head, spine,
and hip that resulted from an automobile accident.
In Mock, there was no instance of alleged improper
touching that did not occur outside the doctor's
office or hospital during a scheduled treatment.
Thus, Mock stands for the principle that a sexual
assault that occurs during the course of medical
treatment is subsumed under the proof requirements
of the Act. Similarly, we note that this Court has
held that other actions that occur during the course
of medical treatment are subsumed under the Act.
See, e.g., Mobile Infirmary v. Delchamps, 642 So. 2d
954 (Ala. 1994) (negligence and breach-of-warranty
claims are governed by the Act); Benefield v. F.
Hood Craddock Clinic, 456 So. 2d 52 (Ala. 1984)
(fraud claims subsumed by the Act); and Sellers v.
Edwards, 289 Ala. 2, 265 So. 2d 438 (1972) (assault
and battery governed by the Act). However, in each
of these cases, as in Mock, the cause of action
arose as a direct result of a particular medical
treatment by the defendant medical-service provider.
Thus, we agree with Dr. O'Rear that his acts of
prescribing medications in return for sexual conduct
that occurred while B.H. was being treated by Dr.
O'Rear are governed by the proof requirements of the
Act."
Id. at 114-15 (emphasis added).
24
1130036 and 1130041
Under Mock and O'Rear, the pertinent issues are simply
place and time. Did the alleged sexual assault occur within
"the doctor's office or hospital" and did it occur "while [the
defendant] was providing professional services"? There is no
dispute in this case that the place and time requirements
articulated in Mock and O'Rear are satisfied; the alleged
sexual misconduct occurred in the place and during the time
that Vanderwall otherwise was engaged in treating M.C. for her
back pain. Thus, under the interpretation of the AMLA
enunciated in Mock and reiterated in O'Rear,
M.C.'s
allegation
of sexual misconduct would be governed by the proof
requirements of the AMLA.
We cannot in good conscience, however, continue to adhere
to the rule articulated in Mock and O'Rear. We previously
have observed that stare decisis "'is a golden rule, not an
iron rule.'" Goldome Credit Corp. v. Burke, 923 So. 2d 282,
292 (Ala. 2005) (quoting Ex parte Nice, 407 So. 2d 874, 883
(Ala. 1981) (Jones, J., dissenting)). In those rare cases
where, in retrospect, a rule announced in a previous case is
not plausible, the doctrine of stare decisis does not prevent
this Court's reexamination of it.
25
1130036 and 1130041
"Although we have a healthy respect for the
principle of stare decisis, we should not blindly
continue to apply a rule of law that does not accord
with what is right and just. In other words, while
we accord 'due regard to the principle of stare
decisis,' it is also this Court's duty 'to overrule
prior decisions when we are convinced beyond ...
doubt that such decisions were wrong when decided or
that time has [effected] such change as to require
a change in the law.' Beasley v. Bozeman, 294 Ala.
288, 291, 315 So.2d 570, 572 (1975) (Jones, J.,
concurring specially)."
Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543, 545-46
(Ala. 2000) (footnote omitted). "As strongly as we believe in
the stability of the law, we also recognize that there is
merit, if not honor, in admitting prior mistakes and
correcting them." Jackson v. City of Florence, 294 Ala. 592,
598, 320 So. 2d 68, 73 (1975).6
In this instance, Vanderwall has asked us to apply an
interpretation of the AMLA from cases that exalt a broad
We also note that, apart from O'Rear, there are no
6
decisions employing the rationale of Mock and that Mock cannot
be said to have created some reliance interest on the part of
prospective tortfeasors. See generally Ex parte Capstone
Bldg. Corp., 96 So. 3d 77, 89 n.8 (Ala. 2012) (noting that a
court may consider "'the plausibility of the existing
interpretation of a statute, the extent to which that
interpretation has been fixed in the fabric of the law, and
the strength of arguments for changing the interpretation'"
(quoting 20 Am. Jur. 2d Courts § 131 (2005))); see also 20 Am.
Jur. 2d Courts § 136 (2005) ("The application of stare decisis
is less compelling in tort cases than in property or contract
settings.").
26
1130036 and 1130041
reading of the statute over the plain text. Mock and O'Rear
posit that the legislature intended the AMLA to apply to any
action in which the alleged injury was inflicted by a medical
provider at the same place and time as medical treatment,
rather than applying only to actions in which the alleged
injury occurred because of medical treatment.
M.C. challenges
that interpretation. She argues that the AMLA was intended to
address alleged violations of a "standard of care" applicable
to "medical treatment" and that "sexual molestation of a
female by a male physical therapist is not a matter of
'medical injury' subject to the AMLA when the physical
therapist admits that there is no medical reason to touch the
female's breasts or genitalia." We agree with M.C. We do not
believe the legislature intended for the protections afforded
under the AMLA to apply to health-care providers who are
alleged to have committed acts of sexual assault; such acts do
not, by any ordinary understanding, come within the ambit of
"medical treatment" or "providing professional services."
The dissenting opinion in Mock written by Justice Lyons
(in which Justice Lyons quotes an earlier writing in the case
27
1130036 and 1130041
from Justice See) explains the correct interpretation of the
AMLA:
"'The Legislature declared that it
enacted the AMLA in response to increasing
health-care
costs
caused
by
"the
increasing
threat of legal
actions for alleged medical
injury." Ala. Code 1975, § 6-5-540. The
AMLA
applies
to
actions
against
a
health-care provider alleging a "breach of
the standard of care." Ala. Code 1975,
§ 6-5-540 et seq. A breach of the standard
of care is the "fail[ure] 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." § 6-5-548. Thus, the AMLA
applies to conduct that is, or that is
reasonably related to, the provision of
health-care
services
allegedly
resulting
in
a medical injury. Just as the Alabama
Legal Services Liability Act does not apply
to every action against a person who is a
lawyer,
see
Cunningham
v.
Langston,
Frazer,
Sweet & Freese, P.A., 727 So. 2d 800 (Ala.
1999), the AMLA does not apply to every
action against a person who is a doctor,
see Thomasson v. Diethelm, 457 So. 2d 397
(Ala. 1984). It does not, I believe, apply
to an action alleging sexual molestation,
where the health-care provider concedes
that the acts complained of were not
medically
relevant.
Although
Mock's
claims
arise out of conduct that took place at a
time when there was a doctor-patient
relationship
for
the
purpose
of
examination
and treatment, see Thomasson, that fact
alone cannot subject to the provisions of
the AMLA all conduct by the doctor, however
28
1130036 and 1130041
unrelated to the provision of medical
services.'"
Mock, 783 So. 2d at 836-37 (Lyons, J., dissenting) (emphasis
added). See also Ex parte Addiction & Mental Health Servs.,
Inc., 948 So. 2d 533, 535 (Ala. 2006) ("'By definition, a
"medical-malpractice action" is one for redress of a "medical
injury." See § 6-5-540 (purpose of the [AMLA] is to regulate
actions
for
"alleged
medical
injury")....'"
(quoting
Taylor
v.
Smith, 892 So. 2d 887, 893 (Ala. 2004))).
From the foregoing, it is clear that the AMLA is not just
concerned with who committed the alleged wrongful conduct or
when and where that conduct occurred, but also with whether
the harm occurred because of the provision of medical
services. Vanderwall testified that there was no therapeutic
or medical reason for him to touch M.C.'s breasts or her
genitals in the course of treating her for back pain.
Consequently, it is undisputed that M.C.'s allegation of
injury does not stem from the provision of medical services.
Therefore,
"[a]lthough [Vanderwall's] acts might have occurred
during the same time frame within which he was
providing some medical care to [M.C.], and although
[Vanderwall's] acts may have occurred in the same
location where [Vanderwall] provide[d] medical care
29
1130036 and 1130041
to patients, [Vanderwall's] acts in [allegedly
sexually assaulting M.C. instead of administering
care for her back pain] were not part of providing
medical care to [M.C.] so as to be governed by the
AMLA."
O'Rear, 69 So. 3d at 122 (Murdock, J., concurring in the
result).
Our conclusion today is buttressed by numerous cases from
other
jurisdictions
that
have
concluded
that
sexual
molestation is not included within any ordinary understanding
of the provision of medical services. In Kaufmann v.
Schroeder, 241 Ill. 2d 194, 349 Ill. Dec. 151, 946 N.E.2d 345
(2011), for example, the Illinois Supreme Court had to
determine whether a plaintiff's action alleging that a doctor
sexually assaulted her while she was under sedation was time-
barred based on the application of the Illinois Tort Immunity
Act. As the court explained: "The ultimate issue before this
court ... is whether the injuries for which Kaufmann seeks
recovery in her claims against [the hospital] are injuries
'arising out of patient care' within the meaning of section
8-101(b) of the Act." 241 Ill. 2d at 199, 349 Ill. Dec. at
154, 946 N.E.2d at 348. The court concluded that Kaufmann's
action fell outside this provision, reasoning:
30
1130036 and 1130041
"[I]n Orlak [v. Loyola University Health System, 228
Ill. 2d 1, 319 Ill. Dec. 319, 885 N.E.2d 999
(2007)], this court reiterated that 'arising out of
patient care' did not encompass 'but for' causation.
Rather, it meant that the injury had '"[t]o
originate; to stem (from)," or "to result (from)"'
the patient's medical care or treatment. See Orlak,
228 Ill. 2d at 14-15, 319 Ill. Dec. 319, 885 N.E.2d
999 (quoting Black's Law Dictionary 115 (8th ed.
2004)).
"In the case before this court, Kaufmann did not
allege that she was injured because of the medical
treatment she received. In other words, she did not
claim that the 'unnecessary' exam and sedation she
received during her hospitalization harmed her in
any way. Rather, the harm resulted from the sexual
assault. The sedation that was given and the
'unnecessary' exam (if one was, in fact, performed)
were not part of Kaufmann's medical treatment, but
simply a means by which Schroeder was able to
accomplish his sexual assault on Kaufmann.
"In sum, we find that Kaufmann's injury arose
out of Dr. Schroeder's sexual assault and not any
medical care she received from him. The sexual
assault, itself, was not medical care, nor was there
even any pretense that Dr. Schroeder's sexual acts
were necessitated by, or in any way related to, the
medical care he was providing to Kaufmann. There was
no suggestion by Schroeder that there existed a
medical reason for his actions."
241 Ill. 2d at 200-01, 349 Ill. Dec. at 155, 946 N.E.2d at
349.
In Burke v. Snyder, 899 So. 2d 336, 340 (Fla. Dist. Ct.
App. 2005), a Florida district court held that "a claim of
sexual misconduct by a doctor during a medical examination or
31
1130036 and 1130041
procedure is not a claim 'arising out of the rendering of ...
medical care or services'" so as to fall within Florida's
medical-malpractice statute. The court reasoned:
"In this case, ... the complaint makes no
mention of any pretense of medical care by the
doctor
or
any
psychological
manipulation
or
seduction of the plaintiff. The plaintiff does not
allege that Dr. Snyder engaged in sexual conduct
under the guise of medical diagnosis, treatment or
care. She does not allege that she was induced to
have sexual relations with Dr. Snyder in furtherance
of medical diagnosis, treatment, or care. On the
contrary, she alleges that the sexual assault
occurred 'suddenly and unexpectedly' within minutes
after the start of her first office visit with
Dr. Snyder."
899 So. 2d at 340.
In Doe v. Cherwitz, 894 F. Supp. 344 (S.D. Iowa 1995),
the United States District Court for the Southern District of
Iowa concluded that a plaintiff's allegation of sexual
misconduct against a doctor did not fall within the coverage
of Iowa's medical-malpractice statute, reasoning:
"The injuries alleged in the instant case, according
to plaintiff's allegations and evidence presented in
connection with the previous motions for summary
judgment, arose out of forcible sexual intercourse
perpetrated by defendant Cherwitz against the will
of the plaintiff when she was undergoing a medical
examination by Cherwitz.
"Section 614.1(9) is, by its terms, limited to
claims 'arising out of patient care.' Defendants
32
1130036 and 1130041
rely on one sentence in Langner[ v. Simpson, 533
N.W.2d 511 (Iowa 1995)]: 'All of the claims in the
Langners' petition arose out of injuries allegedly
suffered while Kathy was under the care of Simpson
and the hospital.' Langner, 533 N.W.2d at 516.
Defendants read the phrase 'while Kathy was under
the care of Simpson and the hospital' too broadly.
That language must be read in the context of the
facts of the Langner case. I do not believe the
Iowa Supreme Court meant to hold, or would hold if
this case were presented to it, that section
614.1(9) applies to willful non-treatment tortious
activity by the physician, simply because it
occurred when the patient was seeing the physician
for medical reasons. Obviously, that is not what
the legislature intended in enacting the statute,
and its careful choice of language -- arising from
patient care -- clearly limits the protection of the
statute to claims resulting from patient care
activity. Rape is not patient care activity. I
believe the Iowa Supreme Court would hold that
willful tortious activity outside the realm of
patient care, such as that alleged in this case, is
not governed by the statute."
894 F. Supp. at 345-46.
In Descant v. Administrators of Tulane Educational Fund,
639 So. 2d 246, 250 (La. 1994), the Louisiana Supreme Court
held that the state's medical-malpractice act
"does not protect the provider from all acts of
misconduct between the provider and his patients. It
is only triggered by the negligent care and
treatment of the patient. Were the provider to
commit an intentional tort against his patient or
negligently injure his patient in a manner unrelated
33
1130036 and 1130041
to medical treatment, the limitation of liability
would not be available."7
In short, the simple fact is that sexual misconduct by a
health-care provider toward a patient is not medical
treatment, and it does not result in a "medical injury" as
such an injury as is understood under the AMLA. The AMLA
addresses the provision of medical services to patients and
failures to meet the applicable standard of care in providing
those services. M.C.'s action against Vanderwall is not
concerned with such matters. Accordingly, the trial court did
not err in granting M.C.'s motion to compel discovery on the
ground that the AMLA does not govern M.C.'s claims against
Vanderwall.
III. Conclusion
Based on the foregoing, we dismiss Vanderwall's appeal of
the partial summary judgment as being from a nonfinal
judgment. We deny Vanderwall's petition for a writ of
mandamus both insofar as it challenges the partial summary
In addition to cases directly addressing a state's
7
medical-liability act, "the majority of jurisdictions have
concluded that professional liability policies do not provide
coverage for health care practitioners who sexually assault
their patients" because such acts do not constitute the
provision of "professional services." Physicians Ins. Co. v.
Pistone, 555 Pa. 616, 621, 726 A.2d 339, 342 (1999).
34
1130036 and 1130041
judgment in favor of M.C. and insofar as it challenges the
order granting M.C.'s motion to compel discovery.
1130036 –- PETITION DENIED.
Moore, C.J., and Bolin, Parker, Main, Wise, and Bryan,
JJ., concur.
Murdock, J., concurs specially.
Stuart, J., concurs in the result.
Shaw, J., dissents.
1130041 –- APPEAL DISMISSED.
Moore, C.J., and Bolin, Parker, Shaw, Main, Wise, and
Bryan, JJ., concur.
Murdock, J., concurs specially.
Stuart, J., concurs in the result.
35
1130036 and 1130041
MURDOCK, Justice (concurring specially).
The dissent charges that, in overruling Mock v. Allen,
783 So. 2d 828 (Ala. 2000), the main opinion "changes the law"
and "abandons precedent." ___ So. 3d at ___ (Shaw, J.,
concurring in case no 1130041 and dissenting in case no.
1130036). To begin, under the declarative theory of law, the
main opinion does not "change the law." ___ So. 3d at ___.
No opinion of this Court ever does that. We simply recognize,
as this Court has done countless times throughout it history,
that one or more prior opinions of this Court incorrectly
stated the law and that we are correcting that error. As is
customary when this or any appellate court realizes the error
of some prior decision, we "overrule" prior precedent.
Citing Moore v. Prudential Residential Services Ltd.
Partnership, 849 So. 2d 914, 926 (Ala. 2002), and Ex parte
McKinney, 87 So. 3d 502, 509 n.7 (Ala. 2011), the dissent
suggests that this Court has an ironclad rule that, unless a
party explicitly requests that we overrule a case, we will not
do so. The dissent even chooses to use the terms "loosey-
goosey" and acting "on a whim" to describe what it perceives
to be this Court's variance from the rule expressed in Moore
36
1130036 and 1130041
and McKinney. Even if the dissent's ironclad approach to
overruling precedent was the law, I see no warrant for the
dissent to invoke the quoted verbiage in an effort to make its
point. In point of fact, however, our precedents -- as they
relate to overruling precedents -- do not reflect a rule quite
so "ironclad" as the dissent suggests.
To begin, it is worth noting that there is no such rule
expressed in the Alabama Rules of Appellate Procedure. And in
fact, this Court recently overruled a case even while
specifically noting that it had not been asked to do so. See
Travelers Indem. Co. of Connecticut v. Miller, 86 So. 3d 338,
347 (Ala. 2011).
The authorities the dissent cites for its "rule" are not
as black and white as the dissent claims. In Moore, the Court
stated: "Stare decisis commands, at a minimum, a degree of
respect from this Court that makes it disinclined to overrule
controlling precedent when it is not invited to do so." 849
So. 2d at 926 (emphasis added). Moore simply made the point
that we do not as a regular practice overrule cases when not
invited to do so, but it did not say that we never do so.
37
1130036 and 1130041
Furthermore, it does not explain what being "invited to do so"
actually entails.
Ex parte McKinney expresses the same idea, but is even
less definitive as to what an invitation entails. The Court
in McKinney noted that there exists "a disinclination to
overrule existing caselaw in the absence of either a specific
request to do so or an adequate argument asking that we do
so." 87 So. 3d at 509 n.7 (emphasis added). We have
expressed the idea similarly before. See Ex parte Carlisle,
26 So. 3d 1202, 1207 (Ala. 2009) (commenting on "[t]he
principle of stare decisis and this Court's reluctance to
consider abandoning precedent in the absence of an adequate
argument to us that we should do so" (emphasis added)). Thus,
under McKinney, overcoming our "disinclination" is not solely
dependent upon a "specific request" for overruling precedent,
but also includes evaluating whether the party made an
"adequate argument" that "invites" us to overrule the
precedent at issue. In fact, in nearly every case in which
this Court has expressed its preference for not overruling
precedent when it has not been specifically asked to do so,
the Court has noted that the party that the overruling would
38
1130036 and 1130041
have favored made no argument at all in contradiction of the
precedent at issue. See, e.g., American Bankers Ins. Co. of
Florida v. Tellis, [Ms. 1131244, June 26, 2015] ___ So. 3d
___, ___ n.3 (Ala. 2015); Fort Morgan Civic Ass'n, Inc. v.
City of Gulf Shores, 100 So. 3d 1042, 1047 n.7 (Ala. 2012);
Clay Kilgore Constr. Co. v. Buchalter/Grant, L.L.C., 949
So. 2d 893, 898 (Ala. 2006) (also cited in the dissent);
Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 896
(Ala. 2008); and Moore, 849 So. 2d at 925-26.
Such clearly is not the case here. M.C. argues that the
Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540
et seq., Ala. Code 1975 ("the AMLA"), applies only to actions
that involve medical malpractice, or "medical injury," and
that sexual assault "bears no relation to medical services."
Her argument directly contradicts the holding in Mock, and the
parties to this case expressly argue over the applicability of
the AMLA to this case. Yet, according to the dissent, this
Court is forbidden from examining the correctness of the rule
enunciated in Mock solely because M.C. did not specifically
state that Mock should be overruled. The cases cited above
illustrate that we are under no such prohibition. In fact,
39
1130036 and 1130041
"while we accord 'due regard to the principle of
stare decisis,' it is also this Court's duty 'to
overrule prior decisions when we are convinced
beyond ... doubt that such decisions were wrong when
decided or that time has [effected] such change as
to require a change in the law.' Beasley v. Bozeman,
294 Ala. 288, 291, 315 So. 2d 570, 572 (1975)
(Jones, J., concurring specially)."
Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543, 545-46
(Ala. 2000). In other words, our duty, first and foremost, is
to the correctness of law. That is not something the parties
ultimately dictate to us.
"'"Appellate review does not consist of supine
submission to erroneous legal concepts.... Our duty
is to enunciate the law on the record facts. Neither
the parties nor the trial judge, by agreement or by
passivity, can force us to abdicate our appellate
responsibility."'"
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) (quoting Forshey v. Principi, 284 F.3d
1335, 1357 n. 20 (Fed. Cir. 2002), quoting in turn Empire Life
Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th
Cir. 1972)).
The dissent pejoratively describes the change in the law
we make today as "a more comfortable result" for us. It is
indeed "more comfortable." And it is more comfortable for
good reason. Any just law is designed to produce fair and
40
1130036 and 1130041
just results. When the law is followed, therefore, it should
not be surprising that a "comfortable result" is achieved.
And here the result achieved is in fact one dictated by
the law in question (the AMLA), which is what we are sworn to
uphold. As this Court has observed:
"'The doctrine of stare decisis tends to
produce certainty in our law, but it is
important to realize that certainty per se
is but a means to an end, and not an end in
itself. ... When it appears that the evil
resulting from a continuation of the
accepted rule must be productive
of greater
mischief to the community than can possibly
ensue
from
disregarding
the
previous
adjudications on the subject, courts have
frequently
and
wisely
departed
from
precedent, 14 Am.Jur., Courts, § 126.'"
Ex parte State Farm Fire & Cas. Co., 764 So. 2d at 545 n.3
(quoting Fox v. Snow, 6 N.J. 12, 25, 76 A.2d 877, 883-84
(1950) (Vanderbilt, C.J., dissenting)).
41
1130036 and 1130041
SHAW, Justice (concurring in case no. 1130041 and dissenting
in case no. 1130036).
I concur to dismiss the appeal in case no. 1130041; I
respectfully dissent from denying the petition for a writ of
mandamus in case no. 1130036.
In Mock v. Allen, 783 So. 2d 828 (Ala. 2000), this Court
rejected the argument that the Alabama Medical Liability Act,
§ 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the
AMLA"), "[did] not apply ... because '[t]he acts of
intentional sexual assault of which [the patient] complains
were for no medical reason'" and were "outside the scope of
the physician's professional services and did not constitute
professional malpractice." Instead, the rule has been as
follows:
"[M]ost of the reported cases where appellate courts
have declined to hold that the physician's conduct
constituted
professional
malpractice
involved
either
an intimate sexual relationship or sexual misconduct
having
no
connection
with
the
rendering
of
professional services. ...
"By contrast, in cases where the alleged sexual
misconduct
occurs
as
part
of
a
physician's
examination and/or treatment of a patient, the
conduct is considered to have occurred during the
delivery of professional services, and is therefore
cognizable as a medical-malpractice claim. ..."
42
1130036 and 1130041
783 So. 2d at 832-33 (emphasis added).
Under the precedent established by Mock, the AMLA is
applicable in this case. To be clear, the application of Mock
and the AMLA in no way denies the plaintiff a cause of action
or the ability to seek damages for any alleged misconduct by
the defendant. Instead, under Mock, the plaintiff's claim is
litigated
pursuant
to
certain
statutorily
prescribed
substantive and procedural requirements. The main opinion in
this case instead changes the law and abandons precedent.
We have described our adherence to precedent under the
doctrine of stare decisis as follows:
"As Justice Somerville observed in his dissent in
Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala.
334, 340, 110 So. 574, 580 (1925), 'The doctrine of
stare decisis, though not without its limitations,
is the only thing that gives form, and consistency,
and stability to the body of the law. Its structural
foundations, at least, ought not to be changed
except for the weightiest reasons.'• In Lindsay v.
United States Savings & Loan Ass'n, 120 Ala. 156,
167, 24 So. 171, 174 (1898), this Court commented:
"'The observations of Chancellor Kent are
instructive, and have been often quoted by
courts and text writers: "If a decision has
been
made
upon
solemn
and
mature
consideration, the presumption is in favor
of its correctness, and the community have
a right to regard it as a just declaration
or exposition of the law, and to regulate
their actions by it."'•
43
1130036 and 1130041
"... Recently we stated, 'Judges adhering to the
rule of stare decisis defer to prior precedent to
obtain the beneficial effect of predictability in
the law even when enticed to embrace what appears to
be a more logically sound rule.'• Keck v. Dryvit
Sys., Inc., 830 So. 2d 1, 7-8 (Ala. 2002)."
Exxon Corp. v. Department of Conservation & Natural Res., 859
So. 2d 1096, 1102 (Ala. 2002) (emphasis omitted).
The plaintiff does not ask this Court to overrule Mock;
instead, the majority elects to do so on its own initiative.
"However, this Court has long recognized a disinclination to
overrule existing caselaw in the absence of either a specific
request to do so or an adequate argument asking that we do
so." Ex parte McKinney, 87 So. 3d 502, 509 n.7 (Ala. 2011).
This is because "[s]tare decisis commands, at a minimum, a
degree of respect from this Court that makes it disinclined to
overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
44
1130036 and 1130041
inclined
to
abandon precedent without a specific invitation to
do so"). Because the plaintiff attempts to distinguish Mock
but does not ask us to overrule it, I would follow the
doctrine of stare decisis and apply that precedent. I express
no opinion as to whether Mock correctly interpreted or applied
the AMLA, because I do not believe that the issue is before
us.
Despite no "specific request" to overrule Mock, the
majority navigates around this requirement by noting that
"[the plaintiff's] argument and [the defendant's] invocation
of Mock for the contrary position necessitate a reexamination
of that decision in the present case." ___ So. 3d at ___. I
must respectfully submit that a party presenting an argument
contrary to precedent and the opposing party pointing this out
does not constitute a "specific request" or an "adequate
argument asking" this Court to overrule that controlling
precedent. Ex parte McKinney, supra. Indeed, virtually any
argument citing a case can now be deemed a request to overrule
a decision. This new rule effectively negates the idea that
one must present a "specific request" to overrule a prior
decision and replaces it with a loosey-goosey test that allows
45
1130036 and 1130041
this Court to overrule a prior decision on a whim. Thus, yet
another exception to our general requirements regarding the
proper
presentation of arguments for appellate review has
been
created. See Ex parte Pollard, 160 So. 3d 835, 837 (Ala.
2014) (Shaw, J., dissenting) (noting the unclear standard of
preserving issues for review found in Ex parte Jenkins, 26 So.
3d 464 (Ala. 2009), and its potential for abuse).
Mock provided a clear distinction between sexual
misconduct that occurred with no connection to treatment,
which, Mock held, falls outside the AMLA, and sexual
misconduct that occurs during treatment, which, Mock held,
falls within the AMLA. The main opinion erases this
distinction. Appropriate medical care or treatment might, in
certain cases where such care or treatment occurs as part of
a physician's examination and/or treatment of a patient,
require touching that, in another context, would constitute
sexual assault. The AMLA would require a plaintiff alleging
assault under this scenario to provide certain expert
testimony to show that the touching was outside the standard
of care--i.e., that the touching was medically improper or not
necessary--and restrict some of the evidence that might
46
1130036 and 1130041
otherwise be discoverable and admissible at trial. The
application
of
this
statutory
procedure
might
seem
uncomfortable in a sensitive case like one alleging a sexual
assault because it seemingly provides some measure of
protection to the defendant physician. Now, under the rule
embraced in the main opinion, when there is an allegation of
sexual assault, the plaintiff will have to show only the
elements of that tort outside of any strictures imposed by the
AMLA. This is a more comfortable result than the application
of the previous rule. However, a future case could involve a
physician who was clearly permitted by the applicable
standard
of care to touch a patient, but who is nonetheless sued
alleging assault and is deprived of the substantive and
procedural rules of the AMLA when those rules may be clearly
needed. Once again, in light of this uncomfortable result and
without the restraint of stare decisis, the Court may
vacillate back to a Mock-type analysis. This potential for
uncertainty and instability in the law, fickle as it is, is
exactly what stare decisis is intended to prevent. I thus
respectfully dissent.
47 | September 30, 2015 |
0101a471-9144-42db-b7db-808636c8ed7a | Riverstone Development Co., Inc. v. Garrett & Associates Appraisals, Inc. | N/A | 1140555 | Alabama | Alabama Supreme Court | REL: 10/23/2105
Notice: This opinion is subject to formal revision before publication in the advance
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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, 2015-2016
____________________
1140555
____________________
Riverstone Development Co., Inc.
v.
Garrett & Associates Appraisals, Inc.
Appeal from Madison Circuit Court
(CV-12-901008)
STUART, Justice.
Riverstone
Development
Co.,
Inc.
("Riverstone
Development"), sued Garrett & Associates Appraisals, Inc.
("G&A Appraisals"), in the Madison Circuit Court, asserting
negligence, wantonness, and conspiracy claims stemming from a
1140555
July 2010 appraisal G&A Appraisals conducted on waterfront
property Riverstone Development owned on Lake Guntersville.
During the course of the eventual trial on those claims, the
trial court entered a judgment as a matter of law in favor of
G&A Appraisals on the negligence claim, and, at the conclusion
of the trial, the jury returned a verdict in favor of G&A
Appraisals
on
the
wantonness
and
conspiracy
claims.
Riverstone Development appeals, arguing that the judgment as
a matter of law was improperly entered on the negligence claim
and that it is entitled to a new trial based on juror
misconduct. We affirm.
I.
In 2005, Southern Heritage, LLC, a company owned by Frank
McRight and Michael Lastovic, completed a series of land
transactions resulting in its owning approximately 170 acres
of property abutting Lake Guntersville. As part of those
transactions, Southern Heritage also obtained a right-of-way
easement from a neighboring landowner providing access to the
property from County Road 88 via an existing roadway.
Sometime in the summer of 2006, Southern Heritage began
borrowing money from First American Bank in Huntsville to
2
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start developing the property, with the ultimate goal of
creating a subdivision to be known as Pinnacle Cove. Southern
Heritage used the borrowed funds to begin initial development
work, such as building exploratory roads, drafting plats, and
obtaining permits from the Army Corps of Engineers and the
Tennessee Valley Authority that would allow it to build
boathouses along the shore of Lake Guntersville. By February
2007, Southern Heritage had borrowed approximately $1.5
million from First American, which loan was secured by a
mortgage on the Pinnacle Cove property, and McRight
subsequently testified at trial that First American had
indicated that it would also provide the additional financing
necessary to complete the project, which McRight estimated
would have cost approximately $4 million.
Southern Heritage originally hoped to have initial
development work completed by approximately September 2007 so
that it could begin selling lots. However, in March 2007,
First American notified Southern Heritage that it would not
continue to fund the development until 50 percent of the lots
were "pre sold." McRight subsequently testified that this
condition was tantamount to pulling all future
funding
because
3
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Southern Heritage did not anticipate selling 50 percent of the
lots in Pinnacle Cove until approximately two years after it
began selling lots.
Southern Heritage thereafter
attempted to
obtain financing from other sources but was unable to do so.
It subsequently ran out of money in May 2007, and no
substantive work was done on the Pinnacle Cove property after
June 2007.
Shortly after First American indicated that it would no
longer provide financing, McRight and Lastovic created a new
company, Riverstone Development, to take over ownership of
the
Pinnacle Cove property, because Southern Heritage owned other
property in addition to that tract. For approximately the
next two years, McRight, Lastovic, Southern Heritage, and/or
Riverstone Development (hereinafter referred to collectively
as "the developing parties") continued to pay interest on the
loan held by First American. Sometime in the summer of 2009,
RBC Bank, which had purchased First American and taken over
Southern
Heritage's
loan,
informed
the
developing
parties
that
it would not renew the loan unless the payment terms were
modified and additional collateral and guarantees were
provided. The developing parties ultimately concluded that
4
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they could not agree to those changes, and the loan
accordingly went into default status when the developing
parties stopped making payments.
In March 2010, RBC Bank contracted Phil Fowler, a state-
certified appraiser, to prepare an appraisal of the Pinnacle
Cove property. Fowler had previously appraised the property
on multiple occasions, assigning it an appraised value of
$2.115 million in 2007 and an appraised value of $1.765
million in February 2009. The March 2010 appraisal Fowler
submitted to RBC Bank estimated the value of the property to
be $1.7 million. That same month, Riverstone Development,
which now owed approximately $1.6 million on the loan,
approached RBC Bank and offered to provide a deed in lieu of
foreclosure –– essentially selling the Pinnacle Cove property
to RBC Bank for the amount owed –– but that offer was
rejected.
In June 2010, RBC Bank contracted G&A Appraisals to
conduct a new appraisal of the Pinnacle Cove property. This
appraisal was conducted by Thomas Garrett and Leigh Stephens,
both
state-certified
appraisers,
and
their
July
2010
appraisal
report placed the value of the Pinnacle Cove property at
5
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$340,000. Several months later, RBC Bank foreclosed on the
Pinnacle Cove property, eventually purchasing it at the
foreclosure sale for $300,000, leaving a deficiency
balance
of
approximately $1.3 million. RBC Bank thereafter sued the
1
developing parties to recover that deficiency balance, and,
sometime in 2012, they reached a settlement agreement in which
McRight agreed to provide $250,000 to Southern Heritage and
Riverstone Development that they could use to settle the
claims against them.
Riverstone Development and Southern Heritage initiated
the instant action on July 30, 2012, when they sued G&A
Appraisals, Garrett, and Stephens, asserting negligence,
wantonness, and conspiracy claims. The gravamen of their
claims was that Garrett and Stephens had either performed
their appraisal of the Pinnacle Cove property so unskillfully
as to constitute negligence and/or wantonness or, in the
alternative, that they had conspired with RBC Bank to
intentionally appraise the property at lower than market
value. In either case, Riverstone Development and Southern
RBC Bank thereafter publicly listed the Pinnacle Cove
1
property for sale at $300,000, and it eventually sold for
$185,000.
6
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Heritage argued, they were injured when RBC Bank used the
$340,000 appraisal as the basis of its $300,000 bid at the
foreclosure sale, thus leaving them with no property and owing
a deficiency balance of $1.3 million.
Eventually,
Southern
Heritage,
Garrett,
and
Stephens
were
voluntarily dismissed from the case, leaving only Riverstone
Development as the plaintiff and G&A Appraisals as the
defendant. The case proceeded to a jury trial in October
2
2014, and, following the close of Riverstone Development's
case, G&A Appraisals' motion for a judgment as a matter of law
on the negligence claim was granted. The wantonness and
conspiracy claims were thereafter submitted to the jury at the
close of all testimony, and the jury ultimately returned a
verdict in favor of G&A Appraisals on both claims. The trial
court subsequently entered a judgment on the jury's verdict,
after which Riverstone Development moved for a new trial on
multiple grounds. On January 18, 2015, the trial court denied
that motion for a new trial, and, on February 27, 2015,
Riverstone Development filed its notice of appeal to this
Court.
Garrett in fact died while the case was pending.
2
7
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II.
On appeal, Riverstone Development argues that the trial
court erred (1) by entering the judgment as a matter of law in
favor of G&A Appraisals on the negligence claim and (2) by
denying Riverstone Development's motion for a new trial on
juror-misconduct grounds. We first review the judgment as a
matter of law entered on Riverstone Development's negligence
claim.
In Blue Circle Cement Inc. v. Phillips, 989 So. 2d 1025,
1029 (Ala. 2007), we explained the standard of review
applicable to a trial court's ruling on a motion for a
judgment as a matter of law:
"'This
Court
applies
the
same standard
of
review
to a ruling on a motion for a [judgment as a matter
of law] as the trial court used in initially
deciding the motion. This standard is "materially
indistinguishable from the standard by which we
review a summary judgment." Hathcock v. Wood, 815
So. 2d 502, 506 (Ala. 2001). We must decide whether
substantial evidence was presented to the jury,
which, when viewed in the light most favorable to
[the nonmovant], would warrant a jury verdict in
[its] favor. City of Birmingham v. Sutherland, 834
So. 2d 755 (Ala. 2002). "Substantial 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 Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989).'"
8
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(Quoting Webb Wheel Prods., Inc. v. Hanvey, 922 So. 2d 865,
870 (Ala. 2005).) Thus, in order for its negligence claim to
proceed to the jury in this case, Riverstone Development was
required to present substantial evidence indicating (1) that
G&A Appraisals owed it a duty; (2) that G&A Appraisals
breached that duty; (3) that Riverstone Development suffered
a loss; and (4) that G&A Appraisals' breach was the actual and
proximate cause of that loss. QORE, Inc. v. Bradford Bldg.
Co., 25 So. 3d 1116, 1123 (Ala. 2009). When it orally entered
the judgment as a matter of law on Riverstone Development's
negligence claim at the close of Riverstone Development's
case, the trial court explained that, "based on the
presentation of evidence, I don't find that [Riverstone
Development] established that the standard of care was
breached in this case or that any alleged breach of the
standard of care proximately caused the damages complained of
in this case." For the reasons that follow, we agree that
Riverstone Development failed to present substantial evidence
indicating that G&A Appraisals breached any duty it owed
Riverstone
Development;
accordingly,
we
affirm
the
judgment
as
9
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a matter of law entered by the trial court on Riverstone
Development's negligence claim.3
As an initial matter, we note that the individuals
accused of negligence and whose negligence is attributed to
G&A Appraisals has also argued that it performed the July
3
2010 appraisal for the sole benefit of RBC Bank and that it
accordingly owed no duty to Riverstone Development in
connection with that appraisal. See Zanaty Realty, Inc. v.
Williams, 935 So. 2d 1163, 1167 (Ala. 2005) (holding that an
appraisal company was entitled to a judgment as a matter of
law on a negligence claim because the appraisal company was
employed by a mortgage company to conduct an appraisal for
only mortgage-insurance purposes, and the appraisal company
accordingly owed no duty to the buyer of the appraised
property who had chosen to rely on that appraisal). However,
Riverstone Development argues that both Zanaty and Fisher v.
Comer Plantation, Inc., 772 So. 2d 455 (Ala. 2000), upon which
Zanaty relied, are distinguishable inasmuch as those cases
involved negligence claims brought by parties that had relied
upon
appraisals
performed
for
other
parties,
unlike
Riverstone
Development, which claims that its injury resulted from RBC
Bank's use of an appraisal that G&A Appraisals had performed
specifically for RBC Bank. Unlike the appraisals in Zanaty
and Fisher, Riverstone Development argues, the appraisal in
this case was used by the intended party for its intended
purpose and the injury ultimately suffered was foreseeable.
See Harris v. Board of Water & Sewer Comm'rs of City of
Mobile, 294 Ala. 606, 613, 320 So. 2d 624, 630 (1975)
("[W]here one party to a contract assumes a duty to another
party to that contract, and it is foreseeable that injury to
a third party –– not a party to the contract –– may occur
upon a breach of that duty, the promissor owes that duty to
all those within the foreseeable area of risk."). Ultimately,
however, we need not decide whether G&A Appraisals owed a duty
to Riverstone Development, because Riverstone Development's
failure to establish a breach of the claimed duty provides a
sufficient basis for our judgment.
10
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G&A Appraisals –– Garrett and Stephens –– are licensed
professional real-estate appraisers. The general rule in
Alabama is that, when negligence is asserted against a
professional, a witness also qualified in that profession
must
present expert testimony establishing both a breach of the
standard of care and causation. See, e.g., Collins Co. v.
City of Decatur, 533 So. 2d 1127, 1134 (Ala. 1988) (applying
professional-negligence rule to architects and engineers).
Alabama courts have not yet considered whether this rule
applies to real-estate appraisers as well; however, other
courts that have considered the issue have decided that it
does. For example, in Hice v. Lott, 223 P.3d 139, 143-44
(Colo. App. 2009), the Colorado Court of Appeals concluded
that real-estate appraisers practice a profession involving
knowledge or skill and that, accordingly, claims against them
asserting professional negligence must generally be supported
by expert testimony. In making that determination, the
Hice court noted that real-estate appraisers are licensed and
regulated by Colorado law, are subject to rules and
regulations set forth by a state board, and are subject to
discipline for misconduct or violation of those rules and
11
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regulations. Id. Real-estate appraisers in Alabama operate
in a similar environment –– they are licensed and regulated by
the Alabama Real Estate Appraisers Board, which maintains
rules and regulations governing the profession and which has
the ability to discipline license holders who do not operate
in accordance with those rules and regulations. See Rule 780-
X-1-.01 et seq., Ala. Admin. Code (Real Estate Appraisers
Bd.). We accordingly similarly conclude that real-estate
appraisers are engaged in a profession requiring specialized
knowledge and skill and that the professional-negligence rule
therefore requires expert testimony to establish a licensed
real-estate appraiser's breach of the standard of care.
In this case, no expert witness definitively declared in
testimony that Garrett and/or Stephens –– and thus, by
extension G&A Appraisals –– breached the standard of care;
however, Riverstone Development argues that Stephens's own
testimony constituted expert testimony demonstrating her
breach of the standard of care in one respect and that her
breach of the standard of care in another respect is so
obvious that no expert testimony is necessary. Riverstone
Development
first
argues
that
Stephens
effectively
12
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acknowledged that she breached the standard of care when she
testified that she was "protecting the bank" when she
performed the July 2010 appraisal of the Pinnacle Cove
property, even though, Riverstone Development argues, the
undisputed
evidence
indicated
that
real-estate
appraisers
must
always perform their work with impartiality, objectivity, and
independence.
At trial, both Stephens and Fowler, a real-estate
appraiser testifying as an expert witness on behalf of
Riverstone Development, gave expert testimony indicating that
licensed real-estate appraisers in Alabama are required to
abide by the Uniform Standards for Professional Appraisal
Practice ("USPAP"). They both further agreed that one of
those standards mandated that a real-estate appraiser must
always be "impartial, objective, and independent." At trial,
counsel for Riverstone Development questioned Stephens
regarding this standard and a statement she had made in her
deposition regarding her view that it was her duty to "protect
the bank":
"Q.
Ms. Stephens, you did this appraisal knowing
there was potential for foreclosure, correct?
"A.
Correct.
13
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"Q.
You did this appraisal so you could –– you
deflated this value on this appraisal so you
could protect the bank, didn't you?
"A.
No.
"Q.
Did you tell me on your deposition that you did
it to protect the bank?
"A.
I told you in my deposition that it was my job,
as an appraiser, to protect the bank.
"Q.
So you did say on deposition that you were
protecting the bank?
"A.
I did.
"Q.
Isn't
that
a
violation
of
USPAP,
your
obligation to be independent, objective, and
impartial?
"A.
Independent, objective, and impartial is what I
was.
"Q.
I'm asking you, is protecting a party to the
transaction a violation of USPAP? Simple
question. We have read the rules. I am asking
you.
"A.
As I said in my deposition, I was protecting
the bank from making a loan based upon the
premise that the highest and best use was for a
subdivision, when, in my professional opinion,
the highest and best use was as vacant land,
not as a subdivision.
"Q.
So you were protecting ––
"A.
Protecting the bank ––
"Q.
The bank ––
14
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"A.
–– to not recommend they loan more money on a
subdivision.
"Q.
Well, that's not your job as an appraiser, is
it?
"A.
It is.
"Q.
I
thought
you
weren't
supposed
to
take
anybody's sides. You weren't supposed to
advocate anybody's position; isn't that [what]
USPAP says?
"A.
I don't care which side gets mad when I come up
with a value, it's my own opinion. One side is
likely to be unhappy.
"Q.
I'm not asking who is angry or mad.
"A.
Right.
"Q.
I'm asking you about you. You told us, in this
transaction, you were protecting the bank?
"A.
Yes.
"Q.
Simple question. Doesn't USPAP say you can't
do that?
"A.
They say to be independent, impartial, and
objective, which I was.
"Q.
Yes, ma'am. And it says you cannot advocate
the position of a client, right?
"A.
That's correct.
"Q.
And in this case, your client was the bank,
correct?
"A.
That's right.
15
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"Q.
Again, ma'am, is that protecting the bank a
violation of your standards as an appraiser?
"A.
No."
We
are
not
convinced
that
Stephens's
testimony
constitutes substantial evidence of a breach of the standard
of care. Riverstone Development views Stephens's statement
that she was "protecting the bank" as tantamount to a
statement that she was "favoring the bank"; however, we do not
believe that a fair-minded person in the exercise of impartial
judgment could
make that conclusion when considering the whole
of Stephens's testimony. In Giles v. Brookwood Health
Services, Inc., 5 So. 3d 533, 550 (Ala. 2008), this Court
cautioned against the
practice
of relying on isolated excerpts
of deposition testimony to argue in favor of a proposition the
testimony as a whole does not support, explaining:
"[T]he testimony of [the plaintiff's] medical expert
is not sufficient to satisfy [the plaintiff's]
burden
of
producing
substantial
evidence
demonstrating the existence of a genuine issue of
material fact as to her medical-malpractice claims
.... Even if portions of her expert's testimony
could be said to be sufficient to defeat a
summary-judgment motion when viewed 'abstractly,
independently, and separately from the balance of
his testimony,' 'we are not to view testimony so
abstractly.' Hines v. Armbrester, 477 So. 2d 302,
304 (Ala. 1985). See also Malone v. Daugherty, 453
16
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So. 2d 721, 723–24 (Ala. 1984). Rather, as this
Court stated in Hines:
"'We are to view the [expert] testimony as
a whole, and, so viewing it, determine if
the testimony is sufficient to create a
reasonable inference of the fact the
plaintiff seeks to prove. In other words,
can
we
say,
considering
the
entire
testimony of the plaintiff's expert, that
an inference that the defendant doctor had
acted contrary to recognized standards of
professional care was created?'
"477 So. 2d at 304–05; see also Pruitt v. Zeiger,
590 So. 2d 236, 239 (Ala. 1991) (quoting Hines, 477
So. 2d at 304–05).
"Similarly, in Malone v. Daugherty, supra,
another medical-malpractice case, we noted that a
portion
of
the
plaintiff's
medical
expert's
testimony in that case,
"'when viewed abstractly, independently,
and separately from the balance of his
sworn
statement,
would
appear
sufficient
to
defeat
the
[defendant's]
motion
for
summary
judgment. But our review of the evidence
cannot be so limited. The test is whether
[the
plaintiff's
medical
expert's]
testimony, when viewed as a whole, was
sufficient
to
create
a
reasonable
inference
of the fact Plaintiff sought to prove.
That is to say, could a jury, as the finder
of fact, reasonably infer from this medical
expert's testimony, or any part thereof
when viewed against the whole, that the
defendant doctor had acted contrary to the
recognized standards of professional care
in the instant case.
17
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"'Thus, in applying this test, we must
examine the expert witness's testimony as
a whole.'
"453 So. 2d at 723; see also Downey v. Mobile
Infirmary Med. Ctr., 662 So. 2d 1152, 1154 (Ala.
1995) (noting that portions of a medical expert's
testimony must be viewed in the context of the
expert's testimony as a whole); Pendarvis v.
Pennington, 521 So. 2d 969, 970 (Ala. 1988) ('[W]e
are bound to consider the expert testimony as a
whole.')."
It is clear, when examining Stephens's testimony as a
whole, that she was not stating that she "favored" the bank
when she stated that she was "protecting" it; rather, she was
merely articulating the fact that lenders pay to have
appraisals performed in order to protect themselves from
making undersecured loans. See, e.g., Graham v. Bank of
America, N.A., 226 Cal. App. 4th 594, 607, 172 Cal. Rptr. 3d
218, 229 (2014) ("An appraisal is performed in the usual
course and scope of the loan process to protect the lender's
interest to determine if the property provides adequate
security for the loan." (emphasis omitted and emphasis
added)), and Gomez v. Wells Fargo Bank, N.A., 676 F.3d 655,
661 (8th Cir. 2012) ("[T]he primary purpose of an appraisal is
to protect the lender's interests by ensuring the value of the
collateral is sufficient to secure the loan." (emphasis
18
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added)). No fair-minded person in the exercise of impartial
judgment could consider the whole of Stephens's testimony and
conclude that Stephens's statement that she was "protecting
the bank" indicates that she was not "impartial, objective,
and independent" as required by USPAP.
Riverstone Development next argues that Stephens –– and
by extension G&A Appraisals –– was negligent inasmuch as she
overlooked the fact that Riverstone Development owned a
permanent easement providing access to the Pinnacle Cove
property when she was preparing the appraisal report for G&A
Appraisals and that no expert testimony was necessary to
establish a breach of the standard of care in that respect
because her want of skill and/or lack of care is so apparent
that it can be understood by any layperson. See, e.g.,
Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.
3d 667, 680-81 (Ala. 2009) (explaining exception to
professional-negligence rule when the professional's error is
so obvious that neglect would be clear to average layperson).
However, although Stephens did acknowledge that she was
unaware of the easement held by Riverstone Development, we do
19
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not agree that that evidence alone is sufficient to merit the
submission of the negligence claim to the jury.
With regard to the possibility of real-estate appraisers
making mistakes in the performance of their
duties,
Riverstone
Development's expert Fowler testified that "a simple mistake
may not constitute gross negligence [but] a series of mistakes
may." Furthermore, Fowler agreed with G&A Appraisals'
attorney that, under USPAP, "you can't have an error of
omission or commission that significantly affects the
appraisal." In this case, Stephens acknowledged that she
4
overlooked
the
easement
when
preparing
the
appraisal;
however,
she also testified that her error in that regard had no impact
on her valuation of the property. When questioned by G&A
Appraisals' attorney, she stated:
"Q.
The real question [counsel for Riverstone
Development] wanted to ask about was the fact
whether that missing [easement] affected the
value of this property. Did you missing the
easement affect the value of the property in
your appraisal?
"A.
It did not.
Stephens
also
testified
than
an
error
of
commission
could
4
be a violation of USPAP "if it affected the value of the
estimate of the appraiser's value."
20
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"Q.
And the reason why has to do with comparables,
doesn't it?
"A.
That's right.
"....
"Q.
Did you make any –– let me ask you this
question first –– the properties that you used
as comparables all had access?
"A.
Yes.
"Q.
Did you make any deductions on the value of
those comparables to make up for the fact that
you listed this property, the 170 acres, as not
having access?
"A.
No, I did not.
"[Questions about other adjustments made for size,
location, and proximity to flood plain.]
"Q.
No adjustments for access?
"A.
Correct.
"Q.
What does that tell us about your value that
you placed on the property?
"A.
It tells us that I basically assumed if you get
access, that access did not play a role in the
value that I put on the property."
Thus, the expert testimony heard at trial –– from both Fowler
and Stephens –– indicated that an appraiser's error could be
a breach of the standard of care if it affected the
appraisal's final value; however, there was no expert
21
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testimony indicating that in this case Stephens's failure to
identify the specified easement had an effect on the final
estimated value arrived at in the July 2010 appraisal. In
fact, Stephens specifically refuted that idea, and, when
questioned by G&A Appraisals' attorney at trial, Fowler
emphasized that he was not making any judgment regarding the
effect on the July 2010 appraisal of not taking the easement
into account:
"Q.
You told me, during the course of your
deposition, did you not, that you were not
there to testify about the Garrett and Stephens
appraisal?
"A.
I don't have any basis to testify about that.
I have never seen their appraisal.
"Q.
And you are not here to testify about it today,
are you?
"A.
No.
"Q.
And you are not here to offer any opinion with
regard to the Garrett-Stephens appraisal?
"A.
That would be a review, and I would have to
meet all the requirements if I did that.
"Q.
Well ... I think, during the course of your
deposition, you told me, because you had
appraised this property, you would not and
could not do a review.
"A.
No, it wouldn't be appropriate for me to do a
review on a property that I had appraised.
22
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"Q.
Because it would affect your impartiality,
because you've already got a pre-fixed opinion,
right?
"A.
That's exactly the reason.
"Q.
And you just acknowledged that you have not
reviewed
or
read
the
Garrett[-Stephens]
appraisal, have you?
"A.
I have not reviewed it, no.
"Q.
And you told me also that you weren't going to
comment on their appraisal because you didn't
know what [their] appraisal premise was; does
that sound right?
"A.
Yes."
Thus, there was no expert testimony presented at trial
indicating that the error Stephens made by overlooking the
easement had an effect on the final value for the Pinnacle
Cove property listed
in
the appraisal.
Riverstone Development
argues that no expert testimony is needed because the error is
obvious to any layperson; however, although it might be true
that
a
layperson
can
understand
the
concept
of
a
professional's overlooking a relevant fact, we disagree that
a layperson has the expertise in this situation to understand
whether and how a real-estate appraiser's overlooking an
easement might impact that appraiser's conclusions as to the
valuation of a property. As the trial court stated when
23
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granting G&A Appraisals' motion for a judgment as a matter of
law:
"[Riverstone Development] also argued yesterday
that the nature of the alleged breach in this case
is so obvious that a layperson is capable of finding
that a breach occurred and does not require expert
testimony. That just doesn't fly with me. I think
if anything has become clear, it's that appraisals
are tricky business and it's not simple, by any
stretch, and the simple analysis of that is looking
at the binder of Mr. Fowler's first analysis that is
about two inches thick."
Moreover, we note that this is not a case where there was
no expert testimony given regarding an alleged breach of the
standard of care and the plaintiff on appeal is arguing that
no expert testimony was needed because the negligence is
obvious to any layperson. Rather, in this case there was
expert
testimony
establishing
an
industry
standard
with
regard
to real-estate appraisal errors –– that an appraisal error
might be considered a breach of the standard of care only if
that error affects the appraised value of the property –– but
the plaintiff now argues that a jury should nevertheless have
been allowed to find that the appraisal error was a "common-
sense" error constituting
negligence
without any regard to the
standard set forth by the experts and without any regard to
whether there was evidence indicating that the error affected
24
1140555
the appraised value of the property. Accepting this argument
would undermine the purpose of the rule requiring expert
testimony in professional-negligence cases, and we decline to
do so. The judgment as a matter of law entered on Riverstone
Development's negligence claim is due to be affirmed.
III.
We
next turn
to
Riverstone
Development's
juror-misconduct
argument. Specifically, Riverstone Development alleges that
it is entitled to a new trial because one of the jurors, A.L.,
failed to acknowledge during voir dire that he had previously
been a defendant in a civil lawsuit.
"In Ex parte Dobyne, 805 So. 2d [763,] 772
[(Ala. 2001)], this Court stated:
"'[T]he proper standard to apply in
determining whether a party is entitled to
a new trial in this circumstance [where a
juror fails to respond correctly to a
question on voir dire] is "whether the
defendant might have been prejudiced by a
veniremember's failure to make a proper
response." Ex parte Stewart, 659 So. 2d
[122,] 124 [(Ala. 1993)]. Further, the
determination of whether a party
might have
been prejudiced, i.e., whether there was
probable prejudice, is a matter within the
trial court's discretion.'
"Id. See also Reynolds v. City of Birmingham, 723
So. 2d 822, 824 (Ala. Crim. App. 1998) ('"[T]he
ruling of the trial judge denying a motion for new
25
1140555
trial will not be disturbed in the absence of a
showing of abuse of discretion, and this Court will
indulge
every
presumption
in
favor
of
the
correctness of his ruling."' (quoting Hall v.
State, 348 So. 2d 870, 875 (Ala. Crim. App.
1977)))."
Ex parte Dixon, 55 So. 3d 1257, 1259 (Ala. 2010). Thus,
Riverstone
Development
bore
the
burden
of
proof
in
establishing
that
probable
prejudice
arose
from
A.L.'s
failure
to truthfully respond to a question on voir dire, and the
trial
court's
conclusion
that
Riverstone
Development
failed
to
meet that burden is subject to great deference under the
exceeds-its-discretion standard.
Riverstone Development argues that it was prejudiced in
this case because juror A.L. failed to respond to the
following question posed by Riverstone Development's attorney
during voir dire:
"Now, let's make sure –– on the terminology
here, we are the plaintiff. We go first in the
evidence, and we have an obligation of showing our
burden of proof. These are the defendants. Anybody
been a defendant, in other words, in the same
position as these folks in a civil lawsuit? And
please don't –– I don't want to invade –– I'm not
talking about domestic issues and I'm not talking
about criminal cases where [the district attorney's
office] is prosecuting you, something of a criminal
nature. I'm talking about civil-damage[s] lawsuits,
money-damage[s] lawsuits, civil claims."
26
1140555
Three prospective jurors in the pool responded affirmatively
and were subjected to further questioning; A.L.,
however,
made
no response. Riverstone Development thereafter learned ––
presumably at some time after judgment had been entered on the
jury's verdict –– that A.L. had in fact been a defendant in
three collection actions apparently stemming from A.L.'s
status as a guarantor on three student loans that had gone
unpaid. In conjunction with its motion for a new trial,
Riverstone Development submitted to the trial court copies of
three consent judgments that had been entered against A.L. in
December 2013, totaling $18,789, $27,525, and $41,132,
respectively. Riverstone Development now argues that "[a]
person saddled with judgments in that amount would likely be
biased against plaintiffs, or sympathetic to defendants, or
both" and that the trial court exceeded its discretion in
failing to recognize what Riverstone Development says was
probable prejudice and to grant its motion for a new trial.
(Riverstone Development's brief, at p. 44.)
G&A Appraisals, however, emphasizes that "not every
failure to respond properly to questions propounded during
voir dire 'automatically entitles [the complaining party] to
27
1140555
a new trial or reversal of the cause on appeal.'" Ex parte
Dobyne, 805 So. 2d 763, 771-72 (Ala. 2001) (quoting Freeman v.
Hall, 286 Ala. 161, 166, 238 So. 2d 330, 335 (1970)). G&A
Appraisals further argues that Riverstone Development failed
to establish the existence of probable prejudice inasmuch as
Riverstone
Development's
attorneys
failed
to
testify
that
they
would have struck A.L. had they known of the judgments entered
against him. In Ex parte Dobyne, this Court explained:
"The form of prejudice that would entitle a
party to relief for a juror's nondisclosure or
falsification in voir dire would be its effect, if
any, to cause the party to forgo challenging the
juror for cause or exercising a peremptory challenge
to strike the juror. Ex parte Ledbetter, 404 So. 2d
731 (Ala. 1981); Warrick v. State, 460 So. 2d 320
(Ala. Crim. App. 1984); and Leach v. State, 31 Ala.
App. 390, 18 So. 2d 285 (1944). If the party
establishes that the juror's disclosure of the truth
would have caused the party either to (successfully)
challenge the juror for cause or to exercise a
peremptory challenge to strike the juror, then the
party has made a prima facie showing of prejudice.
Id. Such prejudice can be established by the
obvious tendency of the true facts to bias the
juror, as in Ledbetter, supra, or by direct
testimony of trial counsel that the true facts would
have prompted a challenge against the juror, as in
State v. Freeman, 605 So. 2d 1258 (Ala. Crim. App.
1992)."
805 So. 2d at 772-73 (emphasis added). It is undisputed that
counsel for Riverstone Development did not submit sworn
28
1140555
testimony indicating that A.L. would have been challenged had
the true facts been known; thus, G&A Appraisals is correct
that probable prejudice was not established in that manner.
However, Riverstone Development correctly notes that probable
prejudice may also be established "by the obvious tendency of
the true facts to bias the juror," id., and it accordingly
argues that it is obvious in this case that A.L. would be
biased against Riverstone Development and in favor of G&A
Appraisals because A.L. had recently stood in the same
defendant role that G&A Appraisals was in when he was sued by
a company seeking a judgment against him. It is apparent,
however, that the trial court did not accept this argument,
and, when considering the relevant facts at the heart of both
A.L.'s dispute and the instant dispute –– and not just the
singular fact that A.L. and G&A Appraisals were both
defendants in civil actions –– we cannot say that the trial
court exceeded its discretion in concluding that there was no
probable prejudice.
The parties both state that the judgments entered against
A.L. were the result of loan guarantees he had made,
presumably on student loans, inasmuch as the plaintiff
29
1140555
bringing the claims against him was the National Collegiate
Student Loan Trust. In the instant case, Riverstone
Development sought a judgment against G&A Appraisals based on
negligence, wantonness, and conspiracy claims. Riverstone
Development's corporate representative at trial was McRight,
who, like A.L., had been sued in a separate case as a result
of guarantees he had made on a loan, specifically the $1.5
million loan made by First American to Southern Heritage.
Thus, the trial court might have fairly concluded that it was
equally likely that A.L. would be prejudiced in favor of
McRight, and by extension Riverstone Development, inasmuch as
both had been defendants in lawsuits seeking to collect on
loan guarantees they had made.
We further note that even if the trial court could infer,
in
the
absence
of
direct
testimony
from
Riverstone
Development's attorneys, that those attorneys would have
viewed A.L. in a negative light had they had knowledge of the
judgments entered against him, it would still require another
inference –– that the negative effect of the judgments would
outweigh
the
attorneys'
otherwise
favorable
impression
of
A.L.
–– in order for the trial court to conclude that probable
30
1140555
prejudice existed. See Ex parte Dobyne, 805 So. 2d at 773
5
(explaining in a similar case involving a juror who failed to
disclose information that the trial court could not find the
existence of probable prejudice based upon on "[a]n inference
on an inference"). In conclusion, the trial court did not
exceed its discretion in denying Riverstone Development's
motion for a new trial on the basis of juror misconduct
because there was a basis from which the trial court could
have concluded that Riverstone Development was not probably
prejudiced by A.L.'s failure to disclose during voir dire the
existence of the judgments entered against him.
IV.
Following the entry of a judgment as a matter of law in
favor of G&S Appraisals and a jury trial resulting in a
judgment entered in G&A Appraisals' favor, Riverstone
Development appealed, arguing that the trial court erred by
That counsel for Riverstone Development had a favorable
5
impression of A.L. before learning of the judgments entered
against him is evidenced not only by the fact that counsel did
not strike him, but also by the fact that counsel successfully
challenged G&A Appraisals' attempt to strike him, citing
Batson v. Kentucky, 476 U.S. 79 (1986). Ironically, the
reason given by G&A Appraisals' counsel for striking A.L. was
that he did not respond to any questions or disclose any
information during voir dire "other than when he stood up to
tell us who he was."
31
1140555
entering a judgment as a matter of law on its negligence
claim,
thereby
removing
that
claim
from
the
jury's
consideration, and that the trial court also erred by denying
a postjudgment motion for a new trial on the ground of juror
misconduct. As explained above, however, the trial court's
decision to enter a judgment as a matter of law on the
negligence claim is supported by the law in light of the
evidence adduced by Riverstone Development during the
presentation of its case, and the trial court also acted
within its discretion in denying the motion for a new trial
inasmuch as there was a basis for it to conclude that
Riverstone Development was not probably prejudiced by A.L.'s
lack of disclosure during voir dire. Accordingly, the
judgment entered by the trial court is affirmed.
AFFIRMED.
Parker, Shaw, and Wise, JJ., concur.
Moore, C.J., concurs in the result.
32 | October 23, 2015 |
32f8e15f-fb44-40f5-b031-f0c0124e7de3 | Sentinel Insurance Company, Ltd. v. Alabama Municipal Insurance Corp. | N/A | 1130841 | Alabama | Alabama Supreme Court | This case was originally assigned to another Justice; it
1
was reassigned to Justice Shaw on December 8, 2014.
REL:09/25/2015
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, 2015
____________________
1130841
____________________
Sentinel Insurance Company, Limited
v.
Alabama Municipal Insurance Corporation
Appeal from Lee Circuit Court
(CV-11-900264)
SHAW, Justice.1
Sentinel
Insurance
Company,
Limited
("Sentinel"),
appeals the declaratory judgment entered in favor of Alabama
1130841
2
Municipal Insurance Corporation ("AMIC") in this dispute
between Sentinel and AMIC over which insurance company is
responsible for providing primary insurance coverage in an
underlying automobile-accident case. We reverse and remand.
Facts and Procedural History
In September 2005, the City of Opelika ("the City")
entered into an "operations agreement" with ESG Operations,
Inc. ("ESG"). Under the operations agreement, ESG was to
perform certain work for the City, including providing workers
to perform certain municipal
services.
The
operations
agreement also contained an indemnification provision and a
provision requiring that both parties to the agreement acquire
insurance. The City had previously acquired a "Commercial
Auto" insurance policy with AMIC ("the AMIC policy").
Purportedly in an effort to comply with the operations
agreement, the City had AMIC add ESG as an "additional
insured" on the AMIC policy. ESG obtained its own insurance
policy from Sentinel ("the Sentinel policy").
On April 28, 2010, Gwendolyn Vaughan, an ESG employee,
was operating a street sweeper owned by the City when it
collided with a vehicle driven by Roger Clark. The collision
1130841
3
injured Clark and his wife, June Clark. On June 1, 2011, the
Clarks sued ESG, Vaughan, and the City seeking damages for
their injuries.
Pursuant to the AMIC policy, AMIC defended the City in
the Clarks' action. Four months after the Clarks commenced
their action, they withdrew their claims against the City, and
the City was dismissed from the case. AMIC's costs in
defending the City in the action amounted to $5,507. After the
City was dismissed, the Clarks continued to pursue their
claims against ESG and Vaughan.
While the Clarks' claims were still pending against them,
ESG and Vaughan filed a third-party complaint against AMIC,
seeking, among other things, a declaration that AMIC was
required to defend and indemnify ESG and Vaughan. AMIC filed
a third-party complaint against Sentinel, and Sentinel later
filed a counterclaim against AMIC. Both pleadings sought
judgments declaring which insurance company was required to
defend and indemnify ESG and Vaughan. The Clarks ultimately
entered into a settlement agreement with ESG, Vaughan, AMIC,
and Sentinel ("the settlement"). AMIC and Sentinel each paid
one-half of the settlement amount. The Clarks then released
1130841
4
Vaughan and ESG, leaving AMIC and Sentinel, and their
respective claims against one another, pending in the trial
court.
Sentinel and AMIC later filed dueling requests for a
summary judgment in their respective favor seeking to be
reimbursed
for
their
part
of
the
settlement
amount.
Specifically, each insurance company argued that the other's
policy provided primary coverage for ESG and Vaughan, while
its own policy merely provided excess coverage. The trial
court entered a judgment that stated, in pertinent part:
"Essentially, the Clarks were involved in an
automobile accident which involved a street sweeper
operated by [ESG]. Gwendolyn Vaughn [sic] is an
employee of [ESG]. The undisputed evidence is that
[ESG] provides primary public work services for the
City of Opelika. Therefore, the employees of ESG
are not the employees of the City of Opelika but
[ESG]. The City of Opelika and [ESG] entered into
this agreement whereby ESG would provide these
public work services. The operating agreement was
negotiated by the parties. The operating agreement
states that each party shall obtain and maintain
insurance coverage of a type and in the amounts
described in appendix G. Paragraph 3 of [a]ppendix
G states that:
"'Property
damage
and
liability
insurance in a minimum amount not less than
One Million Dollars ($1,000,000.00) for all
vehicles owned and operated by ESG under
this agreement.'
1130841
The trial court also required Sentinel to pay the $5,507
2
in costs incurred by AMIC in the City's defense in the Clarks'
action. Sentinel does not challenge on appeal that portion of
the trial court's order.
5
"After reviewing the insurance policies in
place, the court determines that the language used
in both is unambiguous and that the Sentinel policy
provides primary coverage with respect to the
subject accident and that AMIC's policy is in
excess.
"Therefore, it is Ordered, Adjudged and Decreed
that Sentinel Insurance Company's motion for summary
judgment and counterclaim for declaratory relief are
denied. Furthermore, the relief requested by [AMIC]
is hereby granted and judgment is entered in favor
of [AMIC]. ..."
The trial court required Sentinel to cover the entire
settlement. Sentinel appeals.
2
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
1130841
6
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).
Discussion
Sentinel argues that the trial court erred in holding
that "the Sentinel policy provides primary coverage with
respect to the subject accident and that AMIC's policy is
excess." Sentinel's brief, at 26-27. According to Sentinel,
the language in both policies "establishes that the AMIC
policy, as the vehicle owner's policy, provided the primary
coverage." Sentinel's brief, at 24. Sentinel further argues
that,
because
AMIC's
coverage
was
primary,
AMIC
was
responsible for the entire settlement because its policy
1130841
7
limits were never reached and excess coverage was not
required.
We have previously held that "[t]he determination of
which insurance coverage is primary and which, if any, is
excess or secondary depends on the exact language of the
policy." Nationwide Mut. Ins. Co. v. Hall, 643 So. 2d 551,
558 (Ala. 1994). See also Isler v. Federated Guar. Mut. Ins.
Co., 567 So. 2d 1264, 1265 (Ala. 1990); Protective Nat'l Ins.
Co. of Omaha v. Bell, 361 So. 2d 1058 (Ala. 1978); and Gaught
v. Evans, 361 So. 2d 1027 (Ala. 1978). Further, insurance
contracts give effect to the intention of the parties, and,
when that intention is clear and unambiguous, the insurance
policy will be enforced as written. See Wakefield v. State
Farm Mut. Auto. Ins. Co., 572 So. 2d 1220 (Ala. 1990). If the
terms of an insurance policy are plain and unambiguous, the
interpretation of the contract and its legal effect are
questions of law. Nationwide Ins. Co. v. Rhodes, 870 So. 2d
695, 697 (Ala. 2003). "Questions of law are reviewed de
novo." Alabama Republican Party v. McGinley, 893 So. 2d 337,
342 (Ala. 2004).
1130841
Section 3.6 of the operations agreement states that the
3
City, as the "Owner" under the operations agreement, "shall
... provide for ESG's use all vehicles and equipment currently
in use ... including the vehicles described in Appendix E."
Those vehicles include "all city equipment" for the "street
department."
8
The AMIC policy stated that AMIC would "pay all sums an
'insured' legally must pay as damages because of 'bodily
injury' or 'property damage' to which this insurance applies,
caused by an 'accident' and resulting from the ownership,
maintenance or use of a covered 'auto.'" The AMIC policy
defines "insured" as follows:
"The following are 'insureds':
"a. You for any covered 'auto.'
"b. Anyone else while using with your
permission a covered 'auto' you own, hire
or borrow. ...
"....
"c. Anyone liable for the conduct of
an 'insured' described above but only to
the extent of that liability."
(Emphasis added.) The street sweeper Vaughan was using when
the accident occurred is listed in the "Schedule of Covered
Autos You Own" of the AMIC policy. Vaughan, an ESG employee,
was using this "covered auto" with the permission of the
City. She is thus an "insured" under subparagraph b.
3
1130841
The parties wrangle with whether ESG could also be
4
considered a permissive user under subparagraph a. Because
subparagraph c clearly applies to ESG, we pretermit discussion
of that issue.
9
Additionally, under subparagraph c, ESG is also an "insured"
because it is "liable for the conduct of an 'insured,'"
namely, Vaughan, as its employee.4
The AMIC policy also includes an "Other Insurance"
provision, which states:
"5. Other Insurance
"a. For any covered 'auto' you own,
this
Coverage
Form
provides
primary
insurance. For any covered 'auto' you don't
own,
the
insurance
provided
by
this
Coverage Form is excess over any other
collectible insurance."
(Emphasis added.) Because the street sweeper involved in the
underlying accident was a "covered auto" being used by an
"insured"--Vaughan--under the AMIC policy, coverage under the
AMIC policy is "primary" in this case, within the parameters
of the "Other Insurance" provision of the policy.
AMIC contends, however, that its coverage of ESG and
Vaughan is "excess" because, it says, ESG's status as an
"additional insured" limits the coverage available to it under
the policy. Specifically, AMIC points out that its policy
1130841
10
lists ESG as an "additional insured as their interests may
appear." According to AMIC, there is "overwhelming testimony"
that this language limits ESG's coverage under the AMIC policy
only to situations where "the City of Opelika was negligent."
AMIC's brief, at 22. Nevertheless, whatever more limited
coverage might exist as to an "additional insured" under the
AMIC policy, both Vaughan and ESG, under the terms of that
policy, are "insureds," and the accident involved a "covered
auto." Under the clear language of the AMIC policy, the
coverage provided, under the facts of this case, is primary.
Cf. Nationwide Mut. Ins. Co. v. Hall, 643 So. 2d 551, 559
(Ala. 1994) (rejecting the argument that an "other insurance"
provision gave primary coverage to a "named insured" but not
an "additional insured" because the "'other insurance'
provision makes no distinction between 'named insureds' and
'additional insureds'").
It is undisputed that the Sentinel policy also provided
coverage to ESG and Vaughan in this case. It includes the
following section concerning "Other Insurance," which is
identical to the same provision in the AMIC policy:
"5. Other Insurance
1130841
11
"a. For any covered 'auto' you own,
this
Coverage
Form
provides
primary
insurance. For any covered 'auto' you don't
own,
the
insurance
provided
by
this
Coverage Form is excess over any other
collectible insurance. ...
"....
"c. Regardless of the provisions of
Paragraph a. above, this Coverage Form's
Liability Coverage is primary for any
liability
assumed
under
an
'insured
contract.'"
(Emphasis added.) Sentinel contends that the first sentence
of subparagraph a does not apply because ESG and Vaughan did
not "own" the street sweeper. Thus, Sentinel argues, under
the second sentence of subparagraph a, its coverage is not
"primary" but is instead "excess."
In its brief on appeal, AMIC contends that subparagraph
c of the "Other Insurance" provision of the Sentinel policy
provides primary coverage "for any liability assumed under an
'insured contract.'" (Emphasis added.) AMIC's brief, at 29.
AMIC contends that the operations agreement between the City
and ESG is an "insured contract" and that, thus, under
subparagraph c, the Sentinel policy provides primary coverage.
We disagree.
1130841
Section 7 of the operations agreement is entitled
5
"Indemnity, Liability and Insurance." Section 7.1 states:
"ESG hereby agrees to and shall hold [the City]
harmless ... from any liability or damages for
property damage or bodily injury, including death,
which may arise from ESG's negligent operations
under this Agreement, to the proportion such
negligence contributed to the damages, injury, or
loss, whether such negligent operation be by ESG or
by subcontractor of ESG. [The City] agrees to and
shall hold ESG harmless from any liability or
damages for property damage or bodily injury,
including death, which may arise from all causes of
any kind other than ESG's negligence."
AMIC contends that neither it nor the City contemplated
that it would be liable for damages resulting from ESG's own
negligence. This understanding, however, was not memorialized
in the insurance policies. Furthermore, the operations
agreement specifically required the City to insure the
vehicles it owned and ESG would be operating.
12
Nothing before us indicates that ESG's liability for
which it seeks coverage under the AMIC policy (the settlement
with the Clarks) was "assumed" from "another." Instead, the
driver, Vaughan, and ESG, as Vaughan's employer, were the
actual tortfeasors in this case. They have not "assumed" the
liability of another; they are instead directly liable
independently of a contractual assumption of liability.
It is true that, in the operations agreement, ESG was
required to indemnify and hold the City harmless for liability
stemming from ESG's own negligence. The City, however, was
5
1130841
13
not a party to the settlement, and the plaintiffs withdrew any
claims against the City long before the settlement was
reached. It appears that ESG did indemnify the City for its
initial costs to defend itself at the beginning of the action,
but
nothing
before
us
indicates
that
the
settlement
discharged liability on the City's part. Because the liability
for which ESG seeks coverage was not "assumed" from the City,
subparagraph c does not apply. Because it does not apply, the
Sentinel policy designates itself under subparagraph a as
providing excess coverage.
Conclusion
After reviewing the AMIC policy and the Sentinel policy,
we conclude that the language in each is unambiguous as to
which provides primary coverage: The AMIC policy provides
primary coverage, and the Sentinel policy provides excess
coverage. For the foregoing reasons, we hold that the trial
court erred in concluding that the Sentinel policy provided
primary coverage. Therefore, the trial court's judgment is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
1130841
14
REVERSED AND REMANDED.
Stuart, Bolin, Murdock, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Parker, J., dissent. | September 25, 2015 |
c513f4a9-9a48-40c5-b5e1-76e965c114ce | Alabama v. Biddle | N/A | 1140603 | Alabama | Alabama Supreme Court | REL:08/28/2015
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, 2015
____________________
1131496
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
Michael Scott Biddle)
1140603
____________________
State of Alabama
v.
Michael Scott Biddle
Appellate Proceedings from Jefferson Circuit Court
(CC-14-1383)
BOLIN, Justice.
The State petitions this Court for a writ of mandamus
directing the Jefferson Circuit Court to set aside its order
relieving
Michael
Scott
Biddle
from
the
residency
requirements
of the Alabama Sex Offender Registration and Community
Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("the
ASORCNA"), on the basis that the circuit court lacked
jurisdiction over the case. The State also filed an appeal
seeking alternative relief in the event this Court concludes
that the circuit court had jurisdiction over the matter. We
grant the petition and dismiss the appeal.
On April 13, 1993, Biddle was convicted in South Carolina
of a lewd act upon a child, a violation of S.C. Code § 16-15-
140. He was sentenced to 10 years' imprisonment; his sentence
was suspended and he was ordered to serve 5 years on
probation. Biddle moved to Alabama in January 2014. Under §
15-20A-10 of the ASORCNA, Biddle's conviction requires that he
register as a sex offender. Biddle's conviction also
subjects him to the residency restrictions set out in § 15-
2
1131496, 1140603
20A-11 of the ASORCNA. Section 15-20A-11 provides, in
pertinent part, that no registered sex offender may reside
within 2,000 feet of a school or a child-care facility.
On January 22, 2014, Biddle registered with the Jefferson
County Sheriff's Department as a sex offender in compliance
with § 15-20A-10(a)(1) of the ASORCNA. On February 25, 2014,
Biddle filed a form averring that he was residing at an
address in Jefferson County that was not within 2,000 feet of
a school or a child-care facility. On May 23, 2014, Biddle
was indicted for two counts of violating the residency
requirements of § 15-20A-11.
On August 28, 2014, following a bench trial, Biddle was
found not guilty on both counts. That same day and in the
same proceeding, Biddle filed, in the criminal division of the
Jefferson Circuit Court, a petition pursuant to § 15-20A-23,
which provides that a registered sex offender may be relieved
of the residency restrictions of the ASORCNA if the sex
offender is "terminally ill or permanently immobile." Biddle
alleged in his petition that he was terminally ill, that he
needed a full-time caregiver, and that his sister lived in
Vestavia Hills and would care for him if he resided with her.
3
1131496, 1140603
It should be noted that Biddle had no criminal charges
against him when he filed his petition in the criminal
division of the circuit court seeking relief from the
residency requirements of the ASORCNA. Biddle did not pay a
filing fee to the circuit court for filing his petition, and
he did not file the petition as a new civil case. The State
filed
an
objection,
challenging
the
circuit
court's
jurisdiction and asserting that Biddle's petition was
incomplete because he had not paid a filing fee or sought in
forma pauperis status.
On September 22, 2014, the circuit court granted Biddle's
petition for relief from the residency restrictions of the
ASORCNA. The State filed a petition for a writ of mandamus,
1
challenging the circuit court's jurisdiction over the matter
It
was
undisputed
that
Biddle's
sister's
house
is
located
1
within 2,000 of a child-care facility. Biddle presented
medical records indicating that he had a "history of portal
vein
thrombosis
with
resultant
end-stage
cirrhosis
complicated
by esophageal varices, portal hypertension, and hepatic
encephalopathy. He also has a small mass being monitored for
potential hepatic carcinoma." The State presented evidence
that challenged Biddle's assertions, including a photograph
taken in March 2014 showing Biddle walking unaided through his
sister's neighborhood and one photograph taken at the same
time showing Biddle holding a very large tree limb over one
shoulder.
4
1131496, 1140603
and an appeal seeking alternative relief if this Court
determined that the circuit court had jurisdiction. Because
of our disposition of the petition for the writ of mandamus,
we dismiss the appeal. This Court granted the State's motion
for a stay of the circuit court's order granting Biddle relief
from the residency requirements of the ASORCNA pending our
resolution of Biddle's petition.
Standard of Review
"'The writ of mandamus is a drastic and
extraordinary writ, to 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 United Serv. Stations, Inc., 628 So. 2d 501,
503 (Ala. 1993); see also Ex parte Ziglar, 669 So.
2d 133, 134 (Ala. 1995).' Ex parte Carter, 807 So.
2d 534 at 536 [(Ala. 2001)]."
Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001).
"The
question
of
subject-matter
jurisdiction
is
reviewable by a petition for a writ of mandamus." Ex parte
Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003).
See also Ex parte Holley, 883 So. 2d 266, 268 (Ala. Crim. App.
2003)("[The petitioner's] only remedy is to file a mandamus
petition. [The petitioner] could
not appeal the ruling
entered
5
1131496, 1140603
by [the circuit judge] because that ruling was 'void,' and a
void judgment will not support an appeal.").
Discussion
The issue is whether the circuit court had jurisdiction
over Biddle's petition, which turns on whether the proceeding
was civil or criminal in nature. It is undisputed that no
criminal charges were pending against Biddle when he filed his
petition in the criminal division of the circuit court and
that Biddle did not pay a filing fee or seek in forma pauperis
status before filing his petition.
We note that since 1996 Alabama has had statutory
provisions requiring that sex offenders register with law
enforcement. See § 15-20-20 through -24 (now repealed). In
2011, the legislature adopted the ASORCNA. Although this
2
Court has not been called on to interpret the ASORCNA, we have
guidance from other courts that have considered similar sex-
offender-registration statutes and whether proceedings under
those statutes are criminal or civil in nature.
The legislature recently amended the ASORCNA; those
2
amendments will become effective September 2015.
6
1131496, 1140603
In Smith v. Doe, 538 U.S. 84 (2003), the United States
Supreme Court addressed an ex post facto challenge to the
Alaska Sex Offender Registration Act, an act similar to the
ASORCNA in its registration and residency requirements,
brought by individuals who were convicted of sex offenses
before the passage of the Alaska act. Specifically, the
Supreme Court "considered a claim that a sex offender
registration and notification law constitutes retroactive
punishment forbidden by the Ex Post Facto Clause." 538 U.S. at
92. The Court determined that "[t]he [Alaska] Act is
nonpunitive, and its retroactive application does not violate
the Ex Post Facto Clause." 538 U.S. at 105–06.
The Smith Court stated:
"This is the first time we have considered a
claim
that
a
sex
offender
registration
and
notification law constitutes retroactive punishment
forbidden by the Ex Post Facto Clause. The framework
for our inquiry however, is well established. We
must 'ascertain whether the legislature meant the
statute to establish "civil" proceedings.' Kansas v.
Hendricks, 521 U.S. 346, 361 (1997). If the
intention
of
the
legislature
was
to
impose
punishment, that ends the inquiry. If, however, the
intention was to enact a regulatory scheme that is
civil and nonpunitive, we must further examine
whether the statutory scheme is '"so punitive either
in purpose or effect as to negate [the State's]
intention" to deem it "civil."' Ibid. (quoting
United States v. Ward, 448 U.S. 242, 248–249
7
1131496, 1140603
(1980)). Because we 'ordinarily defer to the
legislature's stated intent,' Hendricks, supra, at
361, '"only the clearest proof" will suffice to
override legislative intent and transform what has
been denominated a civil remedy into a criminal
penalty,' Hudson v. United States, 522 U.S. 93, 100
(1997)(quoting Ward, supra, at 249; see also
Hendricks, supra, at 361; United States v. Ursery,
518 U.S. 267, 290 (1996); United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 365
(1984)."
538 U.S. at 92. The Smith Court stated: "The factors most
relevant to our analysis are whether, in its necessary
operation, the regulatory scheme: has been regarded in our
history and
traditions
as a punishment; imposes an affirmative
disability or restraint; promotes the traditional aims of
punishment; has a rational connection to a nonpunitive
purpose; or is excessive with respect to this purpose." 538
U.S. at 97.
The Court of Criminal Appeals in Lee v. State, 895 So. 2d
1038 (Ala. Crim. App. 2004), relied heavily on Smith v. Doe,
supra,
to
conclude
that
the
now
repealed
Community
Notification Act ("the CNA"), § 15-20-20 et seq., Ala. Code
1975, was not an ex post facto law, either facially or as
applied to the appellant in that case, who was an adult
criminal sex offender. The court held that the CNA was
8
1131496, 1140603
intended to create a civil regulatory scheme and that it did
not have any punitive effect on the appellant that negated the
legislative intent behind the CNA. 895 So. 2d at 1042-43. See
also Boyd v. State, 960 So. 2d 717 (Ala. Crim. App. 2006)
(reaffirming Lee v. State, supra). The Court of Civil Appeals
in Salter v. State, 971 So. 2d 3 (Ala. Civ. App. 2007), held
that the CNA propounded a civil scheme with the recognized
goal of protecting communities and their most vulnerable
citizens -- children -- from the proven danger of recidivism
by criminal sex offenders. The Court of Civil Appeals,
relying on Lee v. State, held that the CNA could not be
considered a punitive statute in either intention or effect
with regard to the defendant.
In Windwalker v. Bentley, 925 F. Supp. 2d 1265 (N.D. Ala.
2013), Jim Windwalker was a sexual offender who was subject to
the requirements of the ASORCNA. He challenged the ASORCNA on
several grounds, including an argument that it was an ex post
facto law. The United States District Court for the Northern
District of Alabama stated:
"Mr. Windwalker's efforts to challenge the
ASORCNA on an ex post facto basis are similarly
unavailing in light of the Supreme Court's guidance
in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155
9
1131496, 1140603
L.Ed.2d 164 (2003). As a general rule, a law may
constitute an ex post facto violation if it is
intended to impose a retroactive punishment or if it
has the effect of transforming 'a[n] otherwise civil
remedy' into 'a criminal penalty.' Id. at 92, 123
S.Ct. at 1146–47 (quoting Hudson v. United States,
522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450
(1997)).
"....
"Here, the stated purpose of the ASORCNA is
undoubtedly civil in nature and Mr. Windwalker has
not alleged any facts that would support an ex post
facto effects claim consistent with Smith. See id.
at 97, 123 S.Ct. at 1149 ('The factors most relevant
to our analysis are whether, in its necessary
operation, the regulatory scheme: has been regarded
in our history and traditions as a punishment;
imposes an affirmative disability or restraint;
promotes the traditional aims of punishment; has a
rational connection to a nonpunitive purpose; or is
excessive with respect to this purpose.'). Thus,
from a pleadings standpoint, Mr. Windwalker's ex
post facto claim fails."
925 F.Supp. 2d at 1269 (emphasis added). See also Spencer v.
Bentley (No. 7:12-CV-01832-AKK-SGC, February 24, 2015) (N.D.
Ala. 2015) (not published in F. Supp. 3d) ("First, a review of
ASORCNA shows no provision for a traditional form of
punishment. Second, ASORCNA does not subject sex offenders to
an affirmative disability or restraint. Any disability
suffered by a sex offender is the result of the initial crime,
not the registration requirement. By its terms, the law does
10
1131496, 1140603
not prohibit a sex offender from changing his residence; it
requires a sex offender only to notify law enforcement of a
change of residence, which new residence must comply with the
requirements of ASORCNA. Third, ASORCNA does not impose any
additional punishment on a sex offender. While failure to
comply with the
reporting requirements could result in another
arrest and criminal prosecution –- as in Plaintiff's case -–
that prosecution would be for a new offense, not the original
one. Fourth, ASORCNA has a rational connection to the
legitimate, non-punitive purpose of public safety, which is
advanced by enabling law enforcement officials to maintain
closer contact with sex offenders and alerting the public to
the risk posed by a sex offender in their community. Fifth,
the regulatory scheme is not excessive with respect to the
purpose of ASORCNA. In Smith v. Doe[, 538 U.S. 84 (2003),] the
Supreme Court noted the question is not whether the
legislature made the best choice possible to address the
problem it seeks to remedy but whether the regulatory means
chosen are reasonable in light of the non-punitive objective.
Smith v. Doe, 538 U.S. at 105 (emphasis added)."); and McGuire
v. Strange, [Ms. 2:11-CV-1027-WKM, February 5, 2015] F.
11
1131496, 1140603
Supp. 3d (M.D. Ala. 2015)(holding that the ASORCNA, as a
whole, was not so punitive in purpose or effect as to negate
the Alabama Legislature's stated nonpunitive intent but that
two provisions regarding homeless sexual offenders and sexual
offenders seeking travel permits, provisions not at issue
here, should be severed from the ASORCNA).
In United States v. W.B.H., 664 F.3d 848 (11th Cir.
2011), the United States Court of Appeals for the Eleventh
Circuit, relying upon Smith, upheld the federal Sex Offender
Registration and Notification Act, 42 U.S.C. § 16901 et seq.
("SORNA"), over an Ex Post Facto Clause challenge:
"The fit between SORNA's regulatory purpose and
the means used to achieve it is not materially
different from that of the Alaska statute in [Smith
v. ]Doe[, 538 U.S. 84 (2003)]. Both statutes require
registration and mandate dissemination on the
internet of information regarding the whereabouts of
convicted
sex
offenders,
with
the
reporting
requirements
dependent
on
the
category
of
dangerousness. Both statutory regimes group the
offenders in categories instead of making individual
determinations of dangerousness. Because Doe held
that the regulatory scheme of the Alaska statute is
not excessive in relation to its non-punitive
purpose, it necessarily follows that SORNA's is not
either.
"....
"For the reasons we have discussed, when it
enacted SORNA Congress did not intend to impose
12
1131496, 1140603
additional punishment for past sex offenses but
instead wanted to put into place a civil and non-
punitive regulatory scheme. Given that intent, the
question under the Doe decision is whether there is
'the clearest proof' that SORNA is so punitive in
effect, as applied to those convicted of sex
offenses under the Alabama Youthful Offender Act, as
to negate the intention that it be a civil
regulatory statute. See id. at 92, 123 S.Ct. at
1147; [United States v.] Ward, 448 U.S. [242] at
249, 100 S.Ct. [2636] at 2641 [65 L.Ed.2d 742
(1980)]. That 'clearest proof' is lacking, as our
application of the Doe guideposts, see Doe, 538 U.S.
at 97–106, 123 S.Ct. at 1149–54, makes clear."
664 F.3d at 859-60 (emphasis added).
The legislature set out its findings and the purpose of
the ASORCNA in § 15-20A-2:
"(1) Registration and notification laws are a
vital concern as the number of sex offenders
continues to rise. The increasing numbers coupled
with the danger of recidivism place society at risk.
Registration and notification laws strive to reduce
these dangers by increasing public safety and
mandating the release of certain information to the
public. This release of information creates better
awareness and informs the public of the presence of
sex offenders in the community, thereby enabling the
public to take action to protect themselves.
Registration and notification laws aid in public
awareness and not only protect the community but
serve to deter sex offenders from future crimes
through frequent in-person registration. Frequent
in-person registration maintains constant contact
between sex offenders and law enforcement, providing
law enforcement with priceless tools to aid them in
their
investigations
including
obtaining
information
for identifying, monitoring, and tracking sex
offenders.
13
1131496, 1140603
"....
"(5) Sex offenders, due to the nature of their
offenses, have a reduced expectation of privacy. In
balancing the sex offender's rights, and the
interest of public safety, the Legislature finds
that releasing certain information to the public
furthers the primary governmental interest of
protecting vulnerable populations, particularly
children. Employment and residence restrictions,
together with monitoring and tracking, also further
that interest. The Legislature declares that its
intent
in
imposing
certain
registration,
notification, monitoring, and tracking requirements
on sex offenders is not to punish sex offenders but
to protect the public and, most importantly, promote
child safety."
We note too that the legislature has amended the ASORCNA
effective September 2015 to
expressly state that petitions for
relief from residency restrictions are civil in nature.
"'When statutes are amended or replaced by succeeding
legislation,
the
Legislature
often
seeks
to
clarify
previously
ambiguous
provisions.
These
subsequent
acts
by
the
Legislature
must be considered in trying to determine the intent of the
legislation. 73 Am.Jur.2d, Statutes, § 178.' McWhorter v.
State Bd. of Registration for Prof'l Eng'rs & Land Surveyors,
359 So. 2d 769, 773 (Ala. 1978)." T–Mobile South, LLC v.
Bonet, 85 So. 3d 963, 979 (Ala. 2011).
14
1131496, 1140603
Here, Biddle had nothing pending in the criminal division
of the circuit court when he filed his petition seeking relief
from the residency requirements of the ASORCNA. The ASORCNA
is a civil regulatory act that requires sex offenders to
register with local law enforcement in order to make local law
enforcement aware that a convicted sex offender is residing in
the area. The notification portion of the ASORCNA provides for
dissemination of that information to the public to make the
community aware of the presence of a potential danger, and the
residency
restrictions
protect
our
most
vulnerable
citizens
-–
children –- from predators residing in the area.
Section 12-19-70, Ala. Code 1975, provides:
"(a) There shall be a consolidated civil filing
fee, known as a docket fee, collected from a
plaintiff at the time a complaint is filed in
circuit court or in district court.
"(b) The docket fee may be waived initially and
taxed as costs at the conclusion of the case if the
court finds that payment of the fee will constitute
a substantial hardship. A verified statement of
substantial hardship, signed by the plaintiff and
approved by the court, shall be filed with the clerk
of court."
In Ex parte Courtyard CitiFlats, LLC, [Ms. 1140264, June
12, 2015] So. 3d , (Ala. 2015), this Court
reaffirmed the following principle:
15
1131496, 1140603
"'The use of the term "shall" in [§
12–19–70] makes the payment of the filing
fee mandatory. See Prince v. Hunter, 388
So. 2d 546, 547 (Ala. 1980). It was the
obvious intent of the legislature to
require that either the payment of this fee
or a court-approved verified statement of
substantial
hardship
accompany
the
complaint at the time of filing.'
"[De-Gas, Inc. v. Midland Resources,] 470 So. 2d
[1218] at 1220 [Ala. 1985)] ...."
(Emphasis omitted.)
In conclusion, the State has a clear legal right to the
relief sought because the circuit court, sitting in a
completed
criminal
case,
lacked
jurisdiction
to
relieve
Biddle
from the residency requirements of the ASORCNA in what should
have been a civil proceeding. Biddle should have filed a
"new" civil action in order to seek relief from the residency
requirements of the ASORCNA.
1131496 –- PETITION GRANTED; WRIT ISSUED.
1140603 –- APPEAL DISMISSED.
Moore, C.J., and Stuart, Parker, Shaw, Main, Wise, and
Bryan, JJ., concur.
16 | August 28, 2015 |
d2f3baf4-0122-4c99-b7d6-b457a8514e4c | Bonnie Wehle et al. v. Thomas H. Bradley III, as Co-personal Representative of the Estate of Robert G. Wehle, deceased, et al. | N/A | 1101290 | Alabama | Alabama Supreme Court | REL: 10/30/2015
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, 2015-2016
____________________
1101290
____________________
Bonnie Wehle et al.
v.
Thomas H. Bradley III, as co-personal representative
of the estate of Robert G. Wehle, deceased, et al.
Appeal from Bullock Circuit Court
(CV-2007-000022)
On Application for Rehearing
MURDOCK, Justice.
This Court's opinion of March 14, 2014, is withdrawn, and
the following is substituted therefor.
1101290
Bonnie Wehle, Penny Martin, and Sharon Ann Wehle ("the
daughters") appeal from the Bullock Circuit Court's order on
final settlement of the estate of their deceased father,
Robert G. Wehle ("the estate"). In this "final order," the
circuit court denied the daughters' claims against Thomas H.
Bradley III, James H. McGowan, and Grady Hartzog, as the co-
personal representatives of the estate ("the personal
representatives"); the order also denied the daughters'
request that McGowan be removed as a cotrustee of the family
trust created under Robert G. Wehle's will and awarded
attorney fees to the personal representatives. We affirm in
part, reverse in part, and remand.
I. Facts and Procedural History
This is the second time this case has come before us. In
the previous appeal, Wehle v. Bradley, 49 So. 3d 1203 (Ala.
2010) ("Wehle I"), this Court summarized the facts as follows:
"Robert G. Wehle died on July 12, 2002. His
will was admitted to probate, and [in August 2002]
letters
testamentary
were
issued
to
Bradley,
McGowan, and Hartzog as co-personal representatives
of Wehle's estate. The will created a marital trust
for Wehle's wife, Gatra Wehle, and a family trust
for the daughters and Wehle's granddaughter, Debbie
Kloppenberg. The personal representatives were
named as cotrustees of both the marital trust and
the family trust.
2
1101290
"In October 2005, the personal representatives
petitioned the probate court for final settlement of
the estate. They also filed an accounting of their
administration of the estate. The accounting
indicated that the personal representatives had paid
themselves total compensation of $1,964,367.82,
which, they allege, amounts to 5% of the value of
Wehle's estate at the time the petition for final
settlement was filed. The personal representatives
argue that the amount of their fees is consistent
with the statutory allowance for such fees. They
also argue that Wehle told his attorney that he
intended for the personal representatives' fees to
be approximately 5% of the value of his estate.
"The daughters filed an objection to the
accounting, arguing, among other things, that,
pursuant to § 43-2-844(7), Ala. Code 1975, the
personal representatives were required to obtain
prior court approval before compensating themselves
out of the assets of the estate. The daughters also
argued that the amount of the compensation exceeded
the
'reasonable
compensation'
allowed
by
§ 43-2-848(a), Ala. Code 1975.
"In March 2007, Gatra Wehle petitioned to have
the administration of the estate removed to the
circuit court. The petition was granted.
"The personal representatives moved the circuit
court for a partial summary judgment on the
daughters' objections, arguing (1) that the will
authorized the payment of the compensation to the
personal
representatives
without
prior
court
approval, and (2) that the statute of limitations
barred the daughters' claim that the fees of the
personal
representatives
were
excessive.
On
July 17, 2009, the circuit court granted the
personal representatives' motion for a partial
summary judgment, stating:
3
1101290
"'As to the claim that the Personal
Representatives paid fees to themselves
without
obtaining
Court
approval,
the
Court
finds that the terms of the Will expressly
exempt the Personal Representatives from
obtaining Court approval before payment of
their fees. As to the claim that the fees
paid were excessive, it is without factual
dispute that [the daughters] had knowledge
of the amount of these fees more than two
years before they filed their contest of
the fees and thus this claim is time
barred.'
"On July 24, 2009, the daughters appealed to
this Court from the circuit court's judgment
pursuant to § 12-22-4, Ala. Code 1975."
49 So. 3d at 1205-07.
In Wehle I, this Court concluded that "[b]ecause the
payment of compensation to the personal representatives
without prior court approval was not expressly authorized by
Robert G. Wehle's will, the circuit court erred in entering
its partial summary judgment in favor of the personal
representatives." 49 So. 3d at 1209; see also Ala. Code 1975,
§ 43-2-844(7). This Court reversed the circuit court's
judgment and remanded the case on that basis; it did not
decide the issue whether the daughters' "claim as to the
excessiveness of the compensation is barred by the statute of
limitations." Id.
4
1101290
On remand, the circuit court held a hearing at which
evidence was presented ore tenus as to the petition for final
settlement of the estate. Thereafter, the circuit court
entered its final order approving the compensation the
personal
representatives
had
paid
themselves,
i.e.,
$1,964,367.82, as "reasonable compensation" under § 43-2-
848(a), Ala. Code 1975. The order denied the daughters' claim
seeking to have the personal representatives pay interest on
the compensation because they had paid it without prior court
approval. Also, in regard to other issues raised by the
daughters, the order denied the daughters' petition to remove
McGowan as a cotrustee of the family trust, denied the
daughters' request to tax costs relating to Wehle I against
the personal representatives, and awarded attorney fees and
costs to the personal representatives in the amount of
$383,437.31 as to their defense against the daughters' claims
on final settlement. The daughters appeal.
1
The circuit court also approved a payment of $20,000 to
1
Hartzog & Company, P.C., for work the daughters alleged Grady
Hartzog also was compensated for as a
personal
representative.
The daughters have not challenged on appeal the payment to
Hartzog & Company, P.C.; however, they do include this payment
in connection with their argument that the compensation
awarded Hartzog for his services as a personal representative
was unreasonable.
5
1101290
II. Standard of Review
To the extent the circuit court made factual findings
based on oral testimony, those factual findings are entitled
to deference by this Court under the ore tenus standard of
review. Under that standard, "'we must accept as true the
facts found by the trial court if there is substantial
evidence to support the trial court's findings.'" Allsopp v.
Bolding, 86 So. 3d 952, 959 (Ala. 2011) (quoting Beasley v.
Mellon Fin. Servs. Corp., 569 So. 2d 389, 393 (Ala. 1990)).
This standard is based on a recognition of the trial court's
unique position of being able to evaluate the credibility of
witnesses and to assign weight to their testimony. See, e.g.,
Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 543
(Ala. 1988). The deference owed a trial court under the
ore tenus standard of review, however, does not extend to the
trial court's decisions on questions of law. Appellate review
of questions of law, as well as whether the trial court has
properly applied that law to a given set of facts, is de novo.
See, e.g., Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997).
III. Analysis
A. Reasonableness of the Personal Representatives' Fees
6
1101290
Under Alabama law,
"[a]
personal
representative
is
entitled
to
reasonable compensation for services as may appear
to the court to be fair considering such factors
that may include, but are not limited to, the
novelty
and
difficulty
of
the
administrative
process, the skill requisite to perform the service,
the likelihood that the acceptance of the particular
employment will preclude other employment, the fee
customarily charged in the locality for similar
services, the amount involved and the results
obtained,
the
requirements
imposed
by
the
circumstances and condition of the estate, the
nature and length of the professional relationship
with the decedent, the experience, reputation,
diligence, and ability of the person performing the
services, the liability, financial or otherwise, of
the personal representative, or the risk and
responsibility involved, which shall not exceed two
and one-half percent of the value of all property
received and under the possession and control of the
personal representative and two and one-half percent
of all disbursements."
Ala. Code 1975, § 43-2-848(a). Although the allowance of
compensation for the
personal
representative and the amount of
that compensation are mixed questions of law and fact, our
cases state that decisions as to these issues are largely
within the discretion of the trial judge. See Armstrong v.
Alabama Nat'l Bank of Montgomery, 404 So. 2d 675, 676 (Ala.
1981). The amount of compensation to be allowed under § 43-2-
848(a) "'below or up to the maximum limit prescribed [thereby]
is to be determined according to the circumstances of each
7
1101290
particular case.'" Armstrong, 404 So. 2d at 676 (quoting
Smith v. McNaughton, 378 So. 2d 703, 704-05 (Ala. 1979)). In
determining whether the trial court exceeded its
discretion
as
to a compensation award under § 43-2-848(a), we must consider
the amount of the award "in view of all the circumstances" of
the administration of the estate. Ruttenberg v. Friedman, 97
So. 3d 114, 122 (Ala. 2012); see also, e.g., Armstrong, 404
So. 2d at 676 (discussing the deference owed a determination
of a personal representative's fee made after the trial court
heard ore tenus evidence).
Discussing the predecessor statute to § 43-2-848(a), this
Court in Armstrong explained that the statute creates
"'a maximum limit to compensation to be
allowed
[personal
representatives],
for
the
ordinary services performed by them, and
what shall be allowed, below or up to this
limit, is to be determined according to the
circumstances
of
each
particular
case.
"The
court in making the allowance is to look to
the loss of time, risk and responsibility,
which are demanded .... and which is
actually incurred, and to allow ... such a
reasonable remuneration as a prudent and
just
man
would,
in
view
of
the
circumstances,
consider
a
fair
compensation,
without,
however,
being
governed by business charges usually made
for like services." When thus allowed, the
compensation is not, and should not be, but
8
1101290
little, if anything, more than liberal
indemnity.'"
404 So. 2d at 676 (quoting Kenan v. Graham, 135 Ala. 585,
595, 33 So. 699, 701 (1902)).
The estate was "very large and complex." The estate was
valued at more than $35,000,000 at the time of Robert G.
Wehle's death, and the estate contained some unusual assets,
including competition-trained hunting dogs, partial ownership
interests in thoroughbred horses, and artwork. The estate
also included other business entities owned by Robert G.
Wehle, and his estate plan included multiple trusts. It is
undisputed
that
Robert
G.
Wehle
chose
the
personal
representatives because of his longstanding business and
personal relationships with each of them and because of each
personal representative's expertise: McGowan is a lawyer who
practices law in New York; Hartzog is a certified public
accountant who practices accounting
in Alabama; and Bradley is
an expert in dealings with thoroughbred horses and hunting
dogs. Also, there was evidence indicating that Robert G.
Wehle desired that the personal representatives receive "the
5% maximum" for their services.
9
1101290
As
noted
above,
the
circuit
court
approved
the
compensation
of
$1,964,367.82
the
personal
representatives
had
paid themselves. The total receipts of the estate (assets and
income during administration) through the time of final
settlement were $40,477,724.08; the total disbursements were
$40,452,262.23. Based on the receipts and disbursements, the
maximum fee the circuit court could have awarded the personal
representatives under § 43-2-848(a) was $2,023,249.66. Thus,
2
the compensation award does not exceed the statutory maximum
prescribed in § 43-2-848(a).
The daughters argue that the circuit court exceeded its
discretion in awarding the compensation to the personal
representatives, raising issues as to each of the factors in
§ 43-2-848(a). We note that the final order includes a review
of each of the § 43-2-848(a) factors, the daughters arguments
as to each of those factors, and a summary as to some of the
evidence the circuit court accepted or rejected as to each
factor. Further, the circuit court noted in the order:
We note that the circuit court opined that the personal
2
representatives
were entitled to the statutory maximum, but it
awarded them only what they had paid themselves. Had the
circuit court awarded the personal representatives the
statutory maximum award, they would have received an
additional $58,881.84.
10
1101290
"In
analyzing these
factors,
the
court
took
into
consideration the exhibits provided and agreed upon
by the parties, as well as the testimony of each of
the
Personal
Representatives,
and
the
expert
witnesses who testified for both sides. The court
considered the credibility of the expert witness
testimony, as well as the weight to be afforded to
that testimony, particularly in light of apparent
limitations in the knowledge of the [daughters']
expert, Daniel Markstein, who admitted to having
reviewed
only
a
fraction
of
the
available
documentation describing the services performed by
the Personal Representatives."
As to the circuit court's consideration of the § 43-2-
848(a) factors, the daughters make the same arguments on
appeal that the circuit court rejected or discounted in light
of its consideration of the totality of the evidence and its
credibility determinations. We see no need to discuss the
daughters' arguments in detail because they would be of no
benefit to the bench and bar. The daughters essentially urge
this Court to reweigh the evidence and the circuit court's
balancing of the § 43-2-848(a) factors in a manner that favors
the daughters and that would mandate a lower compensation
award. It is not the role of an appellate court, however, to
reweigh testimony and other evidence or to substitute its
judgment for that of the trial court as to such matters. See,
e.g., Ex parte Blackstock, 47 So. 3d 801, 805 (Ala. 2009).
Based on our review of the evidence presented to the circuit
11
1101290
court, we cannot conclude that the compensation awarded by the
court was without sufficient supporting evidence or that the
circuit court exceeded its discretion in making the award.
See Ruttenberg, supra.
In addition to discussing the § 43-2-848(a) factors, the
daughters
also
argue
that
a
comparison
between
the
compensation awarded in the present case and the compensation
approved for the personal representative in Armstrong v.
Alabama National Bank, supra, demonstrates that the personal
representatives' compensation in the present case was
excessive. The Armstrong Court affirmed a compensation award
of
$304,000
for
a
large,
complex
estate
valued
at
$7,469,273.92. The award in Armstrong was below the statutory
maximum, but the daughters note that the award was equal to
approximately 4.08% percent of the value of the estate. 404
So. 2d at 676. According to the daughters, a similar award in
the present case would have yielded a compensation award of
$1,645,273.22, rather than the $1,964,367.82 awarded by the
circuit court.
We are not persuaded by the daughters' comparison
argument. First, we note that the formula for the maximum fee
award under § 43-2-848(a) is not five percent of the value of
12
1101290
the estate (though it is sometimes referred to in that
manner); rather, it is "two and one-half percent of the value
of all property received and under the possession and control
of the personal representative and two and one-half percent of
all disbursements." As noted above, the award in the present
case is less than the maximum permissible award under § 43-2-
848(a). More importantly, however, as the Armstrong Court
acknowledged, "[t]he award of [personal-representative] fees
is largely within the discretion of the trial judge," and
"'what shall be allowed, below or up to [the maximum] limit,
is to be determined according to the circumstances of each
particular case.'" 404 So. 2d at 676 (quoting Kenan, 135 Ala.
at 595, 30 So. at 701 (emphasis added)). All large, complex
estates are not equal, and this Court did not intend for its
holding in Armstrong to establish a benchmark as to what
constitutes a reasonable compensation award for a personal
representative of a large, complex estate.
3
Indeed, the Armstrong Court stated that, "though we
3
consider the fees awarded to be somewhat high, nevertheless,
under the applicable standard of review, we cannot conclude
that the trial court abused its discretion." 404 So. 2d at
677.
13
1101290
Based on the evidence presented to the circuit court and
the arguments made by the daughters, we cannot conclude that
the circuit court exceeded its discretion in awarding the
amount
of
compensation
it
awarded
the
personal
representatives
in the present case.
B. Interest on Payments Made Without Prior Court Approval
Section § 43-2-844(7), Ala. Code 1975, provides that
"[u]nless expressly authorized by the will, a personal
representative, only after prior approval of court, may ...
[p]ay compensation of the personal representative." It is
undisputed that the personal representatives paid themselves
compensation before obtaining court approval for that
compensation. The daughters contend that the circuit court
erred by denying their claim seeking interest from the
personal representatives from the date of the compensation
payments through the date those payments were approved by the
circuit court.
The daughters first note that, in contradiction of the
decision in Wehle I, the circuit court concluded in its final
order that Robert G. Wehle's will "expressly allowed advanced
payments to be made to the Personal Representatives."
According to the circuit court, because the will authorized
14
1101290
the payments and because the payments were made in good faith
and upon the advice of counsel, there was no basis for
imposing
an
interest
charge
against
the
personal
representatives. The circuit court quoted several provisions
of the will that it concluded "expressly give[] the Personal
Representatives the right to advance themselves money."
In Wehle I, this Court noted several provisions of Robert
G.
Wehle's will upon which the personal representatives
sought
to rely as justification for making compensation payments to
themselves without first obtaining court approval. We
concluded that those provisions did "'not satisfy the
requirement in [§ 43-2-844] that there be an "express
provision"'
authorizing the payment of such fees without
court
approval." 49 So. 3d at 1209 (quoting Green v. Estate of
Nance, 971 So. 2d 38, 42 (Ala. Civ. App. 2007)).
As the daughters correctly observe, the circuit court's
conclusion on remand that no prior court approval was
necessary violates the doctrine of the law of the case.
"'Under the doctrine of the "law of the case,"
whatever is once established between the same
parties in the same case continues to be the law of
that case, whether or not correct on general
principles, so long as the facts on which the
decision was predicated continue to be the facts of
the case.' Blumberg v. Touche Ross & Co., 514 So.
15
1101290
2d 922, 924 (Ala. 1987). See also Titan Indem. Co.
v. Riley, 679 So. 2d 701 (Ala. 1996). 'It is well
established that on remand the issues decided by an
appellate court become the 'law of the case,' and
that the trial court must comply with the appellate
court's mandate.' Gray v. Reynolds, 553 So. 2d 79,
81 (Ala. 1989)."
Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094
(Ala. 2001). It does not matter that the circuit court in
some instances in its order quoted provisions of the will this
Court did not quote in Wehle I. The personal representatives
could have cited those provisions as authority for the
premature payments in their appeal in Wehle I; they did not do
so. Moreover, whether they did so or not, the issue at hand
-–
whether
the
will
contained
"express
provisions"
authorizing
the payment of fees to personal representatives without prior
court approval -– was before this Court and was decided by
this Court in Wehle I.
"'Under the law of the case doctrine, "[a] party
cannot on a second appeal relitigate issues which
were resolved by the Court in the first appeal or
which would have been resolved had they been
properly presented in the first appeal."' Kortum v.
Johnson, 786 N.W.2d 702, 705 (N.D. 2010) (quoting
State ex rel. North Dakota Dep't of Labor v.
Riemers, 779 N.W.2d 649 (N.D. 2010) ...); see also
Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151,
153 (2009) ('Under the law-of-the-case doctrine, a
party is precluded from relitigating, after an
appeal, matters that were either not raised on
appeal, but should have been, or raised on appeal,
16
1101290
but expressly rejected by the appellate court.
C.J.S. Appeal & Error § 991 (2008)....')."
Scrushy v. Tucker, 70 So. 3d 289, 303-04 (Ala. 2011)(emphasis
omitted); see also Schramm v. Spottswood, 109 So. 3d 154, 162
(Ala. 2012) (applying the law-of-the-case doctrine where a
party attempted to "advance a new argument in order to revisit
an issue already decided by the trial court" and affirmed in
a previous appeal).
Notwithstanding the foregoing, this Court did not
expressly determine in Wehle I whether the personal
representatives owed the estate interest for making the
compensation payments to themselves without prior court
approval. As to that issue, the circuit court listed several
other reasons for rejecting the daughters' interest claim.
Among those reasons was the threshold determination that the
daughters' interest claim was barred by the statute of
limitations. The circuit court noted that it is undisputed
that in 2003 the daughters received a copy of the estate-tax
return filed by the personal representatives. That tax return
reflected
compensation
for
the
personal
representatives
in
the
amount of $1,763,459. The daughters did not file any
objection to the payment of compensation until February 20,
17
1101290
2007, when, in response to the personal representatives'
petition for final settlement of the estate, the daughters
filed
their "Objection to Accounting and Application to
Remove
Personal Representatives." As the circuit court noted, the
daughters' objection to the payments was filed over three
years after they allegedly became aware that payments had been
made to the personal representatives. The circuit court found
that the daughters' claim for interest therefore ran afoul of
the two-year limitations period prescribed in § 6-2-38(l),
Ala. Code 1975, which the circuit court found to be applicable
in this case.
4
We reject the circuit court's conclusion that the
daughters' claim for interest was barred by the statute of
limitations prescribed by § 6-2-38(l). The daughters' claim
is based on § 43-2-509, Ala. Code 1975, which states that,
"[i]f any executor or administrator uses any of the funds of
the estate for his own benefit, he is accountable for any
profit made thereon or legal interest." This statute does not
state when the interest must be paid, only that the personal
In light of our disposition of this issue and the
4
discussion that follows, we do not address the issue whether
the circuit court was correct as to the applicability of the
two-year statute of limitations found in § 6-2-38(l).
18
1101290
representative eventually is to be held "accountable" for
such
interest. That is, there is no requirement that the personal
representative must begin paying the prescribed interest
immediately after advancing to himself or herself the fees in
question. Instead, in cases where it is determined that the
statute requires the payment of interest by the personal
representative, that obligation, like any other obligation of
the personal representative, must be ordered by the trial
court as part of the accounting on final settlement of the
estate. See Ala. Code 1975, § 43-2-500 et seq. We therefore
reject the notion that the daughters somehow ran afoul of a
statute
of limitations when, in connection with the
settlement
of the estate, they made a claim for an appropriate
"account[ing] for ... legal interest" alleged by them to be
owed by the personal representatives for the misuse of funds
of the estate during its administration.
The circuit court also concluded that the daughters
"should be equitably estopped from asserting a claim for
interest against the Personal Representatives in this case."
The circuit court erred as to its ruling on equitable estoppel
in at least two respects.
19
1101290
First, in making payments to themselves without obtaining
prior court approval, the personal representatives violated
their statutory duty under § 43-2-844(7). Their "dereliction
in duty" precluded them from using equitable estoppel as a
defense to the daughters' interest claim. As this Court has
explained:
"'The purpose of the doctrine of equitable
estoppel is to promote equity and justice
in an individual case by preventing a party
from asserting rights under a general rule
of law when his own conduct renders the
assertion of such rights contrary to equity
and good conscience. Mazer v. Jackson Ins.
Agency, 340 So. 2d 770 (Ala. 1976). The
party asserting the doctrine of equitable
estoppel may not predicate his claim on his
own dereliction of duty or wrongful
conduct. Draughon v. General Finance
Credit Corp., 362 So. 2d 880, 884 (Ala.
1978).'
"Pierce v. Hand, Arendall, Bedsole, Greaves &
Johnston, 678 So. 2d 765, 768 (Ala. 1996).
"In
order
for
the
doctrine
of
equitable estoppel
to apply, a party must demonstrate:
"'"(1) That '[t]he person against
whom estoppel is asserted, who
usually must have knowledge of
the facts, communicates something
in a misleading way, either by
words, conduct, or silence, with
the
intention
that
the
communication will be acted on';
20
1101290
"'"(2) That 'the person seeking
to assert estoppel, who lacks
knowledge of the facts, relies
upon [the] communication'; and
"'"(3) That 'the person relying
would be harmed materially if the
actor is
later
permitted
to
assert a claim inconsistent with
his earlier conduct.'"
"'Lambert v. Mail Handlers Benefit Plan,
682 So. 2d 61, 64 (Ala. 1996), quoting
General
Electric
Credit
Corp.
v.
Strickland
Div. of Rebel Lumber Co., 437 So. 2d 1240,
1243 (Ala. 1983).'
"Allen v. Bennett, 823 So. 2d 679, 685 (Ala. 2001)."
BSI Rentals, Inc. v. Wendt, 893 So. 2d 1184, 1187-88 (Ala.
Civ. App. 2004)(emphasis added).
Second, the circuit court based its conclusion on the
daughters' having received a copy of the estate-tax return.
The estate-tax return, however, described the amount the
personal
representatives
intended
to
claim
as
compensation
for
their services as of the date of the filing of the return.
The estate-tax return did not indicate whether the personal
representatives had actually paid themselves at the time the
return was filed. Accordingly, the doctrine of equitable
estoppel provides no basis for the circuit court's decision.
21
1101290
Although none of the above-discussed grounds supports the
circuit court's decision to deny the daughters an award of
interest in connection with the premature payment by the
personal
representatives
of fees to themselves in violation of
§ 43-2-844(7), the personal representatives have submitted to
this Court a supplemental filing in which they invoke this
Court's recent decision in Ruttenberg v. Friedman, 97 So. 3d
114, 122 (Ala. 2012), a case decided after briefing was
completed in the present case. The personal representatives
argue
that Ruttenberg
supports the circuit court's decision to
deny the daughters' interest claim.
In Ruttenberg, the widow and two of the three children of
the decedent, Harold Ruttenberg, argued that the personal
representatives in that case had "breached their fiduciary
duty by violating § 43-2-844(7)," specifically by paying
themselves $800,000 in compensation without obtaining prior
court approval. 97 So. 3d at 134. When addressing whether
the personal representatives in Ruttenberg had breached their
fiduciary duty by not obtaining court approval before making
compensation payments to themselves, this Court reasoned:
"Section
43-2-844(7),
Ala.
Code
1975,
states,
in
part: 'Unless expressly authorized by the will, a
personal representative, only after prior approval
22
1101290
of court, may ... [p]ay compensation to the personal
representative.' However, in this case, any error
in the prior payment of coexecutors' fees for
ordinary services without prior court approval is
moot. Here, the probate court took evidence and
heard argument about the reasonableness of the
requested fees, considered the statutory factors
applicable to determining a reasonable fee, and
credited the total fee awarded by the amount the
coexecutors
had
previously
paid
themselves.
Specifically,
the
probate
court
awarded
the
coexecutors $1,165,937 in fees for ordinary services
and said: '$800,000 has been properly paid. ...
The remaining $365,937 is due to be paid in equal
shares of $182,968.50.' Therefore, any error was
remedied when the probate court issued its final
award, after taking into consideration the statutory
factors set out in §§ 43-2-848 and -682, Ala. Code
1975, and then crediting the amount the coexecutors
had paid themselves against the total fee awarded to
the coexecutors for ordinary services."
97 So. 3d at 134-35 (emphasis added).
This Court in Ruttenberg did not specifically discuss the
issue whether personal representatives who pay themselves
compensation
without prior court
approval must pay interest to
the estate on such payments. As noted above, § 43-2-844(7)
states that, "[u]nless expressly authorized by the will, a
personal representative, only after prior approval of court,
may ... pay compensation of the personal representative."
(Emphasis added.) Thus, where the will does not authorize the
personal representative to make compensation payments to
himself or herself without prior court approval and the
23
1101290
personal representative makes such payments, he or she
violates § 43-2-844(7) and deprives the estate of funds before
being legally authorized to do so.
Section 43-2-509 provides that a personal representative
who "uses any of the funds of the estate for his own benefit
... is accountable for any profit made thereon or legal
interest." Our courts have long held that, pursuant to § 43-
2-509 or its precursor, a personal representative must pay
interest from the date he or she pays himself or herself
compensation without court approval to the date he or she
obtains court approval for the compensation amount at issue.
See, e.g., McCraw v. Cooper, 218 Ala. 186, 190, 118 So. 333,
337 (1928) (affirming an award of interest against a personal
representative
who
had
paid
himself
compensation
without
prior
approval by the trial court, where the trial court eventually
allowed the compensation, "as to the reasonableness of which
in amount there [was no dispute]"); see also, e.g., Walsh v.
Walsh, 231 Ala. 305, 307-08, 164 So. 822, 824-25 (1935) ("[I]n
the case of Kenan v. Graham, 135 Ala. 585, 33 So. 699
[(1903)], the court held that an executor is not entitled to
anticipate his fees and use the money. If he does so, he is
chargeable with interest for the time the money was thus
24
1101290
appropriated to the date of settlement."). The same legal
principle has been applied to other fiduciaries who were
required to obtain court approval before paying themselves
compensation. See Gordon v. Brunson, 287 Ala. 535, 542-43,
253 So.2d 183, 189 (1971) ("[T]rial court erred in charging
only 4% simple interest on the wards' money wrongfully
advanced by the guardian to himself [for his compensation],
and should have calculated such interest at the rate of 6% per
annum, compounded annually from date of the advance to the
date of the decree ....").
Also, we note that in enacting the Probate Procedure Act,
§ 43-2-830 et seq., Ala. Code 1975, of which § 43-2-844 is a
part,
the
legislature
made
numerous
changes
and
clarifications
regarding probate procedure in Alabama. See Act No. 93-722,
Ala. Acts 1993. The legislature made no change, however, that
would call into question this Court's precedents holding that
a personal representative must pay interest on compensation
payments made by the personal representative to himself or
herself without prior court approval. Indeed, the enactment
of the Probate Procedure Act supports the conclusion that the
legislature did not approve of personal representatives'
paying
themselves
compensation
without
prior
court
approval
in
25
1101290
that the legislature chose to reaffirm the statutory language
at issue in this appeal: "Unless expressly authorized by the
will, a personal representative, only after prior approval of
court,
may
...
[p]ay
compensation
of
the
personal
representative." § 43-2-844(7).
Furthermore, in regard to the history behind § 43-2-844,
that section references seven actions of a personal
representative that require "prior court approval." Section
43-2-844 thereby stands in contrast to § 43-2-843, Ala. Code
1975, which authorizes a personal representative to take
numerous actions without prior court approval. In addition,
§ 43-2-843 is substantially a verbatim adoption of § 3-715 of
the Uniform Probate Code, with one glaring exception: Under
§ 3-715 the seven items enumerated in § 43-2-844 are included
in the list of actions a personal representative may take
without obtaining prior court approval. In other words, the
Alabama Legislature clearly acted purposefully in departing
from § 3-715, a proposed uniform law, when it required "prior
court approval" for the actions listed in § 43-2-844.
Because the legislature has clearly indicated its
disapproval
of
compensation
payments
to
personal
representatives without prior court approval and because the
26
1101290
legislature has indicated no disapproval of this Court's
precedents requiring payment of interest where compensation
payments are made without such prior approval, we reaffirm the
principle recognized in the above-discussed precedents.
5
Based on the foregoing, we conclude that the circuit
court erred by denying the daughters' interest claim.
C. Circuit Court's Failure to Remove McGowan as a Cotrustee
of the Family Trust
The daughters requested that the circuit court remove
McGowan as a cotrustee of the family trust created under
Robert G. Wehle's will. As to that claim, the circuit court's
order states:
"[T]he record is devoid of any reference to such a
claim during the course of the trial. The
[daughters] simply offered no evidence to support a
conclusion that McGowan should not continue to serve
as trustee, as required by the express wishes of the
testator, Robert Wehle. While the [daughters]
question the amount of compensation paid to each of
the Personal Representatives, at no point did the
In Ruttenberg, we discussed whether the court may, in
5
effect,
"ratify"
such
compensation
payments
when
assessing
the
reasonableness of the personal representatives' compensation.
To read Ruttenberg as addressing the issue of interest would
mean, among other things, that this Court sub silentio
overruled the line of precedents discussed in this opinion and
that we have turned § 43-2-844 from a statute disallowing such
payments unless preapproved into a statute allowing such
payments unless subsequently disapproved. We decline to so
read Ruttenberg.
27
1101290
[daughters] offer any evidence of impropriety with
respect to McGowan's presiding over the Family
Trust. Without evidence suggesting some notion of
impropriety, bad faith, breach of fiduciary duty or
self dealing, there is simply no basis upon which
this Court can entertain such a position. Thus, the
Court finds that the [daughters] have simply failed
to present any evidence, much less sufficient
evidence, justifying removal of Mr. McGowan from his
position as Trustee.
"Despite
failing
to
offer
any
evidence
at
trial,
the [daughters] argue in post-trial briefing that
Mr. McGowan should be removed as a trustee simply
because he is no longer needed to serve in that
role. However, this is an insufficient basis upon
which to remove a trustee. The final Will &
Testament of Robert G. Wehle specifically called for
Mr. McGowan to serve in this capacity. The Court
will not disturb the wishes of the testator simply
based upon the argument that a single trustee rather
than multiple trustees is sufficient to manage the
affairs of the Trust.
"The [daughters] also argue that the trustees
participated in a decision that was detrimental to
the taxation of the trust beneficiaries. However,
the Court will not consider these post-trial
arguments that were never raised at trial. The
trustee was not provided with an opportunity to
defend himself from these claims or provide any
explanation. It is fundamental that a litigation
defendant be informed of the allegations against him
before being required to defend himself. Because
Mr. McGowan was not properly informed of these
allegations nor given an opportunity to defend
himself during the course of the trial of this
matter, those allegations are rejected as improperly
and untimely made and will not be considered. Thus,
the Court finds that there is no basis to remove Mr.
McGowan from his position as trustee over the Family
Trust."
28
1101290
"The removal of a trustee has long been established as a
matter which rests in the sound discretion of the trial court.
Our scope of review is therefore limited to determining
whether the court has abused its discretion." In re Estate of
Amason, 369 So. 2d 786, 789 (Ala. 1979).
The daughters refer us to § 19-3B-706(b), Ala. Code 1975,
which provides that a court may remove a trustee where
"(1) the trustee has committed a serious breach
of trust; [or]
"....
"(3) because of unfitness, unwillingness, or
persistent failure of the trustee to administer the
trust effectively, the court determines that removal
of the trustee best serves the interests of the
beneficiaries."6
Section 19-3B-706(b) also provides that a trustee may be
6
removed where
"(4)(A) there has been a substantial change of
circumstances or removal is requested by all of the
qualified beneficiaries;
"(B) the court finds that removal of the trustee
best
serves
the
interests
of
all
of
the
beneficiaries and is not inconsistent with a
material purpose of the trust; and
"(C) a suitable co-trustee or successor trustee
is available."
The daughters make no argument as to whether § 19-3B-706(b)(4)
might apply in the present case, and we therefore express no
29
1101290
The daughters offer two arguments as to why they believe
the circuit court exceeded its discretion in refusing to
remove McGowan as a cotrustee of the family trust. First,
they contend that McGowan's presence as a cotrustee is no
longer desired or needed and adds no value to the management
of the family trust and that he thus should be removed. The
fact that the daughters may no longer consider McGowan's
services as necessary, desired, or valuable to the family
trust,
however, is not sufficient to satisfy §
19-3B-706(b)(1)
or (3). Even if those allegations were true, they do not
establish that McGowan committed a serious breach of trust,
that he was unfit to serve as a cotrustee, that he was
unwilling to serve as a cotrustee, or that he had persistently
failed to administer the trust effectively.
Second, the daughters argue that McGowan committed a
serious breach of trust by participating in a decision to
treat all cash received from shares held by the estate in
thoroughbred race horses as income rather than creating a
depreciating reserve. The circuit court noted that the
daughters did not raise this argument until their posttrial
opinion with respect to that argument.
30
1101290
brief; thus, it considered the argument untimely. The
daughters do not respond to the reason the circuit court gave
for rejecting their argument. Instead, they argue on appeal
the merits of the issue, which the circuit court did not
reach, and they provide no legal authority as to the
timeliness ground on which the circuit court relied. Based on
well settled principles of appellate review, we will not
reverse a judgment of a trial court under such circumstances.
See, e.g., Tucker v. Nichols, 431 So. 2d 1263, 1264 (Ala.
1983)(holding that, in order to secure a reversal, "the
appellant has an affirmative duty of showing error upon the
record").
D. Award of Attorney Fees to the Personal Representatives
The circuit court awarded the personal representatives
$383,437.31 for attorney fees and costs relating to their
defense of the daughters' claims. Section 43–2–849, Ala. Code
1975, states:
"If any personal representative or person nominated
as personal representative defends or prosecutes any
proceeding in good faith, whether successful or not,
the personal representative is entitled to receive
from
the
estate
necessary
expenses
and
disbursements, including, but not limited to,
reasonable attorneys' fees incurred."
31
1101290
"An award of attorney's fees is within the trial court's
discretion, subject to correction [only when the court
exceeds] that discretion." Clement v. Merchants Nat'l Bank of
Mobile, 493 So. 2d 1350, 1355 (Ala. 1986).
The
circuit
court
concluded
that
the
personal
representatives
defended
against
the
daughters'
claims
in
good
faith and that the personal representatives were entitled to
attorney fees and costs "from any available funds of the
Estate." The circuit court explained:
7
"In approving this fee request, the Court considered
the criteria established by the Alabama Supreme
Court used for determining the reasonableness of
requested attorney's fees, including the nature of
the employment, the labor required for the discharge
of the services, the time consumed, the professional
experience and reputation of the attorneys, the
weight of their responsibilities, the success
achieved, the reasonableness of the expenses, the
fact that the charges were reasonable hourly
charges, the nature and length of the professional
relationship, the customary fees charged in the
locality, the preclusion from other employment
required by the time spent on this case, and the
time limitations imposed by the circumstances of the
According to the personal representatives, at the time
7
of the hearing on final settlement, they had disbursed the
estate's assets and had no funds with which to pay their claim
for reimbursement of attorney fees and costs. They
nonetheless sought an award of attorney fees and costs so as
to be in a position to reimburse themselves should additional
assets of the estate become available.
32
1101290
case. See, Van Schaack v. AmSouth Bank, N.A., 530
So. 2d 740 (Ala. 1988). With that criteria in mind,
there is no question that the fees and costs
requested by the Personal Representatives are
reasonable."
The circuit court's order references criteria that have
been identified by this Court as relevant to an award of
attorney fees. As this Court noted in Van Schaack v. AmSouth
Bank, N.A., 530 So. 2d 740 (Ala. 1988):
"[T]he criteria to be considered by the trial court
in determining a reasonable attorney fee in Alabama
are set forth in Peebles v. Miley, 439 So. 2d 137
(Ala. 1983).
In Peebles, this Court added five more criteria
to the seven that had been enumerated in [previous]
cases. The complete list of criteria used in the
estimation of the value of an attorney's services
now includes the following: (1) the nature and
value of the subject matter of the employment; (2)
the learning, skill, and labor requisite to its
proper discharge; (3) the time consumed; (4) the
professional experience and reputation of the
attorney; (5) the weight of his responsibilities;
(6) the measure of success achieved; (7) the
reasonable expenses incurred; (8) whether a fee is
fixed or contingent; (9) the nature and length of a
professional relationship; (10) the fee customarily
charged in the locality for similar legal services;
(11) the likelihood that a particular employment may
preclude other employment; and (12) the time
limitations imposed by the client or by the
circumstances. Of course, not all of the criteria
will be applicable. 'Indeed, there would hardly
ever be a case where the [determination] of
attorney's fees brought into play every criterion.'
33
1101290
Graddick v. First Farmers & Merchants National Bank
of Troy, 453 So. 2d 1305, 1311 (Ala. 1984)."
530 So. 2d at 749.
"The determination of whether an attorney fee is
reasonable is within the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of that
discretion." Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 1992).
The daughters contend that the circuit court exceeded its
discretion in awarding attorney fees and costs to the personal
representatives because the personal representatives did not
submit any evidence to document the attorney fees and costs
for which they were seeking reimbursement. They contend that
the circuit court's award of attorney fees and costs was made
based solely on a simple oral motion from counsel for the
personal representatives and a two-page argument in the
personal representatives' post-hearing brief. The daughters
contend that this was not sufficient to support the award
because "[i]t is well settled that 'the statements of counsel
in a pleading or brief are not evidence.'" Watson v.
Whittington Real Estate, LLC, 16 So. 3d 802, 809 (Ala. Civ.
App. 2009) (quoting State Dep't of Revenue v. Wells Fargo Fin.
34
1101290
Acceptance Alabama, Inc., 19 So. 3d 892, 897 (Ala. Civ. App.
2008)).
Although there is significant merit in the daughters'
argument, it fails to acknowledge certain aspects of the
record that provide support for the circuit court's decision
that an attorney-fee award is appropriate in this case. It is
true that "[a]pplicants for an attorney fee bear the burden of
proving their entitlement to an award and documenting their
appropriately expended hours." City of Birmingham v. Horn,
810 So. 2d 667, 682 (Ala. 2001). As in most cases, however,
the applicants in the present case were not required to meet
this burden unaided by the trial judge's familiarity with the
case and other matters germane to the decision at hand.
First, the circuit court in this case heard and observed
the attorneys "in action" in the courtroom at hearings and at
trial and no doubt in chambers at various conferences. As a
starting point, therefore, the court at least knew the time
spent by the attorneys in those appearances and the quality of
the representation rendered by the attorneys in the same.
Second, the circuit court received and, we must presume, read
the attorneys' motions, briefs, and other written submissions
35
1101290
throughout the course of this very lengthy and involved case.
In addition, at trial the personal representatives introduced
testimony of an expert witness who testified that, in his
opinion, an attorney fee was due to be awarded in this case.
We therefore think it incorrect to posit that the circuit
court was without any "evidence" upon which to consider the
fee request. And, in light of such "evidence" as the circuit
court did have, as well on the circuit court's general
experience and its particular knowledge of this case, we
cannot agree that it was without any basis on which to
conclude that a substantial attorney fee was due. The circuit
court had information from which it could at least partially
assess several of the Peebles v. Miley, 439 So. 2d 137 (Ala.
1983), factors, namely: (1) the nature and value of the
subject matter of the employment, (2) the learning and skill,
and to some extent the labor, requisite to its proper
discharge, (3) to some extent, the time consumed, (5) the
weight of responsibilities undertaken by the attorneys, and
(6) the measure of success achieved. The circuit court may
not have had full knowledge of the "labor requisite to the
proper discharge" of the services needed or the "time
36
1101290
consumed." And the circuit court may or may not have had
adequate knowledge of the professional experience and
reputation of the attorneys involved or the actual amount or
reasonableness of the expenses incurred. There is no basis in
the record, however, from which to conclude that the circuit
court had any knowledge of whether the fee was fixed or
contingent, what fee was customarily charged in the locality
for the type of work performed, whether the employment was
likely to or did preclude other employment, and what time
limitations were imposed by the client. That said, we should
note that it is not necessary in every case for the trial
court to have evidence of every one of the Peebles factors.
See, e.g., Graddick v. First Farmers & Merchants Nat'l Bank of
Troy, 453 So. 2d 1305, 1311 (Ala. 1984).
In this case, however, it does not appear that the
circuit court had an adequate factual record for making the
particular award it made. Without implying any limitation on
the relevance of other Peebles factors, we note the lack of
any evidence of the time consumed outside appearances before
the circuit court, and no evidence of the total amount of time
consumed both in and out of the courtroom. Although such
37
1101290
information is not always of itself determinative of a fee
request, it typically is an important consideration. Indeed,
"it has been generally recognized that the amount of time
consumed should be the first yardstick used by the trial
court." Clement, 493 So. 2d at 1355. And although the
aforesaid expert did testify that, in his opinion, attorney
fees should be awarded in this case, that testimony was
conclusory. There was no testimony as to the total fee that
should be awarded; no proposed amount or other details were
discussed; and the
record
contains no evidence indicating that
the witness was aware of how much time the attorneys had spent
in performing their duties, whether that time was reasonable,
or at what rate to value the time spent by the attorneys in
and out of the courtroom.
Finally, we emphasize that a "trial court's order
regarding an attorney fee must allow for meaningful review by
articulating the decisions made, the reasons supporting those
decisions,
and
the
performance
of
the
attorney-fee
calculation." City of Birmingham, 810 So. 2d at 682. The
circuit court's order in this case, conclusory in nature,
fails to meet this standard.
38
1101290
Considering all the foregoing, we believe the correct
result in this case is to reverse the circuit court's order
insofar as it determined the amount of the attorney fees and
to remand this case for the circuit court (1) to conduct a
hearing in which both sides can introduce the evidence
necessary to allow the circuit court to more fully consider
the Peebles factors and (2) to issue an order that is
consistent with this opinion and that "allow[s] for
meaningful
review by articulating the decisions made, the reasons
supporting those decisions, and the performance of the
attorney-fee calculation." City of Birmingham, 810 So. 2d at
682; see also Lolley v. Citizens Bank, 494 So. 2d 19 (Ala.
1986); Van Schaack, supra.
8
E. Taxing of Costs of the Appeal in Wehle I
In May 2010, the daughters filed a timely motion in the
circuit court asking that court to tax certain costs of the
appeal in Wehle I against the personal representatives. In
9
Van Schaack and Lolley appear to serve at least as
8
examples of cases where this Court remanded the case for
reconsideration of the attorney-fee issue.
The
daughters
filed
the
motion
and
supporting
9
documentation within 14 days of the issuance of this Court's
certificate of judgment in Wehle I. See Rule 35(c), Ala. R.
39
1101290
support of the motion, the daughters filed an itemized and
verified bill of costs. The circuit court denied the
daughters' motion.
The certificate of judgment issued by this Court in
Wehle I ordered that, "unless otherwise ordered by this Court
or agreed upon by the parties, the costs of this cause are
hereby taxed as provided by Rule 35, Ala. R. App. P."
Rule 35(a), Ala. R. App. P., provides, in pertinent part,
that, "if a judgment is reversed, costs shall be taxed against
the appellee unless otherwise ordered." Also, this Court has
stated:
"'When this Court reverse[s] a trial
court's judgment and awards costs to the
appellant,
the
trial
court
has
no
discretion in awarding costs. Ex parte
Blue Cross & Blue Shield of Alabama, 473
So. 2d 1045 (Ala. 1985). The trial court
must award the appellant those costs of
appeal
that
the
appellant
properly
incurred. Rule 35(a), [Ala.] R. App. P.'"
Kirkley v. United Methodist Church, 765 So. 2d 626, 627-28
(Ala. 1999) (quoting Smith v. Player, 630 So. 2d 400, 401
(Ala. 1993)).
App. P.
40
1101290
Although the resolution of this issue in favor of the
daughters appears to be straightforward, the personal
representatives argue that in Kirkley, Smith, and other cases
that
have
stated
the
above-quoted
propositions
the
certificates of judgment expressly stated that the costs of
the appeal were to be taxed against the appellees. In this
instance, they note, the certificate of judgment simply
stated
that costs were to be taxed in accordance with Rule 35, Ala.
R. App. P. The personal representatives contend that the
difference in wording means that the circuit court was free to
"interpret" the appropriate taxation of costs. The personal
representatives' position is patently without merit.
There is no ambiguity in this Court's certificate of
judgment in Wehle I. It states that costs are to be taxed "as
provided by Rule 35, Ala. R. App. P." Rule 35 unequivocally
states that costs are to be taxed against the appellee when a
trial court's judgment is reversed, and this Court has not
expressly ordered otherwise. Therefore, the circuit court
violated this Court's mandate in failing to tax the costs of
the appeal in Wehle I against the personal representatives.
IV. Conclusion
41
1101290
We affirm the circuit court's order insofar as the amount
of compensation awarded to the personal representatives and
insofar as it refused to remove McGowan as a cotrustee of the
family trust. We reverse the circuit court's order insofar as
the amount of attorney fees and costs it awarded the personal
representatives and insofar as it denied the daughters'
interest claims and failed to tax the costs of the appeal in
Wehle I against the personal representatives.
We once again remand this case to the circuit court for
the purposes of conducting an evidentiary hearing as to the
personal representatives' claim for attorney fees and costs,
of taxing the costs of the appeal in Wehle I against the
personal
representatives,
and
of
awarding
interest
against
the
personal representatives and for the entry of a judgment
consistent with this opinion.
APPLICATION FOR REHEARING GRANTED; OPINION OF MARCH 14,
2014, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART;
REVERSED IN PART; AND REMANDED.
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., concurs in part and dissents in part.
42
1101290
MOORE, Chief Justice (concurring in part and dissenting in
part).
I respectfully dissent from Part III.B of the majority
opinion; I concur with the remainder of the opinion. I do not
believe the trial court erred by rejecting the daughters'
claim that the personal
representatives
should pay interest on
the compensation they had paid themselves without prior court
approval.
The majority quotes Ruttenberg v. Friedman, 97 So. 3d
114, 134-35 (Ala. 2012), for the proposition that "'any error
in the prior payment of [a personal representative's] fees for
ordinary services without prior court approval is moot'" once
the court "'issue[s] its final award, after taking into
consideration the statutory factors'" for making such an
award. ___ So. 3d at ___ (emphasis omitted). The Court in
Ruttenberg did not specifically discuss whether personal
representatives who pay themselves compensation from the
estate without prior court approval must, as a consequence,
pay interest on that compensation to the estate. However, by
upholding the "ultimate fee approved by the probate court," 97
So. 3d at 135, and by stating that "any error was remedied
when the probate court issued its final award," 97 So. 3d at
43
1101290
134, Ruttenberg implies that the personal representative in
that case was relieved of any legal consequences he would have
suffered under § 43-2-844(7), Ala. Code 1975, for failing to
obtain court approval before paying himself from the estate.
In other words, not only the payment itself, but also the
interest accrued thereon, became moot. Any attempt to extend
Ruttenberg to the present case must reach the same result:
The issue regarding interest on the compensation the personal
representatives paid themselves from the estate became moot
when the circuit court approved the compensation. If the Court
does not like that result, it must overrule Ruttenberg.
44 | October 30, 2015 |
fc29f53a-6716-4371-a283-2f0e1aa05745 | Ex parte Richard Talbott et al. | N/A | 1140596 | Alabama | Alabama Supreme Court | Rel:09/30/2015
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, 2015
____________________
1140596
____________________
Ex parte Richard Talbott et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Azin Agah
v.
Amber Bartlett et al.)
(Mobile Circuit Court, CV-11-901689)
BOLIN, Justice.
Richard Talbott, Stephen Ballard, and Dusty Layton
petition for a writ of mandamus directing the Mobile Circuit
1140596
Court to vacate its January 28, 2015, order denying their
motion to dismiss Azin Agah's claims against them and to enter
a dismissal in their favor.
Facts and Procedural History
Before 2010, Agah was employed at the University of South
Alabama (hereinafter "USA") as a professor engaged in
scientific research. Agah's position was a tenure-track
professorship. On February 26, 2010, USA's vice president for
Health Sciences, Ronald Franks, notified Agah that she would
not be reappointed to her professorship because of alleged
research misconduct.
On July 28, 2011, Agah sued Amber Bartlett and Julio
Turrens. Bartlett was a student of Agah's, and she reported
her concerns regarding Agah's research to Turrens, who is a
professor and associate dean at USA. Agah sought
compensatory and punitive damages against the defendants for
the alleged theft and conversion of her computerized
electronic-research data and the alleged theft and conversion
of her animal-research logbook and intentional interference
with a contractual property right arising out of the
termination of her employment by USA. Agah also sued "R.T.,
2
1140596
W.B.D., R.F., whose names are known and unknown to the
Plaintiff, but are those individuals, corporations, or other
entities that played a role in the theft of the Plaintiff's
electronic computer data files and animal research logbook,
the defamation of the Plaintiff's character, and the
intentional interference with the Plaintiff's property right
of employment." The caption of Agah's complaint provided that
the identities of R.T., W.B.D., and R.F. would be "added when
ascertained." Other than referring to the initialed parties
in the caption and the description of the initialed parties
above, Agah's complaint refers only to Bartlett and Turrens as
defendants from whom she is seeking relief.
In response to interrogatories propounded by Bartlett and
Turrens, Agah stated that she planned to call as witnesses
Richard Talbott, William Brad Davis, and Ronald Franks, among
others. On December 12, 2012, Agah was deposed, and in her
deposition she identified "R.T." as Richard Talbott, "W.B.D."
as William Brad Davis, and "R.F." as Ronald Franks. She
acknowledged that these were the same individuals to whom she
referred in her original complaint. Talbott, Davis, and
3
1140596
Franks are all USA employees who were involved in the review
of Agah's alleged research misconduct.
On March 21, 2013, Agah filed an amended complaint. In
the
amended
complaint,
she
identified
the
initialed
defendants
as Talbott, Davis, and Franks. For the first time, Agah named
USA as a defendant, along with Stephen Ballard, Dusty Layton,
and Susan LeDoux, in their individual capacities. Ballard,
Layton, and LeDoux are USA employees. Agah also sued "A, B,
and C, whose names are known and unknown to the Plaintiff at
this time, but will be added when ascertained."
In her amended complaint, Agah asserted claims (1)
seeking a judgment declaring that USA had failed to comply
with Agah's express and implied tenure-track employment
contract; (2) asserting a claim of tortious interference with
contractual relations in that all
the defendants had knowledge
of Agah's tenure-track employment contract and, as
a proximate
cause of the defendants' interference, her contract was not
renewed; (3) alleging tortious violations of her procedural
and substantive due-process rights arising out of the failure
of USA and the defendants who were USA employees to comply
with USA's employee handbook and certain federal regulations
4
1140596
regarding research being conducted pursuant to a federal
grant; (4) alleging suppression arising out of the alleged
suppression by certain defendants' (Franks, Talbott, Turrens,
Davis, LeDoux, Layton, and Ballard) of her right to counsel
and of material facts regarding compliance with federal
regulations; (5) alleging defamation arising out of false
information disseminated by the defendants about Agah; (6)
alleging intentional infliction of emotional distress arising
out of the defendants' actions that caused her tenure-track
employment contract to be terminated; (7) alleging negligent
infliction of emotional distress arising out of certain of
the defendants' failure to review her work in compliance with
the
USA employee handbook and certain federal regulations;
(8)
alleging abuse of process arising out of certain of the
defendants' failure to comply with the USA employee handbook
and federal regulations; (9) alleging conversion and detinue
arising out of the taking of her animal-research logbook from
her office at USA; and (10) alleging invasion of privacy
arising out of obtaining her animal-research logbook without
her permission. She requested a judgment of $10,000,000, an
order appointing a special master to conduct a fair and
5
1140596
impartial investigation into the allegations against her of
research misconduct, and an order requiring the return of her
animal-research logbook undamaged.
USA filed a motion to dismiss Agah's claims against it,
arguing immunity from civil actions under § 14, Const. Of Ala.
1901. The trial court denied the motion, and USA filed a
petition for a writ of mandamus with this Court. We granted
USA's petition and ordered the trial court to dismiss USA from
Agah's action. Ex parte University of South Alabama, [Ms.
1140440, May 29, 2015] So. 3d (Ala. 2015). Davis,
Franks, and LeDoux filed motions to dismiss, which are still
pending in the trial court.
The petitioners (Talbott, Ballard, and Layton) each filed
a motion to dismiss. Each argued, among other things, that,
with the exception of the conversion and detinue claim, Agah's
remaining claims accrued in February 2010 when her employment
was terminated, that Agah's amended complaint did not relate
back to the original complaint, and that the remaining claims
asserted in the amended complaint were time-barred. They also
argued that they were entitled to immunity with respect to
Agah's claims alleging tortious interference with contractual
6
1140596
rights, tortious violations of her procedural and substantive
due-process rights, and conversion and detinue, because, they
argued, they were sued in their individual capacity and lacked
the authority to grant Agah her requested injunctive relief.
The petitioners attached deposition testimony and other
evidence in support of their motions. On July 11, 2013, Agah
filed a response to the petitioners' motions.
Following a hearing, the trial court denied all three
motions on January 28, 2015. The trial court stayed the
proceedings pending mandamus review. The petitioners timely
filed their petition on March 11, 2015.
Standard of Review
"'"A
writ
of
mandamus
is
an
extraordinary remedy, and it 'will be
issued only when there is: 1) a clear legal
right in the petitioner to the order
sought; 2) an imperative duty upon the
respondent to perform, accompanied by a
refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked
jurisdiction of the court.'"'
"Ex parte Monsanto Co., 862 So. 2d 595, 604 (Ala.
2003)(quoting Ex parte Butts, 775 So. 2d 173, 176
(Ala. 2000), quoting in turn Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)). A
writ of mandamus is the proper means by which to
seek review of a denial of a motion to dismiss filed
by a party originally listed as a fictitiously named
defendant 'when "the undisputed evidence shows that
7
1140596
the plaintiff failed to act with due diligence in
identifying the fictitiously named defendant as the
party the plaintiff intended to sue."' Ex parte
Chemical Lime of Alabama, Inc., 916 So. 2d 594, 596-
97 (Ala. 2005) (quoting Ex parte Snow, 764 So. 2d
531, 537 (Ala. 1999)) ...."
Ex parte Nationwide Ins. Co., 991 So. 2d 1287, 1289-90 (Ala.
2008). Likewise, mandamus review is available where the
petitioner asserts immunity. Ex parte Alabama
Peace
Officers'
Standards & Training Comm'n, 34 So. 3d 1248 (Ala. 2009).
Discussion
The first question presented is whether the trial court
exceeded its discretion in denying the petitioners' motions,
in essence determining that Agah's substitution of Talbott,
Ballard, and Layton for the fictitiously named defendants in
the amended complaint of March 21, 2013, relates back to the
filing of the original complaint of July 28, 2011. This Court
has previously stated that Rule 9(h) and Rule 15(c)(4), Ala.
R. Civ. P., "'allow a plaintiff to avoid the bar of a statute
of limitations by fictitiously naming defendants for which
actual parties can later be substituted.'" Ex parte Chemical
Lime of Alabama, Inc., 916 So. 2d 594, 597 (Ala. 2005)(quoting
Fulmer v. Clark Equip. Co., 654 So. 2d 45, 46 (Ala. 1995)).
Rule 9(h), Ala. R. Civ. P., provides:
8
1140596
"When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and
when that party's true name is discovered, the
process and all pleadings and proceedings in the
action may be amended by substituting the true
name."
Rule 15(c)(4), Ala. R. Civ. P., provides that "[a]n amendment
of a pleading relates back to the date of the original
pleading when ... relation back is permitted by principles
applicable to fictitious party practice pursuant
to
Rule 9(h),
Ala. R. Civ. P."
To avoid the bar of a statute of limitations when a
plaintiff amends a complaint to identify a fictitiously named
defendant in the original complaint, the plaintiff
"(1) must state a cause of action against the party
named fictitiously in the body of the original
complaint and (2) must be ignorant of the identity
of the fictitiously named party, in the sense of
having no knowledge at the time of the filing that
the later-named party was in fact the party intended
to be sued. Columbia Eng'g Int'l, Ltd. v. Espey,
429 So. 2d 955 (Ala. 1983)."
Crawford v. Sundback, 678 So. 2d 1057, 1059 (Ala. 1996). This
Court has also stated that the original complaint must
adequately describe the fictitiously named defendant and the
stated claim against that defendant. Fulmer, 654 So. 2d at
46.
9
1140596
For a plaintiff to be deemed ignorant of the identity of
a fictitiously named defendant, the plaintiff must have
exercised due diligence to identify the party intended to be
sued:
"A plaintiff is ignorant of the identity of a
fictitiously named defendant when, after exercising
due diligence to ascertain the identity of the party
intended to be sued, he lacks knowledge at the time
of the filing of the complaint of facts indicating
to him that the substituted party was the party
intended to be sued. Likewise, to invoke the
relation-back principle of Rule 15(c), a plaintiff,
after filing suit, must proceed in a reasonably
diligent manner to determine the true identity of a
fictitiously named defendant and to amend his
complaint accordingly."
Ex parte FMC Corp., 599 So. 2d 592, 593–94 (Ala. 1992). The
test for determining whether a plaintiff exercised due
diligence to obtain the identity of a fictitiously named
defendant is "whether the plaintiff knew, or should have
known, or was on notice, that the substituted defendants were
in fact the parties described fictitiously." Davis v. Mims,
510 So. 2d 227, 229 (Ala. 1987).
Agah's employment was terminated on February 26, 2010.
She filed her original complaint on July 28, 2011. She listed
"R.T." as a defendant and described the party as an individual
or entity "that played a role in the theft of [Agah's]
10
1140596
electronic computer data files and animal research logbook,
the defamation of [Agah's] character, and the intentional
interference with [Agah's] property
right
of employment." The
substance of Agah's original complaint is that Bartlett and
Turrens converted her animal-research logbook, defamed her,
and caused her to lose her employment with USA. In her
deposition on December 12, 2012, Agah identified "R.T." as
Talbott. On March 21, 2013, Agah filed an amended complaint
in which she substituted Talbott for "R.T." and named Ballard
and Layton as defendants.
Agah failed to adequately describe a fictitiously named
defendant such that it would have related to Ballard or Layton
as there were no initials that correlated to their names and
no
"generic"
fictitious-defendant
names
listed
in
the
original
complaint. "A complaint stating a claim against a
fictitiously
named
defendant
must
contain
sufficient
specificity to put that defendant on notice of the plaintiff's
claim if it were to read the complaint." Ex parte
International Refining & Mfg. Co., 972 So. 2d 784, 789 (Ala.
2007). Agah included three very specific sets of initials in
the caption of her complaint. During her deposition on
11
1140596
December 21, 2012, Agah stated that the "R.T." in her original
complaint was Talbott. The original complaint does not set
forth any claim in the body of the complaint against the
initialed defendants. "Merely naming the fictitious party in
the style and/or body of the complaint is insufficient; the
complaint must describe the actions that form the basis of the
cause of action against the fictitiously named defendant." Ex
parte International Refining, 972 So. 2d at 789. This Court
in International Refining held that the plaintiffs had
provided specific factual assertions relating to only one
claim against the fictitiously
named
defendants, and the Court
dismissed the rest of the plaintiffs' claims against those
defendants,
finding
that
a
general
statement
that
"[r]eferences to 'defendants' in this complaint will be
understood to include fictitious party defendants" was
inadequate to put them on notice of the claims against them.
972 So. 2d at 790-91.
Agah has not shown that she was ignorant of the true
identities of the parties intended to be sued in the sense of
having no knowledge of the parties' identities at the time the
original complaint was filed, nor has she shown due diligence
12
1140596
in attempting to discover the identities the fictitiously
named parties or in promptly amending her complaint once she
had discovered their identities. The petitioners were all
employees of USA directly involved in the proceedings arising
out of Agah's alleged misconduct that eventually led to the
termination of
her
employment. Agah even referenced Talbott's
initials in her original complaint. Agah filed her amended
complaint over a year after the statute of limitations had run
on all but one of her claims and 19 months after her original
complaint was filed.
"The purpose of [Rule 9(h)] is, in effect, to
counteract
the
relatively
short
statute
of
limitations for tort, negligence, and wrongful death
claims in this State. The rule applies when a
plaintiff knows he has been injured by someone and
the plaintiff can describe that person or entity
(i.e., 'the manufacturer of the valves that injured
the plaintiff'), but the plaintiff is ignorant of
the specific name of the person or entity. It is an
emergency action that allows the plaintiff to hold
a spot for the unidentified party with a fictitious
name. The only additional requirement is that the
plaintiff state the cause of action against the
fictitiously named defendants within the body of the
complaint. Columbia Eng'g Int'l, Ltd. v. Espey, 429
So. 2d 955, 958-59 (Ala. 1983). If the plaintiff
diligently pursues the identity and substitutes the
name of the fictitiously named defendant, see Rule
9(h) and Bowen [v. Cummings, 517 So. 2d 617 (Ala.
1987)], then the plaintiff can substitute the newly
discovered
name
for
the
fictitiously
named
defendant. Because the fictitious name serves as a
13
1140596
placeholder for the party, [Ala.] R. Civ. P. 15(c)
allows the substituted name to relate back to the
date of the original complaint. In that way, the
plaintiff
effectively
tolls
the
statute
of
limitations."
Toomey v. Foxboro Co., 528 So. 2d 302, 307 (Ala. 1988)(Adams,
J., dissenting).
In Ex parte Ismail, 78 So. 3d 399 (Ala. 2011), the
plaintiff was allegedly injured while a patient at Highlands
Medical Center. The patient had knowledge, based on medical
records in his possession before filing the complaint, that
Dr. Younus Ismail had been one of two treating physicians. 78
So. 3d at 407. Nevertheless, the patient did not attempt to
substitute Dr. Ismail for a fictitiously named party until
more than two years after the limitations period on his cause
of action had expired. 78 So. 3d at 403. Thus, the issue in
that case was not one of identity but, rather, the extent of
the involvement of the physician, whose identity was known,
with the patient. Essentially, in other words, the plaintiff
was improperly, 78 So. 3d at 408, attempting to use Rule 9(h)
to gain "additional time beyond the statutorily prescribed
period within which to formulate causes of action." Columbia
Eng'g Int'l, Ltd. v. Espey, 429 So. 2d 955, 959 (Ala. 1983).
14
1140596
In Crawford v. Sundback, supra, the plaintiffs were
employed at a chemical plant; they sued following an explosion
of a tank at the chemical facility. The plaintiffs named
fictitious defendants. They later sought to amend their
complaint to substitute coworkers at the facility as
defendants. The coworkers filed summary-judgment motions
seeking dismissal from the action. This Court held that the
plaintiffs were not ignorant of the identity of the coworkers
as defendants and, thus, that the subsequent amendment adding
the coworkers did not relate back to date of original
complaint for statute-of-limitations purposes.
"In support of their motions for summary
judgment, the defendants gave affidavits stating
that before the accident they had known the four
workers as co-employees and that the four workers
had known them as co-employees, in some instances
for many years. The defendants asserted that the
plaintiffs could have found them by routine
discovery, for example, by asking in interrogatories
to the co-employee defendants originally named in
the plaintiffs' complaints the true identities of
the parties named fictitiously. Attached to the
motions for summary judgment were copies of
petitions to obtain and perpetuate evidence, filed
in December 1989 by the plaintiffs pursuant to Rule
27, Ala.R.Civ.P., and an affidavit by an attorney
for some of the defendants, who stated that on
February 7, 1990, he attended an inspection of the
3M plant pursuant to those petitions. Thus, the
defendants showed that the plaintiffs had begun
discovery shortly after the fatal incident.
15
1140596
"The plaintiffs argue that they were diligent
and
that
the
defendants'
allegations
were
insufficient to shift the burden to them to produce
substantial evidence of their diligence. However, we
conclude
that
the
defendants'
motions
were
sufficient to shift the burden. The motion asserted
the statute of limitations as a defense; this motion
appeared on its face to have merit, because some of
the substitutions of these defendants were made
almost two years after the date when the statutory
period of limitations ordinarily would have run, and
some substitutions were made more than two years
after that date. Moreover, the motions went further,
asserting that the plaintiffs knew when they filed
their complaints, or with due diligence could have
discovered by that time, that these defendants were
the parties named fictitiously in the complaints.
These assertions were supported by affidavits of the
defendants, three of whom stated that before the
accident Rains [one of the plaintiffs] had known
them and had known their responsibilities. The
defendants argued that simple discovery, such as
interrogatories to the co-employee defendants who
were named in the original complaints, would have
disclosed their identities. They established that
the plaintiffs began conducting discovery within six
months after the incident, but claimed not to have
learned of these defendants' alleged culpability
until almost four years after the incident, or
later.
"In response, the plaintiffs made no showing as
to why Rains's familiarity with three of the
defendants did not lead to earlier substitution at
least as to those three, or as to how the alleged
failure to discover earlier these defendants'
alleged culpability occurred in spite of due
diligence.
The
plaintiffs
simply
presented
a
conclusory affidavit of one of their attorneys,
stating that these defendants' culpability had only
recently come to light in depositions, and stating:
'At all times during my involvement with these
16
1140596
cases, I exercised due diligence to discover any and
all parties legally responsible for the injuries and
deaths suffered in the explosion.' This was not
sufficient to present substantial evidence in
response to the defendants' showings."
678 So. 2d at 1060-61.
In
the
present
case,
Agah's
claims
against
the
petitioners in her amended complaint, with the exclusion of
the conversion and detinue claim, are barred by the applicable
two-year statute of limitations. The claims asserted in the
amended complaint do not relate back to the original complaint
under Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P.
We now turn to Agah's conversion and detinue claim. The
statute of limitations for "detention or conversion of
personal property" is six years. § 6-2-34(3), Ala. Code 1975.
To establish conversion, a plaintiff must show a wrongful
taking or a wrongful detention or interference or an illegal
use or misuse of his or her property. Ex parte Anderson, 867
So. 2d 1125 (Ala. 2003). "To be entitled to the right of
recovery for conversion, plaintiff must have general or
special title to the property in question, and the possession
or immediate right of possession; and the party complained
against must have wrongfully exerted some act of dominion over
17
1140596
such property inconsistent with and destructive of the title
of the party plaintiff." Hamilton v. Hamilton, 255 Ala. 284,
289, 51 So. 2d 13, 18 (1951). "[T]he very gist of detinue is
the wrongful detention by the defendant of the plaintiff's
personal property." Ray v. Blackwell, 521 So. 2d 44, 45
(Ala. Civ. App. 1988).
The petitioners argue that they are immune from suit
based on § 14. In reviewing the grant or denial of a motion to
dismiss, the question "'is whether, when the allegations of
the complaint are viewed most strongly in the pleader's favor,
it appears that the pleader could prove any set of
circumstances that would entitle [him] to relief.'" Ex parte
Alabama Dep't of Youth Servs., 880 So. 2d 393, 398 (Ala.
2003)(quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala.
1993)). In the present case, the trial court had before it,
in addition to the pleadings, deposition testimony and other
documents. Ex parte Jefferson Cnty. Dep't of Human Res., 63
So. 3d 621 (Ala. 2010)(treating a motion to dismiss based on
immunity as a summary-judgment motion where the trial court
had before it and considered matters outside the pleadings).
18
1140596
Article 1, § 14, of the Alabama Constitution, provides
that "the State of Alabama shall never be made a defendant in
any court of law or equity." This Court has recognized:
"'The wall of immunity erected by § 14 is nearly
impregnable,' Patterson [v. Gladwin Corp., 835 So.
2d 137, 142 (Ala. 2002),] and bars
"(1) claims against the State,
"(2) claims against a State agency,
"(3) claims against a state official
or employee sued in his official capacity
as an agent for the State, and
"(4) claims against a state official
or
employee
sued
in
his
individual
capacity."
Ex parte Davis, 930 So. 2d 497, 500 (Ala. 2005) (footnotes
omitted). "The State's immunity bars suits for relief by way
of mandamus or injunction, no less than suits for any other
remedy." Taylor v. Troy State Univ., 437 So. 2d 472, 474 (Ala.
1983).
The fourth category of claims set out in the statement
above from Davis refers to claims against State officials or
employees sued in their individual capacities that are, in
effect, claims against the State. Davis, 930 So. 2d at 500
("Whether immunity serves as a defense to an action against a
19
1140596
state officer or employee sued in his individual capacity
depends upon the degree to which the action involves a State
interest."); Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989)
("State officers and employees, in their official capacities
and individually, also are absolutely immune from suit when
the action is, in effect, one against the State.") . "This
form of immunity is distinct from the discretionary or State-
agent immunity discussed in Ex parte Cranman, 792 So. 2d 392
(Ala. 2000), which dealt with claims against State agents sued
in their personal, or individual, capacities, which were not,
in effect, claims against the State." Ex parte Troy Univ.,
961 So. 2d 105, 108 (Ala. 2006). State employees sued in
their individual capacities, however, enjoy only State-agent
immunity from suit. Ex parte Tuscaloosa Cnty., 796 So. 2d
1100, 1106 (Ala. 2000). The law of State-agent immunity was
succinctly restated in Ex parte Cranman, supra, and that
restatement was adopted by a majority of this Court in Ex
parte Butts, 775 So. 2d 173 (Ala. 2000).
Here, Agah's conversion and detinue claims involving the
animal-research logbook seek an order returning the logbook
and monetary damages for the time the logbook was out of her
20
1140596
possession when she needed it for her defense. The
petitioners were sued only in their individual capacities.
However, part of Agah's relief is in the form of return of the
property. In Ex parte Moulton, 116 So. 3d 1119, 1142 (Ala.
2013), this Court held that, to the extent the plaintiff
sought relief in the form of reinstatement to an employment
position from the defendants in their individual capacities,
"that claim is meaningless because the [defendants] can act on
behalf of [the state university] only in their official
capacities and are without the necessary authority to provide
the requested relief in their individual capacities." Here,
Agah's amended complaint refers only to Bartlett, Amy Boyd (a
witness), and Turrens with regard to the alleged conversion of
the animal-research logbook, none of whom are before us in
this petition. Moreover, Agah's complaint alleges that the
logbook was her "personal and intellectual property," but in
her subsequent deposition Agah stated that the logbook
belonged to USA and that she was merely the custodian. A
plaintiff's sworn deposition testimony overrides unsworn
allegations in a complaint. See Osborn v. Johns, 468 So. 2d
103 (Ala. 1985)(holding that in a fraud action by a vendor
21
1140596
against a bank, the vendor's deposition testimony that he had
no basis for a claim against the bank showed an absence of any
genuine issue of material fact and entitled the bank to
judgment as a matter of law, where the vendor "essentially
relied on his initial pleadings" to oppose summary judgment).
Because Agah did not sue the petitioners in their official
capacities, they could not provide her with the relief
requested, i.e., the return of the animal-research logbook
"taken" by USA students or employees, who were persons other
than the petitioners. Additionally, Agah is seeking monetary
relief from the petitioners arising out of the taking of the
logbook. The allegations in Agah's amended complaint concern
the removal of the logbook from Agah's "custody" by certain
USA students or employees, not the petitioners. Also, any
claims brought against the petitioners in their individual
capacities seeking money damages are barred by State immunity
under § 14 where the claim is in effect one against the State.
Ex parte Moulton, supra.
Conclusion
Based on the foregoing, the petitioners have a clear
legal right to the dismissal of Agah's amended complaint
22
1140596
against them. Agah's amended complaint did not relate back to
her original complaint; thus, all of her claims against the
petitioners, with the exclusion of her conversion and detinue
claim, were barred by the statute of limitations. Agah's
conversion and detinue claim against the petitioners in their
individual capacities seeks relief that the petitioners could
not provide. Therefore, we grant the petition for a writ of
mandamus and direct the trial court to vacate its order
denying the petitioners' motion seeking dismissal of the
claims against them.
PETITION GRANTED; WRIT ISSUED.
Shaw, Main, Wise, and Bryan, JJ., concur.
Parker and Murdock, JJ., concur in the result.
Moore, C.J., dissents.
Stuart, J., recuses herself.
23
1140596
MURDOCK, Justice (concurring in the result).
The claims of detinue and conversion in this case are
framed by the plaintiff, who is the "master of her
complaint," as claims against the petitioners personally, or
in their individual capacities. If we were to treat these
claims as they are framed by the plaintiff, they would fail
on their merits rather than on the ground of immunity.
Specifically, the ground on which they would fail on their
merits would be simply that the defendants have not breached
a duty owed to the plaintiff in their individual capacities.
It is only in their official capacities that they owe any
duty or in which they have acted or could act.1
Ultimately, therefore, I believe that disposing of
claims framed like those in the present case as barred by the
A University of South Alabama ("USA") employee may have
1
physical possession of the logbook, but he or she has that
possession not in his or her individual capacity, but only as
an arm or conduit of USA; he or she has no personal authority
over the disposition of the logbook. Likewise, a USA employee
may have physically removed the logbook from the plaintiff's
office, but the employee did so in accordance with the
instruction of a superior and as an arm of USA and, in so
doing, did not, in his or her individual capacity, breach a
duty owed to the plaintiff.
24
1140596
doctrine of sovereign immunity as if they were official-
capacity claims involves the use of a legal fiction. But it
is a useful legal fiction. Treating such claims as "in
effect against the State" allows the trial court to consider
dismissing them at an early stage in the litigation based on
a defense of immunity and, in turn, allows interlocutory
appellate review by mandamus of the trial court's decision in
this regard. As a result, the use of this legal fiction may
be as efficacious a way as any to articulate a rule of
decision that protects the State's ability to act lawfully
through its employees and agents and to protect its contract
and property rights, without the time and cost of litigation
being imposed on those agents. Compare Ex parte Dickson, 46
So. 3d 468, 474 (Ala. 2010):
"In any event, a suit for injunctive relief
against a State official in his or her individual
capacity would be meaningless. This is so, because
State officials act for and represent the State
only in their official capacities. Consequently,
the members are not aided by [Ex parte] Cranman[,
792 So. 2d 392 (Ala. 2000),] or its progeny."
25
1140596
(Some emphasis added.) See also DeStafney v. University of
Alabama, 413 So. 2d 391, 394 (Ala. 1981) (quoting Milton v.
Espey, 356 So. 2d 1201, 1202-03 (Ala. 1978)):
"'There is no dispute that in employing Milton,
Espey was acting in his official capacity as an
agent of the University. Milton admits this. Espey
was merely the conduit through which the University
contracted with Milton. Thus, a suit seeking money
damages for breach of contract, although nominally
against Espey individually, comes within the
prohibition of Section 14 as a suit against the
State. Milton's contract was in fact with the
University of Alabama.'"
26 | September 30, 2015 |
24b0bc9a-aaf8-4591-a2fe-2d8939059f53 | Bank of America, N.A. v. Shepherd | N/A | 1140450 | Alabama | Alabama Supreme Court | REL: 11/20/2015
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, 2015-2016
____________________
1140376
____________________
U.S. Bank National Association, as trustee for Structured
Asset Investment Loan Trust, Mortgage Pass-Through
Certificates, Series 2004-4
v.
Emily Faye Shepherd and Chester Shepherd
____________________
1140450
____________________
Bank of America, N.A.
v.
Emily Faye Shepherd and Chester Shepherd
Appeals from Lamar Circuit Court
(CV-11-900021)
1140376, 1140450
STUART, Justice.
U.S. Bank National Association ("USB"), successor in
interest to Bank of America, N.A., which is the successor by
merger to LaSalle Bank, National Association, as trustee for
Structured Asset Investment Loan Trust, Mortgage Pass-Through
Certificates, Series 2004-4 ("the Trust"), and Bank of
America,
N.A.
("BOA"),
separately
appeal
a
$3,920,000
judgment
entered against them by the Lamar Circuit Court on trespass
and wantonness claims asserted by Chester Shepherd and Emily
Faye Shepherd. USB also appeals the trial court's judgment in
favor of the Shepherds on its claims related to an alleged
error in a mortgage executed by the Shepherds upon which the
Trust had foreclosed. We reverse and remand.
I.
In the late 1970s, the Shepherds began receiving property
in Vernon from Emily's family, culminating in their ownership
of three contiguous parcels of real estate located northeast
of the intersection of Holliday Road and Aberdeen Road. As
denominated by the parties, "Parcel 1" is located at 48
Holliday Road and houses a residence built by the Shepherds in
1980, "Parcel 2" is located at 3742 Aberdeen Road and houses
2
1140376, 1140450
a beauty parlor operated by Emily, and "Parcel 3" consists of
unimproved pastureland behind and adjacent to the other two
parcels.
In April 1999, the Shepherds obtained a $61,000 loan from
Superior Bank. That loan was secured by a mortgage; however,
the recorded mortgage did not contain a legal description of
the encumbered property. In December 2001, the Shepherds
secured a home-equity line of credit with Citizens State Bank
with a mortgage on Parcel 2.
In approximately October 2003, the Shepherds applied to
refinance the April 1999 mortgage loan issued by Superior Bank
with H&R Block, Inc. An appraisal was conducted on Parcel 1
in conjunction with that application, which reported
the
value
of the property to be $86,000. Chester and Emily have both
testified that it was their intent that the new mortgage
encumber Parcel 1; however, at some point during the
application
process
Chester
noticed
that
the
legal
description
of the encumbered property used in the draft documents was
actually the legal description for Parcel 2. The conversation
log maintained by H&R Block indicates that Chester notified it
of a problem with the legal description during the application
3
1140376, 1140450
process; however, the mistake was apparently never corrected,
because, when Linda Meadows, an independent notary public,
brought the closing papers to the Shepherds on December 26,
2003, the mortgage indicated that the encumbered property was
located at "48 Hol[l]iday Road, Vernon," and that it was the
Shepherds' "residence," but the attached legal description of
the property described Parcel 2, on which was not located the
residence but Emily's beauty parlor. Chester testified that,
when he told Meadows of the error in the legal description,
she telephoned Mark Muncher, the H&R Block loan officer in
charge of the Shepherds' loan, and that, after speaking with
Muncher, she told them that Muncher had instructed her to have
them go ahead with the closing and that the error in the legal
description would be corrected at a later time. Accordingly,
1
the Shepherds executed all the documents with which they were
presented, borrowing $68,800, part of which was used to pay
the mortgage-transaction fees and to pay off the balance of
the April 1999 Superior Bank note, and approximately $7,000 of
Paragraph 29 of the December 2003 mortgage obligated the
1
Shepherds to assist H&R Block in correcting any clerical
errors found to exist in the mortgage, and, during the closing
process, the Shepherds also executed a limited power of
attorney authorizing H&R Block to correct such errors.
4
1140376, 1140450
which was disbursed to the Shepherds. Chester testified that
he contacted Muncher and H&R Block repeatedly in the ensuing
months trying to get the error in the legal description
corrected but that they took no action regarding the error.
In April 2004, the Shepherds' December 2003 mortgage was
assigned to Option One Mortgage Corporation, a subsidiary of
H&R Block. In August 2005, the December 2003 mortgage was
assigned to the Trust, which had been created by Lehman
Brothers Holdings, Inc., in April 2004, and which was
administered
by
LaSalle
Bank,
National
Association,
as
trustee
until USB replaced it as trustee on September 6, 2011. It
2
appears, however, that Option One Mortgage continued to
service the December 2003 mortgage even after it was assigned
to the Trust, at least until Option One Mortgage itself was
acquired by Homeward Residential Holdings, Inc., in
April
2008
and Homeward Residential began servicing the mortgage.
3
LaSalle Bank was acquired by and merged into BOA in
2
October 2007; however, actions in this case were still taken
in the name of LaSalle Bank even after that date of merger
when LaSalle Bank presumably would have ceased operating as a
separate entity.
As the Supreme Judicial Court of Massachusetts has
3
explained in an unrelated case involving many of these same
entities –- USB, Lehman Brothers Holdings, and Option One
Mortgage –– the object of the transactions involving the
5
1140376, 1140450
Chester has testified that he telephoned Option One Mortgage
multiple times attempting to get the legal description of the
property encumbered by the December 2003 mortgage corrected;
however, he testified that it never responded to his requests.
Sometime in the early summer of 2004, Chester, who was
self-employed,
began
having
health
problems
that
prevented
him
from working, and the Shepherds fell behind in their payments
on the December 2003 mortgage. On August 31, 2004, Chester
filed a petition for bankruptcy relief under Chapter 13 of the
United States Bankruptcy Code in the United States Bankruptcy
Court for the Northern District of Alabama. In that petition,
Chester listed Option One Mortgage as a secured creditor
pursuant to a mortgage he alleged it held on Parcel 1.
However,
Chester's
bankruptcy
petition
was
eventually
dismissed after he failed to make the payments required by the
court-approved repayment plan.
In a letter dated June 27, 2005, the Shepherds were
contacted by Morris Schneider & Prior, LLC ("Morris
Shepherds' December 2003 mortgage and the Trust was to pool a
number of mortgages and then convert them "into mortgage-
backed securities that can be bought and sold by investors ––
a process known as securitization." U.S. Bank, N.A. v.
Ibanez, 458 Mass. 637, 641, 941 N.E.2d 40, 46 (2011).
6
1140376, 1140450
Schneider"), an Atlanta law firm that had been retained to
collect on the debt owed Option One Mortgage by the
Shepherds. Morris Schneider advised the Shepherds via letter
4
that its collection efforts could include the commencement of
foreclosure proceedings on the property located at
48
Holliday
Road. Chester attempted to resolve the problem with the legal
description in the December 2003 mortgage with Morris
Schneider also; however, he states that Morris Schneider was
not responsive. In response to Morris Schneider's collection
efforts, however, Chester, on August 8, 2005, filed another
Chapter 13 bankruptcy petition. That petition again listed
Parcel 1 as being subject to a mortgage held by Option One
Mortgage. Tim Wadsworth, the attorney handling Chester's
bankruptcy petition also contacted Morris Schneider on the
Shepherds' behalf multiple times in an attempt to correct the
legal description in the December 2003 mortgage; however, he
was unsuccessful. The Shepherds simultaneously began efforts
to sell Parcel 1 and even brought a prospective purchaser to
Morris Schneider stated in that letter that it was
4
representing LaSalle Bank as trustee of the Trust, the
creditor on the Shepherds' loan. No explanation is given for
the other evidence in the record indicating that the December
2003 mortgage was not assigned to the Trust until August 2005
–– after this letter was sent.
7
1140376, 1140450
meet with Wadsworth; however, no sale was completed after
Wadsworth advised them all of the title issues stemming from
the error in the legal description of the property encumbered
by the December 2003 mortgage.
Meanwhile, on September 9, 2005, Morris Schneider, now
aware of the problem with the December 2003 mortgage, filed a
substitute mortgage in the Lamar County Probate Court. This
substitute mortgage was the same as the December 2003 mortgage
with the exception of the legal description of the encumbered
property, which was now the legal description for Parcel 3.
5
The Shepherds were not advised that a substitute mortgage had
been filed; Morris Schneider presumably acted pursuant to the
limited power of attorney executed by the Shepherds at the
closing on the December 2003 mortgage. Even after filing the
substitute
mortgage,
however,
Morris
Schneider
did
not
respond
to Wadsworth's or Chester's continued efforts to contact it
throughout the first half of 2006 regarding the erroneous
legal description in the December 2003 mortgage.
USB asserts that the likely reason why the substitute
5
mortgage erroneously described Parcel 3 instead of Parcel 1 is
because the Lamar County tax records indicate that the
Shepherds' homestead claim is attached to Parcel 3.
8
1140376, 1140450
Sometime in September 2006, the Shepherds voluntarily
moved out of their residence on Parcel 1 and moved into a
house they shared with Emily's brother that was located on yet
another parcel of family property adjacent to Parcel 1. The
Shepherds were not ordered out of the house by Morris
Schneider, Option One Mortgage, LaSalle Bank, the Trust, or
any other entity associated with the December 2003 mortgage;
rather, they testified that they were tired of dealing with
the situation and wanted to avoid any eventual eviction ––
even though no eviction was imminent because they were
protected by the automatic stay imposed when Chester filed for
bankruptcy protection in August 2005. Upon moving out, the
Shepherds disconnected all the utilities at the residence and
also ceased making the required home-insurance premium
payments. However, Chester continued to park his vehicle at
the residence on Parcel 1, and he also took care of the yard
work at times.
On March 26, 2007, the bankruptcy court dismissed
Chester's bankruptcy case because of his failure to make all
the required payments under the bankruptcy repayment plan. On
August 23, 2007, Morris Schneider mailed the Shepherds a
9
1140376, 1140450
notice indicating that their debt was being accelerated and
that a foreclosure sale of the property securing the debt
would be held. The legal description of the property attached
to that notice and subsequently published in the West Alabama
Gazette described Parcel 2. On September 20, 2007, the
foreclosure sale was conducted, and the Trust paid $96,624 ––
the amount owed by the Shepherds at that time –– to obtain a
foreclosure deed. That deed described Parcel 3.
On September 24, 2007, Option One Mortgage took
possession of the residence on Parcel 1, installed new locks,
and, for the first time, prevented the Shepherds from having
access to the residence. Option One Mortgage subsequently
listed the residence on Parcel 1 for sale with a real-estate
agent and later attempted to sell it via auction as well.
During this process, it received broker-price opinions, title
reports, and surveys indicating that there were problems with
the title to Parcel 1. Those title issues apparently
prevented the closure of any sale of Parcel 1 for years, even
though, in separate events, the property was once "sold" at
auction and, in June 2008, a signed sales contract was
executed with a different prospective buyer.
10
1140376, 1140450
Finally, on approximately August 1, 2011, the Shepherds
received a letter from Litvak Beasley & Wilson, LLP ("Litvak
Beasley"), a Florida law firm purporting to
represent Fidelity
National
Title
Insurance
Company,
explaining
that
the
December
2003 mortgage and the September 2007 foreclosure deed failed
to properly describe the Shepherds' real property and that the
Shepherds needed to execute various documents to correct the
issue. However, on August 19, 2011, before any further
attempt to address the issue could be made, the residence on
Parcel 1 caught fire and was severely damaged, along with
Chester's truck, which was parked in the carport at the time.
Force-placed insurance had been obtained for the residence
after the Shepherds stopped paying their home-insurance
premiums, and the $68,465 that was paid out under that force-
placed policy was subsequently applied to the Shepherds'
outstanding loan balance.
On September 28, 2011, an action was filed in the Lamar
Circuit Court by Litvak Beasley, purportedly on behalf of
"LaSalle
Bank,
National
Association,
as
trustee
for
Structured
Asset
Investment
Loan
Trust,
Mortgage
Pass-Through
Certificates, Series 2004-4," asking the trial court to quiet
11
1140376, 1140450
and confirm the Trust's title to Parcels 1, 2, and 3, pursuant
to § 6-6-540, Ala. Code 1975. Although the action identified
6
LaSalle Bank, acting as trustee for the Trust, as the
plaintiff, LaSalle Bank had actually ceased operations after
merging into BOA in October 2007 (see note 2 infra); moreover,
USB had been named the new trustee of the Trust on September
6, 2011, approximately two weeks before the complaint
initiating this action was filed.
The
Shepherds
thereafter
filed
an
answer
and
counterclaims,
asserting,
as
amended,
claims
of
negligence
and
wantonness, trespass, slander of title, and breach of
contract. The gravamen of their counterclaims was that they
had executed a mortgage encumbering Parcel 2, that a
Section 6-6-540 provides:
6
"When any person is in peaceable possession of
lands, whether actual or constructive, claiming to
own the same, in his own right or as personal
representative or guardian, and his title thereto,
or any part thereof, is denied or disputed or any
other person claims or is reputed to own the same,
any part thereof, or any interest therein or to hold
any lien or encumbrance thereon and no action is
pending to enforce or test the validity of such
title, claim, or encumbrance, such person or his
personal
representative
or
guardian,
so
in
possession, may commence an action to settle the
title to such lands and to clear up all doubts or
disputes concerning the same."
12
1140376, 1140450
substitute mortgage had then been filed without their
knowledge encumbering Parcel 3, that a foreclosure had been
noticed for Parcel 2 but the foreclosure deed had purported to
convey Parcel 3, and that "LaSalle" had subsequently
"exercised possession over Parcels 1, 2, and 3, even though
LaSalle never had any interest in Parcels 1 or 2, and despite
the invalidity of the foreclosure as to Parcel 3."
USB thereafter obtained Alabama counsel and, on December
10, 2012, filed an amended complaint that was eventually
accepted by the trial court. That amended complaint
identified the plaintiff as USB, acting as trustee for the
Trust, and noted that USB was the successor in interest to
BOA, which was the successor by merger to LaSalle Bank, which
had initially acted as trustee for the Trust. The amended
complaint further alleged three counts, each providing an
alternative basis for the trial court to grant the Trust clear
title to Parcels 1 and 2. The first count was an amended
version of the claim made in the initial complaint asking the
court to quiet title pursuant to § 6-6-540. However, this
time USB sought to quiet title only to Parcels 1 and 2 –– not
Parcel 3 –– and USB accordingly named Citizens State Bank as
13
1140376, 1140450
a defendant based on any interest it might claim in Parcel 2
as a result of the mortgage executed by the Shepherds
encumbering Parcel 2 in December 2001.
The second count set forth in the amended complaint asked
the trial court to enter a judgment pursuant to § 6-6-220 et
seq., Ala. Code 1975, declaring that the Shepherds' December
2003 mortgage and the subsequent foreclosure deed obtained
after that mortgage was foreclosed upon encompassed Parcels 1
and 2, because, USB claimed, that was the intent of the
parties and any error in the documents indicating otherwise
was the product of the mutual mistake of the parties and/or a
scrivener's error. The third count asserted by USB asked the
trial court to reform the legal descriptions of the property
subject to the December 2003 mortgage and resulting
foreclosure deed pursuant to § 35-4-150 et seq., Ala. Code
1975, inasmuch as, USB alleged, it was the intent of the
Shepherds to convey, and H&R Block to receive, an interest in
Parcels 1 and 2 at the time the December 2003 mortgage was
executed and any failure of the document to reflect that
intent was the result of a mutual mistake and/or a scrivener's
error.
14
1140376, 1140450
On July 22, 2013, USB moved the trial court to enter a
summary judgment on its reformation claim and to dismiss the
Shepherds' counterclaims. USB simultaneously filed a motion
noting that it was renouncing any claim to Parcels 2 or 3 and
that, accordingly, Citizens State Bank should be dismissed as
a defendant; accordingly, on July 31, 2013, the trial court
dismissed Citizens State Bank from the case. The Shepherds
thereafter stated that they did not oppose the dismissal of
their negligence, slander-of-title, and breach-of-contract
claims, and, on October 10, 2013, the trial court dismissed
those claims, while denying USB's request for a judgment as a
matter of law in its favor on any other claims.
On December 19-20, 2013, the trial court conducted a two-
day nonjury trial on USB's claims and the Shepherds'
wantonness and trespass claims. On August 12, 2014, the trial
court entered a 17-page judgment in favor of the Shepherds on
all counts. The trial court specifically declined to reform
the December 2003 mortgage because, it reasoned, there was no
mutual mistake inasmuch as the Shepherds and H&R Block were
both aware at the time the mortgage was executed that the
included legal description of encumbered property described
15
1140376, 1140450
Parcel 2. The trial court did not specifically address USB's
arguments invoking § 6-6-540 or requesting a declaratory
judgment, but those claims were broadly denied as well.
With regard to the Shepherds' counterclaims, the trial
court held that the Shepherds had proven their trespass claim
inasmuch as the Trust's agents had taken possession of Parcel
1 in September 2007 without any legal right to do so. It
further held that the Shepherds had proved their wantonness
claim and that the conduct of the various parties toward the
Shepherds "was knowing, intentional, malicious and was
done in
conscious and deliberate disregard, causing damage to the
Shepherds." Accordingly, the trial court awarded the
Shepherds $80,000 in compensatory damages based on the loss of
their residence, $150,000 for mental anguish suffered by
Chester, $750,000 for mental anguish suffered by Emily, and an
additional $2,940,000 in punitive damages. This combined
$3,920,000 judgment was entered in favor of the Shepherds and
against USB as trustee of the Trust, but also against BOA and
LaSalle Bank, although not as trustee.
On September 11, 2014, USB moved the trial court pursuant
to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate its
16
1140376, 1140450
judgment or, in the alternative, to order a new trial or to
remit the damages. That motion argued that the trial court
had committed various errors in the August 12 judgment with
regard to the findings of fact, the conclusions of law, and
the damages award; however, it also argued that the trial
court had erred in entering judgment against BOA and LaSalle
Bank. Following a November 14, 2014, hearing, the trial court
denied USB's motion on December 10, 2014.
Sometime in late November 2014, BOA became aware of the
judgment entered against it when the Shepherds initiated
garnishment proceedings against it. On December 4, 2014, BOA
moved the trial court to set aside the judgment against it and
LaSalle Bank pursuant to Rule 60(b), Ala. R. Civ. P., inasmuch
as, BOA claimed, neither it nor LaSalle Bank had ever owned or
serviced the Shepherds' mortgage and neither was ever served
with process or made a party to the underlying action.
Essentially, BOA argued, it was involved in this case only
because the original complaint had erroneously listed LaSalle
Bank as trustee of the Trust, even though the amended
complaint had then noted that USB was the actual trustee of
the Trust, having succeeded BOA in that position before the
17
1140376, 1140450
complaint was filed, and that BOA had itself succeeded LaSalle
Bank as trustee following its acquisition of LaSalle Bank. On
January 27, 2015, the trial court denied BOA's motion.
USB filed its notice of appeal on January 15, 2015,
challenging the judgment entered by the trial court (docketed
as appeal no. 1140376). BOA filed its own notice of appeal on
February 3, 2015 (docketed as appeal no. 1140450). On March
25, 2015, this Court granted USB and BOA's joint motion to
consolidate the appeals.
II.
This case was decided by the trial court without a jury.
This Court has described the standard of review it generally
applies to a judgment entered following a bench trial as
follows:
"'[W]hen
a
trial
court
hears
ore
tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.' Philpot
v. State, 843 So. 2d 122, 125 (Ala. 2002). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083,
1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.
2d 77, 79 (Ala. 1985)). 'Additionally, the ore
tenus rule does not extend to cloak with a
presumption
of
correctness
a
trial
judge's
18
1140376, 1140450
conclusions of law or the incorrect application of
law to the facts.' Id."
Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).
III.
On appeal, USB and BOA make a number of arguments;
however, we first consider USB's argument that the trial court
should have reformed the December 2003 mortgage to reflect the
true intent of the parties to that document that it encumber
Parcel 1 as opposed to Parcel 2. Section 35-4-153, Ala. Code
1975, sets forth the applicable law; it provides:
"When, through fraud, or a mutual mistake of the
parties, or a mistake of one party which the other
at the time knew or suspected, a deed, mortgage, or
other conveyance 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, insofar as this can be
done without prejudice to rights acquired by third
persons in good faith and for value."
This Court has further explained that reformation of a deed or
mortgage pursuant to § 35-4-153 is appropriate only when
there is "[c]lear, convincing, and satisfactory" evidence
indicating that the conveyance does not truly express the
parties' intent. Mullinax v. Mullinax, 495 So. 2d 646, 648
(Ala. 1986). See also Beasley v. Mellon Fin. Servs. Corp.,
569 So. 2d 389, 394 (Ala. 1990) ("In order to reform a deed
19
1140376, 1140450
pursuant to the statute so as to express the intentions of the
parties thereto, the party seeking reformation has the burden
of proving with clear, convincing, and satisfactory evidence
that the intention he seeks to substitute was that of both
parties."). We further note that § 35-4-151, Ala. Code 1975,
provides that a party bringing a reformation action is
"entitled" to reformation once evidence of intent is
established.
In this case, there was unambiguous testimony from all
the parties to the December 2003 loan establishing that they
intended for the December 2003 mortgage to encumber only
Parcel 1, the lot containing the Shepherds' residence.
Muncher, the H&R Block loan officer who handled the Shepherds'
mortgage application, testified as follows when questioned by
counsel for USB:
"Q:
In terms of the refinance loan, do you have an
understanding of what the mortgage was intended
to encumber?
"A:
What, in terms of paying off their ––
"Q:
What ––
"A:
–– home loan?
"Q:
–– piece of property was being secured?
20
1140376, 1140450
"A:
Yeah. The residence. Yeah. Their primary
dwelling.
"Q:
So if the legal description on the eventual
loan that is executed didn't encumber their
dwelling house, would that be an error?
"A:
Absolutely."
When questioned by counsel for USB, Chester also repeatedly
testified that it was his intent that the December 2003
mortgage encumber Parcel 1:
"Q:
Now would it also be fair to say that it was
you and your wife's intent that that mortgage
covered the house and lot?
"A:
Correct.
"....
"Q:
What you and your wife wanted to do was to fix
that mortgage so it would cover the house and
lot?
"A:
Oh, yes. That's what we intended to.
"....
"Q:
That's what you wanted to do, is to change the
–– or to correct that so that as opposed to the
beauty shop, it was on the house and lot?
"A:
That's –– that was my intention, was to
mortgage the lot and the house.
"Q:
And that intention continued on forward?
"A:
Correct. That's what I wanted to get done,
seen about.
21
1140376, 1140450
"....
"Q:
But the intention has never changed that that
mortgage covered the house and lot; isn't that
correct?
"A:
That's right."
Subsequently,
Emily
confirmed
Chester's
testimony
when
counsel
for USB asked her about her intent at the time she executed
the December 2003 mortgage:
"Q:
Is it fair to say that when you closed the 2003
mortgage in December of 2003, that it was your
intention that that mortgage cover the house
and the lot that you all lived in?
"A:
The house. Yes.
"Q:
Is it your intention that it did not or should
not have covered the beauty shop; is that fair?
"A:
Yes.
"Q:
It's your intention it should not have covered
the pasture land?
"A:
Yes.
"Q:
So it was for the house and lot?
"A:
Yes."
Thus, it is undisputed that both H&R Block and the
Shepherds intended for the December 2003 mortgage to encumber
Parcel 1 rather than Parcel 2. However, in spite of this
clear, convincing, and satisfactory evidence indicating that
22
1140376, 1140450
the December 2003 mortgage did not "truly express the
intention of the parties," § 35-4-153, the trial court
declined to reform the December 2003 mortgage because, at the
time of execution, the parties were cognizant that the
property described in the attached legal description was
Parcel 2. Thus, the trial court concluded, there was no
mutual mistake and § 35-4-153 could not be invoked to reform
the December 2003 mortgage. In support of this analysis, the
trial court cited Beasley, in which this Court stated:
"Where the sole ground for reformation is mistake,
the mistake must be mutual as to all of the parties,
but only in the sense that they must all have agreed
to the same terms and have mistakenly assumed that
those
terms
were
properly
expressed
in
the
instrument."
569 So. 2d at 394. The Shepherds argue that nobody
"mistakenly assumed" that the legal description in the
December 2003 mortgage referred to Parcel 1; rather, they
argue, everybody had actual knowledge that the property
described was Parcel 2 even though they intended for the
property described to be Parcel 1. Thus, they argue,
reformation was not appropriate and the trial court correctly
declined to apply § 35-4-153.
23
1140376, 1140450
Section 35-4-153 allows for the reformation of a mortgage
"when, through ... a mutual mistake of the parties, ... a ...
mortgage ... does not truly express the intention of the
parties." In this case, it is undisputed that a mistake was
made –– the preparer of the December 2003 mortgage erroneously
attached a legal description of Parcel 2 to the document when
it is undisputed that the parties intended the mortgage to
encumber Parcel 1, and the attached legal description should
have described that property. Where this case differs from
the "typical" reformation scenario, however, is that the
parties
apparently
recognized
the
mistake
before
executing
the
mortgage, but nevertheless executed it with the intent of
correcting the legal description later. The question
accordingly becomes whether, if H&R Block and the Shepherds
executed the December 2003 mortgage with full knowledge of
that mistake, there was, in fact, any mistake at all. We
conclude that, in this unique circumstance, there was still a
mistake such that reformation under § 35-4-153
is
appropriate.
This Court has stated that, "[i]n construing a contract,
the primary concern of the court is to ascertain the true
intent of the parties." Gwaltney v. Russell, 984 So. 2d 1125,
24
1140376, 1140450
1131 (Ala. 2007). In this case, the true intent of all the
parties has been made manifest by clear and direct testimony,
and it is undisputed that all parties to the December 2003
loan intended for the mortgage to encumber Parcel 1. That was
the agreement the parties had made, and the December 2003
mortgage failed to clearly capture that intent only because of
a mistake by the preparer. In Beasley, this Court explained:
"Where the reformation is based on mistake, the
existence of a valid agreement to which the
instrument can be made to conform is essential. The
trial court cannot make the instrument express a new
contract for the parties. Rather, the principle on
which reformation is based is clear –– if the intent
of the parties was to convey the property actually
described, but the parties were induced to enter
into the agreement by a mistake as to the extent or
nature of the contract, there can be no reformation;
however, 'if the intent was to convey the property
as it was known to exist, but the mistake was in the
description, reformation is proper.' McClintock on
Equity, Ch. 8, § 95 at 258 (1948). (Emphasis
added.) Such an error establishes mutuality of
mistake, and, when one seeks reformation it is
immaterial who employed the draftsman."
569 So. 2d at 393-94. Nobody disputes that in this case the
Shepherds intended to convey to H&R Block a security interest
in Parcel 1, but there was a mistake in the legal description
of the property. Therefore, because "'the intent was to
convey the property as it was known to exist, but the mistake
25
1140376, 1140450
was in the description, reformation is proper.'" Id. Although
Beasley elsewhere indicates that reformation is proper only
when the parties have "mistakenly assumed" that their agreed-
upon terms were properly expressed in the document effecting
the conveyance, 569 So. 2d at 394, nothing in the language of
§ 35-4-153 prevents reformation merely because the parties
were all aware of the mistake in the executed document. The
determining factor is still the parties' intent, and even at
the time the Shepherds and H&R Block were executing the
December 2003 mortgage fully aware that the legal description
of the encumbered property mistakenly described Parcel 2, it
is undisputed that their intent was to encumber Parcel 1 and,
in fact, that they thereafter acted as if Parcel 1 were the
encumbered property. To decline reformation under these
circumstances would require this Court to ignore the
undisputed facts and, instead, to effectively enforce a new
agreement the parties never made or desired.
Having
concluded
that
USB
established
by
clear,
convincing, and satisfactory evidence that it was entitled to
reformation of the December 2003 mortgage to reflect the
undisputed true intent of the parties to the December 2003
26
1140376, 1140450
loan, we turn to the judgment entered on the Shepherds'
trespass and wantonness claims. In Boyce v. Cassese, 941 So.
2d 932, 945 (Ala. 2006), this Court stated:
"A trespass to property is a wrong against the right
of possession or entry. Jefferies v. Bush, 608 So.
2d 361, 362 (Ala. 1992); AmSouth Bank v. City of
Mobile, 500 So. 2d 1072 (Ala. 1986). If a party
enters property or possesses property under a legal
right, entry or possession pursuant to that right
cannot constitute a trespass."
In Sharpe v. Wells Fargo Home Mortgage (In re Sharpe), 391
B.R. 117, 159-61 (Bankr. N.D. Ala. 2008), the United States
Bankruptcy Court for the Northern District of Alabama further
considered Alabama law regarding a mortgagee's right to take
possession
of
mortgaged
property
after
the
borrower's
default,
explaining:
"Researching possession in the context of a
mortgage is complicated under Alabama law because of
references in older cases to mortgages where the
collateral was personal property not real property.
Historically chattel mortgages were common and
possession upon default in those situations involved
a right to possess the personal property. There is
however one case that appears to have established
the same general rule for both types of property.
The opinion in Harmon v. Dothan Nat. Bank, 186 Ala.
360, 64 So. 621 (1914) includes:
"'Under the theory of mortgages prevailing
in this state, nothing can be clearer than
the proposition that after default the
legal title of the mortgagee is perfect.
27
1140376, 1140450
Indeed, foreclosure adds nothing to the
legal title, and its only office and value
is to cut off the equity of redemption.
The mortgagee's legal title carries, of
course, the right of possession, and, in
the case of chattels, possession taken by
the mortgagee after default leaves in the
mortgagor no interest except an equity of
redemption –– which is cognizable and
enforceable only in a court of equity.'
"[186 Ala. at 363, 64 So.] at 622.
"The above is clarified in Moorer v. Tensaw Land
& Timber Co., 246 Ala. 223, 20 So. 2d 105 (1944).
The opinion there includes:
"'A mortgage effective at law passes the
legal title to the mortgagee, who is
entitled to the immediate possession of the
land even before default, unless it is
provided in it (or by separate instrument)
that the possession shall remain in the
mortgagor. ...'
"[246 Ala.] at 227, 20 So. 2d 105.
"....
"...
Upon
the
plaintiffs'
default,
the
defendant
had a right to possession of the property. Because
it had a right to possession, it could not be guilty
of trespass, whether direct or indirect."
(Footnotes omitted.) The undisputed evidence in this case
similarly establishes that the Shepherds were in default at
the time the Trust's agents allegedly trespassed onto Parcel
1. The December 2003 mortgage explicitly provides that "[i]f
28
1140376, 1140450
Borrower fails to perform the covenants and agreements
contained in this security instrument ... then Lender may do
and pay for whatever is necessary to protect the value of the
Property and Lender's rights in the Property." This provision
surely entails the right to enter and to secure the subject
property. Because the Trust had a right to possession of
Parcel 1 at the time of the alleged trespass, it could not be
guilty of trespass. The trial court's judgment in favor of
7
the Shepherds on their trespass claim is accordingly due to be
reversed. Boyce, 941 So. 2d at 945.
The Shepherds' wantonness claim similarly was based in
large part on actions the Trust's agents took that were lawful
and appropriate based on the Shepherds' default and the
Trust's security interest in Parcel 1. In its order entering
judgment, the trial court described the Shepherds' wantonness
claim as follows:
"The Shepherds have asserted a claim of
wantonness based on the actions of the Bank. After
This is true even though the December 2003 mortgage had
7
not been reformed at that time. We have held in this opinion
that USB is entitled to reformation of the December 2003
mortgage, and reformation, once granted, is "effective as of
the date of the instrument to be reformed." Monroe v. Martin,
726 So. 2d 701, 703 (Ala. Civ. App. 1998) (citing Beason v.
Duke, 246 Ala. 387, 389, 20 So. 2d 717, 718 (1945)).
29
1140376, 1140450
it was on notice, the Bank had a duty to stop
foreclosure; not take possession; cooperate and
communicate with the Shepherds to cure the title
problems; allow a sale to avoid foreclosure; put the
Shepherds back into possession; cease efforts to
sell the residence; and not cloud the title to other
parcels of the Shepherds' property."
As explained above, however, once the Shepherds defaulted,
the
Trust did have the right to foreclose on Parcel 1, to take
possession of Parcel 1, to block the Shepherds from possessing
Parcel 1, and to attempt to sell Parcel 1. Those actions were
within the Trust's rights as mortgagee, and it accordingly
cannot be liable for wantonness based on those actions.
Moreover, to the extent the trial court held that the
Shepherds had proven their wantonness claim based on the
actions of the Trust that clouded the title to other parcels
of property owned by the Shepherds, this Court has rejected
the notion that such actions constitute wantonness. In
Alabama Power Co. v. Laney, 428 So. 2d 21, 22 (Ala. 1983),
this Court reversed a judgment entered on negligence and
wantonness claims in a property-dispute case, explaining that
"[a] review of Alabama law shows that this state does not
afford a cause of action for any negligence or wantonness in
30
1140376, 1140450
asserting claim of title to real property in a boundary line
dispute." The Laney Court further explained:
"Each property owner has a perfect legal right to
protect his title. Therefore, this Court finds that
there is no reason to create a new cause of action
recognizing a legal duty to not assert or claim
ownership to real property that is owned or claimed
by another. Adequate remedies exist for landowners
damaged by assertions of claim by another without
the recognition of a new cause of action.
"For example, actions for slander of title are
brought under section 6–5–211, Code 1975, which
states, 'The owner of any estate in lands may
commence an action for libelous or slanderous words
falsely and maliciously impugning his title.' The
language of this statute makes it clear that it was
enacted with situations such as this case in mind."
428 So. 2d at 23. Although this is not a boundary-line-
dispute case, the same logic applies. If the Shepherds
believed the actions of the Trust clouded the title to their
other property, they could have pursued a slander-of-title
claim. The Shepherds did initially assert such a claim, but
they thereafter consented to its dismissal. Under Laney,
however, they could not continue to pursue a slander-of-title
claim under the guise of a wantonness claim.
The last basis put forth by the trial court for entering
a judgment in favor of the Shepherds on their wantonness claim
is that the Trust breached a duty to "cooperate and
31
1140376, 1140450
communicate with the Shepherds to cure the title problems."
With regard to this specific claim, and, indeed, all the other
wantonness claims previously discussed as well, we note that
the relationship between the Shepherds and the Trust is based
upon the mortgage and is therefore a contractual one; that is
to say, "the duties and breaches alleged by [the Shepherds]
clearly would not exist but for the contractual relationship
between the parties." Prickett v. BAC Home Loans, 946
F.Supp.2d 1236, 1244 (N.D. Ala. 2013). This Court has held
that the proper avenue for seeking redress when contractual
duties are breached is a breach-of-contract claim, not a
wantonness claim. See, e.g., Barber v. Business Prods. Ctr.,
Inc., 677 So. 2d 223, 228 (Ala. 1996), overruled on other
grounds by White Sands Grp., LLC v. PRS II, LLC, 32 So. 3d 5
(Ala. 2009). Following this principle, federal courts
applying Alabama law have repeatedly rejected attempts to
assert wantonness claims based on a lender's actions handling
and servicing a mortgage once the mortgage is executed. For
example, in James v. Nationstar Mortgage, LLC, 92 F.Supp.3d
1190, 1198-1200 (S.D. Ala. 2015), the United States District
Court for the Southern District of Alabama stated:
32
1140376, 1140450
"As defendants correctly point out in their
motion, a veritable avalanche of recent (and
apparently unanimous) federal precedent has found
that no cause of action for negligent or wanton
servicing of a mortgage account exists under Alabama
law. See, e.g., Ott v. Quicken Loans, Inc., [No.
2:13-CV-441-WHA] (M.D. Ala. Jan. 20, 2015) ('Alabama
law recognizes no such form of action in this
context. Specifically, there is an emerging
consensus that Alabama law does not recognize a
cause of action for negligent or wanton mortgage
servicing.') (citations and internal quotation marks
omitted); Branch Banking and Trust Co. v. EBR
Investments LLC, [No. 2:14-CV-01578-WMA] (N.D. Ala.
Jan. 16, 2015) ('Numerous federal courts, including
the undersigned, have concluded that Alabama law
does not recognize a cause of action for negligent
or wanton mortgage servicing.') (citations and
internal quotation marks omitted); Alverson v. PNC
Bank, [No. 14-00387-CB-B] (S.D. Ala. Dec. 15, 2014)
('Alabama law does not recognize a tort-like cause
of action for breach of a duty created by contract,
at least not between the parties to a contract;
therefore, a mortgagor cannot maintain a cause of
action against ... a mortgagee for negligent or
wanton servicing of a mortgage contract.').
"The point is simple. Every single one of these
cases (and many others not cited herein) rejects the
availability of negligence and wantonness claims
under Alabama law under comparable circumstances to
those identified by the [plaintiffs]. Every one of
these cases undercuts the legal viability of [the
plaintiffs' negligence and wantonness claims], and
rejects the very arguments articulated by the
[plaintiffs] in opposing dismissal of those causes
of action. ... This ground having been thoroughly
and exhaustively plowed in the aforementioned case
authorities, no constructive purpose would be served
by re-plowing it here. Suffice it to say that the
Court agrees with these decisions' construction of
Alabama law, and particularly their recognition that
33
1140376, 1140450
the mortgage servicing obligations at issue here are
a creature of contract, not of tort, and stem from
the underlying mortgage and promissory note executed
by the parties, rather than a duty of reasonable
care generally owed to the public. To the extent
that the [plaintiffs] seek to hold defendants liable
on theories of negligent or wanton servicing of
their mortgage, [those negligence and wantonness
claims] fail to state claims upon which relief can
be granted."
(Footnotes omitted.) The James court has correctly stated
Alabama law as it applies to claims alleging that lenders have
acted wantonly with regard to servicing and handling
mortgages. We further note that, in this case, the December
2003 mortgage specifically discusses the correction of
clerical errors and provides that "Borrower further agrees
that Lender will not be liable to Borrower for any damages
incurred by Borrower that are directly or indirectly caused by
any such error." For all these reasons, the trial court
8
erred by entering a judgment in favor of the Shepherds on
their wantonness claim.
IV.
USB also notes that, although the Shepherds are claiming
8
that they were damaged by the Trust's extended failure to
cooperate in curing the title problems, the Shepherds had the
same legal rights as the Trust and could have taken action to
reform the December 2003 mortgage or quiet title to their
property at any time without regard to the Trust's cooperation
or lack thereof. (Trust's reply brief, pp. 18-19.)
34
1140376, 1140450
Having concluded that the Trust established that it was
entitled to have the December 2003 mortgage reformed to
express the true intent of the parties to the December 2003
transaction, it is unnecessary to consider the other bases for
relief asserted by USB, including its arguments concerning
the
amount of mental-anguish and punitive damages awarded by the
trial court. Moreover, because the $3,920,000 judgment
entered in favor of the Shepherds on their trespass and
wantonness claims is due to be reversed, it is also
unnecessary to consider whether it was proper for the trial
court to enter that judgment against BOA and LaSalle Bank.
The trial court's judgment is reversed and the cause
remanded for the trial court to enter a judgment reforming the
December 2003 mortgage consistent with the intent of the
parties to the December 2003 transaction as established by the
undisputed evidence at trial and for any other proceedings
consistent with this opinion.
1140376 –– REVERSED AND REMANDED.
1140450 –– REVERSED AND REMANDED.
Parker, Shaw, and Wise, JJ., concur.
Moore, C.J., concurs in the result.
35 | November 20, 2015 |
23b5cfbc-ee7d-4c77-8e9b-47d88c3f9a90 | Butler v. Butler | N/A | 1140683 | Alabama | Alabama Supreme Court | rel: 09/18/2015
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, 2015
____________________
1140683
____________________
Larry Franklin Butler, individually and as executor of the
Estate of Elizabeth S. Butler
v.
Hayden Reid Butler et al.
Appeal from Elmore Circuit Court
(CV-14-900088)
STUART, Justice.
Larry Franklin Butler, individually and as executor of
the Estate of Elizabeth S. Butler, appeals the judgment of the
Elmore Circuit Court declaring void the will of Elizabeth S.
1140683
Butler executed on October 8, 2012, and setting aside the
Elmore Probate Court's admission of that will to probate.
Facts and Procedural History
Ned N. Butler, Sr. ("Ned"), and Elizabeth S. Butler
("Betty") were married and had three children, Ned N. Butler,
Jr. ("Ned Jr."), Steve Butler, and Michael Robin Butler
("Robin"). Ned Jr. had three children: Angela Butler Miller,
Ned N. Butler III, and Hayden Reid Butler (hereinafter
referred to collectively as "Ned Jr.'s children"). Steve had
three children: Michael Steven Butler, Elizabeth Virginia
Butler, and Kami Britton Butler. Robin had three children:
Larry Franklin Butler, Matthew Butler, and Cody Butler.
In July 2008, after numerous discussions about their
estate, Ned and Betty executed a document entitled The Butler
Family Trust, a joint revocable living trust that contained
provisions for the well being of themselves, their children,
and their grandchildren. Specifically, the trust
provided
for
the distribution of assets while Ned and Betty were alive, for
when one spouse survived the other, and for when both spouses
were deceased. Article 4, § 1(d), which is entitled "Amend or
Revoke the Trust," provided:
2
1140683
"We [Ned and Betty] shall have the absolute right to
amend or revoke our trust, in whole or in part, at
any time. Any amendment or revocation must be in
writing, signed by both of us, and delivered to our
Trustee.
"This right to amend or revoke is personal to us and
may not be exercised by a legal representative of
either of us. After the death of one of us, this
agreement shall not be subject to amendment or
revocation."
On that same day, Ned and Betty executed wills identical
in all material respects that provided that their assets pour
over into The Butler Family Trust at their deaths. The wills
of Ned and Betty are referenced in Article 18, § 8(g), of The
Butler Family Trust:
"We are executing our wills at or about the same
time, but even though our wills are similar, they
are not intended to be, and shall not be construed
to be, contractual or reciprocal."
In September 2011, Ned and Betty executed new wills that
were virtually identical to their July 2008 wills with the
exception that different alternate executors were named.
Betty's will stated, in pertinent part:
"I, Elizabeth S. Butler, make this my Last Will
and Testament, revoking all others.
"I leave my entire estate to Trustee for The
Butler Family Trust, wherever said estate is
situated at the time of my death. I declare that
the distribution plan for assets held in said trust
3
1140683
dated July 8, 2008, as it may be amended, should be
incorporated into this Will in the event that the
trust is revoked or held invalid."
Ned died on December 7, 2011. On October 8, 2012, Betty
1
executed a will in which she expressly revoked "all other
wills, codicils or other instruments of a testamentary
character" previously executed by her and devised
certain
real
and personal property to various family members and friends.
The distribution of Betty's estate in the will differed from
the distribution of her estate as provided in The Butler
Family Trust; Larry was named executor of her will.
Betty died on December 23, 2013. The Elmore Probate
Court admitted Betty's 2012 will to probate on March 10, 2014.
The following day, Ned Jr.'s children filed a complaint in
Elmore Circuit Court against Larry, individually and as
executor of Betty's estate, contesting Betty's 2012 will. In
their complaint, Ned Jr.'s children alleged that the
admission
of the 2012 will would defeat the estate plan Ned and Betty
had put in place and that the 2012 will was contrary to the
terms of The Butler Family Trust and, consequently, was void.
On June 25, 2014, Ned's 2011 will was admitted to probate
1
by order of the Elmore Probate Court, and letters testamentary
were granted to Thomas T. Slaughter, Jr.
4
1140683
They asked the circuit court to declare Betty's 2012 will
invalid and to reverse, revoke, and set aside the probate
court's order admitting Betty's 2012 will to probate. Ned
Jr.'s children also petitioned the circuit court for removal
of Betty's estate from the Elmore Probate Court to the Elmore
Circuit Court. On March 12, 2014, the circuit court entered
an order removing Betty's estate from the probate court to the
circuit court.
On December 9, 2014, the circuit court conducted a
hearing to address the complaint contesting Betty's
2012 will.
The circuit court admitted into evidence, among other
documents, a copy of The Butler Family Trust and copies of the
various wills executed by Ned and Betty.
Thomas T. Slaughter, Jr., who assisted Ned and Betty in
their estate planning, testified that Ned and Betty created
The Butler Family Trust to preserve their assets for their
benefit while they were both alive, for the continuing benefit
of the surviving spouse, and, upon the death of the surviving
spouse, for the benefit of their children and grandchildren.
J. Knox Argo, an attorney and a neighbor of Ned and
Betty's, testified that he had talked with Betty about her
5
1140683
will and The Butler Family Trust. He stated that he had
examined The Butler Family Trust and the wills and that in his
opinion none of those documents prevented Betty from changing
her will. He testified that he had told Betty that she could
not remove any property that had been placed in The Butler
Family Trust but that she could change her will.
On December 30, 2014, the circuit court entered an order,
stating:
"[T]he Probate Court Order of Elmore County dated
March 10, 2014, in The Estate of Elizabeth S.
Butler, deceased is set aside as the Will of
Elizabeth S. Butler dated October 8, 2012, is
declared invalid as Elizabeth S. Butler was unable
by contract to execute the same due to execution of
the provision is [Article 4] Section 1(d) of The
Butler Family Trust.
"Therefore, it is ordered, that the Will of
Elizabeth S. Butler dated October 8, 2012 is
declared void and the Order of the Elmore County
Probate Court in The Estate of Elizabeth S. Butler
dated March 10, 2014, is set aside as the Will
itself is void."
Larry moved to alter, amend, or vacate the circuit
court's judgment, arguing that the circuit court erred in
applying § 43-8-250, Ala. Code 1975, to the facts of this case
because, he said, although there was language in The Butler
Family Trust prohibiting Betty from changing the trust after
6
1140683
Ned's death, there was no language in either The Butler Family
Trust or Betty's earlier wills creating a contract that
prohibited her from revoking the will she made while Ned was
living and making a new one following Ned's death. On
February 18, 2015, the circuit court denied the motion to
alter, amend, or vacate the judgment.
On March 26, 2015, Larry appealed the judgment to this
Court.
Standard of Review
"Where evidence is presented to the trial court ore
tenus, a presumption of correctness exists as to the
court's findings on issues of fact; its judgment
based on those findings of fact will not be
disturbed unless it is clearly erroneous, without
supporting evidence, manifestly unjust, or against
the great weight of the evidence. Gaston v. Ames,
514 So. 2d 877 (Ala. 1987); Cougar Mining Co. v.
Mineral Land & Mining Consultants, Inc., 392 So. 2d
1177 (Ala. 1981). However, when the trial court
improperly applies the law to the facts, no
presumption of correctness exists as to the court's
judgment. Gaston, supra; Smith v. Style Advertising,
Inc., 470 So. 2d 1194 (Ala. 1985); League v.
McDonald, 355 So. 2d 695 (Ala. 1978)."
Hart v. Jackson, 607 So. 2d 161, 162 (Ala. 1992).
Discussion
Larry contends that the circuit court erred in holding
that The Butler Family Trust
constituted a
contract
preventing
7
1140683
Betty from revoking her September 2011 will. Specifically, he
argues that the language in Article 4, § 1(d), of The Butler
Family Trust does not satisfy the requirements of § 43-8-250
because, he says, § 43-8-250 applies to wills and not to
trusts.
Section 43-8-250 provides, in pertinent part:
"A contract ... not to revoke a will or devise,
... if executed after January 1, 1983, can be
established only by:
"(1) Provisions of a will stating material
provisions of the contract;
"(2) An express reference in a will to a
contract and extrinsic evidence proving the terms of
the contract; or
"(3) A
writing
signed
by
the
decedent
evidencing
the contract.
"The execution of a joint will or mutual wills does
not create a presumption of a contract not to revoke
the will or wills."
As the Court of Civil Appeals stated in Bowers v. Bell,
57 So. 3d 130, 135 (Ala. Civ. App. 2010):
"[T]he plain language of § 43-8-250 states that a
contract to make a will [or not to revoke a will or
devise] can only be established by proof satisfying
subparagraphs (1), (2), or (3) of that statute.
When plain language is used in a statute, a court is
bound to interpret that language to mean exactly
what it says. See IMED Corp. v. Systems Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)."
8
1140683
Section 43-8-250(1) requires that there be a will
"stating material provisions of the contract." Betty's 2011
will does provide that if The Butler Family Trust is revoked
or held invalid the distribution plan for assets provided in
the trust shall be incorporated into the will. This
declaration,
however,
does
not
set
forth
"material
provisions"
of a contract wherein Betty agreed not to revoke her will or
a devise. Therefore, Betty's 2011 will does not contain proof
of a contract not to revoke her will or a devise, and § 43-5-
250(1) is not satisfied.
Section 43-8-250(2) requires that there be "[a]n express
reference in a will to a contract and extrinsic evidence
proving the terms of the contract." A reading of Betty's 2011
will establishes that the will does not contain any express
reference to a contract not to revoke the will or a devise.
Therefore, Betty's 2011 will does not provide proof of a
contract not to revoke a will or devise as provided in § 43-8-
250(2).
Section 43-8-250(3) requires that there be "[a] writing
signed by the decedent evidencing the contract." The Butler
Family Trust is a contract, and the trust, with the exception
9
1140683
of the provision that Ned's and Betty's wills "are not
intended to be, and shall not be construed to be, contractual
or reciprocal," does not contain any language, express or
implied, that prohibits Betty from revoking her will.
Although the trust evidences a thorough estate plan, provides
specific instructions with regard to the distribution of the
assets in the trust, and provides that, after the first spouse
dies, the surviving spouse cannot amend or revoke the trust,
nothing in the language in the trust restricts Ned or Betty
while both are living or after one dies from revoking his or
her will and changing the distribution of his or her estate.
Therefore, The Butler Family Trust does not provide proof of
a contract to not revoke a will or devise as provided in § 43-
8-250(3).
Because the evidence does not establish that Betty
entered into a contract not to revoke her will or a devise,
the circuit court's judgment declaring Betty's 2012 will to be
void and setting aside the probate court's order to admit that
will to probate because Betty had executed a contract not to
revoke her 2011 will is erroneous.
Conclusion
10
1140683
Based on the foregoing, the judgment of the circuit court
is reversed, and this case is remanded for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Parker, Shaw, and Wise, JJ., concur.
11 | September 18, 2015 |
d813abcc-58b4-4e25-b6ac-dcd64e82f469 | Cooper v. Ziegler | N/A | 1140303 | Alabama | Alabama Supreme Court | Rel:09/18/2015
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, 2015
____________________
1140303
____________________
John R. Cooper, in his official capacity as director of the
Alabama Department of Transportation
v.
Eddie Ziegler et al.
Appeal from Montgomery Circuit Court
(CV-14-901071)
BOLIN, Justice.
John R. Cooper, in his official capacity as director of
the Alabama Department of Transportation ("ALDOT"), appeals
from the Montgomery Circuit Court's December 16, 2014, order
1140303
enjoining him from prohibiting Eddie Ziegler, Lisa Ziegler
Player,
Jennifer
Ziegler Cousins,
Angela
Gay
Ziegler
Bracknell,
and
Cathy
Donaldson
(hereinafter
sometimes
referred
to collectively as "the Zieglers"), from obtaining legal
permits to build seven to eight houses on the Zieglers'
property or from otherwise interfering with the Zieglers'
plans and likewise enjoining Cooper from withholding consent
for the building of those houses in the event the Zieglers
obtain the required permits. Because we find that Cooper is
entitled to sovereign immunity, we reverse and remand.
I. Facts and Procedural History
This appeal involves real property located in Montgomery
County on what is referred to by the parties as the Interstate
65 Peninsula ("the peninsula"), which runs underneath and
alongside a portion of Interstate 65; the peninsula lies in
the floodplain of the Alabama River. In 1971, ALDOT condemned
approximately 290 acres of the peninsula for the construction
of a portion of the Interstate 65 structure--the roadway, 10
relief bridges, and the Alabama River Bridge. The
condemnation order, which was entered by the
Montgomery
County
Probate Court on February 2, 1971, also included a protective
2
1140303
easement, perpetual in nature, in favor of ALDOT on
approximately 1,700 acres of the peninsula, the purpose of
which was to protect the Interstate 65 structure from future
flood-damage risks. According to the record, the Interstate
65 structure was strategically placed on the peninsula based
on the records from a flood in 1961; the last major flood was
in 1990. There are 15 tracts of property over which the
Interstate 65 structure crosses that are encumbered by the
easement. The Zieglers and their predecessors in title have
owned, for over 60 years, one of those tracts of property,
which consists of approximately 480 acres. Pursuant to the
1971 condemnation order, the Zieglers' predecessors in title
were compensated by ALDOT for the easement over their
property.
Section I of the easement describes specific activities
that ALDOT has the right to prohibit where deemed necessary to
protect the integrity of the Interstate 65 structure; section
II lists the purposes for the easement; and section III
describes those rights that are expressly reserved in the
landowners, including the right of immediate reverter in the
event a specific flood-control project comes into existence
3
1140303
that would render the rights and easements unnecessary for the
protection of the Interstate 65 structure. The easement reads
as follows:
"I. A PERPETUAL AND ASSIGNABLE EASEMENT in,
over, upon and across the property hereinafter
described for the establishment and use as a
restricted area in, on, over and across Tract No. 8
of Project No. I-65-1(49), Montgomery County,
Alabama, which property is further described more
particularly hereinafter, consisting of the right to
prohibit where deemed necessary by [ALDOT] to
protect said interstate highway in, on, over, upon,
under and across said property:
"(1) The filling, excavation and/or removal of
soil, including sand and gravel, or minerals which
may exists on or below the surface of the ground,
except minerals such as oil or gas which may be
removed by drilling. Exploratory investigation is
prohibited
except
upon
written
permission
of
[ALDOT].
"(2) Any act or use of the land that would
result in the destruction and/or removal of trees,
foliage and plants of natural growth except upon the
written permission of [ALDOT], and except as
hereinafter provided, and also:
"The right to prohibit in, on, over, upon, under
and across said property:
"(3) The erection of billboards, signs or any
form of commercial advertising.
"(4) The establishment of junkyards as defined
in Title 23, Sec. 64(7), Code of Alabama, or the
dumping of trash, rubbish, garbage, junk, offal, and
unsightly or offensive materials in the area except
by written permission of [ALDOT].
4
1140303
"II. A perpetual and assignable easement in,
over and across the property hereinafter described
for the following purposes:
"The right to post signs indicating the nature
and extent of [ALDOT's] control; the reasonable
right of ingress over and across said lands for the
purpose of exercising the rights set forth herein:
the right to plant, locate, move or remove, destroy
or relocate any and all trees, foliage or plants of
natural growth or nursery stock wherever located to
any location, necessary for the preservation and
protection of the highway designated as Interstate
Highway 65, except as hereinafter provided, the
right to place stones, rocks, rip rap, or other
material providing slope protection or any other
protection necessary for the preservation and
protection of a highway designated as Interstate
Highway 65.
"III. The rights herein acquired by [ALDOT] are
subject and conditioned to the following rights and
interests which are expressly reserved in the
landowners, their heirs, successors and assigns:
"(1) It is expressly reserved to the landowners
herein, their heirs and assigns, the right to use
for agricultural and farming purposes, including
pasture and crop cultivation, all areas which are
shown as open land, and so designated on the
attached maps which are filed herewith and made a
part of these proceedings.
"(2) It
is
expressly
reserved
to
the
landowners,
their heirs and assigns, the right to continue to
use, to replace at their present location and to
maintain at their present location all structures
which are now in place.
"(3) It is expressly reserved to the landowners
herein, their heirs and assigns, all such rights and
privileges as may be used without interfering or
5
1140303
abridging the rights and easements hereby acquired
by [ALDOT].
"(4) The right of immediate reverter of all
rights and interests being acquired (except those
acquired in Paragraph I(3) and (4) above, should
flood control projects of such nature and magnitude
be constructed as to render the rights and easements
herein acquired unnecessary for the protection of
the highway right-of-way known as Interstate Highway
65 and all improvements thereon, from those minor
and major floods such as might occur in the future."
(Emphasis added.)
The Zieglers are desirous of building on their property
seven to eight family houses constructed on pilings, and they
requested Cooper's written permission in order to do so.
Cooper,
however,
denied
their
requests
because
building
houses
on the peninsula would require, among other things, digging,
cutting trees, and removing soil--activities that, according
to the easement, Cooper has the right to prohibit when deemed
necessary to protect the Interstate 65 structure from future
flood risks.
On June 19, 2014, the Zieglers sued Cooper in his
official capacity as director of ALDOT. The Zieglers asserted
in count I of their complaint an inverse-condemnation claim
pursuant to § 18-1A-32(a), Ala. Code 1975. They specifically
alleged in count I (1) that the Montgomery County Probate
6
1140303
Court had entered a condemnation order in 1971, granting
ALDOT's request for a protective easement over their
property;
(2) that it was never the intent of the condemnation order to
give ALDOT complete dominance over the entire 480 acres; and
(3) that the taking of the entirety of the Zieglers' real
property
for
public
use
without
formal
condemnation
proceedings
and
without
just
compensation
by
ALDOT
constituted
inverse condemnation. The Zieglers asserted in count II of
their complaint a claim for both declaratory and injunctive
relief. Specifically, they sought to enjoin Cooper from
interfering with or prohibiting their building on the
peninsula based on allegations that Cooper had acted
fraudulently, in bad faith, beyond his authority, or under a
mistaken interpretation of law in denying their requests to
build on their property. They further requested that the
circuit court enter a judgment declaring that the Zieglers
owned all rights to their entire property, subject to a
reasonable easement for ingress and egress in ALDOT.
On August 1, 2014, Cooper filed, pursuant to Rule
12(b)(1), Ala. R. Civ. P., a motion to dismiss the Zieglers'
complaint on theories of sovereign immunity, collateral
7
1140303
estoppel, and res judicata. The circuit court held a hearing
and denied Cooper's motion on December 4, 2014.
1
On December 10, 2014, the circuit court conducted a bench
trial. At the close of all the evidence, Cooper moved for a
judgment as a matter of law on the ground of sovereign
immunity, which the circuit court denied. On December 16,
2014, the circuit court entered an order finding that the
Zieglers had demonstrated the right to injunctive relief.
2
Specifically, the circuit court found:
"(1)
The
parties
stipulated
as
to
the
admissibility
of
the
Protective
Easement
(here[in]after referred to as 'Easement') governing
the [Zieglers'] property. According to the
Easement, the right to reasonable use of the
Cooper petitioned this Court for emergency mandamus
1
relief, asserting that he was entitled to sovereign immunity
pursuant to Art. I, § 14, Ala. Const. 1901. This Court, by
order, denied Cooper's petition because it appeared from the
allegations in the complaint, as well as other materials
before the circuit court, that the Zieglers had stated a valid
inverse-condemnation claim or at least
had presented issues
of
fact regarding the same. Ex parte Cooper (No. 1140241, Dec. 9,
2014), ___ So. 3d ___ (Ala. 2014)(table). See Gravemen v. Wind
Drift Owner's Ass'n, 607 So. 2d 199 (Ala. 1992)(noting that
conversion of a motion to dismiss to a motion for summary
judgment is proper where the parties file matters outside the
pleadings and those matters are not excluded by the trial
court).
Apparently
the
Zieglers
abandoned
their
inverse-
2
condemnation claim and their claim seeking declaratory relief
before this case was tried.
8
1140303
[Zieglers'] property was vested and remained in the
[Zieglers] (as successors in title), even though
[ALDOT] acquired an easement on the property that is
the subject of the [Zieglers'] complaint.
"(2) Professional engineer [David] Reed of
Goodwyn, Mills and Cawood testified that there is no
evidence that the building of homes on the
[Zieglers'] property on the Alabama River would have
a negative impact on the I-65 bridge.
"(3) [ALDOT]
presented no
evidence
to
refute
the
testimony of Reed, or any other evidence that the
building of 7 or 8 homes on the [Zieglers'] property
would have a direct, negative impact on the I-65
bridge through flood or erosion.
"....
"(6) [The Zieglers] have demonstrated the right
to injunctive relief in this case and the Court
orders as follows:
"[1.] The defendant John Cooper and all of his
representatives, employees, agents, successors and
assigns are hereby enjoined from interfering with or
prohibiting the [Zieglers] from obtaining legal
permits from the relevant permitting authorities
that are legally required for the building of 7-8
homes on the [Zieglers'] property. The foregoing
are also enjoined from withholding consent for the
building of these homes if the [Zieglers] are able
to obtain the necessary permits from the relevant
permitting authorities for building these homes.
"2.
The
[Zieglers]
will be
restricted
to
cutting
only a few trees that would be necessary to
construct these homes."
(Emphasis added.) Cooper appeals.
II. Standard of Review and Applicable Law
9
1140303
In Collins v. Rodgers, 938 So. 2d 379, 384 (Ala. 2006),
this Court stated:
"The
trial
court
entered
a
permanent
injunction,
and we review de novo the entry of a permanent
injunction. TFT, Inc. v. Warning Sys., Inc., 751
So. 2d 1238, 1241 (Ala. 1999). However, the trial
court also conducted a bench trial at which evidence
was presented ore tenus.
"'Where evidence is presented to the trial
court ore tenus, a presumption of
correctness exists as to the court's
conclusions
on
issues
of
fact;
its
determination will not be disturbed unless
it
is
clearly
erroneous,
without
supporting
evidence,
manifestly
unjust,
or
against
the
great weight of the evidence. However, when
the trial court improperly applies the law
to the facts, no presumption of correctness
exists as to the court's judgment.'
"American Petroleum Equip. & Constr., Inc. v.
Fancher, 708 So. 2d 129, 132 (Ala. 1997) (citations
omitted)."
III. Discussion
As previously indicated, the Zieglers sued Cooper in his
official capacity as director of ALDOT; the Zieglers did not
sue ALDOT. Cooper argues on appeal that the Zieglers' claim
for injunctive relief against him in his official capacity is
barred by Art. I, § 14, Ala. Const. 1901, because, he says,
the claim is, in actuality, a claim against ALDOT, the result
10
1140303
of which has stripped ALDOT of its property rights in the
protective easement. Cooper further asserts that the circuit
court was without jurisdiction to grant the Zieglers' request
for injunctive relief because, he says, the Zieglers failed to
demonstrate that Cooper acted fraudulently, in bad faith,
beyond his authority, or under a mistaken interpretation of
the law in denying their requests to build houses on their
property. Specifically, Cooper asserts that he had a duty
under the protective easement to maintain and protect the
Interstate 65 structure, that he denied the
Zieglers' requests
to build houses on their property because to do so involved
activities that are expressly prohibited by the protective
easement, and that he had the authority to enforce the
protective easement as a conduit of his duty to maintain the
Interstate 65 structure. We agree.
Section 14 states: "[T]he State of Alabama shall never be
made a defendant in any court of law or equity." It is
undisputed that ALDOT is a State agency and, as such, is
immune from suit pursuant to § 14. See Ex parte Alabama Dep't
of Transp., 764 So. 2d 1263, 1268 (Ala. 2000)("ALDOT is
clearly a State agency, and, as such, is immune from suit.").
11
1140303
Although the Zieglers did not sue ALDOT, it is well settled
that "State officers and employees, in their official
capacities and individually, are absolutely immune from suit
when the action is, in effect, one against the State."
Mitchell v. Davis, 598 So. 2d 801, 806 (Ala. 1992). In Alabama
Department of Transportation v. Harbert International, Inc.,
990 So. 2d 831, 839-40 (Ala. 2008)(abrogated in part on other
grounds by Ex parte Moulton, 116 So. 3d 1119, 1141 (Ala.
2013)), this Court stated the following well established law
regarding sovereign or State immunity:
"Section 14 provides generally that the State of
Alabama is immune from suit: '[T]he State of Alabama
shall never be made a defendant in any court of law
or equity.' This constitutional provision 'has been
described as a "nearly impregnable" and "almost
invincible" "wall" that provides the State an
unwaivable, absolute immunity from suit in any
court.' Ex parte Town of Lowndesboro, 950 So. 2d
1203, 1206 (Ala. 2006). Section 14 'specifically
prohibits the State from being made a party
defendant in any suit at law or in equity.'
Hutchinson v. Board of Trs. of Univ. of Alabama, 288
Ala.
20,
23,
256
So.
2d
281,
283
(1971).
Additionally, under § 14, State agencies are
'absolutely immune from suit.' Lyons v. River Road
Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003).
"Not only is the State immune from suit under §
14, but '[t]he State cannot be sued indirectly by
suing an officer in his or her official capacity
....' Lyons, 858 So. 2d at 261. 'Section 14
prohibits actions against state officers in their
12
1140303
official capacities when those actions are, in
effect, actions against the State.' Haley v.
Barbour County, 885 So. 2d 783, 788 (Ala. 2004). To
determine whether an action against a State officer
is, in fact, one against the State, this Court
considers
"'whether "a result favorable to the
plaintiff would directly affect a contract
or property right of the State," Mitchell
[v. Davis, 598 So. 2d 801, 806 (Ala.
1992)], whether the defendant is simply a
"conduit"
through
which
the
plaintiff
seeks
recovery of damages from the State, Barnes
v. Dale, 530 So. 2d 770, 784 (Ala. 1988),
and whether "a judgment against the officer
would directly affect the financial status
of the State treasury," Lyons [v. River
Road Constr., Inc.], 858 So. 2d [257] at
261 [(Ala. 2003)].'
"Haley, 885 So. 2d at 788. Additionally, '[i]n
determining whether an action against a state
officer is barred by § 14, the Court considers the
nature of the suit or the relief demanded, not the
character of the office of the person against whom
the suit is brought.' Ex parte Carter, 395 So. 2d
65, 67–68 (Ala. 1980).
"....
"Moreover, certain causes of action are not
barred by § 14:
"'"There are four general categories
of actions which in Aland v. Graham, 287
Ala. 226, 250 So. 2d 677 (1971), we stated
do not come within the prohibition of § 14:
(1) actions brought to compel State
officials to perform their legal duties;
(2) actions brought to enjoin State
officials
from
enforcing
an
13
1140303
unconstitutional
law;
(3)
actions
to
compel
State officials to perform ministerial
acts; and (4) actions brought under the
Declaratory Judgments Act ... seeking
construction
of
a
statute
and
its
application in a given situation. 287 Ala.
at 229–230, 250 So. 2d 677. Other actions
which are not prohibited by § 14 are: (5)
valid inverse condemnation actions brought
against
State
officials
in
their
representative capacity; and (6) actions
for injunction or damages brought against
State officials in their representative
capacity and individually where it was
alleged that they had acted fraudulently,
in bad faith, beyond their authority or in
a mistaken interpretation of law. Wallace
v. Board of Education of Montgomery County,
... 280 Ala. [635] at 639, 197 So. 2d 428
[(1967)]; Unzicker v. State, 346 So. 2d
931, 933 (Ala. 1977); Engelhardt v.
Jenkins, 273 Ala. 352, 141 So. 2d 193
(1962)."'
"Drummond Co. v. Alabama Dep't of Transp., 937 So.
2d 56, 58 (Ala. 2006) (quoting Carter, 395 So. 2d at
68) (emphasis omitted). These actions are sometimes
referred to as 'exceptions' to § 14; however, in
actuality these actions are simply not considered to
be actions '"against the State" for § 14 purposes.'
Patterson v. Gladwin Corp., 835 So. 2d 137, 142
(Ala. 2002). This Court has qualified those
'exceptions,' noting that '"[a]n action is one
against the [S]tate when a favorable result for the
plaintiff would directly affect a contract or
property right of the State, or would result in the
plaintiff's recovery of money from the [S]tate."'
Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d
867, 873 (Ala. 2004) (quoting Shoals Cmty. Coll. v.
Colagross, 674 So. 2d 1311, 1314 (Ala. Civ. App.
1995)) ...."
14
1140303
(Emphasis omitted.) Later, in Ex parte Moulton, 116 So. 3d
1119 (Ala. 2013), this Court restated the sixth "exception" to
the sovereign-immunity bar under § 14 as follows:
"(6)(a) actions for injunction brought against State
officials in their representative capacity where it
is alleged that they had acted fraudulently, in bad
faith, beyond their authority, or in a mistaken
interpretation of law, and (b) actions for damages
brought against State officials in their individual
capacity where it is alleged that they had acted
fraudulently, in bad faith, beyond their authority,
or in a mistaken interpretation of law, subject to
the limitation that the action not be, in effect,
one against the State."
116 So. 3d at 1141 (citations omitted).
The Zieglers asserted in their complaint a claim for
injunctive relief against Cooper in his official capacity as
commissioner of ALDOT based on allegations that Cooper acted
fraudulently, in bad faith, beyond his authority, or under a
mistaken interpretation of law in denying their requests to
build houses on their property. Clearly, this allegation, if
proven, would remove Cooper from the protection of § 14
immunity, and the Zieglers would be entitled to injunctive
relief. Moulton, supra. Cooper, however, maintains that his
actions in denying the Zieglers' requests to build houses on
their property were strictly in accordance with ALDOT's
15
1140303
purchased rights in the easement and were not done
fraudulently, in bad faith, beyond his authority, or under a
mistaken interpretation of the law. Specifically, Cooper
maintains that he denied the Zieglers' requests to build
houses on their property because, he says, the construction
would require digging, cutting trees, and removing soil and,
additionally, cars, boats, and other structures that tend to
accompany
waterfront
houses
could
compromise
the
Interstate
65
structure and the integrity of the peninsula in flooding
conditions by speeding up the erosion of the peninsula and
causing possible bridge failure. Accordingly, the case
proceeded to trial for the Zieglers to demonstrate that Cooper
acted fraudulently, in bad faith, beyond his authority, or
under a mistaken interpretation of law in denying their
requests to build houses on their property located on the
peninsula.
The Zieglers relied on the testimony of David Reed, a
professional
engineer
with
the
engineering
firm
Goodwyn,
Mills
and Cawood, who opined that the building of seven to eight
houses on the Ziegler property would have no significant
16
1140303
effect on the Interstate 65 structure. Reed submitted a
letter that states:
"Per your request, I have been asked to give my
opinion on the effects to the Interstate system that
would result as a consequence of the removal of some
trees and the construction of several homes on
approximately 1,200 [linear feet] of the east river
bank of the Alabama River on a 9-acre lot in Section
27 Township 17N, Range 17E, Montgomery County,
Alabama. This review of the property, flood maps
and subsequent opinion is based only on my
engineering judgment and experience. There have
been
no
hydrological
studies
commissioned
or
authorized by the property owner.
"....
"Considering all of the data recorded above and the
exact effects that removing a few trees and building
homes on pilings is obviously not a task that could
be easily done. The proof or disproof of scour
damage or erosion caused by an incremental increase
[in] flow velocities at any one of the 10 relief
bridges on I-65 falls outside the exactness of the
science. It is well known that hydrology of large,
complex, river systems is an inexact science. More,
it is a tool to be used, along with the historical
and empirical data, to predict generalized behavior
of a river basin in various conditions of weather,
i.e., flood or drought.
"Using only logic, as I have had no specific
hydrological studies done on the issue of increased
velocity at a specific point(s), in a specific
event, caused by a specific set of circumstances, I
don't believe there could be any significant effect
caused by the issue at hand. ...
"....
17
1140303
"In conclusion, I will state that my opinions are
just that. I have performed no engineering studies.
I have relied on my own expertise and knowledge,
aided by reports and publications from FEMA and the
U.S.G.S.[ ] It seems logical to conclude that even
3
a very detailed study will not have the capability
to discern tiny nuances in flow velocities or
direction of a major river flood based on what I
have observed. The construction of houses in this
area will require that they be built on pilings and
have a lowest finished floor a foot above the 100
Year Flood elevation. The county will require that
a No Rise Certification be filed on each house. The
No Rise Certification will certify that the
construction will not cause a 1-foot or more rise in
the Base Flood Elevation. The No Rise Certification
is reviewed and approved by the County Flood
Administrator."
(Emphasis added.) At trial, Reed reiterated:
"And in just determining whether you could
determine what would be the hydrologic effects of
removing trees and building a house on piers, it was
just my point and the whole letter was to show that
it would be nearly impossible to accurately describe
what would happen, whether it would have any effect
at all. My suspicion is that it would have no
effect."
(Emphasis added.)
Cooper, in turn, relied on the testimony of John Curry,
an engineer specializing in hydraulics and hydrology, who
formerly worked with ALDOT in its bridge-scour department.
Curry stated that he had performed a lot of work on the
Federal Emergency Management Agency and United States
3
Geological Survey, respectively.
18
1140303
peninsula and that he had in fact published a paper on the
peninsula. Curry explained in more detail the purpose of the
easement and the probable effects of developing the
peninsula:4
"Q. All right. The protective easement that
we're talking about here, what does the protective
easement do if, in fact, [ALDOT] maintains it,
maintains all their rights –- by that, I mean not
letting people build new houses, not letting them
dig gravel, not letting them cut a bunch of trees --
what is the purpose of all that?
"A. So really, it's to try and keep [the
peninsula] the same as it was during [the original]
design and construction. So what we have is -- this
is one of the most complex hydraulic sites in the
[United States]. I mean ..., you have different
flows that are occurring out through here ...,
you'll
have
different
impacts
if
you
have
obstructions put out in your floodplain. But the
idea is, keep it as close to what it was ... as can
be naturally possible you know. So -- and that way,
you have some protection.
"Q. Okay, so what can happen if you change the
natural setting ... when it was designed. What are
some of the things that can happen?
"A. Well, you can have increased velocities.
Increased velocities can cause accelerated erosion.
So you have faster movement of that meandering part
of the stream. You know, another thing that you can
have that's more ... of a concern up in this area
where we're talking about today is, you know, if you
As previously indicated, there are 15 tracts of property
4
affected by the easement. The Zieglers' tract encompasses
approximately 480 acres of the peninsula.
19
1140303
put source loadings up there –- source loadings
being if you have vehicles or if you have buildings,
whatever is in there that can possibly fail due to
debris building up on it and, you know, the water is
very strong and, if it pushed it over or if there
was high winds or just floated the cars down into
the ... relief bridges....
"....
"A. Cars can get caught up if they get in the
flow of the debris in general and anything can. If
it gets hung up on the pier, it causes scour. And
that's -- 60 percent of all bridges that fail [are]
due to scour.
"Q. What is scour?
"A. Scour is erosion of your foundations. And
... it's a very important aspect of bridge
inspection that has to be accounted for.
"....
"Q. And you just testified that you wrote a
paper about this particular spot in the river. What
is your opinion as to [ALDOT] not enforcing its
protective rights under this easement? Is there any
consequence to that?
"A. I absolutely think there is. So you've got
direct and indirect consequences. Of course, the
indirect is the easy one. It's ... everybody else
who's come in the past [who have sought permission
to build on the peninsula and have been denied],
seems like that's going to be a real issue. ... The
direct consequences would be we've got a river
that's 1,000 feet wide by 50 feet deep that is
headed towards the interstate. ...
"Putting anything that can be an object of
debris within the floodplain upstream would be a
20
1140303
direct impact during a flood that could come down
and get caught up on some piers.
"....
"Q. So there's a natural occurrence -- if my
understanding is right, there's a natural occurrence
that's going on with erosion out there today.
"A. Yes.
"Q. And it's going towards the interstate?
"A. Yes.
"Q. Are you saying that to develop this
peninsula with structures, cut the trees, dig gravel
pits,
et
cetera,
would
that
exacerbate
the
situation?
"A. Oh, yeah, it absolutely could. And
depending on where you're at, its going to have more
of an impact.
"....
"Q. Does it change the effect the river water
has on the bridge if you add structures or cut trees
and does it change the scour effect on the bridge
piers themselves?
"A. It can. It can. I mean, depending on the
degree of what you're doing, it absolutely can."
(Emphasis added.)
In other words, Curry testified that the
Alabama River, presumably on which the peninsula lies, is one
of the most complex hydraulic sites in the United States; that
the purpose of prohibiting persons from developing the
21
1140303
peninsula was to keep the peninsula the same as it was during
the original design and construction of the Interstate 65
structure; and that there could be both direct and indirect
consequences should ALDOT be unable to exercise
its
protective
rights under the easement.
Based on the evidence presented, the circuit court had a
duty to dismiss the Zieglers' claim for injunctive relief
insofar as the Zieglers failed to demonstrate that Cooper
acted fraudulently, in bad faith, beyond his authority, or
under a mistaken interpretation of law in denying their
requests to build houses on their property; beyond such a
showing, the Zieglers failed to meet the requirements for
injunctive relief so as to bypass § 14 immunity. Moulton,
supra. Rather, the circuit court took the case under
submission and ultimately found that the Zieglers were
entitled to injunctive relief because, the circuit court
reasoned, Cooper "presented no evidence to refute the
testimony of Reed, or any other evidence that the building of
7 or 8 homes on the [Zieglers'] property would have a direct,
negative impact on the I-65 [structure] through flood or
erosion." In fashioning its injunctive relief, the circuit
22
1140303
court seemingly ignored both the stated purpose of the
protective easement, which is to protect and preserve the
Interstate 65 structure from future flood risks, and the fact
the easement speaks for itself insofar as it expressly
provides that Cooper has the "right to prohibit" the "filling,
excavation and/or removal of soil, including sand and gravel,
or minerals," and "[a]ny act or use of the land that would
result in the destruction and/or removal of trees, foliage and
plants of natural growth except upon the written permission of
[ALDOT]."
The
Zieglers'
predecessors
in
title
were
compensated
by ALDOT for the easement over their property and the easement
will cease to exist only
"should flood control projects of such nature and
magnitude be constructed as to render the rights and
easements herein acquired unnecessary for the
protection of the highway right-of-way known as
Interstate Highway 65 and all improvements thereon,
from those minor and major floods such as might
occur in the future."
The testimony at trial was that, to date, there are no
reasonable flood-control measures in place to prevent the
peninsula from flooding. Moreover, section III of the
easement states only two rights that are clearly reserved in
the
Zieglers:
the
right
to
use
their
property
for
23
1140303
"agricultural and farming purposes" (III(1)) and the right
"to continue to use, to replace at their present location and
to maintain at their present location all structures which are
now in place" (III(2)). The easement does not expressly
reserve in the Zieglers the right to build any new structures
on their property beyond what was there at the time ALDOT
acquired its easement. Section III(3) states that it is
expressly "reserved to the [Zieglers] ... all such rights and
privileges as may be used without interfering or abridging the
rights and easements hereby acquired by [ALDOT]." In other
words, the Zieglers may exercise their reserved rights under
the easement only if doing so would not interfere with or
abridge ALDOT's rights in its protective easement. See, e.g.,
Alabama Power Co. v. Drummond, 559 So. 2d 158, 161 (Ala. 1990)
("It is also well recognized that Alabama law requires the
owner of a servient tenement to refrain from doing any act
that would interfere with or be inconsistent with the proper
right to use and enjoy the easement vested in the owner of the
dominant tenement.").
To reiterate, an action against a State official in his
or her official capacity seeking injunctive relief based on
24
1140303
allegations that the State official acted fraudulently,
in
bad
faith, beyond his or her authority, or under a mistaken
interpretation of law is not considered to be an action
against the State for § 14 purposes. Harbert, supra. In
this case, however, the record is devoid of any evidence
indicating that Cooper, acting in his official capacity as
director of ALDOT, acted beyond the scope of his authority or
otherwise in exercising his express rights under the easement
to protect the integrity of the Interstate 65 structure; the
circuit court made no such finding, and the Zieglers fail to
point to any testimony in the record that supports such a
finding. In essence, the Zieglers' claim for injunctive
relief, although purportedly asserted against Cooper in his
official capacity, is in actuality an indirect claim against
ALDOT insofar as the claim impermissibly strips ALDOT of its
property rights under the easement to protect and preserve the
integrity of the Interstate 65 structure. Accordingly, the
Zieglers' claim for injunctive relief against Cooper in his
official capacity is due to be dismissed on the ground of
sovereign immunity.
IV. Conclusion
25
1140303
Cooper established that he was entitled to sovereign
immunity. Accordingly, the circuit court is directed to
dismiss the action against Cooper and to vacate its order
granting the Zieglers' requested injunctive relief. "If, 'at
any stage of the proceedings,' the trial court, or this Court,
'becomes convinced that [the action] is a suit against the
State and contrary to Sec. 14 of the Constitution,' it must
dismiss the action.' Patterson v. Gladwin Corp., 835 So. 2d
137, 154 (Ala. 2002)(quoting Aland v. Graham, 287 Ala. 226,
229, 250 So. 2d 677, 678 (1971)).
REVERSED AND REMANDED WITH INSTRUCTIONS.
Murdock and Main, JJ., concur.
Moore, C.J., and Bryan, J., concur in the result.
26 | September 18, 2015 |
104773a4-7a4b-4c66-b0fa-1ef6d3460c6d | Phillips v. Kirkley | N/A | 1130850 | Alabama | Alabama Supreme Court | REL:11/20/2015
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, 2015-2016
____________________
1130812
____________________
Karen Ann Kribel Kirkley, individually and as personal
representative of the Estate of B.J. Kirkley, deceased, et
al.
v.
Donna Jo Kirkley Phillips and Kirkley Limited Liability
Company
____________________
1130850
____________________
Donna Jo Kirkley Phillips and Kirkley Limited Liability
Company
v.
Karen Ann Kribel Kirkley, as personal representative of the
Estate of B.J. Kirkley, deceased, et al.
Appeals from Lee Circuit Court
(CV-11-900507)
BOLIN, Justice.
Karen Ann Kribel Kirkley, individually and as personal
representative of the estate of B.J. Kirkley ("Mr. Kirkley"),
deceased; Holly S. Muncie; and J. Alexander Muncie III
("Alex"), as trustee of the Karen Ann Kribel Kirkley
Testamentary
Trust
(hereinafter
sometimes
referred
to
collectively as "the estate plaintiffs"), appeal from the Lee
Circuit Court's March 7, 2014, "order regarding granting of
new trial" in favor of Donna Jo Kirkley Phillips and Kirkley
Limited Liability Company ("Kirkley LLC") (appeal no.
1130812). Donna Jo and Kirkley LLC cross-appeal from the same
order, but have also filed a motion to dismiss the appeal
filed by the estate plaintiffs on the basis that the March 7,
2014, order is not a final order and that the monetary
judgment in the case has been satisfied (appeal no. 1130850).
The motion to dismiss was submitted for consideration with the
merits of the appeals. Because we conclude that the March 7,
2014, order is not a final order, the appeals are dismissed.
See Rule 54(b), Ala. R. Civ. P.
2
1130812, 1130850
I. Facts and Procedural History
These appeals are the result of a family dispute that
occurred following the death of Mr. Kirkley on July 9, 2011,
concerning his will and his interest in Kirkley LLC. The
individuals involved in the dispute are: Mr. Kirkley's widow,
Karen; Karen's daughter, Holly; Holly's husband, Alex, the
trustee
of
Karen's
testamentary
trust;
Mr.
Kirkley's
daughter,
Donna Jo; Donna Jo's husband, Keith William Phillips; Mr.
Kirkley's daughter, Lisa Kirkley Thompson; and Mr. Kirkley's
son, Steven Randall Kirkley.
Kirkley LLC was formed on November 7, 1995; the operating
agreement for the limited liability company was adopted the
same day. The members of Kirkley LLC were Mr. Kirkley, who
owned a 74.11968 interest in the company; Donna Jo, who owned
a 13.44016 percent interest; and Keith, who owned a 12.44016
percent interest. Kirkley LLC's sole asset is a one-third
interest in Ridgewood Village Mobile Home Park located in
Auburn.
On October 20, 2011, Mr. Kirkley's will was admitted to
probate, and Karen was appointed personal representative of
his estate. Mr. Kirkley's will provided that his interest in
3
1130812, 1130850
Kirkley LLC was to flow through his estate to several
beneficiaries, including Karen, Holly, Lisa, and Steven. The
bequests to Karen, Lisa, and Steven were made via testamentary
trusts. Holly was to receive her bequest outright. Although
Mr. Kirkley purported to dispose of his interest in Kirkley
LLC through his will, the operating agreement for Kirkley LLC
("the operating agreement") provided that, in the event of a
death of a member, the surviving members had the option of
continuing the company by paying the fair market value of the
deceased
member's
membership
interest
to
the
deceased
member's
estate within 90 days of the deceased member's death.
Specifically, Section 12.4 of operating agreement states:
"(C) In the event of the death of a Member, the
surviving members shall have the following option
based on unanimous consent of all the surviving
members:
"(i) Continue the Limited Liability Company by,
within ninety (90) days, causing the value of the
Company to be established by an appraisal of the
Company's property by an independent licensed
appraisal agency and an audit of the Company's books
and records by a certified public accountant to
determine the fair market value of the deceased
Member's membership interest. The fair market value
of the deceased Member's membership interest shall,
within ninety days, be paid to the estate of the
deceased Member by the surviving Members who shall
then own all of the assets and liabilities of the
Company."
4
1130812, 1130850
After Mr. Kirkley died, Donna Jo and Keith (hereinafter
referred to as "the Phillipses") sought to exercise their
option to purchase Mr. Kirkley's interest and to continue
Kirkley LLC. Specifically, the Phillipses delivered to the
estate a "Notice of Exercise of Option to Purchase"; they
obtained an appraisal and an audit of the books and records of
Kirkley LLC as of the date of Mr. Kirkley's death; they
provided to the estate the valuation and audit, which
represented that the fair market value of Mr. Kirkley's
interest in Kirkley LLC was $540,000; they filed with the Lee
County Probate Court on October 7, 2011, a "Petition to
Receive Tender of Option Price"; and they delivered to the
probate court a $540,000 cashier's check made payable to the
estate, requesting that the court hold the check "until [Mr.
Kirkley's] Will is admitted to probate and a personal
representative is appointed for the [e]state."
On October 20, 2011, Karen, individually and as personal
representative of the estate, filed a complaint, seeking a
judgment determining, among other things, the fair market
value of Mr. Kirkley's interest in Kirkley LCC at the time of
his death. The complaint named as defendants: the Phillipses;
5
1130812, 1130850
Holly; Alex, as the trustee of Karen's testamentary trust;
fictitious party "A" as the trustee of the Lisa Kirkley
Thompson Testamentary Trust; and fictitious party "B" as the
trustee of the Steven Randall Kirkley Testamentary Trust.1
Holly and Alex were subsequently realigned as plaintiffs.
On November 7, 2011, the Phillipses filed an answer and
a counterclaim (1) asserting a claim of breach of contract;
(2) seeking a judgment declaring that they had tendered and
paid the estate the fair market value of Mr. Kirkley's
interest in Kirkley LLC on a timely basis; and (3) seeking
specific performance of the operating agreement, i.e., an
order directing the estate to perform its obligations under
the operating agreement, including its obligation to pay to
the Phillipses their costs, expenses, and reasonable attorney
fees. The Phillipses subsequently filed an additional
counterclaim for attorney fees pursuant to the Alabama
Litigation Accountability Act, § 12–19–270 et seq., Ala. Code
1975 ("the ALAA").
At the time the initial complaint was filed, no trustee
1
had been named for Lisa and Steven's testamentary trusts.
Donna Jo was subsequently appointed trustee of both trusts.
6
1130812, 1130850
On December 4, 2012, the estate plaintiffs filed an
amended complaint, naming additional defendants, including
Kirkley LLC, and asserting additional legal claims. The
complaint also sought a judgment declaring, among other
things, the rights and duties of the parties pursuant to the
provisions of Mr. Kirkley's will as opposed to the operating
agreement.2
On October 31, 2013, the trial court entered an order
setting out the equitable claims asserted by the parties:
"There are several non-jury claims pending,
including: various claims for declaratory judgment
by [the estate plaintiffs]; a claim for declaratory
judgment, specific performance, and counterclaim
against [the estate plaintiffs] for fees and costs
under the [ALAA] on behalf of Kirkley LLC and [the
Phillipses]; and a claim for declaratory judgment by
[the trustee] for the Lisa and Steven Kirkley Trusts
[i.e, asserting that the filing of the estate
plaintiffs' amended complaint violated the in
terrorem clause of Mr. Kirkley's will]."
On January 15, 2013, the Lisa Kirkley Thompson
2
Testamentary
Trust
and
the
Steven
Randall
Kirkley
Testamentary
Trust ("the trusts") filed a counterclaim, seeking a judicial
determination
that
the amended
complaint
initiated
a
proceeding that would prevent the provisions of Mr. Kirkley's
will from being carried out in violation of the in terrorem
clause contained in the will, thus revoking the benefits
provided in the will to Karen and Holly. On May 1, 2013, the
trusts filed a second counterclaim, alleging claims of breach
of confidential relationship, breach of fiduciary duty, and
conversion and demanding an accounting. The trusts are not
parties to these appeals.
7
1130812, 1130850
On November 5, 2013, the case proceeded to trial, at
which time the trial court sought to separate the legal claims
from the equitable claims. Before the case was submitted to
the jury on the legal claims, counsel for the estate
plaintiffs decided to proceed only on behalf of Karen, as
personal representative of Mr. Kirkley's estate, and to
dismiss "[a]ny and all claims" against Keith. The trial court
also entered a judgment as a matter of law in favor of the
estate plaintiffs as to the breach-of-contract claim asserted
by the Phillipses. The trial court then charged the jury on
the claims asserted by the estate plaintiffs alleging breach
of fiduciary duty and wantonness, and also erroneously
charged
the jury as to a breach-of-contract claim against the
Phillipses, because such a claim was never pleaded by the
estate plaintiffs.
On November 8, 2013, the jury returned a verdict in favor
of the estate, awarding it $277,500 in compensatory damages
and $700,000 in punitive damages. Following the entry of the
verdict, the estate filed, among other things, a motion to tax
costs; it also sought an award of prejudgment interest and an
award of attorney fees and costs pursuant to the operating
8
1130812, 1130850
agreement.
Donna
Jo
and
Kirkley
LLC
filed
various
3
postjudgment motions, including a motion for a new trial. The
trial court conducted a hearing on the pending posttrial
motions, including a Hammond/Green Oil hearing.
4
On March 7, 2014, the trial court entered an "order
regarding granting of new trial," which states, in pertinent
part:
"The parties appeared before this Court on
February 13, 2014, regarding [Donna Jo and Kirkley
LLC's] motion for a new trial. Hon. Davis
Whittelsey and Hon. Jonathan Corley appeared on
behalf of the plaintiff, Karen Kirkley, as personal
representative of the Estate of B.J. Kirkley. Hon.
Joseph Dean, Jr., Hon. Melanie Atha and Hon. Roy
Crawford appeared on behalf of the defendants, Donna
[Jo] Phillips and Kirkley LLC. The jury claims
against Keith Phillips were voluntarily dismissed by
[the estate plaintiffs] prior to submission of the
case to the jury for consideration of the verdict.[5]
The operating agreement provides that "[i]n connection
3
with any litigation, including appellate proceedings, arising
out of or under this Agreement, the prevailing party in such
litigation shall be entitled to recover reasonable attorneys'
fees and costs from the losing party."
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
4
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).
The trial court noted in a footnote in its order that
5
"Keith Phillips was sued in his capacity as a Member of
Kirkley LLC" and that "[t]he defense has asserted that [the
estate plaintiffs] dismissed all claims against Keith at
trial, including all equitable issues. The Court makes no
ruling on this issue for the purposes of this Order."
9
1130812, 1130850
"Presiding over this particular trial was
problematic for the court. The case has included at
least a dozen litigants, multitudes of legal and
equitable claims, and a flurry of pleadings and
motions. The interaction between the attorneys
trying the case can conservatively be described as
heated. The court made a cognizant attempt,
following a series of lengthy hearings, to limit the
issues submitted to the jury to those with
substantive merit. However, the verdict in this
case demonstrates to the court that its efforts to
uncloud
the
main
issues
for
the
jury
were
unsuccessful. The defense raised multiple grounds
for a new trial in its motion. While the court does
not discount the potential validity of some of these
grounds, the court finds that the points discussed
below are the most significant.
"A. New Trial
"One point raised in [Donna Jo and Kirkley
LLC's] motion for a new trial was there was no claim
for breach of contract made by the [estate
plaintiffs] against [Donna Jo and Kirkley LLC].
Accordingly, [Donna Jo and Kirkley LLC] assert that
it was error for the jury to award any damages for
breach of contract. Upon examination of the
pleadings and the transcript in this case, the court
agrees that the claim for breach of contract was
submitted to the jury without being pled in the
final restated complaint and without sufficient
evidentiary
support
during
the
trial.
Unfortunately, neither party brought this erroneous
instruction to the Court's attention at the time the
jury charge was given.
"Additionally, the court agrees that the
evidence was insufficient to support a finding of
wanton conduct on the part of Donna [Jo] Phillips.
Defense counsel did move for judgment as a matter of
law at trial and renewed the motion subsequent to
10
1130812, 1130850
the verdict. Judgment as a matter of law was due to
be granted on this issue.
"Because the verdict reached in this case was
general in nature, the court cannot ascertain
whether the assessment of damages was based on a
good count or a bad count. Furthermore, the record
indicates on page 1626 that they jury may have
considered the breach of contract claim when,
subsequent to instruction, they were brought back
into the courtroom with the following question: 'If
we find the contract was breached, does the Will
take precedence?' Due to the confusion created by
introduction of this issue to the jury, the court is
of the opinion that a new trial is due to be
granted.
"The court reserved the decision of a number of
equitable issues for after the jury trial. In
hindsight, this was a flawed approach as the jury
was permitted to hear a vast amount of evidence
outside the scope of what it was ultimately asked to
consider. For example, the court did not make a
binding, pre-trial ruling as to whether or not
Section 12.4 of the Kirkley LLC operating agreement
was clear or ambiguous. The effect of this was that
the parties spent a great deal of time calling
witnesses who could offer parol evidence as to the
intention of [Mr. Kirkley], including the gifts that
were made in his will. Therefore, in essence, the
trial became a dispute over the will of [Mr.
Kirkley] and not about the operating agreement of
Kirkley LLC. However, the will was wholly
irrelevant to the claims that the defendants' acts
pursuant to the operating agreement were wanton or
[that they had] breached a fiduciary duty. The
prejudicial nature of this evidence further adds
support to the court's opinion that a new trial is
due to be granted.
"Therefore, [Donna Jo and Kirkley LLC's] motion
for a new trial is granted on the following grounds:
11
1130812, 1130850
"(1) The verdict failed to do justice between the
parties;
"(2) The verdict was excessive so as to demonstrate
bias, passion, prejudice, corruption or other
improper motive; and
"(3) The verdict was contrary to the law and the
evidence.
"....
"B. Equitable Issues
"The parties have filed several declaratory
judgment actions in this case. The Court has
previously held that [Mr. Kirkley's] assignment of
his one-third interest in Ridgewood Village to
Kirkley LLC was valid, and that the Estate does not
hold
any
interest
in
the
Ridgewood
Village
partnership. Thus, the Court held that Ridgewood
Village has continuously met its obligations by
paying distributions to Kirkley LLC. It has no
obligations with respect to the Estate of [Mr.
Kirkley]. The court has also held that the
transfers of interest in Kirkley LLC made by [Mr.
Kirkley] during his lifetime to [the Phillipses] are
valid.
"1. The Kirkley LLC Operating Agreement
"Going
forward
with
the
equitable
issues
in
this
case, the court finds that the Kirkley LLC operating
agreement is not ambiguous. ...
"2. The Option to Purchase
"The parties have also asked this court to
declare whether the option was exercised under the
terms of the operating agreement. The court heard
testimony from several witnesses at trial who
discussed contested issues such as licensure and
12
1130812, 1130850
fair market value. However, the plain language of
the operating agreement does not place any emphasis
on these terms when describing the mechanism by
which the option can be exercised. Section 12.4(B)
states that '[t]he option to purchase granted
pursuant to this Subsection 12.4(B) shall be
exercised by giving written notice thereof to the
Member in Default and the other Members within the
foregoing described sixty (60) day period in which
the option to purchase may be exercised.' ... The
parties do not contest that written notice was given
within a sixty-day period to Karen Kirkley,
executrix of [Mr. Kirkley's] estate, on August 23,
2011, by being hand-delivered to her mailbox. This
court finds that providing notice on August 23,
2011, was timely under the terms of the operating
agreement as it was within 60 days of [Mr.
Kirkley's] death on July 9, 2011. Therefore, [the
Phillipses] did exercise the option to purchase as
directed under the terms of the operating agreement.
"3. Right to Kirkley LLC Income Distributions
"One of
the
remaining issues
between
the
parties
is when the right to receive [Mr. Kirkley's]
membership distributions was transferred from his
estate to [the Phillipses]. Subsection 12.4(C)(i)
of the operating agreement states that '[t]he fair
market value of the deceased Member's membership
interest shall, within ninety (90) days, be paid to
the estate of the deceased Member by the surviving
Members who shall then own all of the assets and
liabilities of the Company.' The parties do not
contest that a check payable to the Estate of
$540,000 was given to the Probate Court of Lee
County within 90 days of [Mr. Kirkley's] death.
What they do contest is whether the amount to be
valued was a controlling, full membership interest
or a non-controlling, mere economic interest, and
they contest whether the $540,000 that was tendered
was
the
fair
market
value
under
either
circumstances.
13
1130812, 1130850
"... [T]he Court agrees that ownership of [Mr.
Kirkley's] interest vested in [the Phillipses] when
[they]
delivered
written
notice
pursuant
to
[Section] 12.4(B) of the operating agreement. This
finding further supports the court's decision to set
aside the jury verdict and grant a new trial, given
that the compensatory damages awarded stemmed from
the lack of monthly income distributions by Kirkley
LLC to the estate. These damages, as well as the
punitive damages that followed, cannot stand because
the estate had no interest in Kirkley LLC and no
right to distributions subsequent to exercise of the
option.
"4. Valuation of Kirkley LLC Membership
Interests
"The remaining issues between the parties
concern valuations of the interest which [the
Phillipses] elected to purchase. Before the court
can value the interest, it must resolve the issue as
to whether the interest being valued is a full
membership or partial membership interest. In other
words, is the membership being valued on the basis
of voting rights or simply a right to economic
distributions?
"It is undisputed that [Mr. Kirkley] owned a
74.11968% full membership interest, with voting
rights
and
the
right
to
receive
economic
distributions, on the last day he was alive.
According to the language of Section 12.4(B), the
'Defaulted Interest' is what is being purchased.
The 'Defaulted Interest' is that which was in
existence 'immediately prior to the occurrence of
the Activating Event.' The 'Activating Event' was
[Mr. Kirkley's] death. The operating agreement also
states that the interest that was in existence
'immediately prior to the occurrence of the
Activating Event' is 'the entire interest in the
Company of such Member.' Therefore, [Mr. Kirkley's]
'entire interest' in Kirkley LLC was that 74.11968%
14
1130812, 1130850
full
membership
interest.
Furthermore,
the
operating agreement does not state that the interest
to be valued is that which may belong to the estate
in the event [the Phillipses] chose not to exercise
the option–-in other words, merely an economic
interest with no voting rights. In fact, the
operating agreement does not use the term 'economic
interest.' Therefore, the court finds that the
plain language of Section 12.4(B) of the operating
agreement states that the interest to be valued is
the 'entire interest' or full membership of [Mr.
Kirkley] in Kirkley LLC.
"....
"... Therefore,
the
final,
fair market
value
for
[Mr. Kirkley's] membership interest is $1,102,639.
[6]
Given that [the Phillipses] bound themselves to pay
the fair market value by exercising their option to
purchase [Mr. Kirkley's] shares, the estate is due
a judgment in the amount of $1,102,639.
"In making this equitable finding as a result of
the declaratory judgment claims of the parties, the
court finds that the estate is not entitled to
further interest on the judgment–-particularly
because no breach of contract action was pled by the
[estate
plaintiffs].
Any
garnishment
action
previously initiated by [the estate] will need to be
re-filed if it is based upon the jury verdicts
announced at trial as they have been set aside. If
[counsel for Donna Jo and Kirkley LLC] would like to
be heard regarding a claim of exemption or motion to
stay execution of judgment, those motions will also
need to be re-filed or amended. Of course, the
court orders that the $540,000 check made payable to
The trial court performed its own valuation of the fair
6
market value of Mr. Kirkley's 74.11968% membership interest
based on the testimony of the experts who testified at the
trial.
15
1130812, 1130850
the estate and being held by the probate court of
Lee County be released to the estate without further
delay. However, execution is stayed for a period of
90 days with respect to any portion of the judgment
which is not satisfied by the $540,000 check.
"5. The Will of [Mr. Kirkley]
"The plaintiff has filed a declaratory judgment
action which asks this court to determine the
rights, duties and obligations of the parties
pursuant to the provisions of the will of [Mr.
Kirkley]. This is a very broad request, and the
only issue apparent to this court is whether the
operating agreement of Kirkley LLC or the will
governs disposition of [Mr. Kirkley's] Membership
Interest. From the testimony of witnesses at trial
such as [Donna Jo]; [Karen], Robert Petty [and]
Nancy Davis [attorneys for Mr. Kirkley during his
life], and [Alex], it appears that [Mr. Kirkley]
mistakenly believed that he could give away his
interests of the LLC free from any encumbrances.
While the Court can appreciate arguments regarding
what his intent may have been, it does not change
the fact that a testator cannot outright devise a
gift that he does not outright own. Therefore, this
court finds that any devise of [Mr. Kirkley's]
interest in Kirkley LLC through his will is clearly
subject to [the Phillipses'] right to exercise their
option to purchase pursuant the LLC's operating
agreement. Since the option has been exercised, the
will beneficiaries will have rights to the proceeds
of this sale in the percentages dictated by the
terms of the will. Even if the option were not
exercised, the will beneficiaries' interests would
still be subject to restrictions as set forth in
12.2 and 12.4(C)(ii-iv) of the operating agreement.
"C. Remaining Claims
"Any post-judgment motions filed pursuant to
Rules 50 or 59 of the Alabama Rules of Civil
16
1130812, 1130850
Procedure which have not been specifically addressed
or rendered moot by granting a new trial are deemed
denied. The parties are permitted to file a
restated complaint, answer or counterclaim within 60
days if there are claims or issues that they would
still like to litigate. No additional claims or
parties may be added. Each claim should cite to the
date of the original pleading in which it can be
found. If a right to a jury trial exists for a
particular claim, a renewed jury demand should be
filed."
The trial court did not certify its March 7, 2014, order
as final pursuant to Rule 54(b), Ala. R. Civ. P. On May 1,
2015, this Court, in both appeals, remanded the cause for a
determination as to whether the March 7, 2014, order was a
final order that would support the appeals. This Court
subsequently learned that the case had been reassigned from
Judge Jacob A. Walker III to Judge Ben Fuller because Judge
Walker had recused himself. Because of the complexity of the
case, this Court granted Judge Fuller additional time in which
to respond to our remand order. On July 16, 2015, Judge Fuller
filed with this Court an order stating that "there being no
just reason for additional delay this Court's order of March
7, 2014, is certified as final pursuant to the provisions of
Rule 54(b), Alabama Rules of Civil Procedure."
II. Rule 54(b), Ala. R. Civ. P.
17
1130812, 1130850
These appeals challenge the merits of the March 7, 2014,
order of the Lee Circuit Court granting a new trial. As
previously indicated, Donna Jo and Kirkley LLC also challenge
the finality of the March 7, 2014, order, in part, on the
basis that the order does not adjudicate all the claims
between all the parties. This Court does not address the
merits of these appeals because we conclude that the trial
court's Rule 54(b) certification of the March 7, 2014, order
as final was improper and, thus, that the appeals are due to
be dismissed.
With regard to the finality of judgments adjudicating
fewer than all claims in a case, Rule 54(b) provides:
"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."
In Loachapoka Water Authority, Inc. v. Water Works Board
of Auburn, 74 So. 3d 419, 422–23 (Ala. 2011), this Court
stated:
"'If a trial court certifies a judgment as final
pursuant to Rule 54(b), an appeal will generally lie
18
1130812, 1130850
from that judgment.' Baugus v. City of Florence,
968 So. 2d 529, 531 (Ala. 2007) (emphasis added).
However, this Court will not consider an appeal from
a judgment certified as final under Rule 54(b) if it
determines that the trial court exceeded its
discretion in concluding that there is 'no just
reason for delay.' Rule 54(b); see also Scrushy v.
Tucker, 955 So. 2d 988, 996 (Ala. 2006) ('Whether
there was "no just reason for delay" is an inquiry
committed to the sound discretion of the trial
court, and, as to that issue, we must determine
whether the trial court exceeded its discretion.').
"A trial court exceeds its discretion in
determining that there is 'no just reason for delay'
when '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, 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)). See also Centennial Assocs., Ltd.
v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009) ('"It
is uneconomical for an appellate court to review
facts
on
an
appeal
following
a
Rule
54(b)
certification that it is likely to be required to
consider again when another appeal is brought after
the [trial] court renders its decision on the
remaining claims or as to the remaining parties."'
(quoting 10 Charles Alan Wright et al., Federal
Practice and Procedure § 2659 (1998)))."
III. Discussion
A. Miscellaneous Matters
Initially, we note that the parties refer to the March 7,
2014, order as having two parts, i.e., the new-trial part
19
1130812, 1130850
(addressing the merits, i.e., the legal claims) and the
declaratory-judgment part (addressing the equitable claims).
We address only the declaratory-judgment aspect of the March
7, 2014, order concerning the equitable claims Donna Jo and
Kirkley LLC assert remain pending for adjudication in the
trial court.
Secondly, it is unclear whether Keith is a party subject
to the declaratory-judgment part of the March 7, 2014, order.
The estate plaintiffs assert that they dismissed only the
legal claims against Keith, while Keith asserts in a restated
counterclaim that the estate plaintiffs dismissed "[a]ny and
all claims" against him, i.e, both legal and equitable claims.
The trial court made no definitive ruling as to whether Keith
remained a party as to the declaratory-judgment part of the
order. Rather, the trial court noted in the March 7, 2014,
order that it declined to make any ruling on the issue.
Specifically, the order states that "[t]he jury claims
against
Keith Phillips were voluntarily dismissed by [the estate
plaintiffs] prior to the submission of the case to the jury
for consideration of the verdict." The order contains a
footnote in which the trial court added that "[t]he defense
20
1130812, 1130850
has asserted that [the estate plaintiffs] dismissed all
claims
against Keith at trial, including all equitable issues" and
stated: "[T]he Court makes no ruling on this issue for the
purposes of this Order." Although we reference Keith
throughout this opinion, this Court, too, makes no ruling on
the issue whether he remains a party for purposes of the
declaratory-judgment part of the March 7, 2014, order.
Rather, we conclude that any ruling on that issue is reserved
for the trial court.
The parties also dispute whether Holly, individually, and
Karen's testamentary trust, are parties for purposes of the
declaratory-judgment part of the March 7, 2014, order. As
previously indicated, before the case was submitted to the
jury, counsel for the estate plaintiffs -- i.e., Karen,
individually and as personal representative of the estate;
Holly; and Alex, as trustee of Karen's testamentary trust --
decided to proceed only on behalf of Karen, as personal
representative of Mr. Kirkley's estate. Karen, as personal
representative, maintains that Holly, individually, and Alex,
as trustee of Karen's testamentary trust, are proper parties
to the appeal from the declaratory-judgment part of the March
21
1130812, 1130850
7, 2014, order because, she says, that part of the order
states that "the will beneficiaries will have rights to the
proceeds of this sale in the percentages dictated by the terms
of the will." We agree. Karen and Holly were beneficiaries
under Mr. Kirkley's will. The bequest to Karen was made via
a testamentary trust, of which Alex is the trustee, while the
bequest to Holly was made outright. Because the trial court
addressed, in the declaratory-judgment part of the order, an
issue
pertaining
to
the
will
beneficiaries,
those
beneficiaries were entitled to appeal from that part of the
order.
Lastly, we note that, since the parties filed these
appeals,
the
trial
court
has
continued
to
exercise
jurisdiction over the proceedings. For example, Judge Walker
entered an order, dated June 5, 2014, granting Donna Jo and
Kirkley LLC's "Petition to Receive Tender of Remainder of
Option Price," directing the circuit clerk "to receive,
deposit and hold the proceeds of the [$562,639 check] until
the estate acknowledges its obligations to fully fund the
testamentary trusts of Steven Randall Kirkley and
Lisa Kirkley
Thompson, and offers proof that same has been accomplished;
22
1130812, 1130850
thereafter, to direct that $562,639 to the estate, enter a
satisfaction of judgment on the record." On June 6, 2014,
Karen, as personal representative of the estate, filed in the
trial court a "Notice of Non-Acceptance of Conditional Tender
of Remainder of Option Price and Motion to Compel Responses to
Post-Judgment Discovery Requests," in which she argued, among
other things, that Judge Walker had no jurisdiction to enter
the June 5, 2014, order. Donna Jo and Kirkley LLC also filed
in the trial court a "Motion to Quash Processes of
Garnishment."
Judge Walker entered an "order
setting
hearing"
for July 7, 2014, in which he temporarily stayed the issuance
of garnishments filed by the estate and instructed the parties
to be prepared to address at the hearing certain issues
pertaining to the garnishments –- including some of the very
issues that are the subject of these appeals, i.e., whether
the declaratory-judgment part of the March 7, 2014, order is
a final order and whether Keith remains a party for purposes
of the declaratory-judgment part of the order.
However,
before
the hearing, Judge Walker recused himself from the case, and
the hearing never occurred. On February 3, 2015, Donna Jo and
Kirkley LLC filed in this Court a "Motion For Temporary
23
1130812, 1130850
Remand," in which they stated that Judge Fuller had granted
discovery in the trial court, which resulted in the production
of documentation relevant to whether the monetary
judgment had
been satisfied; Donna Jo and Kirkley LLC request in the motion
that this Court temporarily remand the cause to allow the
trial court to determine whether the record on appeal should
be supplemented so that this Court can decide whether the
monetary judgment has been satisfied. As can be seen,
although Judge Fuller certified the March 7, 2014, order as
final in all respects, he continues to exercise jurisdiction
over certain aspects of the case, further evidence that the
March 7, 2014, order is not final in all respects.
B. The Trusts
As previously indicated (see note 2, supra), the Lisa
Kirkley Thompson Testamentary Trust and the Steven Randall
Kirkley Testamentary Trust ("the trusts") are not parties to
these appeals. However, the trusts filed a counterclaim below
in which they requested a judgment declaring that the claims
asserted by the estate plaintiffs in the amended complaint
violated Item XII of Mr. Kirkley's will, the in terrorem
clause, which states:
24
1130812, 1130850
"If any beneficiary under this Will shall
contest the probate or validity of this Will or any
provision thereof or shall institute or join in
(except as a party defendant) any proceeding to
contest the validity of this Will or to prevent any
provision thereof from being carried out in
accordance with its terms (regardless of whether or
not the contest or proceedings are instituted in
good faith and with reasonable cause), all benefits
provided for that beneficiary are revoked and those
benefits
shall
pass
to
the
non-contesting
beneficiaries or his or her issue in the proportion
that the share of the non-contesting residuary
beneficiary bears to the aggregate of the effective
shares of all of the non-contesting residuary
beneficiaries ...."
The trial court indicated in its October 31, 2013,
pretrial order that the trusts' in terrorem claim remained
pending. At the close of the evidence, the trial court also
acknowledged that the in terrorem claim was an equitable
claim. However, the March 7, 2014, order does not
definitively address the in terrorem claim. Donna Jo and
Kirkley LLC assert that that claim remains pending in the
trial court, while the estate plaintiffs assert that March 7,
2014, order disposed of the claim. The trial court noted in
the March 7, 2014, order that "the estate" has filed a
declaratory-judgment action asking the court to determine the
rights, duties, and obligations of the parties under the
provisions of Mr. Kirkley's will. The trial court noted that
25
1130812, 1130850
this was a broad request and that "the only issue apparent to
this Court" is whether the operating agreement or the will
govern the disposition of Mr. Kirkley's membership
interest
in
Kirkley LLC. Specifically, the trial court noted that a
testator "cannot outright devise a gift that he does not
outright own" and that any devise under the will was subject
to the Phillipses' right to exercise their option to purchase
Mr. Kirkley's membership interest pursuant to the operating
agreement. The trial court noted that because the Phillipses
had exercised their right, the will beneficiaries would have
rights to the proceeds of the sale in the percentages dictated
by the will. The estate plaintiffs contend that the trial
court's finding impliedly disposes of the trusts' in terrorem
claim. For purposes of this opinion, this Court makes no
ruling as to whether the March 7, 2014, order disposes of the
in terrorem claim, insofar as the trusts are not parties to
this appeal. Rather, we acknowledge only that the parties
dispute whether the March 7, 2014, order disposes of the claim
and that any ruling on that claim is reserved for the trial
court. As noted in one of the pleadings filed by Donna Jo and
Kirkley LLC, if the trusts are successful on their in terrorem
26
1130812, 1130850
claim, then Karen and Holly will have no claim to the proceeds
from the sale of Mr. Kirkley's former interest in Kirkley LLC,
a result clearly inconsistent with the trial court's ruling
that "the will beneficiaries will have rights to the proceeds
of this sale in the percentages dictated by the terms of the
will." And, "if the proceeds are distributed prior to a
decision on the in terrorem clause claim, Karen and Holly
could well receive benefits to which they are not entitled."
We note that if the trusts' counterclaim, the facts of which
are common to and/or intertwined with the merits of the appeal
and cross-appeal, remains pending in the trial court, this
Court could be faced with repeated appellate review, which is
disfavored. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892
So. 2d 354 (Ala. 2004) (noting that appellate review in
piecemeal fashion is not favored). As this Court has stated:
"'It is uneconomical for an appellate court
to review facts on an appeal following a
Rule 54(b) certification that it is likely
to be required to consider again when
another appeal is brought after the
district court renders its decision on the
remaining claims or as to the remaining
parties.
"'An appellate court also should not
hear appeals that will require it to
27
1130812, 1130850
determine questions that remain before the
trial court with regard to other claims.'
"(Footnotes omitted.)"
Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281
(Ala. 2009)(quoting 10 Charles Alan Wright et al., Federal
Practice and Procedure § 2659 (1998)). See also Loachapoka, 74
So. 3d at 424 (noting that "'[r]epeated appellate review of
the same underlying facts would be a probability in this
case,'" (quoting Smith v. Slack Alost Dev. Servs. of Alabama,
LLC, 32 So. 3d 556, 562 (Ala. 2009))), and Day v. Davis, 989
So. 2d 1118, 1121 (Ala. Civ. App. 2008)(stating that "[w]hen
claims 'are so interrelated that they should be adjudicated
simultaneously and not piecemeal,' a Rule 54(b) certification
is not appropriate. Bridges v. Bridges, 598 So. 2d 935, 936
(Ala. Civ. App. 1992)").
At the close of all the evidence, the parties also
addressed the trusts' claim for an accounting. The trial
court noted on the record: "I just think the better way to
handle it is I will probably just order an accounting."
Specifically, the trial court noted:
"I just think based on some of the answers, you
know, there is going to have to be some type of
limited accounting as to ... what's in these trust
28
1130812, 1130850
accounts and ... what's in the estate and what
passed ... directly [to Karen] based on rights of
survivorship."
Because the trial court clearly indicated its intent to order
some type of limited accounting posttrial, and because the
court's March 7, 2014, order does not specifically address the
trusts' demand for an accounting, this claim, too, appears to
remain pending in the trial court.
C. The Restated Counterclaim
The trial court's March 7, 2014, order permitted the
parties "to file a restated complaint, answer,
or
counterclaim
... if there are claims or issues they would still like to
litigate." (Emphasis added.) On May 6, 2014, Keith filed the
following restated counterclaim:7
"Pursuant to
the
Court's
[March
7,
2014,
order],
counterclaim plaintiff hereinafter enumerates his
claims and issues which remain pending for the
Court's consideration. Since the entry of the
order, counterclaim defendants have filed a Notice
of Appeal with the Alabama Supreme Court. While it
may be appropriate for the consideration of these
issues by the Court to be deferred until such time
as the appellate court has ruled on the issues on
appeal, this pleading is made in order to preserve
these issues as required by the order.
Donna Jo and Kirkley LLC imply in their brief to this
7
Court that Keith filed the restated counterclaim on behalf of
all the counterclaim plaintiffs, i.e., Donna Jo, Keith, and
Kirkley LLC.
29
1130812, 1130850
"1. Counterclaim plaintiff renews Count One of
Keith William Phillips' Counterclaim filed November
7,
2011
(Breach
of
Contract),
specifically
including, but not limited to, the demand for
legally allowable interest, costs, expenses and
reasonable attorney's fees (to which he is entitled
under Section 12.3 and Section 14.7 of the Operating
Agreement
of
Kirkley
LLC
(the
'Operating
Agreement')).
"2. Counterclaim plaintiff renews Count Two of
Keith William Phillips' Counterclaim filed November
7,
2011
(Declaratory
Judgment),
specifically
including, but not limited to, the demand that the
Court declare whether all relevant and material
obligations of the Operating Agreement have been
satisfied. This would include a demand that the
Court declare that Keith William Phillips is the
undisputed owner of 48.06803% of the estate's
74.11968% interest in Kirkley LLC-–35.62787%–-and
$259,567.36 (48.06803% of the $540,000 paid into the
Probate Court and withdrawn by the estate following
the court's order regarding granting of new trial
entered March 7, 2014) is the undisputed fair market
value and option price for such interest. Moreover,
[the Phillipses] assert that the obligations of the
estate to Keith William Phillips for attorneys' fees
and costs which he is entitled to under Section 12.3
and Section 14.7 of the operating agreement have
heretofore not been adjudicated by the court.
"3. Counterclaim plaintiff renews Count Three
of Keith William Phillips' Counterclaim filed
November
7,
2011
(Specific
Performance),
specifically including, but not limited to, his
demand for costs, expenses and reasonable attorney's
fees (to which he is entitled under Section 12.3 and
Section 14.7 of the operating agreement), and renews
his demand that the Court retain jurisdiction over
this
action
for
purposes
of
enforcing
the
declaratory judgment.
30
1130812, 1130850
"4. Counterclaim plaintiff renews Count Eight
of Keith William Phillips' Third Counterclaim filed
May 15, 2013 (Alabama Litigation Accountability
Action Complaint)."
D. The ALAA Claim
Donna Jo and Kirkley LLC assert that the counterclaim for
attorney fees under the ALAA remains pending for adjudication
in the trial court. Pursuant to the ALAA, a trial court must
assess attorney fees against a party who brings an action or
asserts a claim or defense that is "without substantial
justification." Ala. Code 1975, § 12–19–272(a). In Casey v.
McConnell, 975 So. 2d 384, 388-89 (Ala. Civ. App. 2007), the
Court of Civil Appeals explained:
"The ALAA provides that the court must award
attorney fees and costs as a part of its judgment on
the merits of the case; it does not create a new or
separate cause of action that can be brought after
a case is litigated and given a final adjudication
on the merits. Ala. Code 1975, § 12-19-270;
Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1201
(Ala. 2002). The language of the ALAA allows the
trial court to consider the outcome of proceedings
when making its determination as to whether a
party's
action
was
without
substantial
justification. Ala. Code 1975, § 12-19-273(7);
Gonzalez, 844 So. 2d at 1201; and Meek v.
Diversified Prods. Corp., 575 So. 2d 1100, 1103
(Ala. 1991). Thus, the trial court can hold a
separate hearing on an ALAA claim after the entry of
a final judgment on the merits provided that the
trial court specifically reserves jurisdiction to
hear the ALAA claim. Gonzalez, 844 So. 2d at 1201.
31
1130812, 1130850
Otherwise, a judgment that does not reserve
jurisdiction to hear the ALAA claim at a later date
puts an end to all controversies at issue, including
the ALAA claim. Gonzalez, 844 So. 2d at 1201-02; see
also Baker v. Williams Bros., Inc., 601 So. 2d 110,
112 (Ala. Civ. App. 1992)."
In this case, the initial trial judge entered a pretrial
order dated October 31, 2013, denying the estate plaintiffs'
motion to dismiss
"Donna
Phillips, Keith
Phillips, and Kirkley
LLC's counterclaim for fees and costs under the [ALAA]" and
noting that the claims remained pending. However, the trial
judge neither ruled on the ALAA claim in its March 7, 2014,
order nor expressly reserved jurisdiction to hear the claim at
a later date. Rather, the trial judge expressly permitted the
parties to file within 60 days of the March 7, 2014, order a
restated complaint, an answer, or a counterclaim addressing
any claims and/or issues that they would still like to
litigate; Keith reasserted the ALAA claim in his restated
counterclaim. Because the request for attorney fees under the
ALAA was made before the trial court entered its March 7,
2014, order, because the order permitted the parties to file
a restated complaint, answer, or counterclaim as to any claims
they still would like to litigate, because Keith filed a
restated counterclaim reasserting the ALAA claim, and because
32
1130812, 1130850
the trial judge who initially entered the order did not
certify the order as a final order under Rule 54(b), Ala. R.
Civ. P., we conclude that the initial trial judge, prior to
his recusal, impliedly reserved jurisdiction over the ALAA
claim so as to rule on that claim.
E. Attorney Fees and Costs Under the Operating Agreement
Finally, Donna Jo and Kirkley LLC assert that, although
the March 7, 2014, order addressed the claim seeking a
judicial
determination
that
the
Phillipses
had
satisfied
their
obligations under the operating agreement, the order does not
address the Phillipses' claim for specific performance, in
which they requested that the estate be ordered to
specifically perform its obligations under the operating
agreement –- including its obligation, as the losing party in
the litigation, to pay attorney fees and costs to the
prevailing party. Section 14.7 of the operating agreement
states:
"In connection with any litigation, including
appellate proceedings, arising out of or under this
Agreement, the prevailing party in such litigation
shall be entitled to recover reasonable attorneys'
fees and costs from the losing party."
33
1130812, 1130850
The operating agreement expressly provides that the
prevailing party in litigation shall be entitled to recover
attorney fees and costs from the prevailing party. The trial
court noted in the record posttrial that the claim for
attorney fees and costs under the operating agreement was
"reserved for another day." However, the March 7, 2014, order
does not address the claim. Donna Jo and Kirkley LLC maintain
that that claim remains pending in the trial court. We note
that the parties have not addressed the issue concerning how
an unresolved claim for attorney fees and costs provided for
under a contract not directly at issue affects the purported
finality of a judgment. In State Board of Education v.
Waldrop, 840 So. 2d 893, 899 (Ala. 2002)(citing Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 199–200 (1988)), this
Court stated that "a decision on the merits disposing of all
claims is a final decision from which an appeal must be timely
taken, whether a request for attorney fees remains for
adjudication." In Budinich, the United States Supreme Court
explained that, "[a]t common law, attorney's fees were
regarded as an element of 'costs' awarded to the prevailing
party ..., which are not generally treated as part of the
34
1130812, 1130850
merits judgment." 486 U.S. at 200 (citation omitted). The
Supreme Court further stated that "Courts and litigants are
best served by the bright-line rule, which accords with
traditional understanding, that a decision on the merits is a
'final decision' ... whether or not there remains for
adjudication a request for attorney's
fees attributable
to
the
case." 486 U.S. at 202-03. We further note, however, that
some Courts have distinguished Budinich on the basis that an
exception to the bright-line rule exists where attorney fees
are awarded pursuant to a contract. See, e.g., In re Porto,
645 F.3d 1294, 1300 (11th Cir. 2011)("We recognize that this
Court and others have held that when attorney's fees are
awarded pursuant to a contract or are computed as part of the
damages award, an order on the merits does not become final
and appealable
until the attorney's fees issue
is
resolved.");
Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v.
Medpartners, Inc., 312 F.3d 1349, 1355 (11th Cir. 2002)("In
this Circuit, a request for attorneys' fees pursuant to a
contractual clause is considered a substantive issue; and an
order that leaves a substantive fees issue pending cannot be
'final.'"); and Ierna v. Arthur Murray Int'l, Inc., 833 F.2d
35
1130812, 1130850
1472, 1476 (11th Cir. 1987)(noting that, "[w]hen the parties
contractually provide for attorneys' fees, the award is an
integral part of the merits of the case" and that, "[b]ecause
the parties provided in their agreement for costs and expenses
to be awarded to the prevailing party, the award is integral
to the merits"). Suffice it to say, this Court makes no
ruling on the issue whether the attorney fees provided for in
the operating agreement constitute an integral part of the
merits of this case or whether they are collateral thereto,
insofar as the parties have not briefed the issue. Rather, in
light of the entirety of our foregoing discussion, it is
abundantly apparent to this Court that this case does not
present the type of situation that Rule 54(b) was intended to
cover.
IV. Conclusion
The trial court certified the March 7, 2014, order as
final in all respects. However, we conclude that this case
does not present the type of situation that Rule 54(b) was
intended to cover, insofar as the trial court certified as
final claims that clearly remain pending in the trial court.
Additionally, the trial court failed to make any ruling in the
36
1130812, 1130850
order regarding whether Keith Phillips remains a party to the
equitable claims asserted in the proceedings, and, despite
certifying the order as final in all respects, the trial court
has continued to exercise jurisdiction over the case by
entertaining motions filed by the parties and conducting
additional discovery. For these reasons, we conclude that the
March 7, 2014, order is not a final appealable order and that
the trial court exceeded its discretion in determining that
there was no just reason for delay and in certifying the order
as final under Rule 54(b), Ala. R. Civ. P. Accordingly, the
appeals are dismissed. "A nonfinal judgment will not support
an appeal." Whitehurst v. Peak, 819 So.2d 611, 615 (Ala.
2001). See also Pavilion Dev., L.L.C. v. JBJ P'ship, 142 So.
3d 535, 542 (Ala. 2013) ("In light of the fact that the trial
court's order failed to address the claims of all the assorted
parties claiming an interest in the subject property, we can
reach no other conclusion but that the trial court exceeded
its discretion in certifying its judgment as final for
purposes of an immediate appeal.").
1130812 –- APPEAL DISMISSED.
1130850 –- APPEAL DISMISSED.
37
1130812, 1130850
Moore, C.J., and Murdock and Bryan, JJ., concur.
Main, J., concurs in the result.
38 | November 20, 2015 |
fadbd3a8-5884-4a9e-96b2-c5827a4d8b84 | Troy Health and Rehabilitation Center v. McFarland | N/A | 1140090 | Alabama | Alabama Supreme Court | Rel: 08/28/2015
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, 2015
____________________
1140090
____________________
Troy Health and Rehabilitation Center
v.
Brenda McFarland, as personal representative of the Estate
of Garnell Wilcoxon
Appeal from Pike Circuit Court
(CV-13-900068)
PARKER, Justice.
Troy Health and Rehabilitation Center ("Troy Health")
appeals the decision by the Pike Circuit Court ("the circuit
1140090
court") to deny Troy Health's motion to compel arbitration.
We reverse and remand.
Facts and Procedural History
On May 13, 2011, Garnell Wilcoxon, who was 74 years old
and living alone, suffered a stroke, awoke on the floor of his
bedroom covered in sweat, feeling sore and with no memory of
how he had gotten there. Wilcoxon was admitted to the Troy
Regional Medical Center for analysis and treatment. That same
day, May 13, 2011, Wilcoxon was transferred to Flowers
Hospital because he was experiencing an elevated troponin
level.
1
At Flowers Hospital, Dr. Roland Brooks was Wilcoxon's
attending physician. On May 17, 2011, pursuant to Dr.
Brooks's request for a consultation, Dr. Linda
Marden
examined
Wilcoxon. Dr. Brooks requested the consultation because of
Wilcoxon's "mental status
changes
and
abnormal MRI."
According to Dr. Marden's notes, Wilcoxon was alert during her
examination and orientated to himself and the situation but
was not orientated to time or location. Dr. Marden also noted
Troponin is "[a] globular protein of muscle that binds
1
to tropomyosin and
has
considerable affinity for calcium ions;
a
central regulatory protein
of
muscle contraction."
Stedman's Medical Dictionary 1880 (27th ed. 2000).
2
1140090
that, during her examination, "[Wilcoxon's] memory for recent
events [was] poor and for remote events [was] fair.
[Wilcoxon's] attention and concentration [were] normal.
[Wilcoxon's]
language
[was]
spontaneous,
fluent,
and
grammatical, and [Wilcoxon's] fund of knowledge [appeared] to
be decreased from his baseline."
Dr. Marden's notes indicate that she believed that
Wilcoxon suffered from hypomagnesemia, which, she believed,
2
caused Wilcoxon's stroke on May 13, 2011. Dr. Marden's notes
also indicate that she believed that, at the time of her
examination, Wilcoxon "likely [had] severe cognitive or
chronic cognitive changes associated with the nutritional
depletion and toxicity of alcohol" and that Wilcoxon had
"underlying dementia ... likely due to the chronic effects of
alcohol ...."
On May 20, 2011, Dr. Marden examined Wilcoxon again and
made additional
notes concerning Wilcoxon. Dr.
Marden's
notes
indicate that on May 20, 2011, Wilcoxon was "still confused."
Dr. Marden's notes also state that Wilcoxon had "dementia due
Hypomagnesemia is "[s]ubnormal blood serum
concentration
2
of magnesium" that "may cause convulsions and concurrent
hypocalcemia." Stedman's Medical Dictionary 862 (27th ed.
2000).
3
1140090
to alcoholism, but still could have B-12 deficiency
components." That same day, May 20, 2011, Wilcoxon was
transported to a facility operated or owned by Troy Health,
where he was admitted; according to the medical-necessity
certificate for ambulance transportation, Wilcoxon was
"exhibiting signs of a decreased level of consciousness."
In order to be admitted to Troy Health, Wilcoxon was
required
to
sign
a
document
titled
"Troy
Health
&
Rehabilitation Center's Dispute Resolution Agreement" ("the
2011 arbitration agreement"). Herford Bean, Wilcoxon's
nephew, signed the agreement as Wilcoxon's "authorized
representative."
According
to
the
2011
arbitration
agreement,
an authorized representative is permitted to sign on behalf of
a Troy Health resident if the resident "is unable to consent
to or sign [the] Agreement because of a physical disability or
mental incompetence ...." The 2011 arbitration agreement
states that "all claims, disputes, and controversies
which
are
subject to this Mandatory Dispute Resolution agreement shall
be resolved by binding arbitration" and that "[Troy Health]
regularly engages in transactions involving interstate
4
1140090
commerce and the services provided by [Troy Health] to
[Wilcoxon] involve such interstate commerce."
Also on May 20, 2011, employees of Troy Health completed
a form concerning Wilcoxon titled "Fact Sheet." The "Fact
Sheet" indicates that Wilcoxon was diagnosed with "altered
mental status" and "alcohol persistent dementia," among other
diagnoses. Troy Health employees also performed an
assessment
of Wilcoxon's level of functioning. Troy Health's assessment
indicates that, at the time of Wilcoxon's admission to Troy
Health, Wilcoxon's speech was clear; he was able to be
understood; he was able to perform acts of personal hygiene
unassisted; he was walking in his room with no help from
family; and he was bathing independently. On May 24, 2011, a
Troy Health employee completed an "Activity Intake Form"
indicating that Wilcoxon answered questions about his
interests, including, among others, his hobbies, his favorite
sports teams, and his religion.
In July 2011, Wilcoxon signed a document, which was then
notarized, titled "Lien for Medical Payments Under Alabama
Medicaid Program." The notary's certification indicates that
Wilcoxon was informed of the contents of the document and that
5
1140090
he signed it voluntarily. On August 12, 2011, Wilcoxon
executed a document titled "Alabama Durable Power of Attorney
-- Broad Powers." That document, which was notarized, named
Bean
as
Wilcoxon's
attorney-in-fact.
The
notary's
certification indicates that Wilcoxon was fully aware of the
contents of the document and that he executed the document
voluntarily.
On February 15, 2012, Wilcoxon was admitted to Troy
Regional Medical Center. Dr. Satinderjit Gill was Wilcoxon's
attending physician. Dr. Gill's notes from his examination of
Wilcoxon indicate that Wilcoxon had lost 40 to 50 pounds over
the 3 months before his examination by Dr. Gill. Dr. Gill's
notes indicate that he and Wilcoxon discussed the possibility
of Wilcoxon undergoing a procedure to insert a feeding tube in
Wilcoxon and that Dr. Gill received Wilcoxon's informed
consent to perform that procedure. On February 16, 2012, Dr.
Gill placed a feeding tube in Wilcoxon.
On February 18, 2012, Wilcoxon was transported by Haynes
Ambulance of Alabama, Inc. ("Haynes"), apparently to Troy
Health. A form prepared by Haynes indicates that, at the time
of Wilcoxon's transportation, Wilcoxon was "confused." That
6
1140090
same day, February 18, 2012, Wilcoxon was readmitted to Troy
Health.
On February 24, 2012, Troy Health evaluated Wilcoxon and
completed a form summarizing the findings of its evaluation of
Wilcoxon titled "Minimum Data Set (MDS) -- Version 3.0" ("the
first MDS form"). The first MDS form reflects the results of
assessments performed by Troy Health employees of Wilcoxon's
hearing, speech, vision, cognitive patterns, mood, behavior,
and functional status, along with other areas of Wilcoxon's
health. The "Hearing, Speech, Vision" section of the first
MDS form states, in part:
"Makes self understood 1. Usually understood --
difficulty communicating some words or finishing
thoughts but is able if prompted or given time[.]
"Ability to understand others 1. Usually understands
--
misses
some
part/intent
of
message
but
comprehends most conversation."
The "Cognitive Patterns" section of the first MDS form states,
in part:
7
1140090
"BIMS:[ ]
should
resident
interview
be
conducted
3
1. Yes
"BIMS res interview: repetition of three words
3. Three
"BIMS
res
interview:
able to
report
correct
year
0. Missed by > 5 years or no answer
"BIMS res interview: able to report correct
month Missed by > 1 month or no answer
"BIMS res interview: can report correct day of
week 1. Correct
"BIMS res interview: able to recall 'sock' 1.
Yes, after cueing ('something to wear')
"BIMS res interview: able to recall 'blue' 1.
Yes, after cueing ('a color')
"BIMS res interview: able to recall 'bed' 1.
Yes, after cueing ('a piece of furniture')
"BIMS res interview: summary score 7
"Staff asmt mental status: conduct asmt 0. No
(resident was able to complete interview)
According
to
Brenda
McFarland,
the
personal
3
representative of Wilcoxon's estate, "BIMS" stands for "Brief
Interview for Mental Status." In her brief, McFarland
provides the following explanation of the BIMS scoring range:
"The scoring range on the BIMS is from zero (0) to
fifteen (15). Thirteen (13) to fifteen (15) is
cognitively intact; eight (8) to twelve (12) is
moderately impaired; and zero (0) to seven (7) is
severe impairment."
It is undisputed that a BIMS score of 7 reflects "severe
impairment."
8
1140090
"Signs of delirium: inattention 0. Behavior not
present
"Signs of delirium: disorganized thinking 0.
Behavior not present
"Signs
of
delirium:
altered
level
of
consciousness 0. Behavior not present
"Signs of delirium: psychomotor retardation 0.
Behavior not present
"Acute onset mental status change 0. No"
On March 2, 2012, Troy Health evaluated Wilcoxon again
and completed another MDS form summarizing its evaluation of
Wilcoxon ("the second MDS form"). The results on the second
MDS form are identical to the results on the first MDS form
set out above, except that the second MDS form states "BIMS
res interview: can report correct day of week 0. Incorrect or
no answer" and "1. Ability to understand others 0. Understands
-- clear comprehension."
On March 8, 2012, Margaret Mashburn, one of Wilcoxon's
daughters, filed a "Petition for Protective Services" in the
circuit court, seeking an order preserving Wilcoxon's assets.
In the petition, Mashburn alleged that Bean was acting against
Wilcoxon's interests and was exploiting him by admitting
Wilcoxon to Troy Health, by barring her communication with
9
1140090
Wilcoxon, by transferring the title of Wilcoxon's truck to
Bean, by selling, destroying, or removing Wilcoxon's personal
property from Wilcoxon's house without benefit to Wilcoxon,
and by altering the beneficiary to the proceeds of Wilcoxon's
life-insurance policy. It is undisputed that the circuit
court entered two orders related to that petition. However,
those orders are not in the record before this Court.
4
On March 16, 2012, Troy Health evaluated Wilcoxon again
and completed another MDS form summarizing its evaluation of
Wilcoxon ("the third MDS form"). The results on the third MDS
form are identical to the results on the first MDS form,
except that the third MDS form states "BIMS res interview: can
report correct day of week 0. Incorrect or no answer" and
"BIMS res interview: able to recall 'blue' 1. Yes, no cue
required."
On March 23, 2012, Jon Adams, a physician's assistant,
completed a form titled "Troy Rehab Patient Summary" that
Troy Health attaches the circuit court's orders to its
4
brief before this Court, which we cannot consider. See
Patterson v. Consolidated Aluminum Corp., 101 So. 3d 743, 745
n. 5 (Ala. 2012) ("[E]vidence attached to or otherwise
described in an appellate brief but 'not made a part of the
record on appeal' is not properly before this Court. Spradlin
v. Drummond, Inc., 548 So. 2d 1002, 1005 (Ala. 1989).").
10
1140090
summarized Wilcoxon's condition at that time. Adams's notes
indicate that Wilcoxon was diagnosed with hypertension,
altered mental status, "syncope and collapse," history of
alcoholism,
alcohol-persistent
dementia,
lack
of
coordination,
malaise, and fatigue, among other things. According to
Adams's
notes,
Adams's
assessment
of
Wilcoxon
was
hypertension
and adult failure to thrive.
On April 9, 2012, Wilcoxon signed three documents. One
document was titled "Revocation of Power of Attorney," which
purportedly revoked the August 12, 2012, power of attorney
granted to Bean. That document was notarized. The notary's
certification states that
"before me a Notary Public personally appeared
Garnell Wilcoxon, personally known to me (or proved
to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within
instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his
signature on the instrument the person executed the
instrument."
The second document was titled "Durable General Power of
Attorney." That document purportedly authorized Mashburn to
"act in, manage, and conduct all [of Wilcoxon's] affairs."
That document was notarized and signed by two witnesses. The
notary's certification attached to that document states that
11
1140090
"[Wilcoxon] appeared before me this day ... and
being first duly sworn, executed said instrument
after the contents thereof had been read and duly
explained to him, and acknowledged that the
execution of said instrument by [him]self was his
free and voluntary act and deed for the uses and
purposes therein set forth, and the facts stated
therein are true."
The third document was titled "Durable Health Care Power
of Attorney." That document purportedly granted Mashburn the
power to act as Wilcoxon's attorney-in-fact in making "health
care and related personal decisions for [Wilcoxon] as
authorized in this document." The "Durable Health Care Power
of Attorney" states that Wilcoxon was "in full control of
[his] mental facilities
and
[understood] the contents of [the]
document and the effect of this grant of powers to [his]
agent"; it was signed by two witnesses, who attested, in part,
that "[we] believe [Wilcoxon] to be of sound mind and able to
make decisions of this kind."
On April 17, 2012, Troy Health evaluated Wilcoxon again
and completed another MDS form summarizing the findings of its
evaluation of Wilcoxon ("the fourth MDS form"). The fourth
MDS form is identical to the third MDS form, except that the
fourth MDS form states "BIMS res interview: able to recall
'blue' 1. Yes, after cueing ('a color')."
12
1140090
On April 18, 2012, Mashburn signed a document titled
"Troy Health & Rehabilitation Center's Dispute Resolution
Agreement" ("the 2012 arbitration agreement"). The 2012
arbitration agreement states "that all claims, disputes, and
controversies" between Wilcoxon and Troy Health "that would
constitute a cause of action in a court of law" "shall be
resolved by binding arbitration" and that "[Wilcoxon] and
[Troy
Health]
acknowledge
that
[Troy
Health]
regularly
engages
in
transactions
involving
interstate
commerce
and
the
services
provided by [Troy Health] to [Wilcoxon] involve such
interstate commerce."
Wilcoxon continued to reside at the Troy Health facility
until he died on June 6, 2012. Following Wilcoxon's death,
Brenda McFarland, another of Wilcoxon's daughters, filed a
complaint as the personal representative for Wilcoxon's
estate. McFarland's April 23, 2013, complaint asserts the
following claims: 1) medical malpractice; 2) negligence; 3)
breach
of
contract;
4)
negligent
hiring,
training,
supervision, and retention; and 5) loss of consortium.
On May 24, 2013, Troy Health filed an answer to
Wilcoxon's complaint. Troy Health asserted, in part, that
13
1140090
McFarland's claims were barred from being litigated in a court
of law "by virtue of an arbitration agreement entered into
between plaintiff and defendant." On July 9, 2013, Troy
Health filed a motion to compel arbitration. In that motion,
Troy Health sought, in part, to "[compel] arbitration of all
claims asserted by [McFarland] against Troy Health." Troy
Health argued that the 2012 arbitration agreement was
enforceable because, it said, it was an agreement requiring
arbitration,
the
transaction
involved
interstate
commerce,
and
the agreement was signed by Mashburn on behalf of Wilcoxon as
his attorney-in-fact.
On December 23, 2013, McFarland filed a response to Troy
Health's motion to compel arbitration. McFarland argued that
"Wilcoxon did not have the mental capacity to enter into the
contract with [Troy Health,] and he did not have the mental
capacity to give legal authority to enter into contracts on
his behalf with either Bean or Mashburn." According to
McFarland, "[t]he medical records document that Wilcoxon was
habitually and/or permanently incompetent." Therefore,
McFarland argued, both the 2011 arbitration agreement and the
2012 arbitration agreement were invalid.
14
1140090
On December 30, 2013, Troy Health filed a reply to
McFarland's response. Troy Health argued that both the 2011
arbitration agreement and the 2012 arbitration agreement were
due to be enforced because, Troy Health argued, McFarland did
not prove that Wilcoxon was incompetent to contract on May 20,
2011, and did not prove that Wilcoxon was incompetent to
execute the durable power of attorney in favor of Mashburn on
April 9, 2012.
On January 6, 2014, the circuit court conducted a hearing
on Troy Health's motion to compel arbitration. On September
22, 2014, the circuit court denied Troy Health's motion to
compel arbitration, stating:
"This cause comes before the Court on [Troy
Health's] motion to compel arbitration. Counsel for
the parties appeared and presented argument in
support of their respective positions. Having now
considered the pleadings of the parties, the
referenced exhibits, the arguments and contentions
of counsel and specifically the holding in SSC
Montgomery Cedar Crest Operating Company, LLC v.
Bolding, 130 So. 3d 1194 (Ala. 2013), [Troy
Health's] motion to compel arbitration is denied."
Troy Health appealed.
Standard of Review
The standard of review of a ruling denying a motion to
compel arbitration is well settled:
15
1140090
"'"This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc. v.
Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion to
compel arbitration is analogous to a motion for a
summary judgment. TranSouth Fin. Corp. v. Bell, 739
So. 2d 1110, 1114 (Ala. 1999). The party seeking to
compel arbitration has the burden of proving the
existence of a contract calling for arbitration and
proving that the contract evidences a transaction
affecting interstate commerce. Id. '[A]fter a motion
to compel arbitration has been made and supported,
the burden is on the non-movant to present evidence
that the supposed arbitration agreement is not valid
or does not apply to the dispute in question.' Jim
Burke Automotive, Inc. v. Beavers, 674 So. 2d 1260,
1265 n. 1 (Ala. 1995) (opinion on application for
rehearing)."'"
SSC Montgomery Cedar Crest Operating Co. v. Bolding, 130 So.
3d 1194, 1196 (Ala. 2013) (quoting Elizabeth Homes, L.L.C. v.
Gantt, 882 So. 2d 313, 315 (Ala. 2003)).
Discussion
Troy Health sets forth four arguments attempting to
demonstrate that the circuit court's decision to deny Troy
Health's motion to compel arbitration was in error. Troy
Health argues 1) that the 2011 arbitration agreement executed
by Wilcoxon was due to be enforced; 2) that the 2012
arbitration agreement executed by Mashburn on behalf of
Wilcoxon was due to be enforced; 3) that the circuit court
improperly relied on Bolding, supra; and 4) that Alabama
16
1140090
statutes and public policy support compelling arbitration in
this case. Troy Health's brief, at pp. 26, 32, 39, 44. Troy
Health's arguments that the 2011 arbitration agreement and the
2012 arbitration agreement were due to be enforced are
alternative, dispositive arguments: if either agreement was
due to be enforced, Troy Health is entitled to relief. We
find persuasive Troy Health's argument that the 2012
arbitration agreement was due to be enforced.
Before the circuit court, McFarland did not dispute that
the 2012 arbitration agreement is a "'"contract calling for
arbitration"'" that "'"evidences a transaction affecting
interstate commerce."'" Bolding, 130 So. 3d at 1196. Instead,
as set out above, McFarland argued that Wilcoxon was mentally
incompetent when he executed the April 9, 2012, durable power
of attorney in favor of Mashburn and that, therefore, the 2012
arbitration agreement, executed by Mashburn as Wilcoxon's
attorney-in-fact, was invalid. McFarland raises that same
argument before this Court, and, as before, does not dispute
that the 2012 arbitration agreement is a "'"contract calling
for arbitration"'" that "'"evidences a transaction affecting
interstate commerce."'" Thus, before this Court, the only
17
1140090
issue concerning the enforceability of the 2012 arbitration
agreement is whether Wilcoxon was mentally competent when he
executed the April 9, 2012, durable power of attorney in favor
of Mashburn.
"[T]he standard for determining whether a person is
competent to execute a power of attorney is whether
that person is able to understand and comprehend his
or her actions. Queen v. Belcher, 888 So. 3d 472,
477 (Ala. 2003). The burden initially falls on the
party claiming that the person who executed the
power of attorney was incompetent when he or she
executed the power of attorney. Id. If, however,
it is proven that the person who executed the power
of
attorney
was
habitually
or
permanently
incompetent before executing the power of attorney,
the burden shifts to the other party to show that
the power of attorney was executed during a lucid
interval. Id."
Yates v. Rathbun, 984 So. 2d 1189, 1195 (Ala. Civ. App. 2007).
Troy Health argues that McFarland, the party who claims
that Wilcoxon was mentally incompetent to execute the power of
attorney, failed to prove that Wilcoxon was not mentally
competent when he executed the April 9, 2012, durable power of
attorney
appointing
Mashburn
as
his
attorney-in-fact.
Additionally, Troy Health argues that McFarland failed to
prove that Wilcoxon was "permanently incompetent" in the time
before Wilcoxon executed the April 9, 2012, durable power of
attorney. We agree with both of Troy Health's arguments.
18
1140090
We first address Troy Health's argument that McFarland
failed to prove that Wilcoxon was not mentally competent when
he executed the April 9, 2012, durable power of attorney.
"The presumption is that every person is sane, until the
contrary is proven." Thomas v. Neal, 600 So. 2d 1000, 1001
(Ala. 1992) (citing Hardee v. Hardee, 265 Ala. 669, 93 So. 2d
127 (1956)). Additionally, "'"proof of insanity at intervals
or of a temporary character would create no presumption that
it continued up to the execution of the instrument, and the
burden would be upon the attacking party to show insanity at
the very time of the transaction."'" Wilson v. Wehunt, 631
So. 2d 991, 996 (Ala. 1994) (quoting Hall v. Britton, 216 Ala.
265, 267, 113 So. 238, 239 (1927)(emphasis added)).
In the present case, there are no facts demonstrating
that Wilcoxon was not mentally competent "at the very time" he
executed the April 9, 2012, power of attorney. Instead, there
are facts indicating the opposite. As set out above, on April
9, 2012, Wilcoxon also executed a durable health-care power of
attorney, which states that Wilcoxon was "in full control of
[his] mental facilities and [that Wilcoxon understood] the
contents of [the] document and the effect of this grant of
19
1140090
powers to [his] agent." The durable health-care power of
attorney was also signed by two witnesses, who attested, in
part, that "[we] believe [Wilcoxon] to be of sound mind and
able to make decisions of this kind."
We recognize that Wilcoxon was admitted to Troy Health
through
the
signature
of
Bean,
an
"authorized
representative,"
that Wilcoxon was diagnosed with "altered mental status" and
"alcohol persistent dementia,"
and that, before April
9,
2012,
three MDS forms concerning Wilcoxon had been completed, two of
which indicated that he was unable to correctly state the
year, the month, or the day of the week and one of which
indicated that Wilcoxon was unable to correctly state the year
and the month. Those general facts, however, are not facts
5
Concerning the MDS forms, McFarland also argues that "on
5
simple questions for any adult, specifically, what is a sock,
what is the color blue and what is a bed, Wilcoxon could not
answer the questions without being cued." However, there is
nothing before this Court explaining what questions Troy
Health employees asked Wilcoxon while completing the MDS
forms. Additionally, the first and second MDS forms merely
state:
"BIMS res interview: able to recall 'sock' 1.
Yes, after cueing ('something to wear')
"BIMS res interview: able to recall 'blue' 1.
Yes, after cueing ('a color')
"BIMS res interview: able to recall 'bed' 1.
20
1140090
concerning Wilcoxon's mental competency "at the very time" he
executed the April 9, 2012, power of attorney. Thus, because
nothing in the record before this Court demonstrates that
Wilcoxon was mentally incompetent at the time he executed the
April 9, 2012, durable power of attorney in favor of Mashburn,
we agree with Troy Health's argument that McFarland, as the
party challenging the power of attorney, failed to prove that
Wilcoxon was not mentally competent when he executed the April
9, 2012, durable power of attorney.
Next, we consider Troy Health's argument that McFarland
failed to prove that Wilcoxon was "permanently
incompetent"
in
the time before he executed the April 9, 2012, durable power
of attorney. In response, McFarland argues that Wilcoxon's
diagnosis of "altered mental status" and "alcohol persistent
dementia," as well as the three MDS evaluations conducted on
Wilcoxon before April 9, 2012, evidenced habitual
or
permanent
incompetence, such that the burden shifted to Troy Health to
Yes, after cueing ('a piece of furniture')."
Thus, nothing in the record before this Court supports
McFarland's assertion that Wilcoxon was asked "what is a sock,
what is the color blue, and what is a bed" and could not
answer without being cued. Accordingly, the import of that
assertion need not be addressed further.
21
1140090
show that Wilcoxon executed the April 9, 2012, power of
attorney during a lucid interval. McFarland's brief, at p.
30. McFarland's argument is unpersuasive.
A diagnosis of dementia does not determine dispositively
that a person is "permanently incompetent," as that term is
used to describe the mental incapacity necessary to justify
the avoidance of a power of attorney. In Ex parte Chris
Langley Timber & Management, Inc., 923 So. 2d 1100 (Ala.
2005), Clayton M. Reynolds was diagnosed with Alzheimer's
type
dementia prior to executing certain timber deeds in favor of
Chris Langley Timber and Management, Inc. ("Langley Timber").
6
923 So. 2d at 1102. The trial court found that Reynolds
lacked the mental capacity necessary to execute the timber
deeds, and it entered a summary judgment setting aside the
deeds. The Court of Civil Appeals affirmed the trial court's
judgment, but this Court reversed the Court of Civil Appeals'
The mental capacity required to execute an inter vivos
6
conveyance of property, such as a timber deed, is the same as
that required to grant a power of attorney. Queen v. Belcher,
888 So. 2d 472, 477 (Ala. 2003) ("A trust agreement is an
inter vivos conveyance
of
property, and is, therefore, subject
to the standard governing conveyances. ... This same higher
standard has also been applied to powers of attorney. See
Morris v. Jackson, 733 So. 2d 897 (Ala. Civ. App. 1999).").
22
1140090
judgment. This Court reasoned that the Court of Civil
Appeals' judgment was improper, in part because it impliedly
held that Reynolds's diagnosis of Alzheimer's type dementia,
without more, constituted "permanent insanity," such that
Reynolds lacked the mental capacity necessary to execute the
timber deeds. This Court stated:
"The Court of Civil Appeals impliedly held that
Reynolds's
Alzheimer's
disease
constituted
'permanent insanity' .... While it may be apparent
that the dementia caused by Reynolds's Alzheimer's
disease was 'permanent' in nature as distinguished
from temporary, it is not so apparent that the state
of Reynolds's dementia constituted 'insanity' as
that term is used to describe the mental incapacity
necessary to justify the avoidance of a contract or
a deed.
"To determine whether Reynolds's dementia
amounted to insanity so as to render the timber
deeds void, the proper inquiry is whether the
Alzheimer's dementia permanently deprived Reynolds
of '"'sufficient capacity to understand in a
reasonable manner the nature and effect of'"' his
signing the timber deeds. See Wilson [v. Wehunt, 631
So. 2d, 991, 996 (Ala. 1994)]."
923 So. 2d at 1105-06.
In the present case, there is nothing in the record
explaining the effects of "alcohol persistent dementia" and
"altered mental status" on a person. There is nothing in the
record
indicating
the
effects
of
"alcohol
persistent
dementia"
23
1140090
and "altered mental status" on Wilcoxon's "capacity to
understand in a reasonable manner the nature and effect of"
his actions. And there is nothing in the record indicating
whether the effects of "alcohol persistent dementia" and
"altered mental status" on Wilcoxon's mental competency, if
present, were permanently present in Wilcoxon or, instead,
occurred "at intervals." Even assuming, arguendo, that those
diagnoses were permanent, this Court's decision in Ex parte
Chris
Langley
Timber
indicates
that
Wilcoxon's
diagnoses
would
not dispositively prove that Wilcoxon was "permanently
incompetent," as that term is used to describe the mental
incapacity necessary to justify the avoidance of a grant of a
power of attorney. Thus, McFarland's reliance on Wilcoxon's
7
diagnoses
of
"alcohol
persistent
dementia"
and
"altered
mental
status" to demonstrate "permanent insanity," without more,
does not satisfy her burden under the applicable evidentiary
standard.
McFarland attempts to factually distinguish the present
7
case from Ex parte Chris Langley Timber. McFarland's brief,
at p. 23. However, McFarland does not dispute that the
general rule from Ex parte Chris Langley Timber applies to the
present case.
24
1140090
Similarly, there is nothing in the record before this
Court explaining the effects of a BIMS classification of
"severely impaired" on Wilcoxon's mental competency. We
recognize that two of the three MDS forms completed before
April 9, 2012, indicate that Wilcoxon was unable to correctly
state the year, month, or day of the week and that one MDS
form indicates that Wilcoxon was unable to correctly state the
year or the month; however, those same forms also indicate
that at that time Wilcoxon had clear speech, that he was
usually able to make himself understood, that he was usually
able to understand others, and that he did not have any signs
of inattention, disorganized thinking, or an altered level of
consciousness. Furthermore, McFarland does not direct this
Court to any case demonstrating that Wilcoxon's inability to
correctly state the year, month, and day of the week
constitutes permanent incompetence sufficient to shift the
burden of proof to Troy Health to demonstrate that Wilcoxon
executed the April 9, 2012, power of attorney during a lucid
interval. Consequently, we agree with Troy Health's argument
that McFarland failed to demonstrate that Wilcoxon was
incompetent. Accordingly, the burden remained on McFarland
25
1140090
to demonstrate that Wilcoxon was mentally incompetent at the
time he executed the April 9, 2012, durable power of attorney
in favor of Mashburn. As detailed above, McFarland has failed
to meet that burden.
Conclusion
Because McFarland failed to prove that Wilcoxon was
mentally incompetent when he executed the April 9, 2012,
durable power of attorney naming Mashburn as his attorney-in-
fact and also failed to demonstrate that Wilcoxon was
"permanently incompetent" before that date, and because there
is no other issue concerning the validity of the 2012
arbitration agreement, the 2012 arbitration agreement is due
to be enforced. Thus, the circuit court's decision denying
Troy Health's motion to compel arbitration was in error, and
Troy Health is entitled to relief based on this ground.
Consequently, we reverse the circuit court's order and remand
the case for proceedings consistent with this opinion. Our
resolution of this issue pretermits discussion of Troy
Health's other arguments.
REVERSED AND REMANDED.
Stuart, Main, and Wise, JJ., concur.
26
1140090
Bolin, Murdock, Shaw, and Bryan, JJ., concur in the
result.
27 | August 28, 2015 |
58bfbbb5-9efb-4964-8ce5-f6394109211a | Ex parte Ronald Hampton, et al. | N/A | 1140341 | Alabama | Alabama Supreme Court | Rel:09/30/2015
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, 2015
____________________
1140341
____________________
Ex parte Ronald Hampton et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Brenda Franks
v.
Ronald Hampton et al.)
(Choctaw Circuit Court, CV-12-900041)
BOLIN, Justice.
Petitioners
Ronald
Hampton,
Darry
Phillips, Wayne
Taylor,
Isaac Johnson, and Sharon Sheppard are members of the Choctaw
1140341
County Board of Education (hereinafter collectively referred
to as "the Board members"). Petitioner Sue Moore is the
superintendent of the Choctaw County Public School System.
The petitioners seek an order compelling the Choctaw Circuit
Court to vacate its denial of their summary-judgment motion
and to enter summary judgment in their favor on the ground
that the trial court lacks subject-matter jurisdiction over
the claims because of the plaintiff's death and the
petitioners' immunity.
Facts and Procedural History
Brenda Franks was a former nontenured employee of the
Choctaw County Public School System. Before the 2008-2009
school year, Franks had been employed as a full-time counselor
in the school system for three years when her contract was not
renewed. For the 2008-2009 school year, Franks was offered
and accepted a part-time, temporary position as a vocational
counselor starting in February 2009. She signed an employment
contract acknowledging that the position was temporary. She
also signed a "Letter of Understanding Concerning Temporary
Employment" that stated her employment was a temporary
condition and that continued employment was conditioned upon
2
1140341
a
"suitability determination" made upon receipt of a
completed
criminal-history background check and that if, after the
background check, she was
found
unsuitable, the termination of
her employment would be without recourse against the school
system. Franks worked pursuant to the contract for five
months.
On May 27, 2009, the superintendent notified Franks, in
writing, of her intention to recommend that the Board members
cancel the contract because of a "justifiable decrease in jobs
in the system" as provided for in Ala. Code 1975, § 16-24-8
(now repealed). Franks's notice stated that if the Board
1
members voted to cancel the contract, a contest of the
cancellation would be heard in accordance with Ala. Code 1975,
§ 16-24-10 (now repealed). On June 25, 2009, the Board
members approved the recommendation to cancel the contract.
Franks did not contest the contract cancellation. In July
2010, the Board members posted a vacancy for a business-
education teacher. Franks applied for the vacant position,
but was not hired.
Section 16-24-8 was part of the former Teacher Tenure
1
Act, which was repealed in 2011 and replaced by the Students
First Act, Ala. Code 1975, § 16-24C-1 et seq.
3
1140341
On July 31, 2012, Franks filed a "Complaint for a
Declaratory Judgment, Writ of Mandamus, and Injunctive
Relief." In her complaint, Franks asserted that the Board
members had terminated her employment based on a reduction in
force (hereinafter "RIF"). A RIF reduces professional staff
employed by a school system and sets out procedures to be
followed regarding the affected staff members. See Ala. Code
1975, § 16-1-33 (requiring all city and county boards of
education to adopt a written RIF policy regarding layoffs,
recalls, and notification of the RIF). Franks asserted that
she was entitled to be hired for the business-education
teaching position pursuant to the school system's RIF policy.
Franks sought to be instated to that position, with backpay,
interest, and restoration of progress toward tenure. Franks
sued the superintendent and the Board in their official or
representative capacities.
On December 6, 2013, the petitioners moved for a summary
judgment on the ground that they were entitled to sovereign
immunity because they were sued in their official or
representative capacities. They further argued that State-
agent immunity barred any claims against the superintendent
4
1140341
and that discretionary-function immunity barred any claims
against the Board members. The petitioners also argued, among
other things, that no RIF was ever implemented by the Board
relative to the termination of Franks's employment. Franks
argued that § 14, Ala. Const. 1901, immunity is not absolute
in every situation and that her claims against the
superintendent
and
Board
members
fell
under
several
"exceptions" to § 14 immunity. The trial court denied the
summary-judgment motion on November 14, 2014.
On December 12, 2014, the petitioners filed a suggestion
of death with the trial court, stating that Franks had died on
December 9, 2014. On January 6, 2015, the petitioners filed
this petition for writ of mandamus. Franks's estate was
timely substituted as the plaintiff pursuant to Rule 25, Ala.
R. Civ. P.
Standard of Review
"'"The writ of mandamus is a drastic
and extraordinary writ, to 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 United Serv. Stations,
Inc., 628 So. 2d 501, 503 (Ala. 1993); see
5
1140341
also Ex parte Ziglar, 669 So. 2d 133, 134
(Ala. 1995)." Ex parte Carter, [807 So. 2d
534,] 536 [(Ala. 2001)].'
"Ex parte McWilliams, 812 So. 2d 318, 321 (Ala.
2001).
"'Subject to certain narrow exceptions ..., we
have held that, because an 'adequate remedy' exists
by way of an appeal, the denial of a motion to
dismiss or a motion for a summary judgment is not
reviewable by petition for writ of mandamus.' Ex
parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758,
761–62 (Ala. 2002)."
Ex parte Kohlberg Kravis Roberts & Co., 78 So. 3d 959, 965-66
(Ala. 2011). The narrow exceptions when mandamus review is
available include when the petitioner challenges the subject-
matter jurisdiction of the trial court, Ex parte HealthSouth
Corp., 974 So. 2d 288, 292 (Ala. 2007), or when the petitioner
asserts immunity. Ex parte Alabama Peace Officers' Standards
& Training Comm'n, 34 So. 3d 1248 (Ala. 2009).
Discussion
Franks alleged that her employment had been terminated
owing to a RIF and that she was entitled to be hired for a
vacant teaching position pursuant to the school system's RIF
policy. She sought to be appointed to the teaching position,
backpay,
interest,
and
restoration
of
progress
towards
tenure.
In short, Franks sought injunctive relief in the form of
6
1140341
appointment to the teaching position and monetary relief in
the form of backpay and interest.
Rule 25(a)(1), Ala. R. Civ. P., governs the substitution
of parties after the death of a plaintiff. The rule provides
for substitution of proper parties where claims are "not
thereby extinguished" by the death of a party. Section 6-5-
462, Ala. Code 1975, provides:
"In all proceedings not of an equitable nature,
all claims upon which an action has been filed and
all claims upon which no action has been filed on a
contract, express or implied, and all personal
claims upon which an action has been filed, except
for injuries to the reputation, survive in favor of
and against personal representatives; and all
personal claims upon which no action has been filed
survive against the personal representative of a
deceased tortfeasor."
The parties agree that Franks's claim for injunctive
relief in the form of compelling the petitioners to install
Franks to the teaching position is moot. A moot case lacks
justiciability, and an action that originally was based on a
justiciable act cannot be maintained on appeal if subsequent
acts or events have made the questions raised on appeal moot.
Chapman v. Gooden, 974 So. 2d 972 (Ala. 2007).
We now turn to Franks's claim for a judgment declaring
"that the [petitioners] have failed and refused to accord
7
1140341
[Franks] the rights and benefits to which she is entitled"
under the school Board's RIF policy and her mandamus petition
"requiring [the petitioners] to provide her the full benefits
of said [RIF] policy including ... backpay" and interest.
(Franks's
amended
complaint.)
Franks's
estate
was
substituted
as a party pursuant to Rule 25, and her claim for monetary
relief was not "extinguished" upon her death. However, we
must address the immunity defense asserted by the Board
members and the superintendent.
It is well settled that the State is generally immune
from suit under § 14 of the Alabama Constitution of 1901. It
is also well settled that one cannot sue the State indirectly
by suing an officer in his or her official capacity. County
boards of education, along with the members of the those
boards sued in their official or representative capacities,
also enjoy the protection of immunity provided by § 14 when
the action against them is effectively an action against the
State. See Ex parte Montgomery Cnty. Bd. of Educ., 88 So. 3d
837 (Ala. 2012)(holding that the county board of education and
members of the board of education in their official capacities
were immune from suit under § 14 on a tort claim brought on
8
1140341
behalf of an elementary-school student who was injured in a
restroom); Ex parte Monroe Cnty. Bd. of Educ., 48 So. 3d 621
(Ala. 2010)(holding that for the purposes of sovereign
immunity, county boards of education are considered agencies
of the State).
Section 14 immunity is not absolute; there are actions
that are not barred by the general rule of immunity.
"[C]ertain actions are not barred by § 14. There are
six general categories of actions that do not come
within the prohibition of § 14: (1) actions brought
to compel State officials to perform their legal
duties; (2) actions brought to enjoin State
officials from enforcing an unconstitutional law;
(3) actions to compel State officials to perform
ministerial acts; (4) actions brought against State
officials under the Declaratory Judgments Act, Ala.
Code 1975, § 6–6–220 et seq., seeking construction
of a statute and its application in a given
situation; (5) valid inverse condemnation actions
brought
against
State
officials
in
their
representative
capacity;
and
(6)
actions
for
injunction
or
damages
brought
against
State
officials in their representative capacity and
individually where it was alleged that they had
acted fraudulently, in bad faith, beyond their
authority, or in a mistaken interpretation of law.
See Drummond Co. v. Alabama Dep't of Transp., 937
So. 2d 56, 58 (Ala. 2006)(quoting Ex parte Carter,
395 So. 2d 65, 68 (Ala. 1980)); Alabama Dep't of
Transp. v. Harbert Int'l, Inc., 990 So. 2d 831 (Ala.
2008) (holding that the exception for declaratory-
judgment actions applies only to actions against
State officials). As we confirmed in Harbert, these
'exceptions' to sovereign immunity apply only to
actions brought against State officials; they do not
9
1140341
apply to actions against the State or against State
agencies. See Alabama Dep't of Transp., 990 So. 2d
at 840–41."
Ex parte Alabama Dep't of Fin., 991 So. 2d 1254, 1256–57 (Ala.
2008). The sixth "exception" to § 14 immunity was restated in
Ex parte Moulton, 116 So. 3d 1119, 1141 (Ala. 2013), as
follows:
"(6)(a) actions for injunction brought against State
officials in their representative capacity where it
is alleged that they had acted fraudulently, in bad
faith, beyond their authority, or in a mistaken
interpretation of law, Wallace v. Board of Education
of Montgomery County, 280 Ala. 635, 197 So.2d 428
(1967), and (b) actions for damages brought against
State officials in their individual capacity where
it is alleged that they had acted fraudulently, in
bad faith, beyond their authority, or in a mistaken
interpretation of law, subject to the limitation
that the action not be, in effect, one against the
State. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.
1989)."
Franks sued the Board and the superintendent asserting
that her employment was terminated as a result of a RIF.
Section 16–1–33(b), Ala. Code 1975, provides that "[e]ach
board shall adopt a written reduction-in-force policy
consistent with Section 16–1–30, [Ala. Code 1975]. The policy
shall include, but shall not be limited to, layoffs, recalls,
and notifications of layoffs and recalls." The RIF policy of
the board shall be based on "objective criteria." § 16-1-
10
1140341
33(b). A "layoff" is defined in § 16–1–33(a)(3) as "[a]n
unavoidable reduction in the work force beyond normal
attrition due to decreased student enrollment or shortage of
revenues." The Board adopted its RIF policies and procedures
in 2002.
The Board's RIF policy provides:
"In the event it becomes necessary to reduce the
number of professional staff employed by the Choctaw
County Board of Education due to a decrease in
student enrollment, financial exigency, changes in
curriculum, consolidations or reorganization, the
following procedure shall be followed to determine
staff members to be affected.
"I. Attrition by resignation, retirement or
voluntary leaves of absence shall be the first
method used to reduce the force.
"II. Based on the philosophy of maintaining the
best educational program possible, the Choctaw
County Board of Education, upon recommendation of
the
Superintendent,
shall
identify
the
grade
level(s) and discipline area(s) from which staff
members are to be reduced in force at respective
times. For the purpose of reduction in force the
following terms are defined:
"A.
Grade
Level
-
Kindergarten,
elementary grades 1-6, secondary grades 7-
12,
administration
and
supervision,
special
education,
counseling
and
guidance,
career/technical programs, and federal
programs.
"B. Discipline Area - Certificate
endorsement area(s) and current major
11
1140341
teaching
or
administration/supervisory
assignment(s) within the Choctaw County
School System.
"III. Following the identification of the grade
level(s) and discipline area(s), the number of staff
to be reduced from each area(s) will be determined
by the Board, based on a recommendation by the
Superintendent.
All
staff
members
within
the
identified area(s) will be rank ordered from the
greatest amount of service time to the least amount
of service time within the Choctaw County School
System. The staff member(s) with the least amount of
continuous service time (seniority), based on actual
date of employment as reflected in the Choctaw
County Board of Education minutes, shall be the
first to be reduced in force. In the event two (2)
or more staff members have the same amount of
continuous service time with the Choctaw County
School System based on Board minutes, the following
additional criteria will be used to determine the
order of reduction of force.
"A. Degree(s) held by the staff member
(the staff member with the lower degree to
be reduced).
"B. Total years of experience in
education (the staff member with the least
number of years experience to be reduced
first).
"C. If tied at this point, the staff
member with the lowest social security
number (last four numbers) will be reduced
first.
"CHAPTER 6.00 - HUMAN RESOURCES
"IV. In order for a staff member selected to be
reduced in force by these procedures to displace a
staff member in another discipline area with less
12
1140341
service time, said staff member must be certified to
handle the entire position of the employee they seek
to displace. No tenured teacher will be reduced in
force when a position is either vacant or occupied
by a non-tenured teacher and for which the tenured
teacher is certified. In no case shall a staff
member from the central office work site be able to
displace a staff member from the local school work
site or vice versa.
"V. The above procedure shall not violate any
applicable court order.
"VI. The names of personnel reduced in force
shall be placed in a Choctaw County School System
employment pool. Said personnel shall be given the
opportunity in reverse order of their layoff to fill
the first comparable employment vacancies for which
they are qualified.
"VII. It is understood that reduction in force
constitutes termination of employment and all
benefits provided by the Choctaw County School
System cease on the effective date."
The petitioners argue that Franks's claims do not come
under any of the "exceptions" to § 14 immunity. They argue
that they had no legal duty to instate Franks to the vacant
teaching position under the school board's RIF policy when the
termination of Franks's employment was not a result of a RIF
being implemented by the Board members. They also argue that
implementing a RIF is a discretionary act and not a
ministerial one. The petitioners argue that Franks's claim
for declaratory relief is not an "exception" because
13
1140341
declaratory relief is outside § 14 immunity when the
injunctive relief seeks no more than the construction of a
statute and how it should be applied. Here, they argue that
Franks is seeking a declaration of rights under the school
board's discretionary policy. Last, the petitioners argue
that they were not acting under a mistaken interpretation of
law when they did not install Franks to the vacant teaching
position because there was no statute or board policy
requiring them to do so.
In Board of School Commissioners
of Mobile County v. Weaver, 99 So. 3d 1210 (Ala. 2012),
assistant principals in
the
school system originally received
a letter stating that their contracts were not being renewed
but that they would be assigned to nine-month teaching
contracts in their area of certification, which is referred to
as a partial cancellation of their contracts. The assistant
principals were subsequently sent a second letter that
provided that the school board was recommending a partial
cancellation of their contracts. The second letter provided
that the partial cancellation was the result of a RIF and that
recalls to assistant-principal positions would be
based
on the
school board's RIF policy. Subsequently, some of the
14
1140341
assistant principals discovered that others with less
seniority
were
being
rehired
for
assistant-principal
positions. The assistant principals sued the school board and
the superintendent seeking reinstatement and backpay. The
school board contended that the second letter was a mistake
and that no RIF had been declared. The trial court entered a
judgment in favor of the assistant principals. The school
board and the superintendent appealed.
This Court in Weaver reversed the trial court's judgment.
We held that the school board was immune from suit because
none of the exceptions to § 14 extend only to actions against
State officials and not to actions against State agencies. As
to the superintendent, the assistant principals argued that
the superintendent had a legal duty to comply with the RIF
policy and that their action was brought to compel the
superintendent to perform her duty. We held that the
superintendent is not vested with the authority to employ or
to terminate principals and teachers beyond making a
recommendation to the school board. We stated:
"Assuming, without deciding, that a duty did arise
on behalf of Superintendent Nichols to implement the
reduction-in-force policy based on the circumstances
surrounding the representations contained in the
15
1140341
letter of May 9, it was the Board's individual
members in their official capacities who were vested
with the authority to provide the plaintiffs with
the ultimate relief sought, i.e., reinstatement to
their positions with backpay. § 16–8–23, Ala. Code
1975. Like the situation presented in Ex parte
Bessemer Board of Education, [68 So. 3d 782 (Ala.
2011)], where the Board members were vested with the
statutory duty to pay the plaintiff teacher her
appropriate salary increase, it was the individual
board members in this case who were vested with the
statutory authority to reinstate the plaintiffs to
their positions as assistant principals. However,
unlike the situation presented in Ex parte Bessemer
Board of Education, the individual Board members in
this case were not sued and were not made parties in
this case. Only the Board and Superintendent Nichols
were made parties to this case. The Board is
entitled to absolute immunity, and Superintendent
Nichols is not vested with the authority under §
16–8–23, Ala. Code 1975, to grant the plaintiffs the
relief they request. Accordingly, we cannot conclude
that
this
action
is
an
action
to
compel
Superintendent Nichols to perform a legal duty;
thus, it does not fall within the first designated
'exception' to § 14 immunity."
99 So. 3d at 1220-21.
Like the superintendent in Weaver, the superintendent in
the present case cannot provide Franks with the relief she
requested. The superintendent makes recommendations to the
school board with respect to personnel matters. Section 16-8-
23, Ala. Code 1975, provides that "[t]he county board of
education shall appoint, upon the written recommendation of
the county superintendent, all principals, teachers, clerical
16
1140341
and professional assistants authorized by the board." The
superintendent had the authority only to make recommendations
to the school board.
With regard to the Board members, we cannot say that the
holding in Weaver means that the Board members in the present
case have a legal duty to provide Franks with the relief she
requested. First, Weaver is factually distinguishable. In
Weaver, the school board mistakenly informed the assistant
principals that their jobs had been partially cancelled due to
a RIF and that rehiring would be done pursuant to that school
board's RIF policy. The trial court in Weaver found that the
school board and the superintendent had to comply with the RIF
policy based on the theory of estoppel. In the present case,
the Board members did not vote to implement a RIF, nor was
Franks notified that the termination of her employment was the
result of a RIF or that any "recall" would be based on the RIF
policy. Instead, Franks was notified that her contract for a
part-time, temporary vocational counselor was being canceled
because of a "justifiable decrease in jobs in the system" as
provided for in § 16-24-8 (now repealed). The Board members
approved the superintendent's recommendation to cancel
17
1140341
Franks's contract, and Franks was notified that she could
contest the cancellation pursuant to § 16-24-10 (now
repealed). Franks did not seek redress under § 16-24-10.
Weaver is also distinguishable from the present case
because, in Weaver, this Court stated that if a legal duty
existed, it was the school-board members in their official
capacities who had the authority to grant the assistant
principals the relief they requested, and not the school board
or the superintendent. Here, the Board members are vested
with the authority to hire and fire school employees.
However, this does not mean that the Board members had an
imperative duty to hire Franks as
a
business-education teacher
and to provide her with backpay and benefits. Section 16-1-33
requires school boards to adopt a written RIF policy that
includes "layoffs, recalls, and notifications of layoffs and
recalls." The Board members met this requirement in 2002.
The adoption of the RIF policy did not require the Board
members to implement the RIF policy anytime an employee's
contract was not renewed. Here, no RIF was voted on by the
Board members, Franks was not notified that her contract was
18
1140341
being canceled because of a RIF, and former § 16-24-8 was in
2
operation at the time Franks's contract was canceled.
In Belcher v. Jefferson County Board of Education, 474
So. 2d 1063 (Ala. 1980), two nontenured teachers contended
that the county board of education had failed to evaluate them
as required by the evaluation policy it had adopted. In that
case, the board had adopted a specific written policy
governing teacher evaluations. 474 So. 2d at 1066. The
teachers
asserted
negligence,
violation
of
due-process
rights,
and breach-of-contract claims based on the board's failure to
follow its evaluation policy. The trial court dismissed the
actions, concluding that the teachers had failed to state a
claim upon which relief could be granted. See Rule 12(b)(6),
Ala. R. Civ. P. This Court reversed the dismissal of the
teachers' breach-of-contract claims, holding that "the Board
of Education did not legally have to follow any particular
evaluation policy absent its own self-imposed procedures.
Having adopted a policy, however, the Board is bound to follow
it." Belcher, 474 So. 2d at 1068. Belcher is distinguishable,
Section 16-24C-6, Ala. Code 1975, now addresses teacher
2
termination for a "justifiable decrease in the number of
positions."
19
1140341
however, because it involved a motion to dismiss, and the
present case involves a motion for a summary judgment.
Belcher is also distinguishable because the RIF policy had not
been invoked in the present case.
Nelson v. Meggison, 165 So. 3d 567 (Ala. 2014), involved
a declared RIF by a school board. Nontenured teachers and
probationary employees brought a class action against the
members of the school board in their official capacities and
the superintendent. The plaintiffs alleged that their
employment had been terminated as a result of a RIF and that
failure to rehire them violated the school board's RIF policy.
The trial court granted the defendants' motion to dismiss
based on the two-year statute of limitations the court
concluded was applicable. This Court held that, viewing the
allegations in the complaint in a light most favorable to the
plaintiffs, as required under the standard of review
applicable to a ruling on a motion to dismiss, the complaint
stated a breach-of-contract claim subject to a six-year
statute of limitations. In reviewing the school board's
policy, we stated:
"We see no way to read the ... language in the
policy
concerning
nontenured
and
probationary
20
1140341
employees other than as an exception to the general
statement that the policy does not give such
employees a contractual right to employment. The
exception arises when a reduction in force is
declared and the principal of a particular school
designates a nontenured employee or a probationary
employee as an individual who would have been
rehired but for the reduction in force. Under those
conditions, a nontenured or probationary employee
possesses a 'one time recall right ... for one
calendar year from the effective date of his or her
termination.'
"....
"Thus, the plaintiffs in their complaint generally
claimed that the policy provided a recall right to
which they were entitled. Of course, in order to
prevail on such a claim, the plaintiffs will face
the burden of proving that they met the conditions
necessary to qualify for the recall right. As we
noted in the 'Standard of Review,' in evaluating a
motion to dismiss, a court views the allegations of
the complaint most strongly in the pleader's favor
and such a motion should be granted only when it
appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would
entitle the plaintiff to relief. It is conceivable
that the plaintiffs could prove a set of facts under
which they had a contractual right the defendants
violated and for which they are entitled to
substantive relief."
165 So. 3d at 573-74 (footnote omitted). In contrast, the
present case was before the trial court on a summary-judgment
motion. Additionally, and as discussed earlier, the Board
members had not voted to implement the Board's RIF policy.
21
1140341
The present case is also distinguishable from Ex parte
Bessemer Board of Education, 68 So. 3d 782 (Ala. 2011). In
Bessemer Board, the legislature gave public-school teachers a
pay increase based on their years of service. One of the
teachers employed by the Bessemer Board sued, among others,
the board members in their official capacities, alleging that
her statutory pay raise had been miscalculated. We held that
the board members had a statutory duty to pay the teacher the
appropriate pay increase and that, in doing so, they were
performing a ministerial act. Because the board members were
performing a ministerial function instead of a discretionary
function, they were not entitled to § 14 immunity from the
teacher's action to compel them to fulfill their statutory
duty to pay her the appropriate pay increase.
In Bessemer Board, we concluded that the school-board
members had a statutory duty to pay teachers the appropriate
salary
increases in accordance with the legislative pay
raise.
The basis of the teacher's suit "involve[d] [the board
members'] obedience to the statute; it [did] not involve any
discretion." 68 So. 3d at 790. Although the Board members in
the present case were statutorily required to adopt a RIF
22
1140341
policy (which they did), the language of the Board's RIF
policy necessitates that a determination be made as to whether
circumstances in the school system are present so as to
trigger a reduction in the workforce, layoffs, and recalls.
The Board members must decide whether it is "necessary to
reduce the number of staff due to a decrease in student
enrollment, financial exigency, changes in curriculum,
consolidation, or reorganization" to warrant establishing the
seniority of employees for layoffs and recalls. The mere
adoption of a RIF policy did not mandate its implementation
when one employee's contract was not renewed pursuant to the
former Teacher Tenure Act.
In Harris v. Owens, 105 So. 3d 430 (Ala. 2012), a former
state-university employee brought an action against the
university president and the individual members of the
university's
board
in
their
official
capacities,
alleging
that
her
employment had been wrongfully terminated. The trial
court
found that the university had not complied with the procedures
set forth in its employee handbook and that the former
employee was entitled to backpay and benefits. This Court
held:
23
1140341
"In this case, § 14 immunizes the [university
president and individual board members] from any
claim for monetary damages. Therefore, the circuit
court did not have subject-matter jurisdiction over
[the former employee's] claim for backpay and
benefits. See Ex parte Alabama Dep't of Transp., 978
So. 2d 17 (Ala. 2007). '"'"Lacking subject matter
jurisdiction [a court] may take no action other than
to exercise its power to dismiss the [claim].... Any
other action taken by a court lacking subject matter
jurisdiction
is
null
and
void."'"
Ex
parte
Blankenship,
893
So.
2d
[303,]
307
[(Ala.
2004)](quoting State v. Property at 2018 Rainbow
Drive, 740 So. 2d 1025, 1029 (Ala. 1999), quoting in
turn Beach v. Director of Revenue, 934 S.W.2d 315,
318 (Mo. Ct. App. 1996)).' Ex parte Alabama Dep't of
Transp., 978 So. 2d at 27. Thus, the circuit court's
order was void to the extent it purported to award
backpay and benefits to Owens."
105 So. 3d at 435. Here, Franks's request for declarative and
injunctive relief involves monetary relief, and § 14 immunity
bars
any
action
characterized
as
a
declaratory-judgment
action
or a writ of mandamus "when it is nothing more than an action
for damages." Lyons v. River Road Constr. Co., 858 So. 2d
257, 263 (Ala. 2003).
In Ex parte Moulton, 116 So. 3d at 1141, this Court
restated the sixth "exception" to the sovereign-immunity bar
under § 14 to clarify that a suit for injunctive relief
against a State official in his or her individual capacity
24
1140341
would be meaningless because State officials act for and
represent the State only in their official capacities.
Here, Franks sought injunctive relief in the form of
instatement to a position under the Board's RIF policy. She
sued the Board members in their official or representative
capacities. However, the petitioners could not have acted
under a mistaken interpretation of
law because the petitioners
did not terminate Franks's employment pursuant to the RIF
policy.
Conclusion
Franks's claim for instatement to the teaching position
along with backpay and interest were premised on her
allegation that the petitioners had a legal, nondiscretionary
duty to recall her to a position following her termination
based on the Board's RIF policy. However, the Board's RIF
policy did not apply to Franks's termination from her
temporary, part-time job as a vocational counselor. A RIF
was never implemented by the school board. Franks did not
receive
correspondence
from
the petitioners
that
her
employment was being terminated as the result of a RIF.
Instead,
Franks's
employment
was
terminated
pursuant
to
former
25
1140341
§ 16-24-8. The Board's adoption of its RIF policy in 2002
did not mandate its implementation whenever there is a
termination based on lack of funding, particularly when the
decrease in jobs was one part-time position. The Board
members must decide whether it is "necessary to reduce the
number of staff due to a decrease in student enrollment,
financial exigency, changes in curriculum, consolidation, or
reorganization" to warrant establishing the seniority of
employees for layoffs and recalls. Franks's claims do not
come within the category of actions excluded from § 14
immunity. The petitioners did not have a legal duty or a
ministerial act to perform, nor did Franks's claims involve
the interpretation of a statute that applied under these
facts. Also, the petitioners were not acting under a mistaken
interpretation of law. Because the superintendent and the
Board members have demonstrated immunity pursuant to § 14,
they have established a clear legal right to a summary
judgement on the claims asserted against them in their
official capacities. Therefore, we grant the petition and
issue a writ directing the Choctaw Circuit Court to vacate its
order denying the petitioners' summary-judgment motion and to
26
1140341
enter a summary judgment on all the claims asserted against
the superintendent and the Board members.
PETITION GRANTED; WRIT ISSUED.
Stuart, Parker, Shaw, Main, and Wise, JJ., concur.
Moore, C.J., and Murdock and Bryan, JJ., concur in the
result.
27 | September 30, 2015 |
6ce1c39a-eea9-4ed3-84de-eb7455a550dc | Ex parte Christopher Eric Dalton. | N/A | 1130197 | Alabama | Alabama Supreme Court | REL: 09/30/2015
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, 2015
____________________
1130197
____________________
Ex parte Christopher Eric Dalton
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Christopher Eric Dalton
v.
State of Alabama)
(Lee Circuit Court, CC-09-84.60; -09-84.61;
-09-84.62; and -09-84.63;
Court of Criminal Appeals, CR-11-1218)
MURDOCK, Justice.
I. Procedural History
In February 2009, Christopher Eric Dalton pleaded guilty
to two counts of attempted murder, one count of breaking and
1130197
entering an automobile, and one count of misdemeanor theft.
Dalton was sentenced to 2 terms of 30 years' imprisonment for
his
attempted-murder
convictions,
a
5-year
prison
sentence
for
his unlawful-breaking-and-entering conviction, and a 1-year
prison sentence for his theft-of-property conviction. The
sentences were to run concurrently.
In November 2009, Dalton filed his first Rule 32, Ala. R.
Crim. P., petition. Dalton alleged that his counsel was
constitutionally ineffective because he erroneously told
Dalton that, on the 30-year sentence for attempted murder, he
would be eligible for parole in 6 years. Dalton also filed
with his Rule 32 petition a request to proceed in forma
pauperis. After the State responded, the circuit court in
December 2009 summarily dismissed Dalton's Rule 32 petition.
1
Dalton appealed. In June 2010, the Court of Criminal Appeals
dismissed the appeal on the ground that the December 2009
order was void because the circuit court had not ruled on
Dalton's in forma pauperis request. Dalton v. State (No.
The State filed its response on December 9, 2009, and
1
attached to the response an affidavit of Dalton's trial
counsel. On December 16, 2009, Dalton filed a motion
requesting additional time to reply to the State's response.
Two days later, the circuit court issued its order summarily
dismissing Dalton's petition, without the benefit of the
affidavits of Dalton and his parents that are referred to
later in this opinion.
2
1130197
CR-09-0604, June 9, 2010), 77 So. 3d 631 (Ala. Crim. App.
2010) (table).
Given the basis for the dismissal of Dalton's initial
appeal,
Dalton's
initial Rule 32 petition resumed its pendency
in the circuit court. During the renewed pendency of his
petition in the circuit court, Dalton filed a second Rule 32
petition. In an order entered in March 2012, the circuit
court dismissed the second Rule 32 petition as untimely.
Dalton then appealed for the second time.
On this second appeal, the Court of Criminal Appeals
found that the circuit court had failed to address Dalton's
first petition and accompanying in forma pauperis declaration
before dismissing his second petition as untimely. The Court
of Criminal Appeals therefore remanded the case with
instructions that the circuit court was to address Dalton's
first petition and accompanying in forma pauperis declaration
and also to determine whether the second petition was an
amendment to the first or was instead a separate, second
petition.
On remand from this second appeal, the circuit court
granted Dalton in forma pauperis status, treated the second
petition as an amendment to the original petition, and
summarily dismissed the petition by order dated October 26,
3
1130197
2012. The circuit court considered an affidavit from Dalton's
trial counsel and the void December 2009 order, the latter of
which it found "highly persuasive." The circuit court found
that counsel had not promised Dalton parole.
On return to remand from the October 26, 2012, order, the
Court of Criminal Appeals held that, under Ex parte Coleman,
71 So. 3d 627 (Ala. 2010), Dalton had sufficiently pleaded his
ineffective-assistance-of-counsel claim. The Court of
Criminal
Appeals
again remanded the case, ordering the circuit
court to address Dalton's allegations and to make appropriate
findings of fact. In response to this second remand order,
the circuit court considered affidavits from Dalton, Dalton's
trial counsel, and Dalton's parents, as well as the October
2012 order and the exhibits thereto (which included the
December 2009 order). In an order dated July 12, 2013, the
circuit court denied Dalton's Rule 32 petition, again finding
that counsel had not promised Dalton parole.
On the return to the second remand (the return to remand
from the circuit court's July 2013 order), the Court of
Criminal Appeals affirmed the denial of Dalton's petition, by
an unpublished memorandum. Dalton v. State (No. CR-11-1218,
Sept. 20, 2013), 168 So. 3d 170 (Ala. Crim. App. 2013)
(table). The Court of Criminal Appeals determined that the
4
1130197
circuit court did not misconstrue the nature of Dalton's claim
regarding the promise of parole and that the circuit court did
not err in finding that Dalton's counsel had not promised
parole to Dalton. Dalton filed a petition for writ of
certiorari to this Court, which we granted.
II. Facts
Dalton's Rule 32 petition, as amended, claimed that his
trial counsel was ineffective because, Dalton says, counsel
misinformed him about his eligibility for parole. Dalton
2
alleged that his counsel represented or advised him that he
would be eligible for parole after he had served approximately
6 years and that the Alabama Department of Corrections later
told him that no prisoner serving time for attempted murder is
eligible for parole until he or she has served 15 years or 85%
of the sentence. Dalton attached to his amended Rule 32
Although Dalton's claim in his amended petition is
2
phrased as "time to serve before being paroled," it is clear
from his first petition, from the remainder of the second
petition, and from the supporting affidavits that the essence
of Dalton's claim is that he was misled about his eligibility
for parole. Dalton's first petition speaks in terms of
"eligibility for review," "misrepresentations," "counsel
informed him," and "misled." We do not read Dalton's claim as
asserting that his counsel promised parole or represented that
Dalton would actually receive parole, only that he would be
eligible for parole. In this regard, we note that Dalton
filed his Rule 32 petition pro se.
5
1130197
petition affidavits from himself and from his mother and
father.
Dalton's affidavit stated that his counsel had conveyed
a plea offer of the sentences described above (the longest
sentence to be 30 years, and all the sentences to be served
concurrently). Dalton's affidavit stated, in pertinent part:
"We [Dalton and his father and mother] all
talked about the offer and I asked my attorney how
long before I would be released on parole. He told
me that if I kept out of trouble I should be out in
six years.
"On February 20, 2009, I went back to court and
accepted the offer previously made by the State ....
After I pleaded guilty the court sentenced me to the
plea offer we had agreed upon.
"... I [was later advised by the Alabama
Department of Corrections] that persons convicted of
attempted murder must serve at least 85% or 15 years
of their sentence before being considered for
parole.
"I do not believe my attorney intentionally
mislead [sic] me to get me to plead guilty, but I
think he was misinformed or was unaware of the new
parole
regulations
concerning
certain
violent
offenders. Regardless, my sole reason for pleading
guilty was that I believed I would be released in
six years as my attorney said. My decision to enter
the guilty plea was made upon my attorney's
representation of parole in 6-years, if I would have
known I would not be out on parole in six years, I
would not have pleaded guilty, I would have insisted
on going to trial."
(Emphasis added.)
6
1130197
The affidavit from Dalton's mother stated, in pertinent
part:
"Mr. [Jeremy] Armstrong [Dalton's trial counsel]
told Christopher that this [statement that there
were no serious injuries from the shooting] would
help with his parole hearing. Mr. Armstrong then
informed Christopher about his agreement that he
could be eligible for parole in as early as six
years because of his health problems."3
(Emphasis added.)
The affidavit from Dalton's father stated, in pertinent
part:
"Mr. Armstrong told Christopher that this [statement
that there were no serious injuries from the
shooting] would help with his parole hearing. Mr.
Armstrong then informed Christopher about his
agreement that he could be eligible for parole in as
early as six years."
(Emphasis added.)
The State's response to the amended petition included as
attachments (1) a copy of the December 18, 2009, circuit court
order denying Dalton's initial petition, (2) an affidavit of
4
Dalton's trial counsel, and (3) a copy of the "Defendant's
Statement of Satisfaction of Services Rendered by Retained
The record does not reveal the specific nature of the
3
health problems to which the affidavit refers.
The December 2009 order was issued by Judge John V.
4
Denson II, who later retired from the bench. The subsequent
orders were issued by Judge Christopher Hughes.
7
1130197
Attorney." The affidavit from Dalton's trial counsel
5
referred to "promises" and stated, in pertinent part:
"I represented Christopher Eric Dalton in the above-
styled cases and did not promise him either parole,
probation or a lesser sentence in order to induce
him to plead guilty in each case. I never told him
that probation or parole would be granted and never
offered or promised him anything in order to induce
him to plead guilty."
(Emphasis added.)
The December 18, 2009, order stated, in pertinent part:
"First [Dalton] complains that his counsel rendered
ineffective
assistance
by
offering
improper
inducement for the guilty plea. The true nature of
this claim is that the plea was rendered involuntary
because his attorney allegedly promised him parole
in six years. ...
"....
"The court finds that trial counsel did not
promise parole to [Dalton] and that the plea was
entered voluntarily with full disclosure of the
appropriate range of punishment and the direct
consequences of the plea."
(Emphasis added.)
In March 2012, the circuit court (Judge Christopher
Hughes) dismissed Dalton's amended Rule 32 petition. The
court's order provided, in pertinent part:
We give little or no weight to the Statement of
5
Satisfaction because it was signed before Dalton learned that
he would not be eligible for parole in six years and because
it disclaims only "promises" and "inducements" but does not
disclaim misrepresentations of facts or legal principles or
what might later prove to be incorrect advice by counsel.
8
1130197
"[Dalton] alleges that he received ineffective
assistance of counsel, and thus his guilty pleas ...
were not voluntary. [Dalton] alleges that trial
counsel represented he would be eligible for parole
after serving only six years of his sentence, and
relying on this representation, [Dalton] pleaded
guilty. According to [Dalton], he will not be
eligible for parole until he serves at least fifteen
years of his sentence.
"The Court finds that [Dalton's] claim is
precluded
under
the
limitations
period
of
Rule 32.2(c), Ala. R. Crim. P. ...
"Even if the Rule 32 Petition had been timely
filed, the Court finds that the information
contained in the case file directly refutes
[Dalton's] allegations. Hon. John V. Denson took
[Dalton's] guilty plea and ruled that [Dalton]
knowingly and voluntarily entered the guilty plea
with full disclosure of the appropriate range of
punishment and direct consequences of the plea.
Although Judge Denson's order (attached hereto as
'Exhibit 1') was declared void because of the in
forma pauperis issue, this Court finds the order
highly persuasive.
"[Dalton's] trial counsel, Jeremy Armstrong,
submitted
an
affidavit
(attached
hereto
as
'Exhibit 2') indicating that he never promised
[Dalton] parole or told [Dalton] parole would be
granted. Moreover, in Court's Exhibit B (attached
hereto as 'Exhibit 3') [Dalton] was asked whether
anyone promised him anything in order to induce him
to plead guilty. [Dalton] responded in the negative.
The Court finds that even according to [Dalton's]
version of events, trial counsel did not promise
that he would be granted parole after six years.
The Court finds that [Dalton] entered the guilty
plea knowingly and voluntarily with full disclosure
of
the
appropriate
range
of
punishment
and
consequences of the plea."
(Emphasis added.)
9
1130197
The circuit court's October 26, 2012, order, entered on
remand from the Court of Criminal Appeals, stated, in
pertinent part:
"The information contained in the case file
directly refutes [Dalton's] allegations. Hon. John
V. Denson took [Dalton's] guilty plea and ruled that
[Dalton] knowingly and voluntarily entered the
guilty plea with full disclosure of the appropriate
range of punishment and direct consequences of the
plea. Although Judge Denson's order (Exhibit 'A'
hereto) was declared void because of the In Forma
Pauperis issue, this Court finds the order highly
persuasive.
"[Dalton's] trial counsel, Jeremy Armstrong,
submitted
an
affidavit
(Exhibit
'B'
hereto)
indicating that he never promised [Dalton] parole or
told [Dalton] parole would be granted. Moreover, in
Court Exhibit B (Exhibit 'C' hereto), [Dalton] was
asked whether anyone promised him anything in order
to induce him to plead guilty, [and Dalton]
responded in the negative. The Court finds that
even according to [Dalton's] version of events,
trial counsel did not promise that he would be
granted parole after six years.
"The Court finds that [Dalton] entered the
guilty pleas knowingly and voluntarily with full
disclosure of the appropriate range of punishment
and consequences of the plea."
(Emphasis added.)
III. Analysis
Dalton
asserts
an
ineffective-assistance-of-counsel
claim. Dalton alleged that his counsel misinformed him about
10
1130197
his eligibility for parole and that he pleaded guilty based on
that erroneous information.
6
In Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), the
United States Supreme Court held that the two-part Strickland
v. Washington, 466 U.S. 668 (1984), test applies to challenges
to guilty pleas based on ineffective assistance of counsel.
In the context of guilty pleas, the prejudice prong of the
Strickland test requires that "the defendant must show that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59.
In the second of its two remands to the circuit court in
this matter, the Court of Criminal Appeals relied upon
Ex parte Coleman, 71 So. 3d 627 (Ala. 2010), to hold that
Dalton had sufficiently pleaded an ineffective-assistance-of-
The State contends (1) that Dalton's counsel "had no
6
affirmative duty to advise him about his eligibility for
parole and there is no evidence to show that trial counsel
misrepresented [Dalton's] eligibility for parole"; and (2)
that
"[p]arole
eligibility
is
generally
considered a
collateral consequence of a guilty plea of which the defendant
does not have to be informed." As to the latter contention,
the State cites only McCary v. State, 93 So. 3d 1002, 1006
(Ala. Crim. App. 2011), a case involving a trial court's duty
to inform, not counsel's duty to advise. In any event, the
question whether there is an affirmative duty to advise a
defendant as to his or her eligibility for parole is not
before us in this case. Dalton claims that he specifically
inquired about eligibility for parole and that he was
misinformed by counsel.
11
1130197
counsel claim. In Coleman, this Court applied the foregoing
principle and held that a Rule 32 petitioner alleging
ineffective assistance of counsel had satisfied his pleading
burden and was entitled to an evidentiary hearing where he
alleged (1) that his counsel had misrepresented his
eligibility for parole and work release and (2) that he had
relied on that misrepresentation in deciding to plead guilty.
In Stith v. State, 76 So. 3d 286 (Ala. Crim. App. 2011),
the Court of Criminal Appeals held (1) that erroneous advice
about eligibility for parole and correctional-incentive-time
("CIT") credit could give rise to an ineffective-assistance-
of-counsel claim, (2) that counsel in Stith had rendered
deficient performance by failing to advise the defendant that
his sentence was not eligible for parole or CIT credits, and
(3) that the availability of CIT credits was a substantial
material factor in the defendant's decision to plead guilty.
In Stith, the defendant rejected a plea offer of a
20-year prison sentence, which would be split, and he would
serve 5 years. Instead, he accepted a "straight" sentence of
10 years in prison based on his understanding that, by earning
CIT, he would serve less than 5 years. The defendant's
assumption that he would be eligible to earn CIT was
incorrect. The Court of Criminal Appeals concluded that
12
1130197
Stith's counsel had rendered ineffective assistance, stating
that
"[w]hether
denominated
as
an
omission
or
a
misrepresentation, counsel failed to advise Stith that if he
accepted the plea agreement" he would not be eligible to earn
CIT. 76 So. 3d at 292.
Similarly, Dalton alleged that his counsel advised him
improperly regarding when he would be eligible for parole and
that he pleaded guilty based on that erroneous advice. Given
the aforesaid holding by the Court of Criminal Appeals in its
second order on return to remand regarding the sufficiency of
Dalton's pleadings under Coleman, the issue presented in this
case is whether Dalton has proven his allegations.
The circuit court's October 2012 order, however, did not
resolve or even squarely address the factual question at the
heart of Dalton's claim: Whether Dalton's counsel made a
misrepresentation or gave erroneous advice regarding when
Dalton would be eligible for parole that induced Dalton to
plead guilty. Instead, the circuit court's October 2012
order, and the void March 2009 order on which it relied,
addressed a different question: Whether Dalton's counsel
promised parole. By answering a different question, the
13
1130197
circuit court never resolved the factual dispute actually
presented.
7
The December 2009 order entered by now retired Judge
Denson appears to have put the case on the wrong foot by
misconstruing the "true nature of this claim [to be] that the
plea was rendered involuntary because his attorney allegedly
promised him parole in six years." This order then went on to
conclude, based on an affidavit of counsel, that "trial
counsel did not promise parole to the defendant."
8
Significantly, the trial judge who issued the March 2012
and October 2012 orders, Judge Hughes, was not the original
trial judge and was not the trial judge who issued the
December 2009 order. Yet, and perhaps as a consequence of
this fact, Judge Hughes placed significant reliance upon the
December 2009 order. As was true of the December 2009 order,
the October 2012 order did not address the question of trial
counsel's misrepresentation to Dalton regarding when Dalton
would be eligible for parole. Following the lead of the
The July 2013 order denying Dalton's petition referred
7
to the findings of the October 2012 order and reiterated the
conclusions set forth in that order.
The December 2009 order was issued only a few days after
8
the State filed its response to which was attached the
affidavit of counsel and before Dalton had a reasonable
opportunity to respond with his own affidavits. See supra
note 1.
14
1130197
December 2009 order, Judge Hughes, in his October 2012 order,
denied Dalton's claim based on counsel's affidavit that he did
not promise parole.
The Court of Criminal Appeals affirmed Judge Hughes's
order, noting that the circuit court's "finding 'that
[Dalton's] trial counsel did not promise parole to [Dalton]'
necessarily includes a finding that Dalton's trial counsel
made no promises that Dalton would be eligible for parole in
six years." (Emphasis added.) This conclusion, however, does
not follow. Quite simply, a promise of parole and a
representation as to when a defendant will be eligible for
parole are two different things.
IV. Conclusion
Based on the foregoing, we reverse the judgment of the
Court of Criminal Appeals and remand the case to that court
to, in turn, remand it for the circuit court to hold an
evidentiary hearing on Dalton's claim that his trial counsel
misrepresented his eligibility for parole. The circuit court
should make the factual findings required by Rule 32.9(d),
Ala. R. Crim. P. See also Ex parte Grau, 791 So. 2d 345 (Ala.
2000) (addressing the need for specific findings of fact with
respect to ineffective-assistance-of-counsel claims).
15
1130197
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, C.J., and Stuart, Parker, and Bryan, JJ., concur.
Bolin, Shaw, Main, and Wise, JJ., dissent.
16 | September 30, 2015 |
9deb1db4-2024-4733-96c0-646ab2e24064 | Ex parte Jerry Newby and Alfa Mutual Insurance Company. | N/A | 1140315 | Alabama | Alabama Supreme Court | Rel: 9/25/2015
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, 2015
____________________
1140315
____________________
Ex parte Jerry Newby and Alfa Mutual Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: Foundation Farms, LLC, et al.
v.
Alfa Mutual Insurance Company)
(Hale Circuit Court, CV-13-900056)
PARKER, Justice.
Jerry Newby and Alfa Mutual Insurance Company ("Alfa")
(hereinafter collectively referred to as "the petitioners")
1140315
2
petition this Court for a writ of mandamus directing the Hale
Circuit Court ("the circuit court") to vacate its November 19,
2014, order denying the petitioners' motion to quash the
subpoena directed to Newby for deposition testimony that was
requested by Laird Cole, Henry Cole, and Foundation Farms, LLC
(hereinafter collectively referred to as "the respondents"),
in their action against Alfa. We deny the petition.
Facts and Procedural History
The issue before this Court is whether the circuit court
exceeded its discretion in denying the petitioners' motion to
quash the subpoena for deposition testimony of Newby, a
nonparty to the underlying action. In order to make that
determination, a recitation of some of the facts from the
underlying case is necessary.
The petitioners state that "[t]he factual background in
this particular case is confusing to say the least."
Petition, at 1. However, although the facts surrounding the
underlying
litigation
are somewhat complex,
the facts
surrounding the narrow issue before this Court appear to be
both straightforward and undisputed. This case is, "[i]n
short,
...
an
insurance
bad
faith
failure
to
1140315
3
defend/indemnify/settle
case
arising
out
of
several
underlying
lawsuits, which in turn arose out of the [respondents']
operation and financing of a dairy farm in between 2007 and
2010." Petitioners' reply brief, at 1.
Specifically, the respondents were involved in two
earlier actions, the first as plaintiffs and the second as
defendants. Both actions concerned the respondents' operation
of a dairy farm and milking facility located in Dallas County.
At all relevant times in the first action, both Laird Cole and
Henry Cole were insured by Alfa. At all relevant times in the
second action, Laird Cole was insured by Alfa. While these
two actions were ongoing, Newby was the president and chief
executive officer of Alfa; he has since retired.
On July 25, 2013, Laird Cole and Foundation Farms sued
Alfa in the circuit court, alleging "claims of fraud, breach
of contract, bad faith, breach of the enhanced duty of good
faith, negligence, and wantonness arising out of [Alfa's]
handling [of the] underlying lawsuits." The respondents filed
an amended complaint on August 27, 2013, adding Henry Cole as
an additional plaintiff and "clear[ing] up some of the
allegations."
1140315
4
On April 30, 2014, Alfa filed a motion for a summary
judgment, alleging that there was no dispute as to any
material fact and that Alfa was entitled to judgment as a
matter of law. Alfa stated the following reasons in support
of its motion:
"(1) There is no legal duty on an insurance company
to provide 'separate' and/or 'independent' counsel
chosen by the insured as asserted in the complaint.
(2) Plaintiffs' counsel had legal authority to bind
Plaintiffs to the terms of a settlement of the
underlying
case
that
were
contingent
upon
relinquishing
any
further
claims
under
the
applicable policies relating to any additional
claims for a defense or indemnity for claims left
open after [Alfa] agreed to pay sums to achieve a
settlement
of
claims
against
the
Coles.
(3)
Plaintiffs
cannot
attack
the
settlement
as
fraudulent while retaining the benefits thereof; and
(4) The applicable policies of insurance did not
provide coverage for the counterclaims in question."
On October 22, 2014, the respondents served Alfa with a
subpoena ordering Newby to appear at a video deposition. That
subpoena is the subject of the current petition for mandamus
relief.
On October 27, 2014, the petitioners filed a motion with
the circuit court to quash the subpoena issued to Newby. In
their motion to quash, the petitioners alleged:
"3. Jerry Newby is the former CEO and chairman
of Alfa. He retired from Alfa in December 2012. His
1140315
5
name has only been tangentially mentioned in one
deposition, and Alfa does not intend to call him as
a witness at trial. The Plaintiffs also have not
alleged
that
Alfa
negligently
supervised
or
otherwise controlled Newby with respect to the
Plaintiffs' underlying claims and suits.
"4. Newby was mentioned at the deposition of one
of the Plaintiffs, Laird Cole. Mr. Cole indicated at
his deposition that he did not want Alfa to settle
the case brought by his 'investors' and he talked to
Mitch Henry about wanting to have a conversation
with
Mr.
Newby,
a
conversation
which
never
occurred[.]
"....
"5. The evidence in this case has demonstrated
that Mr. Newby had no involvement whatsoever in the
decision
to
grant
or
deny
a
defense
or
indemnification to Laird Cole, Henry ... Cole, or
Foundation Farms in the underl[y]ing suits. There
has been no evidence he was otherwise involved in
the claims process, the litigation process, or the
eventual mediation of the underlying claims.
"....
"8. The subpoena to Mr. Newby is nothing more
than a fishing expedition or an attempt to harass
him personally. ... Mr. Newby had no input on
whether
to
grant
or
deny
a
defense
or
indemnification to the Plaintiffs. He did not choose
the plaintiffs' attorney in the underlying action,
which seems to be the focus of much of their claims.
He has only been reference[d] in one of the many
depositions, and in that one deposition (the
Plaintiff's) it is clear that Mr. Newby had no
contact whatsoever with the plaintiff."
1140315
6
Although the motion to quash the subpoena stated "Comes Now,
[Alfa] and Jerry Newby," the motion was signed only by Alfa's
trial
counsel
in
their
capacity
as
"[a]ttorneys
for
[d]efendant [Alfa]"; Newby did not sign the motion. The
respondents did not respond to the petitioners' motion to
quash the subpoena.
On November 19, 2014, the circuit court denied the
petitioners' motion to quash the subpoena for Newby's
deposition testimony. Thereafter, on December 30, 2014, the
petitioners filed the present petition with this Court seeking
a writ of mandamus ordering the circuit court to vacate its
denial of the petitioners' motion to quash the subpoena
ordering Newby to appear for a video deposition.
Standard of Review
"'Discovery matters are within the
trial court's sound discretion, and this
Court will not reverse a trial court's
ruling on a discovery issue unless the
trial court has clearly exceeded its
discretion. Home Ins. Co. v. Rice, 585 So.
2d 859, 862 (Ala. 1991). Accordingly,
mandamus will issue to reverse a trial
court's ruling on a discovery issue only
(1) where there is a showing that the trial
court clearly exceeded its discretion, and
(2) where the aggrieved party does not have
an adequate remedy by ordinary appeal. The
petitioner has an affirmative burden to
1140315
7
prove the existence of each of these
conditions.'
"Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813
(Ala. 2003).
"Moreover, this Court will review by mandamus
only those discovery matters involving (a) the
disregard of a privilege, (b) the ordered production
of 'patently irrelevant or duplicative documents,'
(c) orders effectively eviscerating 'a party's
entire action or defense,' and (d) orders denying a
party the opportunity to make a record sufficient
for appellate review of the discovery issue. 872 So.
2d at 813–14."
Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d 540, 547
(Ala. 2007). The order challenged here is reviewable under
category (b).
Further, this Court stated in Ex parte Bole, 103 So. 3d
40, 50 (Ala. 2012):
"'[A] mandamus petition may be used to
review
rulings
on
motions
to
quash
subpoenas from parties and nonparties. In
Ex parte Thackston, 275 Ala. 424, 426, 155
So. 2d 526 (1963), the Alabama Supreme
Court stated, "[t]his court has reviewed
the issuance of a subpoena duces tecum,
both as to parties and nonparties, or
witnesses, on a petition for mandamus." See
also State v. Reynolds, 819 So. 2d 72 (Ala.
Crim. App. 1999).'
"Ex parte Summit Med. Ctr. of Montgomery, Inc., 854
So. 2d 614, 616 (Ala. Crim. App. 2002)."
Discussion
1140315
8
Initially, we note that, as set forth above, the
respondents made no argument in the circuit court concerning
the relevance of Newby's deposition testimony. See petition,
at 6 ("[Alfa] moved to quash the subpoena. The Plaintiffs
never responded. After a hearing, at which the motion to
quash was not discussed, the lower court denied the motion to
quash on November 19, 2014." (citations omitted)). The
respondents argue for the first time before this Court why
they believe Newby's deposition testimony is relevant to the
underlying litigation.
In Ex parte Allianz Life Insurance Co. of North America,
25 So. 3d 411, 416 (Ala. 2008), this Court stated that "[o]ur
task in this case is to evaluate the decision of the trial
court to determine whether, in exercising its discretion, it
exceeded that discretion. To conduct such an evaluation, it
is necessary to review the information on which the trial
court based its decision." (Emphasis added.) Therefore, we
will consider only the petitioners' argument in determining
whether they have met their burden of demonstrating a clear
legal right to the relief sought.
1140315
9
The petitioners' only argument before this Court is that
"the subpoena should be quashed because any testimony from
Newby would be patently irrelevant." Petition, at 7. The
petitioners argue that the respondents' request to depose
Newby is nothing more than a "fishing expedition" and an
attempt to harass Newby personally. The petitioners further
state that, while he was president of Alfa, Newby made no
decisions concerning the underlying cases.
The petitioners primarily rely on Ex parte Vulcan
Materials Co., 992 So. 2d 1252 (Ala. 2008), in support of
their argument. In Vulcan, the plaintiff sued and received a
judgment against the defendants on claims of breach of
contract and fraud, among other claims. Vulcan, 992 So. 2d at
1257. The jury verdict for the plaintiff included an award of
punitive damages. The defendants subsequently filed a motion
for "Remittitur and Constitutional Reduction of Punitive
Damages." The plaintiff then served the defendants with a
"postjudgment request for production of documents," which,
among other things, requested the production of "'[a]ny and
all copies of the Minutes of each meeting of [one of the
defendant's] Board of Directors or Trustees during the past
1140315
10
five (5) years.'" 992 So. 2d at 1257. The trial court
eventually issued an order compelling the defendant to comply
with the discovery request.
The relevant issue before this Court in Vulcan was
whether the trial court had exceeded its discretion in
compelling the production of the minutes of the board meetings
of one of the defendants when the evidence before the trial
court established that the material contained in the minutes
did not "'in any manner concern the plaintiff or th[e]
litigation.'" 992 So. 2d at 1265 (quoting affidavit of
William F. Denson III, Vulcan's general counsel and secretary
(emphasis omitted)). In his brief before this Court, the
plaintiff stated that the minutes were relevant to the issue
of punitive damages but made "no attempt to explain how the
minutes, which d[id] not concern or mention him or his case,
might be relevant to a review of the punitive-damages award."
992 So. 2d at 1266. Therefore, the Court in Vulcan determined
that the request for the board minutes was "essentially a
'fishing expedition' to determine whether the statements in
the affidavit [were] true," 992 So. 2d at 1266, and therefore
1140315
11
it held that the trial court had exceeded its discretion in
compelling the production of those materials.
The present case is distinguishable from Vulcan. In
Vulcan, there was evidence before the trial court to establish
that the subject of the discovery request (the minutes of the
board meeting) did not "'in any manner concern the plaintiff
or th[e] litigation.'" 992 So. 2d at 1265. Specifically, the
secretary in charge of taking the minutes at the company's
board meetings had signed an affidavit stating that the
minutes neither concerned nor mentioned the plaintiff or the
litigation. As a result, this Court concluded that the trial
court in Vulcan had exceeded its discretion because the
evidence before the trial court indicated that the discovery
sought had no relevance to the litigation.
Here, in contrast, there was no evidence before the
circuit court indicating that Newby has no information
relevant to the underlying litigation; there was only the
petitioners' argument to that effect. We note that, although
the petitioners argued below that "[t]he evidence" before the
circuit court demonstrated that Newby "had no involvement
whatsoever in the decision to grant or deny a defense or
1140315
We note that Alfa does not specify the evidence to which
1
it is referring. It may be that evidence of Newby's lack of
involvement in the decision to grant or deny the respondents
a defense or indemnification was included in the attachments
to Alfa's summary-judgment motion; however, Alfa chose, in
contravention of Rule 21(a)(1)(E), Ala. R. App. P., not to
submit to this Court the attachments to its summary-judgment
motion because they are "several hundred pages" and many of
those attachments were "filed under seal." Petition, at 5
n.1.
12
indemnification to [the respondents]," that unspecified
evidence is not before us. The petitioners also argued below
1
that "[t]here has been no evidence [Newby] was otherwise
involved in the claims process, the litigation process, or the
eventual mediation of the underlying claims." Nevertheless,
the petitioners have not presented any evidence to this Court
to establish that Newby was not "otherwise involved" in the
underlying litigation, and the burden is on the petitioners to
demonstrate
that
Newby's deposition would be patently
irrelevant.
Therefore, Vulcan, the primary authority relied upon by
the petitioners in support of their mandamus petition, is
distinguishable; thus, the petitioners have not demonstrated
a clear legal right to the relief sought.
We note that Vulcan also states, as the petitioners point
out, that "'[s]ome threshold showing of relevance must be made
1140315
13
before parties are required to open wide the doors of
discovery and produce a variety of information which does not
reasonably bear upon the issues in the case.'" 992 So. 2d at
1265 (quoting Ex parte Wal–Mart Stores, Inc., 682 So. 2d 65,
68 (Ala. 1996) (Hooper, C.J., dissenting)(emphasis added)).
This rule does not apply in the present case because the
respondents are seeking discovery not from a party but from a
nonparty. Alfa has not been asked to "open wide the doors of
discovery and produce ... information." Alfa has not been
asked to produce anything. Newby, who is no longer an
employee of Alfa, has been subpoenaed for his deposition
testimony, and no evidence has been presented to this Court
indicating that he has no relevant testimony to offer
concerning the underlying litigation. Vulcan is simply not
applicable.
Further, although the above rule from Vulcan appears to
require the party requesting discovery to make, at the time of
the request, an affirmative showing of relevance, the context
in which this rule was applied in Vulcan indicates otherwise.
Specifically, in Vulcan this Court required some "threshold"
showing of relevance but only after the party opposing the
1140315
Vulcan's
applicability
in
this case is further
undermined
2
by the history of the rule it adopts. As noted above, Vulcan
quoted Chief Justice Hooper's dissent in Ex parte Wal–Mart
Stores, Inc., 682 So. 2d 65, 68 (Ala. 1996), for the rule
requiring a "threshold showing of relevance." The dissent in
Wal-mart in turn quoted a decision of the United States Court
of Appeals for the Eighth Circuit in Hofer v. Mack Trucks,
Inc., 981 F.2d 377, 380 (8th Cir. 1992). Vulcan is the only
Alabama case that applies the above rule, and it involved the
discovery of material for which there had first been an
evidentiary showing of a lack of relevance.
14
discovery had already offered evidence of its irrelevance.
992 So. 2d at 1265. The petitioners here have presented no
2
such evidence to this Court establishing the lack of relevance
of Newby's deposition testimony; therefore, the respondents
need not make a "threshold showing" of relevance.
We note that the petitioners also tangentially rely upon
Ex parte Compass Bank, 686 So. 2d 1135, 1138 (Ala. 1996), Ex
parte Henry, 770 So. 2d 76, 80 (Ala. 2000), and Stock v.
Integrated Health Plan, Inc., 241 F.R.D. 618, 624 (S.D. Ill.
2007), in support of their argument. Stock is a decision of
the District Court for the Southern District of Illinois and
thus is not binding on this Court, nor do we find Stock
particularly persuasive. Compass and Henry are inapposite
because they involve claims of a trial court exceeding its
discretion in limiting (or failing to limit) discovery where
1140315
15
petitioners claimed that the requested discovery was overly
broad, unduly burdensome, or entailed significant expense.
See Compass, 686 So. 2d at 1138 ("We conclude that Compass
Bank has made a clear showing that the trial judge abused his
discretion in ordering the production of every customer file
for every variable annuity. An affidavit presented in evidence
estimated that this order would require production of at least
21,246 customer files and would involve the review of files on
35,000 transactions. This would be unduly broad, burdensome,
and expensive."), and Henry, 770 So. 2d at 80 ("Henry's
discovery requests sought the name of every person who had
purchased a life insurance policy through Walley and issued by
KC Life, [from 1992 to 1998], together with a copy of the
application for the policy. These requests were overly broad
and were not closely tailored to the nature of the fraud
alleged in the complaint.").
Here, the requested discovery is for the deposition of
one man, not the review and production of tens of thousands of
documents, and there is no evidence before this Court to
establish that the information gotten from the deposition of
that one man would be patently irrelevant. None of the cases
1140315
16
cited by the petitioners demonstrates that the circuit court
exceeded its discretion in denying the petitioners' motion to
quash the subpoena issued for the deposition testimony of
Newby, who was the president and chief executive officer of
Alfa during all times relevant to the underlying litigation.
Moreover, Rule 26(b)(1), Ala. R. Civ. P., states:
"Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject
matter involved in the pending action, whether it
relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other
party, including the existence, description, nature,
custody, condition and location of any books,
documents, or other tangible things and the identity
and location of persons having knowledge of any
discoverable matter. It is not ground for objection
that the information sought will be inadmissible at
the
trial
if
the
information
sought
appears
reasonably calculated to lead to the discovery of
admissible evidence."
In Ex parte AMI West Alabama General Hospital, 582 So. 2d 484,
485 (Ala. 1991), this Court stated that Rule 26(b)(1)
"contemplates a broad right of discovery" and "[d]iscovery
should be permitted if there is any likelihood that the
information sought will aid the party seeking discovery in the
pursuit of his claim or defense." This Court further stated:
"It is true ... that while mandamus is the
proper means of review to determine whether a trial
court has [exceeded] its discretion in discovery
1140315
17
matters, and that the writ is seldom issued because
the trial judge possesses great discretion in
discovery matters, Ex parte Mack, 461 So. 2d 799,
801 (Ala. 1984), ... the writ issues more often in
instances where the trial court has restricted or
prohibited discovery than in instances where liberal
discovery has been allowed."
582 So. 2d at 486. Here, we cannot say that the circuit court
has exceeded its discretion in allowing the respondents to
depose Newby.
Lastly, as noted above, the respondents argue for the
first time before this Court that Newby's deposition testimony
is relevant to the underlying litigation. We did not consider
the respondents' argument because the respondents failed to
raise their argument in the circuit court. Even without
considering
the
respondents'
argument,
however,
the
petitioners have not demonstrated a clear legal right to the
relief they seek. Accordingly, we need not consider the
respondents' argument or the petitioners' argument in reply in
order to decide the merits of this petition. However, we now
set forth the respondents' argument concerning the scope of
its deposition of Newby. Specifically, the respondents argue
that they seek to depose Newby to rebut the testimony of one
of Alfa's witnesses. The respondents argue that Alfa's expert
1140315
18
witness "is going to conclude that ... Laird Cole[] was an
unfit dairy farmer." Respondents' brief, at 2. The
respondents conclude that Newby "may fairly be seen to dispute
the same in specific terms." Id. The only "specific terms"
mentioned by the respondents in their brief are as follows:
"Laird Cole was named 'Outstanding Young Farmer' by
the
Alabama
Farmers
Federation
in
2001.
Additionally, he was named as 'Outstanding Young
Farm Family - Dairy' in the same year and was
featured
on
the
cover
of
Alfa's
flagship
publication,
'Neighbors'
magazine.
And
the
Petitioner, Jerry Newby, as president of the Alabama
Farmers Federation, is shown as presenting 2002
Chevrolet Trailblazer to Cole in recognition of his
achievements for Alfa and dairy farming in Alabama
...."
Respondents' brief, at 2. Although the respondents may depose
Newby, the scope of the deposition must be limited by the
above representations the respondents have made to this Court
regarding the intended purpose of the deposition. In other
words, the deposition of Newby should be limited to the
purpose of disputing Alfa's purported claims that Laird Cole
was an unfit dairy farmer to the extent that Newby has such
information from having served as president of the Alabama
Farmers Federation.
Conclusion
1140315
19
The petitioners have failed to demonstrate that they have
a clear legal right to the relief sought. For that reason,
the petition is denied.
PETITION DENIED.
Moore, C.J., and Stuart and Main, JJ., concur.
Shaw, J., concurs in the result.
Bolin and Wise, JJ., recuse themselves. | September 25, 2015 |
864b4e29-6e1f-45b3-88f8-8ee07e6c8cb9 | Ex parte Jason Dean Tulley. | N/A | 1140049 | Alabama | Alabama Supreme Court | REL:09/04/2015
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, 2015
____________________
1140049
____________________
Ex parte Jason Dean Tulley
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jason Dean Tulley
v.
City of Jacksonville)
(Calhoun Circuit Court, CC-11-1157;
Court of Criminal Appeals, CR-11-1880)
BOLIN, Justice.
Jason Dean Tulley was convicted in the Calhoun Circuit
Court of carrying a pistol on premises not his own in
1140049
violation of Ordinance No. O-514-10 of the City of
Jacksonville ("the
City"),
which
adopts § 13A-11-52, Ala. Code
1975. In a plurality opinion, the Court of Criminal Appeals
affirmed Tulley's conviction. Tulley v.
City of Jacksonville,
[Ms. CR-11-1880, October 3, 2014] So. 3d (Ala. Crim.
App. 2014). We granted certiorari review to determine whether
by charging him under Ordinance No. O-514-10, which
incorporates by general reference § 13A-11-52, the City
violated Tulley's due-process rights.
Ordinance No. O-514-10 provides, in part:
"Sec. 16.1. Adoption of state misdemeanors,
violations and offenses.
"(a) Any
person
committing
an
offense
within
the
corporate limits of the city, or within its police
jurisdiction, that is declared by a law of the state
to be a misdemeanor shall be guilty of an offense
against the city.
"(b) Any
person
committing
an
offense
within
the
corporate limits of the city, or within its police
jurisdiction, that is declared by a law of the state
to be a violation shall be guilty of an offense
against the city.
"(c) Any person committing within the corporate
limits
of
the
city,
or
within
its
police
jurisdiction, an offense as defined by section 13A-
1-2 of the Alabama Criminal Code, which offense is
not declared by law of the state to be a felony,
misdemeanor or violation shall be guilty of an
offense against the city.
2
1140049
"(d) A person convicted of a violation of this
section shall be punished by a fine not exceeding
$500.00 or by imprisonment in the city jail or hard
labor for a period not exceeding six months, or by
any combination, except when in the enforcement of
penalties prescribed in Code of Ala. 1975, § 32-5A-
191 or [§] 32-5A-191.3, such penalty shall not
exceed the fines and sentences of imprisonment or
hard labor as provided by state law; when a
provision of this Code provides a particular penalty
expressly applicable to certain violations, the
express penalty shall be the penalty imposed upon
the conviction for those certain violations. The
penalty imposed upon a corporation shall consist of
the fine only, plus costs of court. Except as
otherwise provided by law or ordinance, with respect
to violations of this Code that are continuous with
respect to time, each day that the violation
continues is a separate offense."1
Ordinance No. O-514-10 is a general-reference ordinance,
which adopts by reference existing state misdemeanors,
offenses,
and
violations
and
makes
them
municipal
misdemeanors, offenses, and violations when those acts occur
within the City's corporate limits
or its police jurisdiction.
See Evans v. Sunshine-Jr. Stores, Inc., 587 So. 2d 312 (Ala.
1991), superseded by regulation, Krupp Oil, Inc. v. Yeargan,
665 So. 2d 920 (Ala. 1995)(addressing a general-reference
ordinance and distinguishing a specific-reference ordinance,
which incorporates an earlier state statute by specific and
The ordinance also contains a severability clause.
1
3
1140049
descriptive reference); Casteel v. City of Decatur, 215 Ala.
4, 4, 109 So. 571, 572 (1926)(noting that a general-reference
ordinance assures that the ordinance "puts the local
government behind the suppression of evils defined and made
public offenses by state law" and avoids the "expense in
enacting and promulgating a volume of penal ordinances in the
same terms as well-known public statutes").
In Ex parte Davis, 200 Ala. 436, 76 So. 368 (1917), the
Court addressed a municipal ordinance that adopted state
misdemeanors as offenses against the municipality. The Court
stated:
"As the Constitution and the statutes of this state
prevent municipal corporations from enacting laws
inconsistent with the state laws, and also authorize
state and municipal laws condemning the same act and
making a given act an offense both against the state
and against the municipality, we can see no valid
constitutional or statutory objection to the passage
of ordinances like the one in question, though the
statutes must be resorted to, in order to determine
whether or not a given ordinance is violated. And
the Constitution and the statutes must be consulted
in determining whether a given ordinance is valid or
is void. If it is inconsistent with either, then
under the laws of this state it is void.
"If the ordinance must be consistent with the
statutes, then we see no objection to the theory
that an ordinance may follow the statutes, by
adopting them, as was done in this case (in so far
as a statutory offense can be made an offense
4
1140049
against the municipality), without setting out in
the ordinance the statutes so adopted. It could not,
by so embodying the adopted laws, be rendered any
more certain or definite, because it cannot be
inconsistent with the statutes, and must in legal
effect follow them if it deal with the same subject.
It might be more convenient for the ordinance to set
out, in effect, at least, the statute or statutes
which it adopts; but it would even then be necessary
to refer to the statute to test the validity of an
ordinance which dealt with the same subject."
200 Ala. at 437, 76 So. at 369.
In the present case, subsection (c) of Ordinance No. O-
514-10
provides
that
"offenses"
not
declared
to
be
misdemeanors, felonies, or violations of state law are
offenses against the City. The City adopted the definition of
"offense" in § 13A-1-2(10), Ala. Code 1975, which states that
an offense is "[c]onduct for which a sentence to a term of
imprisonment, or the death penalty, or to a fine is provided
by any law of this state or by any law, local law, or
ordinance of a political subdivision of this state." Section
13A-11-52, which describes the offense with which Tully was
charged, does not designate the offense described therein as
5
1140049
a misdemeanor, felony, or violation of state law. At the time
of Tulley's conviction, it provided:2
"Except as otherwise provided in this article,
no person shall carry a pistol about his person on
premises not his own or under his control; but this
section shall not apply to any sheriff or his deputy
or police officer of an incorporated town or city in
the lawful discharge of the duties of his office, or
to United States marshal or his deputies, rural free
delivery mail carriers in the discharge of their
duties as such, bonded constables in the discharge
of their duties as such, conductors, railway mail
clerks and express messengers in the discharge of
their duties."
The Court of Criminal Appeals set out the following facts
regarding Tulley's conviction:
After
Tulley's
conviction
and
sentence,
§
13A–11–52,
Ala.
2
Code 1975, was amended and now provides:
"Except as otherwise provided in this article,
no person shall carry a pistol about his person on
private property not his own or under his control
unless the person possesses a valid concealed weapon
permit or the person has the consent of the owner or
legal possessor of the premises; but this section
shall not apply to any law enforcement officer in
the lawful discharge of the duties of his office, or
to United States marshal or his deputies, rural free
delivery mail carriers in the discharge of their
duties as such, bonded constables in the discharge
of their duties as such, conductors, railway mail
clerks and express messengers in the discharge of
their duties."
6
1140049
"On March 31, 2011, Tulley, who had a pistol
unconcealed in a hip holster, entered the First
Educators Credit Union ('the credit union') in the
City of Jacksonville to conduct business there.
James Clayton, an officer with the Jacksonville
Police Department, was working off-duty as a
security officer at the credit union. Clayton saw
Tulley walk into the credit union with the pistol on
his hip.
"Clayton approached Tulley and told him that he
could not carry the pistol in the credit union and
that he needed to return the pistol to his vehicle.
According to Clayton, '[a]t first, [Tulley] was very
argumentative about it' and asserted that '[i]t was
his constitutional right to carry a firearm into the
building.' Clayton testified that Tulley was
'defiant' but did not raise his voice or shout.
Tulley ultimately complied with Clayton's request,
returned the pistol to his vehicle, and reentered
the credit union.
"Tulley was arrested a few days later and was
charged with carrying a pistol on premises not his
own. See § 13A-11-52, Ala. Code 1975. Tulley was
convicted in the Jacksonville Municipal Court, where
he was ordered to pay a $50 fine and $200 in costs.
Tulley appealed to the Calhoun Circuit Court.
"In the circuit court, Tulley filed two motions
to dismiss the charge against him; the circuit court
denied both. Following a bench trial, Tulley was
convicted and was sentenced to 30 days' imprisonment
and ordered to pay court costs and a $200 fine. The
circuit court suspended Tulley's 30-day sentence and
placed him on 6 months' probation. Tulley moved for
a new trial; that motion was denied by operation of
law. See Rule 24.4, Ala. R. Crim. P."
Tulley, So. 3d at (footnote and reference to record
omitted).
7
1140049
In appealing his conviction, Tulley argued before the
Court of Criminal Appeals, among other things, that § 13A-11-
52 was unconstitutionally vague because it did not contain a
punishment provision for violating the statute, nor did § 13A-
11-52 designate whether a violation of the statute was a
felony or a misdemeanor so that another Code provision might
provide a sentence to save the statute. Tulley further argued
that by charging him under § 13A-11-52 the City had violated
his rights to due process.
In addressing this argument, a plurality of the Court of
Criminal Appeals acknowledged the history of § 13A-11-52 and
its predecessor statutes, beginning with a precursor act
adopted in 1919, which had included a sentence. The main
opinion of the Court of Criminal Appeals noted that the
substance of the 1919 act,
including the sentencing provision,
was carried forward in the 1923 recodification of the Alabama
Code. The main opinion noted that the 1940 recodification
read as follows:
"'Carrying a pistol on premises not his own; who may
carry a pistol. Except as otherwise provided in this
chapter no person shall carry a pistol about his
person on premises not his own or under his control;
but this section shall not apply to any sheriff or
his deputy or police officer of an incorporated town
8
1140049
or city in the lawful discharge of the duties of his
office, or United States marshal or their deputies,
rural free delivery mail carriers in the discharge
of their duties as such, conductors, railway mail
clerks, and express messengers in the discharge of
their duties.'"
___ So. 3d at ___. The 1940 recodification did not include a
punishment provision, nor did the
1958
recompilation; the Code
of Alabama 1975 likewise does not contain a provision setting
a punishment for violation of the statute. In the main
opinion, the Court of Criminal Appeals acknowledged the
principle set out in Ex parte State Department of Revenue, 683
So. 2d 980 (Ala. 1996), that, by the process of adopting the
entire Code, the legislature repeals any portion of the
original legislation and
prior
codification not present in the
newly adopted Code. Accordingly, the Court of Criminal
Appeals concluded that the punishment provision was repealed
with the codification of the 1940 Code.
The main opinion of the Court of Criminal Appeals
disagreed with the City's argument
that the general sentencing
provisions in Ala. Code 1975, § 13A-5-4 (formalizing the
objective
that
punishment
be
determined
through
the
designation of an offense as a felony or misdemeanor pursuant
to a letter classification for the offense and providing that,
9
1140049
if the offense is not classified, it will be punishable as a
Class C felony or misdemeanor), § 13A-5-7 (setting out the
punishment for Class A, B, and C misdemeanors), and § 13A-5-12
(setting out fines for Class A, B, and C misdemeanors)
provided a punishment for a violation of § 13A-11-52. Because
§ 13A-11-52 does not designate the offense as a misdemeanor,
the main opinion concluded that the above general sentencing
provisions do not provide a punishment for § 13A-11-52.
However, the main opinion noted that Tulley was not convicted
under § 13A-11-52; rather, he was convicted pursuant to
Ordinance No. O-514-10, which adopted § 13A-11-52 by general
reference and then set out a punishment for violating the
statute. The court noted that Tulley never objected to the
introduction of the ordinance into evidence, nor did he
dispute that the ordinance makes a violation of § 13A-11-52 an
offense against the City.
In the main opinion, the Court of Criminal Appeals
addressed the contention in the dissent that the application
of Ordinance No. O-514-10 raises a jurisdictional issue. The
dissent relied on Crane v. State, 964 So. 2d 1254 (Ala. Crim.
App. 2007), in which the Court of Criminal Appeals held that
10
1140049
the trial court lacked jurisdiction to enter a conviction for
attempted first-degree robbery where the new Criminal Code
expanded the definition of robbery to include the attempt to
rob, so that the former offense of attempted robbery now
constituted the offense of robbery and the offense of
"attempted robbery" no longer existed. In its main opinion,
the Court of Criminal Appeals distinguished Crane on the
ground that Ordinance No. O-514-10 prohibited the conduct set
out in § 13A-11-52 and then provided for a punishment.
The main opinion of the Court of Criminal Appeals noted
that Tulley has never argued that Ordinance No. O-514-10 did
not properly incorporate § 13A-11-52 and that, instead, he
premised his arguments on the notion that Ordinance No. O-514-
10 adopted the conduct prohibited in § 13A-11-52. The court
went on to state:
"[T]he language of the ordinance adequately adopts
§ 13A–11–52, Ala. Code 1975. Subsection (c) of
Ordinance No. O–514–10 includes the following
provision:
"'Any
person
committing
within
the
corporate limits of the city, or within its
police jurisdiction, an offense as defined
by section 13A–1–2 of the Alabama Criminal
Code, which offense is not declared by a
law
of
the
state
to
be
a
felony,
11
1140049
misdemeanor or violation shall be guilty of
an offense against the city.'
"Section 13A–1–2(10), Ala. Code 1975, defines an
'offense as '[c]onduct for which a sentence to a
term of imprisonment, or the death penalty, or to a
fine is provided by any law of this state or by any
law, local law, or ordinance of a political
subdivision of this state.' (Emphasis added.) Thus,
subsection (c) of Ordinance No. O–514–10 declares
that the conduct proscribed by § 13A–11–52, Ala.
Code 1975, is an offense against the City, and
subsection (d) of that same ordinance includes a
provision for punishment for that offense.
"The
dissenting
opinion
emphasizes,
in
subsection (c) of Ordinance No. O–514–10, the phrase
'an offense as defined by section 13A–1–2 of the
Alabama Criminal Code.' The dissenting opinion
isolates that phrase, however, from the phrase that
immediately follows it, which states 'which offense
is not declared by a law of this state to be a
felony,
misdemeanor
or
violation.'
Section
13A–11–52 clearly prohibits certain conduct –-
namely, it prohibits a person from 'carry[ing] a
pistol about his person on premises not his own or
under his control.' The 'law of this State' -- that
is, the Code of Alabama -- does not declare a
violation
of
§
13A–11–52
'to
be
a
felony,
misdemeanor or violation.' The City, however,
through its ordinance has declared that the conduct
at issue -- which is prohibited by § 13A–11–52, Ala.
Code 1975, but not designated by state law as a
'felony, misdemeanor or violation' -- is an offense
against the City. Further, in subsection (d) of the
ordinance, the City has provided an applicable
punishment for that offense.
"Subsection (d) of Ordinance No. O–514–10
states, in relevant part: 'A person convicted of a
violation of this section shall be punished by a
fine not exceeding $500.00 or by imprisonment in the
12
1140049
city jail or hard labor for a period not exceeding
six months, or by any combination ....' Tulley's
sentence was consistent with this subsection.
Moreover, subsection (d) of the ordinance is
consistent with the version of § 11–45–9, Ala. Code
1975, that was in effect at the time of Tulley's
offense; that Code section provided, in relevant
part:
"'(a)
Municipal
ordinances
may
provide
penalties of fines, imprisonment, hard
labor, or one or more of such penalties for
violation of ordinances.
"'(b) No fine shall exceed $500.00,
and no sentence of imprisonment or hard
labor shall exceed six months except, when
in the enforcement of the penalties
prescribed in Section 32–5A–191, such fine
shall not exceed $5,000.00 and such
sentence of imprisonment or hard labor
shall not exceed one year.'9
"
" Section 11-45-9, Ala. Code 1975, was amended
9
effective June 14, 2011."
So. 3d at .
In its main opinion, the Court of Criminal Appeals
acknowledged that, in his application for rehearing, Tulley,
for the first time, addressed the punishment provision in
subsection (d) of Ordinance No. O-514-10. Specifically,
Tulley argued that subsection (d) conflicted with former § 11-
45-1.1, Ala. Code 1975, and former § 11-80-11, Ala. Code 1975
13
1140049
(amended effective August 1, 2013), because, he argued, the
City could punish Tulley only to the extent that the State
could punish him. The Court of Criminal Appeals concluded
that Tulley had waived this argument by raising it for the
first time on rehearing in that court and that, even if Tulley
had timely raised the argument, the legislature did not intend
to prohibit municipalities from imposing fines and sentences
different from those authorized for a state conviction of the
same offense.
Judge Joiner concurred specially, addressing additional
reasons why Tulley's arguments do
not present a jurisdictional
issue and noting that recently enacted § 13A-11-61.3(g)(10),
Ala. Code 1975, effective August 1, 2013, now prohibits
municipalities from enforcing § 13A-11-52.3
Judge Burke dissented from the court's decision, opining
that the trial court lacked jurisdiction to convict Tulley
Section
13A-11-61.3(g)(10)
provides
that,
when
a
3
municipality adopts an ordinance that makes a violation of a
state firearm law a municipal violation, the municipal
ordinance may not impose a higher penalty than the penalty
imposed under the state firearm law. However, it appears that
a municipality was already preempted under former § 11-45-1.1
and former § 11-80-11 from punishing a state firearm violation
adopted as a municipal violation from a punishment other than
"to the same extent as other state law violations."
14
1140049
because, he said, Ordinance No. O-514-10 did not adopt § 13A-
11-52. Judge Burke reasoned:
"Subsection (d) of Ordinance No. O–514–10
provides, in relevant part:
"'(d) A person convicted of a violation of
this section shall be punished by a fine
not exceeding $500.00 or by imprisonment in
the city jail or hard labor for a period
not exceeding six months, or by any
combination ....'
"(Emphasis added.) Thus, in order for the punishment
provision found in subsection (d) to have any
application, a person must be convicted of violating
'this section,' i.e., the person must be convicted
of violating some specific part of Ordinance No.
O–514–10.
"The main opinion states that Tulley was
convicted of violating subsection (c) of Ordinance
No. O–514–10, which provides:
"'(c) Any person committing within the
corporate limits of the city, or within its
police jurisdiction, an offense as defined
by section 13A–1–2 of the Alabama Criminal
Code, which offense is not declared by a
law
of
the
state
to
be
a
felony,
misdemeanor or violation shall be guilty of
an offense against the city.'
"(Emphasis added.)
"Section
13A–1–2(10),
Ala.
Code
1975,
defines
an
'offense' as '[c]onduct for which a sentence to a
term of imprisonment, or the death penalty, or to a
fine is provided by any law of this state or by any
law, local law, or ordinance of a political
subdivision of this state.'
15
1140049
"Again, to constitute an 'offense' under §
13A–1–2 there must be 'conduct for which a sentence
... is provided,' and a person must commit 'an
offense as defined by section 13A–1–2' to be
convicted of violating subsection (c) of Ordinance
No. O–514–10. The conduct at issue in the present
case is a person's 'carry[ing] a pistol about his
person on premises not his own or under his
control.' As stated in the main opinion, §
13A–11–52 does not provide a sentence for that
conduct, and Ordinance No. O–514–10 makes no mention
of that conduct. Thus, no law of this State or the
City of Jacksonville provides a sentence for that
conduct. Accordingly, that conduct is not an
'offense,' as defined by § 13A–1–2. Therefore,
contrary to the statements in the main opinion,
subsection (c) of Ordinance No. O–514–10 –- which
adopts only 'offense[s] as defined by section
13A–1–2' -- does not 'adopt[] § 13A–11–52, Ala. Code
1975,' nor does it 'declare[] that the conduct
proscribed by § 13A–11–52, Ala. Code 1975, is an
offense against the City.' ___ So. 3d at ___.
Because subsection (c) of Ordinance No. O–514–10
does not adopt § 13A–11–52, subsection (d) of
Ordinance
No.
O–514–10
does
not
provide
an
applicable
punishment
provision
and
no
other
applicable punishment provision exists.
"To support its conclusion that Ordinance No.
O–514–10 adopts § 13A–11–52, the main opinion
attempts to rely on the clause 'which offense is not
declared by a law of this state to be a felony,
misdemeanor
or
violation.'
See
Ordinance
No.
O–514–10(c) (emphasis added); see also Tulley, ___
So. 3d at ___. However, that clause still requires
an 'offense,' i.e., 'conduct for which a sentence
... is provided.' The main opinion concludes that
the
punishment
provision
in
Ordinance
No.
O–514–10(d) -- which is applicable only if there is
a 'violation of this section' -- provides the
required sentence and turns conduct that does not
otherwise have a sentence provided into an 'offense'
16
1140049
under Ordinance No. O–514–10(c) and, thus, turns
that conduct into a violation of 'this section.'
That conclusion appears to be reached by circular
reasoning."
Tulley, So. 3d at (Burke, J., dissenting).
The first question we must address is whether the trial
court had jurisdiction to render Tulley's conviction, which
was pursuant to Ordinance No. O-514-10. In his brief to this
Court, Tulley does not argue that the trial court lacked
jurisdiction despite the fact that that issue was addressed
in the main opinion of the Court of Criminal Appeals and in
both special writings. However,
"'[o]n questions of subject-matter
jurisdiction, this Court is not limited by
the parties' arguments or by the legal
conclusions of the trial and intermediate
appellate
courts
regarding
the
existence
of
jurisdiction. ... See Ex parte Smith, 438
So. 2d 766, 768 (Ala. 1983)("Lack of
subject-matter jurisdiction may not be
waived by the parties and it is the duty of
an appellate court to consider lack of
subject-matter jurisdiction ex mero motu."
(citing City of Huntsville v. Miller, 271
Ala. 687, 688, 127 So. 2d 606, 608
(1958))).'
"Ex parte Alabama Dep't of Human Res., 999 So. 2d
891, 894–95 (Ala. 2008)."
Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So. 3d
1197, 1199 (Ala. 2009).
17
1140049
In addressing Ordinance No. O-514-10, we are guided by
the
following
overarching
principles:
"A
municipal
corporation is but a creature of the State, existing under and
by virtue of authority and power granted by the State."
Hurvich v. City of Birmingham, 35 Ala. App. 341, 343, 46 So.
2d 577, 579 (1950). "Municipal corporations may exercise only
such powers as are expressly granted to them by the
Legislature or necessarily implied in or incident to the
powers expressly conferred, and those indispensably necessary
to the accomplishment of the objects of the municipality."
Phenix City v. Putnam, 268 Ala. 661, 664, 109 So. 2d 836, 838
(1959). "Although municipalities exercise 'such power ... as
is conferred upon [them] by law,' a municipality need not
predicate its every action upon some specific express grant of
power. Alabama's cities possess certain implied powers that
derive from the nature of the powers expressly granted to them
by the legislature." Wilkins v. Dan Haggerty & Assocs., Inc.,
672 So. 2d 507, 509 (Ala. 1995). Article IV, § 89, Ala.
Const. 1901, provides that "[t]he legislature shall not have
power to authorize any municipal corporation to pass any laws
inconsistent with the general laws of this state." "'"Whether
18
1140049
an ordinance is inconsistent with the general law of the State
is to be determined by whether the municipal law prohibits
anything which the State law specifically permits."'" Gibson
v. City of Alexander City, 779 So. 2d 1153, 1155 (Ala.
2000)(quoting Lanier v. City of Newton, 518 So. 2d 40, 43
(Ala. 1987), quoting in turn Congo v. State, 409 So. 2d 475,
478 (Ala. Crim. App. 1981)). "An ordinance which merely
enlarges upon the provision of a statute by requiring more
restrictions than the statute requires creates no conflict
unless the statute limits the requirement for all cases to its
own terms." Congo, 409 So. 2d at 478. "Mere differences in
detail do not create a conflict, and we cannot say a conflict
exists merely because the Act is silent where the ordinance
speaks." Alabama Recycling Ass'n, Inc. v. City of Montgomery,
24 So. 3d 1085, 1090 (Ala. 2009). "[I]t is no objection to a
municipal ordinance not in contravention of a state law that
it affords additional regulation 'complementary to the end
state legislation would effect.'" Standard Chem. & Oil Co. v.
City of Troy, 201 Ala. 89, 92, 77 So. 383, 386 (1917) (quoting
Turner v. Town of Lineville, 2 Ala. App. 454, 56 So. 603, 605
(1911)).
19
1140049
A state statute may preempt a municipal ordinance
expressly when the statute defines the extent to which its
enactment preempts municipal ordinances, when a municipal
ordinance attempts to regulate conduct in a field that the
legislature intended the state law to exclusively occupy, and
when a municipal ordinance permits what a state statute
forbids or forbids what a statute permits. Alabama Recycling
Ass'n, supra; Peak v. City of Tuscaloosa, 73 So. 3d 5 (Ala.
Crim. App. 2011). When the State has not preempted a field,
the same acts may be prohibited by the State and a
municipality and the penalties may be different so long as the
penalty provided "is not in excess of that which the
municipality has been granted the authority to impose."
Donley v. City of Mountain Brook, 429 So. 2d 603, 617 (Ala.
Crim. App. 1982), rev'd on other grounds, 429 So. 2d 618 (Ala.
1983). Municipal ordinances are subject to the same general
rules of statutory construction as are acts of the
legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.
2d 905 (Ala. 1976).
In the present case, the City, in Ordinance No. O-514-10,
adopted by general reference state misdemeanors, violations,
20
1140049
and offenses as offenses against the City. This is
permissible, and it serves the dual purpose of allowing a
citizen to be informed of two parallel codes of law and avoids
the expense of a municipality promulgating ordinances in the
same terms as well known statutes. Casteel v. City of
Decatur, supra. It is also permissible for a municipal
ordinance to provide a punishment different from the
punishment for the state misdemeanor, violation,
or
offense so
long as the municipality does not exceed the legislative
authority granted it. Donley v. City of Mountain Brook,
supra.
Subsection (c) of Ordinance No. O-514-10 adopts state
offenses as defined by § 13A-1-2 that were not declared to be
misdemeanors, felonies, or violations of state law. Section
13A-1-2 provides the definitions of terms that are commonly
used throughout the Criminal Code and provides that, unless
different meanings are expressly specified in subsequent
provisions of the Criminal Code, the terms have the meanings
set out in § 13A-1-2. Section 13A-1-2 defines a felony as
"[a]n offense for which a sentence of imprisonment in excess
of one year is authorized by this title"; a misdemeanor as
21
1140049
"[a]n offense for which a sentence to a term of imprisonment
not in excess of one year may be imposed"; a violation as
"[a]n offense for which a sentence to a term of imprisonment
not in excess of 30 days may be imposed"; and an offense as
"[c]onduct for which a sentence to a term of imprisonment, or
the death penalty, or to a fine is provided by any law of this
state or by any law, local law, or ordinance of a political
subdivision of this state." See § 13A-1-2(8), (9), (16), and
(10), Ala. Code 1975, respectively.
The problem with classifying § 13A-11-52 as charging a
municipal "offense" if the "offense" occurs within the City's
jurisdiction is that § 13A-11-52 is unconstitutional on its
face in that it cannot be enforced under any circumstances.
This is so because § 13A-11-52 does not provide for a
punishment.
"It is a fundamental tenet of due process that
'[n]o one may be required at peril of life, liberty
or property to speculate as to the meaning of penal
statutes.' Lanzetta v. New Jersey, 306 U.S. 451, 453
(1939). A criminal statute is therefore invalid if
it 'fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is
forbidden.' United States v. Harriss, 347 U.S. 612,
617 (1954). See Connally v. General Construction
Co., 269 U.S. 385, 391–393 (1926); Papachristou v.
Jacksonville, 405 U.S. 156, 162 (1972); Dunn v.
United States, 442 U.S. [100], at 112–113 [(1979)].
22
1140049
So too, vague sentencing provisions may pose
constitutional questions if they do not state with
sufficient clarity the consequences of violating a
given criminal statute. See United States v. Evans,
333 U.S. 483 (1948); United States v. Brown, 333
U.S. 18 (1948); cf. Giaccio v. Pennsylvania, 382
U.S. 399 (1966)."
United
States v. Batchelder, 442 U.S. 114, 123
(1979)(emphasis
added).
A "'facial challenge' ... is defined as '[a] claim that
a statute is unconstitutional on its face -- that is, that it
always operates unconstitutionally.'" Board of Water & Sewer
Comm'rs of Mobile v. Hunter, 956 So. 2d 403, 419 (Ala. 2006)
(quoting Black's Law Dictionary 244 (8th ed. 2004)). To
4
prevail on a facial challenge to the constitutionality of a
statute, a party must establish "that no set of circumstances
exists under which the [statute] would be valid." United
States v. Salerno, 481 U.S. 739, 745 (1987). In contrast, an
"as-applied challenge" is "a claim that a statute is
unconstitutional on the facts of a particular case or in its
application to
a
particular party." Black's Law Dictionary 278
(10th ed. 2014).
Hunter
was
superseded
by
statute,
as
recognized
in
Arthur
4
v. Bolen, 41 So. 3d 745 (Ala. 2010).
23
1140049
"'[C]ourts may declare legislative enactments to be
inoperative
and
void
for
indefiniteness
or
uncertainty in meaning. But such power should be
exercised only when a statute is so incomplete, so
irreconcilably
conflicting,
or
so
vague
or
indefinite, that it cannot be executed, and the
court is unable, by the application of known and
accepted rules of construction, to determine, with
any reasonable degree of certainty, what the
legislature intended.'"
Northington v. Alabama Dep't of Conservation & Natural Res.,
33 So. 3d 560, 566 (Ala. 2009)(quoting Jansen v. State, 273
Ala. 166, 170, 137 So. 2d 47, 50 (1962)).
We recognize that Ordinance No. O-514-10 adopts by
reference state misdemeanors, violations, and offenses and
then goes on to provide a punishment when those acts or
omissions occur within the City's corporate limits or police
jurisdiction. However, the inclusion of a punishment in
Ordinance
No.
O-514-10
does
not
"cure"
the
unconstitutionality
of § 13A-11-52, which arose out of the legislature's failure
to include a punishment for the conduct proscribed by that
statute. We also recognize that an "offense" is defined in §
13A-1-2(10) as "[c]onduct for which a sentence to a term of
imprisonment, or the death penalty, or to a fine is provided
by any law of this state or by any law, local law, or
ordinance of a political subdivision of this state." In other
24
1140049
words, in the Criminal Code an offense is conduct plus
punishment, whether that offense happens to be proscribed by
a state statute, a local law applicable to a county or
counties, or a municipal ordinance. The State could not
prohibit the conduct described in § 13A-11-52 as written and
then apply the punishment set out in the City's ordinance, nor
can the City adopt by reference § 13A-11-52 as written and
5
apply the punishment set out in Ordinance No. O-514-10.
In Reed v. State, 372 So. 2d 876 (Ala. 1979), a member of
the legislature was charged with the felony offense of
bribery. The jury found the defendant guilty of the
misdemeanor offense of attempting to bribe under former § 13-
9-3, Ala. Code 1975. This Court held that the defendant's
conviction for the misdemeanor was a nullity because any
With regard to § 13A-11-52 and the paucity of caselaw,
5
it is telling that only three cases since the 1940 Code
omitted the punishment provision from what is now § 13A-11-52
have reached the appellate level; those three cases involved
juvenile proceedings, which are quasi-criminal in nature.
Section 13A-11-52 was used to adjudicate the juveniles as
delinquent and in need of supervision. See K.J. v. State, 690
So. 2d 541 (Ala. Crim. App. 1997); C.D.J. v. State, 671 So. 2d
139 (Ala. Crim. App. 1995); and E.T. v. State, 682 So. 2d 508
(Ala. Crim. App. 1996). It does not appear that any of the
juvenile defendants raised any issue regarding the failure of
§ 13A-11-52 to provide punishment for the offense.
25
1140049
inchoate offense of attempt had been subsumed by the
definition of the felony offense of bribery in former § 13-5-
31, Ala. Code 1975. The Court reversed the conviction and
rendered a judgment of acquittal. In Casey v. State, 925 So.
2d 1005 (Ala. Crim. App. 2005), the defendant filed a Rule 32,
Ala. R. Crim. P., petition challenging the trial court's
jurisdiction to accept his guilty plea. The defendant was
indicted for first-degree robbery, and on February 28, 1983,
he pleaded guilty to attempted robbery in the first degree.
The definition of robbery had been enlarged and expanded by
the 1977 Criminal Code so as to include attempted robbery in
the definition of robbery. The State conceded that the
defendant's conviction was void and that it should be set
aside. In Crane v. State, 964 So. 2d 1254 (Ala. Crim. App.
2007), the defendant was
indicted
for first-degree robbery but
pleaded guilty to attempted first-degree robbery, which was a
separate offense that no longer exists under the new Criminal
Code. Because the defendant had pleaded guilty to a
nonexistent offense, the Court of Criminal Appeals held that
the trial court lacked jurisdiction to render a judgment and
26
1140049
to impose a sentence against the defendant for attempted
first-degree robbery.
A statute that cannot be applied under any circumstances,
i.e., a statute that is facially
unconstitutional,
affects the
jurisdiction of the court to render a judgment against a
defendant
because
the
satute
always
operates
unconstitutionally. As noted above, the City's adoption of
6
In Los Angeles v. Patel, 576 U.S. , 135 S. Ct. 2443
6
(2015), the Supreme Court held that a municipal ordinance
requiring hotel operators to provide police officers with
specified information concerning hotel guests upon demand on
its face violated the Fourth Amendment to the United States
Constitution. The Supreme Court stated:
"A facial challenge is an attack on a statute
itself as opposed to a particular application. While
such challenges are 'the most difficult ... to mount
successfully,' United States v. Salerno, 481 U.S.
739, 745 (1987), the Court has never held that these
claims cannot be brought under any otherwise
enforceable provision of the Constitution. Cf.
Fallon, Fact and Fiction About Facial Challenges, 99
Cal. L. Rev. 915, 918 (2011) (pointing to several
Terms in which 'the Court adjudicated more facial
challenges on the merits than it did as-applied
challenges'). Instead, the Court has allowed such
challenges to proceed under a diverse array of
constitutional provisions. See, e.g., Sorrell v. IMS
Health Inc., 564 U.S. ___, [131 S.Ct. 2653] (2011)
(First Amendment); District of Columbia v. Heller,
554 U.S. 570 (2008) (Second Amendment); Chicago v.
Morales, 527 U.S. 41 (1999)(Due Process Clause of
the Fourteenth Amendment); Kraft Gen. Foods, Inc. v.
Iowa Dept. of Revenue and Finance, 505 U.S. 71
27
1140049
the facially unconstitutional state statute by general
reference along with the inclusion of a punishment in
Ordinance No. O-514-10 did not cure the constitutional
deficiencies in the statute. Like the nonexistent offenses in
Reed, Crane, and Casey, the offense of carrying a pistol
"about his person on premises not his own or under his
control" within the City's corporate limits did not exist.
Based on the foregoing, we reverse the judgment of the
Court of Criminal Appeals affirming Tulley's conviction. At
the time of Tulley's alleged offense, § 13A-11-52 was
unconstitutional on its face, and the City's purported
adoption of that offense as an offense against the City by
general reference in Ordinance No. O-514-10 was a nullity.
Accordingly, the trial court lacked jurisdiction to convict
Tulley. We remand the case to the Court of Criminal Appeals
for that court, in turn, to reverse and to remand the case to
the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
(1992) (Foreign Commerce Clause)."
576 U.S. at ___, 135 S. Ct. at 2449.
28
1140049
Moore, C.J., and Parker, Main, and Bryan, JJ., concur.
Stuart, Murdock, and Shaw, JJ., dissent.
29
1140049
STUART, Justice (dissenting).
Because I cannot agree with the main opinion's holding
that a court's subject-matter jurisdiction, that is,
a
court's
power to decide a case, rests upon the constitutionality of
the
ordinance/statute
the
defendant
is
charged
with
violating,
I respectfully dissent.
"Jurisdiction is '[a] court's power to decide a
case or issue a decree.' Black's Law Dictionary 867
(8th ed. 2004). Subject-matter jurisdiction concerns
a court's power to decide certain types of cases.
Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755
(1911)('"By jurisdiction over the subject-matter is
meant the nature of the cause of action and of the
relief sought."' (quoting Cooper v. Reynolds, 77
U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))).
That power is derived from the Alabama Constitution
and the Alabama Code. See United States v. Cotton,
535 U.S. 625, 630–31, 122 S.Ct. 1781, 152 L.Ed.2d
860 (2002)(subject-matter jurisdiction refers to a
court's 'statutory or constitutional power' to
adjudicate a case)."
Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006).
The Alabama Constitution provides that a municipal court
"shall have uniform original jurisdiction limited to cases
arising under municipal ordinances as prescribed by law" and
that a circuit court "shall exercise general jurisdiction in
all cases except as may be otherwise provided by law." § 145
and § 142, respectively, Ala. Const. 1901. The Alabama Code
30
1140049
provides that "[t]he municipal court shall have jurisdiction
of all prosecutions for the breach of the ordinances of the
municipality within its police jurisdiction," § 12-14-1(b),
Ala. Code 1975, and that "[t]he circuit court shall have
appellate jurisdiction of ... prosecutions for ordinance
violations in municipal courts, except in cases in which
direct appeal to the Court[] ... of Criminal Appeals is
provided by law or rule," § 12-11-30(3), Ala. Code 1975.
Jason Dean Tulley was charged with carrying a pistol on
premises not his own in violation of City of Jacksonville
Ordinance No. O-514-10. The City of Jacksonville's
prosecution of Tulley for a violation of that municipal
ordinance was within the subject-matter jurisdiction of the
City of Jacksonville municipal court, and Tulley's appeal of
that conviction was within the subject-matter jurisdiction of
the Chilton Circuit Court.
The issue addressed by the main opinion and its
substantive holding that § 13A-11-52, Ala. Code 1975, is
unconstitutional
on
its
face
and
that
the
City
of
Jacksonville's
purported
adoption
by
general
reference
of
that
offense was a nullity does not pertain to the jurisdiction of
31
1140049
the municipal court or the circuit court. In Lamar v. United
States, 240 U.S. 60, 65 (1916), the United States Supreme
Court observed that an "objection that the indictment does not
charge a crime ... goes only to the merits of the case."
Likewise, an objection to the constitutionality of
a
municipal
ordinance goes to the merits of the case. A determination of
the constitutionality of the ordinance is irrelevant to
whether the municipal court and the circuit court had
jurisdiction over the subject matter of this case.
Because I believe that the municipal court and the
circuit court had subject-matter jurisdiction, i.e., the
constitutional and statutory authority to decide this case, I
respectfully dissent.
Murdock, J., concurs.
32
1140049
SHAW, Justice (dissenting).
I respectfully dissent. I am not persuaded that
Ordinance No. O-514-10 is facially unconstitutional. The
Court of Criminal Appeals stated:
"[S]ubsection (c) of Ordinance No. O-514-10 declares
that the conduct proscribed by § 13A-11-52, Ala.
Code 1975, is an offense against the City, and
subsection (d) of that same ordinance includes a
provision for punishment for that offense.
"...
Section
13A-11-52
clearly
prohibits
certain
conduct--namely,
it
prohibits
a
person
from
'carry[ing] a pistol about his person on premises
not his own or under his control.' The 'law of this
State'--that is, the Code of Alabama--does not
declare a violation of § 13A-11-52 'to be a felony,
misdemeanor or violation.' The City, however,
through its ordinance has declared that the conduct
at issue--which is prohibited by § 13A-11-52, Ala.
Code 1975, but not designated by state law as a
'felony, misdemeanor or violation'--is an offense
against the City. Further, in subsection (d) of the
ordinance, the City has provided an applicable
punishment for that offense."
Tulley v. City of Jacksonville, [Ms. CR-11-1880, Oct. 3, 2014]
___ So. 3d ___, ___ (Ala. Crim. App. 2014).
Section 16.1(a) of Ordinance No. O-514-10 adopts as
offenses State offenses that are misdemeanors. In part (b) of
that section, it adopts as offenses State offenses that are
violations. In part (c), it adopts as offenses State offenses
"not declared by law of the state to be a felony, misdemeanor
33
1140049
or violation"; in other words, it adopts State offenses that
happen to omit a punishment. In part (d), the ordinance goes
on to provide a punishment for the offenses adopted in part
(c). Here, Ordinance No. O-514-10 does not simply adopt a
Code section that is facially unconstitutional because it
lacks a punishment; instead, as stated in part (c), it adopts
State offenses that might omit a punishment and then provides
that missing punishment.
The main opinion, citing United States v. Batchelder, 442
U.S. 114, 123 (1979), states that the United States
Constitution requires a defendant to be provided sufficient
notice of the conduct forbidden and sufficient notice of the
consequences for a violation of the law. The ordinance here
provided Jason Dean Tulley with both these things: He cannot
claim that there was insufficient notice that he could not
carry a gun on property not his own, because this is forbidden
by section 16.1(c) of the ordinance through its incorporation
of § 13A-11-52, and he cannot say that he did not know the
punishment
for
violating the ordinance, because that is stated
in section 16.1(d). Therefore, his due-process rights under
34
1140049
Batchelder were not violated. Additionally, he was not
7
convicted of a nonexistent crime as were the defendants in
Reed, Casey, and Crane--cases discussed in the main opinion.
I would quash the writ.
Section 13A-11-52, Ala. Code 1975, as it existed at the
7
time of the incident underlying this case, might suffer from
significant constitutional problems, and Ordinance No. O-514-
10 might violate subsequently enacted State law. However,
this Court is called upon to decide only the issues Tulley has
chosen to properly raise.
35 | September 4, 2015 |
369c541e-93c7-4885-b476-404385c0a13b | Alabama Power Co. v. Drummond | 559 So. 2d 158 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 158 (1990)
ALABAMA POWER COMPANY
v.
Silvia Easterwood DRUMMOND.
88-990.
Supreme Court of Alabama.
February 16, 1990.
James H. Miller III, Dan H. McCrary and James H. Hancock, Jr. of Balch & Bingham, Birmingham, for appellant.
H. Thomas Wells, Jr. and Alfred F. Smith, Jr. of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee.
HORNSBY, Chief Justice.
Alabama Power Company (hereinafter "APCo") appeals from the judgment of the Circuit Court of Walker County granting Silvia Drummond the right to maintain an *159 existing encroachment onto APCo's flood easement adjacent to Drummond's land.
Silvia Drummond owns a parcel of land in Walker County known as lot 1 in Longview Subdivision. This land is adjacent to Lewis M. Smith Reservoir ("Smith Lake"), an APCo hydroelectric development. APCo acquired much of the land around what is now Smith Lake in the years prior to the development of the lake. Later, however, APCo sold off some parcels of that land. Drummond's land is one such parcel.
APCo acquired the subject property in 1930 from W.H. and Gladys Parker. Thereafter, APCo conveyed this parcel to Alabama Properties Company. APCo retained the fee title to land lying at elevations less than 510 feet above mean sea level, and retained a flood easement over lands lying between 510 and 522 feet above mean sea level and the right of ingress to and egress from that easement. The conveyance to Alabama Properties Company also contained certain restrictive covenants. Those covenants are as follows:
(Emphasis added.)
Longview Subdivision was created after Alabama Properties Company took title from APCo, and certain building restrictions, recorded in 1961, were placed on lot 1. Those restrictions provide that a 15-foot sideyard is to be maintained on lot 1. The set-back line from which the sideyard is to begin is at the 522-foot line.
Silvia Drummond's deposition testimony shows that she and her husband, Gary Neil Drummond, acquired title to the subject property in the late 1960's. In 1979, the Drummonds divorced. As a part of the divorce settlement, Gary Drummond conveyed to Silvia Drummond lots 1 and 2 of Longview Subdivision, together with the house situated on lot 1. Lot 2 of these tracts is specifically described as lying between the 510- and 522-foot lines; and lot 2 is specifically encumbered by a flood easement in favor of APCo.
It appears to be undisputed that Silvia Drummond was aware of the flood easement. Her deposition testimony indicates that she was aware that the easement covered land up to the 522-foot line and that she may have known this for as long as 10 years before the challenged construction was begun. She also indicates that the contractors who performed the construction work were also aware of the easement. The evidence is disputed as to whether these contractors made Drummond aware that the proposed addition to her home would encroach into the flood easement. Despite the fact that the flood easement and restrictive covenants were a matter of public record, Drummond constructed an addition to her home that now encroaches onto the APCo flood easement. Certain "fill material" was also placed in the easement.
APCo filed suit in this matter on January 29, 1985. In its complaint, APCo sought a permanent injunction enjoining Drummond from "maintaining [the] house and associated structures within plaintiff's flood easement" and from maintaining the fill *160 material in the easement, and requiring Drummond to remove the addition, the fill material, and "associated structures" within the easement. Drummond points out, however, that APCo has in the past granted numerous persons "waivers" from its flood easements and has not sought to have the encroaching structures removed.
After a hearing, the trial court entered a memorandum opinion and order, which, in part, reads as follows:
Our review of the trial court's order indicates that the judge attempted to balance the parties' interests in the case at hand. APCo argues in its brief that the trial court erred by "balancing the relative equities." APCo argues that Alabama law precludes the trial court from balancing the equities in a case like this one. We note, however, that the issuance of injunctive relief is a matter left to the sound discretion of the trial court. Hood v. Neil, 502 So. 2d 749 (Ala.1987); Powell v. Phenix Federal Savings & Loan Ass'n, 434 So. 2d 247 (Ala.1983). Thus, APCo must show that the trial court committed plain and palpable error to warrant a reversal. Reed v. City of Montgomery, 341 So. 2d 926 (Ala. 1976); Ex parte Jones, 246 Ala. 433, 20 So. 2d 859 (1945). Granting injunctive relief is within the trial court's discretion especially where, as here, the evidence was presented only to the trial court and not to a jury. Powell, supra. The trial court's judgment may be reversed if the court violates a principle of equity or misapprehends a controlling principle of law. Id. at 251.
It is also well recognized that Alabama law requires the owner of a servient tenement to refrain from doing any act that would interfere with or be inconsistent with the proper right to use and enjoy the easement vested in the owner of the dominant tenement. Alabama Power Co. v. Martin, 341 So. 2d 695 (Ala.1977). See also Brown v. Alabama Power Co., 275 Ala. 467, 156 So. 2d 153 (1963) (owner of the servient estate may not interfere with the dominant estate); Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868 (1926) (servient estate owner not allowed to build house on power line easement). It is also well settled that one who takes land "with notice of, an easement, takes the estate subject to such easement." Brown, supra, 275 Ala. at 470, 156 So. 2d at 155.
Drummond and APCo have stipulated that the construction of the addition to the Drummond house constitutes an encroachment onto APCo's flood easement. Drummond contends, however, that the encroachment is, as found by the trial court, "infinitesimal" and that if APCo, under its easement, were to flood the land up to the 522-foot line, only the "footings" of the house would be under water.
In Brown, supra, a case in which the servient owner built a house on APCo's flood easement, this Court stated:
Brown, supra, 275 Ala. at 471, 156 So. 2d at 156 (emphasis added).
However, Brown and the other cases cited to us by APCo do not stand for the proposition that removal of the offending structure is the sole remedy allowed under the trial court's equitable jurisdiction. In fact, certain of the cases cited by APCo have allowed an encroaching structure to remain in place pending some other remedy. See, e.g., Magna, Inc. v. Catranis, 512 So. 2d 912 (Ala.1987) (damages allowed); Hood v. Neil, 502 So. 2d 749 (Ala.1987) *162 (damages allowed and injunctive relief denied).
The equity powers of a trial court are broad. The United States Supreme Court has discussed the extent of those powers as follows:
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971).
This broad power to fashion judgments applies in the context of an injunction action, and the trial court may refuse injunctive relief in its attempt to do equity in a given case. A court may "balance the equities" in deciding whether to grant an injunction, and may specifically consider the "convenience" of the requested relief to both the plaintiff and the defendant. H. Joyce, Joyce on Injunctions § 20 at 41 (1909).
In the present case, the trial court fashioned a judgment that sought to protect both parties to the litigation. The trial court found that Drummond had mistakenly built the addition on APCo's flood easement and that substantial damage would be done to her house by removal of the small encroachment. Moreover, there is evidence in the record tending to support the trial court's conclusion that Drummond was unaware that the addition actually encroached into the APCo easement until construction was virtually complete and that the encroachment was not knowingly or intentionally erected. APCo also received great protection under the trial court's order, and Drummond may yet be required to remove the encroachment if she fails to comply with the conditions of the trial court's order.
Based upon our review of the law and the evidence in this case, we cannot say that the trial court erred. Its judgment is, therefore, affirmed.
AFFIRMED.
JONES, ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
In Magna, Inc. v. Catranis, 512 So. 2d 912, 913 (Ala.1987), we held:
Alabama Power Company has the right to flood each square foot of the property on which it has a floodage easement. This is a property right. My respect for property rights will not permit me to diminish or reduce Alabama Power Company's rights simply because it does not need to use at all times all of the property to which it has property rights. Our federal and state constitutions protect such rights and would prohibit judicial deprivation or diminution of such rights based solely upon a judicial determination that in depriving the owner of that property right it can "adjust the equities." I would reverse and remand on the authority of Magna, Inc. v. Catranis, supra; McGuire v. Lawrence, 523 So. 2d 380 (Ala. 1988); Snider v. Alabama Power Co., 346 So. 2d 946 (Ala.1977); Brown v. *163 Alabama Power Co., 275 Ala. 467, 156 So. 2d 153 (1963).
MADDOX, J., concurs.
STEAGALL, Justice (dissenting).
I concur in Justice Houston's dissent. I also point out that the majority opinion acknowledges that the appellee was aware of the flood easement. The appellant's flood easement was recorded, and it is undisputed that the appellee's landscape architect and designer had actual knowledge of the existence and location of that easement prior to the commencement of construction.
The appellee testified as follows:
Even under a "balancing of the equities" test, in my opinion, this knowledge of the easement prior to construction should weigh heavily in favor of the appellant.
I respectfully dissent. | February 16, 1990 |
8873c01a-06ad-43cb-b14a-4b7a6b8f8c7a | Ex parte J.D.A. | N/A | 1140915 | Alabama | Alabama Supreme Court | REL:09/04/2015
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, 2015
_________________________
1140915
_________________________
Ex parte J.D.A.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: J.D.A.
v.
T.A.S.L.)
(Mobile Circuit Court, CS-11-6397.04 and .05;
Court of Civil Appeals, 2140245)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Main, and Bryan, JJ., concur.
Moore, C.J., and Parker, Murdock, and Wise, JJ., dissent.
1140915
MURDOCK, Justice (dissenting).
The so-called "McLendon standard" serves as a mechanism
1
to help ensure that the trial court, in attempting to
determine the best interest of the child in relation to a
proposed change of custody, does not overlook whatever
disruption might be occasioned by the proposed change to the
end that the trial court correctly determines whether the
positive good for the child to be brought about by the
proposed change more than offsets the particular disruption
that would be caused. Of course, the degree of disruption
that will occur can vary greatly from one case to another,
just as can the positive benefits of proposed changes.
Because I believe the trial court in this case incorrectly
considered the McLendon standard to be a more uniformly
"severe" restriction than it in fact is, I would grant the
petition so that this Court could further examine the record
and whether the trial court's approach to this case conflicts
with the decision of this Court in Ex parte Cleghorn, 993 So.
2d 462, 467-69 (Ala. 2008). See also Ex parte J.M.F., 730 So.
2d 1190, 1194 (Ala. 1998); Smith v. Smith, 865 So. 2d 1207,
Ex parte McLendon, 455 So. 2d 863 (Ala. 1984).
1
2
1140915
1211-13 (Ala. Civ. App. 2003) (Murdock, J., concurring in the
result); and M.W.W. v. B.W., 900 So. 2d 1230, 1237-39 (Ala.
Civ. App. 2004) (Murdock, J., concurring in the result).
Moore, C.J., and Wise, J., concur.
3 | September 4, 2015 |
ca8b08ce-cb7a-4613-b998-ef4d88d69a3c | Advisory Opinion No. 391 | N/A | 391 | Alabama | Alabama Supreme Court | REL:10/1/2015
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, 2015
____________________
OPINION OF THE JUSTICES
____________________
No. 391
Opinion Issued October 1, 2015
The Honorable Robert Bentley
Governor of Alabama
Alabama State Capitol
Montgomery, Alabama 36130
Dear Governor Bentley:
We have received your letter of September 9, 2015, in
which you request an advisory opinion on the following
constitutional question:
"Would an amendment of Article IV, § 65 of the
Alabama Constitution to grant the Legislature power
to authorize only a state operated lottery, result
in removal of the existing general ban on gambling
Opinion of the Justices No. 391
or gaming activities in the State and thus, result
in legalizing Class III or other casino style gaming
in the state, with or without further legislative
act?"
Section 12-2-10, Ala. Code 1975, provides that "[t]he
Governor, by a request in writing, or either house of the
Legislature, by a resolution of such house, may obtain a
written opinion of the justices of the Supreme Court of
Alabama or a majority thereof on important constitutional
questions."
We are reluctant to offer an advisory opinion about a
hypothetical constitutional amendment that has not been
embodied in the text of a specific bill.
"Under § 12-2-10, Code of Alabama 1975, the
Supreme Court is authorized to issue advisory
opinions on important constitutional questions.
However, this court has heretofore restricted these
opinions to questions on the constitutionality of
proposed
legislation
arising
under
specific
provisions of the Constitution. We view 'proposed
legislation' as a bill introduced and pending in the
Legislature."
Opinion of the Justices No. 242, 356 So. 2d 172, 173 (Ala.
1978)
(citations
omitted;
final
emphasis
added).
The
amendment
to Article IV, § 65, Ala. Const. 1901, referenced in the
question you have presented for the Justices' opinion, is
purely hypothetical. No bill is attached to the request. When
2
Opinion of the Justices No. 391
constitutional questions raised in a request for an advisory
opinion "do not appear to pertain to a bill which has been
introduced
in
the
[legislature],"
the
Justices
have
respectfully declined to answer the questions. Opinion of the
Justices No. 242, 356 So. 2d at 173. Accord Opinion of the
Justices No. 375, 823 So. 2d 1274, 1275 (Ala. 2002); Opinion
of the Justices No. 369, 730 So. 2d 129, 131 (Ala. 1999).
The question presented, apart from not addressing
specific legislation, asks us to speculate as to the
collateral effect a potential constitutional amendment to
allow only a state-operated lottery might have on the gaming
laws in this State. However, the question presented does not
specify the gaming laws in question. They are identified only
as laws that impose "the existing general ban on gambling or
gaming activities in the State." We do not consider it prudent
to hypothesize as to what statutes, state or federal, may be
contemplated in this request. See Opinion of the Justices No.
382, 907 So. 2d 1022, 1025 (Ala. 2005) (declining to provide
"a speculative opinion" on how a proposed constitutional
amendment would be interpreted by the courts). Because § 12-2-
10 "does not authorize the expression of opinions on
3
Opinion of the Justices No. 391
hypothetical questions," Opinion of the Justices No. 162, 267
Ala. 110, 113, 100 So. 2d 565, 567 (1958), we respectfully
decline your request for an advisory opinion.
Respectfully submitted,
/s/ Roy S. Moore
Roy S. Moore
Chief Justice
/s/ Michael F. Bolin
Michael F. Bolin
Associate Justice
4 | October 1, 2015 |
f324ee3d-5d29-4c44-a7ba-47bd251716fd | Rogers v. Hansen | N/A | 1140257 | Alabama | Alabama Supreme Court | REL:08/14/15
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, 2015
____________________
1140257
____________________
Gerri Beth Rogers
v.
Sigrid Hansen
Appeal from Madison County Probate Court
(No. 57720)
MOORE, Chief Justice.
Gerri Beth Rogers appeals from an order of the Madison
County
Probate
Court
removing
her
as
the
personal
representative of the estate of Ilse Martha Nagel. Sigrid
Hansen, the appellee, argues that Rogers's appeal is due to be
1140257
dismissed because Rogers failed to post bond as required by §
12-22-24, Ala. Code 1975. For the reasons stated herein, we
agree with Hansen and we dismiss the appeal.
Ilse Martha Nagel passed away on January 27, 2012. On
June 28, 2012, Rogers, who was not related to Nagel, filed in
the Madison County Probate Court a petition to probate Nagel's
will, which was self-proving and which named Rogers as
personal representative. Rogers was also named a beneficiary
in Nagel's will. On July 5, 2012, the probate court granted
Rogers's petition, appointed her personal representative of
Nagel's estate, and issued her letters testamentary. On
January 11, 2013, Rogers petitioned the probate court for a
final settlement of Nagel's estate. The probate court held a
hearing on March 7, 2013, and issued a "Decree on Final
Settlement" the following day.
On April 8, 2013, Hansen, who was a relative of Nagel's,
filed in the probate court a "Verified Motion to Alter, Amend,
or Vacate Order, Motion to Strike Final Settlement Pleadings
and Order, and Motion to Remove Personal Representative for
Misconduct" (hereinafter referred to as "Hansen's motion").
Hansen alleged that she had newly discovered evidence
2
1140257
indicating that Rogers had committed fraud, that Rogers had
become a beneficiary through the execution of
undue
influence,
and that Rogers had committed other misconduct. The probate
court denied Hansen's motion. Hansen appealed the probate
court's order to the Madison Circuit Court, which remanded the
cause to the probate court for an evidentiary hearing on
Hansen's motion.
On June 10, 2014, the probate court held a hearing on
Hansen's motion, at which it heard evidence ore tenus. On July
8, 2014, the probate court issued an order granting Hansen's
motion. Specifically, the probate court found that it had
retained
jurisdiction
to
consider
Hansen's
motion.
The
probate
court also found that Nagel's will had been procured through
undue influence on Rogers's part and that Rogers had been
negligent, had breached her fiduciary duties, had committed
conversion, and had perpetrated a fraud on the court. The
probate court rescinded its previous judgment approving the
final
settlement,
removed
Rogers
as
personal
representative
of
Nagel's estate, appointed a new personal representative, and
enjoined Rogers from wasting or disposing of any assets of the
estate. On August 7, 2014, Rogers filed a postjudgment motion,
3
1140257
which the probate court denied on October 27, 2014. Rogers
filed a notice of appeal to this Court on December 5, 2014.
Hansen filed a motion to dismiss Rogers's appeal for
failure to post bond as required by § 12-22-24, Ala. Code
1975. Whether an appeal must be dismissed if the appellant
fails to post bond under that particular statute is an issue
of first
impression
for this Court. Section 12-22-24 provides:
"(a) No appeal can be taken from any order of
the
probate
court
removing
an
executor
or
administrator unless the applicant gives either a
cash bond or a bond with at least two good and
sufficient sureties, payable to the probate judge
and in the amount fixed by him, not less than the
amount of his bond as executor or administrator,
conditioned to prosecute the appeal to effect and,
until the same is decided, faithfully to discharge
his duties as such executor or administrator.
"(b) If such appeal is decided against the
appellant, any cash bond posted or part thereof may
be ordered forfeited for costs, or, if other than a
cash bond was given, execution for costs may issue
against him and the sureties on such bond, their
names being certified with the record to the
appellate court.
"(c) Such bond also stands as security for the
faithful discharge of his duties as such executor or
administrator, from the time the same is approved
until the appeal is finally decided."
It is undisputed that Rogers did not post bond when she
filed her notice of appeal to this Court. Rogers did provide
security for costs of the appeal. However, as Hansen correctly
4
1140257
argues, although giving security for costs is permissible for
other appeals under § 12-22-25, Ala. Code 1975, § 12-22-24
1
does not permit this Court to take an appeal "from any order
of the probate court removing an executor or administrator"
unless the appellant provides a bond.
Rogers argues that § 12-22-24 does not apply to this case
because, she says, she is not appealing her removal as
personal representative of Nagel's estate but is appealing
only the probate court's finding that it had subject-matter
jurisdiction to entertain Hansen's motion. Rogers contends
"In all other cases in which an appeal
1
is taken under the provisions of this
division, the appellant, or someone for
him, must give security for the costs of
such appeal, to be approved by the probate
judge or the clerk of the circuit court, as
the case may be, and the names of such
sureties must be certified with the record
to the appellate court, but the filing of
security for costs is not a jurisdictional
prerequisite. If the appellant fails to
prosecute his appeal or the judgment is not
reversed or is entered against him for a
less amount than the judgment of the court
from which the appeal is taken, execution
may issue against him and such sureties for
the costs of the appeal."
§ 12-22-25, Ala. Code 1975 (emphasis added).
5
1140257
that Hansen's motion, even though styled, in part, as a motion
to vacate, was in actuality contesting the will. Rogers
therefore concludes that the probate court lacked subject-
matter jurisdiction to consider Hansen's motion and to remove
Rogers as personal representative because Hansen failed to
file her will contest in the circuit court within six months
after the will was admitted to probate, as required by § 43-8-
199, Ala. Code 1975. Thus, Rogers characterizes her appeal
only as a challenge to the probate court's subject-matter
jurisdiction, which, she argues, is an issue that is not
waivable and "'may be raised on appeal.'" Flannigan v. Jordan,
871 So. 2d 767, 769 (Ala. 2003) (quoting Norton v. Liddell,
280 Ala. 353, 356, 194 So. 2d 514, 517 (1967)).
Although Rogers is correct that questions of subject-
matter jurisdiction certainly may be raised on appeal without
having been preserved below, Rogers overlooks the threshold
issue: Whether her appeal is properly before this Court. "'An
appeal is not a vested right, but exists by the grace of
statute or a supreme court rule and must be perfected pursuant
to the time and manner prescribed therein.'" Greystone Close
v. Fidelity & Guar. Ins. Co., 664 So. 2d 900, 902 (Ala. 1995)
(quoting Ex parte Thrailkill, 543 So. 2d 1201, 1202 (Ala. Civ.
6
1140257
App. 1989)). Pertinent to this case, § 12-22-24 expressly
provides: "No appeal can be taken from any order of the
probate court
removing
an executor or administrator unless the
applicant gives either a cash bond or a bond with at least two
good and sufficient sureties ...." (Emphasis added.) Even if
Rogers challenges on appeal only the issue of the probate
court's subject-matter jurisdiction, she is asking this Court
to take the appeal "from [the] order of the probate court
removing [her as] executor" of the estate. Section 12-22-24
does not allow this Court to do so unless Rogers provides an
appropriate bond, which she has failed to do.
Although this Court has not previously construed § 12-22-
24, it has held, in other contexts, that failure to post a
bond as required by statute can be fatal to an appeal. In
Denson v. First National Bank of Birmingham, 276 Ala. 146, 159
So. 2d 849 (1964), the Winston County Board of Equalization
("the Board") increased the assessed valuation of land in
which the First National Bank of Birmingham ("the Bank") owned
mineral rights. The Bank protested, but, after a hearing, the
Board decided not to change the valuation. The applicable
statute required the Bank to file both a notice of appeal and
a bond in the circuit court within 30 days of the final
7
1140257
decision of the Board. The Bank filed a notice of appeal to
2
the Winston Circuit Court within 30 days but did not file the
bond until after the 30-day deadline had passed. The Bank
prevailed in the circuit court, and the Board appealed. We
held that the Bank failed to perfect its appeal because it did
not file the bond within 30 days as required by the statute.
276 Ala. at 148, 159 So. 2d at 850. This Court reasoned that
"[t]he right of appeal in tax proceedings is a right conferred
by statute and must be exercised in the mode and within the
time prescribed by the statute." Id.
Likewise, in Thompson v. Lea, 28 Ala. 453 (1856), an
appeal was taken to this Court in 1854. This Court issued an
opinion in 1855 but withdrew its opinion on rehearing and
ordered that the case be reargued. The appellee then, for the
"All appeals from the rulings of the
2
board of equalization fixing value of
property shall be taken within 30 days
after the final decision of said board
fixing the assessed valuation as provided
in this chapter. The taxpayer shall file
notice of said appeal with the secretary of
the board of equalization and with the
clerk of the circuit court and shall file
bond to be filed with and approved by the
clerk of the circuit court ...."
§ 40-3-25, Ala. Code 1975.
8
1140257
first time, filed a motion to dismiss the appeal, arguing that
there was a defect in the appellant's bond. The statute
governing the appeal, § 3041, Ala. Code of 1852, was similar
to § 12-22-24 and read as follows: "[N]o appeal can be taken
without giving bond to supersede the execution of the judgment
or decree, unless the appellant give security for the costs of
such an appeal." 28 Ala. at 456. This Court ultimately denied
the motion to dismiss because the appellee had filed the
motion to dismiss too late. 28 Ala. at 458. Nevertheless,
Justice Stone, writing the main opinion for the Court, noted:
"The bond or security for costs, required by
section 3041 of the Code, was obviously intended to
protect parties and the officers of the court,
against
insolvent
litigants.
This
legislative
regulation is binding on us; and whenever the appeal
bond or certificate is substantially defective, or
entirely wanting, and the fact is in due time
brought to our notice, we are bound to respond to
the motion, and to repudiate the cause. While
adjusting the rights of appellants, we must observe
and guard the legal rights of all others interested
in the record."
28 Ala. at 457-58.
Like the appellant in Denson, Rogers failed to timely
perfect her appeal by filing the required bond. Moreover,
Hansen, the appellee in this case, has timely filed a motion
to dismiss, arguing that Rogers did not follow the bond
9
1140257
requirement of the statute. The only attempt Rogers makes to
save her appeal is to argue that § 12-22-24 is inapplicable
because she challenges in this appeal only the probate court's
subject-matter jurisdiction. As explained above, this Court
disagrees. Rogers does not provide any other argument as to
why she did not need to post bond. Rogers also does not argue
that the bond requirement imposed by § 12-22-24 is merely
procedural and not jurisdictional. See generally Lumpkin v.
State, [Ms. 1130999, Dec. 19, 2014] ___ So. 3d ___ (Ala. 2014)
(discussing generally the difference between jurisdictional
requirements and procedural requirements in statutes that
provide a specific procedure for taking an appeal). Moreover,
even if we were to assume that her failure to post bond is
merely procedural, Rogers still has not cured the defect by
posting bond.
Thus,
under these circumstances, it appears that
we have no choice but to grant Hansen's motion and dismiss
Rogers's appeal.
APPEAL DISMISSED.
Bolin, Murdock, Main, and Bryan, JJ., concur.
10 | August 14, 2015 |
f3f4dd07-d741-4ea3-81a6-930e7da7d2d4 | Century Tel of Alabama, LLC v. Dothan/Houston Cty Comm. Dist. | N/A | 1131313 | Alabama | Alabama Supreme Court | REL:09/30/2015
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, 2015
____________________
1131313
____________________
Century Tel of Alabama, LLC, and Qwest Communications
Company, LLC
v.
Dothan/Houston County Communications District and Ozark/Dale
County E-911, Inc.
Appeal from Houston Circuit Court
(CV-14-900042)
BOLIN, Justice.
Dothan/Houston
County
Communications
District
and
Ozark/Dale County E-911, Inc. ("the districts"), sued Century
Tel
of
Alabama, LLC ("CTA"), and Qwest Communications Company,
1131313
LLC ("Qwest") (hereinafter collectively referred to as "the
defendants"), seeking, among other things, to recover E-911
charges that the defendants were alleged to have not properly
billed and collected in accordance with the Emergency
Telephone Service Act, § 11-98-1 et seq., Ala. Code 1975 ("the
ETSA"). The defendants moved the circuit court to dismiss the
complaint pursuant to Rules 12(b)(6), Ala. R. Civ. P. The
circuit court denied the defendants' motion. The defendants
then petitioned this Court, pursuant to Rule 5, Ala. R. App.
P., for permission to appeal from the circuit court's
interlocutory order. We granted the petition.
I. Facts and Procedural History
A. The Pre-2012 Local 911 Fee System
1. The Emergency-Communications Districts
In 1984, the Alabama Legislature enacted the ETSA for the
1
purpose of shortening the time for a citizen to request and
receive emergency-services aid via emergency 911. § 11-98-3,
Ala. Code 1975. The ETSA provided that the governing body of
The legislature by Act No. 2012-293, Ala. Acts 2012,
1
significantly revised the ETSA, effective October 1, 2013.
Quotations from and citations to the ETSA in this opinion are
the pre-October 1, 2013, version of the ETSA, unless otherwise
indicated. See discussion infra.
2
1131313
a
municipality
or
county
may
create
an
emergency-
communications district within its jurisdiction to provide
enhanced 911 ("E-911") service, which was defined in the 1984
act as "a telephone exchange communications service whereby a
public safety answering point (PSAP) designated by the
customer may receive telephone calls dialed to the telephone
number 911." § 11-98-1(3), Ala. Code 1975. The ETSA provided
2
that the emergency-communications districts are political and
legal subdivisions of the State of Alabama with the power to
sue and be sued in their corporate names. § 11-98-2, Ala.
Code 1975. In addition to the "authority, and powers necessary
to establish, operate, maintain, and replace an emergency
communications system," the ETSA granted the emergency-
communications districts the authority "to prosecute[] and
defend civil actions in any court having jurisdiction." § 11-
98-4(f)(1), Ala. Code 1975. The districts are emergency-
communications districts created pursuant to the ETSA and
provide E-911 services to the citizens of Houston and Dale
Counties.
The amendment to § 11-98-1, effective October 1, 2013,
2
revised this definition, which is now found at § 11-98-
1(a)(8).
3
1131313
Before the ETSA was amended effective October 1, 2013,
the
emergency-communications
districts
were
funded
by
emergency-telephone-service charges ("911 charges") that were
assessed to users of residential- and business-telephone
services by the emergency-communications districts. § 11-98-
5(a)(1), Ala. Code 1975. The ETSA required that 911 charges
be assessed for every "exchange access line" or "exchange
access facility," i.e., telephone line. § 11-98-5(c), Ala.
Code 1975. The ETSA also required that 911 charges be
assessed against those receiving telephone service through
voice-over-Internet-protocol ("VoIP") or other "similar
technology." § 11-98-5.1(c), Ala. Code 1975. The telephone-
3
service providers were required by the ETSA to collect the 911
charges from the telephone-service users and then to remit
those
911
charges
to
the
emergency-communications
districts
on
a monthly basis. § 11-98-5(c) and (e), Ala. Code 1975. The
telephone-service providers were entitled to retain from the
gross receipts remitted to the emergency-communications
districts an administrative fee in an amount equal to one
Section
11-98-5.1
was
repealed
effective
October
1,
2013.
3
4
1131313
percent of the total remitted. § 11-98-5(e), Ala. Code 1975.
The defendants are telephone-service providers.
The emergency-communications districts were entitled to
audit annually the books and records of the telephone-service
providers with respect to the collection and remittance of 911
charges. § 11-98-5(e), Ala. Code 1975. The districts levied
the 911 charges in Houston and Dale counties pursuant to the
ETSA.
2. The Commercial Mobile Radio Service Board
Pursuant to § 11-98-7 of the ETSA, the Commercial Mobile
Radio Service ("CMRS") Board ("the CMRS Board") was created
for the purpose of levying a CMRS emergency-telephone-service
charge on each CMRS connection –- which is defined as a mobile
or wireless telephone number –- that has a place of primary
use within the State of Alabama. §§ 11-98-6(5) and -7(b)(1),
Ala. Code 1975. Before October 1, 2013, each CMRS provider
was required to collect the CMRS 911 service charges from each
CMRS connection to which it provided CMRS service and then to
remit those service charges to the CMRS Board. § 11-98-8, Ala.
Code 1975. The moneys remitted to the CMRS Board were
deposited into the CMRS fund, which was maintained by the CMRS
5
1131313
Board. § 11-98-7(2), Ala. Code 1975. Those funds were
subsequently
dispersed
to
the
emergency-communications
districts. § 11-98-7(3), Ala. Code 1975.
The CMRS providers were required to provide to the
emergency-communications-district management-review board an
annual accounting of the CMRS 911 services charges collected
and remitted. § 11-98-8(e), Ala. Code 1975. The CMRS
providers were required by the ETSA to collect and remit the
CMRS 911 service charges to the CMRS Board. However, if the
CMRS providers failed to do so, the CMRS Board could seek
enforcement of the statute in the Montgomery Circuit Court. §
11-98-8(g), Ala. Code 1975.
B. The 2012 Amendments to the ETSA
In 2012, the Alabama Legislature enacted Act No. 2012-
293, Ala. Acts 2012, which substantially overhauled the ETSA.
The legislature created a statewide 911 Board ("the 911
Board") and 911 fund. §§ 11-98-4.1 and 11-98-5.2, Ala. Code
1975, respectively. The 911 Board replaced and superseded the
CMRS Board, and the CMRS fund was incorporated into the newly
created 911 fund. § 11-98-4.1, Ala. Code 1975. However, the
legislature left intact §§ 11-98-2 and 11-98-4, which created
6
1131313
and gave authority to the emergency-communications districts.
Thus, the districts continue to exist and have all the powers
and authority set forth by §§ 11-98-2 and 11-98-4 prior to the
2012 amendments to the ETSA.
As part of the 2012 amendments, the legislature
substantially amended § 11-98-5 to provide for a "single,
monthly statewide 911 charge ... on each active voice
communications service connection [wireline and mobile
telephones] in Alabama that is technically capable of
accessing a 911 system." § 11-98-5(a), Ala. Code 1975. The
telephone-service providers are required to collect the 911
charges from the telephone-service subscribers on a monthly
basis and then to remit the 911 charges collected to the 911
Board. § 11-98-5(a) and (b), Ala. Code 1975. The 911 charges
are then deposited in the 911 fund for subsequent distribution
to the emergency-communications districts. § 11-98-5.2(b)(1),
Ala. Code 1975. The amended version of § 11-98-5 did not
retain
subsection
(e),
which
allowed
the
emergency-
communications districts, at their discretion, to require the
telephone-service providers to submit to an annual audit of
the service providers' books and records with respect to the
7
1131313
collection and remittance of 911 charges. Instead, the
legislature added § 11-98-13, Ala. Code 1975, which requires
the 911 Board to conduct a biennial audit of the telephone-
service providers in order to ensure the accuracy of the 911
charges and other information required to be submitted to the
911 Board by the telephone-service providers. The 2012
amendments to the ETSA became effective on October 1, 2013.
C. The Districts’ Audit Request and Complaint
The districts sought to audit the defendants' billing
records to determine the defendants' compliance, prior to the
2012 legislative amendments to the ETSA, with the ETSA. The
districts contend that they initiated the audits before the
October 1, 2013, effective date of the 2012 amendments to the
ETSA. The defendants refused to comply with the requested
audits. The districts state that they have determined from
the limited information available to them that the defendants
have provided telephone services to customers within the
districts' jurisdiction without collecting and remitting to
the districts the required 911 charges, in violation of the
ETSA. The districts state that by billing and collecting less
than the required amount of 911 charges, the defendants have
8
1131313
been able to offer their telephone services at a lower cost to
customers and have thereby gained a competitive
advantage over
other telephone-service providers.
On January 21, 2014, the districts sued the defendants,
asserting claims alleging a violation of the ETSA for failing
to properly bill, collect, and remit the 911 fees; negligence;
wantonness; and breach of a fiduciary duty. The districts
sought to require the defendants to comply with the requests
for audits and to recover and remit any unpaid 911 charges.
On March 10, 2014, the defendants moved the Houston
Circuit Court to dismiss the districts’ complaint pursuant to
Rules 12(b)(6), Ala. R. Civ. P. The defendants noted that the
legislature repealed the local 911 fee system as part of the
2012 amendments to the ETSA and replaced it with the single
statewide fee scheme that became effective on October 1, 2013.
The defendants contended that all the duties the districts
alleged the defendants violated were part of the now repealed
local 911 fee system. Relying upon Cooper v. Ken Hilton Ford,
486 So. 2d 424 (Ala. 1986), the defendants argued that no
cause of action may be brought for violation of a statute
after the statute being sued upon has been repealed. Thus,
9
1131313
the defendants argued that the districts had no cause of
action and that their complaint must be dismissed. The
defendants further argued that the ETSA lacks an express
private right of action to enforce any alleged violation of
the act; that the districts had failed to state any tort or
wantonness claim; and that the ETSA does not create a
fiduciary duty on the part of the defendants to collect 911
fees.
On July 23, 2014, the circuit court entered an order
denying the defendants' motion to dismiss or, in the
alternative, for a more definite statement. On July 30, 2014,
the defendants moved the circuit court to certify for
interlocutory appeal a controlling question of law for an
appeal by permission pursuant to Rule 5, Ala. R. App. P. The
circuit
court certified for
interlocutory appeal two
controlling questions of law, and the defendants petitioned
this Court for a permissive appeal. Rule 5, Ala. R. App. P.
This Court granted the petition.
II. Standard of Review
This Court has stated:
"'The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] is
10
1131313
whether, when the allegations of the
complaint are viewed most strongly in the
pleader's favor, it appears that the
pleader
could
prove
any
set
of
circumstances that would entitle [him] to
relief.
Raley
v.
Citibanc
of
Alabama/Andalusia, 474 So. 2d 640, 641
(Ala. 1985); Hill v. Falletta, 589 So. 2d
746 (Ala. Civ. App. 1991). In making this
determination,
this
Court
does
not
consider
whether the plaintiff will ultimately
prevail, but only whether [he] may possibly
prevail. Fontenot v. Bramlett, 470 So. 2d
669, 671 (Ala. 1985); Rice v. United Ins.
Co. of America, 465 So. 2d 1100, 1101 (Ala.
1984). We note that a Rule 12(b)(6)
dismissal is proper only when it appears
beyond doubt that the plaintiff can prove
no set of facts in support of the claim
that would entitle the plaintiff to relief.
Garrett v. Hadden, 495 So. 2d 616, 617
(Ala. 1986); Hill v. Kraft, Inc., 496 So.
2d 768, 769 (Ala. 1986).'
"Nance v. Matthews, 622 So. 2d 297, 299 (Ala.
1993)."
DGB, LLC v. Hinds, 55 So. 3d 218, 223 (Ala. 2010). "'Inasmuch
as the issue before us is whether the trial court correctly
denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss,
"[t]his Court must accept the allegations of the complaint as
true."'" Ex parte Walker, 97 So. 3d 747, 749 (Ala. 2012)
(quoting Ex parte Alabama Dep't of Youth Servs., 880 So. 2d
393, 397 (Ala. 2003)).
III. Discussion
11
1131313
This Court has stated the following with regard to
permissive appeals pursuant to Rule 5(a), Ala. R. App. P.:
"In the petition for a permissive appeal, the
party seeking to appeal must include a certification
by the trial court that the interlocutory order
involves a controlling question of law, and the
trial court must include in the certification a
statement of the controlling question of law. Rule
5(a), Ala. R. App. P. In conducting our de novo
review of the question presented on a permissive
appeal, 'this Court will not expand its review ...
beyond the question of law stated by the trial
court.
Any
such
expansion
would
usurp
the
responsibility entrusted to the trial court by Rule
5(a).' BE & K, Inc. v. Baker, 875 So. 2d 1185, 1189
(Ala. 2003)."
Alabama Powersport Auction, LLC v. Wiese, 143 So. 3d 713, 716
(Ala. 2013). The circuit court certified the two following
controlling questions of law:
"(1) Does Act 2012-293, which eliminated local
911 charges from October 1, 2013, forward, prohibit
local 911 districts from suing for damages from
telephone providers for allegedly under-billing 911
fees prior to October 1, 2013?
"(2) Does the [ETSA] authorize a right of action
by local 911 districts seeking damages from
telephone providers for allegedly failing to bill
911 charges?"
In addition to seeking the recovery of any unpaid 911 charges
required to be levied prior to October 1, 2013, the districts
also sought in their complaint to require the defendants to
12
1131313
"provide information relating to their service within the
Districts and their billing, collecting and remitting of 911
charges." However, the circuit court did not include in its
certified controlling questions of law any reference to the
districts' request for an accounting. Because this Court will
not expand its review beyond the questions of law stated by
the circuit court, we will not address any issue relating to
that request. Wiese, supra. Therefore, the only issues before
this Court are those included in the controlling questions of
law identified in the circuit court's certification.
Question 1
"Does Act 2012-293, which eliminated local 911
charges from October 1, 2013, forward, prohibit
local 911 districts from suing for damages from
telephone providers for allegedly under-billing 911
fees prior to October 1, 2013?"
The defendants contend that the repealed-statute rule
prohibits the districts from suing to collect unpaid 911
charges requested to be levied prior to October 1, 2013.
Specifically, the defendants argue that no cause of action may
be brought for violation of a statute after that statute has
been repealed. This Court has explained:
"'"There can be no question that the
effect of the repeal of a statute or part
13
1131313
thereof is to destroy the effectiveness of
the repealed act in futuro and to divest
the right to proceed under the statute,
which, except as to proceedings past and
closed, is considered as if it had never
existed."'"
Cooper v. Ken Hilton Ford Sales, Inc., 486 So. 2d 424, 425
(Ala. 1986) (quoting Wilkinson v. State ex rel. Morgan, 396
So. 2d 86, 88 (Ala. 1981), quoting in turn Saad v. Cline, 51
Ala. App. 668, 670, 288 So. 2d 731, 732 (Ala. Civ. App.
1974)(emphasis omitted)). However, the repealed-statute rule
is not without an exception.
"It is a general rule ... that when a statute is
repealed it stands as if it had never existed,
except as to vested rights which have accrued under
its operation ... 'The Legislature has full power to
take away by statute rights, not vested, which have
been conferred by statute. If the repealing statute
is general and unconditional, without a saving of
pending proceedings and prosecutions, these fall
with the statute which may have authorized them.'"
Blake v. State ex rel. Going, 178 Ala. 407, 411, 59 So. 623,
625 (1912)(quoting Luke v. Calhoun, 56 Ala. 415, 416 (1876)).
Thus, the repealed-statute rule will not operate to divest a
claimant's right to proceed under a repealed statute when the
claimant had accrued vested rights under the prior operation
of the statute.
14
1131313
The
defendants
contend
that
Act
No.
2012-293
"unquestionably" repealed all the original local 911 fee
provisions of the ETSA and replaced those provisions with the
statewide 911 fee provisions. The defendants argue that the
repealing legislation did not contain a savings clause, which
would have allowed the local 911 fee provisions to be enforced
beyond their repeal. Thus, the defendants argue that any
right the districts had to sue to recover unpaid local 911
charges under the original provisions of the ETSA disappeared
when the local 911 fee provisions were repealed effective
October 1, 2013.
The districts respond by arguing that the repealed-
statute rule does not operate to bar their claim because, they
say, Act No. 2012-293 did not repeal the pertinent provisions
of the ETSA; rather, they assert, Act No. 2012-293 simply
amended the pertinent portions of the ETSA. We agree.
Before Act No. 2012-293 became effective on October 1,
2013, § 11-98-5 imposed a duty upon the telephone-service
providers to collect the 911 charges from the telephone-
service subscribers and then to remit those charges to the
emergency-communications districts on a monthly basis. In
15
1131313
2012, the legislature enacted Act No. 2012-293, which
expressly provided in the title: "Enrolled, An Act relating to
E-911 services, to amend Section[] ... 11-98-5." The amended
version of § 11-98-5 created a "single, monthly statewide 911
charge" on each wireline- and mobile-telephone connection in
Alabama capable of accessing 911. § 11-98-5(a), Ala. Code
1975. Pursuant to § 11-98-5, as amended,
the
telephone-service
providers are required to collect the 911 charges from the
telephone-service subscribers on a monthly basis and then to
remit those collected 911 charges to the statewide 911 Board
created in the 2012 act, §§ 11-98-4.1 and 11-98-5(a) and (b),
Ala. Code 1975. The 911 charges are then deposited into the
newly created 911 fund for subsequent distribution to the
emergency-communications districts. § 11-98-5.2(b)(1), Ala.
Code 1975.
Section 11-98-5, which provides for the imposition,
collection, and remittance of the 911 charges was, according
to the express language of Act No. 2012-293, amended and not
repealed. The amended version simply changed the manner in
which the 911 charges were billed, collected, and remitted.
Rather than the telephone-service providers' collecting the
16
1131313
911 charges from the telephone-service subscribers and then
remitting those 911 charges directly to the local emergency-
communications districts as was the procedure under the pre-
amendment version of § 11-98-5, the telephone-service
providers now collect the 911 charges from the telephone-
service subscribers and remit those charges to the 911 Board,
which, in turn, disburses those charges to the local
emergency-communications districts.
The amended version of the ETSA makes it clear that the
new statewide 911 Board was entitled to receive on October 1,
2013, the effective date of the amendments, the new statewide
911 charges collected from the telephone-service subscribers
by the telephone-service providers. The express amendatory
language to the ETSA provides that the statewide 911 Board is
entitled to receive only the new statewide 911 charges on
October 1, 2013, and has no rights to the pre-October 1, 2013,
local 911 fees that were required to be collected by the
telephone-service providers and remitted to the local
emergency-communications districts. The local emergency-
communications districts were left intact by Act
No.
2012-293,
as the act did not repeal or substantially amend §§ 11-98-2
17
1131313
and 11-98-4, which created and gave authority to the local
emergency-communications districts. Accordingly, we conclude
that Act No. 2012-293 amended § 11-98-5, rather than repealed
it, and does not act to divest the local emergency-
communications districts of their rights to receive the local
911 fees levied before October 1, 2013. Therefore, we answer
4
the first certified question in the negative.
Question 2
"Does the [ETSA] authorize a right of action by
local 911 districts seeking damages from telephone
providers for allegedly failing to bill 911
charges?"
The defendants argue that the districts' claims are
barred because, they argue, the ETSA does not authorize a
private right of action against telephone-service providers
for failing to bill and collect the 911 charges from the
telephone-service subscribers. "One claiming a private right
of action within a statutory scheme must show clear evidence
of a legislative intent to impose civil liability for a
violation of the statute." American Auto. Ins. Co. v.
McDonald, 812 So. 2d 309, 311 (Ala. 2001).
Because we have concluded that Act No. 2012-293 amended
4
rather than repealed § 11-98-5, we need not discuss the
vested-right exception to the repealed-statute rule.
18
1131313
Prior to October 1, 2013, the telephone-service providers
had a duty under the ETSA to bill and collect from the
telephone-service subscribers the local 911 fees and then to
remit those fees to the local emergency-communications
districts. As discussed above, the 2012 amendments to the
ETSA did not divest the local emergency-communications
districts of their rights to receive the local 911 fees levied
prior to October 1, 2013.
Section 11-98-4(f), Ala. Code 1975, as amended, provides:
"In addition to other authority and powers necessary
to establish, operate, maintain, and replace an
emergency
communication
system,
the
board
of
commissioners shall have the following authority:
"(1) To sue and be sued, to prosecute,
and defend civil actions in any court
having jurisdiction of the subject matter
and of the parties."
Here, the legislature expressly vested the local
emergency-communications
districts
with
the
right
"to
prosecute ... civil actions" necessary to operate or maintain
the emergency-communications system. The districts' action
alleging a violation of the ETSA by the defendants for failing
to properly bill and collect the 911 fees from the telephone-
19
1131313
service subscribers certainly falls within the scope of those
civil actions expressly authorized by the current § 11-98-
4(f), because the enforcement of the defendants' duties to
bill and collect the 911 fees used to fund the E-911 services
is necessary to operate and maintain the emergency-
communications system. Accordingly, we answer the second
certified question in the affirmative.
5
Conclusion
For the above-stated reasons, we affirm the circuit
court's judgment denying the defendants' motion to dismiss.
AFFIRMED.
Moore, C.J., and Stuart, Parker, Shaw, Main, Wise, and
Bryan, JJ., concur.
Murdock, J., concurs in the result.
Because we have concluded that the districts have a
5
statutory right of action, we pretermit discussion of the
remaining issues related to this question.
20
1131313
MURDOCK, Justice (concurring in the result).
In my view, Act No. 2012-293, Ala. Acts 2012, effectively
repealed, rather than amended, the statutory provision
imposing the local 911 charges that are the subject of the
plaintiffs' claims and replaced that statutory provision with
one
providing
for
similar,
but
different,
charges.
Nonetheless, I concur in the result because the plaintiffs'
right to the charges imposed by the former statute were vested
at the time of the repeal of the statute. See Blake v. State
ex rel. Going, 178 Ala. 407, 411, 59 So. 623, 625 (1912)
(noting the "general rule" that "when a statute is repealed it
stands as if it had never existed, except as to vested rights
which have accrued under its operation").
21 | September 30, 2015 |
3cba22ab-b2ef-4022-b7ce-65278b3f9a85 | Ex parte State of Alabama. | N/A | 1131496 | Alabama | Alabama Supreme Court | REL:08/28/2015
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, 2015
____________________
1131496
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
Michael Scott Biddle)
1140603
____________________
State of Alabama
v.
Michael Scott Biddle
Appellate Proceedings from Jefferson Circuit Court
(CC-14-1383)
BOLIN, Justice.
The State petitions this Court for a writ of mandamus
directing the Jefferson Circuit Court to set aside its order
relieving
Michael
Scott
Biddle
from
the
residency
requirements
of the Alabama Sex Offender Registration and Community
Notification Act, § 15-20A-1 et seq., Ala. Code 1975 ("the
ASORCNA"), on the basis that the circuit court lacked
jurisdiction over the case. The State also filed an appeal
seeking alternative relief in the event this Court concludes
that the circuit court had jurisdiction over the matter. We
grant the petition and dismiss the appeal.
On April 13, 1993, Biddle was convicted in South Carolina
of a lewd act upon a child, a violation of S.C. Code § 16-15-
140. He was sentenced to 10 years' imprisonment; his sentence
was suspended and he was ordered to serve 5 years on
probation. Biddle moved to Alabama in January 2014. Under §
15-20A-10 of the ASORCNA, Biddle's conviction requires that he
register as a sex offender. Biddle's conviction also
subjects him to the residency restrictions set out in § 15-
2
1131496, 1140603
20A-11 of the ASORCNA. Section 15-20A-11 provides, in
pertinent part, that no registered sex offender may reside
within 2,000 feet of a school or a child-care facility.
On January 22, 2014, Biddle registered with the Jefferson
County Sheriff's Department as a sex offender in compliance
with § 15-20A-10(a)(1) of the ASORCNA. On February 25, 2014,
Biddle filed a form averring that he was residing at an
address in Jefferson County that was not within 2,000 feet of
a school or a child-care facility. On May 23, 2014, Biddle
was indicted for two counts of violating the residency
requirements of § 15-20A-11.
On August 28, 2014, following a bench trial, Biddle was
found not guilty on both counts. That same day and in the
same proceeding, Biddle filed, in the criminal division of the
Jefferson Circuit Court, a petition pursuant to § 15-20A-23,
which provides that a registered sex offender may be relieved
of the residency restrictions of the ASORCNA if the sex
offender is "terminally ill or permanently immobile." Biddle
alleged in his petition that he was terminally ill, that he
needed a full-time caregiver, and that his sister lived in
Vestavia Hills and would care for him if he resided with her.
3
1131496, 1140603
It should be noted that Biddle had no criminal charges
against him when he filed his petition in the criminal
division of the circuit court seeking relief from the
residency requirements of the ASORCNA. Biddle did not pay a
filing fee to the circuit court for filing his petition, and
he did not file the petition as a new civil case. The State
filed
an
objection,
challenging
the
circuit
court's
jurisdiction and asserting that Biddle's petition was
incomplete because he had not paid a filing fee or sought in
forma pauperis status.
On September 22, 2014, the circuit court granted Biddle's
petition for relief from the residency restrictions of the
ASORCNA. The State filed a petition for a writ of mandamus,
1
challenging the circuit court's jurisdiction over the matter
It
was
undisputed
that
Biddle's
sister's
house
is
located
1
within 2,000 of a child-care facility. Biddle presented
medical records indicating that he had a "history of portal
vein
thrombosis
with
resultant
end-stage
cirrhosis
complicated
by esophageal varices, portal hypertension, and hepatic
encephalopathy. He also has a small mass being monitored for
potential hepatic carcinoma." The State presented evidence
that challenged Biddle's assertions, including a photograph
taken in March 2014 showing Biddle walking unaided through his
sister's neighborhood and one photograph taken at the same
time showing Biddle holding a very large tree limb over one
shoulder.
4
1131496, 1140603
and an appeal seeking alternative relief if this Court
determined that the circuit court had jurisdiction. Because
of our disposition of the petition for the writ of mandamus,
we dismiss the appeal. This Court granted the State's motion
for a stay of the circuit court's order granting Biddle relief
from the residency requirements of the ASORCNA pending our
resolution of Biddle's petition.
Standard of Review
"'The writ of mandamus is a drastic and
extraordinary writ, to 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 United Serv. Stations, Inc., 628 So. 2d 501,
503 (Ala. 1993); see also Ex parte Ziglar, 669 So.
2d 133, 134 (Ala. 1995).' Ex parte Carter, 807 So.
2d 534 at 536 [(Ala. 2001)]."
Ex parte McWilliams, 812 So. 2d 318, 321 (Ala. 2001).
"The
question
of
subject-matter
jurisdiction
is
reviewable by a petition for a writ of mandamus." Ex parte
Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003).
See also Ex parte Holley, 883 So. 2d 266, 268 (Ala. Crim. App.
2003)("[The petitioner's] only remedy is to file a mandamus
petition. [The petitioner] could
not appeal the ruling
entered
5
1131496, 1140603
by [the circuit judge] because that ruling was 'void,' and a
void judgment will not support an appeal.").
Discussion
The issue is whether the circuit court had jurisdiction
over Biddle's petition, which turns on whether the proceeding
was civil or criminal in nature. It is undisputed that no
criminal charges were pending against Biddle when he filed his
petition in the criminal division of the circuit court and
that Biddle did not pay a filing fee or seek in forma pauperis
status before filing his petition.
We note that since 1996 Alabama has had statutory
provisions requiring that sex offenders register with law
enforcement. See § 15-20-20 through -24 (now repealed). In
2011, the legislature adopted the ASORCNA. Although this
2
Court has not been called on to interpret the ASORCNA, we have
guidance from other courts that have considered similar sex-
offender-registration statutes and whether proceedings under
those statutes are criminal or civil in nature.
The legislature recently amended the ASORCNA; those
2
amendments will become effective September 2015.
6
1131496, 1140603
In Smith v. Doe, 538 U.S. 84 (2003), the United States
Supreme Court addressed an ex post facto challenge to the
Alaska Sex Offender Registration Act, an act similar to the
ASORCNA in its registration and residency requirements,
brought by individuals who were convicted of sex offenses
before the passage of the Alaska act. Specifically, the
Supreme Court "considered a claim that a sex offender
registration and notification law constitutes retroactive
punishment forbidden by the Ex Post Facto Clause." 538 U.S. at
92. The Court determined that "[t]he [Alaska] Act is
nonpunitive, and its retroactive application does not violate
the Ex Post Facto Clause." 538 U.S. at 105–06.
The Smith Court stated:
"This is the first time we have considered a
claim
that
a
sex
offender
registration
and
notification law constitutes retroactive punishment
forbidden by the Ex Post Facto Clause. The framework
for our inquiry however, is well established. We
must 'ascertain whether the legislature meant the
statute to establish "civil" proceedings.' Kansas v.
Hendricks, 521 U.S. 346, 361 (1997). If the
intention
of
the
legislature
was
to
impose
punishment, that ends the inquiry. If, however, the
intention was to enact a regulatory scheme that is
civil and nonpunitive, we must further examine
whether the statutory scheme is '"so punitive either
in purpose or effect as to negate [the State's]
intention" to deem it "civil."' Ibid. (quoting
United States v. Ward, 448 U.S. 242, 248–249
7
1131496, 1140603
(1980)). Because we 'ordinarily defer to the
legislature's stated intent,' Hendricks, supra, at
361, '"only the clearest proof" will suffice to
override legislative intent and transform what has
been denominated a civil remedy into a criminal
penalty,' Hudson v. United States, 522 U.S. 93, 100
(1997)(quoting Ward, supra, at 249; see also
Hendricks, supra, at 361; United States v. Ursery,
518 U.S. 267, 290 (1996); United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 365
(1984)."
538 U.S. at 92. The Smith Court stated: "The factors most
relevant to our analysis are whether, in its necessary
operation, the regulatory scheme: has been regarded in our
history and
traditions
as a punishment; imposes an affirmative
disability or restraint; promotes the traditional aims of
punishment; has a rational connection to a nonpunitive
purpose; or is excessive with respect to this purpose." 538
U.S. at 97.
The Court of Criminal Appeals in Lee v. State, 895 So. 2d
1038 (Ala. Crim. App. 2004), relied heavily on Smith v. Doe,
supra,
to
conclude
that
the
now
repealed
Community
Notification Act ("the CNA"), § 15-20-20 et seq., Ala. Code
1975, was not an ex post facto law, either facially or as
applied to the appellant in that case, who was an adult
criminal sex offender. The court held that the CNA was
8
1131496, 1140603
intended to create a civil regulatory scheme and that it did
not have any punitive effect on the appellant that negated the
legislative intent behind the CNA. 895 So. 2d at 1042-43. See
also Boyd v. State, 960 So. 2d 717 (Ala. Crim. App. 2006)
(reaffirming Lee v. State, supra). The Court of Civil Appeals
in Salter v. State, 971 So. 2d 3 (Ala. Civ. App. 2007), held
that the CNA propounded a civil scheme with the recognized
goal of protecting communities and their most vulnerable
citizens -- children -- from the proven danger of recidivism
by criminal sex offenders. The Court of Civil Appeals,
relying on Lee v. State, held that the CNA could not be
considered a punitive statute in either intention or effect
with regard to the defendant.
In Windwalker v. Bentley, 925 F. Supp. 2d 1265 (N.D. Ala.
2013), Jim Windwalker was a sexual offender who was subject to
the requirements of the ASORCNA. He challenged the ASORCNA on
several grounds, including an argument that it was an ex post
facto law. The United States District Court for the Northern
District of Alabama stated:
"Mr. Windwalker's efforts to challenge the
ASORCNA on an ex post facto basis are similarly
unavailing in light of the Supreme Court's guidance
in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155
9
1131496, 1140603
L.Ed.2d 164 (2003). As a general rule, a law may
constitute an ex post facto violation if it is
intended to impose a retroactive punishment or if it
has the effect of transforming 'a[n] otherwise civil
remedy' into 'a criminal penalty.' Id. at 92, 123
S.Ct. at 1146–47 (quoting Hudson v. United States,
522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450
(1997)).
"....
"Here, the stated purpose of the ASORCNA is
undoubtedly civil in nature and Mr. Windwalker has
not alleged any facts that would support an ex post
facto effects claim consistent with Smith. See id.
at 97, 123 S.Ct. at 1149 ('The factors most relevant
to our analysis are whether, in its necessary
operation, the regulatory scheme: has been regarded
in our history and traditions as a punishment;
imposes an affirmative disability or restraint;
promotes the traditional aims of punishment; has a
rational connection to a nonpunitive purpose; or is
excessive with respect to this purpose.'). Thus,
from a pleadings standpoint, Mr. Windwalker's ex
post facto claim fails."
925 F.Supp. 2d at 1269 (emphasis added). See also Spencer v.
Bentley (No. 7:12-CV-01832-AKK-SGC, February 24, 2015) (N.D.
Ala. 2015) (not published in F. Supp. 3d) ("First, a review of
ASORCNA shows no provision for a traditional form of
punishment. Second, ASORCNA does not subject sex offenders to
an affirmative disability or restraint. Any disability
suffered by a sex offender is the result of the initial crime,
not the registration requirement. By its terms, the law does
10
1131496, 1140603
not prohibit a sex offender from changing his residence; it
requires a sex offender only to notify law enforcement of a
change of residence, which new residence must comply with the
requirements of ASORCNA. Third, ASORCNA does not impose any
additional punishment on a sex offender. While failure to
comply with the
reporting requirements could result in another
arrest and criminal prosecution –- as in Plaintiff's case -–
that prosecution would be for a new offense, not the original
one. Fourth, ASORCNA has a rational connection to the
legitimate, non-punitive purpose of public safety, which is
advanced by enabling law enforcement officials to maintain
closer contact with sex offenders and alerting the public to
the risk posed by a sex offender in their community. Fifth,
the regulatory scheme is not excessive with respect to the
purpose of ASORCNA. In Smith v. Doe[, 538 U.S. 84 (2003),] the
Supreme Court noted the question is not whether the
legislature made the best choice possible to address the
problem it seeks to remedy but whether the regulatory means
chosen are reasonable in light of the non-punitive objective.
Smith v. Doe, 538 U.S. at 105 (emphasis added)."); and McGuire
v. Strange, [Ms. 2:11-CV-1027-WKM, February 5, 2015] F.
11
1131496, 1140603
Supp. 3d (M.D. Ala. 2015)(holding that the ASORCNA, as a
whole, was not so punitive in purpose or effect as to negate
the Alabama Legislature's stated nonpunitive intent but that
two provisions regarding homeless sexual offenders and sexual
offenders seeking travel permits, provisions not at issue
here, should be severed from the ASORCNA).
In United States v. W.B.H., 664 F.3d 848 (11th Cir.
2011), the United States Court of Appeals for the Eleventh
Circuit, relying upon Smith, upheld the federal Sex Offender
Registration and Notification Act, 42 U.S.C. § 16901 et seq.
("SORNA"), over an Ex Post Facto Clause challenge:
"The fit between SORNA's regulatory purpose and
the means used to achieve it is not materially
different from that of the Alaska statute in [Smith
v. ]Doe[, 538 U.S. 84 (2003)]. Both statutes require
registration and mandate dissemination on the
internet of information regarding the whereabouts of
convicted
sex
offenders,
with
the
reporting
requirements
dependent
on
the
category
of
dangerousness. Both statutory regimes group the
offenders in categories instead of making individual
determinations of dangerousness. Because Doe held
that the regulatory scheme of the Alaska statute is
not excessive in relation to its non-punitive
purpose, it necessarily follows that SORNA's is not
either.
"....
"For the reasons we have discussed, when it
enacted SORNA Congress did not intend to impose
12
1131496, 1140603
additional punishment for past sex offenses but
instead wanted to put into place a civil and non-
punitive regulatory scheme. Given that intent, the
question under the Doe decision is whether there is
'the clearest proof' that SORNA is so punitive in
effect, as applied to those convicted of sex
offenses under the Alabama Youthful Offender Act, as
to negate the intention that it be a civil
regulatory statute. See id. at 92, 123 S.Ct. at
1147; [United States v.] Ward, 448 U.S. [242] at
249, 100 S.Ct. [2636] at 2641 [65 L.Ed.2d 742
(1980)]. That 'clearest proof' is lacking, as our
application of the Doe guideposts, see Doe, 538 U.S.
at 97–106, 123 S.Ct. at 1149–54, makes clear."
664 F.3d at 859-60 (emphasis added).
The legislature set out its findings and the purpose of
the ASORCNA in § 15-20A-2:
"(1) Registration and notification laws are a
vital concern as the number of sex offenders
continues to rise. The increasing numbers coupled
with the danger of recidivism place society at risk.
Registration and notification laws strive to reduce
these dangers by increasing public safety and
mandating the release of certain information to the
public. This release of information creates better
awareness and informs the public of the presence of
sex offenders in the community, thereby enabling the
public to take action to protect themselves.
Registration and notification laws aid in public
awareness and not only protect the community but
serve to deter sex offenders from future crimes
through frequent in-person registration. Frequent
in-person registration maintains constant contact
between sex offenders and law enforcement, providing
law enforcement with priceless tools to aid them in
their
investigations
including
obtaining
information
for identifying, monitoring, and tracking sex
offenders.
13
1131496, 1140603
"....
"(5) Sex offenders, due to the nature of their
offenses, have a reduced expectation of privacy. In
balancing the sex offender's rights, and the
interest of public safety, the Legislature finds
that releasing certain information to the public
furthers the primary governmental interest of
protecting vulnerable populations, particularly
children. Employment and residence restrictions,
together with monitoring and tracking, also further
that interest. The Legislature declares that its
intent
in
imposing
certain
registration,
notification, monitoring, and tracking requirements
on sex offenders is not to punish sex offenders but
to protect the public and, most importantly, promote
child safety."
We note too that the legislature has amended the ASORCNA
effective September 2015 to
expressly state that petitions for
relief from residency restrictions are civil in nature.
"'When statutes are amended or replaced by succeeding
legislation,
the
Legislature
often
seeks
to
clarify
previously
ambiguous
provisions.
These
subsequent
acts
by
the
Legislature
must be considered in trying to determine the intent of the
legislation. 73 Am.Jur.2d, Statutes, § 178.' McWhorter v.
State Bd. of Registration for Prof'l Eng'rs & Land Surveyors,
359 So. 2d 769, 773 (Ala. 1978)." T–Mobile South, LLC v.
Bonet, 85 So. 3d 963, 979 (Ala. 2011).
14
1131496, 1140603
Here, Biddle had nothing pending in the criminal division
of the circuit court when he filed his petition seeking relief
from the residency requirements of the ASORCNA. The ASORCNA
is a civil regulatory act that requires sex offenders to
register with local law enforcement in order to make local law
enforcement aware that a convicted sex offender is residing in
the area. The notification portion of the ASORCNA provides for
dissemination of that information to the public to make the
community aware of the presence of a potential danger, and the
residency
restrictions
protect
our
most
vulnerable
citizens
-–
children –- from predators residing in the area.
Section 12-19-70, Ala. Code 1975, provides:
"(a) There shall be a consolidated civil filing
fee, known as a docket fee, collected from a
plaintiff at the time a complaint is filed in
circuit court or in district court.
"(b) The docket fee may be waived initially and
taxed as costs at the conclusion of the case if the
court finds that payment of the fee will constitute
a substantial hardship. A verified statement of
substantial hardship, signed by the plaintiff and
approved by the court, shall be filed with the clerk
of court."
In Ex parte Courtyard CitiFlats, LLC, [Ms. 1140264, June
12, 2015] So. 3d , (Ala. 2015), this Court
reaffirmed the following principle:
15
1131496, 1140603
"'The use of the term "shall" in [§
12–19–70] makes the payment of the filing
fee mandatory. See Prince v. Hunter, 388
So. 2d 546, 547 (Ala. 1980). It was the
obvious intent of the legislature to
require that either the payment of this fee
or a court-approved verified statement of
substantial
hardship
accompany
the
complaint at the time of filing.'
"[De-Gas, Inc. v. Midland Resources,] 470 So. 2d
[1218] at 1220 [Ala. 1985)] ...."
(Emphasis omitted.)
In conclusion, the State has a clear legal right to the
relief sought because the circuit court, sitting in a
completed
criminal
case,
lacked
jurisdiction
to
relieve
Biddle
from the residency requirements of the ASORCNA in what should
have been a civil proceeding. Biddle should have filed a
"new" civil action in order to seek relief from the residency
requirements of the ASORCNA.
1131496 –- PETITION GRANTED; WRIT ISSUED.
1140603 –- APPEAL DISMISSED.
Moore, C.J., and Stuart, Parker, Shaw, Main, Wise, and
Bryan, JJ., concur.
16 | August 28, 2015 |
e4e1e567-5b44-49a3-9aab-0effed6b7d87 | Fries Correctional Equip., Inc. v. Con-Tech, Inc. | 559 So. 2d 557 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 557 (1990)
FRIES CORRECTIONAL EQUIPMENT, INC.
v.
CON-TECH, INC.
E.S.S., INC.
v.
CON-TECH, INC., and Roy N. Strickland.
88-68, 88-93.
Supreme Court of Alabama.
March 2, 1990.
*558 Dexter C. Hobbs and Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, and Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellant Fries Correctional Equip., Inc.
John D. Clement, Jr., Tuscumbia, for appellant E.S.S., Inc.
Joana S. Ellis of Ball, Ball, Matthews & Novak, Montgomery, and William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellees Con-Tech, Inc. and Roy N. Strickland.
ALMON, Justice.
These appeals are from the denial of one defendant's motion to set aside a default judgment and, as to another defendant, from the default judgment, the denial of a motion for relief from that judgment, and a holding that that defendant existed as a corporation by estoppel. The default judgment was entered in an action alleging breach of contract and intentional interference with contractual relations and claiming money due on an open account. The judgment awarded $1,022,325.50 against Fries Correctional Equipment, Inc. ("Fries"), and $1,000,000.00 against E.S.S., Inc. Neither defendant had filed an answer within 30 days of being served with the summons and the complaint. Fries filed a Rule 55(c), Ala.R.Civ.P., motion to set aside the default judgment eight days after the court entered the judgment. E.S.S. filed a Rule 60(b)(4), Ala.R.Civ.P., motion for relief from judgment almost four months after entry of the judgment. Both parties argue that the court abused its discretion in denying their motions, and E.S.S. also argues that the trial court erred in entering the judgment against it and in holding that it was a corporation by estoppel.
Con-Tech, Inc., and its sole stockholder, Roy N. Strickland, brought this action against Fries, E.S.S., and J. Collier Sparks.[1] Sparks was employed by Con-Tech until late February 1988, and he began working for Fries in March, almost immediately after he quit working for Con-Tech. Sparks's contract of employment with Con-Tech had included a covenant not to compete. Fries was aware of the covenant not to compete, but hired Sparks to complete two jobs that Fries had subcontracted to Con-Tech. Evidence was presented to the trial court tending to show that Con-Tech was not completing the work on time or to specifications, and that Sparks was uniquely qualified to complete the work. Sparks and two officers of Fries took steps to form an Alabama corporation called "E.S.S., Inc.," but were unable to do so because a corporation by that name already existed. Nevertheless, they conducted business under that name and hired the remainder of Con-Tech's employees.
Con-Tech and Strickland filed their complaint on April 19, 1988, alleging that Sparks had breached his contract, including the covenant not to compete; that Fries had intentionally interfered with Sparks's contract of employment with Con-Tech; that E.S.S. was created to use the services of Sparks in competing with Con-Tech, to hire Con-Tech's employees and thereby destroy its ability to function, and to interfere with Con-Tech's contractual relations with Sparks and others; that Con-Tech was not in default on its contracts with Fries but was owed money for its services; and that Fries owed Con-Tech $22,325.50 on open account.
From the above general statement of the controversy, the issues, and the particular claims, we proceed to a detailed narrative of the facts and proceedings leading to this appeal.
Con-Tech, Strickland, and Sparks had entered into an agreement on January 24, *559 1986, the following provisions of which are pertinent to the claims at issue:
After Sparks started working for Con-Tech, Con-Tech and Fries entered into two contracts whereby Con-Tech agreed to install electronic security systems in two prisons in Florida. Fries had contracted to manufacture and install the steel doors, gratings, and windows in the prisons, and Con-Tech's electronics included the controls to open and close the doors. The evidence tended to show that, in the fall of 1987, Fries received complaints from the general contractors on the two sites that doors were not closing properly, that Con-Tech was behind schedule, and that there were other problems with Con-Tech's performance. Con-Tech disputed much of this evidence, but we cite it for its overall relevance to Fries's allegations of a meritorious defense and excessiveness of the judgment.
There was also substantial evidence that Con-Tech was having financial difficulty throughout its existence, and particularly in late 1987 and early 1988. Two possible causes of those difficulties were explored in the hearing conducted by the trial court on the motion to set aside the default judgment. One line of testimony regarded Strickland's contributions of capital to the corporation. The former Con-Tech employees who testified gave evidence that Strickland did not provide sufficient capital to meet the corporation's needs or to allow it to perform its contracts adequately, and that he withdrew money from the corporation on occasion.
The other line of testimony showed that Sparks withdrew money as bonuses for himself. There was some dispute as to whether those bonuses were authorized under provision 2 of the contract or were unauthorized, but Sparks apparently did not attempt to conceal his withdrawals. A fair reading of the evidence would support a conclusion that a dispute erupted between *560 Strickland and Sparks in February 1988, at least principally over those bonuses, and that that dispute led to Sparks's departure from Con-Tech at the end of that month. On Friday, February 26, Strickland called a meeting of all the employees present at Con-Tech, not including Sparks, who apparently had already quit. Strickland told the employees that he wanted them to know his side of the dispute with Sparks and explained some facts about Sparks's withdrawal of bonuses. Several of those employees testified at the hearing on the Rule 55(c) motion that, after that meeting, they did not know whether they would have jobs or whether Con-Tech would be in operation the following Monday.
Beginning in the first week or two of March, Sparks made efforts to complete the electronics work on the two Florida prisons. He worked first from his house and later from a premises leased in the name "E.S.S., Inc." He hired virtually all of Con-Tech's employees. They received paychecks from Fries for the first two weeks of March and apparently later received paychecks from "E.S.S., Inc." A bank account was established in that name with money deposited by Fries.
When Con-Tech and Strickland filed their complaint on April 18, a summons and a copy of the complaint were sent to Sparks, E.S.S., Inc., and Fries by certified mail. On April 23, Sparks signed the receipts for the mail addressed to him and that addressed to E.S.S., Inc. The mail sent to Fries was marked "refused" on April 25 and was returned to the circuit clerk's office. The clerk received the returned mail on May 2 and reissued the summons and complaint to Fries by ordinary mail, in accordance with Rule 4(e), Ala.R.Civ.P., on May 6. That envelope was stamped "Return to Sender" with a stamp that the postmaster later denied as being in use by his post office. Handwritten in red ink on the envelope were the words "ReturnedNot at this address," cross marks through Fries's address, and an arrow pointing at the clerk's office's return address.
Sparks filed an answer on May 23 including the following averment: "Defendant denies that E.S.S. is a Corporation or partnership as alleged in paragraph 5 of the Complaint characterized as `Identification of Parties.'" The answer was clearly filed by Sparks alone: "Comes now the defendant, J. Collier Sparks, and for answer to the complaint...."
Con-Tech and Strickland filed a motion for default judgment against Fries on June 8, and a motion for default judgment against E.S.S. on June 10. The clerk entered default against both defendants on June 10. Also on that date, the court set a hearing on damages for the following Monday, June 13. After that hearing, the court entered judgment on June 15.
On June 23, Fries filed its motion to set aside the default judgment, attaching the affidavit of its vice-president, Kevin J. King. The court held a hearing on that motion on August 4, took further evidence and heard arguments on September 6, and denied the motion on September 12. In its order of September 12, the court made the judgment against Fries and E.S.S. final, pursuant to Rule 54(b), Ala.R.Civ.P. On October 4, Fries filed a "motion to reconsider [its] motion to set aside the default judgment." On October 11, E.S.S., Inc., made its first appearance, filing a Rule 60(b)(4) motion alleging that the judgment against E.S.S. was void. On October 13, the court entered separate orders denying both of those motions. Fries and E.S.S. filed timely notices of appeal.
In deciding whether to set aside a default judgment, a court balances two competing interests: (1) the need to promote judicial economy and (2) the need to preserve a defendant's right to defend on the merits. Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988). Because the interest in preserving a litigant's right to a trial on the merits is paramount, this Court has construed Rule 55(c) as contemplating a liberal exercise of a trial court's discretion in favor of setting aside default judgments. Id. Additionally, it is implicit in the Alabama Rules of Civil Procedure that default judgments *561 are not favored. Johnson v. Moore, 514 So. 2d 1343 (Ala.1987).
In Kirtland, supra, this Court set out a three-factor analysis to be used by trial courts in determining when to grant Rule 55(c) motions. The three factors to be considered are: (1) whether the defendant has a meritorious defense; (2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and (3) whether the default judgment was a result of the defendant's own culpable conduct. Id., at 605.
In establishing a meritorious defense, the movant's burden is to satisfy the trial court only that he is prepared to present a plausible defense, not that he would necessarily prevail at a trial on the merits. Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283, 1288 (Ala.1987). The Court further explained this standard in Kirtland, supra, at 606:
(Citations omitted.)
In denying Fries's motion to set aside the default judgment, the trial court issued a detailed order, holding, inter alia, that Fries had failed to present a meritorious defense. That holding was in error. The claims against Fries were a claim of tortious interference with Con-Tech's contract with Sparks, a claim for an amount due on open account, and a claim that could be described as seeking damages either for work and labor done or for breach of contract. The $22,325.50 portion of the judgment against Fries was the exact amount claimed under the claim alleging an open account. The evidence generally showing disputes over contract rights and performances would support a jury verdict that failed to award damages to Con-Tech on this count, if only due to offsetting amounts due from Con-Tech to Fries for, e.g., liquidated damages to the prison owners or the general contractors.
More importantly, the $1,000,000 portion of the judgment against Fries is the exact amount sought under the count for tortious interference with contractual relations.[2] The evidence at the hearing showed a substantial jury question regarding that count. There was evidence from which a jury could find that Sparks's departure from Con-Tech was due to a dispute between him and Strickland, not to any wrongful enticement by Fries. The fact that Fries knew of Sparks's covenant not to compete is not dispositive, for two reasons. First, it could be that Strickland and Con-Tech breached the contract first (Sparks has claimed this in a counterclaim), thereby absolving Sparks from any further duties under the contract. Second, Fries's vice-president, Kevin King, testified that he had doubts as to whether the covenant was enforceable.[3] Even if the covenant was enforceable against Sparks, King's testimony and the other evidence might defeat or mitigate a claim against Fries for intentional interference with Con-Tech's contract with Sparks.
Con-Tech does not claim damages against Fries for intentional interference relating to the hiring away of Con-Tech's other employees, but claims such damages *562 only against E.S.S. To the extent that those actions could be deemed to support the claim against Fries, however, the claim is nevertheless subject to meritorious defenses, principally that of justification.[4] Fries was contractually obligated to perform the electronics work that it had subcontracted to Con-Tech. There was evidence from which a jury could find that Con-Tech was in breach of its subcontract, or at least that Fries reasonably could have believed that Con-Tech would not be able to complete its performance satisfactorily. Fries took the position that it hired Sparks and the other Con-Tech employees strictly to complete satisfactory performance and thereby prevent the accumulation of liquidated damages under its contracts with the general contractors of the prisons. Those liquidated damages apparently would have been assessed against Con-Tech under its contract with Fries, so any diminution of damages would have inured to Con-Tech's benefit also.
Con-Tech presented evidence to the contrary, including evidence that it offered to complete performance through other employees after Sparks and the other employees left, but this evidence shows only that a jury question existed. The other employees had not entered into covenants not to compete with Con-Tech. Some of them gave testimony that Strickland's behavior on February 26 led them to believe that Con-Tech would not be in business the following week. In short, there was credible evidence that Fries would have been justified in concluding that Con-Tech's alleged failures to finish its work on time and to specifications would ripen into substantial breaches and that Fries's prudent course of action was to hire the employees whom Con-Tech apparently could no longer sustain and who, especially Sparks, knew the details of the electronics systems that were being installed.
Finally, the trial court's holding that Con-Tech was not in breach of its contract was not in accord with the Rule 55(c) standard that a meritorious defense exists if litigation "could foreseeably alter the outcome of the case." Kirtland, supra, at 606. As recounted above, there was evidence that Con-Tech had breached the contract by failing to perform its work satisfactorily. Therefore, the judgment against Fries is also subject to meritorious defenses to the extent that it is attributable to the claim for work and labor done.
The second element of the Kirtland test is whether the plaintiff will be unfairly prejudiced if the default judgment is set aside. Such prejudice must be substantial, and mere delay in the recovery on the claim is not sufficient prejudice to justify refusal to set a default judgment aside, although it might be grounds for imposing costs on the defaulting party. Kirtland, supra, at 606-07. Con-Tech and Strickland have shown no prejudice of the kind that would support a denial of a motion to set aside a default judgment.
The final element is the culpability of the defaulting party's conduct. In this instance, the trial court's finding that Fries intentionally avoided service is sustainable on the record. Sparks received the complaint two days before the complaint sent to Fries was marked "refused," and the court could reasonably have inferred that Sparks, who communicated with Fries frequently at that time, had forewarned the officers of Fries. Fries is located in Tipp City, Ohio, and the postmaster of that town testified that his office could have made a mistake, and otherwise gave evidence that Fries points to as negating the likelihood that it intentionally refused service. The court, however, held that Fries had not presented a reasonable explanation for the failure to accept the certified letter but, on the contrary, that Fries had intentionally flouted the judicial process.
Those conclusions do not support the refusal to set aside the default judgment against Fries, however, because the claims were so much in dispute, as explained above, and because of the size of the judgment. The evidence given at the hearing on damages was largely speculative, consisting primarily of worst-case scenarios as *563 to additional expenses that Con-Tech might incur in completing contracts and in potential warranty liability. Even those figures do not appear to support an award of $1,000,000 in damages. Thus, both liability and damages are open to substantial dispute. In such a circumstance, a defendant's avoidance of service might be grounds for imposition of costs or other sanctions, but should not be grounds for a refusal to set aside such a large default judgment.
For the foregoing reasons, the default judgment against Fries is due to be set aside, and the denial of the Rule 55(c) motion is due to be reversed.
We now turn to the issues regarding the judgment against E.S.S. The dispositive question is whether the trial court erred in holding that E.S.S. is a corporation by estoppel.
E.S.S. cites the rule that a corporation by estoppel arises only where the party asserting the estoppel has detrimentally relied on the agreements or conduct creating an appearance of corporate existence, citing Bukacek v. Pell City Farms, Inc., 286 Ala. 141, 237 So. 2d 851, cert. denied, 401 U.S. 910, 91 S. Ct. 872, 27 L. Ed. 2d 809 (1970); Ex parte Baker, 432 So. 2d 1281 (Ala.1983); Mazer v. Jackson Ins. Agency, 340 So. 2d 770 (Ala.1976); Cahaba Veneer, Inc. v. Vickery Auto Supply, 516 So. 2d 670 (Ala. Civ.App.1987); Harris v. Stephens Wholesale Bldg. Supply Co., 54 Ala.App. 405, 309 So. 2d 115 (Ala.Civ.App.1975). Thus, argues E.S.S., the trial court erred in holding that E.S.S. is a corporation by estoppel, because Con-Tech and Strickland had had no dealings with Sparks doing business in the name "E.S.S., Inc.," and so could not have relied on that alleged corporate existence.
Con-Tech and Strickland counter by arguing that the above-cited cases are distinguishable as involving contracts, whereas this case involves a tort claim. They cite 18 C.J.S. Corporations § 110(a) (1939) and 18A Am.Jur.2d Corporations § 269 (1985) for the proposition that "persons who hold themselves out as a corporation and do business as such and who commit a tort in the course of such business cannot set up lack of legal incorporation to escape liability therefor in an action brought against them as a corporation." None of the cases cited by those encyclopedias is instructive as to the issues before us. See Watwood v. Barber, 70 F.R.D. 1 (N.D.Ga.1975); Anderson v. Kennebec River Pulp & Paper Co., 433 A.2d 752 (Me.1981); Merriman v. Standard Grocery Co., 143 Ind. App. 654, 242 N.E.2d 128 (1968).
The circumstances of this case did not justify a default judgment against "E.S.S., Inc.," on the theory that some person or persons were estopped to deny that such a corporation existed for the sake of this claim of tortious interference with contractual relations. Sparks's answer denied that any such corporation existed. The complaint did not allege any theory of corporation by estoppel, and there was no amendment of the complaint to allege such a theory after Sparks filed his answer. The only possible grounds for the judgment against "E.S.S., Inc.," were the allegations of the complaint and the fact that Sparks had signed the certified mail receipt for the summons and complaint directed to "E.S.S., Inc." at an address that was different from his home address.
From the complaint and the receipt it was obvious that, if there was any such corporation, Sparks was its principal. Certainly, there was no indication of anyone else who would be entitled or required to file an appearance on behalf of "E.S.S., Inc." To require Sparks to file an appearance in the name "E.S.S., Inc.," would require him to contradict himself and virtually to admit that which he denied in his answer.[5] Therefore, the trial court should have treated his answer as an appearance on behalf of the named party and a denial of the existence of any such entity. No *564 notice of the motion for default judgment, of the entry of default, or of the setting of the hearing on damages[6] was served on Sparks, so there was no reason for him to contest further the claim against E.S.S., Inc. Under the circumstances, the trial court should have denied the motion for default judgment absent a further pleading raising the theory of corporation by estoppel and service of such a pleading on E.S.S., Inc. See Rule 5(a), Ala.R.Civ.P.
For the reasons stated, the default judgment against E.S.S., Inc., is reversed, the denial of Fries's Rule 55(c) motion is reversed, and the cause is remanded. Con-Tech and Strickland have filed a motion to supplement the record, but the matter they seek to add relates to an argument that need not be discussed in view of our resolution of the case. Therefore, the motion is denied as moot.
MOTION TO SUPPLEMENT RECORD DENIED.
88-68, REVERSED AND REMANDED.
88-93, REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result).
In Kirtland v. Fort Morgan Auth. Sewer Serv., 524 So. 2d 600 (Ala.1988), and the earlier case of Ex parte Illinois Cent. Gulf R.R., 514 So. 2d 1283 (Ala.1987), I expressed disagreement with this Court's departure from the old rule, which granted broad discretion to trial judges in determining when and under what circumstances to enter a default judgment. I did not get broad support for my position in those two cases, and I can think of no good reason to continue to express my own belief that the old rule should not have been changed.
In this special writing, in which I finally surrender and accept the majority rule, I do want to state, as a parting comment, that I continue to believe that the old rule conformed more with Rule 1 of the Alabama Rules of Civil Procedure than does the rule announced in Kirtland.[7]
The majority correctly points out that the rule announced in Kirtland is controlling; consequently, even though I would vest more discretion in the learned trial judge, the law unfortunately is to the contrary; therefore, I concur in the result.
[1] The trial court made the judgment against Fries and E.S.S. final pursuant to Rule 54(b), Ala.R.Civ.P. Sparks had filed a timely answer, and as far as the record before us shows, the action is still pending against him.
[2] The third count against Fries sought a declaration that Con-Tech was not indebted to Fries on any theory of breach of contract and, further, asked that the court "establish the amount of damages owed" by Fries to Con-Tech "for services performed under said contract." It did not seek a specified amount of damages.
The court granted the affirmative relief of declaring that Con-Tech was not in breach of the contract.
[3] Such covenants are disfavored and are enforceable only in limited circumstances. See Ala.Code 1975, § 8-1-1 and annotations thereto.
[4] See Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986).
[5] Perhaps Sparks could have filed a motion to quash service on E.S.S., Inc., but to uphold the default judgment on his failure to follow such a procedure would be to elevate form over substance, given that his answer made the same averment that would be necessary to support such a motion.
[6] On Friday, June 10, plaintiffs moved for default judgment, the clerk entered default, and the court set a hearing on damages for Monday, June 13, at 10 a.m. About 4:05 p.m. on Friday, some form of notification was apparently placed in a box at the courthouse that was assigned to Sparks's attorney. Although a party in default is not entitled to service, Rule 5(a), Ala.R.Civ.P., Sparks was entitled to such service because he had entered an appearance and had denied the corporate existence of E.S.S., Inc. Clearly, no service was made. Rule 5(b).
[7] The fact of this appeal and the added expense and time it has required is more proof that litigants should pay attention to court processes, and that trial judges should not be deprived of the authority to enter a default judgment when the facts warrant it. | March 2, 1990 |
c58ea040-d1ed-4cf1-8419-9e5309ef14b2 | Chen v. Russell Realty, LLC | N/A | 1140651 | Alabama | Alabama Supreme Court | REL:09/18/2015
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, 2015
____________________
1140651
____________________
Yan Chen
v.
Russell Realty, LLC, and MRT, LLC
Appeal from Butler Circuit Court
(CV-12-900038)
BOLIN, Justice.
On April 28, 2010, Yan Chen, who had a business interest
in Yami Buffet, Inc., an Asian restaurant, entered into a 10-
year lease agreement with Russell Realty, LLC, and MRT, LLC.
The property to be leased was located in Greenville. The
1140651
lease agreement was drafted by Russell Realty and contained an
arbitration clause that provided, in pertinent part:
"Arbitration: If any dispute, claim or controversy
arises out of the terms or matters within this
Agreement, the parties hereto agree that any and all
such claims, disputes or controversies shall first
be
sent
to
a
mediator
certified
under
the
qualification of the Alabama State Bar Association,
and if not resolved through mediation, then settled
in a final and binding arbitration administered by
the American Arbitration Association. Judgment upon
the award may be entered in any court having a
jurisdiction thereof."
On June 5, 2012, Russell Realty and MRT sued Chen along
with Qiaoyun He, Joe Zou, and Yami Buffet, Inc., in the Butler
Circuit Court, alleging breach of contract. On July 16, 2012,
Russell Realty and MRT filed a motion for a default judgment
against Chen and the other defendants. On July 19, 2012,
1
Chen filed a response to the motion, alleging that she had
been in China from April 2012 through June 26, 2012, and that
she had not been personally served with notice of the lawsuit.
On July 26, 2012, Chen filed a motion to dismiss the
complaint, asserting that the lease agreement contained an
arbitration clause and that "said complaint[] fails to state
There appears to be a dispute as to whether the other
1
defendants were properly served.
2
1140651
any measures that have been taken in lieu of the fulfillment
of such agreed Arbitration Clause." On October 10, 2012, the
trial court denied both Russell Realty and MRT's motion for a
default judgment and Chen's motion to dismiss.
On November 26, 2012, Chen filed a motion to compel
arbitration, asserting that, as "part of Plaintiffs['] lease
agreement, plaintiff[s] agreed to binding arbitration as
evidenced by the Arbitration Clause on page 6, item 22 of the
executed lease as attached hereto." On January 10, 2013, the
trial court granted Chen's motion, stating that Chen "may seek
arbitration as called for in the original contract. All other
matters are stayed for 180 days pending the outcome of
arbitration."
On May 3, 2013, Chen filed a second motion to dismiss,
alleging that Russell Realty and MRT had refused to mediate
and had refused to arbitrate. Chen asked the court to
"dismiss the above-styled civil action and order the
Plaintiff[s] to file for mediation as set out in the lease
which forms the relationship between the parties to this
litigation." On June 1, 2013, Russell Realty and MRT filed an
objection to Chen's second motion to dismiss, asserting that
3
1140651
"time of the stay set by the court has almost expired and
Defendant Yan Chen has not made any movement, act, or effort
to seek Arbitration to resolve the issues." Russell Realty
and MRT again sought a default judgment against the
defendants, including Chen. The trial court held a hearing on
Chen's second motion to dismiss on July 11, 2013.
On January 13, 2014, Russell Realty and MRT filed a
motion to set the case for trial. On January 14, 2014, Chen
filed an objection to setting the case for trial. She
asserted that counsel for Russell Realty and MRT had failed to
respond to her attempts to seek a settlement before the hiring
of a mediator or arbitrator and that, subsequently, she had
contacted a mediator/arbitrator and Russell Realty and MRT had
not responded to her choice of mediator/arbitrator. On
January 17, 2014, the trial court entered the following order:
"This
matter
was
previously
ordered
to
arbitration; however the arbitration was never
conducted. Upon further review of the lease
agreement at issue, the arbitration provision
requires that the case first be sent to mediation,
and if not resolved through mediation, then settled
in a final and binding arbitration administered by
the
American
Arbitration
Association.
It
is,
therefore ordered, adjudged and decreed as follows:
4
1140651
"1. Pursuant to Section 6-6-20, Code of
Alabama 1975, the Court orders mediation in
this case as follows:
"2. Mediation shall be conducted within
sixty (60) days from the date of this
order, with Jim A. Rives, of Ball, Ball
Mathews & Novak, P.A., to serve as
mediator, subject to the availability of
the mediator. The mediation shall be held
at
a
mutually
convenient
location,
agreeable to the mediator.
"3. The parties, persons with settlement
authority, and counsel shall all appear and
be present during mediation.
"4. The cost of the mediation shall be
divided equally between the parties to be
paid at the conclusion of the mediation. If
the parties fail to pay as ordered, the
Court
will
appropriately
allocate
the
costs
of mediation, except attorneys' fees, and
tax such as costs.
"5. The mediator shall immediately notify
the court if the mediation is unsuccessful.
"6. If any party fails to mediate as set
forth above, the Court may impose sanctions
pursuant to Rule 37 of the Alabama Rules of
Civil Procedure."
On February 21, 2014, the mediator filed a report with
the court stating:
"1. The Mediation was previously set for
February
11,
2014,
but
had
to
be
cancelled/rescheduled due to inclement weather. The
Mediation took place on February 17, 2014. In
attendance for the Plaintiffs were Russ Russell,
5
1140651
Jerry
Wood
and
Scott
Hooper
(attorney
for
Plaintiffs). Defendants, He Qiao Yun [sic] and Zou
Joe [sic] were not in attendance. Defendant Chen Yan
[sic] was not in attendance, but was represented by
her attorney, Yue Li, who was in attendance at the
Mediation with settlement authority and immediate
phone access to Defendant .... From a review of the
Court's file, the Mediator was unable to find
addresses for Yun and Joe to send a Notice of the
Mediation. For that reason, settlement negotiations
took place only between the Plaintiffs and the
Defendant, Chen Yan.
"2.
The
negotiations
did
not
result
in
settlement. It is the opinion of the Mediator that
additional efforts to settle this case through
Mediation would not be successful without the
involvement of the remaining Defendants, whose
addresses/contact information were not found in
[the] AlaCourt [Web site] by the Mediator."
On March 12, 2014, Russell Realty and MRT filed a motion
for sanctions against Chen and the other defendants. On March
13, 2014, Chen filed a response to the motion. On April 17,
2014, the trial court entered an order denying the motion for
sanctions against Chen. The court entered a default judgment
against the remaining defendants and set the matter for a
hearing on damages on July 29, 2014. Although the trial court
denied the motion for sanctions, the court stated: "[H]aving
considered the decision of the Defendant Yan Chen to not
follow the previous orders of this court in regard to both
6
1140651
arbitration and mediation, it is further ordered that a final
hearing between the plaintiffs and the Defendant Yan Chen is
hereby set for Tuesday, July 29, 2014."
A hearing was held on July 29, 2014. On September 8,
2014, Chen filed a notice of appeal, purportedly from the July
29, 2014, hearing. The trial court then entered an order
stating that the Chen's appeal was moot as the court had not
yet entered a final order. On February 10, 2015, the trial
court entered an order awarding Russell Realty and MRT
$682,050.10 against all the defendants, including Chen,
jointly and severally. Chen appealed.
Discussion
At the outset, we note that this case comes to us in an
unusual procedural posture. Russell Realty and MRT sued Chen
and others on June 5, 2012. On November 26, 2012, Chen
asserted her right to arbitration under the lease agreement
executed by the parties. The trial court granted the motion
2
to arbitrate and stayed the underlying action. On May 3,
2013, Chen filed a motion to dismiss the complaint against
It appears that Yan Chen and Qiaoyun He signed the lease
2
agreement as lessees and that Joe Zou signed as a guarantor.
7
1140651
her, alleging that Russell Realty and MRT had refused to
arbitrate. On January 13, 2014, Russell Realty and MRT sought
to set the case for trial. Ultimately, on January 17, 2014,
the trial court correctly concluded that the arbitration
clause in the lease agreement provided first for mediation and
then, if mediation was unsuccessful, for arbitration.
"When
a
trial
court
compels
arbitration,
it
must
do so in a manner consistent with the terms of the
arbitration
provision.
See
Ex
parte
Cappaert
Manufactured Homes, 822 So. 2d 385, 387 (Ala.
2001)('[section] 5 [of the Federal Arbitration Act]
mandates
that
the
method
set
forth
in
the
arbitration agreement be followed'); Southern Energy
Homes Retail Corp. v. McCool, 814 So. 2d 845 (Ala.
2001)(trial court directed to vacate its order
because it failed to compel arbitration in a manner
consistent with the terms of the agreement between
the parties); Ex parte Dan Tucker Auto Sales[, Inc.,
718 So. 2d 33 (Ala. 1998)] (trial court erred in
assigning administrative fees of arbitration to the
defendant
when
the
Rules
of
the
[American
Arbitration Association] provided for the relief of
a party in the event of hardship). A trial court's
order compelling arbitration that changes the terms
of the arbitration provision will be reversed when
"'it appears that the trial court, although
it ordered the parties to arbitrate, failed
to
compel
arbitration
in
a
manner
consistent
with
the
terms
of
[the]
arbitration provision.'
"McCool, 814 So. 2d at 849."
8
1140651
BankAmerica Hous. Servs. v. Lee, 833 So. 2d 609, 618 (Ala.
2002).
Following the terms of the arbitration clause, the trial
court ordered that the parties enter into mediation. When the
mediation was not successful, Russell Realty and MRT sought a
default judgment against the defendants other than Chen and
sought sanctions against Chen. In response, the trial court
reinstated Russell Realty and MRT's case, entered a default
judgment as to the defendants other than Chen and set a
hearing on damages. With regard to Chen, the trial court
denied Russell Realty and MRT's motion for sanctions and
ordered Chen to attend a "final hearing." The trial court
apparently concluded that Chen had waived her right to
arbitrate because Chen was ordered to appear at the hearing
held on July 29, 2014. At that point, Chen had not even filed
an answer to the complaint, and no discovery had taken place.
It appears that counsel for Chen understood the hearing to be
in regard to the arbitration proceedings because the trial
court had recognized that it was required to comply with the
terms of the arbitration clause, had ordered mediation,
mediation had failed, and Chen continued to assert her right
9
1140651
to arbitration in accordance with the lease agreement, which
required arbitration following an unsuccessful mediation.
We will treat Chen's appeal from the trial court's
February 10, 2015, order as an appeal from the denial of a
motion to compel arbitration. We do so because, after the
trial court determined that the arbitration clause provided
that the parties must mediate first and then proceed to
arbitration, the trial court ultimately reinstated Russell
Realty and MRT's case. "Because the trial court dismissed
ongoing arbitration and reinstated [the plaintiffs'] action,
we will treat the trial court's order as a final order denying
arbitration." All American Termite & Pest Control, Inc. v.
Walker, 830 So. 2d 736, 738 (Ala. 2002).
A trial court's decision as to whether a party has waived
the right to compel arbitration is reviewed de novo on appeal.
Hales v. ProEquities, Inc., 885 So. 2d 100, 104 (Ala. 2003).
"'[T]here is a presumption against a court's finding that a
party has waived the right to compel arbitration."' Lee v. YES
of Russellville, Inc., 784 So. 2d 1022, 1028 (Ala. 2000)
(quoting Eastern Dredging & Constr., Inc. v.
Parliament House,
L.L.C., 698 So. 2d 102, 103 (Ala. 1997)). A party seeking to
10
1140651
prove a waiver of a right to arbitrate carries a heavy burden,
and the courts will not lightly infer a waiver of the right to
compel arbitration. Lee, 784 So. 2d at 1028–29 (citing Mutual
Assurance, Inc. v. Wilson, 716 So. 2d 1160 (Ala. 1998)).
In Ocwen Loan Servicing, LLC v. Washington, 939 So. 2d 6
(Ala. 2006), the plaintiff argued that the defendant had
waived its right to arbitration either by its conduct with
reference to a provision in the agreement dealing with the
time in which to make demand for arbitration or by its conduct
during the course of the litigation. Here, the trial court
was apparently looking to Chen's conduct with regard to
enforcing the arbitration agreement and not to her conduct
during the course of the litigation. However, we cannot say
that Chen waived her right to arbitrate. Russell Realty
drafted the lease agreement that contained the arbitration
clause, which provided for mediation first and then, if
mediation was unsuccessful, for binding arbitration pursuant
to the American Arbitration Association Rules. The trial
court did enter an order requiring mediation in compliance
with the terms of the lease agreement. The mediator reported
to the court that mediation had failed, likely as a result of
11
1140651
the lack of participation by the other defendants not
appearing. Chen asserted that those defendants had not been
properly served. Chen has asserted her right to arbitrate
throughout the proceedings. The trial court's order entered
a default judgment against the other defendants and set a
hearing on damages. The trial court set a "final" hearing for
Chen at the same time as the hearing on damages for the
defendants who had defaulted. Although the trial court used
the word "final," the order of April 17, 2014, could have been
construed as setting a final hearing on Chen's arbitration
request because the terms of the arbitration clause had not
been met, and there had been no answer, no discovery, no
witness lists, etc., to indicate that Chen was to appear at a
"final hearing" for a trial on the merits.
Based on the foregoing, we reverse the judgment of the
trial court with regard to Chen and remand the case for the
trial court to enter an order requiring arbitration in
accordance with the terms of the lease agreement.
REVERSED AND REMANDED.
Main and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., concur in the result.
12 | September 18, 2015 |
2832e7fc-0284-49ad-809c-3500a14eb338 | American Bankers Ins. Co. of Florida v. Tellis | N/A | 1131244, 1131245, 1131264, 1131384, 1131514 | Alabama | Alabama Supreme Court | rel: 06/26/2015
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, 2014-2015
____________________
1131244
____________________
American Bankers Insurance Company of Florida
v.
Gladys Tellis
Appeal from Macon Circuit Court
(CV-14-900033)
____________________
1131245
____________________
American Bankers Insurance Company of Florida
v.
Sherry Bronson
Appeal from Macon Circuit Court
(CV-14-900025)
____________________
1131264
____________________
American Bankers Insurance Company of Florida
v.
Gwendolyn Moody
Appeal from Chambers Circuit Court
(CV-14-900022)
____________________
1131384
____________________
American Bankers Insurance Company of Florida
v.
Nadine Ivy
Appeal from Bullock Circuit Court
(CV-14-900015)
____________________
1131514
____________________
American Bankers Insurance Company of Florida
v.
Uneeda Trammell
Appeal from Chambers Circuit Court
(CV-14-900020)
1131244, 1131245, 1131264, 1131384, 1131514
STUART, Justice.
Gladys Tellis, Sherry Bronson, Gwendolyn Moody, Nadine
Ivy,
and
Uneeda
Trammell
(hereinafter
referred
to
collectively
as "the policyholders") initiated separate actions against
American Bankers Insurance Company of Florida ("American
Bankers"), asserting generally that American Bankers had sold
them homeowner's insurance policies providing a level of
coverage they could never receive, even in the event of a
total loss involving the covered property. American Bankers
thereafter moved the trial court hearing each action to compel
arbitration
pursuant
to
arbitration
provisions
it
alleged
were
part of the subject policies; however, the trial courts denied
those motions, and American Bankers now appeals. We
consolidated the five appeals for the purpose of writing one
opinion. We reverse and remand.
I.
The facts underlying each of these five consolidated
appeals are substantially identical. Sometime in 2012 or 2013
each of the policyholders renewed a homeowner's insurance
policy he or she had previously obtained from American
Bankers. Thereafter, each concluded that he or she was paying
3
1131244, 1131245, 1131264, 1131384, 1131514
excessive premiums inasmuch as the policies provided a level
of coverage that allegedly far exceeded the value of the
covered properties; in other words, the policyholders allege
that they were overinsured inasmuch as they could never
receive the policy limits even if the covered property was
declared a total loss. In February 2014, the policyholders
separately
sued
American
Bankers,
alleging
breach
of
contract,
several species of fraud, unjust enrichment, and negligence
and/or wantonness.
American Bankers thereafter moved the trial courts in
which these actions were filed –– the Bullock Circuit Court,
the Chambers Circuit Court, and the Macon Circuit Court –– to
compel arbitration pursuant to the following arbitration
provision it alleged was contained in the policyholders'
policies:
"Any and all claims, disputes, or controversies
of any nature whatsoever ... arising out of,
relating to, or in connection with (1) this policy
or certificate or any prior policy or certificate
issued by us to you ... shall be resolved by binding
arbitration before a single arbitrator. All
arbitrations shall be administered by the American
Arbitration Association ('AAA') in accordance with
its
Expedited
Procedures
of
the
Commercial
Arbitration Rules of the AAA in effect at the time
the claim is filed."
4
1131244, 1131245, 1131264, 1131384, 1131514
The policyholders opposed the motions to compel arbitration,
arguing that they had never consented to arbitrate their
claims, that they had not signed any documents containing an
arbitration provision, and that the arbitration provision in
the policies was unconscionable. The trial courts thereafter
denied
each
of
American
Bankers'
motions
to
compel
arbitration, and American Bankers separately appealed those
denials to this Court pursuant to Rule 4(d), Ala. R. App. P.
This Court consolidated the appeals based on the similarity of
the facts and the issues presented.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
5
1131244, 1131245, 1131264, 1131384, 1131514
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In order to answer the ultimate question in these cases
–– whether the trial courts erred in denying American Bankers'
motions to compel arbitration –– we must address three issues:
(1) whether the parties agreed to arbitrate the claims
asserted in the policyholders' complaints; (2) whether the
underlying transactions, i.e., the sale of the insurance
policies, affected interstate commerce; and (3) whether the
arbitration
provision
in
the
subject
policies
is
unconscionable. With regard to the first issue, American
Bankers submitted to the respective trial courts a copy of the
policy allegedly issued to each of the policyholders.
Included as part of those policies are basically two forms
referencing arbitration: form AJ9821EPC-0608 and form N1961-
0798. Form AJ9821EPC-0608 is entitled "Arbitration Provision
1
The policy issued to Moody, the plaintiff in appeal no.
1
1131264, included form AJ8654EXX-0604 instead of form
AJ9821EPC-0608; however, those two forms appear to be
6
1131244, 1131245, 1131264, 1131384, 1131514
Alabama" and contains a general arbitration provision,
part of
which is quoted above. Form N1961-0798 is entitled "Important
notice about the policy/certificate of insurance for
which
you
have applied" and explains generally what arbitration is and
states that the policy contains a binding arbitration
agreement pursuant to which the insured and the insurer waive
the right to trial in a court of law. Although form N1961-
0798 contains a signature line for the applicant, a co-
applicant, and a witness, it is undisputed that none of the
policyholders executed this form. The policyholders have
further executed affidavits swearing that they never received
or signed either form –– or any other document related to
their American Bankers' policies purporting to be an
arbitration provision –– when applying for insurance or at
anytime thereafter until the commencement of this litigation.
They further state that they never would have purchased
coverage from American Bankers had they been presented with
the arbitration provision American Bankers now seeks to
enforce.
identical in all material ways. For convenience, we
hereinafter include Moody's form in any reference to form
AJ9821EPC-0608.
7
1131244, 1131245, 1131264, 1131384, 1131514
American Bankers concedes that the policyholders never
signed
form
N1961-0798
or
separate
arbitration
agreements,
but
it argues that they nevertheless assented to the arbitration
provision in their policies. In support of its argument that
an arbitration provision in an insurance policy can be
effective even if not disclosed in the application and even
without the insured's signature, American Bankers cites
Southern United Fire Insurance Co. v. Howard, 775 So. 2d 156,
162-63 (Ala. 2000), which provides:
"[The plaintiff] argues that he did not assent
to the arbitration provision in the insurance policy
because the arbitration provision was not included
in the insurance application and because he did not
sign the insurance policy. First, a contractual
agreement to arbitrate may be found invalid only
'upon such grounds as exist at law or in equity for
the revocation of any contract.' 9 U.S.C. § 2. It
is not a requirement of Alabama contract law that
for a contract provision to be enforceable it must
have appeared also in the application to enter into
the contract. See Ex parte Foster, 758 So. 2d 516
(Ala. 1999). Thus, the arbitration provision need
not have appeared in the application for insurance
for the parties to be bound by it. Second, '[t]his
Court is required to compel arbitration if, under
"ordinary state-law principles that govern the
formation of contracts," the contract containing the
arbitration clause is enforceable.' Quality Truck
& Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167
(Ala. 1999). Alabama's general contract law permits
assent to be evidenced by means other than
signature, and, thus, the contract of insurance and
the arbitration provision contained in it can be
8
1131244, 1131245, 1131264, 1131384, 1131514
enforceable by the parties in the absence of
signatures, where the evidence establishes the
existence of the agreement. [The defendant insurance
company's] insurance policy is not subject to either
of Alabama's Statutes of Frauds, see Ala. Code §§
7–2–201 and 8–9–2, nor is it made contingent upon
the condition precedent that it be signed by [the
plaintiff]. [The plaintiff] accepted and acted upon
[the defendant's] insurance policy, which contained
the arbitration provision, by paying premiums,
renewing the policy, and submitting a claim under
the policy. Therefore, because [the plaintiff]
ratified the policy, the absence of his signature
does not render the policy, or the arbitration
provision contained in it, unenforceable."
(Footnote
omitted.)
American
Bankers
similarly
maintains
that
the policyholders have manifested their assent to arbitration
in these cases by accepting and acting upon the insurance
policies containing the arbitration provision.
Our caselaw supports American Bankers' position. Beyond
Howard, this Court has considered multiple other appeals in
which parties have sought to avoid arbitration provisions in
insurance
policies
by
claiming
that
the
arbitration
provisions
were not disclosed to them or that they never received a copy
of the policy containing the arbitration provision. In Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998), the plaintiffs
argued that they never agreed to arbitrate their claims
because their application for insurance did not mention
9
1131244, 1131245, 1131264, 1131384, 1131514
arbitration and because they did not sign the endorsement
attached to the policy that contained the arbitration clause.
This Court rejected those arguments, noting that "[m]any
parts
of an insurance policy are not mentioned in the application"
and
explaining further
that
the
unsigned
endorsement
containing the arbitration clause was part of the issued
policy because the policy expressly stated that "'[t]his
policy with any attached papers is the entire contract between
you and the [insurance] Company.'" 712 So. 2d at 335. See
also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000) ("Under
state-law
principles of
contract
interpretation,
parties
may
be
bound
by
documents
incorporated
by reference.").
It is unclear exactly what parts of the insurance policy
the
policyholders
acknowledge
receiving
in
this
case;
however,
they have stated in their affidavits only that they did not
receive the two identified forms specifically discussing
arbitration or any other document purporting to be an
arbitration agreement. Thus, they presumably received the
rest of the policy American Bankers submits was issued to
them, including the declarations page and the
written
insuring
10
1131244, 1131245, 1131264, 1131384, 1131514
agreement, which provides that "[t]his policy is not complete
without the declarations page." The declarations page lists
forms AJ9821EPC-0608 and N1961-0798 as part of the included
"forms and endorsements." Although the policyholders claim
2
not to have received forms AJ9821EPC-0608 and
N1961-0798,
they
had some duty to investigate the contents of those forms
because the declarations page indicated that the forms were
part of the policy. See, e.g., Alfa Life Ins. Co. v. Colza,
159 So. 3d 1240, 1249-50 (Ala. 2014) (noting that insurance
policyholders have a duty to read the documents provided them
and are charged with the knowledge such a reading would impute
to them), and McDougle v. Silvernell, 738 So. 2d 806, 808
(Ala. 1999) (stating that a party to a contract that fails to
inform himself or herself of extraneous facts or other
documents incorporated into the contract is nevertheless
"bound thereby" (quoting Ben Cheeseman Realty Co.
v.
Thompson,
216 Ala. 9, 12, 112 So. 151, 153 (1927))). We further note
that this Court has also enforced arbitration provisions in
The declarations page lists forms AJ9821EPC-0608 and
2
N1961-0798 as forms "AJ9821EPC 06/08" and "N1961 07/98,"
respectively. With regard to Moody, the declarations page in
her policy lists form AJ8654EXX-0604 as form "AJ8654EXX
06/04."
11
1131244, 1131245, 1131264, 1131384, 1131514
insurance policies where the plaintiffs claimed never to have
received the written policies containing the provisions.
See,
e.g., Ex parte Southern United Fire Ins. Co., 843 So. 2d 151,
156 (Ala. 2002) (enforcing an arbitration provision even
though it was claimed that "[the plaintiff] did not receive a
copy of either the policy or the arbitration rules referenced
in the policy"), and Philadelphia American Life Ins. Co. v.
Bender, 893 So. 2d 1104, 1109 (Ala. 2004) (enforcing an
arbitration provision in an insurance policy even though the
plaintiff "claims that he did not receive a copy of the
policy").
Finally, we note that this Court has, on other occasions,
considered similar cases involving financial agreements other
than insurance policies in which parties have challenged
arbitration
provisions
they
alleged
were
subsequently
added
to
the agreements without their express consent or knowledge. We
have uniformly recognized that a signature or express consent
is not required to give effect to the new arbitration
provisions; rather, we have held that the parties effectively
manifested their assent to the added provisions by continuing
the relationship after the arbitration provision was added.
12
1131244, 1131245, 1131264, 1131384, 1131514
We summarized some of these insurance and non-insurance cases
as follows in Providian National Bank v. Screws, 894 So. 2d
625, 627 (Ala. 2003):
"This
Court
has
previously
enforced
an
arbitration
provision
added
to
credit-card
agreements by amendment. See Ex parte Colquitt, 808
So. 2d 1018 (Ala. 2001). Further, this Court has
continually held that express assent is not required
in order for an arbitration provision to be
enforceable. SouthTrust Bank v. Williams, 775 So.
2d 184, 189 (Ala. 2000) (holding that an arbitration
provision added to a customer's account agreement by
notice was valid and enforceable); Woodmen of the
World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 367
(Ala. 1999) (holding that express assent to an
arbitration provision is not required when the
arbitration provision is added by amendment); Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998) (noting
that the inclusion of an arbitration provision is
not a material alteration to an insurance policy
requiring
a
signed
application);
Southern
Foodservice Mgmt., Inc. v. American Fid. Assurance
Co. 850 So. 2d 316 (Ala. 2002)(same)."
We note that, like the policyholders in these cases, the
plaintiffs in Ex parte Colquitt, 808 So. 2d 1018, 1021 n. 1
(Ala. 2001), and Woodmen of the World Life Insurance Society
v. Harris, 740 So. 2d 362, 366 n. 6 (Ala. 1999), claimed not
to have seen any notice that would have apprised them of the
fact that an arbitration provision was made part of their
agreements.
13
1131244, 1131245, 1131264, 1131384, 1131514
In sum, although the policyholders did not execute stand-
alone arbitration agreements or necessarily even read or
receive the insurance policies containing the arbitration
provisions, they have nevertheless manifested their assent to
those
policies
and,
necessarily,
the
arbitration
provisions
in
them, by accepting and acting upon the policies, inasmuch as
they all affirmatively renewed their policies and paid their
premiums, thus ratifying the policies. Howard, 775 So. 2d at
162-63. See also SouthTrust Bank v. Williams, 775 So. 2d 184,
189 (Ala. 2000) (stating that parties that "continued the
business
relationship
after
the
interposition
of
the
arbitration
provision"
"implicitly
assented
to
the
addition
of
the arbitration provision"). This holding is consistent with
our previous caselaw interpreting arbitration provisions in
insurance policies. Because the policyholders assented to,
3
We note that the policyholders have not asked us to
3
overrule Howard, Ex parte Rager, Ex parte Southern United,
Bender, or other cases in which this Court has reached similar
holdings. Indeed,
although
American Bankers discussed most of
these cases in the initial brief it filed with this Court, the
policyholders have not responded to American Bankers'
discussion of those cases or otherwise attempted to
distinguish the cases in their response brief, much less asked
us to overrule them. "Stare decisis commands, at a minimum,
a degree of respect from this Court that makes it disinclined
to overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
14
1131244, 1131245, 1131264, 1131384, 1131514
and are therefore subject to, the arbitration provision in
their insurance policies, we conclude that they agreed to
arbitrate the claims asserted in their complaints inasmuch as
those claims "aris[e] out of, relat[e] to, [and are]
connect[ed] with" those insurance policies.
Having established that the policyholders at least
ratified the insurance policies issued to them by American
Bankers and that those policies call for arbitration, we must
next address whether the sale of those policies affected
interstate commerce so as to require enforcement of the
policies' arbitration provision under the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The policyholders wisely do not
argue that American Bankers' sale of these insurance policies
does not affect interstate commerce; rather, they argue only
that American Bankers failed to put forth any evidence that
would establish that fact. See, e.g., Service Corp. Int'l v.
Fulmer, 883 So. 2d 621, 629 (Ala. 2003) (explaining that, in
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
inclined to abandon precedent without a specific
invitation
to
do so").
15
1131244, 1131245, 1131264, 1131384, 1131514
light of decisions of the Supreme Court of the United States,
"a trial court evaluating a contract connected to some
economic or commercial activity would rarely, if ever, refuse
to compel arbitration on the ground that the transactions
lacked 'involvement' in interstate commerce"), and Potts v.
Baptist Health Sys., Inc., 853 So. 2d 194, 199 (Ala. 2002)
("The burden of proof was on the [parties moving to compel
arbitration] to provide evidence demonstrating that [the
subject]
contract,
or
the
transaction
it
evidenced,
substantially affected interstate commerce.").
It appears that, in at least some of these consolidated
appeals, American Bankers made an additional evidentiary
submission intended to establish that the sale to certain of
the policyholders of these insurance policies affected
interstate commerce once it became apparent that the
policyholders would contest that issue; however, the trial
courts thereafter struck those submissions as being tardy.
Hence, the policyholders argue that American Bankers has
failed to put forth evidence that would satisfy the
interstate-commerce requirement. However, even without
considering those submissions, it is clear from the
undisputed
16
1131244, 1131245, 1131264, 1131384, 1131514
facts and the evidence in the record that these transactions
affected interstate commerce. As evidenced by the copies of
the insurance policies that are in the record in each case,
the policyholders are all Alabama residents and the subject of
each insurance policy is property located in Alabama. Those
same policies also indicate that American Bankers –– the full
corporate name is reflected on the policy as American Bankers
Insurance Company of Florida –– has a Florida address and that
the agent for each of the policies is shown as having either
a Florida or a Minnesota address. This diversity of
citizenship between the parties is sufficient to establish
that the transactions between them affected interstate
commerce. See, e.g., America's Home Place, Inc. v. Rampey,
[Ms. 1130150, October 24, 2014] ___ So. 3d ___ n. 2 (Ala.
2014) (indicating that the interstate-commerce requirement is
met when a contract showed on its face that the company
constructing a house in Alabama "listed its place of business
as being in 'Hall County, Gainesville, GA'"); DecisionQuest,
Inc. v. Hayes, 863 So. 2d 90, 95 (Ala. 2003) ("'"[A]ll
interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test,
17
1131244, 1131245, 1131264, 1131384, 1131514
of interstate commerce; and every negotiation, contract,
trade, and dealing between citizens of different states,
which
contemplates and causes such importation, whether it be of
good, person, or information, is a transaction of interstate
commerce."'" (quoting Uncle Ben's, Inc. v. Crowell, 482 F.
Supp. 1149, 1154 (E.D. Ark. 1980), quoting in turn Furst v.
Brewster, 282 U.S. 493, 497 (1931))); and Ex parte Dyess, 709
So. 2d 447, 450 (Ala. 1997) ("[T]he policy issued by American
Hardware [Insurance Group, Inc.,] to Jack Ingram Motors[,
Inc.,] involves interstate commerce because the policy was
between corporations of different states. Therefore, the
Federal Arbitration Act applies ....").4
Our final inquiry, therefore, is whether the arbitration
provision in the subject policies is unconscionable. In
We further note that the policyholders have filed
4
stipulations indicating that they are not seeking, and will
not accept, any award of damages that exceeds $74,999.99.
These stipulations were presumably filed in recognition
of
the
diversity
of
citizenship
that
exists
between
the
policyholders
and American Bankers and a desire to avoid the possibility of
the underlying cases being removed to federal court pursuant
to 28 U.S.C. § 1332 (granting federal district courts original
jurisdiction over all civil actions involving citizens of
different states where the value of the dispute exceeds
$75,000).
18
1131244, 1131245, 1131264, 1131384, 1131514
Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala.
2004), this Court stated:
"'[T]here is nothing inherently unfair or
oppressive about arbitration clauses,' Coleman v.
Prudential Bache Sec., Inc., 802 F.2d 1350, 1352
(11th Cir. 1986), and arbitration agreements are not
in themselves unconscionable, Ex parte McNaughton,
728 So. 2d 592, 597–98 (Ala. 1998). Instead,
unconscionability is an affirmative defense, and the
party asserting the defense bears the burden of
proof. Conseco Fin. v. Murphy, 841 So. 2d 1241,
1245 (Ala. 2002)."
In support of their argument that the arbitration provision in
their insurance policies is unconscionable, the policyholders
cite Anderson v. Ashby, 873 So. 2d 168 (Ala. 2003), for the
broad
proposition
that
an
arbitration
provision
is
unconscionable when the terms of the provision are grossly
favorable to a party that has overwhelming bargaining power,
but they otherwise rely entirely upon an August 2013 order
entered by an El Paso County, Texas, trial court finding a
certain arbitration provision before it to be unconscionable.
The arbitration provision in that case, Cardwell v.
Whataburger Restaurants, LLC, case no. 2013DCV0910, similarly
provided that arbitration would be administered by the
American Arbitration Association ("the AAA"); however, the El
Paso trial court declared the provision to be unconscionable
19
1131244, 1131245, 1131264, 1131384, 1131514
and refused to enforce it based on its belief that the fees
charged by the AAA were too high, regardless of whether they
were ultimately paid by the plaintiff or the defendant and
that the defendant was essentially trying to purchase a more
favorable forum for the dispute.
Of course, any precedential value of the El Paso County
court's judgment is limited to its interpretation of Texas
law. See, e.g., Pritchett v. State Farm Mut. Auto. Ins. Co.,
834 So. 2d 785, 794 (Ala. Civ. App. 2002) ("Any precedential
value of the Rhode Island Superior Court's judgment ... is
limited to its interpretation of Rhode Island law.").
However, even that limited precedential value evaporates if
the judgment is reversed on appeal, and, in fact, that is the
case with the El Paso court's judgment because, on October 24,
2014 –– well before briefs were submitted in these appeals ––
the Texas Court of Appeals reversed the El Paso trial court's
order based on "the trial court's clear failure to properly
analyze and apply the law of unconscionability." Whataburger
Rests. LLC v. Cardwell, 446 S.W.3d 897, 913 (Tex. App. 2014).
Moreover, to the extent the policyholders are arguing
that the arbitration provision is unconscionable because of
20
1131244, 1131245, 1131264, 1131384, 1131514
the financial burden arbitration would
impose upon them,
their
argument is not supported by the evidence in the record and,
in many respects, is contradicted by the evidence in the
record. First, there is no evidence in the record of the
policyholders' financial status that would indicate that they
can not afford to pay the costs of arbitration. See Leeman,
902 So. 2d at 651-52 (noting that there was no evidence in the
record of the plaintiffs' income or wealth that would indicate
that they would not be able to pay the fees and costs of
arbitration and concluding that the plaintiffs accordingly
"have not demonstrated that the arbitration provision in
[their contract with the defendant] is unconscionable on that
basis").
Second,
the
arbitration
provision
in
the
policyholders'
policies
expressly
provides
that
"[t]he
cost[s]
of all arbitration proceeding[s] shall be paid by [American
Bankers], with the exception of the cost of representation of
[the policyholder]" and that arbitration proceedings in each
case
"shall
be
conducted
in
the
county
where
[the
policyholder] reside[s], unless another location is mutually
agreed upon in writing."
21
1131244, 1131245, 1131264, 1131384, 1131514
In Commercial Credit Corp. v. Leggett, 744 So. 2d 890
(Ala. 1999), this Court considered an argument that an
arbitration provision was unconscionable for financial-
hardship reasons because it obligated the party initiating
arbitration to pay $125, while the defendant company agreed to
pay for the first eight hours of the arbitration proceedings,
the losing party to then be responsible for paying the costs
associated
with
any
additional
proceedings,
if
such
proceedings were necessary. We stated:
"It is difficult to see how a party who truly
believes she has a meritorious cause of action can
view these provisions as particularly onerous. [The
plaintiff] would initially have to pay only $125.00
to commence the process. Subsequently, the
defendants
would
pay
for
the
first
day
of
proceedings, regardless of the outcome. The losing
party would then pay for the remainder of the
proceedings.
In
fact,
the
only
parties
disadvantaged by these cost provisions are the
losing parties –– whoever they might be.
"In short, th[is] arbitration provision[] [is]
not 'unreasonably favorable to [the defendants],'
nor [is it] 'oppressive, one-sided, or patently
unfair.' Layne [v. Garner], 612 So. 2d [404,] 408
[(Ala. 1992)]."
744 So. 2d at 898. The arbitration provision in the instant
cases places even more of the cost burden for arbitration upon
American Bankers, and, in light of that fact and the record
22
1131244, 1131245, 1131264, 1131384, 1131514
before us, we find the policyholders' complaint of excessive
costs to be disingenuous. The policyholders have failed to
5
meet their burden of proof as to unconscionability;
accordingly, we decline to invalidate the arbitration
provision on that basis.
IV.
The policyholders sued American Bankers, asserting
various claims based on American Bankers' sale to them of
insurance policies allegedly providing more coverage than the
policyholders needed and could ever possibly benefit from.
The
trial courts thereafter
denied
American
Bankers'
subsequent motions to compel arbitration of the claims
asserted against it by the policyholders. We now reverse
those orders denying the motions to compel arbitration, based
We recognize that the arbitration provision in these
5
cases also authorizes the arbitrator to require the
policyholder to pay all arbitration costs if it is determined
that the policyholder's claim "is without substantial
justification." However, similar authority is held by a trial
court judge, who can require a party to pay not only court
costs, but also attorney fees. See § 12-19-272(c), Ala. Code
1975 ("The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or
party brought an action or any part thereof, or asserted any
claim or defense therein, that is without substantial
justification ...." (emphasis added)).
23
1131244, 1131245, 1131264, 1131384, 1131514
upon our holdings that the policyholders manifested their
assent to the arbitration provision in their policies by
continuing to renew the policies, that the sale of the
policies
affected
interstate
commerce,
and
that
the
arbitration provision in the policies is not unconscionable.
These causes are accordingly remanded for the trial courts to
enter new orders granting American Bankers' motions to compel
arbitration.
1131244 –– REVERSED AND REMANDED.
1131245 –– REVERSED AND REMANDED.
1131264 –– REVERSED AND REMANDED.
1131384 –– REVERSED AND REMANDED.
1131514 –– REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Bryan, J., concurs in the result.
Moore, C.J., and Murdock, J., dissent.
24
1131244, 1131245, 1131264, 1131384, 1131514
MOORE, Chief Justice (dissenting).
I respectfully, but strongly, dissent in these appeals
involving predispute arbitration agreements. It is undisputed
that the policyholders never signed the provision American
Bankers Insurance Company of Florida ("American Bankers")
seeks to enforce. Nevertheless, the main opinion holds that
the policyholders ratified the arbitration provision because
it was referenced on the declarations page of the policies and
because the policyholders paid premiums to renew
the
policies.
I cannot agree with that holding for two reasons. First, an
application of the Federal Arbitration Act ("the FAA"), 9
U.S.C. § 1 et seq., which is the basis for enforcing the
"purported"
arbitration
provision
in
this
case,
is
unconstitutional under the Seventh Amendment to the United
States Constitution. Second, because the right to a jury in
this case is a right secured by the Seventh Amendment to the
United States Constitution, any waiver of that right must be
knowing, willing, and voluntary, and the policyholders'
purported waiver in this case did not meet those requirements.
25
1131244, 1131245, 1131264, 1131384, 1131514
This Court now takes the crooked path of precedent in this
case and arrives at a truly erroneous conclusion.
6
I. Seventh Amendment
The Seventh Amendment to the United States Constitution
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
Any law, statute, or rule that takes away the right of a trial
by jury would violate the Seventh Amendment. It bears
repeating that "a law repugnant to the constitution is void."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also U.S. Const. art. VI, cl. 2 ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof ... shall be the supreme Law of the Land ...."
(emphasis added)). The FAA is no exception. See Ex parte
Hagan, 721 So. 2d 167, 174 n.3 (Ala. 1998) ("Certainly, the
See Lorence v. Hospital Bd. of Morgan Cnty., 294 Ala.
6
614, 618-19, 320 So. 2d 631, 634-35 (1975) (reproducing a poem
by Sam Walter Foss to illustrate the absurdity of blindly
following precedent and stating: "The quaint poetic lines of
Sam Walter Foss put in perspective the philosophy of those
courts which feel compelled to sacrifice their sense of reason
and justice upon the altar of the Golden Calf of precedent.").
26
1131244, 1131245, 1131264, 1131384, 1131514
FAA and arbitration clauses cannot be given precedence over
constitutional provisions, such as the Seventh and Fourteenth
Amendments to the Constitution of the United States."). But in
spite of the Constitution's protection of the right to a jury
trial in civil cases, courts have interpreted the FAA to take
away that most valuable right, even before a dispute arises or
any injury or cause of action exists.
Such an interpretation of the FAA is erroneous because
Congress, when it enacted the FAA in 1925, intended it to be
a rule of procedure in federal courts (not applicable to state
courts) involving only a specific class of contracts in
interstate commerce. I am not the only Justice, either on
7
this Court or on the United States Supreme Court, to hold this
view. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), Justice Black, joined by Justice
Douglas and Justice Stewart, argued in his dissent:
"[I]t is clear that Congress in passing the [Federal
Arbitration] Act relied primarily on its power to
create general federal rules to govern federal
I have explained elsewhere that Congress enacted the FAA
7
under its Article III powers to prescribe rules of procedure
for federal courts but that the courts have misinterpreted the
FAA as an exercise of Congress' Article I power over
interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824
So. 2d 668, 677-91 (Ala. 2001) (Moore, C.J., dissenting).
27
1131244, 1131245, 1131264, 1131384, 1131514
courts. Over and over again the drafters of the Act
assured
Congress:
'The
statute
establishes
a
procedure in the Federal courts .... It rests upon
the constitutional provision by which Congress is
authorized to establish and control inferior Federal
courts. So far as congressional acts relate to the
procedure in the Federal courts, they are clearly
within the congressional power.' And again: 'The
primary purpose of the statute is to make enforcible
in
the
Federal
courts
such
agreements
for
arbitration, and for this purpose Congress rests
solely upon its power to prescribe the jurisdiction
and duties of the Federal courts.' One cannot read
the legislative history without concluding that this
power, and not Congress' power to legislate in the
area of commerce, was the 'principal basis' of the
Act. Also opposed to the view that Congress intended
to create substantive law to govern commerce and
maritime transactions are the frequent statements in
the legislative history that the Act was not
intended to be 'the source of ... substantive law.'
As Congressman Graham explained the Act to the
House:
"'It
does
not
involve
any
new
principle of law except to provide a simple
method ... in order to give enforcement
.... It creates no new legislation, grants
no new rights, except a remedy to enforce
an agreement in commercial
contracts and in
admiralty contracts.' ...
"Finally, there are clear indications in the
legislative history that the Act was not intended to
make arbitration agreements enforceable in state
courts or to provide an independent federal-question
basis for jurisdiction in federal courts apart from
diversity jurisdiction. The absence of both of these
effects--which normally follow from legislation of
federal substantive law--seems to militate against
the view that Congress was creating a body of
federal substantive law."
28
1131244, 1131245, 1131264, 1131384, 1131514
388 U.S. at 418-20 (Black, J., dissenting) (footnotes
omitted).
Justice O'Connor, joined by then Justice Rehnquist, made
the same argument in a dissent issued 17 years after Prima
Paint was decided:
"One rarely finds a legislative history as
unambiguous as the FAA's. That history establishes
conclusively that the 1925 Congress viewed the FAA
as a procedural statute, applicable only in federal
courts, derived, Congress believed, largely from the
federal power to control the jurisdiction of the
federal courts.
"In
1925
Congress
emphatically
believed
arbitration to be a matter of 'procedure.' At
hearings on the Act congressional subcommittees were
told: 'The theory on which you do this is that you
have the right to tell the Federal courts how to
proceed.' ...
"....
"If
characterizing the
FAA
as
procedural
was
not
enough, the draftsmen of the Act, the House Report,
and the early commentators all flatly stated that
the Act was intended to affect only federal court
proceedings. Mr. Cohen, the American Bar Association
member
who
drafted
the
bill,
assured
two
congressional subcommittees in joint hearings:
"'Nor can it be said that the Congress of
the United States, directing its own courts
..., would infringe upon the provinces or
prerogatives of the States .... [T]he
question of the enforcement relates to the
law of remedies and not to substantive law.
The
rule
must
be
changed
for
the
29
1131244, 1131245, 1131264, 1131384, 1131514
jurisdiction in which the agreement is
sought to be enforced. ... There is not
disposition therefore by means of the
Federal bludgeon to force an individual
State into an unwilling submission to
arbitration enforcement.'"
Southland Corp. v. Keating, 465 U.S. 1, 25-27 (1984)
(O'Connor, J., dissenting) (footnotes omitted).
Justice Thomas, in a dissent joined by Justice Scalia,
argued the same 11 years after the Supreme Court issued its
opinion in Southland:
"Despite the FAA's general focus on the federal
courts, of course, § 2 itself contains no such
explicit limitation. But the text of the statute
nonetheless makes clear that § 2 was not meant as a
statement of substantive law binding on the States.
After all, if § 2 really was understood to 'creat[e]
federal substantive law requiring the parties to
honor arbitration agreements,' then the breach of an
arbitration agreement covered by § 2 would give rise
to a federal question within the subject-matter
jurisdiction of the federal district courts. Yet the
ensuing provisions of the Act, without expressly
taking away this jurisdiction, clearly rest on the
assumption that federal courts have jurisdiction to
enforce arbitration agreements only when they would
have had jurisdiction over the underlying dispute.
In other words, the FAA treats arbitration simply as
one means of resolving disputes that lie within the
jurisdiction of the federal courts .... [T]he reason
that § 2 does not give rise to federal-question
jurisdiction is that it was enacted as a purely
procedural provision. ..."
30
1131244, 1131245, 1131264, 1131384, 1131514
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 291 (1995)
(Thomas, J., dissenting) (citations omitted).
Finally, Justice Scalia, agreeing that Southland was
wrongly
decided, has told practitioners that he would
overrule
it if he were asked: "I shall not in the future dissent from
judgments that rest on Southland. I will, however, stand ready
to join four other Justices in overruling it, since Southland
will not become more correct over time ...." Allied-Bruce, 513
U.S. at 285 (Scalia, J., dissenting).
As to Justices on this Court, Justice Almon, joined by
Justice Shores, forcefully wrote in 1998:
"I cannot see how the United States Supreme
Court, which exists pursuant to the United States
Constitution, can apply an Act of Congress so as to
undermine the right of trial by jury in the states
that
guarantee
that
right
in
their
state
constitutions.
The
United
States
Constitution
guarantees the right of trial by jury in the Seventh
Amendment. That Amendment was adopted within the
Bill of Rights as a limitation on the Federal
Government.
Furthermore,
the
Tenth
Amendment
provides: 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively,
or to the people.' ...
"How
can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
31
1131244, 1131245, 1131264, 1131384, 1131514
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
constitutional authority."
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting).
Justice Cook, addressing the issue whether the Seventh
Amendment would bar the application of the FAA in state
courts, wrote:
"The fact that the United States Supreme Court
has never held the Seventh Amendment to be binding
on the states through the Fourteenth Amendment, as
it has certain other of the Bill of Rights
guarantees, is irrelevant in this context. This is
because the FAA is not a state law. Thus, the
constitutional deprivation, where one can be shown,
derives from an act of Congress, not a state
legislature. The Seventh Amendment, like the other
Bill of Rights provisions, was ratified as a
limitation on the power of Congress. Clearly,
Congress had no power to deprive a citizen of
Alabama of his right to a trial by jury before the
Fourteenth Amendment was ratified--a fortiori, it
has none now. Therefore, whether the Seventh
Amendment is binding on the states is entirely
irrelevant in any consideration of the FAA."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 934 (Ala. 1997)
(Cook, J., concurring specially).
This Court as a whole has recognized that "any
arbitration agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to a trial by
32
1131244, 1131245, 1131264, 1131384, 1131514
jury." Allstar Homes, 711 So. 2d at 929. I have no doubt that
8
my fellow Justices would agree that any law forcing a party to
arbitration if that party had not previously agreed to
arbitrate would be unconstitutional. But in this case, as in
many other arbitration cases, American Bankers argues that the
policyholders agreed, as a matter of contract, to go to
arbitration if a dispute arose. Thus, the question is whether
a party may validly bargain away his or her right to a trial
by jury before the right accrues. As I explained in my
specially concurring opinion in Ex parte First Exchange Bank,
150 So. 3d 1010, 1025-27 (Ala. 2013) (Moore, C.J., concurring
specially):
"I would hold that the right to a jury trial in
civil cases may not be waived by a party before a
lawsuit has been filed and the right accrues.
Because, '[o]rdinarily, the right to a jury trial is
determined by the cause of action stated,' Ex parte
Western Ry. of Ala., 283 Ala. 6, 12, 214 So. 2d 284,
289 (1968), logically that right cannot be exercised
before a lawsuit is filed. A maxim of the common law
states that 'no right can be barred before it
accrues.' Gould v. Womack, 2 Ala. 83, 88 (1841). See
also Blackmon v. Blackmon, 16 Ala. 633, 636 (1849)
(noting 'two maxims of the common law: 1st--that no
Allstar Homes was criticized in the plurality opinion of
8
Perry v. Hyundai Motor America, Inc., 744 So. 2d 859 (Ala.
1999). However, "[t]he precedential value of the reasoning in
a plurality opinion is questionable at best." Ex parte
Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).
33
1131244, 1131245, 1131264, 1131384, 1131514
right can be barred before it accrues....'); Adams
v. Adams, 39 Ala. 274, 281 (1864); Webb v. Webb's
Heirs, 29 Ala. 588, 601 (1857). One cannot have full
knowledge about what a right entails--about what,
exactly, he or she is waiving--until one fully
understands what is at stake by giving up the right.
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929
(Ala. 1997) (holding that a waiver of the right to
a trial by jury must be made knowingly, willingly,
and voluntarily).
"....
"'A man may not barter away his life or his
freedom, or his substantial rights.... In
a civil case he may submit his particular
suit by his own consent to an arbitration,
or to the decision of a single judge.... In
these aspects a citizen may no doubt waive
the rights to which he may be entitled. He
cannot, however, bind himself in advance by
an agreement, which may be specifically
enforced, thus to forfeit his rights at all
times and on all occasions whenever the
case may be presented.'
"Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445,
451, 22 L.Ed. 365 (1874). I articulated this
principle in my special writing in Ex parte Allen,
798 So. 2d 668, 676–77 (Ala. 2001) (Moore, C.J.,
concurring specially), which involved a predispute
arbitration agreement analogous to the predispute
waiver of a jury trial:
"'Predispute arbitration agreements are
problematic [because they] ... are signed
well before any dispute arises between the
parties. These predispute agreements are
often vague and give little notice to the
signing parties of the kinds of conflicts
that will subject them to arbitration
proceedings and the specific rights they
34
1131244, 1131245, 1131264, 1131384, 1131514
are
surrendering.
Because
predispute
agreements are entered into before the
grounds on which the waiver of rights is
based can be known, there is no real
"meeting of the minds," as contract law
requires between two parties who commit to
a binding agreement.'
"Waiver of a jury trial, to be valid, must occur
after a case has been initiated. 'Agreements entered
into after a controversy arises avoid this problem
[regarding full knowledge of the right being waived]
because when they enter such agreements, the parties
are aware of the kind of complaint they are allowing
to proceed to arbitration in the place of a jury
trial.' Allen, 798 So. 2d at 677 (Moore, C.J.,
concurring specially). ...
"Although outside the arbitration context no
federal
law
attempts
to
preempt
Alabama's
constitutional right to a jury trial, that inviolate
right does not accrue until a lawsuit is filed. No
individual may waive a right to a jury trial in
Alabama indefinitely into the future, for that right
does not accrue if it depends upon future events
that may or may not occur. If a person may not
exercise a jury-trial right until he or she has been
sued, it follows a fortiori that a person may not
waive that right before he or she has been sued.
"A jury-trial right is analogous to the right to
counsel, which cannot be waived until the initiation
of legal proceedings. Art. I, § 6, § 10, Ala. Const.
1901; Davis v. State, 292 Ala. 210, 291 So. 2d 346,
350 (1974); Withers v. State, 36 Ala. 252 (1860).
Other rights granted by the Declaration of Rights
cannot be waived before they accrue. For instance,
a person cannot contractually waive his or her right
to sue until that right has accrued. Art. I, § 10,
§ 11, § 13, Ala. Const. 1901. A person cannot
contractually waive his or her right to bail until
after that right has accrued. Art. I, § 16, Ala.
35
1131244, 1131245, 1131264, 1131384, 1131514
Const. 1901. Likewise, because § 11 declares the
right to a jury trial to be inviolate, an individual
may not waive that right before it accrues."
(Footnotes omitted.)
Based on the authorities cited in my specially concurring
opinion in Ex parte First Exchange Bank, it appears to me
that, at common law, one could not bargain away his or her
right to a jury trial until a cause of action had accrued.
This common-law history was not lost but was carried forward
in the Seventh Amendment.
"'The interpretation of the Constitution of the
United States is necessarily influenced by the fact
that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history.' ...
"'In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly
known to the framers of the Constitution.'"
Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888), and United States v.
Wong Kim Ark, 169 U.S. 649, 654 (1898)). Parties certainly
could have agreed to submit a dispute to arbitration once that
dispute arose. See 3 William Blackstone, Commentaries *16-17.
However, for the reasons stated above, I believe the Framers
of the Seventh Amendment would have viewed any law that
36
1131244, 1131245, 1131264, 1131384, 1131514
attempted
to
enforce
predispute
arbitration
agreements
as
void
under the Seventh Amendment.
Time and time again, the United States Supreme Court has
interpreted the FAA to be a valid exercise of Congress' power
under the Commerce Clause and has therefore required state
courts to apply the FAA. See, e.g., Allied-Bruce Terminix Cos.
v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating,
465 U.S. 1 (1984); and Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967). Justice Houston wrote in Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 38 (Ala.
1998) (Houston, J., concurring specially):
"Although I disagree with the majority of the United
States
Supreme
Court
in
its
Allied–Bruce
interpretation of the Federal Arbitration Act as it
applies to state courts, a majority opinion of that
Court is part of the law I have taken an oath to
uphold. See the second paragraph of Article VI of
the Constitution of the United States."9
However, the second paragraph in Article VI of the United
9
States Constitution says that state judges are bound by the
supreme law of the land, which consists of three things: (1)
the Constitution itself, (2) laws of the United States made
pursuant to the Constitution, and (3) treaties made under
authority of the United States. A Supreme Court opinion is not
the Constitution itself; it is not a law of the United States
made pursuant to the Constitution; and it is not a treaty made
under the authority of the United States--how then does
Article VI bind state judges to uphold Supreme Court opinions?
37
1131244, 1131245, 1131264, 1131384, 1131514
I do not agree that the Supreme Court's interpretation of
the FAA is a law I am required to apply, because that
interpretation does not conform to the United States
Constitution I am sworn to uphold and support. What if a state
court is presented with a constitutional question the United
States Supreme Court has not yet considered? As far as my
research shows, the United States Supreme Court has not yet
considered whether its interpretation of the FAA violates the
Seventh Amendment. As stated above, a federal statute is void
if it violates the Federal Constitution. Marbury, 5 U.S. at
180. As Chief Justice Marshall wrote in Marbury:
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot be
inspected by him?"
Marbury, 5 U.S. (1 Cranch) at 180.
If we declined to apply the Seventh Amendment because
doing so would undermine the United States Supreme Court's
interpretation of the FAA, which is not even a law but merely
a judicial opinion, then we would be violating the Supremacy
Clause, our oaths of office, and every sound principle of
10
11
The Supremacy Clause reads: "This Constitution, and the
10
Laws of the United States which shall be made in Pursuance
38
1131244, 1131245, 1131264, 1131384, 1131514
constitutional law. The Supreme Court's interpretation of a
federal statute does not preclude all lower courts from
considering constitutional questions the Supreme Court has
never considered. Therefore, we must analyze the arbitration
provision in this case by the Seventh Amendment, the Supreme
Court's precedent interpreting the FAA notwithstanding.
II. Knowing, Willing, and Voluntary Waiver
If this Court still believes that predispute arbitration
agreements
are
enforceable,
the
Seventh
Amendment
notwithstanding, then it should remember that, "regardless of
the federal courts' policy favoring arbitration, we find
nothing in the FAA that would permit such a [jury] waiver
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2
(emphasis added).
"I, ........, solemnly swear (or affirm, as
11
the case may be) that I will support the
Constitution of the United States, and the
Constitution of the State of Alabama, so
long as I continue a citizen thereof; and
that I will faithfully and honestly
discharge the duties of the office upon
which I am about to enter, to the best of
my ability. So help me God."
§ 279, Ala. Const. 1901.
39
1131244, 1131245, 1131264, 1131384, 1131514
unless it is made knowingly, willingly, and voluntarily."
Allstar Homes, 711 So. 2d at 929. This rule is a slight
variation of a general rule in contract law that applies when
parties agree in advance to waive their rights to a trial by
jury.
"In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this
Court articulated three factors to consider in
evaluating whether to enforce a contractual waiver
of the right to trial by jury: (1) whether the
waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is
equal; and (3) whether the waiver was intelligently
and knowingly made."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Gaylord Department Stores of Alabama v. Stephens, 404 So. 2d
586, 588 (Ala. 1981), required such a test because "Article I,
§ 11, Constitution 1901, provides that the right to trial by
jury shall remain inviolate," describing the right to trial by
jury as a "precious right."
12
In this case, it is undisputed that the policyholders
never signed an arbitration agreement. The main opinion holds
This rule is not unique to Alabama. For a detailed
12
discussion of how other courts apply this rule, or some slight
variation of it, see Jean R. Sternlight, Mandatory Binding
Arbitration and the Demise of the Seventh Amendment Right to
a Jury Trial, 16 Ohio St. J. on Disp. Resol. 669, 678-90
(2001).
40
1131244, 1131245, 1131264, 1131384, 1131514
that the "declarations page" of the policies notified the
policyholders of the existence of the forms in question,
noting that the written insuring agreement provided that
"[t]his
policy is not complete without the declarations
page."
However, there is no document entitled "declarations page" in
the record. Although I do not dispute that the document relied
upon by the main opinion is typically referred to as a
"declarations page," there is nothing on the page itself that
would alert the policyholders that this page is the critical
document that has been referenced repeatedly throughout the
policies.
Moreover, nothing in plain English on the declarations
page indicates that the policyholders were waiving their
rights to trial by jury. As the main opinion notes, the
declarations page made a brief reference to forms AJ9821EPC-
0608 and N1961-0798. These combinations of letters and
13
numbers appear among eight other similar references in a small
space. There were only three words in English adjacent to
these 10 mysterious combinations of letters and numbers:
I realize that the number on one of the forms was
13
different for Gwendolyn Moody, just as the main opinion does.
See ___ So. 3d at ___ at n.1.
41
1131244, 1131245, 1131264, 1131384, 1131514
"FORMS AND ENDORSEMENTS." (Capitalization in original.) The
main opinion reasons that this should have prompted the
policyholders to investigate further, but nothing on the
declarations page necessarily indicates that the referenced
forms constitute part of the policy. There is no explanation
of what these "forms and endorsements" are, or even whether
they are part of the policy. Regardless of whatever American
Bankers was thinking, I cannot agree that those references on
the
declarations page were sufficient to constitute a
knowing,
willing, or voluntary waiver of the policyholders' inviolate
right to a jury trial.
I fear that the precedential effect of this case will be
disastrous. The main opinion stands for the proposition that
an insurance company may deprive policyholders of their
constitutional rights without their express consent so long as
a vague, mysterious, code-like reference to a form appears
somewhere in the policy. Under this rationale, why would
insurance companies even have to send arbitration forms to
their
policyholders? If the insurance company's failure to
get
the policyholders to sign the arbitration forms in this case
was an accident, what is there to stop an insurance company
42
1131244, 1131245, 1131264, 1131384, 1131514
from doing the same thing intentionally in the next case?
Policyholders are entitled to know in advance what their
obligations are and whether they are expected to give up their
rights, instead of being subjected to a game of insurance-
company "peek-a-boo."
14
III. Conclusion
The right to a trial by jury is a sacred and precious
right.
Sir William Blackstone called it the "best
preservative
of English liberty." 3 William Blackstone, Commentaries *381.
The American Founders declared independence from King George
III, in part, for depriving them of "the benefits of Trial by
Jury." The Declaration of Independence ¶ 20. The Framers
15
included the right to trial by jury in our national Bill of
Rights. The Alabama Constitution says that the right to trial
by jury "shall remain inviolate." § 11, Ala. Const. 1901. Then
Justice Rehnquist called the right to trial by jury "an
Cf. United States v. Virginia, 518 U.S. 515, 574 (1996)
14
(Scalia, J., dissenting) ("The States and the Federal
Government are entitled to know before they act the standard
to which they will be held, rather than be compelled to guess
about the outcome of Supreme Court peek-a-boo.").
As Justice Almon observed in his dissent in McNaughton:
15
"King George's denial of the right of trial by jury was one of
the articles of the Declaration of Independence." McNaughton,
728 So. 2d at 602 (Almon, J., dissenting).
43
1131244, 1131245, 1131264, 1131384, 1131514
important bulwark against tyranny and corruption, a safeguard
too precious to be left to the whim of the sovereign, or, it
might be added, to that of the judiciary." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J.,
dissenting).
How then has this Court held today that the right to
trial by jury may be destroyed through such an inconspicuous
means? I respectfully submit that this is the result of
following bad precedent. If the Supreme Court's precedent
16
The main opinion notes that the policyholders did not
16
invite us to overrule precedent and that this Court is not
inclined to do so without an invitation. This does necessarily
mean that it may not overrule controlling precedent without
being asked to do so. See, e.g., Travelers Indem. Co. of
Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(overruling a case while expressly noting that the Court had
not been asked to do so). Likewise, this Court is not
forbidden from addressing the Seventh Amendment issue or from
considering Allstar Homes even though neither of the parties
raised those claims. "[A] court may consider an issue
'antecedent to ... and ultimately dispositive of' the dispute
before it, even an issue the parties fail to identify and
brief." United States Nat'l Bank of Oregon v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). See also
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) ("'"Appellate review does not consist of
supine submission to erroneous legal concepts even though
none
of the parties declaimed the applicable law below. Our duty is
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or passivity, can force us
to abdicate our appellate responsibility"'" (quoting Forshey
v. Principi, 284 F.3d 1335, 1359 n.20 (Fed. Cir. 2002),
44
1131244, 1131245, 1131264, 1131384, 1131514
interpreting a federal statute conflicts with the United
States Constitution itself, then our duty is not to predict
the next bend in the crooked path by asking, "What would the
Supreme Court do?" Instead, our duty, under oath, is to ask,
"What
does the Constitution say?" Here, that Constitution
says
the policyholders have a right to a jury trial. Furthermore,
one may give up such an invaluable right, even in a case where
an injury has already occurred and a cause of action exists,
only when the waiver of that right is knowing, willing, and
voluntary, and in this case it was not.
I respectfully dissent.
quoting in turn Empire Life Ins. Co. of America v. Valdak
Corp., 468 F.2d 330, 334 (5th Cir. 1972))). This is especially
true when this Court affirms a ruling of a trial court, as I
would do here. See Southern Energy Homes, Inc. v. Gregor, 777
So. 2d 79, 81 (Ala. 2000) ("[T]his Court can affirm the ruling
of a trial court for any valid reason, even one not presented
to or considered by the trial court.").
45 | June 26, 2015 |
00b9d773-b761-44e1-a635-2977d95a8f48 | Ex parte John Lambert. | N/A | 1130071 | Alabama | Alabama Supreme Court | REL:08/28/2015
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, 2015
____________________
1130071
____________________
Ex parte John Lambert
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: John Lambert
v.
Escambia County Board of Education)
(Escambia County Board of Education;
Court of Civil Appeals, 2120350)
MOORE, Chief Justice.
The Escambia County Board of Education ("the Board")
terminated the employment of John Lambert, a tenured teacher,
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as the band director at Flomaton High School for leaving a
pistol in his school office, which was locked. A hearing
officer subsequently affirmed the Board’s decision. Lambert
appealed and the Court of Civil Appeals affirmed the decision
of the hearing officer. Lambert v. Escambia Cnty. Bd. of
Educ., [Ms. 2120350, Oct. 11, 2013] ___ So. 3d ___ (Ala. Civ.
App. 2013). Lambert then petitioned this Court for a writ of
certiorari. We reverse and remand.
I. Facts
In 1973, Lambert graduated from Troy State University
with a degree in music education; he has been teaching music
in various capacities since then. He retired from the United
States Army in 2002 after serving 27 years. Lambert began
teaching at Flomaton High School in 2005, and he taught there
until 2012, when his employment was terminated. During the
course of his teaching career and military service, Lambert
was never charged with neglect of duty, insubordination, or
failure to perform duties in a satisfactory manner. Before
this incident, no school board had ever taken disciplinary
action against Lambert, nor had Scott Hammond, the principal
of Flomaton High School, ever disciplined Lambert.
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On the morning of Friday, May 11, 2012, Lambert and the
Flomaton High School Band were about to depart the school for
a band contest near Atlanta, Georgia. Before getting on the
bus where the students were waiting for Lambert to join them,
Lambert placed a small bag on the desk in his office, which
was in the band room. The bag contained personal items,
including clothing, tools, Lambert’s checkbook, and 10 20-
dollar bills in a folded bank envelope. The bank envelope was
in the side pocket of the bag, which was zipped. Lambert
placed the bag in his office because he did not want to leave
it in his truck overnight while he was away on the band trip.
According to Lambert, he forgot that a loaded Kel-Tec
brand .380 automatic pistol and an additional loaded magazine
were in a small case at the bottom of the bag. There was no
round in the chamber of the pistol. Both the case containing
the pistol and the bag were zipped. The bag was black, and it
was impossible to identify the contents of the bag from the
exterior of the bag. Lambert, who had a permit for the pistol,
testified that both his office door and the door to the band
room were locked when he left for the band contest at
approximately 8:00 a.m.
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Shortly after 12:00 p.m. on May 11, Hammond was notified
that the school custodian had discovered a gun in the band
room. Hammond went to the band room, where the custodian met
him and led him into Lambert's office. The door to Lambert's
office was open, the black bag was open on his desk, and the
case containing Lambert's pistol was visible at the top of the
bag. The case was unzipped about one-half inch. After opening
the case and seeing the pistol, Hammond removed the pistol
from Lambert's office and notified Randall Little, then the
interim superintendent of education for Escambia County, that
a gun had been found on the school premises. At the time of
the discovery of the pistol, only Lambert, the custodian, and
the principal had keys to Lambert's office.
Little told Hammond to meet Lambert at the school when
Lambert returned from his trip with the band. Between 11:30
p.m. on Saturday, May 12, and 12:00 a.m. on the morning of
Sunday, May 13, Hammond met Lambert as instructed. Lambert
acknowledged that the pistol was his and that he had
accidentally left it in his office. Upon inspecting his bag,
Lambert discovered that $80 was missing from the bank envelope
in the side pocket.
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Little placed Lambert on administrative leave effective
May 14, 2012. In a letter dated June 1, 2012, Little, who had
been awarded a two-year contract as superintendent of
education on May 29, notified Lambert that he was recommending
to the Board that Lambert’s employment be terminated "on the
grounds of neglect of duty, insubordination, failure to
perform duties in a satisfactory manner, and/or other good and
just cause." See § 16-24C-6(a), Ala. Code 1975 ("Tenured
1
teachers ... may be terminated at any time because of a
justifiable decrease in the number of positions or for
incompetency,
insubordination,
neglect
of
duty,
immorality,
or
failure to perform duties in a satisfactory manner, or other
good and just cause, subject to the rights and procedures
hereinafter provided."); § 16-24C-6(b), Ala. Code 1975 ("The
termination of a tenured teacher ... shall be initiated by the
recommendation of the chief executive officer in the form of
a written notice of proposed termination to the employee.").
As grounds for the termination of Lambert’s
employment,
Little
cited the Board’s Policy No. 826, which provides: "No
The quoted provisions from Chapter 24C of Title 16 of the
1
Alabama Code of 1975 are part of the Students First Act of
2011, discussed infra.
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employee, with the exception of any law
enforcement
personnel,
will be in possession of an unauthorized weapon on any school
premises, including school vehicles, or at any school-planned
activity. Violation of this policy provision will result in
suspension or dismissal of the employee." The Board adopted
Policy No. 826 pursuant to Regulation 290-3-1.02.(1)(b)3.,
Ala. Admin. Code (State Bd. of Educ.), which provides:
"(b) Effective with the 1995-96 school year and
thereafter, local boards of education must:
"....
"3.
Adopt
and
enforce
a
uniform
policy
prohibiting all persons, other than authorized law
enforcement personnel, from bringing or possessing
any deadly weapon or dangerous instrument on school
property and prescribing specific penalties for
students and school personnel who violate this
policy, notwithstanding any criminal penalties which
may also be imposed."
In the June 1, 2012, notice of proposed termination,
Little advised Lambert of his right to request a hearing
before the Board. Lambert timely requested a hearing, see §
16-24C-6(b), Ala. Code 1975, which was held on July 23, 2012.
At the hearing, Lambert's counsel moved to dismiss the
proceedings on multiple grounds, including a violation of
Lambert's Second Amendment right to keep and bear arms. He
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also moved to suppress evidence based on an alleged violation
of Lambert's Fourth Amendment right to be free from unlawful
search and seizure. The president of the Board denied
Lambert's motions.
Little testified that he recommended the termination of
Lambert's employment, rather than the lesser penalty of
suspension provided for in Policy No. 826, to hold Lambert
accountable for creating a "very unsafe environment." Little
testified that teachers, like students, should be held
accountable,
although
he
acknowledged
that
the
maximum
penalty
for a student who brings a weapon onto the school campus is
expulsion for one calendar year. Lambert, through
counsel,
did
not contest his culpability for violating Policy No. 826 but
argued that his favorable record and contribution to the
Escambia County school system militated in favor
of
suspension
rather than dismissal. Multiple witnesses testified as to
Lambert's good character, and 18 additional witnesses were
prepared to do the same. The Board's attorneys argued that
evidence of Lambert's character was not relevant, while
Lambert's attorney contended that character evidence was
indeed relevant to the question of punishment.
After
receiving
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exhibits and hearing witnesses and arguments of counsel, the
Board terminated Lambert's employment by a vote of six to one.
In its findings of fact, the Board concluded that Lambert had
violated Policy No. 826, but the Board neither referenced
evidence relevant to Lambert's character and prior employment
history nor explained its decision to select dismissal as a
punishment instead of the lesser penalty of suspension.
Lambert timely appealed the Board's decision to a hearing
officer pursuant to § 16-24C-6(e), Ala. Code 1975. The hearing
officer stated in his decision:
"It is clear from the [hearing] transcript that
[Lambert] violated School Board policy by possessing
a firearm on school premises and that the Board had
the authority to terminate him.
"In view of [Lambert’s] service of 37 years and
his exemplary record as evidenced by the many
witnesses examined, it is the opinion of this
Hearing Office [sic] that a lesser penalty than
termination should have been imposed[;] however, the
Student's [sic] First Act of 2011 provides that the
Hearing Officer may affirm or reverse the decision
of the Board only, no modification is authorized.
"THEREFORE, the decision of the Escambia County
School Board to terminate [Lambert] is AFFIRMED."
(Emphasis added.) Lambert
appealed
the decision of the hearing
officer to the Court of Civil Appeals. Lambert argued before
that court, among other things, that Policy No. 826 violated
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the Second Amendment to the United States Constitution and
that his motion to suppress evidence made pursuant to the
Fourth Amendment should have been granted. Lambert
also argued
that the hearing officer accorded too much deference to the
Board's decision and erred by failing to recognize that he was
permitted to reverse the Board's decision and remand the
action for the imposition of a lesser punishment. The Court of
Civil Appeals rejected Lambert's arguments and affirmed the
decision of the hearing officer. Lambert petitioned
this Court
for certiorari review, which we granted.
II. Standard of Review
"[I]t is well established that where the issues
involve only the application of law to undisputed
facts appellate review is de novo. See, e.g., State
Farm Mut. Auto Ins. Co. v. Motley, 909 So. 2d 806,
810 (Ala. 2005). This has been held to be true where
a hearing officer's decision is otherwise subject to
more limited review. Ex parte Wilbanks Health Care
Servs., 986 So. 2d 422, 425 (Ala. 2007) ('Review of
the hearing officer's conclusions of law or
application of the law to the facts is de novo.');
Barngrover v. Medical Licensure Comm'n of Alabama,
852 So. 2d 147, 152 (Ala. Civ. App. 2002) ('The
presumption of correctness does not attach to the
hearing officer's conclusions of law; further, no
presumption of correctness exists when a hearing
officer improperly applied the law to the facts.')."
Ex parte Soleyn, 33 So. 3d 584, 587 (Ala. 2009). See also
Huntsville City Bd. of Educ. v. Stranahan, 130 So. 3d 204, 206
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(Ala. Civ. App. 2013) ("We note that the facts pertaining to
this issue are undisputed, and, therefore, the argument
involves whether the hearing officers properly applied
the
law
to the undisputed facts. Accordingly, this court reviews this
issue de novo."). We are not required to resolve any factual
disputes in order to answer the questions of law presented in
this case. Our review is therefore de novo.
III. Analysis
On appeal, Lambert does not challenge the Board's finding
that he was culpable for violating Policy No. 826; he
challenges only the sanction imposed. Lambert does not
challenge the constitutionality, facially or as applied, of
Policy No. 826. Rather, Lambert raises a question of first
impression: What standard of review must a hearing officer
apply when considering a tenured teacher's appeal under the
Students First Act of 2011, Act No. 2011-270, Ala. Acts 2011,
codified at § 16-24C-1 et seq., Ala. Code 1975 ("the SFA"), of
a decision to terminate the teacher's employment? The parties
dispute the meaning of the provision of the SFA governing the
standard a hearing officer must apply when reviewing a
decision to terminate a teacher's employment: "Deference is
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given to the decision of the employer. A final ruling, either
affirming or reversing the employer, shall be rendered within
five days after the hearing." § 16-24C-6(e), Ala. Code 1975.
The Board argues that the SFA requires hearing officers to
apply the arbitrary-and-capricious standard of review to the
employer's decision. Lambert, on the other hand, argues that
the SFA requires hearing officers to give challenged
decisions
a level of deference that is lower than the extremely high
level of deference mandated by the arbitrary-and-capricious
standard of review. The Board argues that termination of
Lambert's employment was reasonable in light of the risk posed
by Lambert's leaving a loaded gun on the school premises.
Lambert argues that, even if the arbitrary-and-capricious
standard of review is applied, the Board erred by failing to
give meaningful consideration to his favorable record and his
contributions to students and the school system and by
dismissing, rather than suspending, him.
In determining the applicable standard of review under
the SFA for a hearing officer reviewing an employer's
decision, we are guided by the plain language of the SFA,
considered in the context of prior law. In § 16-24C-6(n), Ala.
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Code 1975, the SFA sets forth guidelines for construing § 16-
24C-6:
"The
repealer
provisions
of
Act
2011-270
notwithstanding, and except as expressly provided
otherwise in this chapter, the terms and phrases
used ... in subsection (f) to describe the standards
by which decisions of the employer are to be
reviewed by hearing officers shall be deemed to
carry the meanings traditionally accorded the terms
and phrases by the appellate courts of this state
under prior law."
(Emphasis added.) As the Court of Civil Appeals has noted,
however, "subsection (f) of § 16-24C-6 does not contain a
reference to the 'standards by which decisions of the employer
are to be reviewed by hearing officers.'" Chilton Cnty. Bd. of
Educ. v. Cahalane, 117 So. 3d 363, 367 (Ala. Civ. App. 2012).
Rather, those standards are contained in subsection
(e), which
provides: "Deference is given to the decision of the employer.
A final ruling, either affirming or reversing the decision of
the employer, shall be rendered within five days after the
hearing."
Lambert argues that the reference in § 16-24C-6(n) to
subsection (f) is a drafting error and that the legislature
would have expressly provided for the application of the
arbitrary-and-capricious standard of review to the employer's
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decision had it intended to do so. Lambert argues that the so-
called drafting error in subsection (n) is a vestige of a
bill, which the legislature ultimately rejected, that
expressly provided for review by a hearing officer to
determine whether the employer's action was arbitrary and
capricious or an abuse of discretion. The Board, however,
argues that subsection (n) imports the arbitrary-and-
capricious standard from prior law into the SFA.
"We must take acts of the Legislature as we find
them, unless an obvious error in drafting has
occurred. In Ex parte Welch, 519 So. 2d 517 (Ala.
1987), this Court held:
"'"A statute should be construed so
that effect is given to all its provisions,
so that no part will be inoperative or
superfluous, void or insignificant, and so
that one section will not destroy another
unless the provision is the result of
obvious mistake or error."'
"519 So. 2d at 519 (quoting 2A Norman J. Singer,
Sutherland Statutes and Statutory Construction §
46.06 (4th ed. 1984)). See also Guy H. James Constr.
Co. v. Boswell, 366 So. 2d 271, 273 (Ala. 1979) ('An
obvious error in the language of a statute is self-
correcting. State Farm Automobile Insurance Co. v.
Reaves, 292 Ala. 218, 292 So. 2d 95 (1974). In such
an instance, the court may substitute the correct
word when it can be ascertained from the context of
the act. C. Sands, 2A Sutherland Statutes and
Statutory Construction § 47.36 (1973).')."
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Ex parte Wilson, 854 So. 2d 1106, 1110-11 (Ala. 2002). The SFA
explicitly refers to "terms and phrases used ... to describe
the standards by which decisions of the employer are to be
reviewed by hearing officers." § 16-24C-6(n). Because the
language describing such standards is contained in subsection
(e), we acknowledge the reference to "subsection (f)" in
subsection (n) to be an obvious drafting error. As required by
subsection (n), we now turn to appellate decisions under prior
law to determine what meaning to accord the term "deference"
as that term is used in subsection (e).
The SFA is distinct from its predecessors in two relevant
respects. First, under both the former Teacher Tenure Act, §
16-24-1 et seq., Ala. Code 1975 ("the TTA") (repealed), and
the former Fair Dismissal Act, § 36-26-100 et seq., Ala. Code
1975 ("the FDA") (repealed), "the hearing officer was the
finder of fact, and the hearing officer's decision regarding
disputed facts was entitled to deference." Cahalane, 117 So.
3d at 366. By contrast, under the SFA, the employer--here the
Board--is now the fact-finder, and the hearing officer
functions as an appellate tribunal subject to further
appellate review by the Court of Civil Appeals. See § 16-24C-
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6(e) and (f), Ala. Code 1975. Consequently, the standards by
which appellate courts reviewed the decisions of hearing
officers under the TTA and the FDA are instructive in
determining the standard of review by which hearing officers
must now review the decisions of employers. Second, unlike the
SFA, both the TTA and the FDA expressly provided that the
decision of the fact-finder was subject to review to determine
whether the decision was arbitrary and capricious. See former
§ 16-24-10(b), Ala. Code 1975 (repealed) ("The decision of the
hearing officer shall be affirmed on appeal unless the Court
of Civil Appeals finds the decision arbitrary and capricious
...."); and former § 36-26-104(b), Ala. Code 1975 (repealed)
(same).
Therefore, under the TTA, the deference a reviewing body
afforded the decision of the fact-finder was equivalent to the
arbitrary-and-capricious standard of review.
"[T]he arbitrary-and-capricious standard of review
is 'extremely deferential,' and ... the reviewing
court may not substitute its judgment for that of
the hearing officer. ... [W]here 'reasonable people
could differ as to the wisdom of a hearing officer's
decision[,] ... the decision is not arbitrary.' ...
"'If the
decision-maker
has
"'examined
the relevant data and articulated a
satisfactory explanation for its action,
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including a "rational connection between
the facts found and the choice made,"'" its
decision is not arbitrary.'"
Ex parte Dunn, 962 So. 2d 814, 816-17 (Ala. 2007) (construing
the TTA) (emphasis added; citations omitted). The deference a
reviewing body afforded the fact-finder under the FDA was
likewise the equivalent of the arbitrary-and-capricious
standard of review:
"In
employing
the
arbitrary-and-capricious
standard of review, the legislature intended this
court to be 'extremely deferential' to the hearing
officer's decision in an FDA case. See Ex parte
Dunn, 962 So. 2d 814, 816 (Ala. 2007) (construing
arbitrary-and-capricious
standard
of
review
mandated
by Teacher Tenure Act).
"....
"... Pursuant to the arbitrary-and-capricious
standard of review, this court may 'disagree with
the wisdom of the decision, [but] we may not
substitute our judgment for that of the hearing
officer.' Ex parte Dunn, 362 So. 2d at 823-24."
Bishop State Cmty. Coll. v. Thomas, 13 So. 3d 978, 986 (Ala.
Civ. App. 2008) (emphasis added). Thus, under
the
predecessors
to the SFA, the term "deference" referred to a review to
determine whether the action by the fact-finder was arbitrary
and capricious.
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Lambert
argues
that,
although
the
term
"extreme
deference"
may
be
synonymous
with
the
arbitrary-and-capricious
standard of review, the unmodified word "deference" used in §
16-24C-6(e) encompasses a spectrum of standards of review,
some more deferential than others. Lambert argues that by
abandoning in the SFA the express requirement of the
application of arbitrary-and-capricious review found in the
TTA and the FDA, the legislature provided that hearing
officers
are
to
give
challenged
decisions
"moderate"
deference
while
"retain[ing]
the
power to
exercise
independent
judgment."
We reject Lambert's argument. The SFA explicitly directs
us to apply "meanings traditionally accorded the terms and
phrases by the appellate courts of this state under prior
law," § 16-24C-6(n), in determining the applicable
standard
of
review. We are not inclined to force a distinction between
"deference" and "extreme deference" in order to manufacture a
hybrid standard of review when the SFA mandates that we apply
traditional legal definitions. In the context of appellate
review
of
teacher-termination
cases,
"deference"
traditionally
referred to an arbitrary-and-capricious standard of review,
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whether or not the word "deference" was modified by the
adjective "extreme."
We agree with the Court of Civil Appeals that applying
the arbitrary-and-capricious standard of review to challenged
decisions in teacher-termination cases accords with the
legislature's stated purposes in enacting the SFA:
"[T]he legislature has specifically stated that it
intended for the SFA to '[r]estor[e] primary
authority and responsibility for maintaining a
competent educational workforce' to school boards,
§ 16-24C-2(2), [Ala. Code 1975,] and further stated
that its objective was to '[e]liminat[e] costly,
cumbersome, and counterproductive legal challenges
to routine personnel decisions by simplifying
administrative adjudication and review of contested
personnel decisions.' § 16-24C-2(5)[, Ala. Code
1975]. Because we have applied the arbitrary and
capricious standard to teacher-termination appeals
arising under the SFA based on its historical
application in the fact-finder's decisions in
teacher-termination cases, see Cahalane, 117 So. 3d
at 366 (collecting cases), and because of what we
perceive to be the legislature's intent that
personnel decisions of school boards be given
deference to support the legislature's stated
objective in the SFA of placing control over
maintaining a competent teaching force with those
boards, we reject [the teacher's] contention that
the declaration in the SFA that the decision of a
school board be given deference indicates that the
legislature desired that a less deferential standard
of review than 'arbitrary and capricious' govern a
hearing officer's review of an appeal from a school
board's decision."
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Huntsville City Bd. of Educ. v. Jacobs, [Ms. 2130603, Dec. 19,
2014] ___ So. 3d ___, ___ (Ala. Civ. App. 2014). We hold that
the arbitrary-and-capricious standard of review applicable to
appellate courts reviewing decisions under the TTA and the FDA
now applies to hearing officers' review of employers'
decisions under the SFA. The SFA provides that "[a] final
ruling, either affirming or reversing the employer, shall be
rendered" by the hearing officer. § 16-24C-6(e). "When a
hearing officer chooses [a penalty] option other than the
cancellation voted for by a board of education, the hearing
officer has 'reversed the decision' of the board." Ex parte
Wilson, 984 So. 2d 1161, 1166 (2007). The Court of Civil
Appeals correctly recognized in its decision below that
"[i]mplicit in giving the hearing officer the authority to
reverse a Board's decision is the power to remand the action."
Lambert, ___ So. 3d at ___. Under
the
arbitrary-and-capricious
standard of review, if a hearing officer determines that the
sanction imposed by an employer is arbitrary and capricious,
the hearing officer may remand the matter with instructions to
the employer to impose a lesser penalty.
IV. Conclusion
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In light of the fact that this Court has resolved, as a
material question of first impression, the standard of review
a hearing officer is to apply to an employer's decision to
terminate the employment of a tenured teacher, we reverse the
judgment of the Court of Civil Appeals and remand the cause to
that court to, in turn, reverse the judgment of the hearing
officer and remand the cause to him with instructions to
review the sanction imposed against Lambert under the
arbitrary-and-capricious standard of review as that standard
is articulated in this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Parker, Murdock, and Main, JJ., concur.
Stuart, Bolin, Shaw, Wise, and Bryan, JJ., concur in part
and dissent in part.
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SHAW, Justice (concurring in part and dissenting in part).
I agree that, in order to afford the deference required
by Ala. Code 1975, § 16-24C-6(e), a hearing officer, in
2
reviewing a school board's decision, must apply
the
"arbitrary
and capricious" standard. See Cox v. Mobile Cnty. Bd. of
School Comm'rs, 157 So. 3d 897 (Ala. Civ. App. 2013), and
Chilton Cnty. Bd. of Educ. v. Cahalane, 117 So. 3d 363 (Ala.
Civ. App. 2012). I also agree that the decision of the
Escambia County School Board ("the Board") that John Lambert
violated the Board's Policy No. 826 should be reviewed under
that standard. That said, I respectfully dissent from this
Court's decision to reverse the Court of Civil Appeals'
judgment and remand this case.
According to the legislature, the "purpose" of the
Students First Act is to "[r]estor[e] primary authority and
responsibility for maintaining a competent educational
workforce" to school boards, and to "[e]liminat[e] costly,
cumbersome, and counterproductive legal challenges to routine
personnel
decisions
by
simplifying
administrative
adjudication
and review of contested personnel decisions." Ala. Code 1975,
Section 16-24C-6 is part of the Students First Act of
2
2011. Ala. Code 1975, § 16-24C-1 et seq.
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§ 16-24C-2(2) and (5). The review mechanism of § 16-24C-6(e),
which, compared to previous law, limits the hearing officer's
power of review, is part of effectuating that purpose. As
the main opinion notes, under prior applicable law--the
Teacher Tenure Act and the Fair Dismissal Act--the hearing
officer was the finder of fact, and his or her decision was
entitled to deference. The Students First Act has shifted
that role to school boards and with it the deference afforded
a board's decision.
Any attempt to expand a hearing officer's power at the
expense of a school board's does not provide the deference
required by § 16-24C-6(e). Failing to require deference to a
school board's decision on the punishment given for a
violation of a policy adopted by a board effectively nullifies
any deference afforded the board's decision on whether a
policy is violated in the first place. It shifts the "primary
authority and responsibility for maintaining a competent
educational workforce" from school boards back to hearing
officers
and
revives
"costly,
cumbersome,
and
counterproductive legal challenges to routine personnel
decisions."
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Here, I see no need for this case to be returned to the
hearing officer because the Board's decision was not, as a
matter of law, arbitrary and capricious. In describing the
arbitrary-and-capricious standard, this Court has stated that
"the reviewing court may not substitute its judgment" for that
of the decision-maker. Ex parte Dunn, 962 So. 2d 814, 816
(Ala. 2007). Further,
"where 'reasonable people could differ as to the
wisdom of a [decision maker's] decision[,] ... the
decision is not arbitrary.' [Board of Sch. Comm'rs
of Mobile County v. ]Dunn, 962 So. 2d [805,] 809
[(Ala. Civ. App. 2006)]. ...
"'If the
decision-maker
has
"'examined
the relevant data and articulated a
satisfactory explanation for its action,
including a "rational connection between
the facts found and the choice made,"'" its
decision is not arbitrary. See Alabama
Dep't of Human Res. v. Dye, 921 So. 2d
[421, 426 (Ala. Civ. App. 2005)](quoting
Prometheus Radio Project v. FCC, 373 F.3d
[372, 389 (3d Cir. 2004)] (quoting in turn
Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962))).'"
Ex parte Dunn, 962 So. 2d at 816-17 (quoting Board of Sch.
Comm'rs of Mobile Cnty. v. Dunn, 962 So. 2d 805, 810 (Ala.
Civ. App. 2006)). "Pursuant to the arbitrary-and-capricious
standard of review, this court may 'disagree with the wisdom
of the decision, [but] we may not substitute our judgment for
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that of the [decision-maker].' Ex parte Dunn, 962 So. 2d at
823-24." Bishop State Cmty. Coll. v. Thomas, 13 So. 3d 978,
986 (Ala. Civ. App. 2008).
Termination of employment is specifically provided as a
possible consequence for a violation of Policy No. 826, and
such a violation indisputably occurred in this case.
Additionally, the Board could have concluded that Lambert's
failure to follow the policy created an extremely dangerous
condition and that neither Lambert's lack of malicious intent
nor the failure of an unfortunate outcome negated that
reality. Although it is true that the firearm might have been
locked inside an office, this happened by chance: The firearm
was not intentionally secured -- Lambert did not even know the
firearm was in his bag. Further, this did not prevent the
discovery of the firearm by an apparently "unauthorized"
individual. I can see how reasonable people could differ as
to the wisdom of the Board's decision to terminate Lambert's
employment; however, I see no lack of a "rational connection"
between the offense in this case and the Board's choice.
Although I believe that the Board could have chosen to suspend
Lambert instead of terminating his employment, the latter
24
1130071
choice was not arbitrary and capricious. Although I might not
agree with the wisdom of the Board's decision, neither the
hearing officer, nor the Court of Civil Appeals, nor this
Court may "substitute [its] judgment for that of" the Board.
Stuart and Bolin, JJ., concur.
25
1130071
BRYAN, Justice (concurring in part and dissenting in part).
This case concerns the standard of review a hearing
officer is to apply in reviewing an employer's decision to
dismiss an employee under the Students First Act, § 16–24C–1
et seq., Ala. Code 1975 ("the SFA"). I agree with the main
opinion that we should reverse the hearing officer's decision
and remand the case for the hearing officer to apply the
proper standard of review; however, I disagree with the main
opinion regarding the proper standard of review. The SFA
requires a hearing officer to give "deference" to an
employer's decision to dismiss an employee. § 16-24C-6(e),
Ala. Code 1975. It is unclear precisely what standard of
review the legislature meant to establish by simply using the
term "deference." Unfortunately, "[t]he concept of deference
is admittedly fuzzy, embracing everything from a perfunctory
nod to craven acquiescence." Frank M. Coffin, On Appeal:
Courts, Lawyering, and Judging 260 (W.W. Norton & Co. 1994).
The main opinion concludes that in the SFA the legislature in
fact established the arbitrary-and-capricious standard of
review; however, I interpret the SFA as establishing a less
deferential standard.
26
1130071
First, I note that the arbitrary-and-capricious standard
is "extremely" deferential, Ex parte Dunn, 962 So. 2d 814, 816
(Ala. 2007); however, the legislature here instructed that an
employer's decision merely be given "deference." The two acts
that the SFA replaced, the former Teacher Tenure Act and the
former Fair Dismissal Act, both expressly used the arbitrary-
and-capricious standard. Had the legislature intended
to
have
the arbitrary-and-capricious standard apply also to actions
under the SFA, it easily could have done so, but it chose not
to. Further, the legislature rejected a proposed version of
the SFA that expressly established the arbitrary-and-
capricious standard. "[A] strong inference is established by
the Legislature's deletion during the legislative process of
language in prior versions of the bill." Ex parte Emerald
Mountain Expressway Bridge, L.L.C., 856 So. 2d 834, 840 (Ala.
2003). These factors suggest that the "deference" mandated by
the SFA corresponds to a standard other than the extremely
deferential arbitrary-and-capricious standard.
With
the
arbitrary-and-capricious
standard
off
the
table,
I conclude that the legislature intended to create a standard
of review similar to the "clearly erroneous" standard of
27
1130071
review, a common standard in federal courts. The "clearly
erroneous" standard is deferential, but not as deferential as
the arbitrary-and-capricious standard. See Paul R. Verkuil,
An Outcomes Analysis of Scope of Review Standards, 44 Wm. &
Mary L. Rev. 679, 687-88 (2002). "'A finding is "clearly
erroneous" when although there is evidence to support it, the
reviewing court [or, as here, a hearing officer,] on the
entire evidence is left with a definite and firm conviction
that a mistake has been committed.'" Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 394-95 (1948)). I see
the standard under the SFA as being similar. This standard
should have some flexibility in its application. As in the
"clearly erroneous" standard, "the presumption of correctness
that attaches to factual findings is stronger in some cases
than in others." Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 500 (1984). "'The conclusiveness of a "finding
of fact" depends on the nature of the materials on which the
finding is based.'" 466 U.S. at 500 n.16 (quoting Baumgartner
v. United States, 322 U.S. 665, 670-71 (1944)). Although the
same standard would apply "to findings based on documentary
28
1130071
evidence as to those based entirely on oral testimony, ... the
presumption has lesser force in the former situation than in
the latter." Id. at 500.
I would reverse the hearing officer's decision and remand
the case for the hearing officer to consider the employer's
decision in light of the standard discussed above rather than
the arbitrary-and-capricious standard.
Wise, J., concurs.
29 | August 28, 2015 |
29b05976-7d91-4d28-89f8-a667f09305d6 | Alabama Corrections Institution Finance Authority v. Wilson | N/A | 1131177 | Alabama | Alabama Supreme Court | REL: 09/25/2015
REL: 12/4/2015 as modified on denial of rehearing
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, 2015
____________________
1131177
____________________
Alabama Corrections Institution Finance Authority
and Kim Thomas, as the ex officio vice president
of Alabama Corrections Institution Finance Authority
v.
Albert Wilson et al.
Appeal from Montgomery Circuit Court
(CV-11-1233)
MURDOCK, Justice.
1131177
The Alabama Corrections Institution Finance Authority
("ACIFA") and its ex officio vice president Kim Thomas appeal
1
from a judgment entered on a jury verdict awarding $5 million
in compensatory damages to Albert Wilson, Donald Simmons,
Rufus Barnes, Bryan Gavins, Joseph Danzey, and a class of
current and former nonexempt correctional officers ("the
correctional officers") employed by the Alabama Department of
Corrections ("ADOC"). We reverse the judgment of the
Montgomery Circuit Court.
I. Facts and Procedural History
Section 14-2-2, Ala. Code 1975, states that the
legislature created ACIFA
"as a public corporation for the purposes of
acquiring
land,
constructing
and
leasing
correctional
institutions,
buildings
and
facilities,
disposing of the Kilby property by sale or lease and
to vest such corporation with all powers, authority,
rights, privileges and titles that may be necessary
to enable it to accomplish such purpose."
Rodney Blankenship, chief fiscal officer for ADOC, testified
at trial in this case that "[b]y statute the Department of
While this appeal was pending, Jefferson S. Dunn, on
1
April 1, 2015, succeeded Thomas as commissioner of the Alabama
Department of Corrections and thus as ex officio vice
president of ACIFA. He was automatically substituted as an
appellant. See Rule 43(b), Ala. R. App. P. We have not
restyled the appeal to reflect that substitution.
2
1131177
Corrections cannot incur debt. So this organization [ACIFA]
was set up as a separate public entity for financing, and
[ADOC] passed property through so [ACIFA] could pledge it, and
[ACIFA] passed the money back through and [ADOC] made payments
on the debt." Blankenship further explained that ADOC pays
ACIFA rent for the prison facilities, which ACIFA then uses to
pay the debt service on the bonds it issued to finance the
construction of the prison facilities. Blankenship stated
that he could not remember the last time ACIFA issued bonds,
but that it was probably at least 10 years ago.
Section 14-2-6, Ala. Code 1975, provides that the
governor is the president of ACIFA, the commissioner of ADOC
is the vice president, the State finance director is the
secretary, and the State treasurer is the custodian of the
ACIFA's funds but "shall not be a member of the authority."
That section also provides that "[t]he members of the
authority shall constitute all the members of the board of
directors of the authority, which shall be the governing body
of the authority."
3
1131177
This is the second time this case has come before this
Court. In Ex parte Thomas, 110 So. 3d 363 (Ala. 2012), the
Court explained:
"On August 17, 2010, Albert Wilson, Rufus
Barnes, Joseph Danzey, Bryan Gavins, and Donald
Simmons, all of whom are employed by ADOC as
correctional officers (hereinafter referred to
collectively as 'the correctional officers'), sued
ADOC and its then commissioner Richard Allen in the
Barbour Circuit Court, alleging that ADOC was
violating its own regulations and state law in the
manner in which it: (1) compensated correctional
officers for overtime; (2) restricted the way
correctional officers were allowed to use earned
leave; and (3) paid correctional officers the daily
subsistence
allowance
provided
by
law.
The
plaintiffs also sought class certification on behalf
of
all
other
similarly
situated
correctional
officers employed by ADOC and requested injunctive
relief, as well as money damages, to include backpay
with interest, punitive damages, and litigation
costs and expenses, including attorney fees.
"On September 22, 2010, ADOC and Allen moved the
trial court to dismiss the correctional officers'
claims for money damages, arguing that ADOC and
Allen were entitled to State immunity under Article
I, § 14, Ala. Const. 1901. Before the trial court
ruled on that motion, however, the correctional
officers filed an amended complaint adding ACIFA as
a defendant and asserting claims against Allen in
his capacity as vice president of ACIFA as well. On
December 21, 2010, the trial court entered an order
denying ADOC and Allen's September 22 motion to
dismiss, without stating its rationale.
"Thereafter, ADOC, ACIFA, and Allen filed an
answer
to
the
correctional
officers'
amended
complaint. On March 3, 2011, ADOC, ACIFA, and
4
1131177
Thomas, who succeeded Allen as commissioner of ADOC
and vice president of ACIFA on January 17, 2011,
moved the trial court to transfer the action to the
Montgomery Circuit Court pursuant to § 6–3–9, Ala.
Code 1975 .... On or about May 24, 2011, the
Barbour Circuit Court granted the motion, and the
case was transferred to the Montgomery Circuit
Court.
"The trial court thereafter approved class
certification for the action, and, on April 17,
2012, ADOC, ACIFA, and Thomas moved the trial court
to enter a partial summary judgment in their favor,
arguing that the correctional officers' claims
seeking money damages from ADOC were barred by the
doctrine of State immunity and that the claims
against ACIFA had no factual or legal basis. The
correctional officers filed a response, arguing that
the summary-judgment motion was without merit and
that, in any event, the Barbour Circuit Court had
already rejected the State-immunity argument before
the case was transferred to the Montgomery Circuit
Court. On May 17, 2012, the trial court conducted
a hearing on the summary-judgment motion and, later
that day, entered an order denying the motion
without stating its rationale. ADOC, ACIFA, and
Thomas now petition this Court for a writ of
mandamus directing the trial court to vacate its
order denying their summary-judgment motion and to
enter an order granting the same."
110 So. 3d at 364-65.
In Ex parte Thomas, this Court concluded that ADOC and
Thomas in his official capacity as the commissioner of ADOC
were entitled to State immunity under § 14, Ala. Const. 1901,
and thus that the claims against them seeking money damages
were due to be dismissed. The Court denied mandamus relief to
ACIFA and Thomas, in his
[substituted p. 5]
1131177
capacity as vice president of ACIFA, which they sought
following the trial court's denial of their motion for a
summary judgment. In that regard, the Court explained:
"ACIFA and Thomas have not argued that they are
entitled to State immunity on the claims asserted
against ACIFA and against Thomas in his capacity as
vice president of ACIFA; rather, they argue that
they are entitled to a summary judgment because
'they
have
no
connection
whatsoever
to
the
[correctional officers'] claims' because ACIFA has
no role in personnel or payroll matters affecting
ADOC employees. They assert that ACIFA exists
solely to facilitate the finance and acquisition of
land, institutions, and facilities for ADOC, and
they argue that the lack of any connection between
the
correctional
officers'
claims
and
ACIFA
effectively renders those claims nonjusticiable;
therefore, review of the trial court's denial of
their summary-judgment motion on a petition for the
writ of mandamus is available because, they argue,
the issue of subject-matter jurisdiction has been
raised. See University of South Alabama Med. Ctr.
v. Mobile Infirmary Ass'n, 89 So. 3d 735, 740-41
(Ala.
2011)
(stating
that
justiciability
is
jurisdictional), and Ex parte Flint Constr. Co., 775
So. 2d 805 (Ala. 2000) (holding that the question of
subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus).
"We disagree, however, that a justiciability
issue has been raised. '"Concepts of justiciability
have
been
developed
to
identify
appropriate
occasions for judicial action .... The central
concepts often are elaborated into more specific
categories of justiciability -- advisory opinions,
feigned and collusive cases, standing, ripeness,
mootness, political questions, and administrative
questions."' Black's Law Dictionary 943-44 (9th ed.
2009) (quoting 13 Charles Alan Wright et al.,
6
1131177
Federal Practice & Procedure § 3529, at 278-79 (2d
ed. 1984)). ...
"In this case, however, ACIFA and Thomas are
essentially arguing that the correctional officers'
claims against ACIFA have no basis because, they
claim, ACIFA has nothing to do with the manner in
which correctional officers are compensated or the
funds with which they are compensated. This
argument goes to the merits of the correctional
officers' claims, and, regardless of whatever merit
the argument might have, it does not raise a
justiciability issue. The trial court's denial of
the motion for a summary judgment as to ACIFA and
Thomas in his capacity as vice president of ACIFA is
accordingly not subject to mandamus review. See Ex
parte Alabama State Bd. of Chiropractic Exam'rs, 11
So. 3d 221, 226–27 (Ala. Civ. App. 2007) (declining
to address petitioners' argument that they were
entitled to a writ of mandamus on the ground that
the plaintiffs' claims had no merit). Thus, we
review only ADOC and Thomas's argument that the
correctional officers' claims against them for money
damages are barred by principles of State immunity."
110 So. 3d at 366. The Court remanded the action to the trial
court for litigation of the correctional officers' claims
against ACIFA and Thomas in his capacity as vice president of
ACIFA.
The correctional officers asserted claims of conversion,
unjust enrichment, money had and received, work and labor
done, and injunctive relief against ACIFA and Thomas in his
capacity as the ex officio vice president of ACIFA. The
claims stemmed from a decision by ADOC in October 2008 to
7
1131177
change the shifts correctional officers worked at 7 ADOC
prison facilities from 8-hour shifts to 12-hour shifts. The
2
correctional officers alleged that the change resulted in
their not being paid certain overtime wages they say were due
to them.
At the conclusion of the trial of the correctional
officers' claims against ACIFA and Thomas, ACIFA and Thomas
moved for a judgment as a matter of law on the ground that
there was no evidence of a connection between ACIFA and the
payment of the correctional officers' wages. The trial court
reserved ruling on the motion until after the close of all the
evidence. Following the presentation of witnesses by ACIFA
and Thomas, ACIFA and Thomas renewed their motion for a
judgment as a matter of law. The trial court denied the
motion, explaining:
"After listening to all the evidence, I am
satisfied the controversy does not exist any more.
I think the last witness made it perfectly clear
that all of this has been done perfectly legal. If
you had gone to the Personnel Department to seek
that information, we might not have spent this
considerable amount of time. I respect that your
clients have misunderstood the process [regarding
calculation of their compensation] and now, after
Bibb County Correctional Facility was already operating
2
on 12-hours shifts at that time.
8
1131177
listening to this last witness from the Personnel
Board, the reason they misunderstood it, it is
apparently clear that these time sheets don't show
this, and it is the Personnel Board that completes
the payroll, and that's where the information lies.
So I can understand their confusion and, indeed,
your confusion.
"The very arguments that you just made for
ACIFA, yes, they are a legal suable entity. But the
very arguments that you just made tying them to the
Department of Corrections, if you were ever
ultimately to win anything, will result in the
Supreme Court throwing out any verdict because they
will
say
that
ACIFA
and
the
Department
of
Corrections are both protected by immunity. That's
going to happen.
"[Counsel for correctional officers]: Well, I
have the right to have that happen to me, Your
Honor.
"THE COURT: You certainly do, and I am going to
give you that right. I don't think you have met
your burden of proof, but we have been through three
days of testimony. We have got a jury here, and I
am going to let them render some verdict. That's
exactly right."
(Emphasis added.)
The jury returned a verdict of $5 million in compensatory
damages against ACIFA and Thomas and in favor of the
correctional officers. Following the entry of the verdict,
ACIFA and Thomas filed a Rule 50(b), Ala. R. Civ. P., motion
in which they argued extensively that they were entitled to a
judgment as a matter of law because, they said, the evidence
9
1131177
demonstrated that ACIFA had nothing to do with the personnel
and payroll policies giving rise to the
correctional
officers'
claims. ACIFA and Thomas concluded the motion by stating:
"Accordingly, ACIFA respectfully requests this Court enter a
judgment in its favor as to immunity or as to the foregoing
arguments made in this brief." The trial court denied the
motion.
ACIFA and Thomas appeal the trial court's denial of the
motions for a judgment as a matter of law and the judgment
entered on the jury's verdict.
II. Standard of Review
"'When reviewing a ruling on a motion for a JML
[judgment as a matter of law], this Court uses the
same standard the trial court used initially in
granting or denying 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 or the issue to be submitted to the
jury for a factual resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). For actions filed
after June 11, 1987, the nonmovant must present
"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
10
1131177
the light most favorable to the nonmovant and
entertains such reasonable inferences as the jury
would have been free to draw. Motion Industries,
Inc. v. Pate, 678 So. 2d 724 (Ala. 1996). 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).'"
Lafarge N. Am., Inc. v. Nord, 86 So. 3d 326, 332 (Ala. 2011)
(quoting Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830–31
(Ala. 1999)).
III. Analysis
ACIFA and Thomas first contend that ACIFA should be
entitled to sovereign immunity and thus that the correctional
officers' action against them should have been dismissed. To
make this argument, ACIFA and Thomas understand that they must
overcome this Court's decision in Rodgers v. Hopper, 768
So. 2d 963 (Ala. 2000), which they ask this Court to overrule.
Rodgers concerned a correctional officer at St. Clair
Correctional Facility who had been stabbed by an inmate at the
facility. The correctional officer sued ADOC, ADOC's
commissioner,
ACIFA,
ACIFA's
vice
present
(the
commissioner
of
ADOC), and the warden of the facility. The Rodgers Court
concluded that ADOC, ADOC's commissioner, and the warden of
the facility were entitled to sovereign immunity. After a
11
1131177
lengthy analysis, however, the Rodgers Court concluded that
ACIFA and its officers were not entitled to sovereign immunity
because ACIFA was not a governmental agency for purposes of
sovereign immunity. See Rodgers, 768 So. 2d at 966-67.
We deem it unnecessary in this case, however, to evaluate
the constitutional question whether ACIFA is entitled to
sovereign
immunity
because
the
correctional
officers
failed
to
establish any connection between ACIFA and the manner in which
correctional officers are compensated or the funds with which
they are compensated. This failure to prove any connection
between ACIFA and the harm allegedly suffered by the
correctional officers means that regardless of whether ACIFA
ultimately has or does not have sovereign immunity, ACIFA and
Thomas should have been granted a judgment as a matter of law.
To begin with, there is no dispute that ADOC, not ACIFA,
sets the personnel policies, including the duration and
structure of the shifts worked by correctional officers that
underlie the correctional officers' claims in this case.
Stephen Brown, associate commissioner for administration of
ADOC, testified that former ADOC Commissioner Richard Allen
asked him to study the issue of what could be done to help
12
1131177
ADOC cover its staffing shortage and that the most feasible
solution of those examined was the challenged shift change.
Specifically, after a six-month study, Allen
made the
decision
to require all ADOC prison facilities to be staffed through
12-hour shifts rather than 8-hour shifts. Thomas testified
that when he became ADOC commissioner he determined it was in
ADOC's best interest to retain the 12-hour shifts and that he
did not foresee that changing. There was no testimony,
evidence, or argument at trial suggesting that ACIFA had
anything to do with the shift-change decision.
The evidence introduced by the correctional officers in
support of their position that "ACIFA is intermingled within
the ADOC" fell into three categories. First, the correctional
officers noted that the officers of ACIFA are State officials.
Specifically, as noted in the rendition of the facts, by
statute ACIFA's officers and board membership consist of the
governor as president, the commissioner of ADOC as vice
president, and the State finance director as secretary.
Additionally, the State treasurer is the custodian of ACIFA's
funds.
13
1131177
The mere fact that the commissioner of ADOC is also
ex officio the vice president of ACIFA or that the State
finance director is also the secretary of ACIFA does not
establish that ACIFA has anything to do with correctional
officers' pay. It simply establishes that those State
officials have multiple responsibilities. Both Thomas and
Brown testified that former ADOC Commissioner Allen made the
decision to change correctional officers' shifts from 8 hours
to 12 hours in his capacity as ADOC commissioner. Thomas
testified that he made the decision to maintain the shift
change in his capacity as ADOC commissioner. There was no
evidence presented that the ADOC commissioners made these
decisions on behalf of ACIFA. Likewise, testimony established
that the Department of Finance is involved with how
correctional officers are paid, but there was no evidence
indicating
that
ACIFA
had
any
connection
to
this
responsibility of the Department of Finance.
Uncontradicted
testimony
from
multiple
witnesses
affirmed
that the roles of the ADOC commissioner and the State finance
director as officers and members of ACIFA did not translate to
ACIFA's having any involvement in the manner in which
14
1131177
correctional officers are paid. Sandra Collins, who is
responsible for managing and directing the payroll activities
and payroll-reconciliation processes for the State in her
capacity as State payroll administrator in the comptroller's
office, which is a part of the Department of Finance,
testified:
"Q. Does [the Department of Finance] have any
connection whatsoever with ACIFA?
"A. No.
"....
"Q. Have you ever made any payment on behalf of
[ACIFA] from the Comptroller's Office?
"A. No.
"Q. To your knowledge, has there ever been any
payments made on their behalf?
"A. Not to my knowledge."
Kelly Butler, assistant State budget officer in the
Department of Finance, testified:
"Q. Does [ACIFA] receive any funding from the State
of Alabama?
"A. No, sir, it does not.
"Q. To your knowledge, does it have any employees?
"A. No, to my knowledge, it does not.
15
1131177
"Q. Do you know if it gets any State funds, to your
knowledge?
"A. The only funds that it receives, to my
knowledge, are rental income from the Department of
Corrections in order to pay the debt service.
"Q. Do you know whether or not it has any
connection whatsoever with the payment of the wages
of correctional officers?
"A. It is not involved in the payment of wages.
"....
"Q. Have you ever received a budget request from
ACIFA?
"A. To my knowledge, we have not. ACIFA is not a
budgeted agency."
ADOC Commissioner Thomas testified:
"Q. Do you have any knowledge as to any connection,
commingling, or anything that ACIFA has to do with
the day-to-day functions, essentially the payment of
correctional officers, that ACIFA has anything to do
with that?
"A. No, sir. ACIFA does not have any dealings
whatsoever in the day-to-day operations of our
prison system, the facility, or the compensation of
any employees, including correctional officers.
"Q. Now, the Department every year goes to the
Legislature through the Governor with a submission
of a budget. Is that correct?
"A. Yes, sir.
"Q. And does that budget include compensation for
wages for the correctional staff?
16
1131177
"A. It does.
"Q. And if granted the budget, under the budget the
amount[s] granted go towards that compensation on
behalf of the Alabama Department of Corrections?
"A. Yes. A portion of that total budget dollars is
spent towards compensating employees, yes."
ADOC Associate Commissioner for Administration Brown
testified that ACIFA has nothing to do with ADOC's budget,
including correctional officers' pay.
"Q. There has been allegations that ACIFA has some
intermingling or commingling or connection with ADOC
in the payment of correctional officers' wages. Is
that true?
"A. No.
"Q. Does ACIFA have anything to do --
"A. No, our funds don't go through ACIFA.
"Q. Sir?
"A. Our funds do not go through ACIFA.
"Q. Do they come from ACIFA?
"A. No. There is no association of ACIFA on any of
our general operating funds.
"Q. Is part of your responsibility to work up
yearly budgets for [ADOC]?
"A. Yes. The accounting/finance guys report to me.
17
1131177
"Q. Is ACIFA ever considered in working up that
budget?
"A. I have been with [ADOC] seven years. I have
never done anything with ACIFA."
ADOC Chief Fiscal Officer Blankenship confirmed Brown's
testimony on the matter:
"Q. Does ACIFA, other than that, have anything to
do with the day-to-day functions of [ADOC]?
"A. No, sir. It has no employees. It has nothing
to do other than provide financing. That's it.
"Q. There has been testimony that ACIFA is
commingling with ADOC. Is that true?
"A. No, sir. We pay the payments on their behalf.
We passed land titles through. But, no, sir. There
is no money for ACIFA unless we give them the money
to make the payment for the debt.
"Q. Do they have any connection whatsoever with the
payment of wages to the correctional officers?
"A. No, sir."
State payroll auditor Sherry Grable testified that when
ADOC was implementing the shift change, there were meetings
between representatives of ADOC, the Department of Finance,
and the Personnel Department but that no representatives of
ACIFA were in those meetings.
Additionally, some of these same witnesses explained the
specific steps that are taken for ensuring that correctional
18
1131177
officers are paid for the work they perform. The accounts of
those witnesses did not indicate that ACIFA has any
involvement with how correctional officers are paid. For
example, Grable explained the pay process as follows:
"A. Well, I am not sure exactly how the
documentation -- I don't know if [a correctional
officer] use[s] a swipe badge to indicate that he
has come to work and when he leaves or if he uses a
fingerprint. I know they have some type of
electronic method. Those methods create a time
sheet based on you signing in through a time clock
of
some
sort.
This
KRONOS
system
is
the
time-keeping system that records those automated
entries of coming and going. Then the employee
signs off on those by the pay period. Any leave is
also requested through that time-keeping system. It
is approved by the employee and then it is approved
by the manager, supervisor. Then it is uploaded
into the payroll personnel system -- GHRS.
"Q. By whom is it uploaded?
"A. There is an electronic file created. It
extracts the data from the time sheets. Now, I
believe you have to have a payroll clerk to go in
and look to see whoever is signed off on that time
sheet, because you have to account -- a full-time
employee is a 40-hour workweek, so you have to
account for the time.
"Q. Then what happens?
"A. The time is submitted into GHRS electronically.
We pull a file on a certain night. Then we take the
pay rate that is stored in the personnel system, and
we associate it with the hours submitted for the
employee and create a paycheck."
19
1131177
Brown described the process as a collaboration between
ADOC and the comptroller's office:
"A. ... [T]he process of paying people for their
shift work is done by the comptroller. We track the
time, supply those hours to the comptroller, and
they pay them. Based on their system, we had to
come up with a way to make sure whatever hours they
were working translated into the proper pay."
The correctional officers offered no evidence contradicting
the manner in which their pay is determined and distributed.
When the correctional officers were asked what connection
existed between ACIFA and their pay, they could not provide a
specific answer. Instead, they noted that some of ADOC's
administrative regulations cite § 14-2-8, Ala. Code 1975, as
20
1131177
part of their statutory authority. Section 14-2-8 codifies
3
the general powers of ACIFA; it provides:
"[ACIFA] shall have the following powers among
others specified in this chapter:
ACIFA and Thomas have filed a motion to strike documents
3
attached as an appendix to the correctional officers' brief,
which include copies of ADOC regulations, and a motion to
supplement the record. ACIFA and Thomas argue that several
documents in the appendix are not reproductions of statutes,
rules, or regulations under Rule 28(h), Ala. R. App. P., and
that the copies of the regulations in the appendix are not the
ones used as trial exhibits. They argue that the documents
should be stricken. As part of their motion to supplement the
record, ACIFA and Thomas attached to their motion copies of
exhibits contained in the record that relate some of the same
information
contained
in
documents
submitted
in
the
correctional officers' appendix, and they ask that the record
copies be substituted for the correctional officers' copies.
The correctional officers did not file a response to ACIFA and
Thomas's motions.
Rule 28(h), Ala. R. App. P., states: "If determination
of the issues presented requires the study of statutes, rules,
regulations, etc., or relevant parts thereof, they shall be
reproduced in the brief or in an addendum at the end, or they
may be supplied to the court in pamphlet form." Rule 28(h)
does not require that copies of statutes, rules, or
regulations must be copies from exhibits in the record.
Therefore, we see no need to strike those documents from the
correctional officers' appendix or to grant the motion to
supplement the record on that basis. ACIFA and Thomas are
correct that some documents contained in the correctional
officers' appendix are not simply reproductions of statutes,
rules, or regulations, and some of the documents are not
contained in the record. Those documents are due to be
stricken and have not been considered in our disposition of
this case.
21
1131177
"(1) To have succession in its corporate name
until the principal of and interest on all bonds
issued by it shall have been fully paid and until it
shall have been dissolved as provided in this
chapter;
"(2) To maintain actions and have actions
maintained against it and to prosecute and defend in
any court having jurisdiction of the subject matter
and of the parties thereof;
"(3) To have and to use a corporate seal and to
alter such seal at pleasure;
"(4) To establish a fiscal year;
"(5) To acquire and hold title to real and
personal property and to sell, convey, mortgage, or
lease the same as provided in this chapter;
"(6)
To
provide
for
the
acquisition,
construction,
reconstruction,
alteration,
and
improvement of facilities and for the procurement of
sites and equipment for such facilities and for the
lease thereof;
"(7) To lease facilities to the state, the
department, and any other agency or instrumentality
of the state;
"(8) To anticipate by the issuance of its bonds
as limited in this chapter the receipt of the rent
and revenues from such facilities ...;
"(9) As security for the payment of the
principal of and interest on its bonds, to enter
into any lawful covenant, to grant mortgages upon
and security interests in its facilities and to
pledge the rents and revenues from such facilities
...;
22
1131177
"(10) To invest as provided in this chapter the
proceeds from the sale of its bonds pending need
therefor; and
"(11) To appoint and employ such attorneys,
agents, and employees as the business of the
authority may require, subject to the Merit System
where applicable."
Alabama Admin. Code (ADOC), Regulation 226, concerning
the issuance of a "Weapons Card," lists § 14-2-8 under the
subheading "Performance" at the end of the regulation.
Alabama Admin. Code (ADOC), Regulation 229, concerning
"Pre-Employment Assessment Screening for Correctional Officer
Candidates," and Regulation 217, concerning the "Dress Code"
for employees, also list § 14-2-8 under the subheading
"Performance" at the end of the regulations. Additionally,
Ala. Admin. Code (ADOC), Regulation 332, addressing the
"Security Threat Group Intelligence Program," and Regulation
340, concerning responsibilities for "Inmate Counts," list
Title 14, in which § 14-2-8 is located, under the subheading
"Performance" at the end of those regulations. Aside from the
general administrative regulations applicable to ADOC,
Easterling
Correctional
Facility's
Standard
Operating
Procedure ("SOP") 217-01, concerning "Employee Haircuts and
23
1131177
Shoeshines,"
lists
§
14-2-8
under
the
subheading
"Performance"
at the end of the SOP.
4
Both Thomas and Brown testified that the administrative
regulations that list § 14-2-8 as statutory authority are
simply mistakes that need to be corrected in those regulations
because ACIFA has nothing to do with the administration of
ADOC's facilities. The correctional officers strongly hint
that that testimony was a convenient excuse and that the
regulations
demonstrate
that
ACIFA
is
involved
with
regulating
the conduct of ADOC employees.
Even if the listing of § 14-2-8 and Title 14 in the
regulations is not a genuine mistake, a plain reading of the
regulations and § 14-2-8 reveals that the listings do not
establish
that
ACIFA
is
involved
with
supervising
correctional
officers, let alone establish a connection between ACIFA and
the
correctional
officers'
pay.
For
example,
in
Regulation 226 there is no explanation as to how ACIFA has
anything to do with issuing weapons cards for ADOC employees,
Four of the regulations discussed –- 226, 229, 332, and
4
340 –- apparently are no longer included in ADOC's
Administrative Code, although they were presented to
the trial
court and are discussed in the record.
24
1131177
and § 14-2-8 does not address the subject. Likewise, nothing
in Regulation 229 explains how ACIFA has anything to do with
ADOC's carrying
out
its
responsibility
to
pre-screen
candidates for employment as corrections officers, nor does §
14-2-8 shed light on the subject. The same can be said for
Regulation 217 concerning the dress code for employees and
SOP 217-01 concerning employee haircuts and shoeshines.
As for Regulations 332 and 340, it is unsurprising that
they would list Title 14 as statutory authority because Title
14
is
titled
"Criminal
Correctional
and
Detention
Facilities,"
and it contains all the statutes pertaining to ADOC, its
facilities, and other prison facilities, in addition to the
specific sections that create and govern ACIFA. Moreover, the
subheading in Regulation 340 for "Responsibilities" regarding
inmate counts lists the warden, staff members, shift
commanders, and correctional officers as persons who are
responsible for performing inmate counts or making sure that
such counts are performed. It makes no mention of ACIFA
having any responsibility for inmate counts.
Overall, § 14-2-8 does not say anything about any of the
matters addressed in the regulations cited, and the
25
1131177
regulations themselves do not discuss ACIFA in their text as
having any responsibility for the areas dealt with by the
respective regulations. In other words, the citations in
those regulations to § 14-2-8 or to Title 14 in general do not
explain how ACIFA is in any way responsible for supervising
correctional officers, determining how correctional officers
are paid, or ensuring that they are paid, and the correctional
officers provided no explanation at trial nor do they do so on
appeal. Instead, they simply rely upon the citations
contained in the subject regulations as sufficient to
establish a connection. As we have explained, the regulations
do no such thing.
The regulation in the Alabama Administrative Code that
addresses overtime work and pay for correctional officers,
Regulation 212, does not list § 14-2-8 or Title 14 in general
as authority for the regulation. Moreover, under the heading
5
of "Responsibilities," Regulation 212 states that "[t]he
Regulation 212 lists as authorities the Fair Labor
5
Standards Act, 29 U.S.C. § 201; Ala. Code 1975, §§ 36-21-4,
36-21-5, and 36-21-6; Ala. Admin. Code (State Pers. Bd.),
Regulation 670-X-11-.07(1),(2),(3), and (4); the State
Personnel Procedures Manual; ADOC Personnel Division Manual;
and Christensen v. Harris Cnty., 529 U.S. 576 (2000).
26
1131177
Commissioner [of ADOC] shall ensure departmental compliance
with federal and state regulations and authorize monetary
payment for overtime work." It also states: "The ADOC
Finance/Accounting Division is responsible for auditing
attendance records, shift logs, leave slips, computer
printouts, and overtime/compensatory time authorization
records for accuracy and compliance with federal and state
regulations." Thus, the very regulation the corrections
officers contend ACIFA violated makes no mention of ACIFA's
having any responsibility for how overtime is accounted for
and how it is paid to ADOC employees.
6
The only other way the correctional officers seek to
6
connect ACIFA with supervision of the
correctional
officers is
through the fact that some of the statutes addressing ACIFA
mention the term "prison labor." As we have noted, ACIFA's
primary purpose is to fund the construction of prison
facilities. See § 14-2-2, Ala. Code 1975. The definition
provided in § 14-2-1(6) for the term "Facilities" is as
follows:
"c. Any facilities necessary or useful in
connection with prisons, buildings or enclosures,
including, without limiting the generality of the
foregoing,
hospitals,
offices,
correctional
officers' quarters and residences, warehouses,
garages, storage facilities, abattoirs, cold storage
plants, canning plants, laundries and manufacturing
plants for the employment of prison labor."
§ 14-2-1(6)c., Ala. Code 1975 (emphasis added). In the
27
1131177
The foregoing arguments constitute the entirety of the
correctional officers' evidence of ACIFA's role in personnel
or payroll matters affecting ADOC employees. Suffice to say,
they failed to present substantial evidence of a connection
between
ACIFA
and the supervision of the correctional
officers
or how the correctional officers are paid. Without evidence
indicating that ACIFA had anything to do with the personnel
policies at issue or how correctional officers' pay is
determined and distributed or the funds that are used to pay
correctional officers, ACIFA cannot be held liable for the
harms the correctional officers
allege
they suffered. Because
of the lack of substantial evidence in support of the claims
made by the correctional officers against ACIFA and against
Thomas as ex officio vice president of ACIFA, the defendants
were entitled to a judgment as a matter of law on those
claims.
IV. Conclusion
Based on the foregoing, the judgment in favor of the
correctional officers is reversed, and the cause is remanded
context presented, however, the emphasized passage clearly
refers to prison-inmate labor.
28
1131177
to the trial court to enter a judgment in favor of ACIFA and
Thomas.
REVERSED AND REMANDED.
Moore, C.J., and Bolin and Main, JJ., concur.
Bryan, J., concurs in the result.
29 | September 25, 2015 |
32c343b3-c631-4741-9a3f-72ab1e95fdf8 | Ex parte State of Alabama. | N/A | 1140768 | Alabama | Alabama Supreme Court | Rel: 09/25/2015
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, 2015
_________________________
1140768
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Carless Ledon Wagner
v.
State of Alabama)
(DeKalb Circuit Court, CC-05-412.70;
Court of Criminal Appeals, CR-13-1400)
MAIN, Justice.
This case involves the propriety of a probation-
revocation hearing. The petitioner, the State of Alabama,
1140768
filed in the DeKalb Circuit Court ("the trial court") a
petition to revoke the probation of Carless Ledon Wagner based
on allegations that Wagner, on March 19, 2014, violated two
conditions of his probation. On March 29, 2014, the trial
court held a probation-revocation hearing; at the end of the
hearing, the trial court revoked Wagner's probation and
"order[ed] [Wagner] to serve the remainder of [his] sentence
in the custody of the Department of Corrections." Wagner
appealed to the Court of Criminal Appeals; that court reversed
the trial court's judgment, finding that Wagner had not
received a probation-revocation hearing "in compliance with §
15-22-54, Ala. Code 1975, and Rule 27.6(c), Ala. R. Crim. P."
Wagner v. State, [Ms. CR-13-1400, February 6, 2015] ___ So. 3d
____, ____ (Ala. Crim. App. 2015). The State petitioned this
Court for a writ of certiorari; we granted the petition. We
reverse and remand.
I. Facts and Procedural History
In 2007, Wagner pleaded guilty in the trial court to one
count of first-degree rape and one count of first-degree
burglary. The trial court sentenced Wagner to 2 terms of 20
years' imprisonment, to be served concurrently; the sentences
2
1140768
were split, and the trial court ordered Wagner to serve 5
years' imprisonment followed by 5 years' probation.
On March 19, 2014, Wagner's probation officer, Jonathan
Phillips of the State of Alabama Board of Pardons and Paroles,
conducted a home visit at Wagner's residence. After noting
suspicious behavior on the part of Wagner and another person
present at the residence, Jody Daniel Phillips, Officer
Phillips told Wagner "to report to court referral to drug
test." The result of the drug test was that Wagner tested
positive for methamphetamine. On March 20, 2014, Officer
Phillips filed a delinquency report, charging Wagner with
violating two terms of his probation: (1) "condition number 2"
of his probation, alleging in his report that Wagner had
"fail[ed] to avoid injurious or vicious habits," and (2)
"condition number 3" of his probation, alleging in his report
that Wagner had "fail[ed] to avoid persons of disreputable or
harmful character." As to the second charge, Officer
Phillips specifically alleged that Wagner had violated his
probation by failing to avoid a person of disreputable or
harmful character, namely, Jody Phillips, who, the report
states, "is a convicted felon a known drug user." Officer
3
1140768
Phillips's delinquency report recommended "that Wagner be
brought before the [trial] court to give just cause as to why
his probation should not be revoked." Officer Phillips's
report also required Wagner to attend in-patient drug
treatment "until the [trial] court makes it's [sic] final
decision."
On March 24, 2014, the State filed a petition to revoke
Wagner's probation "for violation of the terms of the ...
probation as set out in [Officer Phillips's] DELINQUENCY
REPORT ...." (Capitalization in original.) The trial court
set a hearing for April 7, 2014, at which Wagner was to appear
"and show cause why [his] ... probation should not be revoked
and the unserved portion of [his] sentence ordered into
effect." Wagner did not appear at that hearing; approximately
one week later, law-enforcement officers arrested Wagner for
violating his probation, and Wagner subsequently made an
initial appearance before the trial court. At that time, the
1
trial court set Wagner's probation-revocation hearing for May
29, 2014. The trial court conducted Wagner's probation-
It is unclear from the record on appeal whether Wagner's
1
initial appearance occurred on April 11, 2014, or on April 14,
2014.
4
1140768
revocation hearing on May 29, 2014, and, on June 3, 2014, the
trial court entered the following order, revoking Wagner's
probation:
"This matter came for a hearing on the 29th day
of May 2014 regarding the State's Petition to Revoke
[Wagner's] Probation. Carless Wagner was present
with his appointed attorney, Chris Runyan, Esq.; and
Robert Johnston, Esq., was present on behalf of the
State of Alabama.
"Mr. Wagner was convicted on or about November
30, 2007, for Rape in the First Degree and Burglary
in the First Degree. He was sentenced to twenty (20)
years with a split to serve five (5) years, and
after serving the initial five year portion he was
placed on five (5) years of probation. Mr. Wagner
has been on probation since March 8, 2012.
"The State of Alabama filed this petition to
revoke because on or about March 19, 2014, Probation
Officer Jonathan Phillips conducted a visit to Mr.
Wagner's home. Officer Phillips noted that [Wagner]
'was acting suspicious when he exited a small
building that had a camera at the front door.' The
only other person at the residence with Mr. Wagner
was another convicted felon Jody Daniel Phillips.
Mr. Wagner was sent for a drug screen and tested
positive for methamphetamine. At the [probation-
revocation] hearing, Mr. Wagner admitted to the
charges contained in the State's petition.
"After
considering
the
original
charges,
reviewing the pleadings filed, conducting a hearing,
considering the arguments advanced at the hearing,
and applying the law to the facts, it is hereby
ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
"1. That the Defendant, Carless Wagner's
probation is hereby REVOKED, and he shall serve the
5
1140768
remainder of his sentence in the custody of the
Alabama Department of Corrections.
"2. That [Wagner] is entitled to jail credit for
the time he spent in the DeKalb County Detention
Center awaiting this hearing."
(Emphasis added; capitalization in original.)
Wagner moved the trial court for a new hearing, arguing,
in relevant part, that "[he] was denied his right to a hearing
as required by Alabama Code [1975,] § 15-24-54[, ] and Rule
2
27.6 of the Alabama Rules of Criminal Procedure. Moore v.
State, 54 So. 3d 442 (Ala. Crim. App. 2010), D.L.B. v. State,
941 So. 2d 324 (Ala. Crim. App. 2006)." The trial court
denied the motion. Wagner then appealed to the Court of
Criminal Appeals. In an opinion authored by Judge Burke, the
Court of Criminal Appeals reversed the trial court's order.
See Wagner, supra. The Court of Criminal Appeals overruled
Wagner's application for a rehearing. Wagner then petitioned
this Court for a writ of certiorari to review the Court of
Criminal Appeals' decision, which this Court granted.
II. Analysis
Wagner incorrectly cited § 15-24-54, Ala. Code 1975; the
2
correct cite is § 15-22-54, Ala. Code 1975.
6
1140768
The issue presented for our review is straightforward:
Whether Wagner's probation-revocation hearing complied with
Rule 27.6(c), Ala. R. Crim. P. Wagner claims that it did not;
the State claims that it did. We agree with the State.
3
Rule 27.6, Ala. R. Crim. P., addresses the revocation of
probation. Rule 27.6(a) provides that "[a] hearing to
determine whether probation should be revoked shall be held
before the sentencing court within a reasonable time after the
probationer's initial appearance." It cannot be
disputed
that
such a probation-revocation hearing was held; the transcript
of that hearing appears in the record on appeal. The sole
issue for our determination is whether the trial court
satisfied
the
conditions
of
Rule
27.6(c),
entitled
"Admissions
by the Probationer," during Wagner's hearing.
4
Section 15-22-54, Ala. Code 1975, is cited by both the
3
State, see State's brief, at 5, and Wagner, see Wagner's
brief, at 15; however, neither party explains the relevance of
this statute to this case; therefore, it will not be discussed
in this opinion. It is well settled that it is not the
function of this Court to create legal arguments for the
parties before us. See, e.g., Spradlin v. Spradlin, 601 So.
2d 76, 78 (Ala. 1992) (citing Henderson v. Alabama A & M
Univ., 483 So. 2d 392, 392 (Ala. 1986)).
Rule 27.6(c) unquestionably governs here. It is
4
undisputed that
Wagner's
counsel
admitted
during the
probation-revocation hearing that Wagner was guilty of
violating conditions 2 and 3 of his probation. The fact that
7
1140768
Rule 27.6(c) provides, in toto:
"Before accepting an admission by a probationer that
the probationer has violated a condition or
regulation of probation or an instruction issued by
the probation officer, the court shall address the
probationer personally and shall determine that the
probationer understands the following:
"(1) The nature of the violation to
which an admission is offered;
"(2) The right under section (b) to be
represented by counsel;
"(3) The right to testify and to
present witnesses and other evidence on
probationer's
own
behalf
and
to
cross-examine
adverse
witnesses
under
subsection (d)(1); and
"(4) That, if the alleged violation
involves a criminal offense for which the
probationer has not yet been tried, the
probationer may still be tried for that
offense, and although the probationer may
not be required to testify, that any
statement made by the probationer at the
present proceeding may be used against the
probationer at a subsequent proceeding or
trial.
Wagner's counsel rather than Wagner himself made those
admissions is immaterial to the effectiveness of those
admissions. See, e.g., Massey v. Educators Inv. Corp. of
Alabama, Inc., 420 So. 2d 77, 78 (Ala. 1982) ("A party's
attorney is deemed to be an agent of the party ...." (citing
Anthony v. Anthony, 221 Ala. 221, 128 So. 440 (1930))).
"Agent" is defined as "[s]omeone who is authorized to act for
or in place of another." Black's Law Dictionary 75 (10th ed.
2014).
8
1140768
"The court shall also determine that the probationer
waives these rights, that the admission is voluntary
and not the result of force, threats, coercion, or
promises, and that there is a factual basis for the
admission."5
We now address whether the trial court complied with the
provisions of Rule 27.6 before it accepted Wagner's
admissions.
A. Did Wagner understand the nature of the violation to which
Wagner's admissions were offered?
It is without question that the trial court notified
Wagner of "[t]he nature of the violation[s] to which [his]
admission[s] [were] offered."
Rule 27.6(c)(1). The following
exchange occurred during the May 29, 2014, probation-
revocation hearing, at which Wagner was present with his
attorney:
"[THE COURT]: Mr. Runyan [Wagner's counsel],
have you received a copy and has your client
received a copy of this petition to revoke?
"MR. RUNYAN: Yes, Your Honor, we have.
"THE COURT: And let me go through these charges
with you, and we'll go from there.
"Charge No. 1 is that [Wagner] failed to avoid
injurious or vicious habits. It says that they --
Rule 27.6 mandates that "the court shall address the
5
probationer personally," not that the court require the
probationer to personally answer.
9
1140768
probation officer's authorization of arrest has not
be issued, but he will be requiring Wagner to attend
The Bridge[ ] until his revocation court date.
6
"The details of that offense were: On March
19th, 2014, the officer conducted a home visit on
Mr. Wagner. He was acting suspicious when he exited
a small building that had a camera at the front
door. Wagner met the officer at the vehicle and was
reluctant to move toward the building with him. When
he got to the building he noticed another person
inside who was identified as Jody Daniel Phillips.
Phillips was acting paranoid and wouldn't stop
putting his hand behind his back. Phillips also had
a severe case of dry mouth, which follows the use of
meth[amphetamine]. [Officer Phillips] [t]old Wagner
to report to court referral to drug test. 'Wagner's
drug screen confirmed my suspicion. Wagner was
positive for meth[amphetamine].'
"....
"THE COURT: Charge No. 2 is Failure to Avoid
Persons of Disreputable or Harmful Character. [The
delinquency report] [s]ays, [o]n March 19th, the
officer contacted [sic] a home visit on Wagner.
'[Wagner] was acting suspicious when he exited a
small building that had a camera at the front door'
and, again, goes through the same facts but adds
that [Jody] Phillips is a convicted felon and known
drug user."
Little analysis is required here. After the trial court
made clear the probation violations of which Wagner was being
accused, Wagner's attorney "admit[ted] that charge]" each
time. Nothing in the record shows that Wagner was not
"The Bridge" is a drug-addiction treatment center.
6
10
1140768
notified of the charges against him or that he did not
understand the nature of those charges.
B. Did Wagner understand that he had the right under Rule
27.6(b) to be represented by counsel?
Rule 27.6(b) provides that "[t]he probationer is entitled
to be present at the hearing and to be represented by
counsel." It is without dispute that Wagner was present at
the hearing and that he was represented by court-appointed
counsel.
C. Did Wagner understand that he had the right to testify and
to present witnesses and other evidence on his own behalf and
to cross-examine adverse witnesses under Rule 27.6(d)(1)?
The trial court posed the following questions to the
defense during the hearing: (1) "Do you have any evidence to
offer as to why the Court should not revoke [Wagner's]
probation?"; (2) "Is there anything you [Wagner] would like to
add?"; and (3) "Would you [Wagner] like to put on any
witnesses to support your position?"
As to questions (1) and (2), Wagner, through counsel,
answered, in toto:
"Your Honor, [Wagner] entered his guilty plea on
November the 30th, 2007. He was released on
probation [on] March 8th, 2012. He was in compliance
[with his probation conditions] for 2 years and 11
days and was reporting to his probation officer. He
11
1140768
was complying with notification requirements. And
until this hiccup that we're here for now, he's been
in total compliance."
As to question (3), Wagner, through counsel, answered, in
toto: "We have no witnesses, Your Honor." Also, with regard
to Wagner's right "to cross-examine adverse witnesses," we
note that the State called no witnesses. The only person to
speak on behalf of the State was DeKalb County Assistant
District Attorney Robert Johnston; he was not called as a
witness, and his statements during the hearing are not
considered evidence. See, e.g., Barrett v. Roman, [Ms.
2130824, May 8, 2015] ___ So. 3d ____, ____ (Ala. Civ. App.
2015) ("Of course, statements of counsel are not evidence.
Hicks v. Jackson Cnty. Comm'n, 990 So. 2d 904, 905 n. 1 (Ala.
Civ. App. 2008)."). Thus, Wagner was not denied his right "to
testify and to present witnesses and other evidence on [his]
own behalf and to cross-examine adverse witnesses."
D. Was Wagner informed that any statement made by him at the
present proceeding may be used against him at a subsequent
proceeding or trial?
This Court cannot find in the hearing transcript where
the trial court advised Wagner that any statement made by him
during the probation-revocation hearing could be used against
12
1140768
him at a subsequent proceeding or trial. However, this Court
finds that omission to be harmless error because, for all that
appears,
Wagner's
probation
violations
do
not
involve
criminal
offenses for which Wagner could be subsequently tried. See
Rule 27.6(c)(4). During the hearing, Wagner admitted only to
(1) "fail[ing] to avoid injurious or vicious habits" and (2)
"fail[ing] to avoid persons of disreputable or harmful
character." These are undoubtedly poor personal choices but
not, as best we can determine from our research, criminal
offenses (other than the fact that they constitute violations
of Wagner's probation in this case) for which Wagner could be
prosecuted. Thus, the trial court's failure to advise Wagner
of this particular right is nothing more than harmless error,
i.e., error that did not "injuriously affect[] [Wagner's]
substantial rights" in this case. See Rule 45, Ala. R. App.
P.:
"No judgment may be reversed ... unless in the
opinion of the court to which the appeal is taken or
application is made, after an examination of the
entire cause, it should appear that the error
complained of has probably injuriously affected
substantial rights of the parties."
E. Did the court determine that Wagner waived these rights,
that the admission was voluntary and not the result of force,
13
1140768
threats, coercion, or promises, and that there was a factual
basis for the admission?
First, as noted above, Wagner was asked by the trial
court (1) whether he had any witnesses to offer; (2) whether
he had any evidence to present; and (3) a rather open-ended
and far-reaching question regarding whether Wagner "had
anything to add." Thus, the trial court gave Wagner three
opportunities to make any argument, present any evidence, or
offer any witnesses as to any allegations that he was not
voluntarily admitting to the probation violations but that,
instead, his admissions were the result of "force, threats,
coercion, or promises." See Rule 27.6(c). The question must
be asked: How many opportunities is the trial court required
to give a probationer to present a defense as to any aspect or
issue regarding his or her probation-revocation hearing? Are
three opportunities offered to the probationer to address the
trial court in some manner regarding any alleged violation of
his or her legal rights not more than enough? We conclude
that the trial court provided Wagner ample opportunities to
address the trial court regarding the voluntary nature of his
admissions. We find it particularly notable that, as Wagner
states in his appellate brief, "Wagner never spoke [during the
14
1140768
hearing]." Wagner's brief, at 18 (emphasis in original).
Now, however, Wagner seeks redress because he allegedly was
stripped of virtually all of his statutory rights with regard
to his probation-revocation hearing. We find this argument
unavailing.
Furthermore, there certainly existed a factual basis for
Wagner's admissions, even beyond Wagner's own admissions of
guilt. The trial court had before it the firsthand account
7
of the probation violations Officer Phillips observed at
Wagner's residence in the form of Officer Phillips's
delinquency report. The facts stated in that report were read
aloud during the hearing, and Wagner did not dispute them or
object in any manner. Wagner's only defense was, in effect,
"I did right for a while so please give me another chance."
The trial court rejected that plea for mercy because one of
Wagner's underlying convictions was for the crime of first-
Wagner's counsel argues rather speciously that the State
7
offered no factual basis for Wagner's admissions. As noted,
Officer Phillips, an employee of the State of Alabama Board of
Pardons and Paroles, submitted to the trial court a factual
basis (undisputed by Wagner) for Wagner's admissions by way of
his delinquency report. With the facts in the report being
undisputed and Wagner admitting his guilt, it would require an
ubertechnical reading of Rule 27.6(c) to conclude that there
was no factual basis for Wagner's admissions.
15
1140768
degree rape; his plea of "please give me another chance" rings
hollow in light of the fact that Wagner was convicted of
first-degree rape and first-degree burglary, that he served
only five years' in prison, and that he still would not
conform his behavior to the laws of this State.8
In sum, Wagner received a hearing that substantially
conformed to the requirements of Rule 27.6(c), certainly to
the extent that the spirit of the rule was fully complied
with. Thus, the judgment of the Court of Criminal Appeals is
due to be reversed.
III. Conclusion
We reverse the judgment of the Court of Criminal Appeals
and remand the cause to that court for proceedings consistent
with this opinion.
REVERSED AND REMANDED.
Stuart, Bolin, Shaw, Wise, and Bryan, JJ., concur.
Moore, C.J., and Parker and Murdock, JJ., dissent.
Notably, the State asserted during the hearing that, "if
8
there's a zero-tolerance policy that's still appropriate for
anyone, then it's appropriate for someone who has committed
rape and is on probation."
16
1140768
MURDOCK, Justice (dissenting).
Because I believe that the Court of Criminal Appeals
reached the correct result and that this Court should not
reverse that court's decision, I respectfully dissent.
Rule 27.6(c), Ala. R. Crim. P., is not particularly
complicated or involved. It states:
"(c) Admissions by the Probationer. Before
accepting an admission by a probationer that the
probationer has violated a condition or regulation
of probation or an instruction issued by the
probation officer, the court shall address the
probationer personally and shall determine that the
probationer understands the following:
"(1) The nature of the violation to which an
admission is offered;
"(2) The right under section (b) to be
represented by counsel;
"(3) The right to testify and to present
witnesses and other evidence on probationer's own
behalf and to cross-examine adverse witnesses under
subsection (d)(1); and
"(4) That, if the alleged violation involves a
criminal offense for which the probationer has not
yet been tried, the probationer may still be tried
for that offense, and although the probationer may
not be required to testify, that any statement made
by the probationer at the present proceeding may be
used against the probationer at a subsequent
proceeding or trial.
"The court shall also determine that the probationer
waives these rights, that the admission is voluntary
17
1140768
and not the result of force, threats, coercion, or
promises, and that there is a factual basis for the
admission."
As the main opinion indicates, all the requirements
prescribed in Rule 27.6(c), Ala. R. Crim. P., must be met
before a court can accept an admission by a probationer that
he or she has violated a condition of his or her probation.
Meeting these requirements should, in most cases, be simple
and straightforward. As the Court of Criminal Appeals
concluded, however, the record in this case clearly reveals
that all these requirements were not met in this case.
I have one overarching concern: I do not believe that
the trial court complied with the plain meaning of the
requirement stated in Rule 27.6(c) that "the court shall
address the probationer personally and shall determine that
the probationer understands" certain prescribed rights. In
this case, the trial court addressed all of its questions to
Wagner's counsel. Wagner's counsel answered all of the trial
court's questions. Wagner's appellate brief notes that
"Wagner never spoke" during the hearing. I cannot conclude
that a court's posing questions to, and accepting answers
from, counsel constitutes "address[ing] the probationer,"
18
1140768
much less "address[ing] the probationer personally" as
required by Rule 27.6(c). This is not the manner by which the
rule requires the trial court to "determine that the
probationer understands" the matters at issue.
By way of analogy, the operative language of Rule 14.4,
Ala. R. Crim. P., concerning the trial court's acceptance of
guilty pleas, is in all material respects identical to the
language in Rule 27.6(c). Rule 14.4(a) provides that the
court shall not accept a plea of guilty without first
"addressing the defendant personally." This language
has
been
construed in accordance with its plain meaning as requiring
that the trial court question the defendant personally. See
Fleming v. State, 972 So. 2d 835, 836 (Ala. 2007) (noting that
Rule 14.4(a) states that the trial court must, in the Court's
words, "personally address a defendant who is pleading
guilty"). In Brewster v. State, 624 So. 2d 217, 220 (Ala.
Crim. App. 1993), the Court of Criminal Appeals reversed a
guilty-plea conviction where the defendant had signed written
forms pursuant to Rule 14.4(d) purportedly waiving his rights
and pleading guilty but the trial court had failed to comply
with Rule 14.4(d). The court explained that that rule
19
1140768
specifically retains the requirement of Rule 14.4(a) that the
court must "personally address the defendant." See also
Bozeman v. State, 686 So. 2d 556, 558 n.1 (Ala. Crim. App.
1996) (noting that if a trial court uses forms to comply with
Rule 14.4, it must "'specifically question[] the defendant on
the record as to each item in the form. Committee Comments,
Rule 14.4.(a).'" (quoting Alford v. State, 651 So.2d 1109,
1112 (Ala. Crim. App. 1994))).
The final sentence of Rule 27.6(c) specifically requires
the court to "determine that the probationer waives" the
rights prescribed in the rule and that the probationer's
admission is "voluntary," that it is not the result of "force,
threats, coercion, or promises," and that there is "a factual
basis for the admission." Again, these requirements were not
met in the present case by the trial court's conducting the
colloquy with Wagner's counsel rather than with Wagner
himself.
In addition to the fact that the trial court's statements
and inquiries were not actually addressed to "the probationer
personally,"
the
trial court omitted
certain
matters
specifically enumerated in Rule 27.6(c). Among other things,
20
1140768
the obligation of the court under Rule 27.6(c)(3) to inform
Wagner of his right to "cross-examine adverse witnesses" was
not satisfied in this case. The court's question to Wagner's
counsel as to whether he had "any evidence to offer as to why
the court should not revoke his probation" does not suffice.
Simply asking whether a probationer wants to introduce any
evidence is not the same as advising the probationer that he
or she has the right to "cross-examine adverse witnesses"
offered by the State.
Based on the foregoing and on my agreement with the
rationale set out in the main opinion of the Court of Criminal
Appeals, I respectfully dissent.
Moore, C.J., concurs.
21 | September 25, 2015 |
eeca83ce-b627-458c-be92-69a3b339c3b8 | State of Alabama ex rel. Allison, v. Farris | N/A | 1140034 | Alabama | Alabama Supreme Court | REL:09/18/2015
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, 2015
____________________
1140034
____________________
State of Alabama ex rel. Rick Allison, in his official
capacity as Walker County Probate Judge
v.
Jill Farris, in her official capacity as administrator for
Walker County
Appeal from Walker Circuit Court
(CV-14-900175)
MOORE, Chief Justice.
The State of Alabama, on behalf of Rick Allison, Probate
Judge of Walker County, appeals from a judgment of the Walker
Circuit
Court
in
favor
of
Jill
Farris,
the
county
1140034
administrator for Walker County. By statute, Judge
Allison, as
the chief elections officer for Walker County, see § 17-1-
3(b), Ala. Code 1975, must publish certain voter lists and
election notices (the lists and the notices are hereinafter
referred to as collectively "the notices"). § 17-4-1, § 17-8-
2, § 17-9-5, and § 21-4-23(b), Ala. Code 1975. Judge Allison
argues on appeal, as he did in the circuit court, that he may
determine in which newspaper of general circulation the
notices will be published and that he may also contract with
that newspaper for the cost of publishing the notices.
Facts and Procedural History
On February 28, 2014, Judge Allison requested bid
proposals from the two newspapers of general circulation in
Walker County -- The Daily Mountain Eagle and The Corridor
Messenger. In the past the notices were simply published in
both newspapers. Judge Allison initiated the bidding process
to avoid the expense of publishing the notices in both
newspapers.
Before
The
Corridor
Messenger
began
publication
in
2007, the notices were published only in The Daily Mountain
Eagle, which was at that time the sole newspaper of general
circulation in Walker County.
2
1140034
Pursuant to Judge Allison's request for bids, The Daily
Mountain Eagle and The Corridor Messenger on March 21, 2014,
submitted their proposals. The amount of The Corridor
Messenger's proposal was approximately $17,500 less than the
amount of The Daily Mountain Eagle's proposal. On March 28,
2014, Judge Allison signed a contract with Corridor
Messenger,
Inc., authorizing publication of the notices in The Corridor
Messenger and reviewed and approved a draft publication of the
notices.
Although § 17-4-1 authorizes Judge Allison and the Walker
County Commission ("the Commission") to publish the voter
lists, the Commission is not authorized to publish the
election notices referenced in §§ 17-8-2,
17-9-5,
and 21-4-23,
and, for that reason, Farris focuses her argument solely on §
17-4-1.
On April 8, 2014, the Commission invited separate bids
for publishing the election lists it was authorized to
publish. On April 10, 2014, an attorney for the Commission
notified The Corridor Messenger that "the Walker County
Commission will not pay for any advertising requested by the
Walker County Probate Judge regarding voter information until
3
1140034
further notice." A copy of this letter was sent to Judge
Allison's attorney.
In response, Judge Allison, in his official capacity,
filed in the Walker Circuit Court a petition for a writ of
mandamus or, in the alternative, a complaint for declaratory
and injunctive relief requiring Farris, in her official
capacity as administrator for Walker County, to make payment
on behalf of the Commission to Corridor Messenger, Inc., for
that company's publication of the notices in The Corridor
Messenger pursuant to its contract with Judge Allison. Judge
Allison also asked the circuit court to order the Commission
to pay reasonable costs and attorney fees incurred by him in
pursuit of these remedies. Judge Allison requested a hearing
for no later than April 30, 2014, the date by which The
Corridor Messenger was required by the contract to publish the
notices. The circuit court set a hearing for April 30, 2014.
Farris did not answer Judge Allison's pleading. On May 2,
2014, following the hearing, the circuit court denied Judge
Allison's request for relief, stating, in part:
"The crux of the issue may be framed thusly:
Does the Probate Judge, as the Chief Election
Officer of the County, have the authority to
determine in which newspaper of general circulation
4
1140034
the required voter information is to be published
and unilaterally decide what amount to pay for this
service?
"The Court
thinks
not. The
obligation
to
publish
does not carry with it the authority to contract.
The Probate Judge is required to gather the
appropriate information required by statute to be
published and get it to a publisher which operates
a newspaper of general circulation selected by the
Walker County Commission (the 'Commission') at a
price determined by the Commission. There is no
appropriation in the Probate Judge's budget for the
purchase of these services. There is, however, a
line item in the Commission's budget tor these
services. It is the Commission's obligation to fund
the payment for these services and it does so by
that specific line item in its budget. The
obligation to fund in this Court's view must carry
with it the right to select the publisher and the
right to determine the price to be paid. In this
Court's opinion this authority must reside with the
Commission which is charged with expending these
funds, not the Office of the Probate Judge. Because
of this the Court finds that the Office of Probate
Judge lacks the authority to contract with [Corridor
Messenger, Inc.,] for the services required to
fulfill the mandate under the statute for publishing
the required voter information."
On June 3, 2014, Judge Allison timely filed a motion for
a new trial or, in the alternative, to alter, amend, or vacate
the judgment. On July 31, 2014, the circuit court heard oral
argument on the motion and received testimony and documentary
evidence from Judge Allison and Farris. The motion was denied
by operation of law on September 2, 2014. Judge Allison filed
5
1140034
a timely notice of appeal on October 8, 2014, seeking not only
payment for the costs of publishing the notices but also
attorney fees for his efforts to compel the Commission to pay
those costs. On appeal Judge Allison presents one issue for
review:
Whether Judge
Allison, who is statutorily charged
with
publishing the notices, can decide which newspaper will
publish the notices, enter into a contract for publication of
the notices, and bind the Commission to pay the costs of
publication.
Standard of Review
"'"Because the underlying facts are
not disputed and this appeal focuses on the
application of the law to those facts,
there can be no presumption of correctness
accorded to the trial court's ruling."
Beavers v. County of Walker, 645 So. 2d
1365, 1373 (Ala. 1994)(citing First Nat'l
Bank of Mobile v. Duckworth, 502 So. 2d 709
(Ala. 1987)). Appellate review of a ruling
on a question of law is de novo. See Rogers
Found. Repair, Inc. v. Powell, 748 So. 2d
869 (Ala. 1999); Ex parte Graham, 702 So.
2d 1215 (Ala. 1997).'"
Wood v. Booth, 990 So. 2d 314, 317-18 (Ala. 2008)(quoting Ex
parte Forrester, 914 So. 2d 855, 858 (Ala. 2005)).
6
1140034
Discussion
The parties do not dispute that the Commission ordinarily
must pay for the publication of the notices. Farris conceded
this point in the circuit court, stating: "We are obligated to
pay for the cost of publishing. No question about it." The
1
parties do not challenge the circuit court's holding that
"[i]t is the Commission's obligation to fund the payment for
these services and it does so by that specific line item in
its budget." Therefore, the dispute involves only what
authority, if any, a probate judge, who is obligated by
See, e.g., § 17-3-57, Ala. Code 1975 ("The several
1
counties shall
pay all
other
reasonable
and necessary expenses
incurred by the boards [of registrars] in carrying out the
provisions of this chapter."); § 17-3-60, Ala. Code 1975
(providing that the county commission is responsible for
paying for clerical assistance for the judge of probate and
the board of registrars regarding,
in
particular, the election
lists of the county); § 17-4-31, Ala. Code 1975 (providing
that the state is to reimburse county commissions for costs
pertaining to voter lists); § 17-6-42, Ala. Code 1975
(providing that ballots are to be paid for by cities and
counties); § 17-6-47, Ala. Code 1975 (providing that the
county is to pay for ballots and forms for probate judges); §
17-7-1, Ala. Code 1975 (providing that the county is to pay
for electronic-voting machines); 17-8-12, Ala. Code 1975
(providing that the county is to compensate election
officials); § 17-11-14, Ala. Code 1975 (providing that the
county is to compensate
absentee-election
managers); and § 17-
13-4, Ala. Code 1975 (providing that the county is to
compensate officers and expenses of primary, general, or
special elections).
7
1140034
statute to publish the notices, has to bind a county
commission to pay for publishing the notices in a newspaper of
general circulation within the county.
Section 17-4-1, Ala. Code 1975, states, in relevant part:
"The judge of probate shall publish from the
state voter registration list a correct alphabetical
list of qualified electors either by county,
precinct, district, or subdivision wherein each
elector is registered to vote, in some newspaper
with general circulation in the county, on or before
the twentieth day preceding the regularly scheduled
primary election. ... The lists required to be
published pursuant to this section may be published,
at the discretion of the county commission, as a
preprinted or inserted advertising supplement at a
cost no greater than the selected newspaper's lowest
applicable national insertion rates. ..."
This statute does not specify whether a probate judge has the
authority to determine which newspaper of general circulation
will publish the required voter lists and at what cost. Nor
does it say that a probate judge must obtain the county
commission's approval for the costs of publishing the lists.
This inconvenient silence has caused the confusion below, as
evidenced by the following exchange between Judge Allison's
attorney, Mr. Algert S. Agricola, and Farris's attorney, Mr.
Edward R. Jackson, during the April 30, 2014, hearing:
8
1140034
"THE COURT: ... All we're talking about right now is
whether or not there's an obligation of the county
to pay for the publication, as I see it.
"MR. JACKSON: Judge, I respectfully disagree. We
think it's whether the obligation to pay and select
is the county's. The obligation to publish is
clearly Judge Allison's, but he hasn't got the money
in his budget.
"THE COURT: There's no question about the money. But
whose obligation is it to select?
"MR. AGRICOLA: It's the probate judge's.
"THE COURT: And you say why?
"MR. AGRICOLA: Because the statute says the probate
judge shall publish.
"MR. JACKSON: That's right. And we agree with that,
he shall publish.
"THE COURT: So --
"MR. JACKSON: But he can't pick and pay for where it
goes, because under [§] 17-4-1 that Mr. Agricola has
referred to, if he does that --
"THE COURT: What does 'shall publish' mean?
"MR. JACKSON: Put it in the newspaper. Gather the
information, get the list together --
"THE COURT: Put it in the newspaper of your choice?
"MR. JACKSON: Of the county commission's choice.
"THE COURT: That's y'all's argument.
"MR. JACKSON: Yes, sir.
9
1140034
"THE COURT: And the basis for that argument is what?
Where is your legal basis for that?
"MR. JACKSON: That it's our money, it's not his
money. He can't --
"THE COURT: It's the citizens of Walker County's
money.
"MR. JACKSON: County commission, yes, sir.
"....
"MR. AGRICOLA: ... [The probate judge] does not
answer to the county commission. The county
commission is responsible under law passed by the
legislature for the payment of costs. He doesn't
have to go and ask them to pay these costs, they're
required to."
Judge Allison's position, accordingly, is that by mandating
that he publish the voter lists, § 17-4-1 –- and by analogy §§
17-8-2, 17-9-5, and 21-4-23(b) -- implicitly requires the
Commission to pay the costs of publishing the lists –- a
position Farris does not
dispute.
Indeed, Farris concedes that
the Commission generally must pay for publishing the lists,
and indeed the notices, but only if, she says, Judge Allison
first submits the name of the newspaper and the costs of
publication to the Commission for prior authorization. Farris
contends that the Commission is entitled to choose in which
newspaper, and at what cost, the notices should be published.
10
1140034
To support this proposition, Farris relies on the
following language from § 17-4-1:
"The lists required to be published pursuant to this
section may be published, at the discretion of the
county commission, as a preprinted or inserted
advertising supplement at a cost no greater than the
selected newspaper's lowest applicable national
insertion rates."
Farris argues that this provision "clearly indicates a county
commission has authority to participate in the publication
process regarding selection and the format for publication."
We disagree that the Commission has the discretion to approve
or disapprove publication decisions that only the probate
judge is required, by statute, to make. Although § 17-4-1
authorizes a county commission to publish the voter lists at
its own discretion, that authority does not affect, and
certainly does not undermine, the probate judge's legal
obligation to publish the notices.
"This Court has stated ... that the fundamental
rule of statutory construction is to ascertain and
give effect to the intent of the legislature in
enacting the statute. Clark v. Houston County
Commission, 507 So. 2d 902 (Ala. 1987); Advertiser
Co. v. Hobbie, 474 So. 2d 93 (Ala. 1985); League of
Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167
(1974). In construing the statute, this Court should
gather the intent of the legislature from the
language of the statute itself, if possible. Clark
v. Houston County Commission, supra; Advertiser Co.
11
1140034
v. Hobbie, supra; Morgan County Board of Education
v. Alabama Public School & College Authority, 362
So. 2d 850 (Ala. 1978). We may also look to the
reason and necessity for the statute and the purpose
sought to be obtained by enacting the statute. Ex
Parte Holladay, 466 So. 2d 956 (Ala. 1985)."
Pace v. Armstrong World Indus., Inc., 578 So. 2d 281, 283
(Ala. 1991). "A textually permissible interpretation that
furthers rather than obstructs the document's purpose should
be favored." Antonin Scalia and Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 63 (Thomson West 2012). See
also Pruett v. Brittain, 285 Ala. 318, 321, 231 So. 2d 885,
887 (1970)("'The primary purpose of statutory construction is
to ascertain ... the object and purpose sought to be
obtained.'" (quoting Rinehart v. Reliance Ins. Co., 273 Ala.
535, 538, 142 So. 2d 254, 256 (1962))). The interpretation of
§ 17-4-1 urged by Farris would defeat, not further, the
purpose of the statute, which, like the other statutes
directing publication of the notices, is to require that
probate
judges
"shall
publish"
certain
election
notices
within
a prescribed time.
Under Farris's interpretation of § 17-4-1, Judge Allison
would have been required to initiate the bidding process with
The Daily Mountain Eagle and The Corridor Messenger and then
12
1140034
to submit a prepublication request to the Commission, which
would have to approve the request before any publication could
occur or reject the request, in which event no publication
would occur. Judge Allison's statutory mandate to publish the
notices
within the statutorily prescribed time would thus have
been contingent
on
the timeliness of the Commission's response
to his request. If the Commission delayed its decision or
failed to approve reasonable publication costs, then Judge
Allison would be in violation of the law through no fault of
his own, and the object of the statute would be defeated.
Courts generally "reject a meaning that defeats a law's
object." 2A Sutherland Statutory Construction §
47:27
(7th ed.
2014). Moreover, "[t]he provisions of a text should be
interpreted in a way that renders them compatible, not
contradictory." Scalia and Garner, Reading Law at 180.
Farris's
interpretation
of
§
17-4-1
would
create
incompatibility between a county commission's discretionary
authority and a probate judge's mandate to publish.
Accordingly, we reject Farris's interpretation of § 17-4-1. A
probate judge's affirmative duty ("shall publish") and
authority may not be superseded by a county commission's
13
1140034
discretionary
option to publish the voter lists as
advertising
supplements.
Because we cannot give effect to Farris's interpretation
of § 17-4-1 without defeating the object of that statute, and
because neither Farris nor the circuit court cited any cases
or statutes to support the circuit court's holding that a
probate judge "lacks the authority to contract with
[newspapers] for the services required to fulfill the
[publication] mandate under the statute," we reverse the
circuit court's holding that the Commission's "obligation to
fund ... must carry with it the right to select the publisher
and the right to determine the price to be paid." Judge
Allison's statutory obligation to publish cannot be divorced
from the authority to contract for publication. In order to
publish Judge Allison must contract with a newspaper. To
deprive him of the ability to contract with a newspaper for
publication would deprive him of the ability to publish.
Therefore, we hold that, under § 17-4-1, and by implication
the other applicable statutes, probate judges may contract
with newspapers to publish the notices that are required by
that statute to be published in a local newspaper.
14
1140034
Finally, Farris argues that Judge Allison's authority to
contract with a newspaper to publish the notices carries with
it the corresponding duty to contract properly, that is, to
comply with Alabama's competitive-bid law. In support of her
argument, Farris cites § 36-25-11, Ala. Code 1975, which
states:
"Unless exempt pursuant to Alabama competitive
laws or otherwise permitted by law, no public
official or public employee ... shall enter into any
contract to provide goods or services which is to be
paid in whole or in part out of state, county, or
municipal funds unless the contract has been awarded
through a process of competitive bidding and a copy
of the contract is filed with the [State Ethics
C]ommission."
Farris asserts that the notices were not exempt from the
competitive-bid law, see § 41-16-51, Ala. Code 1975 (listing
contracts exempt from the competitive-bid law), and that the
contract between Judge Allison and Corridor Messenger, Inc.,
is subject to competitive bidding because it covered "labor,
services, [or] work ... involving fifteen thousand dollars
($15,000) or more, made by or on behalf of" the office of a
probate judge. § 41-16-20, Ala. Code 1975. Judge Allison, for
his part, argues that he substantially complied with the
competitive-bid
law, thus obligating the Commission to pay
the
15
1140034
costs of publishing the notices. See Kennedy v. City of
Prichard, 484 So. 2d 432, 434 (Ala. 1986) (substantial
compliance
may
satisfy
the
competitive-bid
law);
Brown's
Ferry
Waste Disposal Ctr., Inc. v. Trent, 611 So. 2d 226, 230
(same); Owens v. Bentley, 675 So. 2d 476, 478 (Ala.
1996)(same).
Having reviewed the record and briefs before us, we
conclude that the circuit court did not rule on the issue or
make findings of fact regarding whether Judge
Allison
complied
with the competitive-bid law. Because the circuit court has
2
In
fact,
the
circuit
court
avoided
this
issue
altogether,
2
as demonstrated by this brief exchange between Mr. Agricola
and the circuit court regarding substantial compliance with
the competitive-bid law:
"MR. AGRICOLA: The only two things that Judge
Allison did that are not in technical compliance
with the bid law is that he didn't put a time of day
on March 21st when he would open the bids. He didn't
do that. He didn't open them in public. Those are
the only two things.
"Now,
there
are
cases
that
say
substantial
compliance with the bid law is all that's required,
so, you know and it's up to the purchasing agent to
determine whether there's substantial compliance.
Now, we don't go there because the probate judge is
not listed in the competitive bid law as one of the
officers required to contract by competitive bid,
the county commission is. If the county commission
wants to publish the second list of voters and incur
16
1140034
not ruled on the issue whether Judge Allison substantially
complied with the competitive-bid law, we remand the case to
the circuit court to consider that issue.
Conclusion
As chief election officer for Walker County pursuant to
§ 17-1-3(b), Ala. Code 1975, Judge Allison may contract to
publish the notices he is required to publish under § 17-4-1,
§ 17-8-2, § 17-9-5, and § 21-4-23(b), Ala. Code 1975. We
therefore reverse the circuit court's judgment insofar as it
held otherwise. We remand the case for further proceedings,
including
a
determination
of
whether
Judge
Allison
substantially complied with the competitive-bid law and, if
the unnecessary and additional cost of doing that,
that's up to the county. It can do that. It's
already been done now. It's in today's paper, why
spend the extra money to do it? The probate judge
was complying with his responsibilities.
"THE COURT: I didn't know I was here to try the bid
law today. I say we get past this point, then if
there's an issue, it will be resolved before the
general election."
17
1140034
so, whether Judge Allison's request for attorney fees is
appropriate.
REVERSED AND REMANDED.
Bolin, Murdock, and Main, JJ., concur.
Bryan, J., concurs in the result.
18 | September 18, 2015 |
d98cd240-d4c2-4346-b331-27654a0086f2 | Ex parte Corderious McLellan. | N/A | 1141027 | Alabama | Alabama Supreme Court | rel: 09/04/2015
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, 2015
____________________
1141027
____________________
Ex parte Corderious McLellan
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Corderious Domini McLellan
v.
State of Alabama)
(Jefferson Circuit Court, CC-13-3316;
Court of Criminal Appeals, CR-14-0143)
MAIN, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
1141027
MOORE, Chief Justice (dissenting).
I respectfully dissent from the denial of the petition
for a writ of certiorari filed by Corderious McLellan, who is
serving a sentence of life imprisonment without the
possibility of parole on a capital-murder conviction. He
appealed his conviction to the Court of Criminal Appeals,
which affirmed by unpublished memorandum. McLellan v. State
(No. CR-14-0143, May 29, 2015), ___ So. 3d ___ (Ala. Crim.
App. 2015)(table). I would grant McLellan's petition to
determine whether, under the doctrine of transferred intent,
the factual circumstances that elevate the killing to a
capital offense as defined in § 13A-5-40, Ala. Code 1975, may
be transferred along with the intent to kill. I do not believe
Alabama cases adequately answer this question. See, e.g., Ex
parte Jackson, 614 So. 2d 405 (Ala. 1993); State v. Phillips,
842 So. 2d 27 (Ala. Crim. App. 2002).
2 | September 4, 2015 |
aa37858b-75f1-4ba8-8b15-26fd7c5b6437 | Ex parte David Eugene Davis. | N/A | 1131171 | Alabama | Alabama Supreme Court | REL: 06/30/2015
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, 2014-2015
____________________
1131171
____________________
Ex parte David Eugene Davis
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: David Eugene Davis
v.
State of Alabama)
(St. Clair Circuit Court, CC-96-91.60;
Court of Criminal Appeals, CR-10-0224)
PER CURIAM.
David Eugene Davis petitioned this Court for a writ of
certiorari to review the decision of the Court of Criminal
1131171
Appeals affirming the trial court's denial of Davis's Rule 32,
Ala. R. Crim. P., petition. Davis v. State, [Ms. CR-10-0224,
May 2, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014). This
Court granted the petition as to the first ground asserted in
Davis's petition for certiorari review, relating to
alleged
ex
parte communication between the trial judge and the jury, and
the second ground, relating to the procedural preclusion of a
claim alleging that the trial judge had given supplemental
instructions to the jury outside the presence of Davis and his
counsel.
On March 15, 2015, Davis's counsel filed a notice of
Davis's death and a motion to vacate the rulings of the lower
courts with regard to the issues on which this Court had
granted certiorari review. This motion advised this Court
that Davis died on March 14, 2015, and requested this Court to
vacate the portions of the lower court rulings as to which
this Court had granted certiorari review. The State filed a
response agreeing that the certiorari petition is moot and
taking no position on the motion to vacate.
The motion to vacate is denied, and the writ of
certiorari is quashed as moot. In quashing the writ, this
2
1131171
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of
Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782,
280 So. 2d 155 (1973).
WRIT QUASHED AS MOOT; MOTION TO VACATE DENIED.
Moore, C.J., and Stuart, Bolin, Parker, Shaw, Main, and
Bryan, JJ., concur.
Murdock, J., concurs specially.
Wise, J., recuses herself.*
*Justice Wise was the presiding judge of the Court of
Criminal Appeals when that court initially considered this
case.
3
1131171
MURDOCK, Justice (concurring specially).
I concur in quashing the writ based on the death of the
petitioner, David Eugene Davis. I write specially to express
my view that there is a probability of merit as to the
position taken by Davis with respect to both issues upon which
this Court granted certiorari review: (1) whether the Court of
Criminal Appeals incorrectly affirmed the trial court's
decision on a ground not raised in the trial court, namely,
that the claim was not sufficiently pleaded, and (2) whether
Davis's claim alleging that the trial court gave supplemental
instructions to the jury outside the presence of the defendant
and his counsel was precluded.
4 | June 30, 2015 |
b76aded3-ab37-40f7-9757-1cd3c0beeb07 | Ex parte Barze. | N/A | 1131394 | Alabama | Alabama Supreme Court | REL: 06/26/2015
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, 2014-2015
_________________________
1131394
_________________________
Ex parte Brian Barze
PETITION FOR WRIT OF MANDAMUS
(In re: Brian Barze
v.
James S. Holbrook, Jr., and Sterne Agee Group, Inc.)
(Jefferson Circuit Court, CV-13-900763)
WISE, Justice.
Brian Barze, the plaintiff below, filed a petition for a
writ of mandamus requesting that this Court direct the
Jefferson Circuit Court to set aside its July 23, 2014, order
1131394
sealing a motion to stay filed by James S. Holbrook, Jr., one
of the defendants below. We grant the petition and issue the
writ.
Facts and Procedural History
On March 1, 2013, Barze filed in the Jefferson Circuit
Court an action against Sterne Agee Group, Inc., and Holbrook,
the then CEO of Sterne Agee. Barze included claims of
promissory fraud and fraudulent inducement, breach of
contract, conversion, and defamation.
In his complaint,
Barze
alleged that, in spring 2009, Sterne Agee had approached him
about leaving his old company and becoming the chief financial
officer ("CFO") of Sterne Agee and that Holbrook had told him
that, if he joined Sterne Agee, Sterne Agee would pay him
severance pay of at least one year's salary and bonus if the
job with Sterne Agee did not work out. Barze alleged that he
relied on Holbrook's promises and representations when he
agreed to accept the job at Sterne Agee and when he left his
former employer and gave up his opportunities there. Barze
asserted that, after he started working with Sterne Agee, he
was presented with an employment agreement to sign; that
Holbrook assured him that the employment agreement was signed
2
1131394
by all employees; that Holbrook assured him that Holbrook
could and would take care of Barze and honor their oral
agreement regarding the severance pay of at least one year's
salary and bonus; and that Holbrook told Barze that he was
committed to Barze as the long-term CFO of Sterne Agee. Barze
asserted that,
in
reliance on Holbrook's
assertions, he signed
the employment agreement.
Barze asserted that Holbrook's primary instructions for
him as CFO were "to protect Sterne Agee's bottom line
profitability by reducing wasteful and abusive spending."
However, he alleged that he later learned that "Holbrook
use[d] Sterne Agee and its resources and corporate toys for
Holbrook's own personal pleasure, thereby contributing
enormously to the wasteful and abusive spending at Sterne Agee
that detracts from its
profitability."
Barze further asserted
that he learned that Holbrook used Sterne Agee funds to invest
in business ventures without the approval of or disclosure to
the Sterne Agee Board. He also alleged that Holbrook
frequently "individually invested in the same ventures,
receiving stock
in connection with those
investments"
and that
"Holbrook benefitted personally from Sterne Agee corporate
3
1131394
investments that often resulted in losses for Sterne Agee."
Barze asserted that he discussed with Holbrook the issue of
Holbrook's wasteful personal use of Sterne Agee assets, but
Holbrook told him the issue was none of Barze's concern. He
also asserted that Holbrook had threatened that, "if any
employee in Barze's accounting department ever had access to
Holbrook's Sterne Agee holding company expenditures, that
person would be 'fired.'" Finally, Barze asserted that, on
August 21, 2012, the interim human-resources director for
Sterne Agee came to his office and told him that he was "'let
go effective immediately'" and that he was not given any
reason for the termination of his employment with Sterne Agee.
In his complaint, Barze asserted that, after his
employment was terminated, Sterne Agee refused to pay him the
severance pay Holbrook had promised him. He also asserted
that he repeatedly requested return of the shares of Sterne
Agee stock, or the bonds to which they had been converted, and
other stocks he had purchased during his employment at Sterne
Agee but that Holbrook and Sterne Agee refused to return that
property to him. Barze further asserted that it appeared that
Sterne Agee and Holbrook "have somehow unlawfully substituted
4
1131394
the stock shares that Barze purchased with zero coupon bonds."
Finally, he alleged that he had been defamed by Holbrook on
numerous occasions.
On July 18, 2014, Holbrook filed a motion for leave to
file under seal a motion to stay Barze's action pending the
conclusion of a criminal investigation and proceedings.
Holbrook asserted that the matters addressed in his motion to
stay involved information that would promote defamation and
that would pose potential harm for third parties who were not
parties to the litigation. On July 21, 2014, Barze filed an
objection and response to Holbrook's motion for leave to file
his motion to stay under seal. On July 23, 2014, the trial
court entered an order granting Holbrook's motion for leave to
file his motion to stay under seal and ordering the circuit
clerk to seal Holbrook's motion to stay. Subsequently,
Holbrook filed his motion to stay the underlying civil action
pending a criminal investigation and proceedings, which the
trial court granted.
On September 3, 2014, Barze filed in this Court a
petition for a writ of mandamus directing the trial court to
vacate its order sealing Holbrook's motion to stay and
5
1131394
directing the trial court to vacate its order staying the
proceedings in the trial court pending the completion of the
criminal investigation and proceedings. This Court
denied
the
petition by order issued October 30, 2014, as to the trial
court's order staying the proceedings but ordered answers and
briefs as to the trial court's order sealing Holbrook's motion
to stay.
Standard of Review
"'Mandamus is an extraordinary remedy and will
be granted only where there is "(1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court."' Ex parte Ocwen Federal
Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)(quoting
Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.
1991))."
Ex parte Gadsden Reg'l Med. Ctr., 904 So. 2d 234, 235 (Ala.
2004).
"Review of a trial court's sealing of the record or
documents is clearly subject to review for abuse of
discretion.[ ] Holland v. Eads, 614 So. 2d 1012,
1
This Court has stated:
1
"We now phrase the question formerly framed in
terms of whether a trial court 'abused' its
discretion in terms of whether the trial court
'exceeded' its discretion. E.g., Vesta Fire Ins.
Corp. v. Milam & Co. Constr., Inc., 901 So. 2d 84
6
1131394
1014 (Ala. 1993); In re Application and Affidavit
for a Search Warrant, 923 F.2d 324, 326 (4th Cir.),
cert. denied, 500 U.S. 944, 111 S. Ct. 2243, 114 L.
Ed. 2d 484 (1991). See also Wilson v. American
Motors Corp., 759 F.2d 1568, 1571 (11th Cir.
1985)(where parties presented 'no legally sufficient
reasons for the closure of the record[,] ... the
sealing of the record was an abuse of discretion').
...
"It is well settled that '[i]n cases involving
the exercise of discretion by a lower court, a writ
of mandamus may issue to compel the exercise of that
discretion; however, it may not issue to control the
exercise of discretion except in a case of abuse.'
Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala.
1990)."
Ex parte Birmingham News Co., 624 So. 2d 1117, 1126 (Ala.
Crim. App. 1993).
Discussion
Barze argues that the trial court exceeded its discretion
when it granted Holbrook's motion for leave to file his motion
to stay under seal and then sealed Holbrook's motion to stay
because it did not first comply with the procedural
requirements set forth in Holland v. Eads, 614 So. 2d 1012
(Ala. 1993). In Holland, this Court stated:
(Ala. 2004); Johnson v. Willis, 893 So. 2d 1138
(Ala. 2004); and Zaden v. Elkus, 881 So. 2d 993
(Ala. 2003)."
Ex parte Family Dollar Stores of Alabama, Inc., 906 So. 2d
892, 899 (Ala. 2005).
7
1131394
"In light of the public policy in favor of public
access
and
the
prevailing
analysis
of
this
presumption in most American courts, we hold that if
a motion to seal is filed, then the trial court
shall conduct a hearing. The trial court shall not
seal court records except upon a written finding
that the moving party has proved by clear and
convincing evidence that the information contained
in the document sought to be sealed:
"(1) constitutes a trade secret or other
confidential
commercial
research
or
information;
see
Brown
&
Williamson
Tobacco
Corp.[v. F.T.C., 710 F.2d 1165,] 1179 [(6th
Cir. 1983)]; or
"(2) is a matter of national security; see
Barron [v. Florida Freedom Newspapers,
Inc., 531 So. 2d 113,] 118 [(Fla. 1988)];
or
"(3) promotes scandal or defamation; or
"(4) pertains to wholly private family
matters, such as divorce, child
custody, or
adoption; see [Nixon v.] Warner[ Commc'ns,
Inc., 435 U.S. 589 (1978)]; [Ex parte]
Balogun, [516 So. 2d 606 (Ala. 1987)];
Holcombe v. State ex rel. Chandler, 240
Ala. 590, 200 So. 739 (1941); or
"(5) poses a serious threat of harassment,
exploitation, physical intrusion, or other
particularized harm to the parties to the
action; or
"(6) poses the potential for harm to third
persons not parties to the litigation.
"If any one of the above criteria is satisfied,
then the trial court may seal the record, or any
8
1131394
part of the record, before trial, during trial, or
even after a verdict has been reached.
"This
approach
limits,
but
does not
abolish,
the
range of judicial discretion. There is a presumption
in favor of openness, which can be overcome only by
clear and convincing evidence that an individual's
privacy interest (as set out above) rises above the
public interest in access."
614 So. 2d at 1016.
In this case, the trial court had a duty to conduct a
hearing on Holbrook's motion for leave to file his motion to
stay under seal, but it did not do so. Additionally, before
sealing the motion, the trial court had a duty to make written
findings that Holbrook had proved by clear and convincing
evidence that the information contained in his motion to stay
fell within one of the six categories set forth in Holland.
However, it did not do so. In fact, in its order granting the
motion, the trial court merely stated:
"The Defendant, James S. Holbrook, Jr.'s Motion
for Leave to file Under Seal is GRANTED. The Clerk
is Directed to SEAL the Defendant, James S.
Holbrook, Jr.'s Motion to Stay Civil Action Pending
Conclusion
of
Criminal
Investigation
and
Proceeding."
Accordingly, the trial court did not comply with any of the
procedural requirements set forth in Holland before it sealed
Holbrook's motion to stay.
9
1131394
Conclusion
Because the trial court did not comply with the procedure
set forth in Holland, it exceeded its discretion when it
granted Holbrook's motion and directed the circuit clerk to
seal Holbrook's motion to stay the underlying civil action.
Accordingly, we grant the petition for the writ of mandamus
and direct the trial court to vacate its July 23, 2014, order
granting Holbrook's motion for leave to file his motion to
stay under seal and sealing Holbrook's motion to stay. In
reaching our decision, we do not address the merits of whether
the motion for leave to file the motion to stay under seal was
due to be granted in this case. Therefore, we direct the
trial court to consider Holbrook's motion for leave to file
the motion to stay under seal in accordance with the procedure
set forth in Holland.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,
JJ., concur.
Moore, C.J., concurs in the result.
10 | June 26, 2015 |
87454f03-64b6-4285-8c18-689d6a946bed | Ex parte Cornell L. Tatum, Sr., et al. | N/A | 1131368 | Alabama | Alabama Supreme Court | Rel: 07/10/2015
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, 2015
____________________
1131368
____________________
Ex parte Cornell L. Tatum, Sr., et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Marlin King et al.
v.
Cornell L. Tatum, Sr., et al.)
(Macon Circuit Court, CV-14-900080)
PARKER, Justice.1
This case was originally assigned to another Justice on
1
this Court; it was reassigned to Justice Parker on April 15,
2015.
1131368
PETITION DENIED. NO OPINION.
Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Parker, J., concurs specially.
Moore, C.J., and Murdock, J., dissent.
2
1131368
PARKER, Justice (concurring specially).
I agree with this Court's decision to deny the petition
for a writ of mandamus filed by Cornell L. Tatum, Sr., Charlie
Hardy, and Charles Lancaster ("the petitioners"). I write
specially to emphasize that a circuit court lacks subject-
matter jurisdiction to apply judicial notions of due process
to church proceedings when the highest adjudicatory body of a
church decides a purely ecclesiastical matter. Additionally,
I write to note that a circuit court may recognize a decision
by the highest adjudicatory body of a church concerning a
purely ecclesiastical matter and, based on that decision,
enjoin persons from taking unauthorized actions on behalf of
the church.
To understand the limited scope of the ecclesiastical
matter in the present case, a recitation of the facts before
this Court is necessary. On December 14, 2008, the Greenwood
Missionary Baptist Church ("the church") adopted a set of
bylaws entitled "Bylaws for the Governance of Greenwood
Missionary Baptist Church" ("the bylaws"). The bylaws, which
vest the governance of the church in its members, state:
"The governance of [the church] shall be vested in
the members who compose it, and, as such, it is
3
1131368
subject to the control of no other ecclesiastical
organization. Also, none of its boards, committees
or officers can usurp its executive, governmental or
policy-making powers except as provided for in these
bylaws."
The bylaws mandate that a board of deacons ("the board")
be established for the church. The board is responsible for
holding in trust all property belonging to the church,
determining the use of the church building for all non-
religious purposes, designating the financial institution at
which church funds are deposited, and securing the services of
all staff at a salary authorized by the church. The board is
"ordained to their work according to Acts 6:1-8 and 1 Timothy
3:8-13."2
Acts 6:1-8 (New King James Version):
2
"Now in those days, when the number of the
disciples was multiplying, there arose a complaint
against the Hebrews by the Hellenists, because their
widows were neglected in the daily distribution.
Then the twelve summoned the multitude of the
disciples and said, 'It is not desirable that we
should leave the word of God and serve tables.
Therefore, brethren, seek out from among you seven
men of good reputation, full of the Holy Spirit and
wisdom, whom we may appoint over this business; but
we will give ourselves continually to prayer and to
the ministry of the word.'
"And the
saying
pleased
the
whole
multitude.
And
they chose Stephen, a man full of faith and the Holy
Spirit, and Philip, Prochorus, Nicanor, Timon,
4
1131368
The bylaws set forth the following procedure by which
deacons are selected:
"Church members shall first nominate candidates to
the
Pastor
and
Chair
of
[the
board].
On
recommendation of the board the candidates are
presented to the congregation. At a church meeting,
[the board] shall make its recommendation to the
[c]hurch. Those persons to be accepted by the
[c]hurch to fill the office of Deacon must meet the
standards as listed in [Acts 6:1-8 and 1 Timothy
3:8-13]. Candidates for Deaconship will then receive
training and preparation for their tasks. At the end
of this period and upon recommendation to the
Parmenas, and Nicolas, a proselyte from Antioch,
whom they set before the apostles; and when they had
prayed, they laid hands on them.
"Then the word of God spread, and the number of
the disciples multiplied greatly in Jerusalem, and
a great many of the priests were obedient to the
faith.
"And Stephen, full of faith and power, did great
wonders and signs among the people."
1 Timothy 3:8–13 (New King James Version):
"Likewise
deacons
must
be
reverent,
not
double-tongued, not given to much wine, not greedy
for money, holding the mystery of the faith with a
pure conscience. But let these also first be tested;
then let them serve as deacons, being found
blameless. Likewise, their wives must be reverent,
not slanderers, temperate, faithful in all things.
Let deacons be the husbands of one wife, ruling
their children and their own houses well. For those
who have served well as deacons obtain for
themselves a good standing and great boldness in the
faith which is in Christ Jesus."
5
1131368
[c]hurch by the Pastor, the candidate(s) shall be
ordained."
The bylaws also require that individual deacons "shall
actively hold office provided they faithfully discharge their
duties." Furthermore, the bylaws state that "[t]he [c]hurch
may, for good and sufficient cause, remove any Deacon from
office at any appropriate time it deems necessary."
Prior to April 20, 2014, the petitioners were deacons of
the church. On April 20, 2014, the congregation of the church
called a meeting at which the members of the church who
attended unanimously passed
a
motion to remove the petitioners
from their positions as deacons.
Following the April 20, 2014, meeting, a letter was sent
to the board, purportedly on behalf of the church. The letter
advised the board, in pertinent part:
"The congregation of [the church] called a church
meeting on Sunday, April 20, 2014. Attending members
discussed,
moved,
and
voted
to
remove
[the
petitioners] as Deacons effective immediately.
Their authoritative and repeated Pastor-removal
communications/activities with complete disregard
for the church governance by the church body were
included in the expressions of the body. Also
expressed was that the spirt of their communications
and actions was not perceived as coming from God's
Spirit."
6
1131368
The letter is signed "The Greenwood Missionary
Baptist
Church"
and states "see attached for signatures." Included with the
letter
is
an
attachment
entitled
"Greenwood
Missionary
Baptist
Church Church Meeting." The attachment is dated April 20,
2014, and contains 95 signatures; nothing before this Court
indicates how many members are in the church.
On April 21, 2014, a letter was sent to each of the
petitioners, purportedly on behalf of the church. Each letter
stated, in pertinent part:
"By executing Article VIII, Section 1 (Church Boards
and Ministries) [of the bylaws] which reads, 'The
[c]hurch may, for good and sufficient cause, remove
any Deacon from office at any appropriate time it
deems necessary,' the membership of [the church]
have voted on a motion to remove you as a Deacon on
[the board] of [the church]. Thus, effective April
20, 2014, you are no longer a Deacon at the
[c]hurch. All activities associated with your
previous office as Deacon should cease effective
April 20, 2014, as you have already been notified by
letter of the church's decision on that date."
On April 24, 2014, Tatum sent a letter addressed to
"Members of Greenwood Missionary Baptist Church," which
stated, in pertinent part:
"This is an official notice from [the board]
regarding the unofficial meeting held in the Kelly
Smith House on Sunday April 20, 2014. [The church]
has established Policies and Bylaws that were not
followed. Therefore, [the board] in a called meeting
7
1131368
on April 22, 2014, rendered all actions taken in
this meeting and communications sent to [the
petitioners], are null and void without standing and
fail to abide by the [b]ylaws of the [c]hurch."
It is undisputed that Marlin King, Deborah Banks, and
Helen King ("the plaintiffs") are members in good standing of
the church. On June 5, 2014, the plaintiffs filed a complaint
against the petitioners before Judge Thomas Young in the Macon
Circuit Court ("the circuit court") requesting: 1) "an order
enjoining [the petitioners] from taking any act as a member of
[the board] of [the church]," and 2) "an [o]rder declaring
that the recent votes of the congregation are valid and that
[the petitioners] have been removed as members of [the
board]." The plaintiffs filed their complaint "on behalf of
themselves and the concerned members of [the church]."
On July 18, 2014, the petitioners filed a motion to
dismiss the plaintiffs' complaint, alleging that the circuit
court lacked subject-matter jurisdiction. The petitioners
alleged, in part, that "[t]his case involves religious and
ecclesiastical matters concerning who and who is not a member
of [the board] and Board of Trustees of [the church], which is
a religious matter that should be decided by [the board] and
Board of Trustees of [the church]."
8
1131368
On July 21, 2014, the circuit court held a hearing at
which the petitioners' motion to dismiss for lack of subject-
matter jurisdiction was discussed. On July 25, 2014, the
circuit court issued a preliminary injunction enjoining the
petitioners from "undertaking any act as a member of [the
board] of [the church] including any participation in Deacon
meetings or performing any duties or responsibilities of a
deacon while this order is in effect." On July 29, 2014, the
circuit court denied the petitioners' motion to dismiss for
lack of subject-matter jurisdiction.
On August 27, 2014, the petitioners petitioned this Court
for a writ of mandamus directing the circuit court to vacate
its order denying their motion to dismiss for lack of subject-
matter jurisdiction; the petitioners did not ask this Court to
direct the circuit court to vacate the
preliminary
injunction.
Before this Court the petitioners allege, in part, that
the circuit court exceeded its discretion when it denied the
petitioners' motion to dismiss for lack of subject-matter
jurisdiction. Specifically, the petitioners argue that the
circuit
court
exceeded
its
discretion
because,
the
petitioners
argue, the First Amendment to the United States Constitution
9
1131368
deprives the circuit court of subject-matter jurisdiction and
because, the petitioners argue, the circuit court purportedly
violated the Alabama Religious Freedom Amendment ("ARFA"),
Ala. Const. 1901, Art. I, § 3.01.
The petitioners allege that the First Amendment of the
United States Constitution deprives the circuit court of
subject-matter jurisdiction, arguing as follows:
"In the present case three members of [the
church] ... want the Judiciary Branch of the
Government of the State of Alabama to interpret
ambiguous bylaws of [the church] and to decide
internal disputes of [the church], without making
[the church] a party to the case and without giving
[the
church]
an
opportunity
to
decide
the
interpretation of its own bylaws and to decide its
own internal disputes. The Judiciary Branch does not
have subject matter jurisdiction to decide such a
case because the religious freedom provision of the
First Amendment[ ] would be violated. Ex parte Bole,
3
[103 So. 3d 40, 50 (Ala. 2012)]."
In Ex parte Bole, 103 So. 3d 40 (Ala. 2012), this Court
set out the standard for determining whether, under the Free
I assume that the "religious freedom provision" to which
3
the petitioners refer is the Free Exercise Clause of the First
Amendment to the United States Constitution. That Amendment
provides, in part: "[C]ongress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof." The Free Exercise Clause is applicable to the
States through the Due Process Clause of the Fourteenth
Amendment. GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,
1253 (11th Cir. 2012).
10
1131368
Exercise Clause of the First Amendment, a state court has
jurisdiction over a church dispute:
"With regard to a state court's jurisdiction
over a church in the face of a First Amendment
challenge, this Court has stated:
"'As is the case with all churches,
the courts will not assume jurisdiction, in
fact
has
none,
to
resolve
disputes
regarding
their
spiritual
or
ecclesiastical
affairs. However, there is jurisdiction to
resolve questions of civil or property
rights. Williams v. Jones, 258 Ala. 59, 61
So. 2d 101 (1952).'"
103 So. 3d at 53 (quoting Abyssinia Missionary Baptist Church
v. Nixon, 340 So. 2d 746, 748 (Ala. 1976)). See also Foster
v. St. John's Baptist Church, Inc., 406 So. 2d 389, 391 (Ala.
1981) ("Alabama follows the general rule expressed in Odoms v.
Woodall, 246 Ala. 427, 429, 20 So. 2d 849 (1945): 'The civil
courts will not take jurisdiction of a controversy arising out
of the removal of a minister if the right to the position is
merely spiritual or ecclesiastical ....'"(emphasis added));
Putman v. Vath, 340 So. 2d 26, 28 (Ala. 1976)(citing Odoms,
supra). Additionally, Justice Murdock, then a judge on the
Court of Civil Appeals, stated in his opinion concurring
specially in McGlathery v. Richardson, 944 So. 2d 968, 975
(Ala. Civ. App. 2006)(Murdock, J., concurring specially):
11
1131368
"[I]t is the nature of the underlying dispute that
determines whether a court has jurisdiction to
consider matters of church procedure. As Hundley [v.
Collins, 131 Ala. 234, 32 So. 575 (1902),] clearly
articulates, if the substantive dispute is spiritual
or ecclesiastical in nature, it is irrelevant to the
civil court whether the church followed its own
procedures, per se; the civil court has no
jurisdiction to consider the matter. See also, e.g.,
Caples v. Nazareth Church of Hopewell Ass'n, 245
Ala. 656, 18 So. 2d 383 (1944). Accord Sale v. First
Regular Baptist Church, 62 Iowa 26, 17 N.W. 143
(1883); and Evans v. Shiloh Baptist Church, 196 Md.
543, 77 A.2d 160 (1950)."
In Hundley v. Collins, 131 Ala. 234, 32 So. 575 (1902),
the Christian Church of Huntsville was "'independent, not
subject to the control of any higher or other ecclesiastical
judicature.'" 131 Ala. at 242, 32 So. at 578. Following a
meeting of its congregation in which Orville M. Hundley was
charged with "disorderly conduct in a great degree," Hundley
was removed as a member and deacon. Id. Hundley filed a
petition for a writ of mandamus in which he alleged that the
Christian Church of Huntsville had improperly removed him as
a member because, he asserted, among other reasons, he was not
given notice of the meeting and the congregation did not vote
on the charges of which he was accused. Id. The trial court
denied Hundley's petition, and
this Court affirmed its denial,
stating:
12
1131368
"There were no property interests involved, nothing
touching what are termed the temporalities of the
church
as
contradistinguished
from
its
spiritualities. The petitioner had no pecuniary
interests, in any direction, involved in the
proceeding, and it did not touch any of his civil
rights at any point. It may be, the church proceeded
irregularly according to common usage in such cases;
but it is averred, that this church 'is of the
denomination known as "Disciples of Christ," of
which Alexander Campbell was the original preacher,
if not the founder,' and that 'each church is of
itself independent, not subject to the control of
any higher or other ecclesiastical judicature.' As
an ecclesiastical body, therefore, it was a law unto
itself, self-governing and amenable to no court,
ecclesiastical or civil, in the discharge of its
religious functions. It could make and unmake its
rules and regulations for the reception and
exclusion of members, and in reference to other
matters; and what other body religious or civil
could question its right to do so? Certainly, if it
violated no civil law, the arm of civil authority
was short to reach it. Admitting, therefore, as we
must on demurrer, that petitioner had no notice of
this proceeding, and that it was irregular according
to common usage, the church being independent, and
not subject to higher powers, and being a law unto
itself for its own procedure in religious matters,
what it did towards the expulsion of petitioner was
not unlawful, even if it was not politic and wise.
If the civil courts may in this instance interfere
to question the exclusion of petitioner, they may do
so, in any instance where a member of that or any
other church is removed, on the allegation of
irregular and unfair proceedings for the purpose.
This would open a door to untold evils in the
administration of church affairs, not consistent
with the principles of religious freedom as
recognized in this country, where there is no
established church or religion, where every man is
entitled to hold and express with freedom his own
13
1131368
religious views and convictions, and where the
separation of state and church is so deeply
intrenched in our constitutions and laws."
Hundley, 131 Ala. at 242-43, 32 So. at 578 (emphasis added).
I recognize that "this Court has reviewed the actions of
churches in expelling members or electing officers. See, e.g.,
Yates v. El Bethel Primitive Baptist Church, 847 So. 2d 331
(Ala. 2002); Abyssinia Missionary Baptist Church v.
Nixon,
340
So. 2d 746 (Ala. 1976); In re Galilee Baptist Church, 279 Ala.
393, 186 So. 2d 102 (1966)." Lott v. Eastern Shore Christian
Ctr., 908 So. 2d 922, 928 (Ala. 2005). However, to the extent
that Yates v. El Bethel Primitive Baptist Church, 847 So. 2d
331 (Ala. 2002), Abyssinia Missionary
Baptist Church
v.
Nixon,
340 So. 2d 746 (Ala. 1976), and In re Galilee Baptist Church,
279 Ala. 393, 186 So. 2d 102 (1966), stand for the proposition
that a circuit court may apply judicial notions of due process
to church proceedings when a church decides a purely
ecclesiastical matter, this Court appears to have modified
that proposition by recognizing Serbian Eastern Orthodox
Diocese for the United States of America & Canada v.
Milivojevich, 426 U.S. 696 (1976), in Lott. Lott involved the
termination of church membership and the right of an allegedly
14
1131368
wrongfully
terminated
member
to
examine
the
church's
financial
records. This Court stated:
"The mere threat of expulsion, which is all the
TRO [temporary-restraining order] motion in this
case involved, obviously did not involve an issue
regarding a secular, or neutral, procedural defect.
A challenge such as this one essentially alleges
violation of a substantive right, such as a right to
be
free
from
the
arbitrary
action
of
an
ecclesiastical body. However, the United States
Supreme Court has clearly stated that no such right
exists. Serbian Eastern Orthodox Diocese for the
United States of America & Canada v. Milivojevich,
426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151
(1976).
"In Milivojevich, the Court considered whether
the Illinois Supreme Court had properly invalidated
the decision of the Holy Assembly of Bishops and the
Holy Synod of the Serbian Orthodox Church ('the
Mother Church') to 'defrock' Bishop Dionisije
Milivojevich 'on the ground that [the decision] was
"arbitrary" because a "detailed review of the
evidence disclose[d] that the proceedings resulting
in Bishop Dionisije's removal and defrockment were
not in accordance with the prescribed procedure of
the constitution and the penal code of the Serbian
Orthodox Church."' 426 U.S. at 718, 96 S. Ct. 2372.
The Court held 'that the inquiries made by the
Illinois
Supreme
Court
into
matters
of
ecclesiastical cognizance and polity and the court's
action pursuant thereto contravened the First and
Fourteenth Amendments.' 426 U.S. at 698, 96 S. Ct.
2372. In doing so, it explained:
"'The conclusion of the Illinois Supreme
Court that the decisions of the Mother
Church were "arbitrary" was grounded upon
an inquiry that persuaded the Illinois
Supreme Court that the Mother Church had
15
1131368
not followed its own laws and procedures in
arriving at those decisions. We have
concluded that whether or not there is room
for "marginal civil court review" under the
narrow rubrics of "fraud" or "collusion"
when church tribunals act in bad faith for
secular
purposes,
no
"arbitrariness"
exception in the sense of an inquiry
whether the decisions of the highest
ecclesiastical tribunal of a hierarchical
church complied with church laws and
regulations
is
consistent
with
the
constitutional mandate that civil courts
are bound to accept the decisions of the
highest
judicatories
of
a
religious
organization of hierarchical polity on
matters of discipline, faith, internal
organization,
or
ecclesiastical
rule,
custom, or law. For civil courts to analyze
whether the ecclesiastical actions of a
church judicatory are in that sense
'arbitrary' must inherently entail inquiry
into
the
procedures
that
canon
or
ecclesiastical law supposedly requires the
church judicatory to follow, or else into
the substantive criteria by which they are
supposedly to decide the ecclesiastical
question. But this is exactly the inquiry
that
the
First
Amendment
prohibits;
recognition of such an exception would
undermine the general rule that religious
controversies are not the proper subject of
civil court inquiry, and that a civil court
must
accept
the
ecclesiastical
decisions
of
church tribunals as it finds them ....
"'"...."
"'Indeed, it is the essence of religious
faith that ecclesiastical decisions are
reached and are to be accepted as matters
of faith whether or not rational or
16
1131368
measurable
by
objective
criteria.
Constitutional concepts of due process,
involving secular notions of "fundamental
fairness" or impermissible objectives, are
therefore hardly relevant to such matters
of ecclesiastical cognizance.'
"426 U.S. at 712–16, 96 S. Ct. 2372 (emphasis added;
footnotes omitted). See also Kaufmann v. Sheehan,
707 F.2d 355 (8th Cir. 1983); Green v. United
Pentecostal Church Int'l, 899 S.W.2d 28 (Tex. Ct.
App. 1995).
"Milivojevich involved the discipline of a
bishop, rather than a church member such as Lott.
Nevertheless, '[f]or essentially the same reasons
that courts have refused to interfere with the basic
ecclesiastical decision of choosing the minister
..., this Court must not interfere with the
fundamental ecclesiastical concern of determining
who is and who is not [a Church] member.' Burgess v.
4
Rock Creek Baptist Church, 734 F. Supp. 30, 33
(D.D.C. 1990). See also Kral v. Sisters of the Third
Order Regular of St. Francis, 746 F.2d 450 (8th Cir.
1984); Nunn v. Black, 506 F. Supp. 444, 448 (W.D.
Va.) ('the fact that the local church may have
departed arbitrarily from its established expulsion
procedures in removing the plaintiffs is of no
constitutional consequence, whether one appeals the
First, Fifth, or Fourteenth Amendments'), aff'd, 661
F.2d 925 (4th Cir. 1981); Caples v. Nazareth Church
of Hopewell Ass'n, 245 Ala. 656, 660, 18 So. 2d 383,
386 (1944) ('"we have no power to revise or question
ordinary acts of church membership, or of excision
from membership"').
"Lott's motion stated no grounds for a TRO,
other than an allegedly intractable disagreement
over 'rights of access [to] and copying [of] Church
records.' In seeking to preempt church discipline on
these grounds, the motion for a TRO essentially
invited the court to become embroiled in the merits
17
1131368
of a 'fundamental ecclesiastical concern' with which
the courts must have nothing to do, namely,
'determining who is and who is not [a Church]
member.' Burgess, 734 F. Supp. at 33. Lott has cited
no case preempting ecclesiastical discipline as he
urged the trial court to do, and we have found none.
Because Lott failed to show a 'reasonable chance of
success on the merits,' the trial court did not err
in denying his motion for a TRO.
"__________
" It
is
generally
held
that
the
same
4
considerations apply, regardless of whether the
church
has
a
congregational,
rather
than
a
hierarchical, form of government. First Baptist
Church of Glen Este v. Ohio, 591 F. Supp. 676 (S.D.
Ohio 1983); Heard v. Johnson, 810 A.2d 871 (D.C.
2002); Callahan v. First Congregational Church of
Haverhill, 441 Mass. 699, 808 N.E.2d 301 (2004);
Tubiolo v. Abundant Life Church, Inc., 167 N.C. App.
324, 605 S.E.2d 161 (2004)."
Lott, 908 So. 2d at 929-30 (footnote 3 omitted).
Thus, this Court's recognition of Milivojevich in Lott
seems to have modified principles relied upon by this Court in
Yates, Nixon, and In re Galilee Baptist Church. Accordingly,
this Court has recognized that civil courts may not require
churches to employ judicial notions of due process in
disciplining, suspending, or expelling members; civil courts
certainly may not review a church's actions in that regard
when no property rights of the church are at issue.
18
1131368
The present case involves a purely ecclesiastical matter:
Whether the petitioners remain deacons of the church. There
is no property right at issue because there is no property
right to the position of church deacon. According to the
bylaws, the deacons are "ordained to their work according to
Acts 6:1-8 and 1 Timothy 3:8-13." Deacons "shall actively
hold office provided they faithfully discharge their duties,"
and "[t]he church may, for good and sufficient cause, remove
any Deacon from office at any appropriate time it deems
necessary." Neither the petitioners nor the
plaintiffs
allege
that the petitioners had a property right in their positions
as deacons. In fact, as set out above, the petitioners
alleged in their motion to dismiss that "[t]his case involves
religious and ecclesiastical matters concerning who and
who is
not a member of [the board] and Board of Trustees of [the
church], which is a religious matter that should be decided by
[the board] and Board of Trustees of [the church]." Thus, the
right to hold the position of deacon in the church is "merely
spiritual or ecclesiastical."
I note that it appears that church deacons have the
authority to affect the church's property. However, that fact
19
1131368
alone does not mean that a "property right" is at issue in
this case. See Foster, 406 So. 2d at 391 ("'The civil courts
will not take jurisdiction of a controversy arising out of the
removal of a minister if the right to the position is merely
spiritual or ecclesiastical ....'"(quoting Odoms v. Woodall,
246 Ala. 427, 429, 20 So. 2d 849, 851 (1945)(emphasis
added))). I further note that the plaintiffs have requested
an injunction prohibiting the petitioners from continuing to
serve as deacons. It appears that the plaintiffs are
concerned that the petitioners may not respect the church's
decision to remove them from their positions as deacons and
may attempt to continue to exercise the authority of a deacon.
Of course, should the petitioners do so, their actions would
potentially affect the property of the church. However, that
possibility does not transform this case into a "property
right" case. The plaintiffs are merely asking that the
petitioners, having been removed from their positions as
deacons, be enjoined from taking unauthorized actions as
deacons. The plaintiffs' request for an injunction is
reasonable considering that, if the petitioners no
longer
have
20
1131368
the authority to act as deacons, any action they take as
deacons could constitute a crime against the church or a tort.
In their complaint, the plaintiffs request that the
circuit court issue an order "declaring that the recent votes
of the congregation are valid" and "declaring that ... [the
petitioners] have been removed as members of [the board]." I
understand this to mean that the plaintiffs are requesting the
circuit court to determine whether the church properly
followed its own procedures when its members voted on April
20, 2014, to remove the petitioners as deacons and, based on
that determination, to declare who is and is not a member of
the board. Under Lott and Hundley, supra, and because who
holds the position of deacon in the church is a purely
ecclesiastical matter that does not involve a property right
of the petitioners, the circuit court lacks jurisdiction to do
so.
However, the mere fact that the subject matter of a
church dispute concerns an ecclesiastical or spiritual issue
does not preclude a circuit court from recognizing a decision
rendered by the highest adjudicatory body of a church and,
21
1131368
based on that decision, enjoining persons from taking
unauthorized actions on behalf of the church.
"[W]henever the questions of discipline or of faith,
or ecclesiastical rule, custom, or law have been
decided by the highest of ... church judicatories to
which the matter has been carried, the legal
tribunals must accept such decisions as final, and
as binding on them, in their application to the case
before them."
Hundley v. Collins, 131 Ala. at 246, 32 So. at 579(quoting
Watson v. Jones, 80 U.S. (13 Wall.) 679, 722-25 (1871)). See
also Milivojevich, 426 U.S. at 713 ("[T]he general rule [is]
that religious controversies are not the proper subject of
civil court inquiry, and that a civil court must accept the
ecclesiastical decisions of church tribunals as it finds
them.").
The remainder of the plaintiffs' complaint requests "an
order enjoining [the petitioners] from taking any act as a
member of [the board] of [the church]." This request does not
require the circuit court to decide a purely ecclesiastical or
spiritual matter. Instead, this request merely requires the
circuit court to recognize the outcome of a dispute
purportedly resolved by the highest adjudicatory body in the
church and act in light thereof. Specifically, if the
22
1131368
plaintiffs demonstrate that the highest adjudicatory body of
the church determined that the petitioners were no longer
deacons, the circuit court would have jurisdiction to enjoin
the petitioners from performing unauthorized acts as deacons,
which actions, as stated above, could constitute a crime
against the church or a tort.
Admittedly, however, it is unclear whether the April 20,
2014, vote constituted a decision by the highest adjudicatory
body of the church. In a Baptist church, the majority of the
congregation is the highest adjudicatory body, unless the
church bylaws provide otherwise. McKinney v. Twenty-Fifth
Ave. Baptist Church, Inc., 514 So. 2d 837, 839 (Ala. 1987)
("In each Baptist church the majority of the members of the
church control the business of the church."); Williams v.
Jones, 258 Ala. 59, 62, 61 So. 2d 101, 103 (1952) ("Each
Baptist church is within itself a pure democracy; it is the
right of the majority to rule; the will of the majority having
been expressed, it becomes the minority to submit; church
action is final." (emphasis added)); Gewin v. Mt. Pilgrim
Baptist Church, 166 Ala. 345, 349, 51 So. 947, 948 (1909)
("The Baptist church is congregational in its policy. It is
23
1131368
democratic in its organization. It is the right of each
congregation to rule itself in accordance with the law of the
church. The will of the majority having been expressed, it
becomes the minority to submit. There are no appellate
judicatories."(emphasis
added)).
The
bylaws
vest
governmental
authority in the church members, and "as such it is subject to
the control of no other ecclesiastical organization." None of
the church's "boards, committees or officers can usurp [the
members'] executive, governmental or policy-making powers
except as provided for in these by-laws." And, "the church"
may remove the deacons "at any appropriate time it deems
necessary." Thus, in the church, the highest adjudicatory
body of the church with respect to removing a deacon is a
majority of its members.
Furthermore, on April 20, 2014, members of the church
held a meeting and voted to remove the petitioners as deacons
of the church. It is undisputed that the motion to remove
passed 95-0. However, nothing before this Court suggests that
the 95 church members voting in support of the motion to
remove the petitioners as deacons represented a majority of
the members of the church. Thus, it is not clear from the
24
1131368
facts before this Court that the motion passed at the April
20, 2014, meeting was a decision by the highest adjudicatory
body of the church and, therefore, capable of recognition by
the circuit court.
This lack of clarity, however, does not require that this
Court grant the petitioners' petition. See Ex parte Board of
Trs./Dirs. &/or Deacons of Old Elam Baptist Church, 983 So. 2d
1079, 1093 (Ala. 2007)(holding that the trial court had
jurisdiction for the limited purpose of determining whether
the appropriate authority in the church had terminated the
plaintiff's membership and stating: "As these proceedings go
forward, the trial court should focus its inquiry on whether
'the expulsion was the act of the authority within the church
having the power to order it.'"). Furthermore, under the
standard of review applicable to a petition for a writ of
mandamus, the petitioners are the ones who must demonstrate
that they have a clear legal right to the relief they seek.
The petitioners have not demonstrated that the April 20, 2014,
meeting was not a decision by the highest adjudicatory body of
the church. Accordingly, the petitioners have failed to
demonstrate a clear legal right to the relief sought.
25
1131368
Next, the petitioners argue that the circuit court
exceeded its discretion when it denied the
petitioners'
motion
to dismiss the case for lack of subject-matter jurisdiction
because, the petitioners argue, the circuit court, in failing
to grant the motion to dismiss, violated ARFA. Section V of
ARFA provides, in pertinent part:
"(b) Government
may
burden
a
person's
freedom
of
religion only if it demonstrates that application of
the burden to the person:
"(1) Is in furtherance of a compelling
governmental interest; and
"(2) Is the least restrictive means of
furthering that compelling governmental
interest."
§ 3.01, Ala. Const. 1901. The petitioners' argument, however,
is based on a faulty premise.
The petitioners argue that, in order to grant the relief
the plaintiffs seek, the circuit court must "interpret
ambiguous bylaws of the church and ... decide internal
disputes of the church, without making the church a party to
the case and without giving the church an opportunity to
decide the interpretation of its own bylaws and to decide its
own internal disputes." As set forth above, that is not
correct; in fact, the opposite is true. Should the circuit
26
1131368
court determine that the plaintiffs are entitled to an
injunction, the circuit court would not have to decide any
ecclesiastical matter of the church, but would simply be
recognizing the decision of the highest adjudicatory body of
the church and enjoining the petitioners. As discussed above,
the circuit court does not have jurisdiction to apply judicial
notions of due process to the church's vote, but it does have
the jurisdiction to recognize the decision of the church. The
plaintiffs need not prove that the decision was validly
reached following standards of due process -- that is
irrelevant in this case. The plaintiffs must demonstrate only
that the decision was reached by the highest adjudicatory body
of the church. Once that fact is established, the circuit
court may protect the jurisdiction of the church by
recognizing its decision and providing any necessary legal
protections. Accordingly, the circuit court has not violated
ARFA by denying the petitioners' motion to dismiss because the
circuit court has not made a decision burdening the
petitioners' freedom of religion. Instead, at this point in
the proceedings, based on the facts asserted by the plaintiffs
27
1131368
and uncontroverted by the petitioners, the circuit court has
upheld the jurisdiction of the church.
Moreover, the petitioners do not cite any authority in
support of their argument that the circuit court's decision
denying their motion to dismiss for lack of subject-matter
jurisdiction infringed upon the petitioners' freedom of
religion. Assuming the petitioners have been removed from
their positions as deacons, the decision to remove the
petitioners from their positions was made by the church; no
action taken by the circuit court removed the petitioners from
those positions. As a result, it is unclear what religious
freedom of the petitioners could possibly be burdened by the
circuit court. Additionally, although I recognize that the
circuit court issued a preliminary injunction enjoining the
petitioners from acting as deacons in the church, the
petitioners do not make any argument concerning that
injunction. Thus, because the petitioners have failed to
provide any authority for their argument that the circuit
court's
decisions
have
infringed
upon
the
petitioners'
freedom
of religion, I am not convinced that they have demonstrated a
clear legal right to the relief sought.
28
1131368
Further still, I question the applicability of ARFA to
the present case. Section VI of ARFA provides that ARFA
applies to "all government rules and implementations thereof,
whether statutory or otherwise, and whether adopted before or
after the effective date of this amendment." Section IV of
ARFA
defines
"rule"
as:
"[a]ny
government
statute,
regulation,
ordinance,
administrative
provision,
ruling
guideline,
requirement or any statement of law whatever." Pursuant to
the plain language of ARFA, a circuit court's decision denying
a motion to dismiss for lack of subject-matter jurisdiction
does not appear to be either a "rule" or the implementation of
a "rule" as defined by ARFA.
Additionally, a circuit court's decision denying a motion
to dismiss is not an "implementation" of any rule of civil
procedure; this is too expansive a reading of ARFA. There are
12 states with provisions similar to ARFA. James W. Wright
Jr., Making State Religious Freedom Restoration Amendments
Effective, 61 Ala. L. Rev. 425, 426 (2010). None of those
states
has
interpreted
its
respective
provisions
as
"implementing" a rule of civil procedure.
29
1131368
I recognize that our caselaw concerning the issues
presented in this case is convoluted; nonetheless, a single,
overarching
principle
is
evident:
When
the
highest
adjudicatory body of a church resolves a
purely
ecclesiastical
matter, civil courts must recognize that decision as final and
may not apply judicial notions of due process to the church
proceedings by which that decision was reached. After
recognizing the church's decision, the civil court may then
act to protect the church by enjoining unauthorized actions.
Such an act by a civil court does not impinge the
jurisdictional
boundary
between
the
church
and
civil
government; it solidifies it. By recognizing the church's
decision as final, a civil court may act to protect a church
from the actions of dissatisfied, dissociated members -- an
act that lies within a civil court's jurisdiction and outside
the jurisdiction of a church. As the plaintiffs aptly stated
in their argument before the circuit court:
"This is an action, Your Honor, to ask the Court
to give effect to a proper vote of the church to
make a change in its leadership, A vote that they
took, a change that they made. A change that the
losers of that vote decided to ignore. And in our
society, what we do instead of everybody getting
guns, we come to court.
30
1131368
"Because we can't sit out there and solve it
amongst ourselves. So we have to come to court and
file papers to ask the Court to enjoin. And as we
sit here now, we are in a court of equity. Not a
court of law. A court of equity. Ask the Court to
enjoin certain things to give effect to a vote that
the congregation made."
Thus, for the reasons set out above, I agree with this Court's
decision to deny the petition for a writ of mandamus.
31
1131368
MOORE, Chief Justice (dissenting).
I dissent from the decision of the Court denying the
petition for a writ of mandamus because I believe that the
petitioners have established a clear legal right to a
dismissal of this action, which involves an ecclesiastical
dispute. The issue is whether a circuit court may judicially
enforce the purported will of a church's highest governing
authority or instead allow to remain in church leadership
those whom the church purports to remove. The circuit court
may do neither.
I. The Jurisdictional Separation of Church and State
Courts refrain from inserting themselves into disputes
between rival church factions. Davis v. Ross, 255 Ala. 668,
671, 53 So. 2d 544, 546 (1951). "As is the case with all
churches, the courts will not assume jurisdiction, in fact
ha[ve] none, to resolve disputes regarding their spiritual or
ecclesiastical affairs." Abyssinia Missionary Baptist Church
v. Nixon, 340 So. 2d 746, 748 (Ala. 1976). If a church’s
4
See also Bryce v. Episcopal Church in the Diocese of
4
Colorado, 289 F.3d 648, 655 (10th Cir. 2002) ("Courts have
held that churches have autonomy in making
decisions regarding
their own internal affairs. This church autonomy doctrine
prohibits civil court review of internal church disputes
involving matters of faith, doctrine, church governance, and
32
1131368
decision that a plaintiff seeks to have enforced implicates an
ecclesiastical
dispute,
the
courts
are
powerless
to
intervene,
as I discussed in my special writings in Yates v. El Bethel
Primitive Baptist Church, 847 So. 2d 331, 354 (Ala. 2002)
(Moore, C.J., dissenting), and Burns Church, Inc. v. Alabama
District Council of Assemblies of God, Inc., [Ms. 1130539,
Oct. 24, 2014] ___ So. 3d ___, ___ (Ala. 2014) (Moore, C.J.,
dissenting).
I noted in my special writing in Yates, 847 So. 2d at
354, that the jurisdictional separation of church and state
ultimately
originates
from
an
acknowledgment
of
the
sovereignty of God. Historically, church-state separation was
a tenet of English common law, which later passed into
American jurisprudence and became incorporated into the
religion clauses of the First Amendment. 847 So. 2d at 352-53
polity." (citing Kedroff v. St. Nicholas Cathedral, 344 U.S.
94, 116-17 (1952))); Dixon v. Edwards, 290 F.3d 699, 714 (4th
Cir. 2002) (holding that "the civil courts of our country are
obliged to play a limited role in resolving church disputes"
and that that role does not include "deciding issues of
religious doctrine and practice, or ... interfering with
internal church government"); and Dowd v. Society of St.
Columbans, 861 F.2d 761, 764 (1st Cir. 1998) ("Religious
bodies must be free to decide for themselves, free from state
interference, matters which pertain to church government,
faith and doctrine.").
33
1131368
(Moore,
C.J.,
dissenting).
Church-state
separation,
as
part
of
the common law of England, which our legislature expressly
adopted as "the rule of decisions," binds the Alabama
judiciary. See § 1-3-1, Ala. Code 1975.5
II. An Internal Church Dispute
The respondents, the plaintiffs below, argue that this
case is about a mere "procedural matter" and not an
ecclesiastical matter. However, any decision by the circuit
court regarding the ability of the petitioners to serve as
deacons in the church necessarily requires the court to
resolve a number of antecedent issues that are inextricably
intertwined with church governance. These issues are, at a
6
minimum, (1) the meaning of the church bylaws, (2) the
structure of church governance, and (3) the propriety of the
procedure leading to the votes to remove the petitioners from
the board of deacons. The circuit court's preliminary
"The common law of England, so far as it is not
5
inconsistent with the Constitution, laws, and institutions of
this state, shall, together with such institutions and laws,
be the rule of decisions, and shall continue in force, except
as from time to time it may be altered or repealed by the
Legislature." § 1-3-1, Ala. Code 1975.
In his dissent, Justice Murdock references one such
6
issue: Whether indispensable parties are missing from the
underlying action.
34
1131368
injunction illustrates the danger inherent in determining a
question of church leadership.
A. Construing Church Bylaws
Resolving this dispute would require the judiciary to
construe the bylaws of Greenwood Missionary Baptist
Church.
In
its order entering a preliminary injunction in the instant
case, the circuit court acknowledged that the provision in the
bylaws for removal of deacons is ambiguous, stating that
"[t]he Bylaws do not give this Court any guidance as to what
exactly that sentence means." Nevertheless, the court
disregarded the petitioners' allegation that only the pastor
or the board of deacons may call a meeting to remove a deacon
because "[t]hat language does not appear in the Bylaws." The
court interpreted the bylaws to determine that the plaintiffs
showed a likelihood of success on the merits. However, to do
so is to invade the autonomy of Greenwood Missionary Baptist
Church to have the final say on the meaning of its own rules
of governance. The United States Supreme Court warned courts
against presuming to interpret church-governing documents:
"It may be said here ... that the laws of the church
do not authorize the particular form of proceeding
adopted .... But it is easy to see that if the civil
courts are to inquire into all these matters, the
35
1131368
whole subject of the doctrinal theology, the usages
and customs, the written laws, and fundamental
organization of every religious denomination may,
and must, be examined into with minuteness and care,
for they would become, in almost every case, the
criteria by which the validity of the ecclesiastical
decree would be determined in the civil court. This
principle would deprive these bodies of the right of
construing their own church laws, would open the way
to all the evils ... and would, in effect, transfer
to the civil courts where property rights were
concerned
the
decision
of
all
ecclesiastical
questions."
Watson v. Jones, 80 U.S. 679, 733-34 (1871) (second emphasis
added). "'Since the opinion in Watson, the Supreme Court has
consistently
refused
to
address
church
controversy.'"
Ex
parte
Bole, 103 So. 3d 40, 55 (Ala. 2012) (quoting Yaggie v.
Indiana-Kentucky
Synod
Evangelical
Lutheran
Church
in
America,
860 F. Supp. 1194, 1197 (W.D. Ky. 1994)).
Construction of a church-governing document by the court
is particularly invasive when the document is ambiguous. See
Serbian E. Orthodox Diocese for United States of America and
Canada v. Milivojevich, 426 U.S. 696, 723 (1976) ("The
constitutional provisions of the American-Canadian Diocese
were not so express that the civil courts could enforce them
without engaging in a searching and therefore impermissible
inquiry into church polity."). Additionally, "canon law [is]
36
1131368
admittedly not always consistent." 426 U.S. at 718. Resolving
such issues and applying church law to a church dispute is
simply beyond the competence of civil courts. 426 U.S. at 714
n.8.7
B. Resolving Issues of Church Governance
Not only would a resolution of this case require the
circuit court to construe church-governing documents, but,
having done so, the court would necessarily have to determine
ecclesiastical questions of church polity. Specifically, the
court must determine the nature of the governmental structure
of Greenwood Missionary Baptist Church, the entity
or
entities
In a case precisely on point, the Court of Appeals of
7
North Carolina considered whether a trial court had subject-
matter jurisdiction to determine whether a meeting held by a
Missionary Baptist Church complied with the procedure set
forth in the church bylaws. Emory v. Jackson Chapel First
Missionary Baptist Church, 165 N.C. App. 489, 491, 598 S.E.2d
667, 669 (2004). In light of ambiguities in the bylaws, the
parties' conflicting interpretations of the bylaws, and the
existence of church customs that could potentially alter the
plain meaning of the bylaws, the Court of Appeals reasoned
that the trial court was unable to resolve the dispute
"without delving into matters of ecclesiastical governance."
165 N.C. App. at 492, 598 S.E.2d at 670. As a result, the
court held that the trial court lacked subject-matter
jurisdiction to entertain the action. 165 N.C. App. at 493,
598 S.E.2d at 671. Because the instant action, like the action
in Emory, would require the circuit court to resolve similar
interpretive difficulties, the circuit court here is without
jurisdiction to construe the bylaws.
37
1131368
exercising ultimate authority over the church, and the
interrelationship between the congregation and the board of
deacons, both of which purport to act under color of church
law. In short, this action requires the court to referee a
power struggle between the congregation and three deacons,
with the pastor caught in the middle.
In a case involving an internal church dispute over the
ownership of real property, the United States Supreme Court,
in the following probing analysis, explained the inherent
pitfalls:
"Under [a rule requiring civil courts to defer to
the authoritative resolution of a dispute within the
church,] civil courts would always be required to
examine the polity and administration of a church to
determine which unit of government has ultimate
control over church property. In some cases, this
task would not prove to be difficult. But in others,
the locus of control would be ambiguous, and 'a
careful examination of the constitutions of the
general and local church, as well as other relevant
documents, [would] be necessary to ascertain the
form of governance adopted by members of the
religious association.'... In such cases, the
suggested rule would appear to require 'a searching
and therefore impermissible inquiry into church
polity.' Serbian Orthodox Diocese, 426 U.S. at 723."
38
1131368
Jones v. Wolf, 443 U.S. 595, 605 (1979) (emphases added).8
Contrary to the plaintiffs' suggestion that matters of church
governmental procedure are within the cognizance of the
courts, analyzing such procedure entangles the courts in
issues of an inherently ecclesiastical nature.
In briefing before this Court, the parties disputed
whether language contained in the bylaws precludes members of
the congregation from suing each other. Neither this Court nor
the circuit court is competent to answer that question or any
other question about the meaning of a religious document. On
the other hand, churches are equipped to apply articles of
faith. Setting secular standards for construing the governing
documents of religious organizations is as perilous an
endeavor as setting standards for evaluating claims of clergy
malpractice:
In Jones, the Court held that the First Amendment permits
8
a state to resolve a property dispute arising from a church
schism by examining relevant documents, such as a deed, church
charter, or church constitution, "in purely secular terms."
443 U.S. at 604. This approach, known as the "'neutral
principles of law' approach," 443 U.S. at 602, contemplates
secular interpretation of religious documents. The present
action presents a dispute over church leadership, not
ownership
of
property,
so
the
neutral-principles
approach
from
Jones is inapposite here.
39
1131368
"[D]ifferent churches and different pastors will
teach
and
apply
different
understandings
of
doctrine."
"....
"... [I]f the civil authority were even to
attempt to establish a standard for judging clergy
malpractice, the state would unavoidably entangle
itself in matters of theology and church doctrine
that are not only outside its proper jurisdiction,
but also in violation of the establishment clause of
Art. I, § 3, of the Alabama Constitution of 1901,
which is designed to protect the right of the people
of Alabama to worship God and otherwise to fulfill
religious duties without interference by civil
government
authorities,
including
judicial
authorities."
Bailey v. Faulkner, 940 So. 2d 247, 259 (Ala. 2006) (Parker,
J., concurring). When confronted with a request to restore an
elder whom a church had expelled, this Court stated:
"If the civil courts may in this instance interfere
to question the exclusion of petitioner, they may do
so, in any instance where a member of that or any
other church is removed, on the allegations of
irregular and unfair proceedings for the purpose.
This would open a door to untold evils in the
administration of church affairs, not consistent
with the principles of religious freedom as
recognized in this country, where there is no
established church or religion, where every man is
entitled to hold and express with freedom his own
religious views and convictions, and where the
separation of State and Church is so deeply
intrenched in our constitutions and laws."
40
1131368
Hundley v. Collins, 131 Ala. 234, 243, 32 So. 575, 578 (1902)
(emphasis added). When the judiciary purports to interpret
church-governing documents, it necessarily excludes all
religious implications from the text, regardless of the
church's intent in adopting the text, in a manifest affront to
religious freedom.
C. Resolving Procedural Propriety of Church Meeting
In addition to determining church polity, a resolution of
this matter by the circuit court would also require the court
to scrutinize whether the meeting held by the congregation at
which the deacons were removed was procedurally proper. Such
9
I agree with Justice Parker that "it is unclear whether
9
the April 20, 2014, vote constituted a decision by the highest
adjudicatory body of the church." __ So. 3d at __. Greenwood
Missionary Baptist Church is not a party to this action and is
thus not present to allege that the proper church authority
rendered the decision to terminate the petitioners. The
circuit court must therefore consider evidence, such as
procedures set forth in the bylaws and the number of church
members compared to the number of removal votes cast, to
determine whether the decision represented an official act by
the church. Not only does such evidence go to the validity of
the purported church decision--the very inquiry courts are
without jurisdiction to entertain--but the Court denies the
petitioners’ mandamus petition despite the lack of sufficient
factual predicates for jurisdiction. See Ex parte
Safeway, 990
So. 2d 344 at 349 (quoting Erby v. United States, 424 F. Supp.
2d 180, 182 (D.D.C. 2006)).
I respectfully disagree with Justice Parker that the
petitioners have the
burden
of "demonstrat[ing] that the April
41
1131368
an inquiry is unconstitutional for reasons similar to those
previously discussed.
"Consistently
with
the
First
and
Fourteenth
Amendments 'civil courts do not inquire whether the
relevant (hierarchical) church governing body has
power under religious law (to decide such disputes).
... Such a determination ... frequently necessitates
the interpretation of ambiguous religious law and
usage. To permit civil courts to probe deeply enough
into
the
allocation
of
power
within
a
(hierarchical) church so as to decide religious law
(governing church polity) would violate the First
Amendment in much the same manner as civil
determination of religious doctrine.' Md. & Va.
Churches v. Sharpsburg Church, 396 U.S. 367, 369
(1970) (Brennan, J., concurring)."
Milivojevich,
426
U.S.
at
708-09
(emphasis
added).
"Milivojevich, read in its entirety, holds that civil court
review of ecclesiastical decisions of church tribunals,
particularly those pertaining to the hiring or firing of
clergy, are in themselves an 'extensive inquiry' into
religious law and practice, and hence forbidden by the First
20, 2014, meeting was not a decision by the highest
adjudicatory body of the church." __ So. 3d at __. "'In the
face of a factual challenge to subject matter jurisdiction,
the burden is on the plaintiff to prove that jurisdiction
exists.'" Safeway, 990 So. 2d at 352 (quoting OSI, Inc. v.
United States, 285 F.3d 947, 951 (11th Cir. 2002)) (emphasis
added). When a defendant petitions this Court for a writ of
mandamus and seeks dismissal of an action for lack of subject-
matter jurisdiction, the defendant establishes a clear legal
right to dismissal if the plaintiff has failed to prove
subject-matter jurisdiction below.
Safeway,
990 So. 2d at 352.
42
1131368
Amendment." Young v. Northern Illinois Conference of United
Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994). Although
Milivojevich involved a church with a hierarchical government
structure, "the same considerations apply, regardless of
whether the church has a congregational, rather than a
hierarchical, form of government." Lott v. Eastern Shore
Christian Ctr., 908 So. 2d 922, 930 n.4 and 930 (Ala. 2005)
("'[T]his Court must not interfere with the fundamental
ecclesiastical concern of determining who is and who is not [a
Church] member.'" (quoting Burgess v. Rock Creek Baptist
Church, 734 F.Supp. 30, 33 (D.D.C. 1990))).
D. Giving Effect to a Purported Church Decision
The plaintiffs argue that Greenwood Missionary Baptist
Church has, through its congregation, already interpreted its
bylaws and that the plaintiffs merely want to enforce that
interpretation
as
conclusive.
The
principle
that
the
judiciary
must treat a decision by the church's highest adjudicatory
body as final and binding arose in the context of a party
seeking to have a church's decision overturned. See
Milivojevich, 426 U.S. at 706-07 (involving a
defrocked bishop
who sued, in part, "to have himself declared the true Diocesan
43
1131368
Bishop");
Hundley,
supra
(involving
an
expelled
member
seeking
to compel his restoration to church membership); and Lott, 908
So. 2d at 924 (involving a church member who sought a
temporary restraining order to prevent his church from
disciplining him). The instant case, however, presents the
inverse situation: Supporters of a decision purporting to be
that of the church seek to have the church’s decision affirmed
against parties adversely affected. The statement by this
Court and the Supreme Court of the United States that a
church's decision is final and binding means only that the
judiciary lacks power to reverse a church's decision; it does
not mean that the judiciary possesses power to affirm that
same decision.
A court's involvement in a religious matter is not
sanitized merely because the court purports to ratify, rather
than annul, a church's decision. What violates
church
autonomy
is not the substance of the court's ultimate determination,
but the judiciary's very participation in the intra-church
conflict.
"The enforcement of the mandates of a church to
resolve a civil proceeding is a concept far removed
from the ideas held by the constitutional fathers,
44
1131368
who were clearly opposed to any governmental
practice
tending
to
the
establishment
of
a
religion.... Freedom of religion not only is
concerned with the intervention of the civil
authorities in the affairs of the church, but also
prevents the church from exercising its authority
through the state."
Note,
Religious
Societies–Applicability
of
Hierarchical
Church
Law to Property Disputes Resolved by Civil Courts, 30 N.Y.U.
L. Rev. 1102, 1104 (1955) (emphasis added). In backing a
church's decision with the force of law, a civil court risks
running afoul of both Establishment Clause and Free Exercise
Clause principles.
"The prohibition on judicial cognizance of
ecclesiastical
disputes
is
founded
upon
both
establishment and free exercise clause concerns. By
adjudicating religious disputes, civil courts risk
affecting associational conduct and thereby chilling
the free exercise of religious beliefs. Moreover, by
entering into a religious controversy and putting
the enforcement power of the state behind a
particular religious faction, a civil court risks
'establishing' a religion."
Crowder v. Southern Baptist Convention, 828 F.2d 718, 721
(11th Cir. 1987) (emphasis added). See also Little v. First
Baptist Church, Crestwood, 475 U.S. 1148, 1150 (1986)
(Marshall, J., dissenting) ("This participation in the
decisionmaking of an
ecclesiastical
body is both dangerous and
45
1131368
unwarranted. Courts have no business 'helping' a religious
organization to make its wishes known.").
As its name implies, subject-matter jurisdiction refers
to the power of a court to entertain the subject matter of a
given lawsuit. I agree with Justice Parker that the subject
matter
of
this
dispute
involves,
at
its
core,
an
ecclesiastical controversy. I also agree with the principle
that "the courts will not assume jurisdiction, in fact ha[ve]
none, to resolve disputes regarding [churches'] spiritual or
ecclesiastical affairs." Nixon, 340 So. 2d at 748. A lack of
subject-matter jurisdiction does not mean that a court has
power to grant relief to one party but not to the other.
Church-state separation does not permit a trial court to
affirm a church's decision when the church is the plaintiff,
while requiring the court to dismiss the case for lack of
subject-matter jurisdiction when a disaffected member or
officer is the plaintiff. To grant relief to either party in
a purely ecclesiastical matter is to assume
jurisdiction
where
none exists. "[I]f a trial court lacks subject-matter
jurisdiction, it has no power to take any action other than to
dismiss the complaint." Ex parte Alabama Dep't of Transp., 978
46
1131368
So. 2d 17, 26 (Ala. 2007) (emphasis added). See also Hundley,
131 Ala. at 246, 32 So. at 579 (affirming the trial court's
dismissal of the underlying action). Dismissal is what the
petitioners request today, and they have a clear legal right
to it.
E. Inadequacy of Other Remedies
The plaintiffs also state that they "have no other avenue
to enforce the Church's decision to remove the Petitioners."
The circuit court determined that the prospect of irreparable
harm justified its preliminary injunction in part because
"alleged obligations of the Church are not being met," "[t]he
pastor is not being paid," and "[t]he medical insurance for
him and his family [has] lapsed." While I sympathize with the
plight of those impacted by this unfortunate situation, the
judicial branch does not exist to resolve every dispute.
"[E]ach church is a law unto itself in the management of its
own affairs." Barton v. Fitzpatrick, 187 Ala. 273, 278, 65 So.
390, 392 (1914).
The Alabama Constitution vests our unified judicial
system with "the judicial power." § 139, Ala. Const. 1901.
This power is limited in scope and is constrained by "God-
47
1131368
ordained
jurisdictional
boundaries."
Ex
parte
Christopher,
145
So. 3d 60, 79 (Ala. 2013) (Moore, C.J., concurring specially).
I noted the following in my special writing in Christopher:
"The health of civil society depends on an
appropriate respect for those institutions that
mediate between the individual and the State and
provide the relational richness that gives life
substance. Chief among these are the church and the
family. Each has its own government and sphere of
authority."
145 So. 3d at 79 (Moore, C.J., concurring specially). "[T]he
nature of church and state as distinct spheres of government
precludes state oversight of matters ... that belong to the
jurisdiction of the church." Bailey, 940 So. 2d at 258
(Parker, J., concurring specially).
Ultimately, the lack of an adequate remedy in the church
setting
is
an
insufficient
condition
for
judicial
interference. As one court candidly observed: "Even if wrongs
exist in the ecclesiastical setting, and the
administration of
a church is inadequate to provide a remedy, the preservation
of the free exercise of religion is deemed so important a
principle that it overshadows the inequities which may result
from
its
liberal
application." Hawkins v.
Friendship
48
1131368
Missionary Baptist Church, 69 S.W.3d 756, 758 n.3 (Tex. App.
2002).
III. Conclusion
In determining whether civil courts have cognizance to
resolve a church dispute, "[i]t is not enough that a schism or
division has developed among the members on account of
differences of opinion in the interpretation and application
of the declared doctrines and practices of the society; such
matters must be settled by the society for itself in its own
way." Williams v. Jones, 258 Ala. 59, 62, 61 So. 2d 101, 104
(1952). I believe that the instant action invites judicial
interference with the sovereign authority of Greenwood
Missionary Baptist Church to settle its internal conflict in
its own way. I would decline that invitation and instruct the
circuit court to do the same. Accordingly, I would grant the
petition in part and instruct the circuit court to dismiss the
case for want of subject-matter jurisdiction. I therefore
respectfully dissent.
49
1131368
MURDOCK, Justice (dissenting).
I respectfully dissent. I believe mandamus relief should
be granted on the ground that one or more parties necessary
and indispensable to the adjudication of this matter have not
been included in this action. See Rule 19, Ala. R. Civ. P.
50 | July 10, 2015 |
89337664-5bf9-4fd3-8f0f-e27f0f67d423 | Ex parte E.L. | N/A | 1140595 | Alabama | Alabama Supreme Court | REL@ 09/18/2015
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, 2015
____________________
1140595
____________________
Ex parte E.L.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: E.L.
v.
V.L.)
(Jefferson Family Court, CS-13-719;
Court of Civil Appeals, 2130683)
PER CURIAM.
1140595
This Court granted the petition filed by E.L. seeking
certiorari review of the judgment entered by the Court of
Civil Appeals affirming the judgment entered by the Jefferson
Family Court insofar as that judgment recognized and gave
effect to an adoption decree entered by the Superior Court of
Fulton County, Georgia ("the Georgia court"), approving the
adoption by V.L., E.L.'s former same-sex partner, of E.L.'s
biological children, S.L., N.L., and H.L. (hereinafter
referred to collectively as "the children"). We reverse and
remand.
I.
E.L. and V.L. were involved in a relationship from
approximately 1995 through 2011. During the course of that
relationship, they maintained a residence in Hoover. In
December 2002 E.L. gave birth to S.L., and in November 2004
E.L. gave birth to twins, N.L. and H.L. All births were
achieved through the use of assisted-reproductive technology.
It is undisputed that, following the births of the children,
V.L. acted as a parent to them, and, consistent with that
fact, the parties eventually made the joint decision to take
legal action to formalize and to protect the parental role
2
1140595
V.L. had undertaken. V.L. explained this decision as follows
in an affidavit filed with the Jefferson Family Court after
initiating this action:
"We began researching second-parent and co-
parent adoptions. We had heard through friends that
Fulton County, Georgia, was receptive to same-sex
parents seeking such. I could not find an attorney
in Birmingham that had any knowledge of such or that
was very helpful. In the fall of 2006 we met with
an attorney in Atlanta, Georgia, to seek legal
advice. We were informed that I needed to be a
resident of the state of Georgia, specifically
Fulton County, for at least six (6) months to
petition for adoption in Fulton County. E.L. spoke
with a friend from college ... that lives in Atlanta
and her friend's mother owned a house in Alpharetta.
We went to Atlanta and looked over the home and
spent time with [E.L.'s] friend and her family,
including [the friend's] mother. [The friend's]
mother ... offered up her house for rent to us.
[E.L.] and I both signed a lease for the Alpharetta
residence on October 1, 2006. I submitted
fingerprints to the FBI which were obtained in
Alpharetta on January 25, 2007, also part of the
adoption process. A background check request was
submitted using the Alpharetta address. On March
26, 2007, a home study was done at the address in
Georgia; per my attorney this was a requirement for
petitioning for adoption. Our family of five (5)
was all present."
E.L. does not dispute these basic facts; however, she states
in her own affidavit filed with the Jefferson Family Court
that, although the parties leased the Alpharetta house, they
never spent more than approximately two nights in it, instead
3
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continuing to live at their Hoover residence and to work at
their jobs in Alabama.
On April 10, 2007, V.L. filed in the Georgia court a
petition to adopt the children. E.L. subsequently filed with
the Georgia court a document labeled "parental consent to
adoption" in which she stated that she consented to V.L.'s
adopting the children and that, although she was not
relinquishing or surrendering her own parental rights, she
desired that the requested adoption would "have the legal
result that [V.L.] and [the children] will also have a legal
parent-child
relationship
with
legal
rights
and
responsibilities equal to mine through establishment of their
legal relationship by adoption." On May 30, 2007, the Georgia
court entered its final decree of adoption ("the Georgia
judgment")
granting
V.L.'s
petition
and
declaring
that
"[V.L.]
shall be permitted to adopt [the children] as her children."
New birth certificates were subsequently issued for the
children listing V.L. as a parent.
In approximately November 2011, E.L. and V.L. ended their
relationship, and, in January 2012, V.L. moved out of the
house E.L. and V.L. had previously shared. On October 31,
4
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2013, V.L. filed a petition in the Jefferson Circuit Court
alleging that E.L. had denied her access to the children and
had interfered with her ability to exercise her traditional
and constitutional parental rights. Accordingly, she asked
the court to register the Georgia judgment, to declare her
legal rights pursuant to the Georgia judgment, and to award
her some measure of custody of or visitation with the
children. The matter was transferred to the Jefferson Family
Court, and E.L. subsequently moved that court to dismiss
V.L.'s
petition
on
multiple
grounds.
Both
parties
subsequently filed additional memoranda and the above-
referenced affidavits regarding E.L.'s motion to dismiss.
On April 3, 2014, the Jefferson Family Court denied
E.L.'s
motion
to
dismiss,
without
a
hearing,
and
simultaneously awarded V.L. scheduled visitation with the
children. On April 15, 2014, the Jefferson Family Court
entered an additional order noting that all other relief
requested by the parties was denied and that the court
considered the case closed. E.L. promptly moved the court to
alter, amend, or vacate its judgment; however, on May 1, 2014,
that motion was denied by operation of law, and, on May 12,
5
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2014, E.L. filed her notice of appeal to the Court of Civil
Appeals.1
Before the Court of Civil Appeals, E.L. argued (1) that
the Jefferson Family Court lacked subject-matter jurisdiction
to rule on V.L.'s petition; (2) that the Georgia court lacked
subject-matter
jurisdiction
to
enter
the
Georgia
judgment;
(3)
that the Jefferson Family Court should have refused to
recognize and to enforce the Georgia judgment for public-
policy reasons; and (4) that the Jefferson Family Court denied
her due process inasmuch as it awarded V.L. visitation rights
without holding an evidentiary hearing at which E.L. could be
heard. On February 27, 2015, the Court of Civil Appeals
released its opinion rejecting the first three of these
arguments, but holding that the Jefferson Family Court had
erred by awarding V.L. visitation without conducting an
evidentiary hearing. E.L. v. V.L., [Ms. 2130683, Feb. 27,
2015] ___ So. 3d ___, ___ (Ala. Civ. App. 2015). Accordingly,
the judgment of the Jefferson Family Court was reversed and
Rule 1(B), Ala. R. Juv. P., provides that a postjudgment
1
motion in a juvenile case is denied by operation of law if not
ruled upon within 14 days of its filing unless specific steps
outlined in the rule are taken to extend that period. No
attempt was made to extend the 14-day period in this case.
6
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the case remanded for the Jefferson Family Court to conduct an
evidentiary hearing before deciding the visitation issue;
however, the implicit finding in the judgment of the Jefferson
Family Court that the Georgia judgment was valid and subject
to enforcement in Alabama was upheld. See E.L. v. V.L., ___
So. 3d at ___ ("At oral argument, the parties all agreed that,
in its judgment, the family court impliedly enforced the
Georgia judgment by recognizing V.L.'s right to visitation as
an adoptive parent of the children.").
On March 11, 2015, E.L. petitioned this Court for a writ
of certiorari to review the Court of Civil Appeals' affirmance
of the judgment of the Jefferson Family Court to the extent
that judgment recognized and enforced the Georgia judgment.
On April 15, 2015, we granted E.L.'s petition seeking
certiorari review and set the briefing schedule for the
parties.
2
V.L. and E.L. subsequently filed briefs in support of
2
their positions, as did the guardian ad litem appointed to
represent the children, who filed a brief urging this Court to
affirm the judgment of the Court of Civil Appeals. We also
granted the subsequent motion filed by the American Academy of
Adoption Attorneys, Inc., and the Georgia Council of Adoption
Lawyers, Inc., requesting permission to file an amicus brief
based on their interest in the subject matter of this appeal,
and we have received their joint brief in support of V.L.
urging us to affirm the judgment of the Court of Civil
7
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II.
The issues raised by E.L. in this appeal regarding the
effect and validity Alabama courts should afford the Georgia
judgment are purely issues of law. Accordingly, we review
those issues de novo. Ex parte Byrom, 47 So. 3d 791, 794
(Ala. 2010). We emphasize, however, that our review of those
issues does not extend to a review of the legal merits of the
Georgia judgment, because we are prohibited from making any
inquiry into the merits of the Georgia judgment by Art. IV, §
1, of the United States Constitution ("the full faith and
credit clause"). Pirtek USA, LLC v. Whitehead, 51 So. 3d
3
291, 296 (Ala. 2010). We further "note that '[t]he validity
and effect of a foreign judgment, of course, are to be
determined by the law of the state in which it was rendered.'"
Orix Fin. Servs., Inc. v. Murphy, 9 So. 3d 1241, 1244 (Ala.
2008) (quoting Morse v. Morse, 394 So. 2d 950, 951 (Ala.
1981)).
Appeals.
Article IV, § 1, of the United States Constitution
3
provides, in pertinent part, that "Full Faith and Credit shall
be given in each State to the public Acts, Records, and
judicial Proceedings of every other State."
8
1140595
III.
The gravamen of E.L.'s appeal is that the Jefferson
Family Court erred by recognizing and enforcing the Georgia
judgment. When considering such a claim –– whether a foreign
judgment should be enforced in this State –– we are guided by
the principle that we generally accord the judgment of another
state the same respect and credit it would receive in the
rendering state. This principle stems from the full faith and
credit clause and was explained as follows by Chief Justice
John Marshall in Hampton v. McConnel, 16 U.S. (3 Wheat.) 234,
235 (1818):
"[T]he judgment of a state court should have the
same credit, validity and effect, in every other
court of the United States, which it had in the
state where it was pronounced, and that whatever
pleas would be good to a suit thereon in such state,
and none others, could be pleaded in any other court
in the United States."
The courts of this State have consistently applied the full
faith and credit clause in this manner. See, e.g., Ohio
Bureau of Credits, Inc. v. Steinberg, 29 Ala. App. 515, 519,
199 So. 246, 249 (1940) (stating that "the duly attested
record of the judgment of a State court is entitled to such
faith and credit in every court within the United States as by
9
1140595
law or usage it had in the State from which it is taken"), and
Pirtek, 51 So. 3d at 295 (stating that "'Alabama courts are
generally required to give a judgment entitled to full faith
and credit at least the res judicata effect accorded in the
rendering court's jurisdiction'" (quoting Menendez v. COLSA,
Inc., 852 So. 2d 768, 771 (Ala. Civ. App. 2002))).
Traditionally, Alabama courts generally have applied the
full faith and credit clause so as to limit their review of
foreign judgments to whether the rendering court had
jurisdiction to enter the judgment sought to be domesticated.
This is likely because the question of a court's jurisdiction
over the subject matter or parties is one of the few grounds
upon which a judgment may be challenged after that judgment
has become final and any available appellate remedies
exhausted. See, e.g., McDonald v. Lyle, 270 Ala. 715, 718,
121 So. 2d 885, 887 (1960) ("Where it appears on the face of
the record that a judgment is void, either from want of
jurisdiction of the subject matter or of the defendant, it is
the duty of the court, on application by a party having rights
and interests immediately involved, to vacate the judgment or
decree at any time subsequent to its rendition." (citing
10
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Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907), and
Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116 (1943))).
4
In this case, E.L. relies on this principle and argues
that this Court should hold that the Georgia judgment is
unenforceable in Alabama because, she argues, the Georgia
court lacked subject-matter jurisdiction to issue the Georgia
judgment based on the facts (1) that Georgia law does not
provide for so-called "second parent adoptions" and (2) that
5
V.L. was not, E.L. alleges, a bona fide resident of Georgia at
the time of the adoption. However, E.L. argues in the
alternative that, even if we conclude that the Georgia court
was not lacking subject-matter jurisdiction when it
issued
the
Georgia judgment, we should not enforce the Georgia judgment
Of course, in certain circumstances the lack of personal
4
jurisdiction
may
be
waived;
however
subject-matter
jurisdiction may never be waived. Campbell v. Taylor, 159 So.
3d 4, 11 (Ala. 2014).
"A 'second parent' adoption apparently is an adoption of
5
a child having only one living parent, in which that parent
retains all of her parental rights and consents to some other
person –– often her spouse, partner, or friend –– adopting the
child as a 'second parent.' See Butler v. Adoption Media,
LLC, 486 F. Supp. 2d 1022, 1044 ... (N.D. Cal. 2007)
(describing 'second parent' adoption under California law)."
Bates v. Bates, 317 Ga. App. 339, 340 n. 1, 730 S.E.2d 482,
483 n. 1 (2012). The Bates court further noted that "[t]he
idea that Georgia law permits a 'second parent' adoption is a
doubtful one." 317 Ga. App. at 341, 730 S.E.2d at 484.
11
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because, E.L. argues, doing so would be contrary to Alabama's
public policy.
In response, V.L. argues (1) that the Georgia court had
subject-matter
jurisdiction
to
issue
the
Georgia
judgment
even
if Georgia law does not provide for second-parent adoptions or
even if V.L. was not a bona fide resident of Georgia at the
time of the adoption; (2) that the Georgia judgment should be
6
enforced even if the Georgia court lacked subject-matter
jurisdiction because, V.L. argues, Georgia Code Ann., §
19–8–18(e), bars any challenge to adoption decrees filed more
than six months after the decree is entered; and (3) there is
no public-policy exception to the full faith and credit
clause.
Georgia
Code
Ann.,
§
9–11–60,
sets
forth
the
circumstances in which a Georgia court will not enforce one of
its judgments, stating, in relevant part:
"(d) Motion to set aside. A motion to set aside
may be brought to set aside a judgment based upon:
"(1) Lack of jurisdiction over the
person or the subject matter;
V.L. does not concede that Georgia law does not allow
6
second-parent adoptions or that she failed to comply with the
residence requirements of the Georgia adoption statutes.
12
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"(2) Fraud, accident, or mistake or
the acts of the adverse party unmixed with
the negligence or fault of the movant; or
"(3) A nonamendable defect which
appears upon the face of the record or
pleadings. Under this paragraph, it is not
sufficient that the complaint or other
pleading fails to state a claim upon which
relief can be granted, but the pleadings
must affirmatively show no claim in fact
existed.
"....
"(f) Procedure; time of relief. Reasonable
notice shall be afforded the parties on all motions.
Motions to set aside judgments may be served by any
means by which an original complaint may be legally
served if it cannot be legally served as any other
motion. A judgment void because of lack of
jurisdiction of the person or subject matter may be
attacked at any time. Motions for new trial must be
brought within the time prescribed by law. In all
other instances, all motions to set aside judgments
shall be brought within three years from entry of
the judgment complained of."
Because the current legal proceedings were initiated over six
years after the Georgia judgment was entered, the only ground
in § 9–11–60 upon which a Georgia court might possibly decide
not to enforce the Georgia judgment is that set forth in
subsection (d)(1) –– lack of jurisdiction over the person or
the subject matter. It is undisputed in this case that E.L.
7
Although E.L. suggests that V.L. committed a fraud upon
7
the court by claiming to be a Georgia resident when she was
13
1140595
and V.L. willingly appeared with the children before the
Georgia court, so personal jurisdiction is not
disputed; thus,
lack of subject-matter jurisdiction is the only possible
ground a Georgia court could have for not enforcing the
Georgia judgment.
However, V.L. argues that a Georgia court would enforce
the Georgia judgment even if there is a lack of subject-matter
jurisdiction because of the nature of the judgment –– an
adoption decree –– and the fact that it was rendered over six
years ago. In support of this argument, she cites §
19–8–18(e), Georgia Code Ann., which provides that "[a] decree
of adoption issued pursuant to subsection (b) of this Code
section shall not be subject to any judicial challenge filed
more than six months after the date of entry of such decree."
(Emphasis added.) In Williams v. Williams, 312 Ga. App. 47,
47-48, 717 S.E.2d 553, 553-54 (2011), the Georgia Court of
not, such a claim would entitle her to relief from the Georgia
judgment only to the extent that it implicates the subject-
matter
jurisdiction
of
the
Georgia
court.
Section
9–11–60(d)(2) provides that a judgment may be set aside for
fraud only if the party seeking to set aside the judgment is
free from fault, and subsection (f) provides that a judgment
may be challenged on the basis of fraud only within three
years of its entry. E.L. was a willing participant in any
fraud, and it is undisputed that no challenge was made to the
Georgia judgment for more than six years after it was entered.
14
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Appeals held that § 19–8–18(e) barred even a jurisdictional
challenge to an adoption decree if that challenge was filed
outside that six-month period, notwithstanding the general
rule in § 9–11–60, Georgia Code Ann., that a judgment may be
challenged on jurisdictional grounds at any time:
"Notwithstanding OCGA [Official Code of Georgia
Annotated] § 19–8–18(e)'s plain language, the trial
court held that the Code section did not bar [the
appellee's] challenge to the adoption decree, on the
ground that the challenge was brought under OCGA §
9–11–60, which allows for a judgment void for lack
of jurisdiction to be attacked 'at any time' through
a motion to set aside. OCGA § 9–11–60(f). See
generally Burch v. Dines, 267 Ga. App. 459, 461(2),
600 S.E.2d 374 (2004) (invalidity of service can
give rise to lack of personal jurisdiction). But
for
purposes
of
statutory
interpretation,
'a
specific statute will prevail over a general
statute, absent any indication of a contrary
legislative intent, to resolve any inconsistency
between them.' (Citation and punctuation omitted.)
Marshall v. Speedee Cash of Ga., 292 Ga. App. 790,
791, 665 S.E.2d 888 (2008). In this case, OCGA §
19–8–18(e) is the more specific statute because it
addresses when a particular type of judgment –– an
adoption decree –– may be attacked, while OCGA §
9–11–60(f) addresses when judgments in general may
be attacked. Neither statute contains language
indicating a legislative intent that a motion to set
aside under OCGA § 9–11–60 for lack of jurisdiction
is an exception to the specific prohibition in OCGA
§ 19–8–18(e) against 'any judicial challenge' to an
adoption decree."
15
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The Georgia Court of Appeals subsequently explained the
rationale underpinning § 19–8–18(e) in Bates v. Bates, 317 Ga.
App. 339, 339-40, 730 S.E.2d 482, 483 (2012), stating:
"Under Georgia law, a judgment entered by a
court without jurisdiction is void, Carpenter v.
Carpenter, 276 Ga. 746, 747(1), 583 S.E.2d 852
(2003), and generally speaking, such a judgment 'may
be attacked in any court, by any person, at any
time.' James v. Intown Ventures, 290 Ga. 813,
816(2) n. 5, 725 S.E.2d 213 (2012). See also Cabrel
v. Lum, 289 Ga. 233, 235(1), 710 S.E.2d 810 (2011)
('[A] judgment void for lack of personal or
subject-matter jurisdiction may be attacked at any
time.').
But
in
some
circumstances,
these
principles must yield to competing principles that
derive from the compelling public interest in the
finality and certainty of judgments, see Abushmais
v. Erby, 282 Ga. 619, 622(3), 652 S.E.2d 549 (2007),
an interest that is especially compelling with
respect to judgments affecting familial relations.
See Amerson v. Vandiver, 285 Ga. 49, 50, 673 S.E.2d
850 (2009)."
See also Abushmais v. Erby, 282 Ga. 619, 622, 652 S.E.2d 549,
552 (2007) (explaining that parties may not "confer
subject-matter jurisdiction on a court by agreement or waive
the defense [of a lack of subject-matter jurisdiction] by
failing to raise it in the trial court" but that, "[u]nder
limited circumstances, the equitable defenses of laches and
estoppel may prevent a party from complaining of a court's
lack of subject-matter jurisdiction"). It is evident from
16
1140595
these decisions of the Supreme Court of Georgia and the
Georgia Court of Appeals that a Georgia court will generally
not entertain a challenge to a Georgia adoption decree based
even on an alleged lack of subject-matter jurisdiction if that
challenge is made more than six months after the challenged
decree is entered.
E.L. nevertheless argues that § 19–8–18(e) does not apply
in this case because, she argues, the statute by its terms
applies only to adoption decrees issued pursuant to §
19–8–18(b), which provides:
"If the court is satisfied that each living parent
or guardian of the child has surrendered or had
terminated all his rights to the child in the manner
provided by law prior to the filing of the petition
for adoption or that each petitioner has satisfied
his burden of proof under Code Section 19-8-10, that
such
petitioner
is
capable
of
assuming
responsibility for the care, supervision, training,
and education of the child, that the child is
suitable for adoption in a private family home, and
that the adoption requested is for the best interest
of the child, it shall enter a decree of adoption,
terminating all the rights of each parent and
guardian to the child, granting the permanent
custody of the child to each petitioner, naming the
child as prayed for in the petition, and declaring
the child to be the adopted child of each
petitioner. In all cases wherein Code Section
19-8-10 is relied upon by any petitioner as a basis
for the termination of parental rights, the court
shall include in the decree of adoption appropriate
17
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findings of fact and conclusions of law relating to
the applicability of Code Section 19-8-10."
E.L. argues that the Georgia court failed to comply strictly
with all the requirements of § 19–8–18(b) in this case
inasmuch as the Georgia judgment failed to "terminat[e] all
the rights of each parent and guardian to the child[ren]." In
other words, E.L. argues that the Georgia judgment was not
issued pursuant to § 19–8–18(b) –– and thus is not subject to
the bar of § 19–8–18(e) –– because it did not terminate her
own parental rights. Both the guardian ad litem and the amici
curiae argue in their briefs that, regardless of the failure
of the Georgia court to terminate E.L.'s parental rights in
the Georgia judgment, the Georgia judgment was nonetheless
issued pursuant to § 19–8–18(b) because all decrees of
adoption in Georgia are issued pursuant to § 19–8–18(b) ––
there is, they argue, no other statute under which a Georgia
adoption decree can issue.
The Supreme Court of Georgia as a whole has not
specifically addressed this issue; however, in Wheeler v.
Wheeler, 281 Ga. 838, 642 S.E.2d 103 (2007), a similar case
involving a biological mother's attempt to void a second-
parent adoption granted her same-sex ex-partner, that court,
18
1140595
without issuing an opinion, denied a petition for the writ of
certiorari filed by the biological mother challenging the
Georgia Court of Appeals' decision not to consider her
discretionary appeal of the trial court's order denying her
petition to void the adoption. However, in a dissenting
opinion Justice Carley addressed the argument E.L. now makes:
"[The
adoptive
mother]
argues
that
the
motion
to
set aside is time-barred by OCGA [Official Code of
Georgia Annotated] § 19-8-18(e), although the trial
court did not rely on that statute. It reads as
follows: 'A decree of adoption issued pursuant to
subsection (b) of this Code section shall not be
subject to any judicial challenge filed more than
six months after the date of entry of such decree.'
OCGA § 19-8-18(e). Subsection (b) provides for the
entry of a decree terminating all parental rights in
those cases where the rights of each living parent
or guardian have been surrendered or terminated, or
where termination of parental rights is appropriate
pursuant to OCGA § 19-8-10. As previously noted,
however, subsection (b) obviously does not apply
here, because neither surrender nor termination of
[the biological mother's] rights was ever sought or
accomplished, and the trial court entered a decree
specifically
preserving
her
rights.
Because
subsection (b) is inapplicable, the six-month
limitation in subsection (e) clearly does not bar
the motion to set aside."
281 Ga. at 841, 642 S.E.2d at 105 (Carley, J., dissenting).
We agree with the analysis of Justice Carley and his
conclusion that the six-month bar in § 19-8-18(e) should not
apply in the current situation. Having concluded that his is
19
1140595
the proper analysis of § 19-8-18(b) and § 19-8-18(e), we can
only assume that a Georgia court would make the same
conclusion and, by extension, would permit a challenge on
jurisdictional grounds to an adoption decree that did not
fully comply with § 19-8-18(b).8
We must therefore consider whether, in fact, E.L. has
asserted an argument that actually puts the subject-matter
jurisdiction of the Georgia court into question. She asserts
that the Georgia court lacked subject-matter jurisdiction to
issue the Georgia judgment for two reasons –– because it
purported to effect a second-parent adoption in which a living
parent's parental rights were not terminated and because V.L.
allegedly was not a bona fide Georgia resident at the time of
the judgment; however, V.L. argues that these arguments in
Although Justice Carley's analysis of § 19-8-18(b) and
8
§ 19-8-18(e) was offered in a special writing dissenting from
the majority's decision not to grant certiorari review in
Wheeler, the majority did not issue an opinion explaining its
rationale for denying the petition for the writ of certiorari,
and, accordingly, it cannot be presumed that the majority's
decision was premised on a contrary analysis of § 19-8-18(b)
and § 19-8-18(e). See Wheeler, 281 Ga. at 838-39, 642 S.E.2d
at 103 (Carley, J., dissenting) ("'With no explanation
accompanying the majority's denial of the motion to dismiss,
I am left to conjecture.'" (quoting Perdue v. Baker, 276 Ga.
822, 823-24, 586 S.E.2d 303, 304 (2003) (Benham, J.,
dissenting))).
20
1140595
fact implicate only the merits of the Georgia judgment, and
not the Georgia court's subject-matter jurisdiction, and the
arguments are therefore, V.L. argues, barred by the full faith
and credit clause, which "precludes any inquiry into the
merits of the cause of action, the logic or consistency of the
decision, or the validity of the legal principles on which the
judgment is based." Milliken v. Meyer, 311 U.S. 457, 462
(1940). The Supreme Court of the United States explained this
distinction between a subject-matter-jurisdiction challenge
and a merit-based challenge in Fauntleroy v. Lum, 210 U.S.
230, 234-35 (1908):
"No doubt it sometimes may be difficult to
decide whether certain words in a statute are
directed to jurisdiction or to merits, but the
distinction between the two is plain. One goes to
the power, the other only to the duty, of the court.
Under the common law it is the duty of a court of
general jurisdiction not to enter a judgment upon a
parol promise made without consideration; but it has
power to do it, and, if it does, the judgment is
unimpeachable, unless reversed. Yet a statute could
be framed that would make the power, that is, the
jurisdiction, of the court, dependent upon whether
there was a consideration or not. Whether a given
statute is intended simply to establish a rule of
substantive law, and thus to define the duty of the
court, or is meant to limit its power, is a question
of construction and common sense. When it affects
a court of general jurisdiction, and deals with a
matter upon which that court must pass, we naturally
are slow to read ambiguous words as meaning to leave
21
1140595
the judgment open to dispute, or as intended to do
more than to fix the rule by which the court should
decide."
In this case, it is undisputed that Georgia superior
courts
like
the
Georgia
court
have
subject-matter
jurisdiction
over, that is, the power to rule on, adoption petitions.
Indeed, Georgia Code Ann., § 19-8-2, subtitled "jurisdiction
and venue," provides:
"(a) The
superior
courts
of
the
several
counties
shall have exclusive jurisdiction in all matters of
adoption, except such jurisdiction as may be granted
to the juvenile courts."
E.L., however, argues that the Georgia court could properly
exercise
subject-matter
jurisdiction
only
when
the
requirements of the Georgia adoption statutes are met, and, in
this case, they were not, she argues, because those statutes
make no provision for a non-spouse to adopt a child without
first terminating the parental rights of the current parents.
E.L.'s argument regarding the Georgia adoption statutes
appears to be correct, as illustrated by Justice Carley's
explanation of those statutes in his dissenting opinion in
Wheeler:
"Under certain conditions, a child who has only
one living parent 'may be adopted by the spouse of
that parent ....' OCGA [Official Code of Georgia
22
1140595
Annotated] § 19-8-6(a)(2). See also In re C.N.W.,
[274 Ga. 765, 768, 560 S.E.2d 1, 1 (2002)].
However, [the same-sex ex-partner] is not the spouse
of [the biological mother], as '[m]arriages between
persons of the same sex are prohibited in this
state.' OCGA § 19-3-3.1(a). See also Ga. Const. of
1983, Art. I, § IV, Par. I(a) (approved in 2004); In
the Interest of Angel Lace M., [184 Wis. 2d 492,
507, 516 N.W.2d 678, 682 (1994)]. Under OCGA §§
19-8-5(a) and 19-8-7(a), a third party who is not a
stepparent, such as [the same-sex ex-partner], may
adopt the child only if the parent's rights are
surrendered, or are terminated pursuant to OCGA §
19-8-10. However, neither the surrender nor
termination of [the biological mother's] parental
rights was ever sought or ordered. Instead, the
adoption petition was based on [the biological
mother's] consent to the adoption, wherein she
expressly refused to relinquish or surrender her
parental rights, and the trial court declared that
the child would have 'two legal parents' and awarded
permanent custody to both. OCGA § 19-8-19(a)(1)
specifically proscribes such an order: 'Except with
respect to a spouse of the petitioner and relatives
of the spouse, a decree of adoption terminates all
legal relationships between the adopted individual
and his relatives, including his parent....' 'If
the legislature had intended to sanction adoptions
by nonmarital partners, it would not have mandated
this "cut-off" of ["all legal relationships"] of the
birth parents in these adoptions.' In the Interest
of Angel Lace M., supra at 683."9
We note that V.L. has not argued in this case that she
9
was the spouse of E.L. and thus entitled to adopt the children
on that basis. To the contrary, she asserts in her brief to
this Court that
"this case has nothing to do with marriage. V.L. is
not a stepparent and was permitted to adopt as an
unmarried person. Recognizing V.L.'s adoption and
treating her like any other adoptive parent does not
23
1140595
281 Ga. at 840, 642 S.E.2d at 104. See also Bates, 317 Ga.
App. at 341, 730 S.E.2d at 484 ("The idea that Georgia law
permits a 'second parent' adoption is a doubtful one ... and
the arguments that [the appellant] presses about the validity
of a decree that purports to recognize such an adoption might
well have some merit."). We further note that our own Court
of Civil Appeals considered this issue when this case was
before it and concluded that "[its] independent review of the
Georgia Adoption Code fully supports Justice Carley's
position." E.L. v. V.L., ___ So. 3d at ___.
Having now conducted our own analysis of the Georgia
adoption statutes, we echo the conclusion of Justice Carley
and the Court of Civil Appeals that Georgia law makes no
provision for a non-spouse to adopt a child without first
terminating the parental rights of the current parents. It is
undisputed that a termination of E.L.'s parental rights did
not occur in this case; thus, it would appear to be undisputed
that the Georgia court erred by entering the Georgia judgment
involve or require recognizing the parties' marriage
in any way; as a legal matter, the two are
completely unrelated."
V.L.'s brief, at p. 7.
24
1140595
by which V.L. became an adoptive parent of the children. Our
inquiry does not end here, however, as that error is
ultimately of no effect unless it implicates the subject-
matter jurisdiction of the Georgia court. While not conceding
that the Georgia court erred, V.L. argues that any such error
has no bearing on whether the Georgia court had subject-matter
jurisdiction to issue the Georgia judgment, stating:
"The question of whether the Georgia court
properly interpreted and applied Georgia's adoption
statutes to grant an adoption to V.L. without
terminating E.L.'s rights as a parent is not a
question of subject-matter jurisdiction, but rather
of whether the adoption as pled was a cognizable
action under Georgia law. 'The legal question of
the cognizability of an alleged cause of action
under state law goes to the merits of a lawsuit
asserting that cause of action rather than the
subject-matter jurisdiction of the court to decide
the legal question.' South Alabama Gas District v.
Knight, 138 So. 3d 971, 979 (Ala. 2013) (Murdock,
J., concurring in the rationale in part and
concurring in the result); see also Ex parte BAC
Home Loans Servicing, LP, 159 So. 3d 31, 46 (Ala.
2013) ('"Lack of statutory authorization best
supports analysis as the lack of a claim upon which
relief can be granted ... not a claim over which the
forum
court
lacks
subject-matter
jurisdiction
...."') (quoting Jerome A. Hoffman, The Malignant
Mystique of 'Standing', 73 Ala. Law. 360, 362
(2012)). Therefore, if the Georgia court had
subject-matter jurisdiction over the adoption, which
it did, E.L. is prohibited from challenging the
judgment on any grounds, including arguing that
Georgia does not allow anyone other than a spouse to
25
1140595
adopt without terminating the rights of the existing
parent."
V.L.'s brief, at pp. 24-25. The Court of Civil Appeals in
fact agreed with this argument, stating in its opinion:
"Although it may be that the Georgia court
erroneously construed Georgia law so as to permit
V.L. to adopt the children as a 'second parent,'
that error goes to the merits of the case and not to
the subject-matter jurisdiction of the Georgia
court. See Pirtek [USA, LLC v. Whitehead], 51 So.
3d [291,] 296 [(Ala. 2010)] (holding that court in
making inquiry into jurisdiction of foreign court to
enter judgment cannot consider merits or correctness
of foreign judgment)."
E.L. v. V.L., ___ So. 3d at ___.
However, we disagree. "The requirements of Georgia's
adoptions statutes are mandatory and must be strictly
construed in favor of the natural parents ...." In re Marks,
300 Ga. App. 239, 243, 684 S.E.2d 364, 367 (2009). See also
Doby v. Carroll, 274 Ala. 273, 274, 147 So. 2d 803, 804 (1962)
("In Alabama, the right of adoption is purely statutory and in
derogation of the common law, ... and unless the statute by
express provision or necessary implication confers the right
to adoption, such right does not exist."). Although § 19-8-
2(a) of the Georgia Code gives superior courts such as the
Georgia court exclusive jurisdiction to enter adoption
26
1140595
decrees, Georgia Code Ann., § 19-8-5(a), further defines the
condition that must exist before such superior courts can
grant adoptions to third parties such as V.L. –– "each such
living parent ... has voluntarily and in writing surrendered
all of his rights to the child to that third person for the
purpose of enabling that third person to adopt the child." As
explained supra, it is undisputed that E.L. did not surrender
her parental rights in this case; accordingly, the Georgia
court was not empowered to enter the Georgia judgment
declaring V.L. to be an adoptive parent of the children. That
is
to
say,
the
Georgia
court
lacked
subject-matter
jurisdiction to enter the Georgia judgment. The Georgia
judgment is accordingly void, and the full faith and credit
clause does not require the courts of Alabama to recognize
that judgment. Indeed, it would be error for the courts of
this State to do so, and, to the extent the judgments of the
Jefferson Family Court and Court of Civil Appeals did give
effect to the Georgia judgment, they did so in error.10
Because we have held that the Georgia judgment is void
10
for lack of subject-matter jurisdiction based on the fact that
the Georgia adoption statutes make no provision for a non-
spouse to adopt a child without first terminating the parental
rights of the current parents, we need not consider E.L.'s
other arguments that the Georgia judgment is also void because
27
1140595
IV.
We granted the petition for a writ of certiorari filed by
E.L. to review the judgment entered by the Court of Civil
Appeals insofar as that judgment affirmed the
Jefferson Family
Court's judgment recognizing as valid the Georgia judgment
approving the adoption by V.L. of the children of her former
same-sex partner E.L. After reviewing the record and
analyzing the relevant law of both this State and Georgia, we
now conclude that the Court of Civil Appeals and the Jefferson
Family Court erred in giving full faith and credit to the
Georgia judgment because the Georgia court was without
subject-matter jurisdiction to issue the Georgia judgment.
Accordingly, the judgment of the Court of Civil Appeals is
reversed and the cause remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Bolin, Main, and Wise, JJ.,
concur.
Parker, J., concurs specially.
V.L. was not a bona fide resident of Georgia or that the
courts of this State need not recognize that judgment because,
E.L. alleges, it is contrary to the public policy of Alabama.
28
1140595
Murdock, J., concurs in the result.
Shaw, J., dissents.
29
1140595
PARKER, Justice (concurring specially).
It is well settled in Alabama that adoption is a purely
statutory right. "In Alabama, the right of adoption is purely
statutory and in derogation of the common law, ... and unless
the statute by express provision or necessary implication
confers the right of adoption, such right does not exist."
Evans v. Rosser, 280 Ala. 163, 164–65, 190 So. 2d 716, 717
(1966) (citing Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803
(1962)). In Hanks v. Hanks, 281 Ala. 92, 99, 199 So. 2d 169,
176 (1967), this Court similarly stated:
"The right of adoption, that is, to confer on
the child of another a title to the privileges and
rights of a child and appointment as heir of the
adopting person is purely statutory, and was never
recognized by the rules of common law. Abney v.
DeLoach, Admr., 84 Ala. 393, 4 So. 757 [(1888)];
Franklin v. White, 263 Ala. 223, 82 So. 2d 247
[(1955)]; Milton v. Summers, 280 Ala. 106, 190 So.
2d 540 [(1966)]."
Alabama has unequivocally held that adoption is a purely
statutory right; an Alabamian's right to adopt does not exist
apart from Alabama's positive law. Thus, adoption is a
privilege, not a right.11
In Alabama, we have consistently referred to the
11
statutory "right of adoption." It must be stressed that
adoption is a statutory right, not a natural or fundamental
right:
30
1140595
Stating explicitly what is implicit in the above caselaw:
there is no fundamental right to adopt. Instead, as set forth
above, "adoption is a status created by the state acting as
parens patriae, the sovereign parent." Douglas v. Harrison,
12
454 So. 2d 984, 986 (Ala. Civ. App. 1984) (citing Ex parte
"While adoption has often been referred to in
the context of a 'right' of adoption, the right to
adopt is not absolute, and ... such 'right' is not
a natural or fundamental one but rather a right
created by statute. Furthermore, adoption statutes
confer a privilege rather than a right; that is,
adoption is not a right, but a privilege which is
governed not by the wishes of the prospective
parents but by the state's determination that a
child is best served by a particular disposition.
Similarly stated, adoption is not a fundamental
right but is rather a creature of statute. Adoption
has sometimes been characterized as a 'status'
created by the state, and an 'opportunity,' rather
than a right, to adopt has been said to be a
legislatively created device."
2 Am. Jur. 2d Adoption § 6 (2004)(footnotes omitted).
Of course, the State may act as parens patriae only as
12
to children who actually need rescuing. In my special
concurrence to Ex parte E.R.G., 73 So. 3d 634 (Ala. 2011), I
stated that a parent has a fundamental right to parent his or
her children that is disturbed only "'"in those extreme
instances where the state takes over to rescue the child from
parental neglect or to save its life."'" 73 So. 3d at 655
(quoting R.J.D. v. Vaughan Clinic, P.C., 572 So. 2d 1225, 1228
(Ala. 1990), quoting in turn 59 Am. Jur. 2d Parent and Child
§ 48 at 194 (1987)). Only once a child has been determined to
be "dependent" does the State have any jurisdiction to intrude
into the "separate and legitimate human government" that is
the family. 73 So. 3d at 650.
31
1140595
Bronstein, 434 So. 2d 780 (Ala. 1983)). Of course, having
created the purely statutory right of adoption, the State has
the authority to specify the contours of that right, which
13
it has done in the Alabama Adoption Code, Ala. Code 1975, §
26-10A-1 et seq. In Ex parte Sullivan, 407 So. 2d 559, 562-63
(Ala. 1981), this Court stated:
"Adoption is purely statutory. It was unknown to the
common law. The courts of this state have always
required strict adherence to statutory requirements
in adoption proceedings. No case has stated this
principle better than the Court of Civil Appeals in
Davis v. Turner, 337 So. 2d 355 (Ala. Civ. App.
1976), where it said:
"'Adoption is strictly statutory,
Hanks v. Hanks, 281 Ala. 92, 199 So. 2d 169
[(1967)]. Being unknown at common law, it
cannot be achieved by contract, Prince v.
Prince, 194 Ala. 455, 69 So. 906 [(1915)].
Adoption is not merely an arrangement
between the natural and adoptive parents,
but is a status created by the state acting
as parens patriae, the sovereign parent.
Because the exercise of sovereign power
involved
in
adoption
curtails
the
fundamental parental rights of the natural
See Stevenson v. King, 243 Ala. 551, 553, 10 So. 2d 825,
13
826 (1942)(recognizing that the purely statutory right of
mortgage redemption, which did not exist at common law but was
created by the positive law of Alabama, "must be exercised by
the person and in the mode and manner prescribed by the
statute" and that "[i]t [is] entirely within the competency of
the Legislature to determine the conditions upon which the
right could be granted").
32
1140595
parent, the adoption statutes must be
closely adhered to.'
"337 So. 2d at 360-361."
Among other things, the State, acting as parens patriae,
has the authority to determine who may adopt based on the best
interest of the child to be adopted. To this end, the United
States Court of Appeals for the Eleventh Circuit has held that
a state has a legitimate interest in encouraging a stable and
nurturing environment for
an
adopted child by encouraging that
the child be raised in the optimal family structure with both
a father and a mother:
"Florida clearly has a legitimate interest in
encouraging a stable and nurturing environment for
the education and socialization of its adopted
children. See, e.g., Palmore v. Sidoti, 466 U.S.
429, 433, 104 S. Ct. 1879, 1882, 80 L. Ed. 2d 421
(1984) ('The State, of course, has a duty of the
highest order to protect the interests of minor
children, particularly those of tender years.');
Stanley[ v. Illinois], 405 U.S. [645,] 652, 92 S.
Ct. [1208,] 1213 [(1972)] (noting that 'protect[ing]
the moral, emotional, mental, and physical welfare
of the minor' is a 'legitimate interest[], well
within the power of the State to implement')
(internal quotation marks omitted). It is chiefly
from parental figures that children learn about the
world and their place in it, and the formative
influence of parents extends well beyond the years
spent under their roof, shaping their children's
psychology, character, and personality for years to
come. In time, children grow up to become full
members of society, which they in turn influence,
33
1140595
whether for good or ill. The adage that 'the hand
that rocks the cradle rules the world' hardly
overstates the ripple effect that parents have on
the public good by virtue of their role in raising
their children. It is hard to conceive an interest
more legitimate and more paramount for the state
than promoting an optimal social structure for
educating, socializing, and preparing its future
citizens to become productive participants in civil
society -- particularly when those future citizens
are displaced children for whom the state is
standing in loco parentis.
"More importantly for present purposes, the
state has a legitimate interest in encouraging this
optimal family structure by seeking to place
adoptive children in homes that have both a mother
and father. Florida argues that its preference for
adoptive marital families is based on the premise
that the marital family structure is more stable
than other household arrangements and that children
benefit from the presence of both a father and
mother in the home. Given that appellants have
offered no competent evidence to the contrary, we
find this premise to be one of those 'unprovable
assumptions'
that
nevertheless
can
provide
a
legitimate basis for legislative action. Paris Adult
Theatre I v. Slaton, 413 U.S. 49, 62-63, 93 S. Ct.
2628, 2638, 37 L. Ed. 2d 446 (1973). Although social
theorists from Plato to Simone de Beauvoir have
proposed alternative child-rearing arrangements,
none has proven as enduring as the marital family
structure, nor has the accumulated wisdom of several
millennia of human experience discovered a superior
model. See, e.g., Plato, The Republic, Bk. V,
459d-461e; Simone de Beauvoir, The Second Sex (H.M.
Parshley trans., Vintage Books 1989) (1949). Against
this 'sum of experience,' it is rational for Florida
to conclude that it is in the best interests of
adoptive children, many of whom come from troubled
and unstable backgrounds, to be placed in a home
34
1140595
anchored by both a father and a mother. Paris Adult
Theatre I, 413 U.S. at 63, 93 S. Ct. at 2638."
Lofton v. Secretary of Dep't of Children & Family Servs., 358
F.3d 804, 819-20 (11th Cir. 2004).
In summary, adoption is a purely statutory right created
by the State acting as parens patriae; there exists no
fundamental right to adopt a child. Acting in the role of
parens patriae, the State has a legitimate interest in
encouraging that children be adopted into the optimal family
structure, i.e., one with both a father and a mother.
35
1140595
SHAW, Justice (dissenting).
I dissent. The main opinion reviews the merits of the
adoption in this case; our caselaw, interpreting the United
States Constitution, does not permit this Court to do so.
The main opinion holds that the Superior Court of Fulton
County, Georgia ("the Georgia court"), was not "empowered" to
allow the adoption in this case--and thus lacked subject-
matter jurisdiction--because it did not comply with Georgia
Code Ann., § 19-8-5(a) and § 19-8-18(b). Section 19-8-5(a)
designates that a child may be adopted by a "third party" if
the rights of the living parents or guardians have been
surrendered.
Section
19-8-18(b)
requires,
among
other
things,
that the court be "satisfied" that this has occurred. These
provisions speak to the merits of whether the adoption should
be granted--not to whether the trial court obtains subject-
matter jurisdiction. Jurisdiction is instead provided by
Georgia Code Ann., § 19-8-2(a), which states that the superior
courts of Georgia have jurisdiction "in all matters of
adoption." (Emphasis added.) This would include adoption
matters where the petitioners fail to "satisfy" the court that
36
1140595
the requisites for an adoption were met. The Supreme Court of
Georgia has defined "subject-matter jurisdiction" as follows:
"The
phrase
'subject-matter
jurisdiction,'
as
defined by this Court, '"refers to subject matter
alone," i.e., "conferring jurisdiction in specified
kinds of cases."' '"Jurisdiction of the subject
matter does not mean simply jurisdiction of the
particular case then occupying the attention of the
court, but jurisdiction of the class of cases to
which that particular case belongs."'"
Abushmais v. Erby, 282 Ga. 619, 620, 652 S.E.2d 549, 550
(2007) (citations omitted). The adoption petition in the
instant case, whether meritorious or not, was part of the
class of cases within the Georgia court's jurisdiction to
decide. § 19-8-2(a). The fact that the adoption should not
have been granted does not remove the case from the class of
cases within that court's power.
I see no support for the proposition that, if a
petitioner fails to show that an adoption is warranted or
permissible under Georgia law, then the court in Georgia is
suddenly divested of jurisdiction over the subject matter.
Indeed, Georgia's adoption
code seems to provide the opposite.
Specifically, Georgia Code Ann.,
§ 19-8-18(c), states: "If the
court determines that any petitioner has not complied with
this chapter, it may dismiss the petition for adoption without
37
1140595
prejudice or it may continue the case." (Emphasis added.)
Both §§ 19-8-5(a) and 19-8-18(b) are part of "this chapter,"
namely, chapter 8 of title 19 of the Official Code of Georgia.
If a petitioner has failed to comply with anything in chapter
8, the result is not a loss of subject-matter jurisdiction,
based on the simple fact that the court is still empowered to
continue the case. Sections 19-8-5(a) and 19-8-18(b) cannot
be read to deny the court subject-matter jurisdiction if it
may
nevertheless
continue
hearing
the
case
despite
noncompliance with those sections.14
When a party seeking to obtain an adoption fails to show
that the adoption is permissible, then that party has simply
failed to prove the merits of his or her case:
"If in the end the facts do not support the
plaintiffs, or the law does not do so, so be it--but
this does not mean the plaintiffs cannot come into
court and allege, and attempt to prove, otherwise.
Under Georgia law, although the trial court may find
14
that the requirements for an adoption were not met, it may
nevertheless place custody of the child with the petitioners,
an act antithetical to the idea that the court possesses no
subject-matter jurisdiction. In re Stroh, 240 Ga. App. 835,
523 S.E.2d 887 (1999) (affirming the trial court's denial of
an adoption on the grounds that the petitioners were not
residents of Georgia under Georgia Code Ann. § 19-8-3(a)(3),
but nevertheless holding that the trial court erred in
refusing to place custody of the child with the petitioners).
38
1140595
If they fail in this endeavor ... they have a 'cause
of action' problem, or more precisely in these
cases, a 'failure to prove one's cause of action'
problem.
The
trial
court
has
subject-matter
jurisdiction to 'hear' such 'problems'--and the
cases in which they arise."
Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 46 (Ala.
2013). Stated differently, "[t]he legal question of the
cognizability of an alleged cause of action under state law
goes to the merits of a lawsuit asserting that cause of action
rather than the subject-matter jurisdiction of the court to
decide that legal question." South Alabama Gas Dist. v.
Knight, 138 So. 3d 971, 979 (Ala. 2013) (Murdock, J.,
concurring in the rationale in part and concurring in the
result). In BAC and several other cases, e.g., Poiroux v.
Rich, 150 So. 3d 1027 (Ala. 2014), and Ex parte MERSCORP,
Inc., 141 So. 3d 984 (Ala. 2013), this Court has rejected the
idea that a simple failure to prove an element of a
statutorily provided cause of action results in the lack of
subject-matter jurisdiction. I have recently noted, however,
that this Court "appears to [have] signal[ed] a retreat" from
that principle. McDaniel v. Ezell, [Ms. 1130372, Jan. 30,
2015] ___ So. 3d ___, ___ (Shaw, J., dissenting). Under the
rationale of the main opinion, that retreat is now complete.
39
1140595
The rationale of Justice Carley's dissenting opinion in
Wheeler v. Wheeler, 281 Ga. 838, 642 S.E.2d 103 (2007), would
hold that § 19-8-18(b) would not allow the type of adoption
that occurred in the instant case. Thus, as the main opinion
states, "the Georgia court erred by entering the Georgia
judgment by which V.L. became an adoptive parent of the
children." ___ So. 3d at ___ (emphasis added). I tend to
agree; however, this is an error on the merits, not an error
that
deprived
the
Georgia
court
of
subject-matter
jurisdiction. As the Court of Civil Appeals stated: "Although
it may be that the Georgia court erroneously construed Georgia
law so as to permit V.L. to adopt the children as a 'second
parent,' that error goes to the merits of the case and not to
the subject-matter jurisdiction of the Georgia court." E.L.
v. V.L., [Ms. 2130683, Feb. 27, 2015] ___ So. 3d ___, ___
(Ala. Civ. App. 2015). Our caselaw prohibits an inquiry into
the merits of a foreign judgment. Pirtek USA, LLC v.
Whitehead, 51 So. 3d 291, 296 (Ala. 2010) ("'Full faith and
credit prohibits an inquiry into the merits of the original
cause of action.'" (quoting Tongue, Brooks & Co. v. Walser,
410 So. 2d 89, 90 (Ala. Civ. App. 1982))). Further, I fear
40
1140595
that this case creates a dangerous precedent that calls into
question
the
finality
of
adoptions
in
Alabama:
Any
irregularity in a probate court's decision in an adoption
would now arguably create a defect in that court's subject-
matter jurisdiction.
41 | September 18, 2015 |
27de8231-b551-4d6b-b6cb-67458df71f24 | Diversicare Leasing Corp. v. Hubbard | N/A | 1131027 | Alabama | Alabama Supreme Court | REL:09/30/2015
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, 2015
____________________
1131027
____________________
Diversicare Leasing Corp. d/b/a Canterbury Healthcare
Facility
v.
Betty Hubbard, as the personal representative of the Estate
of Johnathan Hubbard
Appeal from Russell Circuit Court
(CV-13-900029)
BOLIN, Justice.
Diversicare Leasing Corp. d/b/a Canterbury Healthcare
Facility ("Canterbury") appeals from an order denying its
motion
seeking
to compel arbitration of a wrongful-death claim
1131027
filed by Betty Hubbard, as the personal representative of the
estate of Johnathan Bernard Hubbard. We affirm the order.
Facts and History
Johnathan Bernard Hubbard was diagnosed with cerebral
palsy when he was six months old, which caused him to be
developmentally delayed and to suffer from a
seizure
disorder.
Betty Hubbard, Johnathan's mother, testified that it was
determined that Johnathan was "profoundly mentally retarded"
and totally dependant upon others for his care. Betty stated
that Johnathan could not walk and was confined to a wheelchair
his entire life; that he could not speak; that he could not
feed, clean, or dress himself; that he had no use of his
hands; and that he could not otherwise communicate his needs
to others. Betty testified that Johnathan was like "an
infant" and that he then progressed to the capacity of a "pre-
toddler" and that that was as far as "his mental capacity
went."
Johnathan
spent
various
periods
of
his
life
in
residential-care facilities. He was first admitted to a
residential-care facility when he was three years old, and he
stayed at that facility for almost two years. Johnathan then
2
1131027
returned home to live with his mother until he was
approximately 11 years old, at which time he returned to a
residential-care facility for approximately 5 more years.
Johnathan then returned home to live with his mother, where he
remained until 2009 when he was admitted to Canterbury, a
long-term-care nursing facility.
Betty was Johnathan's sole custodial parent, and she made
all health-care-related decisions for him. Betty
executed all
Medicare and Medicaid documents relative to Johnathan's care
and maintained a bank account on his behalf. Betty was the
payee on all government-related health-care benefit checks
received for Johnathan's care, and she also received child
support on behalf of Johnathan from Johnathan's father. Betty
testified that each residential facility in which Johnathan
had resided looked to her for decision-making authority
regarding Johnathan's care. Betty further stated that the
nurses and aides who treated Johnathan in her home when he
resided with her also looked to her for decision-making
authority regarding Johnathan's care. Betty testified that at
the time Johnathan was admitted to Canterbury he was unable to
make decisions for himself and was unable to appoint another
3
1131027
person to make decisions for him. In sum, Betty made all
health-care decisions relating to Johnathan's care and
executed all documents in furtherance of that care.
In 2009, when Johnathan was 21 years old, Betty could no
longer properly care for him at home, and she admitted
Johnathan to Canterbury. Betty testified that she was
"adamant about
[Johnathan's] getting care because he
could
not
come home to me." Betty executed a number of documents upon
1
Johnathan's admission to Canterbury, including the admission
agreement and the arbitration agreement made the basis of this
appeal.
Section 1 of the admission agreement provided:
"This Admission Agreement ('Agreement') states
the terms and conditions agreed to by you, Johnathan
Hubbard, your Responsible Party, Betty Hubbard and
Canterbury.
"In this Agreement 'you' and 'your' refers to
the person who wishes to become a resident at the
Facility, and the Facility refers to Canterbury.
"Your Responsible Party is your legal guardian,
if one has been appointed, or your Attorney-in-Fact,
if you have executed a power of attorney, or some
other individual or family member who agrees to
assist the Facility in providing for your healthcare
and
maintenance.
The
obligations
of
your
Johnathan
had
been
hospitalized
for
approximately
20
days
1
at the time Betty decided to admit him to Canterbury.
4
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Responsible Party are described more fully in this
Agreement and in the Resident Handbook, both of
which you and your Responsible Party should read
carefully before signing this Agreement."
The
admission
agreement
contained
a
section
entitled
"Responsible
Party,"
which
provided
that
"[t]he
person
signing
this Agreement as your Responsible Party has the following
relationship(s) to the Resident (please check all that apply)
(If Legal Guardian, Attorney-In-Fact, Power of Attorney,
Health Care Agent, etc., Responsible Party must provide
documentation to that Effect.)" The admission agreement
provided several relationship options from which to choose,
including "spouse"; "relative"; "legal guardian"; "attorney-
in-fact"; "friend or interested person"; and "other." Betty
checked
the
"relative"
option;
thereafter,
Betty
indicated
her
acceptance of the terms of the admission agreement by both
initialing and signing the document in the space designated
for the "Responsible Party."
2
Paragraph 3 of the arbitration agreement provided:
Betty also signed other documents appended to the
2
admission agreement as part of Johnathan's admission to
Canterbury, including a patient-account fund authorization; a
beneficiary-designation form; billing authorizations; a bed-
hold policy; and a representative payee form.
5
1131027
"The claims or disputes covered by this
Agreement shall include any action, dispute or claim
of any kind between the Resident or Resident's
Representative,
Resident's
estate,
successors,
assigns, heirs, personal representatives, executors
and administrators that relates in any way to
healthcare services or any other items or services
provided by [Canterbury], and agreements between the
Resident and [Canterbury], or any other aspect of
the past, present, or future relationships between
[Canterbury] and Resident. This agreement shall
survive the death of the resident."
Paragraph 4 of the arbitration agreement provides that "[a]ny
and all disputes and claims described in paragraph 3 of this
agreement shall be resolved by binding arbitration." The
arbitration agreement defines the "Resident's Representative"
as
"the resident's Legal Guardian, Attorney-in-Fact,
Power of Attorney, or Health Care Sponsor. In the
event a representative with such legal authority
does not exist, the Resident may authorize a duly
appointed person such as the Responsible Party to
serve as his/her Representative and to sign this
agreement on his/her behalf."
The arbitration agreement defines the "Responsible Party" as
"an individual or family member who agrees to assist
[Canterbury]
in
providing
for
your
healthcare
and
maintenance." On the signature page of the arbitration
agreement appeared three options as to how the resident could
execute the arbitration
agreement.
The first option consisted
6
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simply of a signature line for the resident and two signature
lines for the required two witnesses. The second option
provided as follows: "If Resident is unable to sign this
Agreement because of physical disability, Resident must
acknowledge consent to this Agreement and the acknowledgment
shall be executed by two witnesses." This phrase was followed
by two witness lines. The third option provided as follows:
"If Resident is unable to consent or sign this Agreement, this
Agreement shall be executed by Resident's Representative."
Betty executed the document by signing her name on the line
provided for the "Resident's Representative."
Johnathan was found unresponsive by the Canterbury staff
on February 20, 2011, and was transferred to a local hospital.
Johnathan was diagnosed with sepsis; he died on February 21,
2011. On January 17, 2013, Betty petitioned the Probate Court
of Russell County for letters of administration for
Johnathan's estate. On January 23, 2013, the probate court
entered an order granting Betty's petition for letters of
administration and appointing her the administrator of
Johnathan's estate. On February 15, 2013, Betty, as the
personal
representative
of
Johnathan's
estate,
sued
7
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Canterbury, asserting a wrongful-death claim. On March 22,
2013, Canterbury moved the trial court to compel arbitration
of Betty's wrongful-death claim and to stay
the
wrongful-death
claim pending the arbitration. Betty argued in response to
the motion to compel that she lacked the legal authority to
bind Johnathan to the arbitration agreement because at the
time the agreement was executed Johnathan was incapacitated
and was 21 years old and had reached the age of majority, and
she did not hold his power of attorney nor had she been
appointed his personal representative or guardian by any
court. Following a hearing, the trial court, on May 1, 2014,
entered an order denying Canterbury's motion to compel
arbitration and to stay the proceedings.
Canterbury
appealed.
Standard of Review
This Court has stated:
"'[T]he standard of review of a trial court's
ruling on a motion to compel arbitration at the
instance of either party is a de novo determination
of whether the trial judge erred on a factual or
legal issue to the substantial prejudice of the
party seeking review.' Ex parte Roberson, 749 So. 2d
441, 446 (Ala. 1999). Furthermore:
"'A motion to compel arbitration is
analogous to a motion for summary judgment.
TranSouth Fin. Corp. v. Bell, 739 So. 2d
8
1131027
1110, 1114 (Ala. 1999). The party seeking
to compel arbitration has the burden of
proving the existence of a contract calling
for arbitration and proving that that
contract evidences a transaction affecting
interstate commerce. Id. "After a motion to
compel arbitration has been made and
supported, the burden is on the non-movant
to present evidence that the supposed
arbitration agreement is not valid or does
not apply to the dispute in question."'
"Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277,
280 (Ala. 2000) (quoting Jim Burke Auto., Inc. v.
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(emphasis omitted))."
Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752–53 (Ala.
2002).
Discussion
The dispositive issue on appeal is whether Canterbury has
satisfied its burden of proving the existence of a contract
calling
for
arbitration.
More
specifically,
whether
arbitration is enforceable in this case as to the wrongful-
death claim asserted by Betty on behalf of Johnathan's estate
where, because of his incapacity, Johnathan did not sign the
arbitration agreement. Generally, "a nonsignatory to an
arbitration agreement cannot be forced to arbitrate [her]
claims." Cook's Pest Control, Inc. v. Boykin, 807 So. 2d 524,
9
1131027
526 (Ala. 2001). However, as with most general rules, there
are exceptions. Justice Stuart has noted that this "Court has
created a distinct body of caselaw considering specifically
the issue how and when arbitration agreements executed by the
owners and operators of nursing homes and their residents
and/or their residents' family members should be enforced."
SSC Montgomery Cedar Crest Operating Co. v. Bolding, 130 So.
3d 1194, 1196 (Ala. 2013). See also Owens v. Coosa Valley
Health Care, Inc., 890 So. 2d 983 (Ala. 2004); Briarcliff
Nursing Home, Inc. v. Turcotte, 894 So. 2d 661 (Ala. 2004);
Noland Health Servs., Inc. v. Wright, 971 So. 2d 681 (Ala.
2007); Carraway v. Beverly Enters. Alabama, Inc., 978 So. 2d
27 (Ala. 2007); and Tennessee Health Mgmt., Inc. v. Johnson,
49 So. 3d 175 (Ala. 2010). Justice Stuart, citing the
decision of the United States Court of Appeals for the
Eleventh Circuit in Entrekin v. Internal Medicine Associates
of Dothan, P.A., 689 F.3d 1248, 1259 (11th Cir. 2012), further
noted that that court had reviewed the
above-mentioned
caselaw
and correctly concluded "that the principle to be extracted
from these cases is that an arbitration agreement that binds
the
nursing-home
resident
also
binds
the
resident's
10
1131027
representative." Bolding, 130 So. 3d at 1196. Therefore, it
is that principle that we will apply in determining the issues
presented in this appeal.
Canterbury argues on appeal that the arbitration
agreement is enforceable as to Johnathan because, it says,
Betty had the authority, as Johnathan's parent, to act on his
behalf and thus bound Johnathan to the arbitration agreement
when she executed it as the "Resident's Representative."
Further, Canterbury also argues that Betty herself is bound by
the arbitration agreement because she signed the agreement as
the "Resident's Representative" and subsequently brought the
wrongful-death claim as the personal representative of
Johnathan's estate. Thus, Canterbury contends that Betty, as
a signatory to the arbitration agreement, has bound herself to
the arbitration agreement and must submit the wrongful-death
claim to arbitration.
Betty responds by arguing that Canterbury has failed to
establish the existence of a binding arbitration agreement
because, she says, her signature on the arbitration agreement
was ineffective to bind Johnathan in that she did not have the
proper legal authority to bind Johnathan. Betty contends that
11
1131027
Johnathan was an incapacitated adult and that at the time he
was admitted to Canterbury she had not been given his power of
attorney and had not been previously appointed by a court of
competent jurisdiction as his guardian or conservator or
otherwise to handle his affairs. Betty also argues that the
arbitration agreement is void on the ground that it is
unconscionable. We address these arguments in turn.
In Owens, supra, the nursing-home resident was admitted
to the nursing home following a two-week hospitalization for
heart failure. The resident signed no admission papers upon
being admitted to the nursing home. Rather, the resident's
admission to the nursing home was handled by her daughter, who
signed the relevant admission documents as the resident's
guardian
and sponsor. One of the admission documents contained
an arbitration agreement. Subsequently, the resident sued the
nursing home, alleging that it had failed to provide adequate
care. Following the resident's death, her daughter, as
administrator
of the resident's
estate, was substituted as
the
plaintiff. The nursing home filed a motion to stay the
proceedings and to compel arbitration. The trial court
granted the motion to compel arbitration.
12
1131027
The daughter argued on appeal, among other things, that
the trial court erred in granting the nursing home's motion to
compel arbitration because the resident did not sign the
arbitration agreement and therefore should not be bound by it.
In holding that the nursing-home resident was bound by the
arbitration agreement, this Court stated:
"[I]t is undisputed that [the daughter], on behalf
of [the resident], entered into the arbitration
agreement with [the nursing home]. The agreement
explicitly states that it is 'between [the nursing
home] .... and the undersigned Patient, Guardian and
Sponsor (hereinafter known as "Patient").' [The
resident] is clearly designated on the signature
page as the 'Patient'; [the daughter] is clearly
designated on the signature page as both 'Guardian'
and 'Sponsor'; and the agreement states that '[t]he
meaning of "Patient" shall include Patient and his,
her or their sponsors, guardians, heirs, executors,
successors, and assigns.' There is no evidence
indicating that [the resident] had any objection to
[the daughter's] acting on her behalf in admitting
[the resident] to the nursing home. [The nursing
home] has met its burden of proving the existence of
a contract between [the nursing home] and [the
resident] calling for arbitration."
Owens, 890 So. 2d at 987. Nothing in Owens indicated that the
resident was in any way mentally incapacitated. Further,
important to this Court's analysis in Owens was the fact that
the evidence indicated that the resident had no objection to
her daughter's acting on her behalf.
13
1131027
In Briarcliff, supra, Noella Turcotte and Sarah Carter
were admitted to the Briarcliff nursing home. David Turcotte
and Kyra Woodman completed the admission documents on behalf
of Noella and Sarah, respectively; one document included an
arbitration agreement. David signed the admission agreement
for Noella in his capacity as "Fiduciary Party." Kyra signed
the admission agreement relating to Sarah in her capacities as
"Fiduciary Party" and "Attorney–In–Fact under [a] validly
executed power of attorney." Subsequently, David and Kyra, in
their capacities as the personal representatives of the
estates of Noella and Sarah, separately sued Briarcliff for
the alleged wrongful deaths of Noella and Sarah. Briarcliff
moved to compel arbitration on the ground that agents for
Noella and Sarah had signed admission contracts that contained
an arbitration provision. David and Kyra opposed the motions
to compel arbitration, arguing that neither of them, in their
capacities as executor and administratrix, respectively, of
the deceased estates had signed or had otherwise entered into
the admission contracts and that the "fiduciary parties" who
signed the admission contracts on behalf of Noella and Sarah
while they were alive could not contractually bind the then
14
1131027
nonexistent wrongful-death claims to arbitration. The trial
court denied Briarcliff's motions to compel arbitration.
Briarcliff
filed
separate
appeals,
and
this
Court
consolidated
the appeals because they raised identical issues.
In concluding that David and Kyra, in their capacities as
the personal representatives of the estates of Noella and
Sarah,
were bound to arbitrate the wrongful-death claims,
this
Court stated:
"In SouthTrust Bank [v. Ford, 835 So. 2d 990
(Ala. 2002)], the underlying dispute involved
SouthTrust's negligent cashing of a check on Edwin
Edwards's account. Edwards died before the dispute
was resolved, and Melody Ford, his daughter, as the
administratrix of Edwards's estate, sued SouthTrust
alleging that it had negligently cashed the check.
She also sued SouthTrust in her individual capacity,
asserting related claims. The deposit agreement that
governed Edwards's account at SouthTrust contained
an arbitration provision. On the basis of that
provision, SouthTrust moved to compel arbitration;
the trial court denied the motion. SouthTrust
appealed, and this Court found that 'Melody's claim
to recover the value of the improperly paid check is
subject to arbitration because she is asserting that
claim in her role as the administratrix of Edwards's
estate.' Id. at 994. We further stated:
"'We recognize that an administratrix
of a decedent's estate stands in the shoes
of the decedent. We also recognize that the
"[p]owers [of an executor], in collecting
the debts constituting the assets of the
15
1131027
estate, are just as broad as those of the
deceased." For the same reason the powers
of
an
executor
or
an
administrator
encompasses all of those formerly held by
the decedent, those powers must likewise be
restricted in the same manner and to the
same extent as the powers of the decedent
would have been. Thus, where an executor or
administrator asserts a claim on behalf of
the estate, he or she must also abide by
the terms of any valid agreement, including
an arbitration agreement, entered into by
the decedent.'
"Id. at 993–94 (citations omitted). Therefore, in
this case, Turcotte, as executor of Noella's estate,
and Woodman, as administratrix of Sarah's estate,
are bound by the arbitration provisions contained in
the admission contracts."
Briarcliff, 894 So. 2d at 664-65. Again, nothing in Briarcliff
indicated that the nursing-home residents were mentally
incapacitated and not capable of acquiescing to the
individuals' acting on their behalf by signing the admitting
documents and binding the residents to the arbitration
provision.
This Court next decided Noland Health, supra, a plurality
opinion, in which the resident, who was suffering from
dementia related to Alzheimer's disease, was admitted to the
nursing home while accompanied by her daughter-in-law. The
resident's daughter-in-law completed the admission agreement
16
1131027
on the resident's behalf. The admission agreement contained an
arbitration provision.
The admission agreement had a
page that
contained blank spaces for identification of the parties. In
the space for identifying the "Resident," the daughter-in-law
wrote in the resident's name. The space designated for
"Resident's Legal Representative (if applicable)" was left
blank. The space designated for the "Resident's Responsible
Party (if applicable)" was signed by the daughter-in-law. The
last page of the agreement, the signature page, contained
lines with the identical designations. The spaces designated
for the signatures of the "Resident" and the "Resident's Legal
Representative
(if
applicable)"
were
left
blank.
The
daughter-
in-law signed in the space designated for the "Resident's
Responsible Party (if applicable)."
Subsequently, the resident fell on a couple of occasions
and suffered injuries to her hip and neck. In January 2005,
a complaint was filed against the nursing home by the resident
individually, and by her son and daughter-in-law as her next
friends, alleging that she had received negligent and
substandard care and treatment at the nursing home. The
resident died in February 2005. Thereafter, Peter Wright, as
17
1131027
administrator of the resident's estate, amended the complaint
to add a wrongful-death claim. The nursing home moved to
compel arbitration; the trial court denied the motion.
The nursing home appealed, arguing that the arbitration
provision was enforceable against Wright as the resident's
personal representative, notwithstanding the fact that the
resident did not personally sign the admission agreement
because, it said, the resident's daughter-in-law had signed
the admission agreement on the resident's behalf as the
"responsible party." Wright, however, argued that the
daughter-in-law's
signature
on
the
agreement
as
the
"responsible party" was ineffective to bind the resident to
the arbitration provision in the agreement.
In concluding that the admission agreement signed by the
resident's daughter-in-law did not bind the resident, a
plurality of this Court explained:
"It is undisputed that when [the daughter-in-
law] was given the option to sign the agreement as
a
'responsible
party'
or
as
a
'legal
representative,' she chose the former option. The
agreement explained that '[a] Legal Representative
is an individual who, under independent legal
authority, such as a court order[,] has authority to
act on the Resident's behalf' and listed 'a
guardian, a conservator, and the holder of a Durable
18
1131027
Power of Attorney executed by the Resident' as
examples of legal representatives.
"Wright contends that at the time of [the
resident's] admission to the nursing home, [the
daughter-in-law] 'did not hold power of attorney for
[the resident], was not her guardian, and had never
been appointed by [the resident] or by a court of
competent jurisdiction to handle the affairs' of her
mother-in-law....
"....
"...
[I]n
executing
the
agreement
[the
daughter-
in-law] did not sign [the resident's] name in any
purported capacity and did not purport to be [the
resident's] legal representative. [The daughter-in-
law's] signatory role was, therefore, effectively
that of a 'next friend,' who 'voluntarily agree[d]
to honor certain specified obligations' of her
mother-in-law. ... It has long been established in
this State, however, that one who purports to act
merely as a 'next friend' of a 'non compos mentis'
is 'wholly without authority to make any contract
that would bind her or her estate.' Page v.
Louisville & Nashville R.R., 129 Ala. 232, 238, 29
So. 676, 678 (1901).
"In that connection, the trial court found that
'[the resident] was not competent at the time her
daughter-in-law signed the contract of admission in
this case.' ... Indeed, there is no conflict in the
evidence, which includes medical reports as to [the
resident's]
mental
capacity.
One
such
report
describes [the resident] 'an 86 year old demented
female' ... who was '[n]ot oriented to person, place
or time.' In another medical report, she is
described as 'always confused.' Thus, we conclude
that [the daughter-in-law's] signature in the
19
1131027
capacity of a next friend, or 'responsible party,'
was ineffective to bind [the resident] or her
personal representative to the agreement."
Noland, 971 So. 2d at 685-86 (emphasis omitted).
The decision in Noland is clearly distinguishable from
the decisions in Briarcliff and Owens, in that the resident in
Noland was mentally incapacitated and could not consent to her
daughter-in-law, who had not been appointed her legal
representative, acting on her behalf by signing the admission
documents and thereby
binding
her to the arbitration provision
contained in the admission agreement. The residents in both
Briarcliff and Owens did not suffer from any mental
incapacities
or
infirmities that
prevented
them
from
acquiescing to individuals' acting on their behalf in
executing the admission documents that bound them to the
20
1131027
arbitration provision. This distinguishing factor is further
3
highlighted in subsequent cases decided by this Court.
In Carraway, supra, Richard Carraway executed a number of
documents on behalf of his sister, Shirley Carraway, as her
authorized representative when she was admitted to a nursing
home. Shortly after she was admitted as a resident into the
nursing home, Shirley executed a durable power of attorney,
naming Richard as her attorney-in-fact. Shirley subsequently
died, and Richard brought a wrongful-death claim against the
nursing home. The nursing home moved the trial court to compel
arbitration, and the trial court granted the motion. Richard
appealed.
Richard argued on appeal that the nursing home had failed
to establish the existence of a valid arbitration agreement
between Shirley and the nursing home because Shirley did not
The plurality Court in Noland also distinguished that
3
case from Briarcliff on the additional ground that the
personal representatives in Briarcliff were also signatories
to
the
arbitration
agreement,
whereas
the
personal
representative in Noland was not a signatory to the
arbitration agreement. The fact that Betty signed the
arbitration agreement on behalf of Johnathan and then
subsequently brought the wrongful-death claim as Johnathan’s
personal representative forms the basis of Canterbury’s
argument that Betty is bound to the agreement. This issue
will be discussed in more detail infra.
21
1131027
sign the arbitration agreement herself. In concluding that a
binding arbitration agreement existed between Shirley and the
nursing home even though Shirley did not sign the agreement,
this Court stated:
"Just as Richard signed all the other documents
relating to Shirley's admission into the nursing
home on Shirley's behalf, Richard signed the
arbitration agreement on Shirley's behalf expressly
as
an
'authorized
representative.'
Apparent
authority 'is implied where the principal passively
permits the agent to appear to a third person to
have the authority to act on [her] behalf.'
Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc.,
426 So. 2d 859, 861 (Ala. Civ. App. 1983). 'It is
not essential that the right of control be exercised
so long as that right actually exists.' Wood
Chevrolet Co. v. Bank of the Southeast, 352 So. 2d
1350, 1352 (Ala. 1977). There is no evidence
indicating that Shirley had any objection to
Richard's acting on her behalf in admitting Shirley
to the nursing home. On the contrary, the evidence
suggests that Shirley approved of her brother's
acting on her behalf. A few weeks into Shirley's
residency at the nursing home, she executed a power
of attorney, giving Richard further authority to act
on her behalf. The arbitration agreement did not
call for the signature of a legal representative;
instead, it provided that 'a person duly authorized
by the Resident' could sign the agreement on the
resident's behalf."
Carraway, 978 So. 2d at 30-31.
In Johnson, supra, Dolores J. Rousseau was admitted to
a nursing home on January 26, 2008, following hip-replacement
22
1131027
surgery. Barbara Rousseau, Dolores’s daughter, signed
numerous forms, including an arbitration agreement, on
Dolores's behalf upon her admittance to the nursing home.
Barbara signed the admission forms in the various capacities
of the patient's representative, the patient or a responsible
party,
the
resident's
representative,
the
resident/family,
the
family or legal representative, the legal representative, or
the responsible family member. Dolores never objected to
Barbara's signing the various admission forms on her behalf,
and there was nothing to indicate that Dolores was mentally
incompetent when she was admitted to the nursing home. Dolores
was discharged from the nursing home six days later on
February 1, 2008.
On May 23, 2008, Dolores, acting through Barbara as her
next friend, sued the nursing home, alleging negligence,
wantonness, and breach of contract. Dolores alleged that
while she was a resident of the nursing home she suffered
dehydration,
a
urinary-tract
infection,
an
abdominal
blockage,
and other bodily injuries, as well as mental anguish and
emotional distress. The nursing home moved to compel
arbitration.
Dolores
opposed
the
motion
to
compel
arbitration,
23
1131027
arguing that Barbara did not have a power of attorney over her
and had no any other legal basis for signing her name to the
various
admission
documents;
that
Barbara
signed
the
admitting
paperwork in her individual capacity; and that Dolores did not
sign the admitting paperwork and did not direct Barbara to
sign the paperwork. The trial court denied the motion to
compel arbitration. In June 2008, Dolores died, and another
daughter, Carol J. Rousseau Johnson, as Dolores's personal
representative, amended the complaint to add a wrongful-death
claim against the nursing home. The nursing home renewed its
motion to compel arbitration, which the trial court again
denied.
The nursing home argued on appeal that Barbara had the
apparent authority to sign the arbitration agreement for
Dolores
because, it argued, Barbara had represented herself
on
the admission documents as someone who had the legal authority
to bind Dolores and because Dolores did not object to
Barbara's signing the admission documents on her behalf.
Carol
argued, among other things, that Dolores was not bound by the
arbitration agreement because she did not sign it. In holding
24
1131027
that Dolores was bound to the arbitration agreement signed on
her behalf by Barbara, this Court explained:
"Carol also argues that Dolores is not bound by
the ADR [alternative dispute resolution] agreement
because she did not sign it and she was not present
when Barbara signed it. Barbara's claims, if any,
may be subject to arbitration, Carol argues, but as
a nonsignatory to the agreement, Dolores could not
be forced to arbitrate her claims. Carol relies upon
Noland Health Services, Inc. v. Wright, 971 So. 2d
681 (Ala. 2007). In Noland, a plurality of this
Court held that a daughter-in-law's signature as the
responsible party on a nursing-home arbitration
agreement was ineffective to bind the resident to
the agreement. Noland is distinguishable from this
case, however, because the nursing-home resident in
Noland was mentally incompetent and could not
authorize anyone to act on her behalf and because
the daughter-in-law did not sign any document in the
capacity
of
her
mother-in-law's
legal
representative."
49 So. 3d at 180-81 (emphasis added). Thus, Dolores was bound
to the arbitration agreement, despite not actually having
signed the arbitration agreement, because she was mentally
competent and capable of authorizing Barbara to act on her
behalf in signing the agreement.
In Bolding, supra, also a plurality opinion, Norton Means
was admitted to a nursing home for rehabilitation and nursing
services while he recovered from stroke- and/or heart-attack-
like symptoms. Means was accompanied by his daughter,
25
1131027
Michelle Pleasant, who completed the admitting paperwork on
his behalf. Among the paperwork completed and signed by
Pleasant was an arbitration agreement. Pleasant signed her
name on the arbitration agreement on a line indicated for the
"Signature of Legal Representative or Family Member."
Subsequently, Means was readmitted to the hospital. Linda
Bolding, another of Means's daughters to whom he had
previously granted a durable power of attorney, sued the
nursing home alleging that the nursing home had negligently
cared for Means, resulting in his suffering dehydration,
malnourishment, and an untreated infection that resulted in
his readmission to the hospital. The nursing home moved to
compel arbitration pursuant to the terms of the arbitration
agreement. Bolding responded by arguing that the arbitration
agreement was unenforceable as to Means because Pleasant had
no legal authority to act on his behalf at the time she
executed the arbitration agreement. The trial court entered
an order denying the motion to compel arbitration. The nursing
home appealed.
In affirming the denial of the motion to compel
arbitration and holding that the arbitration agreement signed
26
1131027
by Pleasant on behalf of Means was ineffective to bind Means,
Justice Stuart aptly explained the distinguishing principle
between arbitration agreements signed on behalf of competent
nursing-home residents and arbitration agreements signed on
behalf of mentally incompetent nursing-home residents, making
clear this Court's treatment of the two:
"The only evidence before the Court in this case
indicates that Means was mentally incompetent when
he was admitted to [the nursing home] and the DRA
[dispute resolution agreement]
was executed; indeed,
[the nursing home] does not even argue that he was
competent at any relevant time. ...
"Children and the mentally incompetent have
traditionally been treated differently under the law
than the standard competent adult. See, e.g., Ex
parte E.R.G., 73 So. 3d 634, 678 (Ala. 2011) (Main,
J., dissenting) ('The state necessarily injects
itself into the affairs of children and the mentally
incompetent when they are in need of protection
because their developmental differences and their
environmental restraints render them more vulnerable
than competent adults.'). And, while we have held
that competent residents of nursing homes may be
bound by arbitration agreements executed by their
representatives, see, e.g., Carraway, 978 So. 2d at
30–31, and Johnson, 49 So. 3d at 176, our cases also
indicate that incompetent residents are not so
bound. In Noland Health Services, we considered
whether the administrator of Dorothy Willis's estate
was
bound
to
arbitrate
personal-injury
and
wrongful-death
claims
stemming
from
Dorothy's
treatment at a nursing home pursuant to an
arbitration provision in a contract executed by
Dorothy's
daughter-in-law,
Vicky
Willis,
when
27
1131027
Dorothy was admitted to the nursing home. 971 So. 2d
at 683. A plurality of the Court agreed with the
trial court's finding that Dorothy was incompetent
when the contract was signed and that Vicky's
signature as the 'responsible party' or next friend
on that contract 'was ineffective to bind Dorothy or
her personal representative to the agreement.' 971
So. 2d at 686. In support of that conclusion, the
plurality opinion quoted Page v. Louisville &
Nashville R.R., 129 Ala. 232, 238, 29 So. 676, 678
(1901), for the proposition that 'one who purports
to act merely as a "next friend" of a "non compos
mentis" is "wholly without authority to make any
contract that would bind her or her estate."'
Noland Health Servs., 971 So. 2d at 686.
"Of course, Noland Health Services was a
plurality opinion, and its precedential value is
accordingly limited. Ex parte Achenbach, 783 So. 2d
4, 7 (Ala. 2000). However, this Court subsequently
recognized the principle for which Noland Health
Services is now cited in Johnson. In Johnson,
Tennessee Health Management ('THM') appealed the
denial of its motion to enforce an arbitration
agreement against Carol Rousseau Johnson, who was
prosecuting
personal-injury
and
wrongful-death
claims against THM in her capacity as the personal
representative of the estate of Dolores Rousseau,
who allegedly was injured while a resident of a
nursing home operated by THM. 49 So. 3d at 176. When
Dolores was admitted to that nursing home, her
daughter Barbara Rousseau had signed an arbitration
agreement with THM, but '[t]here is no evidence
indicating that Dolores ... was mentally incompetent
when she was admitted....' 49 So. 3d at 176–77.
Citing Noland Health Services, Carol subsequently
argued to this Court that Dolores was not bound by
the arbitration agreement because she had not signed
it. 49 So. 3d at 180. This Court rejected her
argument, distinguishing Noland Health Services as
follows:
28
1131027
"'Carol
relies
upon
Noland
Health
Services,
Inc. v. Wright, 971 So. 2d 681 (Ala. 2007).
In Noland, a plurality of this Court held
that a daughter-in-law's signature as the
responsible
party
on
a
nursing-home
arbitration agreement was ineffective to
bind the resident to the agreement. Noland
is
distinguishable
from
this
case,
however,
because
the
nursing-home
resident
in
Noland
was mentally incompetent and could not
authorize anyone to act on her behalf and
because the daughter-in-law did not sign
any document in the capacity of her
mother-in-law's legal representative.'
"Johnson, 49 So. 3d at 180–81. We thereafter held
that the arbitration agreement executed by Barbara
did bind Dolores and was therefore enforceable
against Carol, thus recognizing the distinction
between arbitration agreements signed on behalf of
nursing-home residents who are incompetent and those
signed on behalf of nursing-home residents who are
competent. 49 So. 3d at 181.
"[The nursing home] argues that Noland Health
Services is distinguishable inasmuch as Vicky Willis
did not sign the contract containing the arbitration
provision in Noland Health Services as Dorothy's
legal representative, while, [the nursing home]
asserts, Pleasant did sign the DRA as Means's legal
representative. We disagree, however, with [the
nursing home's] assertion that Pleasant signed the
DRA as Means's legal representative. The signature
block on the DRA indicates that Pleasant signed the
DRA as 'Legal Representative or Family Member.'
(Emphasis added.) Moreover, although the paragraph
above the signature line indicates that the signer
of the document is asserting that he or she has 'the
authority to sign the agreement on [the resident's]
behalf,' merely claiming to have legal authority on
someone else's behalf or claiming to be someone
29
1131027
else's legal representative does not make it so. It
is undisputed that Pleasant has never held a power
of attorney for Means, and she also stated in an
affidavit submitted to the trial court that she was
granted 'no legal authority by him or anyone else to
enter into the [DRA] on his behalf.'
"[The nursing home] argues in the alternative
that the doctrine of apparent authority should
nevertheless bind Means, and by extension Bolding,
to the DRA. In Carraway, we applied the doctrine of
apparent authority to hold that Shirley Carraway, a
nursing-home resident, was bound by an arbitration
agreement signed by her brother Richard Carraway:
"'Just as Richard signed all the other
documents relating to Shirley's admission
into the nursing home on Shirley's behalf,
Richard
signed
the
arbitration
agreement
on
Shirley's
behalf
expressly
as
an
"authorized
representative."
Apparent
authority "is implied where the principal
passively permits the agent to appear to a
third person to have the authority to act
on [her] behalf." Treadwell Ford, Inc. v.
Courtesy Auto Brokers, Inc., 426 So. 2d
859, 861 (Ala. Civ. App. 1983). "It is not
essential that the right of control be
exercised so long as that right actually
exists." Wood Chevrolet Co. v. Bank of the
Southeast, 352 So. 2d 1350, 1352 (Ala.
1977). There is no evidence indicating that
Shirley had any objection to Richard's
acting on her behalf in admitting Shirley
to the nursing home. On the contrary, the
evidence suggests that Shirley approved of
her brother's acting on her behalf. A few
weeks into Shirley's residency at the
nursing home, she executed a power of
attorney, giving Richard further authority
to act on her behalf.'
30
1131027
"978 So. 2d at 30–31. We likewise applied the
doctrine of apparent authority in Johnson, stating
that Dolores 'passively permitted Barbara to appear
to THM to have the authority to act on her behalf,
and Barbara's apparent authority is, therefore,
implied.' 49 So. 3d at 180. However, in both
Carraway and Johnson the nursing-home resident was
competent and effectively acquiesced to and/or
ratified the decisions made by their respective
representative, thus making the application of the
apparent-authority doctrine appropriate.
"In contrast, the only evidence in the record in
this case indicates that Means is incompetent and
thus unable to empower an agent, whether passively
or through affirmative acts. See Johnson, 49 So. 3d
at 180–81 ('[T]he nursing-home resident in Noland
was mentally incompetent and could not authorize
anyone to act on her behalf....'). Thus, at best
Pleasant may have purported to be Means's legal
representative, but that is an insufficient basis
upon which to apply the doctrine of apparent
authority. Northington v. Dairyland Ins. Co., 445
So. 2d 283, 286 (Ala. 1984) ('[I]n order for a
principal to be held liable under the doctrine of
apparent authority and estoppel, the principal must
have engaged in some conduct which led a third party
to believe that the agent had authority to act for
the principal.' (emphasis added)). See also Gray v.
Great American Reserve Ins. Co., 495 So. 2d 602, 607
(Ala. 1986) (noting that one cannot 'blindly trust'
another's statements regarding the extent of his or
her agent power), and City Stores Co. v. Williams,
287 Ala. 385, 391, 252 So. 2d 45, 51 (1971) ('The
burden of proving agency rests upon the party
asserting it.').
"In conclusion, we hold that Means was not bound
by the DRA executed by Pleasant; therefore, Bolding
was not bound. However, we emphasize that this
conclusion is not reached because Means did not
31
1131027
personally execute the DRA. Rather, it is because
all the evidence in the record indicates that Means
is incompetent. Thus, while Bolding, as the holder
of a durable power of attorney granted by Means, may
have been able to bind him to an arbitration
agreement, Pleasant, as merely a family member or
next friend, could not."
Bolding, 130 So. 3d at 1196-99 (final emphasis added).
Here, it is undisputed that at the time Johnathan was
admitted to Canterbury he was 21 years old and mentally
4
incompetent. All the evidence indicates that Johnathan had
the mental capacity of "an infant" or a "toddler" and that he
was totally dependant upon others for his care because he was
confined to a wheelchair; he had no use of his hands; he could
not speak; and he could not feed, clean, or dress himself.
Because Johnathan was mentally incompetent at the time Betty
executed the arbitration agreement, he cannot be bound to the
agreement since he was incapable of authorizing or empowering
Betty to act on his behalf. Bolding, supra; Noland, supra;
and Johnson, supra.
The age of majority to contract in Alabama is 19 years
4
old. See Stinson v. Larson, 893 So. 2d 462 (Ala. Civ. App.
2004).
32
1131027
Furthermore, Betty was without the legal authority or
capacity to bind Johnathan to the arbitration agreement. The
arbitration agreement
provided that "[i]f [the] Resident is
unable to consent or sign this Agreement, this Agreement shall
be
executed
by [the] Resident's Representative." The
arbitration agreement defined the "Resident's Representative"
as
"the resident's Legal Guardian, Attorney-in-Fact,
Power of Attorney, or Health Care Sponsor. In the
event a representative with such legal authority
does not exist, the Resident may authorize a duly
appointed person such as the Responsible Party[ ] to
5
The admission agreement defined "Responsible Party" as
5
the resident's "legal guardian, if one has been appointed, or
your Attorney-in-Fact, if you have executed a power of
attorney, or some other individual or family member who agrees
to assist the Facility in providing for your healthcare and
maintenance." The admission agreement contained a section
entitled "Responsible Party" in which the individual signing
the agreement as the "Responsible Party" was to indicate his
or her relationship to the resident. The admission agreement
provided
the
signatory
several
relationship
options
from
which
to choose, including "spouse"; "relative"; "legal guardian";
"attorney-in-fact"; "friend or interested person"; and
"other." The "Responsible Party" was to check each option
that was applicable to describe the relationship status of the
resident and "Responsible Party." Betty indicated her
relationship status to Johnathan by checking only the
"relative" option and signed the admission agreement on
behalf
of Johnathan as the "Responsible Party."
33
1131027
serve as his/her Representative and to sign this
agreement on his/her behalf."
(Emphasis added.) Betty executed the
arbitration
agreement by
signing her name as the "Resident's Representative." It is
undisputed that, once Johnathan had reached the age of
majority, Betty had never been given Johnathan's power of
attorney, health-care sponsorship, or attorney-in-fact and
that she had not been appointed by a court of competent
jurisdiction as his legal guardian, conservator,
or
the holder
of any protective orders. Thus, according to the express
6
It
is
undisputed
that
Johnathan
was
an
adult
6
incapacitated person. The Alabama Uniform Guardianship and
Protective Proceedings Act, § 26-2A-1 et seq., Ala. Code 1975,
provides options for the care and financial needs of an adult
incapacitated person. Section 26-2A-102(e), Ala. Code 1975,
provides:
"The custodial parent or parents or an adult
custodial sibling of an adult child who is
incapacitated
by
reason
of
an
intellectual
disability, may file, in lieu of a petition, a
written request [to the probate court] to be
appointed guardian of his or her adult child or his
or her adult sibling in order to continue performing
custodial and other parental responsibilities or
family responsibilities, or both responsibilities,
for the child after the child has passed his or her
minority."
Section
26-2A-136(b)(3),
Ala.
Code
1975,
regarding
conservatorships and other protective orders also provides:
34
1131027
terms of the arbitration agreement, in order for Betty to act
on Johnathan's behalf and to sign the arbitration agreement he
was required to "authorize a duly appointed person such as the
Responsible Party to serve as his/her Representative." As
discussed above, it is undisputed that Johnathan was mentally
incompetent and was incapable of authorizing Betty to act on
his behalf. Thus, Betty did not bind Johnathan to the
arbitration agreement by signing it in her capacity as the
"Resident's Representative." Bolding, supra; Noland, supra;
and Johnson, supra.
Accordingly, we agree with the reasoning in Noland and
Bolding, as well as the holding in Johnson, and we conclude
that Johnathan could not be bound to the arbitration agreement
because he was mentally incompetent and incapable of
authorizing Betty, who did not otherwise hold or possess the
"After hearing and upon determining that a basis for
an appointment or other protective order exists with
respect to a person for reasons other than minority,
the court, for the benefit of the person ... has all
the powers over the estate and business affairs
which the person could exercise if present and not
under disability. ... [T]hese powers include ...
power ... to enter into contracts."
35
1131027
proper legal authority, to act on his behalf in executing the
arbitration agreement.
Relying upon the decision in Wells Fargo Bank, N.A. v.
Chapman, 90 So. 3d 774 (Ala. Civ. App. 2012), Canterbury next
argues that because Betty was a signatory to the arbitration
agreement
in
the
capacity
of
Johnathan's
"Resident
Representative," she is now bound to the agreement in her
capacity as Johnathan's personal representative. Thus,
Canterbury
contends,
the
wrongful-death
claim
brought
by
Betty
on behalf of Johnathan's estate must be submitted to
arbitration. We disagree.
In Chapman, a father, as the administrator of his
daughter's estate, brought a wrongful-death action against a
bank alleging that the bank impermissibly had allowed the
daughter to access funds held in a certificate of deposit
("CD") –- which the father held in his name as the custodian
for the daughter –- that she then used to purchase illegal
drugs on which she eventually overdosed and died. The bank
moved the trial court to compel arbitration on the basis that
the father was a signatory to an arbitration agreement that
was executed in conjunction with the issuance of the CD. The
36
1131027
trial court denied the motion to compel arbitration, and the
bank appealed. The father argued, among other things, that he
was not required to submit the wrongful-death claim to
arbitration because, he said, the arbitration agreement did
not apply to the wrongful-death claim since that claim was not
his daughter's to assert, and, therefore, she could not agree
to arbitrate that claim. Chapman, supra. In concluding that
the father, as the administrator of the daughter's estate,
must submit the wrongful-death claim to arbitration,
the
Court
of Civil Appeals explained:
"We assume that [the father] advances this
argument because [he] contends that he did not sign
the SouthTrust signature card and that he is
therefore not bound by the SouthTrust arbitration
agreement. We have concluded that the evidence
establishes that [the father] did sign the signature
card, however; therefore, we need not determine
whether Carraway and [Briarcliff] stand for the
proposition that a decedent may agree to arbitrate
a wrongful-death claim arising from his or her own
death. Instead, we may rely on [the father's] being
a signatory to the SouthTrust arbitration agreement
to compel him to arbitrate the wrongful-death claim
like the personal representatives in Carraway and
[Briarcliff]."
Chapman, 90 So. 3d at 782. Thus, because the evidence
indicated that the father had previously signed the
arbitration agreement, the Court of Civil Appeals concluded
37
1131027
that the father was bound to arbitrate the wrongful-death
claim asserted in the father's representative capacity as the
administrator of his daughter's estate. This conclusion
represents a misapprehension of the foregoing caselaw, which
defined the principle that an arbitration agreement that binds
a
nursing-home
resident
also
binds
the
resident's
representative. Bolding, supra.
7
As mentioned earlier, in holding that the personal
representative was not required to submit the wrongful-death
claim to arbitration, the Noland plurality distinguished that
case from Briarcliff on a second ground, noting that the
executors in Briarcliff were signatories to the arbitration
agreement, whereas the executor in Noland had not signed the
arbitration agreement. The conclusion drawn was that, where
an individual has previously signed an arbitration agreement
on behalf of a nursing-home resident and then subsequently
brings a wrongful-death claim on behalf of that nursing-home
resident in the individual's capacity as the nursing-home
resident's personal representative, that individual could be
This misinterpretation notwithstanding this Court is not
7
bound by the decisions of the Court of Civil Appeals. See
generally § 12-3-16, Ala. Code 1975.
38
1131027
bound to the arbitration agreement he or she signed before the
nursing-home resident's death and his or her appointment as
the personal representative.
In Entrekin, the United States Court of Appeals for the
Eleventh Circuit explained how the second ground upon which
Noland was distinguished from Briarcliff is contrary to the
principle that an arbitration agreement that binds a
nursing-home
resident
also
binds
the
resident's
representative, a principle this Court has defined from the
body of caselaw specifically addressing the issue of how and
when arbitration agreements are binding upon nursing-home
residents and their family members. The Entrekin court
explained:
"This part of the Noland plurality opinion, the
positing of a second distinction between that case
and the Briarcliff and Carraway cases, is where the
wrinkle arises. That second distinction appears to
rest on the novel premise that an agent who signs a
contract on behalf of a principal binds not only the
principal but also the agent himself in another
capacity –- even if the agent has not yet acquired
that other capacity (e.g., an executor who is not
yet an executor because the decedent-to-be is not
yet deceased). That is the same premise that the
district court relied on in denying Westside
Terrace's motion to compel arbitration. Applying
that premise here would lead to the conclusion that
the executor is not bound by the agreement that
39
1131027
Entrekin signed because the executor himself did not
sign it.
"We are not bound to apply that premise from the
Noland plurality opinion, however, because it is
only a plurality opinion. ...
"....
"Not only that, but a later decision of the
Alabama Supreme Court vitiated whatever persuasive
value the second premise of the Noland plurality
opinion might otherwise have had. The case is
Tennessee Health Management, Inc. v. Johnson, 49 So.
3d 175 (Ala. 2010). A daughter, acting as her
mother's personal and legal representative, signed
all nursing home admissions forms on her mother's
behalf. Id. at 176. The daughter later sued the
nursing home on her mother's behalf alleging that
her mother suffered various injuries during her stay
at the nursing home. Id. at 177. The mother died
while that lawsuit was pending, and a different
daughter became the executor of the mother's estate.
Compare id. at 176 (identifying 'Barbara Rousseau'
as the pre-mortem personal representative who signed
the arbitration agreement), with id. at 178
(identifying 'Carol J. Rousseau Johnson' as the
executor of the estate). As executor, that different
daughter filed an amended complaint against the
nursing home, adding a wrongful death claim alleging
that the various injuries 'resulted in [the
resident's] death.' Id. at 178. When the nursing
home moved to compel arbitration, the executor
objected on the ground that the decedent was 'not
bound by the [arbitration] agreement' because she
had not signed it and 'was not present' when her
daughter signed it on her behalf, as her personal
and legal representative. Id. at 180.
40
1131027
"Relying on the Carraway decision, which
followed the simple rule from Briarcliff that an
arbitration agreement that binds a decedent binds
the executor of her estate, the Alabama Supreme
Court in Johnson quickly disposed of the executor's
argument. See id. at 181. It held that one reason
the decedent was bound by the arbitration agreement
was that her daughter had signed it on her behalf as
her
legal
representative.
Id.
The
Court
distinguished
the
Noland
case
'because
the
nursing-home
resident
in
Noland
was
mentally
incompetent and could not authorize anyone to act on
her behalf and because the daughter-in-law did not
sign
any
document
in
the
capacity
of
her
mother-in-law's
legal
representative.'
Id.
at
180–81. In the case before it, the Johnson Court
concluded that the daughter who signed the nursing
home admission forms, including the arbitration
agreement, 'had the apparent authority to bind [her
mother]' when she signed those documents because the
evidence showed that the mother 'passively permitted
[her daughter] to act on her behalf.' Id. at 181.
"Because the signature of the daughter as
pre-mortem personal representative of the mother
bound the mother to the contract in Johnson, there
was 'a valid contract calling for arbitration'
between the decedent and the nursing home. Id. And
because there was a valid contract between the
decedent
and
the
nursing
home
calling
for
arbitration, '[t]he trial court erred in denying the
motion to compel arbitration' of the wrongful death
and other claims brought by the executor (a
different daughter, who never signed the agreement
in any capacity). Id.
"The Alabama Supreme Court's reasoning in
Johnson mirrors its reasoning in Briarcliff and
Carraway: the executors in each case had to
arbitrate the wrongful death claim because there was
a valid arbitration agreement between the decedent
41
1131027
and the nursing home. That reasoning and those
holdings are inconsistent with the second premise
articulated in the Noland plurality opinion, which
is that executors who sign an arbitration agreement
on behalf of a resident are bound by the agreement
as executors but those who do not sign it on behalf
of a resident are not. In Johnson the executor did
not sign the arbitration agreement in any capacity
and
thus
was
not
a
'signatory
personal
representative,' yet the Alabama Supreme Court
compelled arbitration of the claims anyway. And we
are compelled to follow its holdings and compel
arbitration of the wrongful death claim in this
case."
Entrekin, 689 F.3d at 1257-59 (emphasis added). We agree with
the Entrekin court's conclusion that the second premise set
forth in Noland -- that personal representatives of the
estates of deceased nursing-home residents who happened to
also have signed arbitration agreements on behalf of those
residents are bound by those agreements in their capacities as
personal
representatives
but
that
those
personal
representatives who have not signed an arbitration agreement
on behalf of deceased nursing-home residents are not so bound
–- is inconsistent with the rather simple principle carved
from the caselaw in this area that, if a deceased nursing-home
resident was bound to an arbitration agreement, so too would
be the personal representative of that resident's estate
regardless of whether that personal representative was a
42
1131027
signatory to the arbitration agreement in some capacity other
than the resident's legal representative. Accordingly, we
conclude that Betty cannot be bound to the arbitration
agreement in her capacity as the personal representative of
Johnathan's estate when she signed the arbitration agreement
in what amounts to her capacity as Johnathan's relative or
next friend.
Conclusion
Based on the foregoing, we affirm the trial court's
decision to deny the motion to compel arbitration.
AFFIRMED.
Stuart, Parker, Murdock, Shaw, Main, and Wise, JJ.,
concur.
Moore, C.J., and Bryan, J., concur in the result.
43 | September 30, 2015 |
bfecd340-e676-4c72-8eb9-92fa840763a1 | Ex Parte Lauderdale County | 565 So. 2d 623 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 623 (1990)
Ex parte LAUDERDALE COUNTY.
Ex parte State of Alabama.
Re WASTE CONTRACTORS, INC.
v.
STATE of Alabama, Lauderdale County.
88-557, 88-583.
Supreme Court of Alabama.
February 16, 1990.
Rehearing Denied April 6, 1990.
Certiorari Denied October 1, 1990.
*624 Robert L. Gonce of Gonce, Young & Westbrook, Florence, for petitioner Lauderdale County.
Don Siegelman, Atty. Gen., and Robert D. Tambling and Beth Jackson Hughes, Asst. Attys. Gen., for petitioner State.
H. Thomas Wells, Jr. and James L. Priester of Maynard, Cooper, Frierson & Gale, Birmingham, for respondent.
James W. Webb and Daryl L. Masters of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Commissions of Alabama.
Certiorari Denied October 1, 1990. See 111 S. Ct. 153.
KENNEDY, Justice.
The defendants, Lauderdale County ("County") and the State of Alabama ("State"), seek review of the Court of Civil Appeals' judgment reversing a summary judgment entered by the trial court in favor of the County and the State. We reverse and remand.
On April 14, 1987, the Lauderdale County Commission ("Commission") authorized Waste Contractors, Inc. ("WCI"), to operate a solid waste landfill near Zip City in northern Lauderdale County (hereinafter referred to as the "Greenbrier site").
On that date, without conducting a hearing, the Commission adopted the following resolution:
WCI subsequently filed a request to expand the size of the landfill, which was granted by a resolution of the Commission on May 11, 1987, again without a hearing.
On June 22, 1987, the Commission, without a hearing, rescinded both resolutions.
In July 1987, WCI, pursuant to § 22-27-5(b), Code of Alabama 1975, filed a formal permit application with the Alabama Department of Environmental Management ("ADEM").
On August 10, 1987, the Commission adopted "License Requirements for Sanitary Landfills," intended to apply to landfills not yet in operation.
WCI filed suit against Lauderdale County on August 21, 1987, alleging that the Commission was powerless to rescind its original approval, that WCF's rights to due process were violated, and, by subsequent amendment to the suit, that § 22-27-5(b) was unconstitutional because of a failure to *625 provide specific guidelines or standards for the Commission to follow in determining whether a landfill request should be granted.
At the hearing on its motion for summary judgment, the trial court ruled in favor of the defendants. The Court of Civil Appeals reversed and remanded. We have granted the writ of certiorari to review that reversal.
The issues here are whether the Solid Wastes Disposal Act, Code 1975, § 22-27-1 et seq., is unconstitutionally vague and capricious because of a failure to establish specific guidelines and criteria for county or local governments to follow in the issuance of waste permits; whether the Commission violated WCI's due process rights in failing to hold hearings on WCI's applications; whether the Commission had the authority to approve or disapprove WCI's application; and whether the Commission exceeded the authority granted to it by statute when it established licensing requirements for sanitary landfills.
The Solid Wastes Disposal Act ("Act"), Code 1975, § 22-27-1 et seq., permits county and municipal governments, with the concurrence of the health department and the approval of ADEM, to make available to the public collection and disposal facilities for solid wastes. It authorizes those governmental entities, either directly or through contract with private agencies, to collect and dispose of solid wastes, subject to approval by ADEM and the state and/or county boards of health.
The Act provides that if a governmental entity undertakes the responsibility of providing disposal services to the general public and does so by contracts and mutual agreements for disposal of solid wastes then those agreements are reviewable by the affected state or county health officer and subject to cancellation upon 30 days' notice from that officer, with the concurrence of ADEM, if the contracts or agreements are found not to be in the best interests of the health, safety, and welfare of the affected citizenry.
The Act does authorize governing bodies to assign territories and to approve or disapprove disposal sites.
Thus, under the Act, the process for establishing solid waste collection and disposal sites begins with the county or local governmental entity having control over the affected area. That entity is authorized to approve or disapprove sites with the concurrence of the appropriate health department and ADEM. Therefore, before a private corporation, individual, or governing body can establish a site under the Act, it must first have the approval of the local government, and then the approval of both the health department and ADEM.
The Court of Civil Appeals held the Act to be unconstitutional, writing:
565 So. 2d at 621.
That court analogized § 22-27-5 to the Minus Act,[2] which was declared unconstitutional *626 in Browning-Ferris Industries of Alabama v. Pegues, 710 F. Supp. 313 (M.D. Ala.1987). In that case, the federal district court wrote:
Upon review, we find that the act here in question is distinguishable from the Minus Act and does not, in fact, suffer from a complete absence of standards.
A statutory scheme like that set forth in the Act for the approval or disapproval of disposal sites must be viewed as a whole in determining whether it provides adequate standards. See McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala.1986). As noted above, a county or local government cannot, without certain approvals, provide a solid waste collection and disposal facility. Any contract or agreement entered into by a governmental entity is reviewable by the health department and by ADEM. Consequently, any governmental entity undertaking to provide such services would likely consider health department and ADEM standards when it considers a request for approval of a site. Furthermore, under the Act no site can be permitted unless it is found to be in the best interests of the health, safety, and welfare of the affected citizenry.
The Act requires any agency contracting with the governmental entity to have the capability to service assigned territories, to pay annual license fees, to set rate schedules where appropriate, and to post a performance bond satisfactory to the governing body.
The Act not only requires that any license issued by a local government have the approval of the health department and ADEM; it further requires that the licensed agency also obtain separate permits from both the health department and ADEM. Code 1975, § 22-27-5(c). Those permits are renewable annually and are subject to revocation for failure to perform under the provisions of the Act. Again, it is fair to assume that a licensing government would look to the standards for the issuance of permits by the health department and ADEM in determining whether to grant the initial license.
Pursuant to the Act, the health department is required to enforce sanitary requirements for the collection of solid wastes and ADEM is required to exercise regulatory control over the disposal of solid wastes. It should, therefore, be obvious to the licensing entity that any license issued must comply with health department collection regulations and ADEM disposal regulations.
What then are the standards by which a governmental entity reviews an application for a license to operate a collection and disposal facility? The list would include, but not necessarily be limited to, the following:
(1) The licensee must meet those standards set by the health department and ADEM that will be utilized to review the license, if approved.
(2) The proposed collection and disposal application must be in the best interests of *627 the citizenry, taking into account its health, safety, and welfare.
(3) The licensee must be able to adequately service a designated or assigned area.
(4) The licensee must pay an annual license fee and a permit fee, if required, and must post a performance bond in an amount to be set by the governmental entity.
(5) The license must agree to function with predetermined rate schedules set by the licensing authority.
(6) Upon approval of a license application, the licensee must meet the standards set by the health department and ADEM in order to obtain permits from them.
(7) The licensee must meet all health department sanitary regulations for collection of solid wastes.
(8) All disposal plans must comport with ADEM disposal regulations.
As can be seen from the foregoing, the Act is far from standardless and, in fact, gives local and county governments much guidance in formulating reasonable standards to utilize in the licensing process established by the Act. Furthermore, when this Court construes a statute that is intended to protect the public health, "`great latitude should be allowed to the legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied.'" State v. Clayton, 492 So. 2d 665, 667 (Ala.Cr.App.1986), quoting Parke v. Bradley, 204 Ala. 455, 456, 86 So. 28 (1920). Because one of the purposes of the Act is to protect the public health, the legislature, in selecting a method to guide the counties in policing this public interest, will be accorded great latitude by this Court.
We therefore find that the Act is not unconstitutional, and we conclude that the judgment of the Court of Civil Appeals on this point was in error.
The next issue raised by WCI relates to the method by which the Commission disapproved its license after initially approving it. WCI argues that its due process rights were violated when the Commission rescinded its prior approval without a hearing. Procedural due process is not properly afforded when one's life, liberty, or property interests are affected without prior notice and an opportunity for a hearing. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 310-11, 70 S. Ct. 652, 656-57, 94 L. Ed. 865 (1950). It is interesting to note that in this case WCI received the initial license without a hearing, but it does not argue that that violated due process. If WCI's due process rights were violated by the subsequent revocation of the license without a hearing, then certainly the due process rights of the affected citizenry were violated when the license was first issued without a hearing.
We agree with the Court of Civil Appeals in its conclusion that WCI's due process rights were violated, but we must further state that the original license should not have been issued without notice and an opportunity for a hearing.
As to WCI's argument that the Commission lacked the authority to approve or disapprove WCI's application, we find that it did not. It is clear from the Act that no waste collection and disposal site, unless specifically excepted by the Act, could legally operate without a license issued by a county or other local governmental entity. Although there are other approvals that must be obtained, unless an agency is excepted, it cannot operate without approval of the appropriate governmental agency. Accordingly, we reverse the Court of Civil Appeals' judgment as to this issue.
Several weeks after the Commission rescinded approval of the Greenbrier site, it adopted "License Requirements for Sanitary Landfills."[3] WCI argued that the *628 Commission was without authority to do so, and that, even if it had authority to do so, those requirements were arbitrary and capricious.
On that point, the Court of Civil Appeals stated:
565 So. 2d at 622.
We disagree. The language of the license requirements merely presumes the dual role between the county and ADEM as set forth in the Act. The Act itself does not specify a schedule that applicants must follow when seeking approval of a collection and disposal site. Thus, the Commission did not exceed its authority by requiring that, prior to its licensing of a site, an ADEM permit must be procured. Whether approval first comes from the county or from ADEM, it is a virtual certainty that any applicant would suffer some economic harm if the second agency should nullify the first agency's approval. Such is the risk that accompanies the permit process established by the Act.
Finally, there was no evidence offered that would lend credence to a conclusion that permit fees as established by the Commission were "at least arbitrary and capricious, if not prohibitive." Such a determination could be made only by examining the total annual revenues expected to be derived by WCI from the operation of the landfill site. It is conceivable that this application fee would, indeed, be found to be reasonable should such an examination take place. Without such evidence before this Court, we will not decide whether the fee was arbitrary or capricious. Chatman v. City of Prichard, 431 So. 2d 532, 533 (Ala.1983). Accordingly, we reverse the judgment of the Court of Civil Appeals with regard to the licensing requirements adopted by the Commission, and we conclude that they are not inconsistent with the Act.
The judgment of the Court of Civil Appeals is reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, and STEAGALL, JJ., concur.
JONES, J., not sitting.
[1] Section (b) of the Act reads as follows:
"(b) Private or corporate agencies.Individuals, corporations, partnerships or other agencies engaging in the collection and disposal of solid wastes are subject to this article. Governing bodies may assign territories, approve or disapprove disposal sites, with the concurrence of the health department, and shall establish and collect annual license fees from such firms and set rate schedules if a service fee is charged. In addition to any other approvals which are necessary for any contract between private or corporate agencies and governmental entities for the disposal of solid wastes, approval of the department shall be obtained."
[2] Before it was amended effective April 12, 1988, the Minus Act, Code 1975, § 22-30-5.1, read as follows:
"(a) The term `hazardous waste' shall mean the same as defined by section 22-30-3(5).
"(b) There shall be no more than one commercial hazardous waste treatment facility or disposal site as defined by subdivisions (3) and (15) of section 22-30-3 situated within any one county of the state. Provided, however, no commercial hazardous waste treatment or disposal site not in existence on or before November 19, 1980, shall be situated without resolution giving approval therefore. Provided, however, legislative approval shall not be required for industries with on site treatment, storage, and disposal of their own hazardous wastes."
[3] In pertinent part, the license requirements read as follows:
"Section 5. Location Factors
"(a) A license shall not be approved by the County Commission unless a permit for the sanitary landfill has been issued by the Alabama Department of Environmental Management.
". . . .
"Section 7. Fees, License Renewal and Revocation
"(a) The applicant for a license to construct and operate a sanitary landfill shall pay an application fee of $10,000 to the County Commission to defray the costs of renewing such application. Such fee shall accompany the application. Provided that the County shall not be required to pay an application fee for any sanitary landfill that it owns or operates.
"(b) The owner or operator of an approved sanitary landfill shall apply for license renewal annually. Provided, however, that the County shall not be required to reapply for any sanitary landfill that it owns or operates. The annual renewal fee shall be equal to 10% of the gross receipts of the landfill during the previous year, but shall not exceed a maximum of $50,000 per year. At the time of renewal application, the Commission shall review the performance record of the owner or operator during the previous year and may deny the license renewal based upon poor performance, including any violations of the Alabama Solid Waste Management Regulations." | February 16, 1990 |
1aa43997-f5a6-4a8c-907b-fc29a36c27a8 | Ex parte T.N. and C.N. | N/A | 1140913 | Alabama | Alabama Supreme Court | Rel: 08/21/2015
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, 2015
____________________
1140913
____________________
Ex parte T.N. and C.N.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: T.N. and C.N.
v.
I.B.)
(Montgomery Juvenile Court, JU-10-649.04;
Court of Civil Appeals, 2130676)
MAIN, Justice.
The petition for the writ of certiorari is denied.
1140913
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT DENIED.
Moore, C.J., and Stuart, Parker, Murdock, Shaw, Wise, and
Bryan, JJ., concur.
2 | August 21, 2015 |
0a4c3b5d-d93f-4ff8-827c-43e7954326a5 | Ex parte Michael Brandon Kelley. | N/A | 1131451 | Alabama | Alabama Supreme Court | Rel: 11/06/2015
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, 2015-2016
____________________
1131451
____________________
Ex parte Michael Brandon Kelley
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Michael Brandon Kelley
v.
State of Alabama)
(St. Clair Circuit Court, CC-09-73;
Court of Criminal Appeals, CR-10-0642)
PARKER, Justice.
1131451
Michael Brandon Kelley petitioned this Court for a writ
of certiorari to review the Court of Criminal Appeals'
decision affirming the judgment of the St. Clair Circuit Court
("the trial court") sentencing Kelley to death for his
convictions for two counts of murder made capital pursuant to
§§ 13A-5-40(a)(1) and (8), Ala. Code 1975, and sentencing
Kelley to life imprisonment for his conviction for one count
of sexual torture, see § 13A-6-65.1, Ala. Code 1975. Kelley
v. State, [Ms. CR-10-0642, Sept. 5, 2014] ___ So. 3d ___ (Ala.
Crim. App. 2014). We granted Kelley's petition solely to
determine whether the Court of Criminal Appeals lacked
jurisdiction
to
review
Kelley's
sexual-torture
conviction.
We
reverse in part and remand.
Facts and Procedural History
The factual basis for Kelley's convictions is set out in
detail in the Court of Criminal Appeals' decision. The
following procedural history is pertinent to our review.
On September 2, 2010, a jury convicted Kelley of murder
made capital because it was committed during the course of a
first-degree
kidnapping,
see
§
13A-5-40(a)(1),
Ala.
Code
1975;
murder made capital because it was committed during the course
2
1131451
of sexual abuse, see § 13A-5-40(a)(8), Ala. Code 1975; and
sexual torture, see § 13A-6-65.1, Ala. Code 1975. Following
the penalty phase of Kelley's trial, the jury recommended that
Kelley be sentenced to death.
On November 18, 2010, the trial court conducted a
sentencing hearing. After receiving evidence and considering
arguments from both sides, the trial court stated on the
record that it found Kelley guilty of both counts of capital
murder and sentenced Kelley to death. It is undisputed,
however, that the trial court did not state on the record that
it found Kelley guilty of sexual torture and did not state on
the record a sentence for Kelley's sexual-torture conviction.
Nonetheless, that same day, November 18, 2010, the trial court
entered a written order sentencing Kelley to death for the
capital-murder convictions and purporting to sentence Kelley
to life imprisonment for his sexual-torture conviction.
On February 2, 2011, Kelley filed a notice of appeal to
the Court of Criminal Appeals. The notice-of-appeal form asks
Kelley, in part, to "LIST EACH CONVICTION BELOW." In
response, Kelley listed "CAPITAL MURDER (2 Counts)." Kelley
3
1131451
did not list the sexual-torture conviction, and no reference
to that conviction appears on his notice of appeal.
In Kelley's brief before the Court of Criminal Appeals,
Kelley did not allege any error regarding his sexual-torture
conviction. Similarly, in its brief before the Court of
Criminal Appeals, the State did not request that the Court of
Criminal Appeals affirm Kelley's sexual-torture conviction.
Nonetheless, the Court of Criminal Appeals affirmed both of
Kelley's capital-murder convictions and his conviction for
sexual torture.
Kelley filed an application for rehearing in the Court of
Criminal Appeals, alleging, among other things, that the
Court
of Criminal Appeals did not have jurisdiction to affirm his
conviction for sexual torture. Kelley argued that a sentence
was never pronounced for his sexual-torture conviction and
that, therefore, "jurisdiction over the sexual torture
conviction remain[ed] in the circuit court." Kelley also
argued that the Court of Criminal Appeals' lack of
jurisdiction over Kelley's sexual-torture conviction was the
reason he did not appeal that conviction.
4
1131451
On September 5, 2014, the Court of Criminal Appeals
denied Kelley's application for rehearing, withdrew its March
14, 2014, opinion, and substituted a new opinion. In its new
opinion, the Court of Criminal Appeals addressed Kelley's
allegation that he had never been sentenced for his sexual-
torture conviction in a footnote, as follows: "On rehearing,
Kelley argues that this Court lacks jurisdiction to review his
conviction for sexual torture because he was never sentenced
in relation to that conviction. Kelley's argument is refuted
by the record. (C. 322-24.)" ___ So. 3d at ___ n.1. The
citation to the record provided by the Court of Criminal
Appeals in that footnote refers to the trial court's written
order purporting to sentence Kelley to life imprisonment for
his sexual-torture conviction. The Court of Criminal Appeals
did not provide any other analysis of Kelley's argument that
the Court of Criminal Appeals lacked jurisdiction to review
Kelley's conviction for sexual torture.
Kelley then filed with this Court a petition for a writ
of certiorari. In the first ground asserted in his petition
as a basis for issuing the writ, Kelley alleged that the Court
of Criminal Appeals lacked jurisdiction to affirm his sexual-
5
1131451
torture conviction and thus that its decision conflicted with
prior decisions of this Court and of the Court of Criminal
Appeals. We granted Kelley's petition for certiorari review
solely to address that first ground.
Standard of Review
A claim that a court lacks jurisdiction presents a
question of law, which this Court reviews de novo. See
Sheffield v. State, [Ms. 1121172, May 30, 2014] ___ So. 3d
___, ___ (Ala. 2014)(applying a de novo standard of review
when determining whether the Court of Criminal Appeals had
jurisdiction to consider an appeal), and Ex parte Walker, 152
So. 3d 1247 (Ala. 2014); see also Ex parte Morrow, 915 So. 2d
539, 541 (Ala. 2004) ("'This Court reviews pure questions of
law in criminal cases de novo.'"(quoting Ex parte Key, 890 So.
2d 1056, 1059 (Ala. 2003))).
Discussion
Kelley alleges that the Court of Criminal Appeals lacked
jurisdiction to affirm his sexual-torture conviction because,
he argues, his sexual-torture conviction was not ripe for
appeal. We agree.
6
1131451
In Alabama, the right to appeal a conviction is
specifically provided for in § 12-22-130, Ala. Code 1975:
"A person convicted of a criminal offense in the
circuit court or other court from which an appeal
lies directly to the Supreme Court or Court of
Criminal Appeals may appeal from the judgment of
conviction to the appropriate appellate court."
Under § 12-22-130, appeals lie only from a "judgment of
conviction." Ex parte Eason, 929 So. 2d 992, 993 (Ala. 2005);
Thornton v. State, 390 So. 2d 1093, 1096 (Ala. Crim. App.
1980). A judgment of conviction consists of the pronouncement
of both a determination of a defendant's guilt and a sentence.
Ex parte Walker, 152 So. 3d at 1252. Absent a judgment of
conviction, a conviction is not ripe for appeal. Id.
Kelley alleges that no judgment of conviction was entered
on the sexual-torture conviction because, he argues,
the
trial
court did not pronounce a sentence on that conviction. After
reviewing the transcript from Kelley's sentencing hearing, we
agree.
"'"Pronounce"
is
"to
utter
officially
or
ceremoniously." Webster's Third New International Dictionary,
G. & C. Merriam Co. 1971. "Utter" is defined as "to send forth
as a sound: give out in an audible voice." Id.'" King v.
State, 862 So. 2d 677, 678 (Ala. Crim. App. 2003) (quoting
7
1131451
Hill v. State, 733 So. 2d 937, 939 (Ala. Crim. App. 1998)). It
is undisputed that, during Kelley's sentencing hearing, the
trial
court
did
not
mention
Kelley's
sexual-torture
conviction; the trial court did not pronounce a determination
of guilt as to that conviction or a sentence. Thus, a
judgment of conviction was not entered as to that offense.
See Ex parte Walker, supra (defining a judgment of conviction
as the pronouncement of both a determination of a defendant's
guilt and a sentence). Because a judgment of conviction was
not entered for that offense, Kelley's sexual-torture
conviction was not ripe for appeal. See Id.
The State argues that the trial court's failure to
pronounce
a
sentence
on
Kelley's
sexual-torture
conviction
did
not deprive the Court of Criminal Appeals of jurisdiction to
consider an appeal of that conviction. Specifically, the
State argues 1) that Kelley failed to preserve the issue
whether the trial court had pronounced a sentence on his
sexual-torture conviction; 2) that the trial court's failure
to pronounce a sentence on Kelley's sexual-torture conviction
did not affect the jurisdiction of the Court of Criminal
Appeals as this Court defined jurisdiction in Ex parte
8
1131451
Seymour, 946 So. 2d 536 (Ala. 2006); and 3) that the trial
court's failure to pronounce a sentence on Kelley's sexual-
torture conviction was merely a procedural defect. State's
brief, at pp. 8, 12, 15. We address each argument in turn.
We first address the State's allegation that Kelley
failed to preserve the issue whether the trial court
pronounced a sentence on his sexual-torture conviction. As
explained above, the pronouncement of a sentence for a
conviction affects the jurisdiction of the Court of Criminal
Appeals because, without such a pronouncement, a judgment of
conviction has not been entered. "[J]urisdictional matters
are of such magnitude that we take notice of them at any time
and do so even ex mero motu. Horn v. Dunn Brothers, Inc., 262
Ala. 404, 79 So. 2d 11 (1955)." Nunn v. Baker, 518 So. 2d
711, 712 (Ala. 1987). Thus, even assuming, for the sake of
argument, that Kelley failed to preserve the issue whether the
trial court pronounced a sentence on his sexual-torture
conviction, that issue is properly before this Court.
Next, the State alleges that the trial court's failure to
pronounce sentence does not "affect the [Court of Criminal
Appeals'] power and authority to hear Kelley's appeal."
9
1131451
State's brief, at p. 15. In support of this argument, the
State cites this Court's decision in Ex parte Seymour, supra,
in which we defined jurisdiction as follows:
"Jurisdiction is '[a] court's power to decide a
case or issue a decree.' Black's Law Dictionary 867
(8th ed. 2004). Subject-matter jurisdiction concerns
a court's power to decide certain types of cases.
Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755
(1911) ('"By jurisdiction over the subject-matter is
meant the nature of the cause of action and of the
relief sought."' (quoting Cooper v. Reynolds, 77
U.S. (10 Wall.) 308, 316, 19 L. Ed. 931 (1870))).
That power is derived from the Alabama Constitution
and the Alabama Code. See United States v. Cotton,
535 U.S. 625, 630–31, 122 S. Ct. 1781, 152 L. Ed. 2d
860 (2002)(subject-matter jurisdiction refers to a
court's 'statutory or constitutional power' to
adjudicate a case)."
946 So. 2d at 538.
The Court of Criminal Appeals has subject-matter
jurisdiction to review a conviction for sexual torture.
Section 12-3-9, Ala. Code 1975, provides that the Court of
Criminal Appeals "shall have exclusive appellate jurisdiction
of ... all felonies," and § 13A-6-65.1, Ala. Code 1975,
provides that "the crime of sexual torture is a Class A
felony." Yet, unless otherwise provided by law, the Court of
Criminal Appeals does not have jurisdiction to review a
conviction simply because that conviction falls within its
10
1131451
subject-matter jurisdiction; instead, the jurisdiction of the
Court of Criminal Appeals must be invoked. Ex parte Watkins,
268 Ala. 567, 570, 109 So. 2d 671, 673 (1959) ("A court's
jurisdiction and power until invoked lie dormant, and if the
court proceeds in a manner in which its jurisdiction has not
been invoked ... the proceedings are without jurisdiction.").
In the present case, Kelley could not invoke the
jurisdiction of the Court of Criminal Appeals to review his
sexual-torture
conviction
because
a
judgment
of
conviction
was
not entered for that offense. Moreover, as the State
correctly points out, Kelley did not include his sexual-
torture conviction in his notice of appeal as a conviction as
to which he was seeking appellate review. State's brief, at
p. 6. Thus, not only could Kelley not have appealed his
sexual-torture conviction, but he also did not attempt to do
so. Consequently, although the Court of Criminal Appeals has
subject-matter jurisdiction to review a conviction for sexual
torture, it did not have jurisdiction in the present case to
review Kelley's sexual-torture conviction.
Next, the State alleges that the Court of Criminal
Appeals had jurisdiction to review Kelley's sexual-torture
11
1131451
conviction because, the State argues, the trial court's
failure to pronounce sentence on that conviction was merely a
procedural defect. State's brief, at p. 12. In support of
this argument, the State cites our decision in Ex parte Eason,
supra, and the Court of Criminal Appeals' decision in Hill v.
State, 733 So. 2d 937 (Ala. Crim. App. 1998). The State's
argument is unpersuasive.
First, Ex parte Eason is distinguishable from the present
case. In Ex parte Eason, the trial court had sentenced the
defendant to five years' imprisonment following a
guilty
plea,
but it did not formally pronounce the defendant's guilt or
enter a judgment of guilt. 929 So. 2d at 992. This Court
held that the trial court's entry of a sentence "adequately
established that the trial court adjudicated [the defendant]
guilty and that the conviction and sentence were ripe for
appeal." 929 So. 2d at 996. In so doing, this Court
recognized the proposition that "a judgment by the [trial]
court imposing sentence in accordance with a guilty verdict or
a guilty plea sufficiently implies the judgment of guilt and
serves as a judgment of conviction that will support an
appeal." 929 So. 2d at 995.
12
1131451
Thus, in Ex parte Eason, this Court held that a judgment
of conviction is entered when the trial court enters a
sentence that is consistent with a determination of guilt,
even though that determination of guilt is not explicitly set
out in the record. In the present case, however, the trial
court failed to pronounce a sentence on Kelley's sexual-
torture conviction. Furthermore, unlike the defendant in Ex
parte Eason, Kelley did not admit guilt through a guilty plea.
Therefore, Ex parte Eason does not stand for the proposition
that a judgment of conviction is entered absent a trial
court's pronouncement of sentence.
Additionally, in further distinguishing Ex parte Eason,
we recognize that the trial court in the present case entered
a written order purporting to sentence Kelley to life
imprisonment for his sexual-torture conviction. However,
"'[s]entence' means the pronouncement by the court of the
penalty imposed upon the defendant after a judgment of
guilty." Rule 26.1, Ala. R. Crim. P. Thus, according to the
Alabama Rules of Criminal Procedure and the definition of the
word "pronounce" set forth above, the trial court's written
order was not the entry of a "sentence" sufficient to support
13
1131451
a holding that a judgment of conviction was entered on
Kelley's sexual-torture conviction.
Furthermore, the State's reliance on Hill, in light of
this Court's decision in Ex parte Walker, is misplaced. In
Hill, the trial court pronounced sentence in open court on two
of the defendant's felony convictions but did not pronounce a
sentence on the defendant's misdemeanor conviction. 733 So.
2d 938. Nonetheless, the trial court recorded a sentence for
the misdemeanor on its case-action-summary sheet. On appeal,
the defendant alleged, and the State agreed, that the trial
court had violated Rule 26.9(b), Ala. R. Crim. P., by not
1
Rule 26.9(b) provides:
1
"(b) Pronouncement of Sentence. In pronouncing
sentence, the court shall:
"(1) Afford
the
defendant
an
opportunity
to
make
a statement in his or her own behalf before imposing
sentence.
"(2) State that a credit will be allowed on the
sentence, as provided by law, for time during which
the defendant has been incarcerated on the present
charge.
"(3) Explain to the defendant the terms of the
sentence.
"(4) Inform the defendant as to the defendant's
right to appeal; provided, however, in cases in
which the defendant has entered a plea of guilty,
14
1131451
pronouncing the defendant's sentence for the misdemeanor
conviction. The Court of Criminal Appeals held that the trial
court had violated the defendant's constitutional right to be
present at the pronouncement of sentence and remanded the case
for the trial court to pronounce sentence upon the defendant
pursuant to Rule 26.9, Ala. R. Crim. P. 733 So. 2d at 939.
The State correctly points out that, in Hill, the Court
of Criminal Appeals did not hold that the trial court's
failure to pronounce sentence deprived the Court of Criminal
Appeals of jurisdiction. However, in Hill, the parties did
not argue that the Court of Criminal Appeals did not have
jurisdiction to hear the defendant's appeal, and the Court of
the court shall advise the defendant of his or her
right to appeal only in those cases in which the
defendant (i) has entered a plea of guilty, but
before entering the plea of guilty has expressly
reserved his or her right to appeal with respect to
a particular issue or issues, or (ii) has timely
filed a motion to withdraw the plea of guilty and
the motion has been denied, either by order of the
court or by operation of law. When informing the
defendant of his or her right to appeal, the court
shall also advise the defendant that if he or she is
indigent, counsel will be appointed to represent him
or her on appeal if the defendant so desires, and
that a copy of the record and the reporter's
transcript will be provided at no cost to the
defendant for purposes of appeal, if the appeal is
from a judgment and sentence of the circuit court."
15
1131451
Criminal Appeals did not raise and address that issue ex mero
motu. Moreover, the Court of Criminal Appeals decided Hill
before this Court explicitly set out the requirements for a
judgment of conviction in Ex parte Walker. Accordingly, the
State's reliance on Hill to demonstrate that the trial court's
failure to pronounce both a determination of guilt and a
sentence on Kelley's sexual-torture conviction was merely a
procedural defect is misplaced.
The State makes a number of additional arguments in
response to Kelley's petition that are unrelated to the issue
whether the Court of Criminal Appeals had jurisdiction to
review Kelley's sexual-torture conviction. Specifically, the
State argues that Kelley invited any error the Court of
Criminal Appeals committed by failing to include his sexual-
torture conviction in his notice of appeal; that the plain-
error standard of review under Rule 45A, Ala. R. App. P.,2
Rule 45A provides:
2
"In all cases in which the death penalty has
been imposed, the Court of Criminal Appeals shall
notice any plain error or defect in the proceedings
under review, whether or not brought to the
attention of the trial court, and take appropriate
appellate action by reason thereof, whenever such
error has or probably has adversely affected the
substantial right of the appellant."
16
1131451
does not apply to Kelley's sexual-torture conviction; and
that, even if the plain-error standard of review applied to
Kelley's
sexual-torture
conviction,
Kelley
did
not
satisfy
the
requirements under that standard. However, having concluded
that the Court of Criminal Appeals lacked jurisdiction to
review Kelley's sexual-torture conviction, we pretermit
discussion of the State's arguments. "'"[I]f a court ha[s] no
jurisdiction, its action is void."' Moore v. State, 596 So.
2d 53, 54 (Ala. Crim. App. 1991), quoting State v. Johns, 142
Ala. 61, 38 So. 755, 755 (1905), quoting in turn Church,
Church On Habeas Corpus, § 245, n. 1." L.R.G. v. State, 996
So. 2d 208, 210 (Ala. Crim. App. 2008).
Finally, Kelley alleges that, because the Court of
Criminal Appeals lacked jurisdiction to review his sexual-
torture conviction, the Court of Criminal Appeals' opinion
purporting to affirm that conviction is merely advisory and
was ineffective to affirm his capital-murder convictions.
Specifically, Kelley argues that the nonfinality of his
sexual-torture conviction and the Court of Criminal Appeals'
lack of jurisdiction to review that conviction rendered his
17
1131451
entire case, including his two convictions for
capital
murder,
not "ripe for appeal." Kelley's argument is unpersuasive.
In support of his argument that the Court of Criminal
Appeals' decision is merely advisory, Kelley relies
on
Eubanks
v. McCollum, 828 So. 2d 935 (Ala. Civ. App. 2002), Taylor v.
Taylor, 398 So. 2d 267 (Ala. 1981), and In re United States of
America, 898 F.2d 1485 (11th Cir. 1990). Kelley cites Eubanks
and Taylor for the proposition, set out in Taylor, that "an
appeal will lie only from a final judgment which determines
the issues before the court and ascertains and declares the
rights of the parties involved." Taylor, 398 So. 2d at 269.
Kelley then quotes from In re United States, as follows:
"A final, appealable order is one that has 'a
final and irreparable effect on the rights of the
parties.' Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 545, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528
(1949). In the context of sentencing orders, our
predecessor circuit has held that, when a defendant
is sentenced on fewer than all of the counts on
which the defendant is convicted, the order is not
final for purposes of appeal. See United States v.
Wilson, 440 F. 2d 1103, 1104–05 (5th Cir. 1971).3
Only when the defendant is sentenced on all counts
on which he is convicted (or when the convictions on
the other counts are otherwise disposed of) does the
order become final and appealable. See id. at 1105.4
"____________________
18
1131451
" In Bonner v. City of Prichard, 661 F.2d 1206,
3
1209 (11th Cir. 1981) (en banc), this court adopted
as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
" If we were writing on a clean slate, we might
4
come to a different conclusion. An appealable order
is one that finally and irreparably affects the
rights of parties, and, in our view, each count on
which a defendant is convicted should constitute a
separate case, which is brought to a conclusion by
sentencing. We are not at liberty, however, to so
hold."
898 F.2d at 1487.
Eubanks is a decision from the Court of Civil Appeals
arising from a tort action, 828 So. 2d at 936, and Taylor is
a decision by this Court affirming a trial court's judgment
confirming the sale of land. 398 So. 2d at 270. Thus,
Eubanks and Taylor address the appealability of a final
judgment in civil law. Neither case demonstrates that the
Court of Criminal Appeals' lack of jurisdiction over a
particular conviction deprives it of the power to adjudicate
other convictions that are properly before it.3
We note that, under Alabama law, Kelley's capital-murder
3
convictions were properly before the Court of Criminal
Appeals. The trial court pronounced a determination of guilt
and
a
sentence
for
each
of
Kelley's
capital-murder
convictions; therefore, a judgment of conviction issued for
each
of
those
convictions.
Kelley
then
invoked
the
jurisdiction of the Court of Criminal Appeals by timely filing
a notice of appeal that indicated that he was appealing his
19
1131451
Additionally, In re United States is a decision by the
United States Court of Appeals for the Eleventh Circuit.
"[T]his Court is not bound by decisions of the United States
Courts of Appeals ...." Ex parte Johnson, 993 So. 2d 875, 886
(Ala. 2008). Therefore, this Court is not required to follow
the rule from In re United States set out above. Moreover,
the Eleventh Circuit indicated that its decision was pursuant
to its own precedent and that "if [it] were writing on a clean
slate, [it] might come to a different conclusion." 898 F.2d
at 1487. We have found no Alabama precedent requiring us to
come to the same conclusion as the Eleventh Circuit.
Accordingly, we see no reason to adopt the above-quoted rule
from that court.
Consequently, Kelley's argument that the Court of
Criminal
Appeals'
decision
is
merely
advisory
is
unpersuasive.
Conclusion
capital-murder convictions. Moreover, even if Kelley did not
file a notice of appeal, the Court of Criminal Appeals
automatically reviews a judgment of conviction in which the
sentence of death has been imposed. § 13A-5-55, Ala. Code 1975
("In all cases in which a defendant is sentenced to death, the
judgment of conviction shall be subject to automatic
review."); Beck v. State, 396 So. 2d 645, 664 (Ala. 1980)
("In Alabama, a sentence of death is automatically reviewed by
the Court of Criminal Appeals ....").
20
1131451
The Court of Criminal Appeals lacked jurisdiction to
review
Kelley's
sexual-torture
conviction.
However,
Kelley's
argument that that lack of jurisdiction rendered the entirety
of the Court of Criminal Appeals' opinion merely advisory is
unpersuasive. Accordingly, we reverse the Court of Criminal
Appeals' judgment insofar as it affirms Kelley's sexual-
torture conviction, and we remand the case for proceedings
consistent with this opinion.
REVERSED IN PART AND REMANDED.
Moore, C.J., and Stuart, Bolin, Main, Wise, and Bryan,
JJ., concur.
Murdock, J., dissents in part and concurs in the result
in part.
21
1131451
MURDOCK, Justice (dissenting in part and concurring in the
result in part).
For a number of reasons, including the avoidance of more
than one appeal arising from the same criminal case and the
judicial inefficiencies resulting from such a scenario, as
well as the uncertainties created for defendants as to when
appeals must be filed, I believe that the rule recognized in
United States v. Wilson, 440 F.2d 1103, 1104–05 (5th Cir.
1971), and subsequently accepted in In re United States of
America, 898 F.2d 1485 (11th Cir. 1990), is sound. I
therefore respectfully dissent insofar as the main opinion
holds that Michael Brandon Kelley's convictions for capital
murder were properly before the Court of Criminal Appeals,
notwithstanding the lack of an entry of a final judgment by
the trial court as to the companion charge of sexual torture.
I concur in the result achieved by the main opinion with
respect to the reversal of the Court of Criminal Appeals'
judgment as it relates to Kelley's sexual-torture conviction.
I write separately as to that conviction to note that I am not
persuaded
that
the
present
case,
although
distinguishable
from
22
1131451
Ex parte Eason, 929 So. 2d 992 (Ala. 2005), on other grounds,
may be properly distinguished from Eason on the ground that
Eason involved a guilty plea, whereas the present case
involves a guilty verdict. Eason itself suggests the lack of
such distinction. See Ex parte Eason, 929 So. 2d at 995
("[A] judgment by the court imposing sentence in accordance
with a guilty verdict or a guilty plea sufficiently implies
the judgment of guilt and serves as a judgment of conviction
that will support an appeal." (emphasis added)).
23 | November 6, 2015 |
c5de3246-8546-47e2-987f-f082db08b962 | Alfa Life Insurance Corp. v. Reese | N/A | 1140053 | Alabama | Alabama Supreme Court | REL:06/30/2015
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, 2014-2015
_________________________
1140053
_________________________
Alfa Life Insurance Corporation et al.
v.
Wanchetta Reese
Appeal from Etowah Circuit Court
(CV-11-29)
MAIN, Justice.
1140053
Pursuant to Rule 5, Ala. R. App. P., this Court granted
1
Alfa Life Insurance Corporation ("Alfa"), Josh Griffith, a
licensed insurance agent for Alfa, and Judy Russell, also a
licensed insurance agent for Alfa (hereinafter sometimes
referred to collectively as "the defendants"), permission to
appeal from the Etowah Circuit Court's order entered on
October 8, 2014, denying the defendants' renewed motion for a
summary judgment. We reverse the trial court's order and
remand the cause for proceedings consistent with this opinion.
I. Facts and Procedural History
On
January
26,
2011,
Wanchetta
Reese
("Reese"),
individually and as owner and beneficiary of the life-
Rule 5(a), Ala. R. App. P., provides:
1
"A party may request permission to appeal from an
interlocutory order in civil actions under limited
circumstances. Appeals of interlocutory orders are
limited to those civil cases that are within the
original appellate jurisdiction of the Supreme
Court. A petition to appeal from an interlocutory
order must contain a certification by the trial
judge
that,
in
the
judge's
opinion,
the
interlocutory order involves a controlling question
of law as to which there is substantial ground for
difference of opinion, that an immediate appeal from
the order would materially advance the ultimate
termination of the litigation, and that the appeal
would avoid protracted and expensive litigation. The
trial judge must include in the certification a
statement of the controlling question of law."
2
1140053
insurance policy issued on the life of her husband Lee V.
Reese, filed a complaint in the Etowah Circuit Court against
the defendants, setting forth, in pertinent part, the
following factual assertions:
"4. On April 14, 2010, Reese met with ... Alfa
and Griffith to purchase life insurance on her
husband, Lee V. Reese (here[in]after ['Lee Reese']).
The defendants completed an application to insure
the life of [Lee Reese] under a policy of life
insurance to be issued by Alfa with ... Reese as
named beneficiary.
"[Reese] advised [the] Defendants that she
sought to obtain life insurance on [Lee Reese] so
that she would have funds available to bury him in
the event of his death. Griffith, as the agent of
Alfa, suggested that [Reese] apply for no more than
$15,000.00 in life insurance since this was the
maximum amount of insurance that could be sold
without
[Lee
Reese]
undergoing
a
physical
examination.
"5. ... Griffith, as the agent, servant or
employee of Alfa acting within the line and scope of
his employment, asked a series of questions of Reese
in completing [on a laptop computer] an application
for the policy of life insurance on [Lee Reese], ...
including questions about [Lee Reese's] past medical
history. [Reese] provided answers to the questions
asked of her by Griffith who completed the
application for insurance.
"6. ... Griffith read to Reese a question on the
application regarding whether or not [Lee Reese] had
diabetes, kidney failure or amputation. Reese
answered these questions truthfully and advised
[the] defendants that [Lee Reese] suffered from
3
1140053
chronic kidney disease, diabetes, and an amputation
of his leg below the knee.
"7.
After
being
advised
of
[Lee Reese's]
medical
condition, Griffith stated to Reese that he needed
to ask Russell ... for advice in completing the
application. In the presence of Reese, Griffith
advised Russell of the medical issues of [Lee
Reese]. Russell advised Griffith, in the presence of
Reese,
to
not
put
that
information
in
the
application.
"8. After the application was completed,
Griffith and Reese stepped out of the office
building into the parking lot where [Lee Reese] was
sitting in a pickup truck. [Lee] Reese had removed
his artificial leg prosthesis on his left leg[,]
which had been amputated, and the prosthesis was in
plain view of Griffith in the vehicle when Griffith
asked [Lee Reese] to electronically sign the
application. [Lee] Reese was unable to sign the
application and Griffith had ... Reese sign both her
name and [Lee Reese's] name to the application.
"9. After the application was completed, Reese
paid a premium in the amount of $167.87. [Reese]
made a second supplemental payment the following
month in the same amount.
"10. [Lee
Reese]
passed
away unexpectedly
on
May
23, 2010. [Reese] made application for policy
benefits with the aid and assistance of [the]
Defendants and the claim was denied by Alfa in a
letter dated August 16, 2010."
The complaint stated four counts: Count I alleged breach of
contract against Alfa; count II alleged bad faith against
Alfa; count III generally alleged fraud (including fraudulent
4
1140053
misrepresentations) against the defendants; and count IV
2
alleged that the defendants had committed the tort of outrage.
On February 28, 2011, Alfa filed a consolidated
counterclaim and motion to dismiss. In its counterclaim, Alfa
sought rescission of the life-insurance policy; Reese, as
owner of the policy, and Lee Reese, as the insured, were each
required to sign the policy application that was completed and
submitted to Alfa. Accordingly, Alfa, in its counterclaim,
asserted, in pertinent part:
"In
the
application
for
the
above
stated
policy,
the deceased, Lee V. Reese, as the insured, and
Wanchetta Reese, as the owner and named beneficiary,
made misrepresentations, omissions, misstatements,
incorrect statements, and concealed facts regarding
Lee V. Reese's physical health.
"The
misrepresentations,
omissions,
misstatements, incorrect statements, and concealed
facts concerning [Lee Reese's] health condition were
fraudulent and/or were material either to the
acceptance of the risk or to the hazard assumed by
Alfa, or Alfa, in good faith, would not have issued
the policy, or would not have issued the policy at
the premium rate as applied for, or would not have
issued the policy in as large an amount, or would
not have provided coverage with respect to the
The
fraudulent
misrepresentations
were
allegedly
2
statements made by Alfa's agents that Lee Reese was eligible
for a $15,000 policy irrespective of his numerous existing
health problems, despite the express language of the
application stating that a person with such health problems
was ineligible for coverage.
5
1140053
hazard resulting in the loss if the true facts had
been made known to Alfa."
Alfa further asserted that "[t]he application for the
aforesaid policy ... sets forth questions directed to the
insured," which were answered as follows:
"Under the topic of the subject policy, 'IF ANY
ANSWER TO THE FOLLOWING QUESTIONS IS "YES," THE
PROPOSED INSURED IS NOT ELIGIBLE FOR COVERAGE:
"'Have you ever ...
"'Been
diagnosed
with
Diabetes
Requiring Insulin (injection or Pump) or
have you ever had ... treatment for Kidney
Failure; [or] Amputation due to Disease...
?'
"'Answer: "No."'
"(Application) ([capitalization and bold typeface]
emphasis original)."
Moreover, Alfa asserted:
"5. The insured, Lee Reese, represented to Alfa
that the foregoing answers in his application of
April 14, 2010, were 'complete and true to the best
of
[his]
knowledge
and
belief'
(Application
Agreement).
"6.
By
signing
the
application,
Lee
Reese
agreed
as follows:
"'I HAVE TRULY ANSWERED THE ABOVE QUESTIONS
AND I HAVE READ, OR HAD READ TO ME, THE
COMPLETE APPLICATION. I REALIZE THAT MY
FALSE STATEMENTS, MISREPRESENTATIONS OR
CONCEALMENTS
WHICH
WOULD
AFFECT
THE
6
1140053
ACCEPTANCE OF THE RISK ASSUMED MAY RESULT
IN
LOSS
OF
COVERAGE,
SUBJECT
TO
INCONTESTABILITY
PROVISIONS
AND/OR
THE
TIME
LIMIT ON CERTAIN DEFENSE PROVISIONS OF THE
POLICY.'
"(Application) ([capitalization and bold typeface]
emphasis original).
"7.
Alfa relied
upon the
information
provided
by
[Lee V. Reese] in his application in approving the
policy and setting its premium.
"8. ... [O]n or about May 24, 2010, [Lee Reese]
... died. ...
"9. The immediate cause of death was cardiac
arrhythmia and failure, renal failure, and ASVD
(also known as artherosclerosis). ...
"10. On or about June 16, 2010, Alfa received a
'Request for Payment of Insurance Benefits,' signed
and submitted by ... Reese. ...
"11. [Lee Reese] was diagnosed with 'Diabetes
Requiring Insulin (injection or Pump)' prior to his
application for life insurance on or about April 14,
2010. ...
"12. [Lee Reese] was treated for 'Kidney
Failure' prior to his application for life insurance
on April 14, 2010. ...
"13. [Lee Reese] also had had an 'Amputation due
to Disease' prior to his application for life
insurance on April 14, 2010. ...
"14. Based upon medical records, Alfa is
informed
and
believes,
and
based
upon
that
information and belief alleges, that the deceased
insured, Lee V. Reese, died as an immediate result
of cardiac arrest and failure, renal failure, and
7
1140053
atherosclerosis, being contributorily caused by
'Diabetes Requiring Insulin (injection or Pump),'
and 'Kidney Failure,' with an indicating factor
being 'Amputation due to Disease.' ([bold typeface]
emphasis added).
"15. Alfa alleges that the aforesaid policy of
insurance affords no insurance coverage or insurance
benefits to [Reese]. Specifically, Alfa ... avers
that Alfa life insurance policy number LI2999
provides no insurance coverage in that it was void
ab initio due to untruthful answers to application
question 12, insofar as it was (1) fraudulent; (2)
material either to the acceptance of the risk or to
the hazard assumed by the insurer; or (3) the
insurer, in good faith, would either not have issued
the policy or contract, or would not have issued a
policy or contract at the premium rate as applied
for, or would not have issued the policy or contract
in as large an amount, or would not have provided
coverage with respect to the hazard resulting in the
loss if the true facts had been made known to the
insurer as required either by the application for
the policy, or contract, or otherwise. See Code of
Alabama 1975, § 27-14-7(a).[ ]
3
Alabama Code 1975, § 27-14-7, provides, in pertinent
3
part:
"(a) All statements and descriptions in any
application for an insurance policy or annuity
contract, or in negotiations therefor, by, or in
behalf of, the insured or annuitant shall be deemed
to
be
representations
and
not
warranties.
Misrepresentations, omissions, concealment of facts
and incorrect statements shall not prevent a
recovery under the policy or contract unless either:
"(1) Fraudulent;
"(2) Material either to the acceptance
of the risk or to the hazard assumed by the
8
1140053
"16. On August 16, 2010, Alfa sent ... Reese a
letter refunding her premium payments and notifying
her of Alfa's denial of death benefits on Alfa life
insurance policy number LI2999 based on the
foregoing
misrepresentations,
omissions,
concealment
of facts, or incorrect statements...."
(Emphasis, other than as indicated, added.) Thus, Alfa could
seek rescission of the life-insurance policy under § 27-14-
7(a)(3), Ala. Code 1975, because, Alfa said, it would not have
issued the policy or would have issued the policy under
different terms had it known that the signed application Reese
submitted contained misrepresentations, concealment of facts,
and incorrect statements regarding Lee Reese's medical
conditions. According to Alfa, Reese, who admittedly did not
read the application, knew that the misrepresentations,
concealment of facts, and incorrect statements regarding Lee
Reese's medical conditions were contained in the application
insurer; or
"(3) The insurer in good faith would
either not have issued the policy or
contract, or would not have issued a policy
or contract at the premium rate as applied
for, or would not have issued a policy or
contract in as large an amount or would not
have provided coverage with respect to the
hazard resulting in the loss if the true
facts had been made known to the insurer as
required either by the application for the
policy or contract or otherwise."
9
1140053
based on the conversation she overheard between Griffith and
Russell at Alfa's office.
In seeking to dismiss Reese's action, Alfa argued, in
sum, (1) that Reese's breach-of-contract and bad-faith claims
must be dismissed because, Alfa said, the life-insurance
contract was void ab initio as a result of the fraudulent and
material misrepresentations of material facts regarding Lee
Reese's medical conditions on the application, which Reese
nonetheless signed without objection; that Reese could not
rely on alleged oral misrepresentations by Alfa's agents
regarding the viability of the life-insurance policy because
the life-insurance application stated that "[n]o agent or any
other person is authorized by [Alfa] to waive or modify in any
way any of the conditions or provisions contained in this
application or policy of insurance"; and that "[a] failure to
read the application is no excuse for the Reeses"; (2) that
Reese's tort-of-outrage claim failed to state a claim upon
which relief could be granted, see Rule 12(b)(6), Ala. R. Civ.
P., because, Alfa said, "[n]one of [Reese's] allegations fall
within the limited scope [of the action of the tort of
outrage] recognized in Alabama (citing Wyant v. Burlington
10
1140053
Northern Santa Fe R.R., 210 F. Supp. 2d 1263 (N.D. Ala. 2002),
and Callens v. Jefferson Cnty. Nursing Home, 769 So. 2d 273,
281 (Ala. 2000)); and (3) that Reese's fraud claim was due to
be
dismissed
because,
Alfa
said,
"the
circumstances
constituting fraud" were not "stated with particularity" in
the complaint, see Rule 9(b), Ala. R. Civ. P. (citing, among
other cases, Drummond Co. v. Walter Indus., Inc., 962 So. 2d
753, 787-88 (Ala. 2006)). Griffith and Russell also filed a
joint motion to dismiss Reese's action in which they
"incorporate[d] Alfa's Motion to Dismiss as if set forth
herein verbatim."
In a memorandum brief in response to the motions to
dismiss, Reese stated: (1) "Alfa ... cannot void or rescind
the policy based upon any misrepresentation in
the
application
of insurance pursuant to § 27-14-7 if the responsibility for
the false information was that of the agent who was fully
apprised of the insured's medical problems yet opted to omit
that from the policy in order to procure a policy of
insurance"; (2) "[i]n Alabama, the conduct of the agent in
completing the application is imputed to the
insurance company
[because] the agent was an employee of the company. ...
11
1140053
[K]nowledge to [sic] the agent of the omission of correct
information in the application would be imputed to his
employer, Alfa. Alfa, with knowledge of the false information
contained within the application, nevertheless accepted the
application and premium, issued the policy of insurance, then
denied the claim knowing the application contained false
information, which would constitute evidence of outrageous
conduct," and the same argument is applicable to Reese's bad-
faith claim; and (3) "[t]he Factual Background of the
Complaint explicitly sets forth the acts constituting the
fraud" and, even if the allegations of fraud were nonspecific,
"then leave may be granted under Rule 15, [Ala. R. Civ. P.],
to allow [Reese] to amend the pleadings to conform to the
evidence."
On May 13, 2011, the trial court entered an order (1)
granting the defendants' motion to dismiss as to count IV
(tort of outrage); (2) denying the motions to dismiss as to
the other three counts; and (3) denying the motion to dismiss
insofar as it sought an order requiring Reese to plead her
allegations of fraud with more particularity.
Thereafter,
the
defendants filed a consolidated answer to Reese's complaint,
12
1140053
and Reese filed an answer to Alfa's counterclaim, which sought
rescission of the life-insurance policy.
On
September
27,
2012,
the
defendants
filed
a
consolidated motion seeking a summary judgment on the three
remaining counts (breach of contract, bad faith, and fraud);
in the same motion, Alfa sought a summary judgment on its
counterclaim seeking rescission of the life-insurance policy.
The summary-judgment motion basically restated the factual
assertions set forth in Alfa's motion to dismiss: that Alfa
relied on misinformation contained in the application in
deciding whether to issue the life-insurance policy; that
Reese
did
not
read
the
application
containing
the
misinformation before signing it, and, if she had, she would
have known that the application contained false statements
regarding Lee Reese's medical conditions that could be cause
for cancellation of the policy and/or loss of coverage and
that no information provided to Griffith was binding on Alfa
unless made part of the application; that there could be no
amendment to the application by the agent; that the
application is made part of the life-insurance policy; that
the medical issues misstated in the application and not caught
13
1140053
by Reese because she did not even attempt to read the
application were, according to
Lee
Reese's
attending
physician, contributing factors to Lee Reese's death;
and
that
Alfa issued the life-insurance policy because it relied on the
information in the application signed by Reese, who knew it
contained false information regarding Lee Reese's health. The
defendants supported their summary-judgment motion with
substantial documentary evidence and a brief.
Reese filed a response to the defendants' motion for a
summary judgment, stating the facts as follows: Reese went to
an Alfa office and spoke with Griffith about purchasing a
life-insurance policy that would provide enough money for
burial expenses upon Lee Reese's death. According to Reese,
"Griffith explained Alfa offered a $15,000.00 policy with no
health requirements and no requirement of a physical exam";
Reese proceeded to apply for that policy. While answering
questions Griffith asked from the application, Reese advised
Griffith that Lee Reese was diabetic and that he took insulin.
Griffith then sought counsel from Russell, who allegedly told
Griffith not to include that information in the application.
Pursuant to Russell's advice, Griffith also omitted from the
14
1140053
application the fact that Lee Reese received his insulin
through injection or pump. Reese further advised Griffith
that her husband had had bypass surgery and that he wore a
prosthesis for an amputated leg. Nevertheless,
Reese
claimed,
the application was completed, and Reese (without objection)
and Griffith signed the application, which had been completed
on what Reese referred to as a "computer device." Reese
4
Griffith clams that Lee Reese signed the application.
4
However, according to Reese, Lee Reese did not sign the
application even though he was present at the insurance agency
while Reese and Griffith completed the application. Lee
Reese, who was in very poor health at the time, remained in
the Reeses' truck and stated that he did not feel like signing
the application when the computer device with the signing pad
was presented to him. Reese, who held power of attorney for
her husband, signed the application for him and, according to
the allegations set forth in the complaint, perhaps also
signed his name to the application.
It is undisputed that Reese held "power of attorney" for
Lee Reese; that the power of attorney was a total or complete
power of attorney; and that the power of attorney was
effective and adequate. A power of attorney is "[a]n
instrument granting someone authority to act as agent or
attorney-in-fact for the grantor." Black's Law Dictionary
1191 (10th ed. 2014). See also Arcweld Mfg. Co. v. Burney, 12
Wash. 2d 212, 221, 121 P.2d 350, 354 (1942) ("By 'power of
attorney' is commonly meant an instrument in writing by which
one person, as principal[,] appoints another as his agent and
confers upon such agent the authority to act in the place and
stead of the principal for the avowed purpose, or purposes,
set forth in the instrument." (quoted with approval in Smith
v. Wachovia Bank, N.A., 33 So. 3d 1191, 1197 n. 5 (Ala.
2009))). Thus, the execution of a power of attorney creates
a principal-agent relationship. The "'settled rule of agency
15
1140053
admittedly did not read the application, was not asked to read
the application, did not "look at" the application, and was
not "refused an opportunity by the agent" to read the
application. Reese's response to the defendants' summary-
judgment motion was supported by documentary evidence and a
brief.
After receiving a reply brief from the defendants and
holding a hearing on the matter, the trial court, on February
20, 2013, entered an order granting the defendants' summary-
judgment motion in part and denying the motion in part.
Specifically, the trial court granted the summary-judgment
motion as to Reese's bad-faith claim but denied the motion as
to Reese's breach-of-contract and fraud claims and
also denied
the motion as to Alfa's counterclaim seeking rescission of the
life-insurance policy. The trial court certified that order
as final pursuant to Rule 54(b), Ala. R. Civ. P. The
defendants requested that the trial court alter, amend, or
vacate the partial denial of their summary-judgment motion,
[is] that an agent "stands in the shoes" of his principal.'"
Stevens v. Phillips, 852 So. 2d 123, 130 (Ala. 2002) (quoting
Monsanto Co. v. Benton Farm, 813 So. 2d 867, 874 (Ala. 2001),
and citing American States Ins. Co. v. C.F. Halstead
Developers, Inc., 588 So. 2d 870 (Ala. 1991)) (emphasis
added).
16
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and, in the same motion, requested that the trial court "enter
an Order certifying the controlling issue for [Rule 5, Ala. R.
App. P.,] interlocutory appeal." The trial court denied both
requests in a written order.
Subsequently, Reese moved the trial court for permission
to amend her complaint, alleging a new count IV entitled
"fraud,
deceit,
and
suppression"
(allegations
already
contained in the original complaint) against Alfa and
Griffith
(the original count IV, alleging the tort of outrage, had
already been dismissed by the trial court). The defendants
moved the trial court to strike and/or dismiss the amended
count IV. On August 14, 2013, the trial court entered an
5
order granting Reese's motion for permission to amend her
complaint and denying the defendants' motion to strike and/or
dismiss the amended count IV. Alfa and Griffith filed a
motion for a summary judgment as to count IV of the amended
complaint. After receiving a response from Reese to the
motion for a partial summary judgment, the trial court granted
Alfa and Griffith's motion for a summary judgment as to count
All the defendants moved to strike and/or dismiss the
5
amended count IV even though Reese named only Alfa and
Griffith in the amended count.
17
1140053
IV of the amended complaint and ordered that that judgment be
made final pursuant to Rule 54(b), Ala. R. Civ. P.
On July 25, 2014, the defendants filed a renewed motion
for a summary judgment as to Reese's two remaining claims and
Alfa's counterclaim seeking rescission of the life-insurance
policy. In their brief supporting their renewed summary-
judgment motion, the defendants discussed extensively this
Court's then quite recent decision in Alfa Life Insurance
Corp. v. Colza, 159 So. 3d 1240 (Ala. 2014). Counsel for Alfa
in the present case also represented Alfa in Colza. Counsel
alleged that "the material facts [in Colza] are substantially
similar to [those in] the instant case"; that Colza governed
in this case; and that this Court's decision in Colza mandated
that the trial court enter a summary judgment in favor of the
defendants on all of Reese's remaining claims (breach of
contract against Alfa and fraud against all the defendants)
and on Alfa's counterclaim seeking rescission of the life-
insurance policy. Reese filed a memorandum brief in response
to the defendants' renewed summary-judgment motion, asserting
that Colza is distinguishable from the present case and,
therefore, that it does not control here. On September 25,
18
1140053
2014, the trial court denied the defendants' renewed motion
for a summary judgment.
On October 1, 2014, the defendants moved the trial court
to certify for interlocutory appeal its September 25, 2014,
order denying their renewed motion for a summary judgment.
See Rule 5, Ala. R. App. P. The defendants argued that,
contrary to the trial court's view, Colza controls and, thus,
that "the interlocutory order involves a controlling question
of law as to which there is substantial ground for difference
of opinion, that an immediate appeal from the order would
materially
advance
the
ultimate
termination
of
the
litigation,
and that the appeal would avoid protracted and expensive
litigation." See Rule 5. The trial court denied the motion
in a written order.
On October 8, 2014, the defendants filed a second motion
asking the trial court to certify for interlocutory appeal its
September 25, 2014, order. This time, the trial court granted
the motion and certified the following controlling questions
of law:
"1. Can a misrepresentation regarding the contents
of a document be sufficient in and of itself for a
reasonable jury to find an exception to the duty to
read?
19
1140053
"2. Where there is no evidence of a special
relationship between the parties and no evidence
that the plaintiff suffers from a disability
rendering her unable to discern the contents of the
document, can a plaintiff nevertheless be relieved
of the duty to read?
"3. Can information that an agent allegedly obtained
in the application process be imputed to the
insurance company where the application agreement
states, 'No information or knowledge obtained by any
agent ... in connection with this Application shall
be construed as having been made known to or binding
upon the Company'?"
This Court granted the defendants' petition for a
permissive appeal.
II. Standard of Review
"'"We
apply
the
same
standard of review [in reviewing
the
grant
or
denial
of
a
summary-judgment motion] as the
t r i a l
c o u r t
a p p l i e d .
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
20
1140053
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."'
"Mutual Assurance, Inc. v. Schulte, 970 So. 2d 292,
295 (Ala. 2007) (quoting Dow v. Alabama Democratic
Party, 897 So. 2d 1035, 1038–39 (Ala. 2004))."
Panayiotou v. Johnson, 995 So. 2d 871, 875-76 (Ala. 2008).
III. Issues
The defendants summarize their arguments as follows:
"The
Circuit
Court
Order
denying
[the
defendants'] renewed motion for summary judgment
conflicts with Alabama case law under[, among other
cases,] Alfa Life Ins. Corp. v. Colza because there
is no evidence upon which to grant an exception to
the strict duty to read. Reese is held to know what
is written in the application she signed, the
documents given to her when she signed the
application, and the contents of her policy. Her
fraud claims fail for lack of reasonable reliance.
"Additionally, as stated by the clear and
unambiguous language in the notices given to Reese
and the application signed by Reese, no health
information allegedly told to the agents but not put
in writing was made known to Alfa. Alfa has a right
to rely on the written application submitted by
Reese and rescind any policy issued where there are
material misrepresentations in the application."
21
1140053
The defendants argue strenuously and almost exclusively
on appeal that Colza controls here and that Colza mandates
that the trial court enter a summary judgment in favor of the
defendants on Reese's remaining claims and in favor of Alfa on
its counterclaim for rescission of the life-insurance policy.
6
Under the facts of this case, we agree.
The relevant facts in Colza were as follows:
"On September 2, 2010, [Brandon] Morris [an
agent for Alfa] met with Dante [Colza] to assist him
in completing an application for a life-insurance
policy in the amount of $150,000. Kimberly [Colza,
Dante's wife,] and Justin Morton, an employee of
Dante's, were also present at the meeting. The
application process for an Alfa life-insurance
policy consists of three parts: the applicant's
completion
of
an
application
agreement,
the
applicant's answering various health questions
before
a
medical
examiner,
and
the
medical
examiner's report. Morris testified that he asked
Dante the questions in the application agreement and
then typed the answers on the application form on
his laptop computer. Although the evidence is
disputed as to whether Morris asked Dante question
16(g) -- whether Dante had had a moving traffic
violation, a driver's license suspended, or an
accident in the prior three years -- it is
undisputed that Morris entered a checkmark in the
'No' box by that question. The evidence indicated
that Dante applied for the Preferred Tobacco premium
rate [because Dante admitted to using tobacco in the
Reese agrees that the true issue is "whether Colza
6
controls here and
precludes application of the exceptions such
that Reese could not reasonably rely upon the alleged
representations under the undisputed evidence of this case."
22
1140053
recent
past].
Dante
named
Kimberly
as
the
beneficiary under the policy. Disputed evidence was
presented as to whether Dante himself signed the
application agreement.
"At the close of the meeting, Morris provided
Dante and Kimberly with a hard-copy document
e n t i t l e d
' A p p l i c a n t ' s
C o p y
o f
Notices—Authorization—Agreement—Receipt
Signed
Electronically' (hereinafter referred to as 'the
application agreement'). The relevant portion of the
application agreement stated:
"'I understand and agree with the Company
that:
"'1. Any policy issued as a result of
this Application shall constitute a single
and entire contract of insurance.... Only
the President, a Vice President, the
Secretary or Actuary of the Company may
waive or vary a contract provision or any
of the Company's rights or requirements and
such waiver must be in writing. Only the
Company's Underwriters have any authority
to accept or approve the insurance applied
[for] or to pass upon insurability.
"'2. To the best of my knowledge and
belief all of the statements and answers on
the Application are true, complete, and
correctly stated, and I understand the
statements and answers are submitted to the
Company as the basis for any policy issued,
and
if
incorrect
can
be
cause
for
cancellation or loss of coverage.
"'....
"'4. I authorize the Company to amend
this Application by a notation in the space
set aside for "Home Office Endorsements" to
23
1140053
correct apparent errors or omissions and to
conform the Application to any policy that
may be issued by the Company. Acceptance of
the policy issued based on this Application
will be acceptance of its terms and
ratification by me of any changes specified
in
the
section
marked
"Home
Office
Endorsements." Any change in plan or amount
of insurance or added benefits must be
agreed to in writing.'
"The application agreement completed by Dante
referenced another document entitled 'Conditional
Receipt,' which stated in relevant part:
"'1.
CONDITIONS
TO
COVERAGE:
NO
INSURANCE WILL BECOME EFFECTIVE BEFORE THE
DELIVERY AND ACCEPTANCE OF A POLICY OF
INSURANCE UNLESS AND UNTIL EACH AND EVERY
ONE OF THE FOLLOWING CONDITIONS IF [sic]
FULFILLED EXACTLY:
"'....
"'6. NO AGENT, GENERAL OR SPECIAL, OR
ANY OTHER PERSON IS AUTHORIZED BY THE
COMPANY TO WAIVE OR MODIFY IN ANY WAY ANY
OF THE CONDITIONS OR PROVISIONS CONTAINED
IN THIS CONDITIONAL RECEIPT.'
"(Capitalization in original.) Conflicting evidence
was presented at trial as to whether Morris provided
Dante and Kimberly with a hard copy of the
conditional receipt; however, Kimberly acknowledges
that she received an identical conditional receipt
when she applied for her own life-insurance policy
approximately two weeks before Dante applied for
his.
"....
24
1140053
"Dante was examined by the medical examiner on
October 15, 2010. During the examination, Dante
informed the medical examiner that his family had a
history of heart disease and that he had had moving
traffic violations within the past five years. On
October 16, 2010, the day after he had his medical
examination, Dante was killed in an accident. Two
days later, Alfa received the medical examiner's
report, which indicated that Dante's family had a
history of heart disease, that Dante's cholesterol
was above 255, and that Dante had had moving traffic
violations in the past five years.
"In light of Dante's high cholesterol level and
his family history of heart disease, the Alfa
underwriters determined that Dante was not eligible
for the Preferred Tobacco rate for which he had
applied; rather, the proper classification for Dante
would have been the Standard Tobacco rate, which had
a higher premium. Additionally, in light of Dante's
moving-vehicle violations, Dante was a greater risk
to insure and a [higher premium for] coverage was
required. ...
"On October 25, 2010, Alfa notified Kimberly by
letter that no life-insurance coverage was available
for Dante's death 'because no policy was issued and
the conditions of coverage under the conditional
receipt were not met.'[ ]
7
"On April 13, 2011, Kimberly sued Alfa seeking
to recover under the terms of the conditional
receipt. She alleged, among other claims, that Alfa
had breached the contract and had acted in bad faith
when it refused to pay life-insurance benefits on
Dante had received from Alfa a document entitled
7
"Conditional Receipt," which outlined several conditions for
coverage that Dante had to fulfill "exactly" before his
insurance policy would become effective. Colza, 159 So. 3d at
1244. Dante had not completed those conditions before his
death.
25
1140053
Dante's death. Kimberly also sued Morris, alleging,
among other claims, that he had negligently failed
to procure insurance coverage for Dante. After a
trial, the jury found that Alfa had breached the
contract and had in bad faith refused to pay the
insurance benefits due pursuant to that contract and
that Morris had negligently failed to procure
insurance for Dante. The trial court entered a
judgment in the amount of $440,674.94 against Alfa
and in the amount of $100,000 against Morris. Alfa
and Morris submitted motions for judgments as a
matter of law at the close of the evidence and after
the entry of the judgment. The trial court denied
the motions. Alfa and Morris appeal[ed]."
Colza, 159 So. 3d at 1242-46 (footnotes omitted).
On appeal, this Court reversed the trial court's judgment
and rendered a judgment in favor of Alfa, finding, among other
things, that a "'trial court can enter a judgment as a matter
of law in a fraud case where the undisputed evidence indicates
that the party or parties claiming fraud in a particular
transaction were fully capable of reading and understanding
their documents, but
nonetheless
made a deliberate
decision to
ignore written contract terms.'" Colza, 159 So. 3d at 1251
(quoting Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421
(Ala. 1997)).
As noted, the first controlling question of law
certified to this Court in this permissive appeal is: "Can a
misrepresentation regarding the contents of a document be
26
1140053
sufficient in and of itself for a reasonable jury to find an
exception to the duty to read?" Stated differently, the issue
is whether misrepresentations to Reese by Alfa's agents --
that the life-insurance policy would be effective despite the
false statements in the application regarding Lee Reese's
health and despite the contractual language stating (a) that
Alfa's agents have no authority to unilaterally modify a life-
insurance policy and (b) that misrepresentations in the
application could result in cancellation and/or lack of
coverage -- excepted Reese from her legal duty to "'read the
documents
received
in
connection
with
a
particular
transaction.'" Colza, 159 So. 3d at 1251 (quoting Foremost,
693 So. 2d at 421). The answer to this question is clearly
"no." As this Court stated in Colza:
"'In light of the language of the documents
surrounding
the
insureds'
purchase
of
the
life-insurance policies at issue in this case and
the
conflict
between
[the
agent's]
alleged
misrepresentations and the documents presented to
[the insured], it cannot be said that [the insured]
reasonably relied on [the agent's] representations.
As this Court stated in Torres [v. State Farm Fire
& Cas. Co., 438 So. 2d 757 (Ala. 1983)]: "[T]he
right of reliance comes with a concomitant duty on
the part of the plaintiffs to exercise some measure
of precaution to safeguard their interests." 438 So.
2d at 759. The insureds here took no precautions to
safeguard their interests. If nothing else, the
27
1140053
language in the policies ... should have provoked
inquiry or a simple investigation of the facts by
[the insured]. Instead, based upon the record before
us, we must conclude that [the appellant] "blindly
trust[ed]" [the agent] and "close[d] [his] eyes
where ordinary diligence require[d] [him] to see."
Munroe v. Pritchett, 16 Ala. 785, 789 (1849). ... We
conclude that no reasonable person could read the
policies ... and not be put on inquiry as to the
existence
of
inconsistencies,
thereby
making
reliance
on
[the
agent's]
representations
unreasonable as a matter of law. Because the
insureds failed to present substantial evidence
indicating that [the insured's] reliance on [the
agent's]
representations
was
reasonable,
[the
defendant] is entitled to a [judgment as a matter of
law].'"
159 So. 3d at 1251-52 (quoting AmerUs Life Ins. Co. v. Smith,
5 So. 3d 1200, 1215–16 (Ala. 2008)) (initial emphasis
original; other emphasis added).
In Colza, this Court noted the well settled "duty-to-
read" rule, which states that a plaintiff has a "'general duty
... to read the documents received in connection with a
particular transaction,' along with a duty to inquire and
investigate." 129 So. 3d at 1251 (quoting Foremost, 693 So.
2d at 421). In this case, Reese admittedly made no attempt to
read the application; her entire argument rests on her
contention that she was never given a
"reasonable
opportunity"
to read the application because it was filled out on a laptop
28
1140053
computer. However, for all that appears, Reese decided to
"blindly trust[]" the agents' representations rather than
taking even the most basic of precautions to "safeguard [her]
interests." 159 So. 3d at 1252. As this Court further noted
in Colza: "We do not think it unreasonable to conclude as a
matter of law that, in this day and age, any adult of sound
mind capable of executing a contract necessarily has a
conscious appreciation of the risk associated with ignoring
documents
containing
essential
terms
and
conditions
related
to
the transaction that is the subject of the contract." 159 So.
3d at 1252. Thus, the trial court erred in failing to grant
the defendants' summary-judgment motion based on the court's
apparent
finding
that
the
agents'
misrepresentations
regarding
the application would be sufficient in and of themselves to
allow a reasonable jury to find an exception to the duty to
read.
This Court's main opinion in Colza sets forth seven pages
of detailed analysis on the issue whether it is reasonable for
a party to rely on oral representations about an insurance
application/policy when a simple reading of the written
document
would
show
inconsistencies between
the
oral
29
1140053
representations and that document. In Colza, this Court
reviewed numerous cases from this and other jurisdictions,
considering both a lenient and a stricter view of the duty to
read. After doing so, this Court stated: "We have taken a
decidedly stricter view [of the duty to read]," Colza, 159 So.
3d at 1235, i.e., that "any adult of sound mind capable of
executing a contract necessarily has a conscious appreciation
of the risk associated with ignoring documents containing
essential terms
and conditions related to the
transaction
that
is the subject of the contract." 159 So. 3d at 1259.
The second controlling question of law presented to this
Court by this permissive appeal is: "Where there is no
evidence of a special relationship between the parties and no
evidence that the plaintiff suffers from a disability
rendering her unable to discern the contents of the document,
can a plaintiff nevertheless be relieved of the duty to read?"
We answer this question too in the negative.
We are mindful that the duty-to-read rule may be avoided
when
there
have
been
misrepresentations
regarding
the
contents
of a document and there are special circumstances or a special
relationship between the parties or the plaintiff suffers
from
30
1140053
a disability rendering him or her unable to discern the
contents of the document. See Potter v. First Real Estate
Co., 844 So. 2d 540, 548–51 (Ala. 2002). However, none of
those exceptions apply in this case, and Reese does not even
specifically contend that any of those exceptions do apply.
Reese merely generally posits that the fact that the
application was completed on a laptop computer and had to be
signed on a separate signature pad constitutes "special
circumstances." Reese offers no authority in support of this
argument. We hold that the trial court erred in failing to
grant the defendants' summary-judgment motion on the basis
that Reese was not relieved by special circumstances of the
duty to read.
The third controlling question of law presented to this
Court by this permissive appeal is: "Can information that an
agent allegedly obtained in the application process
be
imputed
to the insurance company where the application agreement
states, 'No information or knowledge obtained by any agent ...
in connection with this Application shall be construed as
having been made known to or binding upon the Company'?" Once
again, we answer in the negative.
31
1140053
As Reese notes, she was given a hard copy of a document
entitled
"Notices-Authorization-Agreement-Receipt,"
which
states, in part:
"No information or knowledge obtained by any agent
... or any other person in connection with this
Application shall be construed as having been made
known to or binding upon the Company unless such
information is in writing and made a part of this
Application."
The defendants' brief effectively answers this question:
"Again, Colza is controlling. In Colza, the
a p p l i c a n t s
w e r e
g i v e n
t h e
s a m e
'Notices-Authorization-Agreement-Receipt'
as
was
given
to
Reese
[in
the
present
case].
The
'Notices-Authorization-Agreement-Receipt' in Colza
contained a paragraph identical to the one written
above. In Colza, the applicants were held to know
the terms contained therein, limiting the agent's
authority. Just as the applicants in Colza were
deemed to know the terms of that document, i.e.[,]
that the agent had no authority to issue an oral
contract or to create immediate coverage, Reese was
bound to know that information given to agents
Griffith and Russell was not 'made known to or
binding upon [Alfa] unless [it] is in writing and
made a part of this Application.' Colza, [159 So. 3d
at 1252]."
Once again, we hold that the trial court erred in failing
to grant the defendants' summary-judgment motion on the basis
that the information Reese provided Griffith was not imputed
to Alfa.
32
1140053
The present case is effectively summed up by the
following language from a case released by the United States
District Court for the Southern District of Alabama after
Colza was released by this Court and that relied, at least in
part, on this Court's holding in Colza:
"The plain terms of the agreement contradict
[the appellant's] purported belief, based on [the
appellee's] alleged misrepresentations and/or due to
allegedly suppressed information, that her interest
rate and mortgage payments would be reduced. Faced
with contract terms that did not comport with
previous
representations
and
her
purported
understanding of the state of affairs at the time,
[the appellant] had 'a duty to inquire and
investigate' these inconsistencies. [Alfa Life Ins.
Corp. v.] Colza, [159 So. 3d 1240, 1251 (Ala.
2013)]. The undisputed evidence, however, indicates
that [the appellant], while 'fully capable of
reading and understanding' the terms of the ...
modification
agreement,
'nonetheless
made
a
deliberate decision to ignore [those] written
contract terms' in favor of previous purported
representations by [the appellee]. Foremost [Ins.
Co. v. Parham], 693 So. 2d [409,] 421 [(Ala. 1997)].
Thus, [the appellant] cannot now claim that she
reasonably
relied
on
any
purported
misrepresentations by [the appellee], or on her
understanding of the state of affairs at the time,
in
accepting
and
signing
the
modification
agreement."
Givens v. Saxon Mortg. Servs., Inc. (No. 13-00245-KD-N, June
2, 2014) (S.D. Ala. 2014) (not published in F. Supp. 2d).
IV. Conclusion
33
1140053
As stated above, three controlling questions of law have
been certified to this Court; we answer all three questions in
the negative. Put simply, there exists no issue for a jury to
resolve in this case, because the undisputed evidence shows
(1) that Reese improperly relied on the agents' oral
representations regarding the validity of the application
without making any attempt to read the life-insurance policy
8
application, (2) that Reese made no attempt to inquire into or
to investigate any inconsistencies between the agents' oral
representations and the language of the application, and (3)
that no exception to the duty to read applies here. It is
clear that the application states that the information
obtained by the agents in the application process that is not
contained in the application absolutely cannot be imputed to
Alfa. Therefore, we reverse the trial court's order denying
the defendants' summary-judgment motion as to all of Reese's
remaining claims and as to Alfa's counterclaim seeking
rescission of the life-insurance policy, and we remand the
cause for proceedings consistent with this opinion. Cf.
Colza.
As noted, Reese admits that she was not "physically
8
prevented from" reading the application.
34
1140053
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.
Shaw, J., concurs in the result.
Murdock, J., dissents (writing to follow).
Moore, C.J., recuses himself.
35 | June 30, 2015 |
e21597a8-9a87-4cb0-9473-dce14b7911a5 | Johnson v. City of Mobile | N/A | 1140433 | Alabama | Alabama Supreme Court | Rel: 09/30/2015
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, 2015
____________________
1140433
____________________
Barbara Johnson
v.
City of Mobile
Appeal from Mobile Circuit Court
(CV-13-901394)
PARKER, Justice.
Barbara Johnson appeals the judgment of the Mobile
Circuit Court in favor of the City of Mobile ("the City"), the
circuit court's denial of Johnson's motions for a continuance
and a new trial, and the award of attorney fees to the City.
1140433
I. Facts and Procedural History
This case involves Johnson's claim against the City
alleging
retaliation
based
on
Johnson's
several
complaints
and
lawsuits filed against the City under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
("the ADA"). Johnson, an African-American woman over 40 years
of age, began working for the City in its Urban Development
and Public Services Department in 1996. Her duties included
enforcing various ordinances pertaining to parking, abandoned
vehicles, swimming pools, and overgrown weeds or grass, as
well as handling abatement cases. In 2006, Johnson was
transferred
to
the
City's
Department
of
Environmental
Services
and began working as an "Environmental Patrol Officer II." As
an employee of the City, Johnson was subject to the Mobile
County Personnel Board ("the MCPB") rules and policies.
Johnson has previously filed several complaints and
lawsuits against the City pertaining to her employment with
the City. In 2005, 2006, 2007, 2009, 2010, and 2012, Johnson
filed with the Equal Employment Opportunity Commission ("the
EEOC") complaints against the City alleging various forms of
2
1140433
discrimination. Johnson also unsuccessfully sued the City in
2007, 2008, and 2010. Johnson filed the underlying action on
June 4, 2013, alleging that, in violation of Title VII and the
ADA, the City retaliated against Johnson because she had filed
discrimination charges against the City with the EEOC.
Workplace interactions constitute the factual basis for
Johnson's present case. Johnson's deposition testimony
indicates that in 2008 or 2009 Johnson had surgery to correct
an unspecified problem with her toe. As a result of her toe
surgery, Johnson was "taken off of work" for what "could have
been a month." Johnson's time off work to recover from her
toe injury was preapproved by the City, and she was paid for
her time off. Once Johnson returned to work, she had to wear
a boot to protect her toe, and her doctor "wanted [her] on
light duty." Johnson's supervisor, Terrell Washington,
informed Johnson that there was no light duty available at
that time so Johnson remained at home on paid leave. Once
Johnson returned to work, Johnson was ordered by her physician
to wear a certain kind of shoe that did not comply with the
City's dress code. The City required Johnson to wear black
shoes, but her physician-prescribed shoes were white.
3
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Washington informed Johnson that her physician-prescribed
shoes were not in compliance with the City's dress code but
allowed Johnson to wear the white physician-prescribed shoes
until her toe had completely healed. Johnson's trial
testimony states, in pertinent part:
"Q. So you continued to wear the white shoes at
work?
"[Johnson:] That's correct.
"Q. Until you healed?
"[Johnson:] That's correct, with a doctor's
excuse.
"Q. And Terrell Washington let you do that,
right?
"[Johnson:] With a doctor's excuse. But he, you
know, gave me the letter. He gave me a letter
indicating that I needed to change my shoes. And I
gave him the doctor excuse, and I aksed (phonetic)
him can I wear my shoes. I said, Terrell, just gave
a doctor excuse.
"Can I still please wear my shoes with the
doctor -- I just gave you a doctor excuse indicating
why I can't wear the black ones. But I went out
myself and purchased some new shoes.
"Q. Which you didn't wear until you healed?
"[Johnson:] That's correct. Doctor's orders.
"Q. Which Mr. Washington followed?
"[Johnson:] Yes, sir."
4
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On May 14, 2010, Washington sent Johnson a "Letter of
reprimand" for violating certain of the MCPB's rules and
policies. Washington detailed the basis for his reprimand of
Johnson as follows:
"It
appears
that
you,
(Barbara
Johnson,
employee
#7366) assigned to Environmental Services Division,
are in violation of Rule 3.2: Reports of Absence,
Rule 14.2 (c) conduct unbecoming an employee in
public service and (j) neglect of duty.
"On April 9, 2010, I (Terrell Washington) was
called by cell phone from you (Barbara Johnson). I
was informed that you would not be in for the day
and you may not be in the next week. You were not
sure, but you would let me know.
"From April 12, 2010, until April 16, 2010, I
did not receive a call or paper work from you that
you were going to be absent for the week.
"Further, investigation revealed that you had
taken a doctor's clearance to the payroll department
on April 8, 2010.
"On April 20, 2010, at 3:15pm, a meeting was
held in my office, present at that meeting were you
(Barbara Johnson), Kathleen Padgett and myself
(Terrell Washington). When asked about the rules
for being off work for sick leave and where the
paper work is to go, you explained that it would go
under my office door or in my box on the 3rd floor.
Also, when asked why this was not done, you said
that you had put it in the mail for me at the
payroll department. When I checked with payroll
there was no mail there with my name on it. As of
May 13, 2010, I have not received a doctor's
clearance from you (Barbara Johnson).
5
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"After careful consideration of the information
and the testimony offered, I conclude that you are
in violation of the rules and polices of the Mobile
Personnel Board as specified. Future infractions
could result in more severe disciplinary action."
Johnson subsequently received an unsatisfactory-annual-
performance rating from Washington for the period ending June
8, 2010. Thereafter, Johnson employed the MCPB's appellate
process for review of her unsatisfactory-performance rating.
Ultimately, the MCPB affirmed Johnson's unsatisfactory-
performance rating. In its order affirming Johnson's
unsatisfactory-performance rating, the MCPB set forth the
following reasons given by Washington as to why he gave her an
unsatisfactory-performance rating:
"Terrell Washington ... testified that he had
given Ms. Johnson an unsatisfactory rating ... due
to her 'constant' problems with her job performance
and attitude problems. Washington ... noted that Ms.
Johnson's performance failed to meet minimum job
standards. Within this annual service rating report,
Ms. Johnson 'failed to do routine work, even when
instructed.' ...
"....
"Washington testified that he had problems with
Johnson's overall performance in carrying out
assignments and getting along with other employees.
... Washington testified there had been citizen
complaints about her attitude when giving violations
...."
6
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Johnson appealed the MCPB's decision to the circuit court,
which, on August 13, 2012, ordered the City to change
Johnson's unsatisfactory-performance rating to "no lower than
'satisfactory'" "[b]ecause the [MCPB] did not enforce its own
rules."
An
"employee-counseling
record"
concerning
Johnson
indicates that, on December 22, 2011, which was during the
aforementioned appeal process, Johnson's supervisor counseled
Johnson about her job performance. The employee-counseling
record indicates that Johnson's "monthly total number" had
been low and instructed her to "let the supervisor know" if
she got behind in her work so that help could be given to her.
On August 14, 2010, Johnson filed a complaint with the
EEOC alleging:
"I am an individual with a disability. I filed
a previous charge against my employer back in 2005,
because I was being paid less wages than a White,
male, who was performing the same work that I was
performing. That charge was based on my Race, Sex,
and the Equal Pay Act. Since filing the charge with
the EEOC, my supervisor, Terrell Washington, is
subjecting me to retaliation which includes but is
not limited too [sic], having my work scrutinized
more closely than other employees; I am called into
meetings very frequently and as of June 9, 2010, I
have been given an unsatisfactory service rating.
Since filing the first charge I have developed a
disability[] and I am being harassed by having
7
1140433
Terrell Washington, violate my privacy rights by
calling
my
doctor's
office
to
get
medical
information[ ] after I have presented doctor's
1
excuses and being written up for having to take
leave that is related to my disability, I am
harassed over the dress code and have been denied a
reasonable accommodation that I requested because of
my disability.
"No reason has been given to me for the
disparate treatment that I am receiving.
"I
believe
I
am
being
retaliated
against
because
I filed a previous charge which violates section
704(a) of Title VII of the Civil Rights Act, of
1964, as amended and in violation of The Americans
With Disabilities Act of 1990, as amended."2
On March 28, 2012, the EEOC issued the following "Letter
of Determination" concerning the complaint Johnson filed
against the City on August 14, 2010:
"Evidence reveals that [Johnson] filed several
EEOC charges against the [City] and that the
temporal proximity of filing the previous charges
Although the parties do not explain this particular
1
incident, it appears that Washington contacted Johnson's
doctor in order to verify the reasons Johnson offered for
being absent from work.
We note that, before filing the EEOC complaint, Johnson
2
had filed a lawsuit against the City in the United States
District Court for the Southern District of Alabama alleging
claims of race and gender discrimination and
retaliation
under
Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983. On April
29, 2011, the district court granted a motion filed by Johnson
to voluntarily dismiss all of her claims against the City; all
of Johnson's claims except for her retaliation claim under
Title VII were dismissed with prejudice.
8
1140433
and [the City's] actions support that [Johnson] was
retaliated against as alleged. Evidence reveals that
[Johnson] was disciplined more severely than her
similarly situated co-workers who had not filed EEOC
charges. Based on this, there is reasonable cause
to
believe
that
[Johnson]
was
subjected
to
retaliation for participating in the EEOC process
and for protesting practices made unlawful by Title
VII of the Civil Rights Act of 1964, as amended."
The EEOC recommended that the parties participate
in
"informal
methods of conciliation." The EEOC then monitored any
attempts at conciliation made by Johnson and the City.
Johnson testified at trial about the following event that
occurred on April 5, 2012:
"Uh, one incident, when I filed a complaint, April
the 5th, 2012, against Mr. Washington, 'cause I had
put in a complaint, um, he approached my desk. I was
sitting at my desk, and he came in and threatened me
and say, 'I heard you've been filing complaints
against me and that you' -- went over to the file
cabinet. There's a piece of paper up there. He
balled up the paper, and he came toward me and told
me I better not file any more complaints against
him. And I was real afraid of Mr. Washington at that
time 'cause he's about 6'5", whatever, 6'2", 6'3",
something like that, and the way he was looking in
his eyes, it really scared me, and I ran out of the
office. I was scared of him."
Johnson went to the Mobile Police Department ("the police
department") right after
the
incident with Washington in order
to report the encounter and, for reasons not apparent in the
record, was taken by ambulance from the police department to
9
1140433
the hospital; she also reported the incident to the City's
human resources department. Johnson revisited the police
department one week later to again report the above-described
incident. While at the police department, Johnson began to
hyperventilate and was again taken by ambulance to the
hospital but was released that same day.
The trial testimony of Johnson's former supervisor, Ray
Richardson, indicates that Washington seemed stricter toward
Johnson than other City employees under his supervision and
that Johnson and Washington had a "hostile" and "adversarial"
relationship. Richardson's trial testimony also indicates
that Richardson had had limited observation of Washington and
Johnson since 2010.
Johnson's deposition testimony indicates that in 2012 she
had an opportunity to transfer to the police department and
receive the same pay she was receiving at her position in the
City's Department of Environmental Services. Even though the
pay would have been the same, Johnson's deposition testimony
indicates that she would have had to walk to perform her
potential job duties with the police department and that she
"couldn't do it at the time." Johnson stated that she was
10
1140433
willing to transfer back to the City's Urban Development and
Public Services Department and work for her
former
supervisor,
Richardson, but no job openings existed in that department at
that time.
Johnson's trial testimony indicates that the City
maintained her compensation and employment throughout all of
her legal actions against the City:
"Q. And after you filed your six lawsuits, the
City continued to employ you, right?
"[Johnson:] Yes, sir.
"Q. And after you filed your EEOC claims, the
City continued to employ you, right?
"[Johnson:] Yes, sir.
"Q. You've never been demoted, have you?
"[Johnson:] No, sir."
On March 8, 2013, the United States Department of Justice
("the DOJ") sent a letter to Johnson concerning the complaint
she filed with the EEOC on August 14, 2010, against the City
notifying Johnson that "conciliation in this matter was
unsuccessful by the EEOC." The DOJ also informed Johnson that
the DOJ would not file suit against the City but that Johnson
had the right to do so within 90 days. On June 4, 2013,
11
1140433
within the 90-day period, Johnson filed the present
retaliation lawsuit against the City in the circuit court.
In her complaint, Johnson alleged that the City
retaliated against her for "EEOC activity and statutory
expression" under Title VII and the ADA. Johnson alleged that
the
City's
retaliation
against
her
included
subjecting
Johnson
to intentional mental abuse, threatening behavior, increased
scrutiny,
and
harsher
working
conditions
than
other
employees,
disciplining Johnson for wearing special physician-prescribed
shoes and taking leave for a toe injury, and deceptively
attempting to obtain protected medical information. Johnson
sought compensatory and punitive damages. On August 14, 2013,
the City moved to dismiss Johnson's complaint by alleging that
Johnson's claims were time-barred by "the statute of
limitations for § 1981 and § 1983 actions," which, the City
alleged, is two years. Johnson responded and, on August 23,
2013, the circuit court denied the City's motion to dismiss.
Consequently, on September 19, 2013, the City filed an answer
to Johnson's complaint.
On January 15, 2014, attorneys Ricardo Woods, Kristin
Parsons, and Gillian Egan of the law firm Burr & Forman LLP
12
1140433
each filed a notice of appearance on behalf of the City. On
January 16, 2014, Alicia Corley and Andrew Rutins, the City's
original attorneys in this case, each filed motions to
withdraw from representing the City, which the circuit court
granted on January 20, 2014. Two additional Burr & Forman
attorneys also appeared on the City's behalf during this case:
Atoyia Scott filed a notice of appearance on behalf of the
City on February 25, 2015, and Kasee Heisterhagen filed a
notice of appearance on behalf of the City on March 26, 2014.
On April 24, 2014, the City moved to strike Johnson's
punitive-damages
claim,
arguing
that
municipalities
are
immune
from such claims as a matter of law. The circuit court
granted the City's motion on April 29, 2014.
On June 19, 2014, pursuant to Rule 68, Ala. R. Civ. P.,
the City offered judgment to be entered against it in the
amount of $3,000; Johnson's acceptance of the offer of
judgment would "act as a release of all claims, whether known
or unknown, which [Johnson] may have against the City."
Johnson did not accept the City's offer of judgment.
On September 12, 2014, the City filed a motion for a
summary judgment arguing that "Johnson does not have a
13
1140433
disability under the definition set forth in the [ADA];
therefore her ADA claim fails as matter of law. Further, she
cannot present a prima facie case for retaliation under either
Title VII or the ADA." The City argued that Johnson failed
3
to present substantial evidence to prove her prima facie case
of retaliation. Johnson replied to the City's summary-
judgment motion, arguing that she had, in fact, presented
substantial evidence of her retaliation claim. The City filed
a reply to Johnson's response asserting that Johnson had
failed to meet her summary-judgment burden of providing
substantial evidence in support of her claims.
On September 29, 2014, the City filed a motion in limine
seeking to exclude evidence "offered by [Johnson] or her
counsel regarding claims by other parties against the City,"
Johnson's medical care, and reference to the parties'
comparative wealth; the parties agreed to the motion in limine
barring this evidence.
The bench trial was held on October 2, 2014. During the
bench trial, the City filed a motion for a judgment as a
We note that the City's summary-judgment motion was
3
docketed on September 15, 2014, and was set to be heard at an
October 2, 2014, hearing. The circuit court also set the
matter for a bench trial to occur on the same day.
14
1140433
matter of law ("JML") at the close of Johnson's case, which
the circuit court denied. The City renewed its motion for a
JML at the close of the City's case, and the circuit court
again denied it. Subsequently, the circuit court allowed
Johnson to present rebuttal testimony, and, upon the
conclusion of Johnson's rebuttal testimony, the City again
renewed its motion for a JML:
"[The circuit court:] [Johnson has] rested.
Okay.
"[The City's trial counsel:] Your Honor, we
renew our judgment as a matter of law.
"[The circuit court:] Well, I can rule now. I
can rule based on all the evidence, and I am ruling
based on all the evidence, I'm ruling judgment in
favor of the City on all claims and case over.
Thank y'all."
On October 2, 2014, at 12:01 p.m., after the bench trial
had occurred, the circuit court issued the following order
concerning
the
City's
summary-judgment
motion:
"Unfortunately,
the court DENIED the Motion for Summary Judgment filed by the
City of Mobile." It appears from the past-tense wording of
the circuit court's judgment that the circuit court had denied
the City's summary-judgment motion at some time before 12:01
p.m. on October 2, 2014. However, the case-action summary
15
1140433
does not indicate that the circuit court had entered an order
on the City's summary-judgment motion prior to this. Nor does
the reporter's transcript indicate that the circuit court
denied the City's summary-judgment from the bench prior to the
commencement of the bench trial.
Also on October 2, 2014, the circuit court, following the
bench trial, entered the following judgment on Johnson's
claims against the City: "Upon consideration of the testimony
and evidence submitted by the parties during the trial of this
matter on October 2, 2014, the court enters judgment in favor
of [the City] and against [Johnson]. Costs are taxed against
[Johnson]."
On October 15, 2014, the City filed a motion seeking
$3,391.80 in court costs. The City argued that because the
circuit court ordered that costs should be taxed against
Johnson and because, "in order to avoid the unnecessary costs
involved in defending this frivolous action," the City had
"submitted an Offer of Judgment to [Johnson] on June 19,
2014," the following "costs and fees [were] reasonable and
appropriate, and were incurred with regard to [defending the
case]":
16
1140433
"a. Copies
$ 437.90
"b. Johnson Deposition -- video
$ 566.75
"c. Johnson Deposition -- transcript $ 1,237.03
"d. Mediation (50% share)
$ 440.73
"e. Courier Service
$ 42.90
"f. Medical Records
$ 535.17
"g. Postage
$ 11.32
"h. Subpoena and Summons
$ 120.00
"Total:
$ 3,391.80"
Also on October 15, 2014, the City filed a motion seeking
$116,892.50 in attorney fees. The City argued that a
prevailing defendant is entitled to attorney fees under Title
VII and the ADA if the plaintiff's claims were frivolous,
unreasonable, or groundless. The City argued that "Johnson's
claims would be considered 'frivolous' because she failed to
present any evidence that would establish a prima facie case
of retaliation." The City argued that Johnson "failed to
present any evidence that she suffered any materially adverse
employment action or that there was any causal relationship
between such adverse action and a protected activity," which
the City argued are "two of the three elements of a prima
17
1140433
facie case for retaliation." The City argued that, "in order
to avoid the unnecessary costs involved in defending this
frivolous action," the City "submitted an Offer of Judgment to
[Johnson] on June 19, 2014," and "made an unsuccessful attempt
at mediating this case with [Johnson] in May 2014." The City
stated that its trial counsel performed the following work
while defending the City:
"Burr and Forman lawyers and paraprofessionals spent
a total of 593.30 hours in efforts to defend the
City of Mobile from Johnson's frivolous claims,
including but not limited to: preparation of
responsive pleadings; conducting written discovery;
review
of
human
resources
materials
and
documentation provided by [Johnson] in response to
discovery requests; working with the EEOC to provide
necessary information (where required); preparing
for
and
conducting
[Johnson's]
deposition;
participation
in
a
failed
mediation
attempt;
drafting and arguing a motion for summary judgment;
and ultimately preparing this case for trial on the
merits."
The City further stated:
"The primary professionals that performed
services for [the City] on this matter are as
follows:
"Kristin T. Parsons was a partner in Burr &
Forman's Labor and Employment practice group during
the pendency of this case. She has over a decade of
experience in litigating employment matters such as
retaliation cases. She supervised this matter,
advised the professionals involved, and participated
18
1140433
in mediation. Ms. Parsons has since become
Associate General Counsel for Austal, USA.
"Ricardo A. Woods is a partner with Burr &
Forman and is the City Attorney for Mobile. He has
ten years of litigation experience and has tried
numerous jury and bench trials over the course of
his career. Mr. Woods directed litigation of this
matter and served as the primary counsel for trial.
"Kasee Heisterhagen is an associate at Burr &
Forman
with
over
three
years
of
litigation
experience and two years of federal law clerk
experience. She primarily assisted in drafting
pleadings and motions and in conducting discovery,
including deposing [Johnson]. She also participated
in trial of this matter by preparing the City's case
in chief.
"Atoyia Scott is an associate at Burr & Forman
with two years of litigation experience. She
primarily assisted in document review in discovery,
witness preparation, and preparation of pleadings.
"Patti Grove is a senior paralegal at Burr &
Forman in the Labor and Employment group. She
assisted with all aspects of the litigation with
heavy focus on document management in discovery and
in trial preparation."
Woods submitted an affidavit "based on [his] own personal
knowledge" in support of the City's motion for attorney fees.
Woods stated that "[a]s of October 3, 2014," the City had
"incurred
$116,892.50
in
attorneys'
fees
in
defending"
against
Johnson's case and that "[b]ased upon [his] years of legal
practice and knowledge of the legal community, the fees
19
1140433
charged by [Burr & Forman] are customary and typical of those
charged by others in the legal community." Woods stated that
a "reasonable amount of time was expended by the [City's]
counsel to defend this action" and that "[c]ounsel and
paralegals for the [City] expended 593.30 hours in defense of
this matter."
The City's motion for attorney fees was filed at 12:00
p.m. and Johnson's three attorneys of record were served with
the City's itemized court costs and attorney-fee requests.
Also on October 15, 2014, at 2:07 p.m., the parties were
informed that a hearing on the City's request for court costs
and attorney fees was set for October 31, 2014. That same
day, at 2:36 p.m., one of Johnson's attorneys, James Harred,
moved to withdraw his representation of Johnson on the basis
that Johnson had fired Harred on or about October 6, 2014; the
circuit court granted Harred's motion on October 16, 2014. On
October 17, 2014, Johnson's remaining attorneys, Terrell
McCants and Jeffrey Bennitt, also moved to withdraw from
representing Johnson on the basis that Johnson had fired them
on or about October 6, 2014. On October 21, 2014, the circuit
20
1140433
court granted McCants's and Bennitt's motions to withdraw;
Johnson was without legal representation at this point.
On October 31, 2014, the parties were informed that the
hearing on the City's requests for court costs and attorney
fees had been moved to November 21, 2014. Later on the same
day, Johnson filed a pro se motion for a new trial pursuant to
Rule 59(a), Ala. R. Civ. P., arguing that she presented
sufficient evidence to support her claim, that there was an
"irregularity
of
the
proceedings"
concerning
certain
witnesses
Johnson subpoenaed, that the circuit court did not enforce the
motion in limine mentioned above, and that the City failed to
rebut the evidence Johnson presented. The City filed a
response to Johnson's postjudgment motion on November
7,
2014.
The circuit court notified the parties that arguments on
Johnson's pro se postjudgment motion and the City's motions
for court costs and attorney fees would be heard on November
21, 2014. According to Johnson's appellate brief, on November
18, 2014, Johnson moved for a continuance of the hearing on
the City's requests for court costs and attorney fees and
Johnson's motion for a new trial; the circuit court denied
Johnson's motion for a continuance.
21
1140433
On November 21, 2014, the circuit court denied Johnson's
motion for a new trial. That same day, the circuit court
entered the following order, granting, in part, the City's
motion for court costs:
"The [City's] Motion to Tax Costs is GRANTED IN
PART. The cost of the videotape of [Johnson's]
deposition is denied, and the mediation cost is
denied. The rest of the costs sought are proper and
taxable.
"Therefore, [the circuit court] ordered that
costs in the amount of $2,384.32 are taxed against
... Johnson."
(Capitalization in original.) Later that day, the circuit
court also entered the following order granting the City's
motion for attorney fees:
"This matter comes before the court on a Motion
and Application for Attorney Fees filed by the
[City]. The City prevailed in this case after a
bench trial, and the City seeks to shift its
attorney fees to [Johnson], on the basis that
Johnson's claims were 'frivolous, unreasonable or
groundless.' The court agrees that Johnson's claims
were frivolous, unreasonable or groundless. The
court denied the City's motion for summary judgment,
primarily because it was filed within three weeks of
trial, and the court denied the City's motions for
judgment as a matter of law in order to give Johnson
a full opportunity to be heard on the trial date.
It was clear very early in the trial that Johnson's
claims were baseless. Although the court is loathe
to shift attorney fees to a losing plaintiff, the
facts in this case justify such shifting based on
the authority cited by the City. The City submitted
22
1140433
proof that its reasonable attorney fees for
defending this case equaled $116,892.50.
"Accordingly,
the
court
enters
JUDGMENT
in
favor
of the [City] and against [Johnson] in the amount of
$116,892.50."
(Capitalization in original.)
On December 20, 2014, Johnson's new attorney, Carroll
Ogden, filed a notice of appearance and a motion to reconsider
the award of attorney fees, which the circuit court denied on
January 14, 2015. Johnson appealed.
II. Discussion
A. Johnson's Retaliation Claims
We will first consider Johnson's arguments concerning the
circuit court's judgment on the merits of her retaliation
claims under Title VII and the ADA against the City.
4
Johnson's argument is difficult to discern. It appears that
We note that Johnson also appears to argue that she was
4
discriminated against based on her gender. However, Johnson
did not assert a gender-discrimination claim in the circuit
court, only retaliation claims under Title VII and the ADA.
Therefore, any gender-discrimination arguments asserted by
Johnson are not properly before this Court and will not be
considered. See Beavers v. County of Walker, 645 So. 2d 1365,
1372 (Ala. 1994) ("[I]t is a well-settled rule that an
appellate court's review is limited to only those issues that
were raised before the trial court. Andrews v. Merritt Oil
Co., 612 So. 2d 409 (Ala. 1992) .... Issues raised for the
first time on appeal cannot be considered. Andrews, supra
....").
23
1140433
Johnson essentially disagrees with the circuit court's ruling
that she failed to present sufficient evidence to support her
claims. In support of her argument, Johnson directs this
Court's attention to several facts and concludes that
consideration of those facts demonstrates "that the [circuit]
court was clearly erroneous when it ruled for the City."
Johnson's brief, at p. 36. Johnson argues that she presented
prime facie evidence in support of her claims and that "[a]
search of the record and trial transcript does not reveal
where [the] City controverted the retaliation and harassment
experienced by ... Johnson." Id. The City argues that the
circuit court properly held that Johnson failed to present
sufficient evidence in support of her claims.
Because the evidence in this case was presented ore
tenus, our standard of review for this issue is as follows:
"'"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.'"' Water
Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.
2d 429, 433 (Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
24
1140433
judgment."' Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 2d 77,
79 (Ala. 1985)). 'Additionally, the ore tenus rule
does not extend to cloak with a presumption of
correctness a trial judge's conclusions of law or
the incorrect application of law to the facts.'
Waltman v. Rowell, 913 So. 2d at 1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf Club,
Inc., 985 So. 2d 924, 929 (Ala. 2007).
Initially, we note that Johnson appears to argue that the
EEOC's letter of determination is dispositive of this case.
Johnson states that "[t]he EEOC found [the] City and its
agents retaliated against [Johnson]." Johnson's brief, at p.
33. Johnson appears to argue that, based on the EEOC's letter
of determination, the circuit court must have exceeded its
discretion in ruling in favor of the City. However, Johnson
has provided this Court with no authority indicating that the
conclusion reached in the EEOC's letter of determination is
binding on the circuit court. In fact, we have found caselaw
contrary to Johnson's position. The United States Court of
Appeals for the Eleventh Circuit stated the following in Moore
v. Devine, 767 F.2d 1541, 1551 (11th Cir. 1985), modified on
other grounds, 780 F.2d 1559 (11th Cir. 1986):
"If, as the Blizard [v. Fielding, 572 F.2d 13
(1st Cir. 1978),] court points out, a court is not
25
1140433
obliged to refer to EEOC findings in its opinion, it
certainly is not required to address EEOC findings.
This reasoning is consistent with Smith v. Universal
Services, Inc., 454 F.2d 154 (5th Cir. 1972) in
which the court stated:
"'It is not to be denied that under
Title VII, the action of the EEOC is not
agency action of a quasi-judicial nature
which determines the rights of the parties
subject only to the possibility that the
reviewing courts might conclude that the
EEOC's
actions
are
arbitrary,
capricious
or
an abuse of discretion. Instead, the civil
litigation at the district court level
clearly takes on the character of a trial
de novo, completely separate from the
actions of the EEOC. It is thus clear that
the report is in no sense binding on the
district court and is to be given no more
weight than any other testimony given at
trial.'
"Id. at 157 (emphasis added) (citations omitted).
The Fifth Circuit recently cited Smith when it
concluded that 'EEOC determinations and findings of
fact, although not binding on the trier of fact, are
admissible as evidence in civil proceedings as
probative of a claim of employment discrimination
....' McClure v. Mexia Independent School District,
750 F.2d 396, 400 (5th Cir. 1985)."
Johnson's argument is not supported with any legal authority
and is not persuasive.
We now consider the merits of Johnson's arguments that
the City retaliated against her in violation of Title VII and
26
1140433
the ADA. The Eleventh Circuit has set forth the applicable
law, as follows:
"To establish a prima facie case of retaliation
under 42 U.S.C. § 2000e–3(a), a plaintiff must show
1
'that (1)[he] engaged in ... statutorily protected
expression; (2)[he] suffered an adverse employment
action; and (3) there is a causal [connection]
between the two events.[ ]' Johnson v. Booker T.
5
Washington Broad. Serv., Inc., 234 F.3d 501, 507
(11th Cir. 2000). If 'a plaintiff makes out a prima
facie case of retaliation, the burden shifts to the
defendant' to produce 'legitimate reasons for the
adverse employment action.' Id. at 507 n. 6
(internal quotation marks omitted). If the defendant
does so, the plaintiff must show that the reasons
the defendant gave were pretextual. Id.
"____________________
" Title VII makes it unlawful for employers 'to
1
discriminate
against
...
[an]
employee[]
or
applicant[] for employment ... because he has
opposed any practice made an unlawful employment
Concerning the third prong of the above test, the
5
Eleventh Circuit has stated:
"'To establish a causal connection, a plaintiff must
show that the decision-makers were aware of the
protected conduct, and that the protected activity
and the adverse actions were not wholly unrelated.'
Gupta[ v. Florida Bd. of Regents], 212 F.3d [571,]
590 [(11th Cir. 2000)]. 'Close temporal proximity
between the protected activity and the adverse
action may be sufficient to show that the two were
not wholly unrelated.' Bass[ v. Board of Cnty.
Comm'rs], 256 F.3d [1095,] 1119 [(11th Cir. 2001)]."
Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716-17
(11th Cir. 2002).
27
1140433
practice by this subchapter, or because he has made
a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or
hearing under this subchapter.' 42 U.S.C. §
2000e–3(a)."
Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 715 (11th
Cir. 2002).
It is undisputed that Johnson was engaged in a
statutorily protected activity. See Saffold v. Special
Counsel, Inc., 147 Fed. App'x 949, 951 (11th Cir. 2005)(not
selected for publication in the Federal Reporter)("Title VII
protects individuals who have filed formal EEOC complaints
and
individuals who have filed informal complaints internally to
their supervisors. Shannon v. BellSouth Telecomms., Inc., 292
F.3d 712, 716 n. 2 (11th Cir. 2002).").
Johnson's arguments appear to focus on the second prong
of the above test; she appears to argue that the City
committed adverse employment actions against her. The
Eleventh Circuit has set forth the following concerning what
constitutes an adverse employment action:
"We have stated that 'not all conduct by an
employer
negatively
affecting
an
employee
constitutes adverse employment action.' Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th
Cir. 2001), and that to prove an adverse employment
action 'an employee must show a serious and material
28
1140433
change in the terms, conditions, or privileges of
employment.'
Id.
'Moreover,
the
employee's
subjective view of the significance and adversity of
the employer's action is not controlling; the
employment action must be materially adverse as
viewed by a reasonable person in the circumstances.'
Id. at 1239."
Wallace v. Georgia Dep't of Transp., 212 Fed. App'x 799, 801
(11th Cir. 2006)(not selected for publication in the Federal
Reporter). Similarly, the Supreme Court of the United States
stated that an adverse employment action is usually "a
significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different
responsibilities,
or
a
decision
causing
a
significant change in benefits." Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998).
Johnson does set forth numerous facts in this section of
her brief, but she does not provide any analysis as to whether
those facts constitute an adverse employment action. Other
than general caselaw setting forth the applicable standard,
Johnson does not provide this Court with any caselaw
supporting her arguments that the particular actions taken by
the City in this case constitute adverse employment actions.
29
1140433
We will attempt to make some sense of Johnson's brief and give
a brief analysis of her unsupported arguments.
First,
Johnson
mentions
her
2010
unsatisfactory-
performance rating. We assume that Johnson is arguing that
her unsatisfactory-performance rating constituted an adverse
employment action. Johnson states that the unsatisfactory-
performance rating "would prevent [her] from receiving merit
raises and factor into denying her promotional opportunities
...." Johnson's brief, at p. 33. Johnson does not argue that
the
unsatisfactory-performance
rating
actually
did
prevent
her
from receiving a raise or a promotion. In fact, Johnson has
not directed this Court's attention to anything in the record
indicating that Johnson was denied a raise or a promotion
based on the unsatisfactory-performance rating. The City
notes
this
in
its
brief
and
argues
that
Johnson's
unsatisfactory-performance rating did not constitute an
adverse employment action, in part, because it did not cause
Johnson to lose "any economic benefits." The City's brief, at
p. 15-16. Furthermore, Johnson's unsatisfactory-performance
rating was later changed to satisfactory, thereby eliminating
30
1140433
any potential harm. Accordingly, Johnson has failed to
demonstrate that she suffered an adverse employment action.
Moreover,
Johnson
has
not
alleged
that
the
unsatisfactory-performance rating, which was subsequently
changed to satisfactory, was causally connected to her filing
of the EEOC complaint. Further, the City has provided
legitimate, nonretaliatory reasons for Johnson's initial
unsatisfactory
rating:
Johnson's
failure
to
follow
instructions, her inability to get along with other City
employees, citizen complaints about Johnson, and poor work
performance. Johnson provides no convincing
argument
that the
City's nonretaliatory reasons were pretextual. Therefore,
Johnson has not demonstrated that the circuit
court's
judgment
is palpably erroneous or manifestly unjust in this regard.
Johnson next appears to argue that the City's alleged
failure to accommodate her toe injury was an adverse
employment
action.
However,
Johnson
has
failed
to
6
An ADA retaliation claim is analyzed under the same
6
framework used to analyze a Title VII retaliation claim:
"The ADA also provides that 'no person shall
discriminate against any individual because such
individual has opposed any act or practice made
unlawful by [the ADA] or because such individual
made a charge ... under [the ADA].' 42 U.S.C. §
31
1140433
demonstrate how the City refused to accommodate her toe
injury. In fact, as set forth above, Johnson was permitted to
wear her physician-prescribed shoes, even though they were
against the City's dress code for employees, until her toe
fully healed. Accordingly, the facts do not support Johnson's
allegation that she was subject to an adverse employment
action in this regard. Moreover, the City also provided a
legitimate,
nonretaliatory
reason
by
explaining
that
Washington was initially reluctant to allow Johnson to wear
the physician-prescribed shoes because they violated the
City's dress code; Johnson has not demonstrated that the
City's reason is pretextual. Therefore, Johnson has failed to
12203(a). This provision creates a prohibition on
retaliation under the ADA that is similar to Title
VII's prohibition on retaliation. Accordingly, we
assess ADA retaliation claims under the same
framework we employ for retaliation claims arising
under Title VII. McNely v. Ocala Star–Banner Corp.,
99 F.3d 1068, 1075–77 (11th Cir. 1996) (relying on
Title VII jurisprudence to interpret meaning of ADA
provisions in a retaliation case), cert. denied, 520
U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d 1028
(1997)."
Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d
1278, 1287 (11th Cir. 1997). Accordingly, we will use the
same framework to analyze Johnson's ADA retaliation claim as
used to analyze Johnson's Title VII retaliation claim.
32
1140433
demonstrate that the circuit court's judgment is palpably
erroneous or manifestly unjust in this regard.
Johnson also appears to argue that Washington's attempt
to contact her doctor's office in order to confirm Johnson's
offered reasons for being absent from work was an adverse
employment action. We note that Johnson does not indicate
whether she believes that Washington's actions were done in
retaliation for her filing her EEOC complaint or for her
alleged disability. We would assume that Johnson is alleging
that Washington's contacting her doctor's office was in
retaliation for her alleged disability. Johnson has not
offered any explanation as to why she believes Washington's
actions amounted to an adverse employment action.
Regardless,
even if Washington's actions were considered to be an adverse
employment action that was causally connected to Johnson's
disability,
a
legitimate,
nonretaliatory
reason
for
contacting
Johnson's doctor appears in the record: Washington sought to
verify Johnson's reason for being absent from work for a week.
Johnson did not present any evidence demonstrating that the
City's reason was a pretext for discrimination. Therefore,
Johnson has failed to demonstrate that the circuit court's
33
1140433
judgment is palpably erroneous or manifestly unjust in this
regard.
Inexplicably, Johnson does not argue that Washington's
directive to Johnson to stop filing EEOC complaints against
him constituted an adverse employment action. The only
reference Johnson makes to this event in the argument section
of her brief before this Court is to say that the circuit
court "heard testimony where it was clear that ... Johnson was
in fear of Washington ...." Johnson's brief, at p. 39. The
only reason we know Johnson's above vague sentence is a
reference to Washington's directive to her to stop filing EEOC
complaints is the citation to the portion of the reporter's
transcript containing Johnson's trial testimony about the
incident. Johnson does not make any argument, however, that
Washington's
actions
constituted
an
adverse
employment
action,
and we cannot raise that argument for her. See Ex parte AIG
Baker Orange Beach Wharf, L.L.C., 12 So. 3d 1204, 1208-09
(Ala. 2009) ("'"'[W]e cannot create legal arguments for a
party based on undelineated general propositions unsupported
by authority or argument.'"' Horn v. Fadal Machining Ctrs.,
LLC, 972 So. 2d 63, 80 (Ala. 2007) (quoting University of
34
1140433
South Alabama v. Progressive Ins. Co., 904 So. 2d 1242,
1247–48 (Ala. 2004), quoting in turn Spradlin v. Spradlin, 601
So. 2d 76, 79 (Ala. 1992)).").
In summary, Johnson has failed to demonstrate that the
circuit court's judgment in favor of the City on the merits of
Johnson's retaliation claims against the City is palpably
erroneous or manifestly unjust. Although the evidence
indicates that Johnson and Washington had a contentious work
relationship, Johnson has not made any convincing argument
that the City took an adverse employment action against her.
Johnson has not presented any evidence indicating that she was
denied pay raises or promotions. In fact, Johnson has been
paid throughout all times relevant to this case and even
offered a lateral job transfer from Washington's supervision.
Accordingly, we affirm the circuit court's judgment in favor
of the City on Johnson's retaliation claims.
B. Denial of Johnson's Motion for a Continuance and Her
Postjudgment Motion
As set forth above, the City filed a motion for attorney
fees, which was set for a hearing. Subsequently, Johnson
filed a pro se motion for a new trial, which was set to be
35
1140433
heard at the same hearing the City's motion for attorney fees
was to be heard. Johnson filed a motion for a continuance of
the hearing on the City's requests for court costs and
attorney fees and her motion for a new trial; the circuit
court denied Johnson's motion, and it subsequently denied her
motion for a new trial. Johnson argues that the circuit court
exceeded its discretion by denying her motion for a
continuance. Johnson also argues that the circuit court
exceeded its discretion in denying her motion for a new trial.
Johnson's arguments for both motions fail for the same
reason. Other than a general citation to Rule 59(a), Ala. R.
App. P., Johnson has failed to support her assertions that the
circuit court exceeded its discretion in denying her
postjudgment motions with any legal authority. In Jimmy Day
Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9 (Ala.
2007), this Court stated:
"Rule 28(a)(10), Ala. R. App. P., requires that
arguments in an appellant's brief contain 'citations
to the cases, statutes, other authorities, and parts
of the record relied on.' Further, 'it is well
settled
that
a
failure
to
comply
with
the
requirements of Rule 28(a)(10) requiring citation of
authority in support of the arguments presented
provides this Court with a basis for disregarding
those arguments.' State Farm Mut. Auto. Ins. Co. v.
Motley, 909 So. 2d 806, 822 (Ala. 2005)(citing Ex
36
1140433
parte Showers, 812 So. 2d 277, 281 (Ala. 2001)).
This is so, because '"it is not the function of this
Court to do a party's legal research or to make and
address legal arguments for a party based on
undelineated general propositions not supported by
sufficient authority or argument."' Butler v. Town
of Argo, 871 So. 2d 1, 20 (Ala. 2003)(quoting Dykes
v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.
1994))."
Therefore, we will not consider Johnson's arguments set forth
above.
C. Attorney Fees
Johnson raises several arguments concerning the circuit
court's award of attorney fees. First, Johnson argues that
she was not properly served notice of the City's motion
seeking attorney fees. Johnson cites no authority in support
of her argument; thus, we need not consider it. See Rule
28(a)(10), Ala. R. App. P., and Jimmy Day, supra.
Moreover, even if we were to consider the merits of
Johnson's argument, it is not persuasive. As set forth above,
the City filed its motion for attorney fees on October 15,
2014, at 12:00 p.m.; the circuit court set the motion for a
hearing to be held on October 31, 2014. It was not until 2:36
p.m. on the same day, October 15, 2014, that Harred, one of
Johnson's three attorneys, filed a motion to withdraw as
37
1140433
Johnson's counsel; the circuit court did not grant Harred's
motion to withdraw until October 17, 2014. Also on October
17, 2014, McCants and Bennitt, Johnson's remaining attorneys,
filed motions to withdraw as Johnson's counsel; the circuit
court granted McCants's and Bennitt's motions to withdraw as
counsel on October 21, 2014. The attorneys' motions to
withdraw each indicated that Johnson had fired them. The
circuit court later moved the scheduled October 31, 2014,
hearing to November 21, 2014.
At the time the City filed its motion for attorney fees,
Johnson was represented by three attorneys. As the City notes
in its brief, under Rule 5(b), Ala. R. Civ. P., the City was
required to serve only Johnson's attorneys, not Johnson
herself, and that service was made complete "on transmission
of the electronic document." Johnson does not dispute the
fact that her attorneys were properly served with the City's
motion for attorney fees before they withdrew as her counsel.
Johnson's argument, even when considered, is not persuasive.
Johnson also argues that "[i]t was inappropriate for the
[circuit] court to grant [Johnson's attorneys] a complete
38
1140433
withdrawal within days" of the hearing on the City's motion
7
for attorney fees. Johnson's brief, at p. 23. However, once
again, Johnson cites no authority in support of her argument;
thus, we need not consider it. See Rule 28(a)(10), Ala. R.
App. P., and Jimmy Day, supra.
Moreover, even if we were to consider Johnson's
unsupported argument, it is not persuasive. In Hale v. Larry
Latham Auctioneers, Inc., 607 So. 2d 154, 155 (Ala. 1992),
this Court stated:
"Whether to permit an attorney to withdraw from
representing a client is a matter resting within the
sound discretion of the trial court. Thomas v.
Southeast Alabama Sickle Cell Ass'n, Inc., 581 So.
2d 845 (Ala. 1991). In Steele v. Gill, 283 Ala. 364,
369, 217 So. 2d 75, 80 (1968), this Court,
acknowledging that there is 'no hard and fast rule'
to be applied in determining whether a trial court
has abused its discretion, wrote:
"'[D]iscretion is abused whenever, in its
exercise, the court has acted arbitrarily
without
the
employment
of
its
conscientious
judgment, or has exceeded the bounds of
reason in view of all the circumstances, or
has so far ignored recognized rules or
principles of law or practice as to [cause]
substantial injustice.'"
We note that Johnson overstates the facts in making this
7
argument. The circuit court did not allow Johnson's attorneys
to withdraw "within days" of the hearing, but one full month
before the hearing.
39
1140433
Johnson's attorneys withdrew from representing her
because Johnson fired them. The circuit court did not require
Johnson to then appear pro se at the scheduled October 31,
2014, hearing but continued the hearing to November 21, 2014.
The circuit court gave Johnson an entire month to obtain new
counsel if she so chose. Johnson has not demonstrated that
the circuit court exceeded its discretion in allowing her
attorneys to withdraw.
Johnson also argues that the circuit court erred by
refusing her request to conduct the November 21, 2014, hearing
on the record. Johnson cites no authority for this argument;
thus, we will not consider it. See Rule 28(a)(10), Ala. R.
App. P., and Jimmy Day, supra.
Next, Johnson challenges the merits of the circuit
court's award of attorney fees. The Eleventh Circuit has held
that the review of a trial court's award of attorney fees in
a Title VII case is "to determine whether [the trial court]
abused its discretion." Turner v. Sungard Bus. Sys., Inc., 91
F.3d 1418, 1422 (11th Cir. 1996) (citing Sullivan v. School
Bd. of Pinellas Cnty., 773 F.2d 1182, 1188 (11th Cir. 1985)).
In Shepherd v. Summit Management Co., 794 So. 2d 1110, 1115
40
1140433
(Ala. Civ. App. 2000), the Alabama Court of Civil Appeals set
forth the following applicable standard for reviewing a trial
court's award of attorney fees in a Title VII case:
"The trial court's authority awarding attorney fees
is provided in 42 U.S.C. § 2000e-5(k):
"'In any action or proceeding under
this
subchapter
the
court,
in
its
discretion,
may
allow
the
prevailing
party,
other than the Commission or the United
States,
a
reasonable
attorney's
fee
(including expert fees) as part of the
costs, and the Commission and the United
States shall be liable for costs the same
as a private person.'
"The United States Supreme Court discussed the
limits on the trial court's discretion in awarding
attorney fees under § 2000e-5(k), in Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 54
L. Ed. 2d 648 (1978). ... After providing a detailed
analysis of analogous provisions in other federal
statutes and of the legislative history of §
2000e-5(k), the Court [in Christiansburg] stated:
"'[A] plaintiff should not be assessed his
opponent's attorney's fees unless a court
finds that his claim was frivolous,
unreasonable, or groundless, or that the
plaintiff continued to litigate after it
clearly became so. And, needless to say, if
a plaintiff is found to have brought or
continued such a claim in bad faith, there
will be an even stronger basis for charging
him with the attorney's fees incurred by
the defense.'
41
1140433
"434 U.S. at 701, 98 S. Ct. 873. The Court also
noted some particular considerations for applying
these standards:
"'In applying these criteria, it is
important that a district court resist the
understandable
temptation
to
engage
in
post
hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his
action must have been unreasonable or
without foundation. This kind of hindsight
logic could discourage all but the most
airtight
claims,
for
seldom
can
a
prospective plaintiff be sure of ultimate
success. No matter how honest one's belief
that
he
has
been
the
victim
of
discrimination, no matter how meritorious
one's claim may appear at the outset, the
course
of
litigation
is
rarely
predictable.
Decisive facts may not emerge until
discovery or trial. The law may change or
clarify in the midst of litigation. Even
when
the
law
or
the
facts
appear
questionable or unfavorable at the outset,
a party may have an entirely reasonable
ground for bringing suit.'
"Id. at 700-01, 98 S. Ct. 873."
We note that the Eleventh Circuit held in Bruce v. City of
Gainesville, Ga., 177 F.3d 949, 951 (11th Cir. 1999), that the
test enunciated in Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978), applies in assessing attorney fees under the
ADA.
The circuit court in the present case determined that
Johnson's
claims
were
"'frivolous,
unreasonable
or
42
1140433
groundless.'" In Shepherd, the Alabama Court of Civil Appeals
stated:
"Standards for assessing whether a federal
civil-rights
claim
is
frivolous,
under
the
principles of Christiansburg, were set out in
Sullivan v. School Board of Pinellas County, 773
F.2d 1182 (11th Cir. 1985). In that case an
assistant school superintendent sued her school
board under the Civil Rights Act, alleging that her
dismissal was based on her coworker's prejudices
against her sex and religion. The Eleventh Circuit
first discussed the conclusions of earlier cases in
determining whether a claim was frivolous, and then
noted the important general factors to be considered
in the usual case:
"'Cases where findings of "frivolity"
have been sustained typically have been
decided in the defendant's favor on a
motion for summary judgment or a Fed. R.
Civ. P. 41(b) motion for involuntary
dismissal. In these cases, the plaintiffs
did not introduce any evidence to support
their claims. E.g., Beard v. Annis, 730
F.2d 741 (11th Cir. 1984); Jones v. Dealers
Tractor and Equipment Co., 634 F.2d 180
(5th Cir. 1981); Church of Scientology of
California v. Cazares, 638 F.2d 1272 (5th
Cir.
1981);
Harris
v.
Plastics
Manufacturing Co., 617 F.2d 438 (5th Cir.
1980). In cases where the plaintiffs
introduced evidence sufficient to support
their
claims,
findings
of
frivolity
typically do not stand. E.g., White v.
South
Park
Independent
School
District,
693
F.2d 1163 (5th Cir. 1982); Plemer v.
Parsons-Gilbane, 713 F.2d 1127 (5th Cir.
1983).
43
1140433
"'Factors considered important in
determining whether a claim is frivolous
also include: (1) whether the plaintiff
established a prima facie case;
(2) whether
the defendant offered to settle; and (3)
whether the trial court dismissed the case
prior to trial or held a full-blown trial
on the merits. See, e.g., E.E.O.C. v.
Kimbrough Investment Co., 703 F.2d 98, 103
(5th Cir. 1983); Jones[ v. Texas Tech
Univ.], 656 F.2d [1137,] 1146 [(5th Cir.
1981)]. While these general guidelines can
be discerned from the case law, they are
general guidelines only, not hard and fast
rules. Determinations regarding frivolity
are to be made on a case-by-case basis.'
"773 F.2d at 1189."
794 So. 2d at 1116.
On appeal, Johnson argues that her claims were not
frivolous, unreasonable, or groundless because, she says, her
case was not decided in the City's favor on a motion for a
summary judgment. As set forth above, the circuit court did
not rule on the City's summary-judgment motion until it
purported to do so after the bench trial. Later, in its order
granting the City attorney fees, the circuit court explained
that it denied the City's summary-judgment motion because it
was filed within three weeks of the bench trial. From this
explanation, it appears that the circuit court did not deny
the City's summary-judgment motion after a consideration of
44
1140433
the merits but because it did not have time to consider the
merits before the bench trial. In fact, Johnson did not file
a response to the City's summary-judgment motion until
September 29, 2014, just three days before the bench trial.
The City then filed its reply to Johnson's response on October
1, 2014, the day before the bench trial. Therefore, when all
the relevant facts concerning this factor are considered, the
fact that the City did not prevail at the summary-judgment
stage of the proceedings neither supports nor detracts from
the circuit court's finding that Johnson's claims were
frivolous. Instead, the circuit court simply did not rule on
the City's summary-judgment motion before the trial on the
merits began.
The
next
factor
to
consider
is
whether
Johnson
established a prima facie case. As thoroughly discussed
above, Johnson has not demonstrated to this Court that she
established a prima facie case for her claims against the
City. Moreover, it appears that the circuit court denied
Johnson's motions for a JML not because she made a prima facie
case, but to give her the "full opportunity" to be heard.
45
1140433
Accordingly,
consideration
of
this
factor
supports
the
circuit
court's finding of frivolity.
The next factor to consider is whether the defendant
offered to settle. The United States District Court for the
Southern District of Florida provided the following summary
of
the applicable Eleventh Circuit cases in Bates v. Islamorada,
Village of Islands, No. 04-10114-CIV (S.D. Fla., July 23,
2007)(not selected for publication):
"The Eleventh Circuit ... has explicitly held that
the fact a defendant did not offer to settle
generally dictates in favor of a fee award to that
defendant, while the fact that a defendant offered
to settle, with one caveat, generally dictates
against a fee award to that defendant. See, e.g.,
Bonner v. Mobile Energy Servs. Co., L.L.C., 246 F.3d
1303, 1305 (11th Cir. 2001); Sayers v. Stewart Sleep
Ctr., Inc., 140 F.3d 1351, 1354 (11th Cir. 1998)
('Furthermore, under the standards enunciated in
Sullivan[ v. School Bd. of Pinellas County, 773 F.2d
1182 (11th Cir. 1985)], [defendant's] settlement
offer should have been a factor weighing in
[plaintiff's] favor.'); Jerelds v. City of Orlando,
194 F. Supp. 2d 1305, 1311 (M.D. Fla. 2002)
('Second, since the Defendants did not offer
Plaintiffs a promotion or a monetary settlement,
this factor weighs in favor of the Defendants.'). It
appears that the only caveat to the latter
proposition that the Eleventh Circuit has stated is
that 'the amount of the offer is a necessary factor
in evaluating whether a settlement offer militates
against a determination of frivolity.' Quintana v.
Jenne, 414 F.3d 1306, 1310 (11th Cir. 2005)."
46
1140433
In the present case, the City offered to settle Johnson's
claims for $3,000. This fact weighs in Johnson's favor that
her claims were not frivolous. However, the mere fact that
the City offered to settle the case is not, in and of itself,
dispositive. As set forth above, the amount of the offer is
also a necessary factor in evaluating whether the settlement
offer weighs against a determination of frivolity. See Lawver
v. Hillcrest Hospice, Inc., 300 Fed. Appx. 768, 774 (11th Cir.
2008)(not
selected
for
publication
in
the
Federal
Reporter)("A
settlement offer does not automatically bar a defendant from
receiving attorney's fees, and the amount of the offer must be
considered in determining whether the offer militates against
a finding of frivolity."). Johnson states the following in
her brief before this Court concerning the amount of the
City's settlement offer:
"Let's state something for a fact: The Lawyers
representing the City in this matter are some of the
best Lawyers in this State. This fact is further
proved by their offer of judgment as a tactical
maneuver. Certainly, the amount of money offered and
now a part of the record is one they knew would be
rejected -- so it was a win-win position for them to
take and one they are trying to exploit at this
time."
47
1140433
Johnson's brief, at p. 30. Johnson characterizes the City's
settlement offer as so low that the City knew that Johnson
would not accept it. We have no reason to doubt Johnson's
characterization of the City's settlement offer. Despite
Johns's characterization of the City's settlement offer, this
factor actually supports the circuit court's finding of
frivolity.
The last factor to consider is whether the circuit court
dismissed the case before trial or held a full-blown trial on
the merits. The circuit court in this case did, in fact, hold
a full-blown bench trial on the merits of Johnson's claims.
In fact, as Johnson points out, the circuit court even denied
the City's motions for a JML. The circuit court explained
that it "denied the City's motions for judgment as a matter of
law in order to give Johnson a full opportunity to be heard on
the trial date. It was clear very early in the trial that
Johnson's claims were baseless." The circuit court clearly
indicates that the full bench trial was not necessary to
determine the merits of Johnson's claims. However, the fact
remains that a full-blown trial on the merits was held.
48
1140433
Therefore, this factor weighs against the circuit court's
judgment that Johnson's claims were frivolous.
We note that the Eleventh Circuit has stated that,
"[w]hile these general guidelines can be discerned from the
case law, they are general guidelines only, not hard and fast
rules. Determinations regarding frivolity are to be made on a
case-by-case basis." Sullivan, 773 F.2d at 1189. Based on
the foregoing analysis, we conclude that the circuit court did
not abuse its discretion in determining that Johnson's claims
were frivolous. The Eleventh Circuit has also stated that,
"[i]n determining whether a suit is frivolous, 'a [trial]
court must focus on the question whether the case is so
lacking in arguable merit as to be groundless or without
foundation rather than whether the claim was ultimately
successful.'" Sullivan, 773 F.2d at 1189 (quoting Jones v.
Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981).
Johnson has not put forth any argument demonstrating that her
claims have arguable merit; Johnson's claims appear to be
groundless and without foundation. The claims filed in this
case against the City are the latest of Johnson's several
failed EEOC complaints and lawsuits against the City over the
49
1140433
course of the past several years. Johnson has not set forth
any argument convincing us that the circuit court abused its
discretion in determining that her claims against the City are
frivolous.
Having concluded that the circuit court properly
determined that Johnson's claims are frivolous and, thus,
that
the City is entitled to attorney fees under 42 U.S.C. § 2000e-
5(k), the next consideration is whether the attorney fees
awarded by the circuit court were reasonable. In Perry v.
Orange County, 341 F. Supp. 2d 1197, 1207-08 (M.D. Fla. 2004),
the United States District Court for the Middle District of
Florida set forth the following summary of applicable law
concerning this inquiry:
"Historically, the federal courts have analyzed
demands for attorneys' fees pursuant to Johnson v.
Georgia Highway Express, 488 F.2d 714 (5th Cir.
1974). Johnson set forth twelve factors to be
considered in calculating a fee award. The United
3
States Court of Appeals for the Eleventh Circuit has
consistently refined calculation of awards of
attorneys' fees to comport with decisions of the
United States Supreme Court. Norman v. Housing
Authority, 836 F.2d 1292, 1299 (11th Cir. 1988).
Norman adopted the lodestar approach for calculating
attorneys' fees. The lodestar approach presumptively
incorporates the twelve factors adopted in Johnson,
488 F.2d 714. Norman, 836 F.2d at 1298-99. The
Eleventh Circuit applies the lodestar approach of
Norman in determining a reasonable attorneys' fee.
50
1140433
See Camden I Condominium Assoc., Inc. v. Dunkle, 946
F.2d 768, 772 (11th Cir. 1991); see also Burlington
v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638, 120 L.
Ed. 2d 449 (1992). Simply stated, the lodestar is
the product of the number of reasonable hours
expended and the reasonable hourly rate. Burlington
v. Dague, 505 U.S. 557, 559-60, 112 S. Ct. 2638, 120
L. Ed. 2d 449 (1992) citing Pennsylvania v. Delaware
Valley Citizens' Council for Clean Air, 478 U.S.
546, 565, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).
"The
lodestar
approach
also
governs
the
attorneys'
fees
analysis
under
fee-shifting
statutes. City of Burlington v. Dague, 505 U.S. 557,
561-62, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992)
(lodestar figure has become the guiding light of our
fee-shifting jurisprudence). This Court therefore
applies the Norman lodestar approach in determining
the parties' request for attorneys' fees.
"1. Reasonable Hourly Rate
"The Court must first determine the reasonable
hourly rate. Duckworth v. Whisenant, 97 F.3d 1393
(11th Cir. 1996); Loranger v. Stierheim, 10 F.3d
776, 781 (11th Cir. 1994); Norman v. Housing
Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). The
reasonable hourly rate is the prevailing market rate
in the relevant legal community for similar services
provided by lawyers of reasonably comparable skills,
experience, and reputation. Norman, 836 F.2d at
1299. The party seeking attorneys' fees bears the
burden of producing 'satisfactory evidence that the
requested rate is in line with prevailing market
rates,' which normally requires 'more than the
affidavit of the attorney performing the work.'
Loranger, 10 F.3d at 781, citing Norman, 836 F.2d at
1299. The court may consider direct evidence of
rates for similar services or opinion evidence about
rates. Norman, 836 F.2d at 1299.
51
1140433
"The Eleventh Circuit looks to skill as the
ultimate determinate of compensation level because
experience and reputation are a mirror image of
skill. Norman, 836 F.2d at 1300. Skill is evidenced
by an attorneys' initial case assessment, continuing
negotiation
and
settlement
attempts,
persuasiveness,
and other fundamental aspects of organization and
efficiency.
Norman,
836
F.2d
at
1300-1301.
Organization means that counsel plans effective
discovery devices and does not use them randomly or
for the mere purpose of going through established
routines. Efficiency means doing exactly what needs
to be done in a minimum time. Norman, 836 F.2d at
1301. Legal skill, therefore, correlates to a
knowledge of both trial practice and substantive
law. Norman, 836 F.2d at 1301. Although an attorney
who must familiarize himself or herself with either
aspect of practice may prove exemplary as an
advocate, he or she does not have a right to claim
comparable skill to attorneys whose first actions
are directed at the finer points of the case.
Norman, 836 F.2d at 1301. Proficiency should yield
efficiency, and the district court has ample
discretion to discount the import of counsel's
expertise. Varner v. Century Finance Company, Inc.,
738 F.2d 1143, 1149 (11th Cir. 1984). No two
attorneys possess the same skill, therefore the
Court must look to the range provided by the
evidence, and interpolate a reasonable market rate.
Norman, 836 F.2d at 1300. In summary, the Court
determines a reasonable rate by assessing the range
of fees established in the marketplace, as modified
by reference to an individual attorney's skill.
Norman, 836 F.2d at 1301; e.g., Duckworth, 97 F.3d
at 1396.
"2. Reasonable Hours Expended
"The second step in determining the lodestar is
to assess the reasonable number of hours expended in
the litigation. Norman, 836 F.2d at 1302. Inquiry
into the reasonable number of hours focuses on the
52
1140433
exercise of 'billing judgment' -- exclusion of those
hours
not
reasonably
billable
to
a
client
irrespective of counsel's skill[;] therefore the
Court must deduct for redundant hours. Norman, 836
F.2d at 1301-02, citing Hensley v. Eckerhart, 461
U.S. 424, 434, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983). A court must not consider an attorney's
skill at this stage as this would constitute a
double penalty -- the rate would first be decreased
and the hours would then be lowered. Norman, 836
F.2d at 1301.
"The
fee
applicant
bears
the
burden
of
documenting the appropriate number of hours. Norman,
836 F.2d at 1303, citing Hensley, 461 U.S. at 437,
103 S. Ct. 1933; United States v. Blue Cross and
Blue Shield of Florida, Inc., 882 F. Supp. 166, 170
(M.D. Fla. 1995). Generalized statements concerning
reasonableness are of little or no assistance to the
Court, instead proof of the hours dedicated to
litigation and any corresponding objections must be
made with sufficient specificity. Duckworth, 97 F.3d
at 1397-98; Norman, 836 F.2d at 1301. Throughout the
calculation of the lodestar, the Court remains
cognizant that it is itself an expert on the
question, and may consider the request in light of
its own knowledge and experience with or without the
aid of witnesses as to value or hours dedicated to
litigation. Loranger, 10 F.3d at 781; Norman, 836
F.2d at 1303.
"____________________
" Those twelve factors are: (1) the time and
3
labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform
the legal services properly; (4) the preclusion of
other employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the
53
1140433
experience,
reputation,
and
ability
of
the
attorneys; (10) the 'undesirability' of the case;
(11) the nature and length of the professional
relationship with the client; and (12) awards in
similar cases. 488 F.2d at 717-9.[ ]"
8
In the present case, Johnson, argues that the circuit
court has failed to allow meaningful appellate review of its
award of attorney fees because the circuit court's order did
Further, in Durrett v. Jenkins Brickyard, Inc., 678 F.2d
8
911, 917 (11th Cir. 1982), the Eleventh Circuit stated:
"In Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974), we identified twelve
factors which a court should consider in awarding
attorney's fees to a prevailing Title VII plaintiff.
In Jones v. Dealers Tractor & Equipment Co., 634
F.2d 180 (5th Cir. 1981), we affirmed the district
court's use of the Johnson factors to determine the
amount of an attorney's fee award to a prevailing
Title VII defendant. Although the losing party's
ability to pay is not among the Johnson factors, we
do
not
believe
that
Johnson
and
Jones
bar
consideration of the plaintiff's limited ability to
pay as one factor in calculating an attorney's fees
award to a prevailing Title VII defendant. In
Johnson, our focus was on the situation of the
prevailing plaintiff; indeed, one of the factors we
listed, the undesirability of the case, is not
applicable to the situation of the prevailing
defendant. Therefore, that we did not include among
the Johnson factors the losing party's ability to
pay -- a consideration uniquely pertinent to the
losing plaintiff -- is of little moment in the
present context. Nor do we read our unelaborated
affirmance of the application of the Johnson
guidelines to the prevailing defendant situation in
Jones to preclude the adjustment of those guidelines
under consideration here."
54
1140433
not set forth the reasons supporting its decision and how it
calculated the attorney fee. Johnson is correct. The extent
of the circuit court's reasoning for granting the City's
requested attorney fees is simply that "[t]he City submitted
proof that its reasonable attorney fees for defending this
case equaled $116,892.50." Lacking from the circuit court's
order is any of the analysis required under the extensive
authority set forth above. In Norman v. Housing Authority of
City of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988), the
Eleventh Circuit stated that "[t]he [trial] court's order on
attorney's fees must allow meaningful review -- the [trial]
court must articulate the decisions it made, give principled
reasons for those decisions, and show its calculation. Adams
v. Mathis, 752 F.2d 553, 554 (11th Cir. 1985)." The circuit
court has failed to do so. Accordingly, we reverse the
judgment insofar as it set the amount of attorney fees and
remand the case for the circuit court to enter an order
awarding attorney fees consistent with the authority set
forth
above.
Conclusion
55
1140433
Based on the foregoing, we affirm the circuit court's
judgment on the merits and its denial of Johnson's
postjudgment motions. Further, we affirm the circuit court's
decision to award the City attorney fees; however, we reverse
the judgment insofar as it set the amount of attorney fees
awarded by the circuit court and remand the case for the
circuit court to enter a new order awarding attorney fees,
setting forth the reasons supporting its decision and how it
calculated the attorney fees pursuant to the precedent set
forth in this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Stuart, Bolin, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock and Shaw, JJ., concur in the
result.
56 | September 30, 2015 |
7f3810b0-934c-428d-a73b-7a1181077455 | Ex parte State of Alabama. | N/A | 1140643 | Alabama | Alabama Supreme Court | Rel: 6/12/15
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, 2014-2015
____________________
1140643
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Phillip Allen Moore
v.
State of Alabama)
(Tuscaloosa Circuit Court, CC-12-2616;
Court of Criminal Appeals, CR-13-0113)
BRYAN, Justice.
1140643
WRIT DENIED. NO OPINION.
Moore, C.J., and Stuart, Bolin, Parker, Main, and Wise,
JJ., concur.
Murdock and Shaw, JJ., dissent.
2
1140643
MURDOCK, Justice (dissenting).
I write separately for what I believe to be two important
reasons. First, it is particularly important to note, as
Justice Shaw correctly explains in his dissent, that the main
opinion in Ex parte Pate, 145 So. 3d 733 (Ala. 2013), was a
plurality opinion in which only four Justices concurred and is
not binding precedent. ___ So. 3d at ___ n. 5 (Shaw, J.,
dissenting). The Court of Criminal Appeals concluded its
analysis in this case by stating that, if not for the decision
in Pate, it would not have reversed the trial court's judgment
convicting Phillip Allen Moore of the offense of menacing.
Moore v. State, [Ms. CR-13-0113, Nov. 21, 2014] ___ So. 3d
___, ___ (Ala. Crim. App. 2014). That court states, however,
that it was "bound by the Pate decision." ___ So. 3d at ___.
For the reasons explained by Justice Shaw in his separate
writing, that statement is incorrect.
The other reason I write separately is to note that this
is the first "menacing case" to come before this Court since
Pate was decided and that the facts presented and the result
reached in this case corroborate the concern I expressed in
Pate as to "the continued viability of the crime of menacing"
3
1140643
if Pate were to be followed. 145 So. 3d at 740 (Murdock, J.,
dissenting). Indeed, in contrast to Justice Shaw (whose views
generally coincide with mine), I believe the present case
presents no less a manifestation, and perhaps an even stronger
manifestation, of this concern than do the facts and the
result in Pate.
Menacing is a Class B misdemeanor and is defined simply
as follows: "A person commits the crime of menacing if, by
physical action, he intentionally places or attempts to place
another person in fear of imminent serious physical injury."
§ 13A–6–23(a), Ala. Code 1975. To prove that the misdemeanor
of menacing has occurred the State must prove simply (1) some
"physical action," by which (2) the defendant "intentionally
place[d] or attempt[ed] to place" another in fear of "imminent
serious physical injury."
The main opinion in Pate took the position that, as a
matter of law, the act of retrieving a firearm did not
constitute "physical action" for purposes of satisfying the
4
1140643
first element of menacing. Obviously, this is a position with
which I strenuously disagreed in Pate and still do.
1
The facts in Pate (and in turn the factual parallels
between Pate and the present case), however, were not limited
to the bare act of arming one's self. In Pate, after verbally
threatening the victim, the defendant did in fact engage in
the "physical action" of walking to his truck and retrieving
a shotgun from that vehicle. In addition, however, the
defendant in Pate then engaged in the further "physical
action" of turning and beginning to advance toward the victim
with the weapon in hand. Ex parte Pate, 145 So. 3d at 736
n.2. Here, Moore likewise, after retrieving his weapon,
turned and advanced toward the victim with the weapon in hand.
Furthermore, the facts of both cases include very explicit,
The judges of the Court of Criminal Appeals, as well as
1
Justice Shaw, also disagree with this position. Both judges
of the Court of Criminal Appeals who dissented, Judge Windom
and Judge Burke, obviously disagree. See, e.g., Moore, ___
So. 3d at ___ (Burke, J., dissenting). And the other three
judges on the Court of Criminal Appeals concurred in a per
curiam opinion that states that, "[b]efore Pate," they too
"would have been inclined to recognize" what they refer to as
"the inherent logic" of the State's position on what
constitutes physical action, as well as the type of showing
that will satisfy the state-of-mind element of menacing. See
Moore, ___ So. 3d at ___.
5
1140643
verbal statements made by the defendants that provide context
for their physical actions and from which the jury in each
case reasonably could have drawn inferences as to the presence
of the state of mind required for an act of menacing. See
Ex parte Pate, 145 So. 3d at 736; id. at 741 (Murdock, J.,
dissenting); Moore v. State, ___ So. 3d at ___; id. at ___
(Burke, J., dissenting).
2
Bearing in mind the deference accorded the verdict of
jurors who have heard and assessed the testimony of witnesses
appearing before them, as well as the quantum of proof
required in a criminal case, the essential question is whether
there is substantial evidence from which
the
jurors reasonably
could have found that Moore intended or attempted to place the
victim in fear of imminent serious injury. In the context of
preexisting conflict with the victim, a man retrieves a 3-
In the present case, the jury's assessment of both the
2
physical-action element and the state-of-mind element could
have been influenced by the general environment and state of
conflict created by Moore and his cohort, including the facts
that Moore, as well as his cohort and the cohort's girlfriend,
had been drinking; that Moore purposefully played music with
obscene lyrics loudly enough to be heard by the victim and his
wife and teenage daughter; that Moore and his cohort were
making lewd gestures directed at the victim; and that Moore's
cohort contemporaneously caused physical injury to the victim
by running into him with a car.
6
1140643
foot-long metal pipe and then turns and advances to a face-to-
face confrontation within 15 to 20 feet of the victim while
holding the 3-foot-long pipe in a threatening position ("kind
of like a batter" according to one witness). Fifteen to 20
feet simply is not that much distance for an angry man
postured as described with a 3-foot-long metal pipe. As the
State explained in a passage in its brief quoted with approval
by the majority opinion in the Court of Criminal Appeals:
"'Moore was in a position to inflict lethal damage
because he was capable of striking West and crushing
his skull in about 3 or 4 seconds. Moore, in the
position in which he had the pipe, also could have
thrown this weapon at West.'"
Moore, ___ So. 3d at ___ (quoting the State's brief, p. 15).
Considering the evidence of Moore's physical actions,
Moore's demeanor, including the verbal abuse that preceded and
accompanied his physical actions, and other evidence of the
volatility of the situation heard by the jury, I cannot say --
or more appropriately, I do not believe the Court of Criminal
Appeals was correct in saying -- that, as a matter of law,
reasonable jurors were foreclosed from finding that Moore
engaged in an act of "menacing." Because I believe that the
petition presents a probability of merit, I respectfully
7
1140643
dissent from this Court's decision today not to grant that
petition.
8
1140643
SHAW, Justice (dissenting).
In the instant matter, the State of Alabama petitions
this Court for certiorari review of the decision of the Court
of Criminal Appeals in Moore v. State, [Ms. CR-13-0113, Nov.
21, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014), reversing
Phillip Allen Moore's conviction for menacing. For the
reasons discussed below, I dissent from denying the State's
petition.
The crime of "menacing" is statutorily defined as
follows: "A person commits the crime of menacing if, by
physical action, he intentionally places or attempts to place
another person in fear of imminent serious physical injury."
Ala. Code 1975, § 13A-6-23(a). The main opinion in Ex parte
Pate, 145 So. 3d 733 (Ala. 2013), held that the act of arming
one's self with a firearm was not sufficient to constitute the
crime of menacing. Specifically, the main opinion stated that
such action, as a matter of law, was not a "physical action"
for purposes of menacing. 145 So. 3d at 738.
9
1140643
In the instant case, Moore, the defendant, armed himself
3
with a pipe. This act, although threatening in nature, was
less likely than the act in Pate to place a victim in fear of
imminent serious physical injury: Moore was too far away from
the victim to hit him with the pipe, while the victim in Pate
was well within range of the defendant's much more dangerous
weapon. That Moore approached the victim and taunted him
4
makes no difference; the defendant in Pate also approached the
victim after threatening the victim with actual physical harm
and then arming himself with a much more dangerous weapon than
did Moore. If Pate is to be followed, then there is no
probability of merit in the argument that the Court of
Criminal Appeals erred in reversing Moore's conviction. See
Rule 39(f), Ala. R. App. P. ("If the Supreme Court, upon
preliminary consideration,
concludes
that
there is
a
probability of merit in the petition and that the writ should
issue, the Court shall so order ...."). Indeed, if Pate is to
The Court of Criminal Appeals described the facts in the
3
instant case in Moore, supra, and I see no need to repeat them
here.
Moore could have been within range to throw the pipe at
4
the victim, but such possibility only shows that the facts of
this case are more similar to Pate, where the menacing
conviction was reversed.
10
1140643
be followed, it is difficult to imagine that § 13A-6-23(a) has
any meaningful field of operation. However, I do not believe
that Pate is binding precedent.
In Pate, four members of the Court concurred in the main
opinion, one concurred in the result, two dissented, and two
did not sit in the case. Only four Justices--not a majority
of the Court--joined the main opinion, and it is not binding
precedent. See Ala. Code 1975, § 12-3-16 ("The decisions of
the Supreme Court shall govern the holdings and decisions of
the courts of appeals ...."), and KGS Steel, Inc. v. McInish,
47 So. 3d 780, 781 (Ala. Civ. App. 2009) (noting that only
"'decisions of the majority' of the Supreme Court" are
"decisions" for purposes of § 12-3-16) (quoting Willis v.
Buchman, 30 Ala. App. 33, 40, 199 So. 886, 892 (1940) (opinion
after remand)). See also Jones v. City of Huntsville, 288
Ala. 242, 244, 259 So. 2d 288, 290 (1972).5
Rule 16(b), Ala. R. App. P., provides that, when, by
5
reason of disqualification, the number of Justices competent
to sit in the determination of a cause is reduced, a majority
shall suffice, but at least four Justices must concur. The
concurrence of four Justices of a seven-member court "would
suffice" as a majority only when the Court is reduced to seven
members by reason of disqualification. The opinion in Pate
does not state that the two Justices who did not vote in that
case had recused themselves from consideration of the case.
Thus, it cannot be said that the number of Justices competent
11
1140643
I dissented in Pate, and I remain convinced that Pate was
wrongly decided. In my opinion, both the facts in Pate and
the facts in the instant case show acts--physical action--that
could place, or constitute an attempt to place, another person
in fear of imminent serious physical injury. In the instant
case, I would decline to follow the nonbinding decision in
Pate, reverse the Court of Criminal Appeals' decision, and
affirm Moore's menacing conviction.
to sit was reduced by "disqualification," and the number of
Justices required to constitute a majority was five, not four.
See also Ala. Code 1975, § 12-2-14.
12 | June 12, 2015 |
6db6f458-4875-4e7f-8957-85d4cb16fda3 | Southeast Construction L.L.C. v. WAR Construction, Inc. | N/A | 1140212 | Alabama | Alabama Supreme Court | REL:06/26/2015
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, 2014-2015
____________________
1140212
____________________
Southeast Construction, L.L.C.
v.
WAR Construction, Inc.
Appeal from Tuscaloosa Circuit Court
(CV-09-900101)
STUART, Justice.
Southeast
Construction,
L.L.C.
("SEC"),
appeals
the
order
of the Tuscaloosa Circuit Court
finding
that WAR Construction,
Inc. ("WAR"), had provided SEC with certain releases as
previously ordered by the circuit court and that SEC was
1140212
accordingly now required to pay the outstanding $263,939
remaining on a $373,939 judgment previously entered on a
February 16, 2011, arbitration award obtained by WAR against
SEC, along with interest accruing from February 16, 2011. We
1
affirm in part and reverse in part.
I.
On June 12, 2007, SEC and WAR entered into a construction
contract pursuant to which WAR was to serve as the general
contractor for SEC on a condominium development in Tuscaloosa
known as The Chimes. As the development neared completion, a
dispute arose in which WAR claimed that it had not been paid
the total amount it was due for the work it had performed,
while SEC claimed that WAR had not completed its work and that
portions of its allegedly completed work were defective.
Pursuant to the terms of the June 12, 2007, contract, the
dispute was submitted to arbitration and, on February 16,
2011, a three-arbitrator panel ruled in favor of both parties
on their respective claims, with the net result being an award
The
arbitration
award
and
ensuing
judgment
entered
by
the
1
circuit court on that award was for $373,939; however, SEC and
WAR subsequently agreed to reduce that amount by $110,000 as
part of a settlement agreement between WAR and a third party
in a separate case.
2
1140212
in favor of WAR for $373,939. The panel further stated that
"[p]ost-award interest shall accrue at the rate of 3.25% per
annum from the date of the award until it is paid in full" and
that "[t]he above sums are to be paid on or before 30 days
from the date of this award."
Thereafter, SEC moved the arbitration panel to modify its
award inasmuch as the panel had not addressed SEC's request
for relief with respect to certain liens that had been filed
by WAR and some of its subcontractors and suppliers. The
panel found SEC's request to be well taken and, on March 16,
2011, modified the sentence in the award concerning the time
in which SEC should make payment, quoted supra, to read:
"The above sums are to be paid upon [SEC's] receipt
of reasonably appropriate and adequate releases of
liens and claims against [SEC], its surety and the
project involved in this proceeding from [WAR] and
all of [WAR's] subcontractors/suppliers that filed
a lien on the project; provided that, in lieu of a
release from such subcontractor/supplier, [WAR] may
provide an adequate bond or other adequate security.
This shall occur no later than May 13, 2011."
The panel stated that the February 16, 2011, award was
reaffirmed in all other respects. Neither SEC nor WAR pursued
an appeal of the arbitration award with the Tuscaloosa Circuit
Court as allowed by Rule 71B, Ala. R. Civ. P.
3
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On April 22, 2011, WAR moved the circuit court to enter
a judgment enforcing the arbitration award pursuant to Rule
71C, Ala. R. Civ. P. SEC opposed the motion, arguing that WAR
had not yet provided it with the releases required by the
modified arbitration award. The circuit court initially
declined to enter the requested judgment, reasoning that the
arbitration award was not yet final based on WAR's failure to
provide the required releases, as well as the need for the
arbitration panel to determine whether those releases were
adequate. A hearing was subsequently held at which WAR
acknowledged that SEC was entitled to the required releases
but also stated that it was hesitant to release any liens
before receiving payment because the liens were its only way
of ensuring payment. On May 9, 2011, the circuit court
entered an order directing the circuit clerk to enter the
February 16, 2011, arbitration award, as modified on March 16,
2011, as a final judgment pursuant to Rule 71C(f), Ala. R.
Civ. P., but also noting that no certificate of judgment was
to be issued unless that certificate "complie[d] with the
arbitrators' award." The circuit court further noted that any
concerns the parties had regarding the interpretation of the
4
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arbitration award needed to be presented to the arbitration
panel.2
On May 13, 2011 –– the deadline the arbitration panel had
set for WAR to provide SEC with the required releases –– WAR
filed a notice with the circuit court stating that it had
supplied SEC with all of WAR's subcontractors' releases and
that it would provide its own release when SEC put forth the
funds required to fulfill the terms of the arbitration award.
SEC thereafter notified the circuit court that it had not
received adequate releases from two of WAR's subcontractors
and, as WAR had admitted, from WAR itself. The circuit court
scheduled a hearing to further consider the matter; however,
on June 7, 2011, before that hearing was held, SEC filed an
appeal with this Court, arguing that the circuit court's May
9, 2011, order directing the circuit clerk to enter a judgment
on the arbitration award was erroneous because, it stated, WAR
had not provided the required releases. WAR subsequently
filed a cross-appeal, treated by this Court as a petition for
a writ of mandamus, effectively arguing that the circuit court
A
subsequent
order
entered
by
the
circuit
court
indicates
2
that the arbitration panel, when approached by the parties,
refused to take any further action regarding the arbitration
award.
5
1140212
was exceeding its discretion by not acting to enforce the
judgment entered on the arbitration award.
In Southeast Construction, L.L.C. v. War Construction,
Inc., 110 So. 3d 371, 376 (Ala. 2012) ("SEC I"), this Court
ruled on the dispute, holding that the circuit court had acted
properly in ordering the circuit clerk to enter a final
judgment based on the arbitration award because that final
judgment
"adjudicate[d]
the
rights
and
responsibilities
of
the
parties." Nevertheless, we noted that the final judgment
required further acts by the parties and, accordingly,
further
acts and supervision by the circuit court:
"Given the nature of the award made by the
arbitrators in this case and the nature of the
resulting judgment the circuit court properly
ordered the clerk to enter, it is apparent that the
circuit
court
must
take
some
additional
responsibility for enforcing that award and the
resulting judgment. To the extent WAR complains in
its petition of the circuit court's reluctance to do
so, we agree with WAR and, accordingly, order the
circuit court to take appropriate action to enforce
the judgment it has entered based upon the
arbitrators' award."
110 So. 3d at 377-78. Justice Murdock, in his opinion
concurring specially, suggested that, on remand, the circuit
court might facilitate the matter by accepting SEC's payment
and the releases submitted by WAR and then transferring them
6
1140212
to the other party once all obligations had been fulfilled.
110 So. 3d at 378 (Murdock, J., concurring specially).
The circuit court thereafter conducted a hearing and
ordered briefing from the parties to determine how to best
comply with this Court's directive in SEC I and to enforce the
May 9, 2011, judgment entered on the arbitration award.
During this process, WAR appears to have offered proposals
concerning how to best give effect to the arbitration award,
while SEC took the position that, because WAR had not provided
all the required releases by the May 13, 2011, deadline set by
the arbitration panel, its obligation to pay the sum ordered
in the arbitration award was extinguished. On January 9,
2013, the circuit court entered an order rejecting SEC's
argument and attempting to implement a mechanism similar to
that suggested by Justice Murdock in his special concurrence
in SEC I. Specifically, the circuit court ordered:
"1. Citing the language used by the arbitrators and
after reviewing the responses of the parties, all
liens and claims against SEC, its surety, and the
project from WAR's subcontractors/suppliers that
filed a lien on the project appear to have been
released and/or adequate security has been provided.
To the extent that any original document is required
to confirm this release, it should be submitted by
WAR to the circuit clerk of Tuscaloosa County. The
clerk will hold the document for delivery to SEC
7
1140212
upon the payment of the judgment amount plus
interest as provided herein. WAR shall deliver to
the circuit clerk of Tuscaloosa County the original
release of its mechanic's lien and mechanic's lien
release bond together with an executed satisfaction
of judgment and any proposed orders required to be
entered by this court extinguishing the bond or
lien. The clerk will hold the release for delivery
to SEC upon the payment of the judgment amount plus
interest as provided herein.
"2. To satisfy the judgment awarded by the
arbitrators, SEC may deposit the sum of [$373,939]
together with accumulated interest (at the rate
ordered by the arbitrators) to the circuit clerk of
Tuscaloosa County. It appears that WAR attempted to
comply with what the Supreme Court has ordered this
court to implement as of May 13, 2011 (the date of
WAR's 'Notice of ... Compliance With Conditions of
Judgment'), and therefore, the interest awarded by
the arbitrators is applicable from May 13, 2011, to
the date of payment to the clerk. Upon receipt and
collection
of
such
funds,
the
clerk
shall
simultaneously distribute the funds to WAR and shall
deliver to SEC the release(s) referenced in (1).
The clerk shall then file the satisfaction of
judgment.
"3. After WAR has tendered the documents referenced
in (1) to the clerk, execution may proceed on the
judgment through any available means under Alabama
law if not satisfied by the deposit of the funds
referenced in (2).
"4. Any further orders required to implement the
foregoing will be rendered as necessary."
On January 25, 2013, WAR filed notice with the circuit
court that it had submitted all the required releases; four
days later, on January 29, 2013, SEC filed its objection to
8
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WAR's claim, again arguing that the releases submitted for two
of WAR's subcontractors were inadequate. On February 22,
2013, before the circuit court could rule on the adequacy of
the releases, SEC initiated another appeal to this Court,
arguing again that WAR had forfeited any right to receive the
sum ordered in the arbitration award because it had failed to
deliver the required releases by the date ordered by the
arbitration panel and contesting any claim that WAR had
provided
all
the
required
releases.
In
Southeast
Construction, L.L.C. v. War Construction, Inc., 159 So. 3d
1227 (Ala. 2014) ("SEC II"), we noted that we had already
rejected the former argument in SEC I and that our rejection
of that argument was accordingly the law of the case, but we
also concluded that the latter argument was
indeed
meritorious
inasmuch as one of WAR's subcontractors, Heritage Masonry,
Inc., had, in its purported release, reserved its right
thereafter to pursue certain claims against SEC:
"Because [WAR's subcontractor] Heritage Masonry
expressly reserved in the pro tanto release 'claims
or actions [that] it ha[d] or may have against
[SEC]' and because there is no indication that WAR
provided any bond or security in lieu of a release,
WAR has not yet fully complied with the requirements
of the May 9 judgment. Thus, the circuit court
erred in finding in the January 9 order that 'all
9
1140212
liens and claims against SEC ... from WAR's
subcontractors/suppliers that filed a lien on the
project ... ha[d] been released and/or adequate
security ha[d] been provided.' We hold further that
the circuit court erred in finding that WAR had
'attempt[ed] to comply with what the Supreme Court
has ordered this court to implement as of May 13,
2011,' and that it was entitled to have the interest
owed under the arbitrators' award and the May 9
judgment calculated from that date. Therefore, we
reverse the January 9 order as it relates to the
above matters and remand the cause for further
proceedings consistent with this opinion. In all
other respects, the order is affirmed."
159 So. 3d at 1238. Following the release of our opinion in
SEC II on May 9, 2014, WAR applied for a rehearing, arguing
for the first time that the circuit court's January 9, 2013,
order –– which was the subject of SEC's appeal in SEC II, but
as to which WAR had not cross-appealed –– was in error
inasmuch as it ordered interest to be calculated from May 13,
2011, when the arbitration award plainly stated that "[p]ost-
award interest shall accrue at the rate of 3.25% per annum
from the date of the award until it is paid in full."
Accordingly, WAR argued that interest should be calculated
from February 16, 2011. On August 22, 2014, we denied WAR's
application for rehearing without an opinion, as is our
standard practice when an argument is raised for the first
time in an application for a rehearing. See, e.g., Water
10
1140212
Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 608
(Ala. 2002) (opinion on application for rehearing) ("The
well-settled rule of this Court precludes consideration of
arguments made for the first time on rehearing.").
Even before its application for a rehearing was decided,
however, WAR took action to remedy the inadequate release it
had previously submitted for Heritage Masonry and, on June 12,
2014, WAR sent a newly executed release directly to SEC.
There is no dispute that this release was adequate to serve as
a full release, and SEC has conceded that fact. On September
8, 2014, WAR moved the circuit court to enforce the judgment
entered on the arbitration award, noting that it had now
submitted all the required releases and enclosing a copy of
the Heritage Masonry release sent to SEC on June 12.
Thereafter, the circuit court scheduled a hearing and ordered
briefs to determine whether WAR had finally submitted all the
required releases and, if so, from what date interest should
be calculated on the arbitration award. SEC took the position
that WAR still had not properly submitted the required
releases inasmuch as the circuit court's January 9, 2013,
order had required WAR to submit an original copy of all
11
1140212
releases to the circuit clerk and WAR had sent the original
copy of the final release directly to SEC on June 12 and sent
the circuit clerk only a copy approximately three months later
on September 8. Thus, SEC argued, WAR's obligations would not
be fulfilled until an original copy of the final release was
submitted to the circuit clerk, and only then could interest
begin to accrue. If the circuit court recognized the copy of
the final release the clerk had received, however, SEC argued
that interest could not begin to accrue until September 8 when
the clerk received that copy. WAR argued that it had now
submitted all the required releases and that, regardless of
when they were submitted, WAR was due interest from the date
of the arbitration award –– February 6, 2011 –– pursuant to
the unambiguous statement in that award that interest shall
accrue "from the date of the award until it is paid in full."
On November 24, 2014, the circuit court entered its final
judgment, stating:
"At the November 18 hearing, SEC and WAR agreed
that the new release of Heritage Masonry was
sufficient, but disagreed about the correctness of
the manner in which it was presented to the court.
WAR claimed to have mailed the original release to
SEC in June, and then filed a copy as part of the
September 8 notice of compliance. SEC argues that
WAR was required to file the original release with
12
1140212
the clerk, as mandated by the January 9 order.
Because WAR has not filed the release with the
clerk, SEC claims that WAR is not in compliance with
the January 9 order and therefore interest has not
yet begun to accrue. As the rationale for this
conclusion, SEC states that the Supreme Court's
intent was that interest should not accrue until WAR
complied with the January 9 order. WAR responds
that it fulfilled the substance if not the form of
the order, because it mailed [the] release to SEC
and SEC does not dispute it received the release.
WAR claims that interest began to accrue on February
16, 2011, the date of the original arbitration
award. The plain language of the award states that
interest on the award 'shall accrue at the rate of
3.25% per annum from the date of the award until it
is paid in full.'
"After reviewing both of the Supreme Court's
mandates in this case, and applying the principles
of Ex parte Edwards, [727 So. 2d 792 (Ala. 1998),]
which require strict adherence to those mandates,
the court finds and orders as follows:
"1. The 'release of claims' from Heritage
Masonry is a 'reasonably appropriate and adequate
release.' SEC agreed in open court that the release
was sufficient and that it received the original
release. The provision for WAR filing the original
release with the clerk was for WAR's benefit, which
it chose to waive. Furthermore, the court finds
that WAR complied with the spirit of the January 9
order and, therefore, mailing the Heritage Masonry
release to SEC satisfied WAR's obligation under the
January 9 order. Since SEC now holds the original
release, it may file the release with the clerk of
the court should it deem it necessary.
"....
"6. Based upon the May 9, 2011 judgment, it is
further ordered that SEC shall pay interest on the
13
1140212
money judgment, which 'shall accrue at the rate of
3.25% per annum from the date of the award [February
6, 2011,] until it is paid in full.' Accrued
interest as of the date of this order is $45,458.52,
which currently accrues at a daily rate of $23.50.
Within three (3) days from the date of this order,
SEC shall pay to the clerk all interest accrued
through the date of payment of the money judgment."
On November 26, 2014, SEC filed its notice of appeal to this
Court.
II.
SEC presents two issues in its appeal: (1) whether the
circuit court erred by ruling that WAR had properly submitted
all required releases and (2) whether the circuit court erred
in ordering SEC to pay interest accruing from February 16,
2011, the date of the original arbitration award. These
3
issues are both issues of law; accordingly, we review the
circuit court's judgment de novo, affording it no presumption
of correctness. See, e.g., Ex parte Graham, 702 So. 2d 1215,
1221 (Ala. 1997) ("[O]n appeal, the ruling on a question of
SEC also argues in its brief that the circuit court erred
3
by ordering it to pay WAR within three days of the entry of
its November 24, 2014, order inasmuch as Rule 62(a), Ala. R.
Civ. P., generally provides that "no execution shall issue
upon a judgment nor shall proceedings be taken for its
enforcement until the expiration of thirty (30) days after its
entry." However, after SEC initiated this appeal, we granted
its application for a stay of execution, thus mooting SEC's
argument in this regard.
14
1140212
law carries no presumption of correctness, and this Court's
review is de novo.").
III.
SEC first argues that the circuit court erred by
concluding that WAR had fulfilled its responsibility to
procure releases for SEC from all of WAR's subcontractors and
suppliers. Specifically, SEC argues that the circuit court
had, in its January 9, 2013, order, stated that WAR was
required to submit original copies of all releases to the
circuit clerk, yet to date WAR had failed to submit to the
circuit clerk an original copy of a release from Heritage
Masonry. In fact, however, SEC acknowledges that it received
directly from WAR the original copy of the Heritage Masonry
release and that the language of that release is satisfactory
in all respects. Thus, it would appear that the only reason
the circuit clerk is not in possession of that original copy
is because SEC has not sent it to the clerk. We agree with
the circuit court that WAR has fulfilled its obligation to
submit the required releases inasmuch as "[t]he provision for
WAR's filing the original release with the clerk was for WAR's
benefit" and WAR apparently waived that protection by sending
15
1140212
the original release directly to SEC and a copy to the circuit
clerk.
Contrary to SEC's assertion, nothing in SEC II prevents
WAR from waiving the protection offered by the circuit court's
creation of a mechanism by which to exchange the releases for
payment of the arbitration award. SEC argued in SEC II that
the January 9, 2013, order was improper, and we stated:
"Although there appears to be some merit to
SEC's argument that the January 9 order changes the
manner in which SEC and WAR were asked to fulfill
their obligations under the arbitration award and
the May 9 judgment, it does not relieve WAR of any
of its obligations. WAR is still required to
provide
'reasonably
appropriate
and
adequate
releases' of its liens and claims and the liens and
claims of the relevant subcontractors before it can
receive the money it is owed by SEC. The January 9
order effectuates the intent of the arbitration
award that the liens and claims against SEC be
released and that the money owed to WAR be paid."
159 So. 3d at 1236. Thus, we recognized that the January 9
order was proper inasmuch as it effectuated the intent of the
arbitration award that the releases be given and the award
paid. Although we did not find error in the procedure the
circuit court had set up to facilitate the exchange, we did
not hold that the circuit court had to rigidly adhere to that
procedure or that the circuit court was barred from modifying
16
1140212
that procedure in any way on remand if so doing would better
bring about the ultimate end sought –– an exchange of releases
and payment of the award. The arbitration award in fact
stated that SEC was to pay the award "upon [SEC's] receipt of
reasonably appropriate and adequate releases of liens and
claims against [SEC]" (emphasis added), and it is undisputed
that SEC actually received the original, satisfactory, final
release from Heritage Masonry. The circuit court was
satisfied with the manner in which WAR complied with its
instructions to provide the release, and we are as well.
IV.
SEC next argues that, even if WAR has satisfactorily
provided all required releases, the circuit court erred by
ordering SEC to pay interest on the arbitration award from the
date of the arbitration award –– February 16, 2011 –– instead
of from a date no earlier than September 8, 2014, the date WAR
moved the circuit court to enforce the judgment entered on the
arbitration award and submitted to the circuit clerk a copy of
the Heritage Masonry release sent to SEC on June 12. The
circuit court held that interest should accrue from the
February 16 date because the arbitration award itself
17
1140212
expressly provided that interest "shall accrue ... from the
date of the award" and because the arbitration panel declined
to modify that part of its award even after modifying the
award to provide that SEC did not have to make payment until
after SEC received the releases it sought. Notwithstanding
4
that aspect of the arbitration award, however, SEC argues that
the circuit court had previously held in the January 9, 2013,
order that was the subject of SEC II that interest would begin
to accrue on the date WAR notified the circuit court that it
had complied with the requirement that it provide releases,
that WAR had failed to appeal that aspect of the circuit
court's judgment, and that that holding accordingly
became
the
law of the case. For the reasons that follow, we agree.
WAR first told the circuit court that it had provided SEC
with the required releases on May 13, 2011. SEC thereafter
notified the circuit court that it was still missing releases
from some subcontractors; however, before the circuit court
could resolve that dispute, SEC initiated the appeal that was
It bears noting that the arbitration panel contemplated
4
that the releases would be provided and final payment would be
made no later than May 13, 2011, approximately three months
after the initial award was made –– not more than four years
later.
18
1140212
the subject of SEC I. Following the release of our opinion in
SEC I, the circuit court again took up the matter and, on
January 9, 2013, issued its order holding that WAR had
attempted to comply with the requirement imposed upon it to
produce releases when it filed its May 13, 2011, notice of
compliance and that, "therefore, the interest awarded by the
arbitrators is applicable from May 13, 2011, to the date of
payment to the clerk." Although SEC subsequently appealed the
January 9 order, WAR did not. Thus, for all that appears, WAR
had no complaint with the circuit court's holding regarding
the date interest should begin to accrue, and, had this Court
concluded in SEC II that all the submitted releases were
adequate, the circuit court's judgment would have been
affirmed, and WAR would have received interest from that May
13 date set by the circuit court. Because the circuit court's
judgment would have been wholly affirmed in such a scenario,
WAR, as the prevailing party, would not have been entitled
even to file an application for rehearing challenging the
calculation of interest because it had not first raised that
issue in its own appeal. See Rule 40(a), Ala. R. App. P. ("A
19
1140212
party who has not prevailed may apply for a rehearing ...."
(emphasis added)).
Of course, this Court did not in SEC II conclude that all
the releases were adequate, and the cause was instead remanded
to the circuit court for further proceedings so that WAR could
procure and provide proper releases. However, before doing
so, we further noted that the circuit court had "erred in
finding that WAR had 'attempt[ed] to comply with what the
Supreme Court has ordered this court to implement as of May
13, 2011,' and that it was entitled to have interest owed
under the arbitrators' award and the May 9 judgment calculated
from that date." 159 So. 3d at 1238. The clear implication
of this statement –– in light of the total lack of any
argument by WAR at this time that it was entitled to interest
from February 16, 2011 –– is that interest was to begin to
accrue only when, in fact, the circuit court could confirm
that WAR had actually complied with the requirement imposed
upon it to produce the required adequate releases, not merely
made an attempt to do so. That date was September 8, 2014.
WAR first made the claim that interest began to accrue on
February 16, 2011, in an application for rehearing filed after
20
1140212
our opinion in SEC II was released; however, that argument had
already been waived at that point because it was not made
earlier. Randolph, 833 So. 2d at 608. Thus, post-SEC II,
both the circuit court and this Court had indicated that
interest would not be calculated based on the date of the
arbitration award; rather, interest would be tied to the date
the court confirmed that WAR had produced the ordered
releases. SEC II merely made it clear that it was the date
the
court confirmed
actual
compliance,
not
attempted
compliance, that mattered. Accordingly, the question whether
WAR was entitled to interest from February 16, 2011, was
effectively answered in the negative at this point, and that
answer became the law of the case. This Court has explained
the law-of-the-case doctrine as follows:
"'"Under the doctrine of the 'law of the
case,'
whatever
is
once
established
between
the same parties in the same case continues
to be the law of that case, whether or not
correct on general principles, so long as
the facts on which the decision was
predicated continue to be the facts of the
case." Blumberg v. Touche Ross & Co., 514
So. 2d 922, 924 (Ala. 1987). See also
Titan Indem. Co. v. Riley, 679 So. 2d 701
(Ala. 1996). "It is well established that
on remand the issues decided by an
appellate court become the 'law of the
case,' and that the trial court must comply
21
1140212
with the appellate court's mandate." Gray
v. Reynolds, 553 So. 2d 79, 81 (Ala.
1989).'
"Southern United Fire Ins. Co. v. Purma, 792 So. 2d
1092, 1094 (Ala. 2001). In the words of Justice
Holmes, the doctrine of the law of the case 'merely
expresses the practice of courts generally to refuse
to reopen what has been decided ....' Messinger v.
Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed.
1152 (1912)(emphasis added)."
Bagley v. Creekside Motors, Inc., 913 So. 2d 441, 445 (Ala.
2005).
We further discussed the law-of-the-case doctrine in SEC
II with regard to SEC's repeated argument that it was
permanently excused from paying the arbitration award because
WAR did not submit the required releases by the date
originally ordered by the arbitration panel, citing
Scrushy
v.
Tucker, 70 So. 3d 289, 303-04 (Ala. 2011), for the principle
that a party cannot, in a subsequent appeal, "'"'relitigate
issues which were resolved by the Court in the first appeal or
which would have been resolved had they been properly
presented in the first appeal.'"'" 159 So. 3d at 1235-36
(quoting Kortum v. Johnson, 786 N.W.2d 702, 705 (N.D. 2010),
quoting in turn State ex rel. North Dakota Dep't of Labor v.
Riemers, 779 N.W.2d 649 (N.D. 2010) (emphasis omitted)).
22
1140212
WAR's argument that interest should accrue from February 16,
2011, would have been considered had it been properly
presented; however, it was not, and the issue was finally
decided in SEC II. WAR could not revive the issue via the
application for rehearing filed after the release of our
opinion in SEC II, and our decision became the law of the
case. Accordingly, the circuit court erred on remand by
entering a judgment that did not comply with SEC II inasmuch
as it awarded interest based on the date of the arbitration
award and not based on the date WAR filed notice with the
circuit court that it had complied with the requirement that
it produce the ordered releases.
V.
Following the decision of this Court in SEC II, the
circuit court entered a judgment holding that WAR had finally
provided the releases necessary to obligate SEC to pay the
outstanding $263,939 judgment previously entered by the court
on an arbitration award obtained by WAR against SEC, along
with interest accruing from February 16, 2011 –– the date the
arbitration award was made. We now affirm that judgment to
the extent it holds that WAR has provided all required
23
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releases and that SEC is now obligated to fulfill the judgment
entered on the arbitration award. However, we reverse the
judgment inasmuch as it holds that SEC is required to pay
interest on the award as calculated from February 16, 2011.
On remand, the circuit court is instructed to calculate
interest on the principal at the rate set forth in the
arbitration award accruing from September 8, 2014.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main,
Wise, and Bryan, JJ., concur.
24 | June 26, 2015 |
9d5a257e-9843-456f-b129-893f5a49e6d6 | American Bankers Insurance Company of Florida v. Gwendolyn Moody | N/A | 1131264 | Alabama | Alabama Supreme Court | rel: 06/26/2015
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, 2014-2015
____________________
1131244
____________________
American Bankers Insurance Company of Florida
v.
Gladys Tellis
Appeal from Macon Circuit Court
(CV-14-900033)
____________________
1131245
____________________
American Bankers Insurance Company of Florida
v.
Sherry Bronson
Appeal from Macon Circuit Court
(CV-14-900025)
____________________
1131264
____________________
American Bankers Insurance Company of Florida
v.
Gwendolyn Moody
Appeal from Chambers Circuit Court
(CV-14-900022)
____________________
1131384
____________________
American Bankers Insurance Company of Florida
v.
Nadine Ivy
Appeal from Bullock Circuit Court
(CV-14-900015)
____________________
1131514
____________________
American Bankers Insurance Company of Florida
v.
Uneeda Trammell
Appeal from Chambers Circuit Court
(CV-14-900020)
1131244, 1131245, 1131264, 1131384, 1131514
STUART, Justice.
Gladys Tellis, Sherry Bronson, Gwendolyn Moody, Nadine
Ivy,
and
Uneeda
Trammell
(hereinafter
referred
to
collectively
as "the policyholders") initiated separate actions against
American Bankers Insurance Company of Florida ("American
Bankers"), asserting generally that American Bankers had sold
them homeowner's insurance policies providing a level of
coverage they could never receive, even in the event of a
total loss involving the covered property. American Bankers
thereafter moved the trial court hearing each action to compel
arbitration
pursuant
to
arbitration
provisions
it
alleged
were
part of the subject policies; however, the trial courts denied
those motions, and American Bankers now appeals. We
consolidated the five appeals for the purpose of writing one
opinion. We reverse and remand.
I.
The facts underlying each of these five consolidated
appeals are substantially identical. Sometime in 2012 or 2013
each of the policyholders renewed a homeowner's insurance
policy he or she had previously obtained from American
Bankers. Thereafter, each concluded that he or she was paying
3
1131244, 1131245, 1131264, 1131384, 1131514
excessive premiums inasmuch as the policies provided a level
of coverage that allegedly far exceeded the value of the
covered properties; in other words, the policyholders allege
that they were overinsured inasmuch as they could never
receive the policy limits even if the covered property was
declared a total loss. In February 2014, the policyholders
separately
sued
American
Bankers,
alleging
breach
of
contract,
several species of fraud, unjust enrichment, and negligence
and/or wantonness.
American Bankers thereafter moved the trial courts in
which these actions were filed –– the Bullock Circuit Court,
the Chambers Circuit Court, and the Macon Circuit Court –– to
compel arbitration pursuant to the following arbitration
provision it alleged was contained in the policyholders'
policies:
"Any and all claims, disputes, or controversies
of any nature whatsoever ... arising out of,
relating to, or in connection with (1) this policy
or certificate or any prior policy or certificate
issued by us to you ... shall be resolved by binding
arbitration before a single arbitrator. All
arbitrations shall be administered by the American
Arbitration Association ('AAA') in accordance with
its
Expedited
Procedures
of
the
Commercial
Arbitration Rules of the AAA in effect at the time
the claim is filed."
4
1131244, 1131245, 1131264, 1131384, 1131514
The policyholders opposed the motions to compel arbitration,
arguing that they had never consented to arbitrate their
claims, that they had not signed any documents containing an
arbitration provision, and that the arbitration provision in
the policies was unconscionable. The trial courts thereafter
denied
each
of
American
Bankers'
motions
to
compel
arbitration, and American Bankers separately appealed those
denials to this Court pursuant to Rule 4(d), Ala. R. App. P.
This Court consolidated the appeals based on the similarity of
the facts and the issues presented.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
5
1131244, 1131245, 1131264, 1131384, 1131514
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In order to answer the ultimate question in these cases
–– whether the trial courts erred in denying American Bankers'
motions to compel arbitration –– we must address three issues:
(1) whether the parties agreed to arbitrate the claims
asserted in the policyholders' complaints; (2) whether the
underlying transactions, i.e., the sale of the insurance
policies, affected interstate commerce; and (3) whether the
arbitration
provision
in
the
subject
policies
is
unconscionable. With regard to the first issue, American
Bankers submitted to the respective trial courts a copy of the
policy allegedly issued to each of the policyholders.
Included as part of those policies are basically two forms
referencing arbitration: form AJ9821EPC-0608 and form N1961-
0798. Form AJ9821EPC-0608 is entitled "Arbitration Provision
1
The policy issued to Moody, the plaintiff in appeal no.
1
1131264, included form AJ8654EXX-0604 instead of form
AJ9821EPC-0608; however, those two forms appear to be
6
1131244, 1131245, 1131264, 1131384, 1131514
Alabama" and contains a general arbitration provision,
part of
which is quoted above. Form N1961-0798 is entitled "Important
notice about the policy/certificate of insurance for
which
you
have applied" and explains generally what arbitration is and
states that the policy contains a binding arbitration
agreement pursuant to which the insured and the insurer waive
the right to trial in a court of law. Although form N1961-
0798 contains a signature line for the applicant, a co-
applicant, and a witness, it is undisputed that none of the
policyholders executed this form. The policyholders have
further executed affidavits swearing that they never received
or signed either form –– or any other document related to
their American Bankers' policies purporting to be an
arbitration provision –– when applying for insurance or at
anytime thereafter until the commencement of this litigation.
They further state that they never would have purchased
coverage from American Bankers had they been presented with
the arbitration provision American Bankers now seeks to
enforce.
identical in all material ways. For convenience, we
hereinafter include Moody's form in any reference to form
AJ9821EPC-0608.
7
1131244, 1131245, 1131264, 1131384, 1131514
American Bankers concedes that the policyholders never
signed
form
N1961-0798
or
separate
arbitration
agreements,
but
it argues that they nevertheless assented to the arbitration
provision in their policies. In support of its argument that
an arbitration provision in an insurance policy can be
effective even if not disclosed in the application and even
without the insured's signature, American Bankers cites
Southern United Fire Insurance Co. v. Howard, 775 So. 2d 156,
162-63 (Ala. 2000), which provides:
"[The plaintiff] argues that he did not assent
to the arbitration provision in the insurance policy
because the arbitration provision was not included
in the insurance application and because he did not
sign the insurance policy. First, a contractual
agreement to arbitrate may be found invalid only
'upon such grounds as exist at law or in equity for
the revocation of any contract.' 9 U.S.C. § 2. It
is not a requirement of Alabama contract law that
for a contract provision to be enforceable it must
have appeared also in the application to enter into
the contract. See Ex parte Foster, 758 So. 2d 516
(Ala. 1999). Thus, the arbitration provision need
not have appeared in the application for insurance
for the parties to be bound by it. Second, '[t]his
Court is required to compel arbitration if, under
"ordinary state-law principles that govern the
formation of contracts," the contract containing the
arbitration clause is enforceable.' Quality Truck
& Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167
(Ala. 1999). Alabama's general contract law permits
assent to be evidenced by means other than
signature, and, thus, the contract of insurance and
the arbitration provision contained in it can be
8
1131244, 1131245, 1131264, 1131384, 1131514
enforceable by the parties in the absence of
signatures, where the evidence establishes the
existence of the agreement. [The defendant insurance
company's] insurance policy is not subject to either
of Alabama's Statutes of Frauds, see Ala. Code §§
7–2–201 and 8–9–2, nor is it made contingent upon
the condition precedent that it be signed by [the
plaintiff]. [The plaintiff] accepted and acted upon
[the defendant's] insurance policy, which contained
the arbitration provision, by paying premiums,
renewing the policy, and submitting a claim under
the policy. Therefore, because [the plaintiff]
ratified the policy, the absence of his signature
does not render the policy, or the arbitration
provision contained in it, unenforceable."
(Footnote
omitted.)
American
Bankers
similarly
maintains
that
the policyholders have manifested their assent to arbitration
in these cases by accepting and acting upon the insurance
policies containing the arbitration provision.
Our caselaw supports American Bankers' position. Beyond
Howard, this Court has considered multiple other appeals in
which parties have sought to avoid arbitration provisions in
insurance
policies
by
claiming
that
the
arbitration
provisions
were not disclosed to them or that they never received a copy
of the policy containing the arbitration provision. In Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998), the plaintiffs
argued that they never agreed to arbitrate their claims
because their application for insurance did not mention
9
1131244, 1131245, 1131264, 1131384, 1131514
arbitration and because they did not sign the endorsement
attached to the policy that contained the arbitration clause.
This Court rejected those arguments, noting that "[m]any
parts
of an insurance policy are not mentioned in the application"
and
explaining further
that
the
unsigned
endorsement
containing the arbitration clause was part of the issued
policy because the policy expressly stated that "'[t]his
policy with any attached papers is the entire contract between
you and the [insurance] Company.'" 712 So. 2d at 335. See
also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000) ("Under
state-law
principles of
contract
interpretation,
parties
may
be
bound
by
documents
incorporated
by reference.").
It is unclear exactly what parts of the insurance policy
the
policyholders
acknowledge
receiving
in
this
case;
however,
they have stated in their affidavits only that they did not
receive the two identified forms specifically discussing
arbitration or any other document purporting to be an
arbitration agreement. Thus, they presumably received the
rest of the policy American Bankers submits was issued to
them, including the declarations page and the
written
insuring
10
1131244, 1131245, 1131264, 1131384, 1131514
agreement, which provides that "[t]his policy is not complete
without the declarations page." The declarations page lists
forms AJ9821EPC-0608 and N1961-0798 as part of the included
"forms and endorsements." Although the policyholders claim
2
not to have received forms AJ9821EPC-0608 and
N1961-0798,
they
had some duty to investigate the contents of those forms
because the declarations page indicated that the forms were
part of the policy. See, e.g., Alfa Life Ins. Co. v. Colza,
159 So. 3d 1240, 1249-50 (Ala. 2014) (noting that insurance
policyholders have a duty to read the documents provided them
and are charged with the knowledge such a reading would impute
to them), and McDougle v. Silvernell, 738 So. 2d 806, 808
(Ala. 1999) (stating that a party to a contract that fails to
inform himself or herself of extraneous facts or other
documents incorporated into the contract is nevertheless
"bound thereby" (quoting Ben Cheeseman Realty Co.
v.
Thompson,
216 Ala. 9, 12, 112 So. 151, 153 (1927))). We further note
that this Court has also enforced arbitration provisions in
The declarations page lists forms AJ9821EPC-0608 and
2
N1961-0798 as forms "AJ9821EPC 06/08" and "N1961 07/98,"
respectively. With regard to Moody, the declarations page in
her policy lists form AJ8654EXX-0604 as form "AJ8654EXX
06/04."
11
1131244, 1131245, 1131264, 1131384, 1131514
insurance policies where the plaintiffs claimed never to have
received the written policies containing the provisions.
See,
e.g., Ex parte Southern United Fire Ins. Co., 843 So. 2d 151,
156 (Ala. 2002) (enforcing an arbitration provision even
though it was claimed that "[the plaintiff] did not receive a
copy of either the policy or the arbitration rules referenced
in the policy"), and Philadelphia American Life Ins. Co. v.
Bender, 893 So. 2d 1104, 1109 (Ala. 2004) (enforcing an
arbitration provision in an insurance policy even though the
plaintiff "claims that he did not receive a copy of the
policy").
Finally, we note that this Court has, on other occasions,
considered similar cases involving financial agreements other
than insurance policies in which parties have challenged
arbitration
provisions
they
alleged
were
subsequently
added
to
the agreements without their express consent or knowledge. We
have uniformly recognized that a signature or express consent
is not required to give effect to the new arbitration
provisions; rather, we have held that the parties effectively
manifested their assent to the added provisions by continuing
the relationship after the arbitration provision was added.
12
1131244, 1131245, 1131264, 1131384, 1131514
We summarized some of these insurance and non-insurance cases
as follows in Providian National Bank v. Screws, 894 So. 2d
625, 627 (Ala. 2003):
"This
Court
has
previously
enforced
an
arbitration
provision
added
to
credit-card
agreements by amendment. See Ex parte Colquitt, 808
So. 2d 1018 (Ala. 2001). Further, this Court has
continually held that express assent is not required
in order for an arbitration provision to be
enforceable. SouthTrust Bank v. Williams, 775 So.
2d 184, 189 (Ala. 2000) (holding that an arbitration
provision added to a customer's account agreement by
notice was valid and enforceable); Woodmen of the
World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 367
(Ala. 1999) (holding that express assent to an
arbitration provision is not required when the
arbitration provision is added by amendment); Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998) (noting
that the inclusion of an arbitration provision is
not a material alteration to an insurance policy
requiring
a
signed
application);
Southern
Foodservice Mgmt., Inc. v. American Fid. Assurance
Co. 850 So. 2d 316 (Ala. 2002)(same)."
We note that, like the policyholders in these cases, the
plaintiffs in Ex parte Colquitt, 808 So. 2d 1018, 1021 n. 1
(Ala. 2001), and Woodmen of the World Life Insurance Society
v. Harris, 740 So. 2d 362, 366 n. 6 (Ala. 1999), claimed not
to have seen any notice that would have apprised them of the
fact that an arbitration provision was made part of their
agreements.
13
1131244, 1131245, 1131264, 1131384, 1131514
In sum, although the policyholders did not execute stand-
alone arbitration agreements or necessarily even read or
receive the insurance policies containing the arbitration
provisions, they have nevertheless manifested their assent to
those
policies
and,
necessarily,
the
arbitration
provisions
in
them, by accepting and acting upon the policies, inasmuch as
they all affirmatively renewed their policies and paid their
premiums, thus ratifying the policies. Howard, 775 So. 2d at
162-63. See also SouthTrust Bank v. Williams, 775 So. 2d 184,
189 (Ala. 2000) (stating that parties that "continued the
business
relationship
after
the
interposition
of
the
arbitration
provision"
"implicitly
assented
to
the
addition
of
the arbitration provision"). This holding is consistent with
our previous caselaw interpreting arbitration provisions in
insurance policies. Because the policyholders assented to,
3
We note that the policyholders have not asked us to
3
overrule Howard, Ex parte Rager, Ex parte Southern United,
Bender, or other cases in which this Court has reached similar
holdings. Indeed,
although
American Bankers discussed most of
these cases in the initial brief it filed with this Court, the
policyholders have not responded to American Bankers'
discussion of those cases or otherwise attempted to
distinguish the cases in their response brief, much less asked
us to overrule them. "Stare decisis commands, at a minimum,
a degree of respect from this Court that makes it disinclined
to overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
14
1131244, 1131245, 1131264, 1131384, 1131514
and are therefore subject to, the arbitration provision in
their insurance policies, we conclude that they agreed to
arbitrate the claims asserted in their complaints inasmuch as
those claims "aris[e] out of, relat[e] to, [and are]
connect[ed] with" those insurance policies.
Having established that the policyholders at least
ratified the insurance policies issued to them by American
Bankers and that those policies call for arbitration, we must
next address whether the sale of those policies affected
interstate commerce so as to require enforcement of the
policies' arbitration provision under the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The policyholders wisely do not
argue that American Bankers' sale of these insurance policies
does not affect interstate commerce; rather, they argue only
that American Bankers failed to put forth any evidence that
would establish that fact. See, e.g., Service Corp. Int'l v.
Fulmer, 883 So. 2d 621, 629 (Ala. 2003) (explaining that, in
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
inclined to abandon precedent without a specific
invitation
to
do so").
15
1131244, 1131245, 1131264, 1131384, 1131514
light of decisions of the Supreme Court of the United States,
"a trial court evaluating a contract connected to some
economic or commercial activity would rarely, if ever, refuse
to compel arbitration on the ground that the transactions
lacked 'involvement' in interstate commerce"), and Potts v.
Baptist Health Sys., Inc., 853 So. 2d 194, 199 (Ala. 2002)
("The burden of proof was on the [parties moving to compel
arbitration] to provide evidence demonstrating that [the
subject]
contract,
or
the
transaction
it
evidenced,
substantially affected interstate commerce.").
It appears that, in at least some of these consolidated
appeals, American Bankers made an additional evidentiary
submission intended to establish that the sale to certain of
the policyholders of these insurance policies affected
interstate commerce once it became apparent that the
policyholders would contest that issue; however, the trial
courts thereafter struck those submissions as being tardy.
Hence, the policyholders argue that American Bankers has
failed to put forth evidence that would satisfy the
interstate-commerce requirement. However, even without
considering those submissions, it is clear from the
undisputed
16
1131244, 1131245, 1131264, 1131384, 1131514
facts and the evidence in the record that these transactions
affected interstate commerce. As evidenced by the copies of
the insurance policies that are in the record in each case,
the policyholders are all Alabama residents and the subject of
each insurance policy is property located in Alabama. Those
same policies also indicate that American Bankers –– the full
corporate name is reflected on the policy as American Bankers
Insurance Company of Florida –– has a Florida address and that
the agent for each of the policies is shown as having either
a Florida or a Minnesota address. This diversity of
citizenship between the parties is sufficient to establish
that the transactions between them affected interstate
commerce. See, e.g., America's Home Place, Inc. v. Rampey,
[Ms. 1130150, October 24, 2014] ___ So. 3d ___ n. 2 (Ala.
2014) (indicating that the interstate-commerce requirement is
met when a contract showed on its face that the company
constructing a house in Alabama "listed its place of business
as being in 'Hall County, Gainesville, GA'"); DecisionQuest,
Inc. v. Hayes, 863 So. 2d 90, 95 (Ala. 2003) ("'"[A]ll
interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test,
17
1131244, 1131245, 1131264, 1131384, 1131514
of interstate commerce; and every negotiation, contract,
trade, and dealing between citizens of different states,
which
contemplates and causes such importation, whether it be of
good, person, or information, is a transaction of interstate
commerce."'" (quoting Uncle Ben's, Inc. v. Crowell, 482 F.
Supp. 1149, 1154 (E.D. Ark. 1980), quoting in turn Furst v.
Brewster, 282 U.S. 493, 497 (1931))); and Ex parte Dyess, 709
So. 2d 447, 450 (Ala. 1997) ("[T]he policy issued by American
Hardware [Insurance Group, Inc.,] to Jack Ingram Motors[,
Inc.,] involves interstate commerce because the policy was
between corporations of different states. Therefore, the
Federal Arbitration Act applies ....").4
Our final inquiry, therefore, is whether the arbitration
provision in the subject policies is unconscionable. In
We further note that the policyholders have filed
4
stipulations indicating that they are not seeking, and will
not accept, any award of damages that exceeds $74,999.99.
These stipulations were presumably filed in recognition
of
the
diversity
of
citizenship
that
exists
between
the
policyholders
and American Bankers and a desire to avoid the possibility of
the underlying cases being removed to federal court pursuant
to 28 U.S.C. § 1332 (granting federal district courts original
jurisdiction over all civil actions involving citizens of
different states where the value of the dispute exceeds
$75,000).
18
1131244, 1131245, 1131264, 1131384, 1131514
Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala.
2004), this Court stated:
"'[T]here is nothing inherently unfair or
oppressive about arbitration clauses,' Coleman v.
Prudential Bache Sec., Inc., 802 F.2d 1350, 1352
(11th Cir. 1986), and arbitration agreements are not
in themselves unconscionable, Ex parte McNaughton,
728 So. 2d 592, 597–98 (Ala. 1998). Instead,
unconscionability is an affirmative defense, and the
party asserting the defense bears the burden of
proof. Conseco Fin. v. Murphy, 841 So. 2d 1241,
1245 (Ala. 2002)."
In support of their argument that the arbitration provision in
their insurance policies is unconscionable, the policyholders
cite Anderson v. Ashby, 873 So. 2d 168 (Ala. 2003), for the
broad
proposition
that
an
arbitration
provision
is
unconscionable when the terms of the provision are grossly
favorable to a party that has overwhelming bargaining power,
but they otherwise rely entirely upon an August 2013 order
entered by an El Paso County, Texas, trial court finding a
certain arbitration provision before it to be unconscionable.
The arbitration provision in that case, Cardwell v.
Whataburger Restaurants, LLC, case no. 2013DCV0910, similarly
provided that arbitration would be administered by the
American Arbitration Association ("the AAA"); however, the El
Paso trial court declared the provision to be unconscionable
19
1131244, 1131245, 1131264, 1131384, 1131514
and refused to enforce it based on its belief that the fees
charged by the AAA were too high, regardless of whether they
were ultimately paid by the plaintiff or the defendant and
that the defendant was essentially trying to purchase a more
favorable forum for the dispute.
Of course, any precedential value of the El Paso County
court's judgment is limited to its interpretation of Texas
law. See, e.g., Pritchett v. State Farm Mut. Auto. Ins. Co.,
834 So. 2d 785, 794 (Ala. Civ. App. 2002) ("Any precedential
value of the Rhode Island Superior Court's judgment ... is
limited to its interpretation of Rhode Island law.").
However, even that limited precedential value evaporates if
the judgment is reversed on appeal, and, in fact, that is the
case with the El Paso court's judgment because, on October 24,
2014 –– well before briefs were submitted in these appeals ––
the Texas Court of Appeals reversed the El Paso trial court's
order based on "the trial court's clear failure to properly
analyze and apply the law of unconscionability." Whataburger
Rests. LLC v. Cardwell, 446 S.W.3d 897, 913 (Tex. App. 2014).
Moreover, to the extent the policyholders are arguing
that the arbitration provision is unconscionable because of
20
1131244, 1131245, 1131264, 1131384, 1131514
the financial burden arbitration would
impose upon them,
their
argument is not supported by the evidence in the record and,
in many respects, is contradicted by the evidence in the
record. First, there is no evidence in the record of the
policyholders' financial status that would indicate that they
can not afford to pay the costs of arbitration. See Leeman,
902 So. 2d at 651-52 (noting that there was no evidence in the
record of the plaintiffs' income or wealth that would indicate
that they would not be able to pay the fees and costs of
arbitration and concluding that the plaintiffs accordingly
"have not demonstrated that the arbitration provision in
[their contract with the defendant] is unconscionable on that
basis").
Second,
the
arbitration
provision
in
the
policyholders'
policies
expressly
provides
that
"[t]he
cost[s]
of all arbitration proceeding[s] shall be paid by [American
Bankers], with the exception of the cost of representation of
[the policyholder]" and that arbitration proceedings in each
case
"shall
be
conducted
in
the
county
where
[the
policyholder] reside[s], unless another location is mutually
agreed upon in writing."
21
1131244, 1131245, 1131264, 1131384, 1131514
In Commercial Credit Corp. v. Leggett, 744 So. 2d 890
(Ala. 1999), this Court considered an argument that an
arbitration provision was unconscionable for financial-
hardship reasons because it obligated the party initiating
arbitration to pay $125, while the defendant company agreed to
pay for the first eight hours of the arbitration proceedings,
the losing party to then be responsible for paying the costs
associated
with
any
additional
proceedings,
if
such
proceedings were necessary. We stated:
"It is difficult to see how a party who truly
believes she has a meritorious cause of action can
view these provisions as particularly onerous. [The
plaintiff] would initially have to pay only $125.00
to commence the process. Subsequently, the
defendants
would
pay
for
the
first
day
of
proceedings, regardless of the outcome. The losing
party would then pay for the remainder of the
proceedings.
In
fact,
the
only
parties
disadvantaged by these cost provisions are the
losing parties –– whoever they might be.
"In short, th[is] arbitration provision[] [is]
not 'unreasonably favorable to [the defendants],'
nor [is it] 'oppressive, one-sided, or patently
unfair.' Layne [v. Garner], 612 So. 2d [404,] 408
[(Ala. 1992)]."
744 So. 2d at 898. The arbitration provision in the instant
cases places even more of the cost burden for arbitration upon
American Bankers, and, in light of that fact and the record
22
1131244, 1131245, 1131264, 1131384, 1131514
before us, we find the policyholders' complaint of excessive
costs to be disingenuous. The policyholders have failed to
5
meet their burden of proof as to unconscionability;
accordingly, we decline to invalidate the arbitration
provision on that basis.
IV.
The policyholders sued American Bankers, asserting
various claims based on American Bankers' sale to them of
insurance policies allegedly providing more coverage than the
policyholders needed and could ever possibly benefit from.
The
trial courts thereafter
denied
American
Bankers'
subsequent motions to compel arbitration of the claims
asserted against it by the policyholders. We now reverse
those orders denying the motions to compel arbitration, based
We recognize that the arbitration provision in these
5
cases also authorizes the arbitrator to require the
policyholder to pay all arbitration costs if it is determined
that the policyholder's claim "is without substantial
justification." However, similar authority is held by a trial
court judge, who can require a party to pay not only court
costs, but also attorney fees. See § 12-19-272(c), Ala. Code
1975 ("The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or
party brought an action or any part thereof, or asserted any
claim or defense therein, that is without substantial
justification ...." (emphasis added)).
23
1131244, 1131245, 1131264, 1131384, 1131514
upon our holdings that the policyholders manifested their
assent to the arbitration provision in their policies by
continuing to renew the policies, that the sale of the
policies
affected
interstate
commerce,
and
that
the
arbitration provision in the policies is not unconscionable.
These causes are accordingly remanded for the trial courts to
enter new orders granting American Bankers' motions to compel
arbitration.
1131244 –– REVERSED AND REMANDED.
1131245 –– REVERSED AND REMANDED.
1131264 –– REVERSED AND REMANDED.
1131384 –– REVERSED AND REMANDED.
1131514 –– REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Bryan, J., concurs in the result.
Moore, C.J., and Murdock, J., dissent.
24
1131244, 1131245, 1131264, 1131384, 1131514
MOORE, Chief Justice (dissenting).
I respectfully, but strongly, dissent in these appeals
involving predispute arbitration agreements. It is undisputed
that the policyholders never signed the provision American
Bankers Insurance Company of Florida ("American Bankers")
seeks to enforce. Nevertheless, the main opinion holds that
the policyholders ratified the arbitration provision because
it was referenced on the declarations page of the policies and
because the policyholders paid premiums to renew
the
policies.
I cannot agree with that holding for two reasons. First, an
application of the Federal Arbitration Act ("the FAA"), 9
U.S.C. § 1 et seq., which is the basis for enforcing the
"purported"
arbitration
provision
in
this
case,
is
unconstitutional under the Seventh Amendment to the United
States Constitution. Second, because the right to a jury in
this case is a right secured by the Seventh Amendment to the
United States Constitution, any waiver of that right must be
knowing, willing, and voluntary, and the policyholders'
purported waiver in this case did not meet those requirements.
25
1131244, 1131245, 1131264, 1131384, 1131514
This Court now takes the crooked path of precedent in this
case and arrives at a truly erroneous conclusion.
6
I. Seventh Amendment
The Seventh Amendment to the United States Constitution
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
Any law, statute, or rule that takes away the right of a trial
by jury would violate the Seventh Amendment. It bears
repeating that "a law repugnant to the constitution is void."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also U.S. Const. art. VI, cl. 2 ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof ... shall be the supreme Law of the Land ...."
(emphasis added)). The FAA is no exception. See Ex parte
Hagan, 721 So. 2d 167, 174 n.3 (Ala. 1998) ("Certainly, the
See Lorence v. Hospital Bd. of Morgan Cnty., 294 Ala.
6
614, 618-19, 320 So. 2d 631, 634-35 (1975) (reproducing a poem
by Sam Walter Foss to illustrate the absurdity of blindly
following precedent and stating: "The quaint poetic lines of
Sam Walter Foss put in perspective the philosophy of those
courts which feel compelled to sacrifice their sense of reason
and justice upon the altar of the Golden Calf of precedent.").
26
1131244, 1131245, 1131264, 1131384, 1131514
FAA and arbitration clauses cannot be given precedence over
constitutional provisions, such as the Seventh and Fourteenth
Amendments to the Constitution of the United States."). But in
spite of the Constitution's protection of the right to a jury
trial in civil cases, courts have interpreted the FAA to take
away that most valuable right, even before a dispute arises or
any injury or cause of action exists.
Such an interpretation of the FAA is erroneous because
Congress, when it enacted the FAA in 1925, intended it to be
a rule of procedure in federal courts (not applicable to state
courts) involving only a specific class of contracts in
interstate commerce. I am not the only Justice, either on
7
this Court or on the United States Supreme Court, to hold this
view. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), Justice Black, joined by Justice
Douglas and Justice Stewart, argued in his dissent:
"[I]t is clear that Congress in passing the [Federal
Arbitration] Act relied primarily on its power to
create general federal rules to govern federal
I have explained elsewhere that Congress enacted the FAA
7
under its Article III powers to prescribe rules of procedure
for federal courts but that the courts have misinterpreted the
FAA as an exercise of Congress' Article I power over
interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824
So. 2d 668, 677-91 (Ala. 2001) (Moore, C.J., dissenting).
27
1131244, 1131245, 1131264, 1131384, 1131514
courts. Over and over again the drafters of the Act
assured
Congress:
'The
statute
establishes
a
procedure in the Federal courts .... It rests upon
the constitutional provision by which Congress is
authorized to establish and control inferior Federal
courts. So far as congressional acts relate to the
procedure in the Federal courts, they are clearly
within the congressional power.' And again: 'The
primary purpose of the statute is to make enforcible
in
the
Federal
courts
such
agreements
for
arbitration, and for this purpose Congress rests
solely upon its power to prescribe the jurisdiction
and duties of the Federal courts.' One cannot read
the legislative history without concluding that this
power, and not Congress' power to legislate in the
area of commerce, was the 'principal basis' of the
Act. Also opposed to the view that Congress intended
to create substantive law to govern commerce and
maritime transactions are the frequent statements in
the legislative history that the Act was not
intended to be 'the source of ... substantive law.'
As Congressman Graham explained the Act to the
House:
"'It
does
not
involve
any
new
principle of law except to provide a simple
method ... in order to give enforcement
.... It creates no new legislation, grants
no new rights, except a remedy to enforce
an agreement in commercial
contracts and in
admiralty contracts.' ...
"Finally, there are clear indications in the
legislative history that the Act was not intended to
make arbitration agreements enforceable in state
courts or to provide an independent federal-question
basis for jurisdiction in federal courts apart from
diversity jurisdiction. The absence of both of these
effects--which normally follow from legislation of
federal substantive law--seems to militate against
the view that Congress was creating a body of
federal substantive law."
28
1131244, 1131245, 1131264, 1131384, 1131514
388 U.S. at 418-20 (Black, J., dissenting) (footnotes
omitted).
Justice O'Connor, joined by then Justice Rehnquist, made
the same argument in a dissent issued 17 years after Prima
Paint was decided:
"One rarely finds a legislative history as
unambiguous as the FAA's. That history establishes
conclusively that the 1925 Congress viewed the FAA
as a procedural statute, applicable only in federal
courts, derived, Congress believed, largely from the
federal power to control the jurisdiction of the
federal courts.
"In
1925
Congress
emphatically
believed
arbitration to be a matter of 'procedure.' At
hearings on the Act congressional subcommittees were
told: 'The theory on which you do this is that you
have the right to tell the Federal courts how to
proceed.' ...
"....
"If
characterizing the
FAA
as
procedural
was
not
enough, the draftsmen of the Act, the House Report,
and the early commentators all flatly stated that
the Act was intended to affect only federal court
proceedings. Mr. Cohen, the American Bar Association
member
who
drafted
the
bill,
assured
two
congressional subcommittees in joint hearings:
"'Nor can it be said that the Congress of
the United States, directing its own courts
..., would infringe upon the provinces or
prerogatives of the States .... [T]he
question of the enforcement relates to the
law of remedies and not to substantive law.
The
rule
must
be
changed
for
the
29
1131244, 1131245, 1131264, 1131384, 1131514
jurisdiction in which the agreement is
sought to be enforced. ... There is not
disposition therefore by means of the
Federal bludgeon to force an individual
State into an unwilling submission to
arbitration enforcement.'"
Southland Corp. v. Keating, 465 U.S. 1, 25-27 (1984)
(O'Connor, J., dissenting) (footnotes omitted).
Justice Thomas, in a dissent joined by Justice Scalia,
argued the same 11 years after the Supreme Court issued its
opinion in Southland:
"Despite the FAA's general focus on the federal
courts, of course, § 2 itself contains no such
explicit limitation. But the text of the statute
nonetheless makes clear that § 2 was not meant as a
statement of substantive law binding on the States.
After all, if § 2 really was understood to 'creat[e]
federal substantive law requiring the parties to
honor arbitration agreements,' then the breach of an
arbitration agreement covered by § 2 would give rise
to a federal question within the subject-matter
jurisdiction of the federal district courts. Yet the
ensuing provisions of the Act, without expressly
taking away this jurisdiction, clearly rest on the
assumption that federal courts have jurisdiction to
enforce arbitration agreements only when they would
have had jurisdiction over the underlying dispute.
In other words, the FAA treats arbitration simply as
one means of resolving disputes that lie within the
jurisdiction of the federal courts .... [T]he reason
that § 2 does not give rise to federal-question
jurisdiction is that it was enacted as a purely
procedural provision. ..."
30
1131244, 1131245, 1131264, 1131384, 1131514
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 291 (1995)
(Thomas, J., dissenting) (citations omitted).
Finally, Justice Scalia, agreeing that Southland was
wrongly
decided, has told practitioners that he would
overrule
it if he were asked: "I shall not in the future dissent from
judgments that rest on Southland. I will, however, stand ready
to join four other Justices in overruling it, since Southland
will not become more correct over time ...." Allied-Bruce, 513
U.S. at 285 (Scalia, J., dissenting).
As to Justices on this Court, Justice Almon, joined by
Justice Shores, forcefully wrote in 1998:
"I cannot see how the United States Supreme
Court, which exists pursuant to the United States
Constitution, can apply an Act of Congress so as to
undermine the right of trial by jury in the states
that
guarantee
that
right
in
their
state
constitutions.
The
United
States
Constitution
guarantees the right of trial by jury in the Seventh
Amendment. That Amendment was adopted within the
Bill of Rights as a limitation on the Federal
Government.
Furthermore,
the
Tenth
Amendment
provides: 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively,
or to the people.' ...
"How
can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
31
1131244, 1131245, 1131264, 1131384, 1131514
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
constitutional authority."
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting).
Justice Cook, addressing the issue whether the Seventh
Amendment would bar the application of the FAA in state
courts, wrote:
"The fact that the United States Supreme Court
has never held the Seventh Amendment to be binding
on the states through the Fourteenth Amendment, as
it has certain other of the Bill of Rights
guarantees, is irrelevant in this context. This is
because the FAA is not a state law. Thus, the
constitutional deprivation, where one can be shown,
derives from an act of Congress, not a state
legislature. The Seventh Amendment, like the other
Bill of Rights provisions, was ratified as a
limitation on the power of Congress. Clearly,
Congress had no power to deprive a citizen of
Alabama of his right to a trial by jury before the
Fourteenth Amendment was ratified--a fortiori, it
has none now. Therefore, whether the Seventh
Amendment is binding on the states is entirely
irrelevant in any consideration of the FAA."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 934 (Ala. 1997)
(Cook, J., concurring specially).
This Court as a whole has recognized that "any
arbitration agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to a trial by
32
1131244, 1131245, 1131264, 1131384, 1131514
jury." Allstar Homes, 711 So. 2d at 929. I have no doubt that
8
my fellow Justices would agree that any law forcing a party to
arbitration if that party had not previously agreed to
arbitrate would be unconstitutional. But in this case, as in
many other arbitration cases, American Bankers argues that the
policyholders agreed, as a matter of contract, to go to
arbitration if a dispute arose. Thus, the question is whether
a party may validly bargain away his or her right to a trial
by jury before the right accrues. As I explained in my
specially concurring opinion in Ex parte First Exchange Bank,
150 So. 3d 1010, 1025-27 (Ala. 2013) (Moore, C.J., concurring
specially):
"I would hold that the right to a jury trial in
civil cases may not be waived by a party before a
lawsuit has been filed and the right accrues.
Because, '[o]rdinarily, the right to a jury trial is
determined by the cause of action stated,' Ex parte
Western Ry. of Ala., 283 Ala. 6, 12, 214 So. 2d 284,
289 (1968), logically that right cannot be exercised
before a lawsuit is filed. A maxim of the common law
states that 'no right can be barred before it
accrues.' Gould v. Womack, 2 Ala. 83, 88 (1841). See
also Blackmon v. Blackmon, 16 Ala. 633, 636 (1849)
(noting 'two maxims of the common law: 1st--that no
Allstar Homes was criticized in the plurality opinion of
8
Perry v. Hyundai Motor America, Inc., 744 So. 2d 859 (Ala.
1999). However, "[t]he precedential value of the reasoning in
a plurality opinion is questionable at best." Ex parte
Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).
33
1131244, 1131245, 1131264, 1131384, 1131514
right can be barred before it accrues....'); Adams
v. Adams, 39 Ala. 274, 281 (1864); Webb v. Webb's
Heirs, 29 Ala. 588, 601 (1857). One cannot have full
knowledge about what a right entails--about what,
exactly, he or she is waiving--until one fully
understands what is at stake by giving up the right.
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929
(Ala. 1997) (holding that a waiver of the right to
a trial by jury must be made knowingly, willingly,
and voluntarily).
"....
"'A man may not barter away his life or his
freedom, or his substantial rights.... In
a civil case he may submit his particular
suit by his own consent to an arbitration,
or to the decision of a single judge.... In
these aspects a citizen may no doubt waive
the rights to which he may be entitled. He
cannot, however, bind himself in advance by
an agreement, which may be specifically
enforced, thus to forfeit his rights at all
times and on all occasions whenever the
case may be presented.'
"Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445,
451, 22 L.Ed. 365 (1874). I articulated this
principle in my special writing in Ex parte Allen,
798 So. 2d 668, 676–77 (Ala. 2001) (Moore, C.J.,
concurring specially), which involved a predispute
arbitration agreement analogous to the predispute
waiver of a jury trial:
"'Predispute arbitration agreements are
problematic [because they] ... are signed
well before any dispute arises between the
parties. These predispute agreements are
often vague and give little notice to the
signing parties of the kinds of conflicts
that will subject them to arbitration
proceedings and the specific rights they
34
1131244, 1131245, 1131264, 1131384, 1131514
are
surrendering.
Because
predispute
agreements are entered into before the
grounds on which the waiver of rights is
based can be known, there is no real
"meeting of the minds," as contract law
requires between two parties who commit to
a binding agreement.'
"Waiver of a jury trial, to be valid, must occur
after a case has been initiated. 'Agreements entered
into after a controversy arises avoid this problem
[regarding full knowledge of the right being waived]
because when they enter such agreements, the parties
are aware of the kind of complaint they are allowing
to proceed to arbitration in the place of a jury
trial.' Allen, 798 So. 2d at 677 (Moore, C.J.,
concurring specially). ...
"Although outside the arbitration context no
federal
law
attempts
to
preempt
Alabama's
constitutional right to a jury trial, that inviolate
right does not accrue until a lawsuit is filed. No
individual may waive a right to a jury trial in
Alabama indefinitely into the future, for that right
does not accrue if it depends upon future events
that may or may not occur. If a person may not
exercise a jury-trial right until he or she has been
sued, it follows a fortiori that a person may not
waive that right before he or she has been sued.
"A jury-trial right is analogous to the right to
counsel, which cannot be waived until the initiation
of legal proceedings. Art. I, § 6, § 10, Ala. Const.
1901; Davis v. State, 292 Ala. 210, 291 So. 2d 346,
350 (1974); Withers v. State, 36 Ala. 252 (1860).
Other rights granted by the Declaration of Rights
cannot be waived before they accrue. For instance,
a person cannot contractually waive his or her right
to sue until that right has accrued. Art. I, § 10,
§ 11, § 13, Ala. Const. 1901. A person cannot
contractually waive his or her right to bail until
after that right has accrued. Art. I, § 16, Ala.
35
1131244, 1131245, 1131264, 1131384, 1131514
Const. 1901. Likewise, because § 11 declares the
right to a jury trial to be inviolate, an individual
may not waive that right before it accrues."
(Footnotes omitted.)
Based on the authorities cited in my specially concurring
opinion in Ex parte First Exchange Bank, it appears to me
that, at common law, one could not bargain away his or her
right to a jury trial until a cause of action had accrued.
This common-law history was not lost but was carried forward
in the Seventh Amendment.
"'The interpretation of the Constitution of the
United States is necessarily influenced by the fact
that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history.' ...
"'In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly
known to the framers of the Constitution.'"
Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888), and United States v.
Wong Kim Ark, 169 U.S. 649, 654 (1898)). Parties certainly
could have agreed to submit a dispute to arbitration once that
dispute arose. See 3 William Blackstone, Commentaries *16-17.
However, for the reasons stated above, I believe the Framers
of the Seventh Amendment would have viewed any law that
36
1131244, 1131245, 1131264, 1131384, 1131514
attempted
to
enforce
predispute
arbitration
agreements
as
void
under the Seventh Amendment.
Time and time again, the United States Supreme Court has
interpreted the FAA to be a valid exercise of Congress' power
under the Commerce Clause and has therefore required state
courts to apply the FAA. See, e.g., Allied-Bruce Terminix Cos.
v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating,
465 U.S. 1 (1984); and Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967). Justice Houston wrote in Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 38 (Ala.
1998) (Houston, J., concurring specially):
"Although I disagree with the majority of the United
States
Supreme
Court
in
its
Allied–Bruce
interpretation of the Federal Arbitration Act as it
applies to state courts, a majority opinion of that
Court is part of the law I have taken an oath to
uphold. See the second paragraph of Article VI of
the Constitution of the United States."9
However, the second paragraph in Article VI of the United
9
States Constitution says that state judges are bound by the
supreme law of the land, which consists of three things: (1)
the Constitution itself, (2) laws of the United States made
pursuant to the Constitution, and (3) treaties made under
authority of the United States. A Supreme Court opinion is not
the Constitution itself; it is not a law of the United States
made pursuant to the Constitution; and it is not a treaty made
under the authority of the United States--how then does
Article VI bind state judges to uphold Supreme Court opinions?
37
1131244, 1131245, 1131264, 1131384, 1131514
I do not agree that the Supreme Court's interpretation of
the FAA is a law I am required to apply, because that
interpretation does not conform to the United States
Constitution I am sworn to uphold and support. What if a state
court is presented with a constitutional question the United
States Supreme Court has not yet considered? As far as my
research shows, the United States Supreme Court has not yet
considered whether its interpretation of the FAA violates the
Seventh Amendment. As stated above, a federal statute is void
if it violates the Federal Constitution. Marbury, 5 U.S. at
180. As Chief Justice Marshall wrote in Marbury:
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot be
inspected by him?"
Marbury, 5 U.S. (1 Cranch) at 180.
If we declined to apply the Seventh Amendment because
doing so would undermine the United States Supreme Court's
interpretation of the FAA, which is not even a law but merely
a judicial opinion, then we would be violating the Supremacy
Clause, our oaths of office, and every sound principle of
10
11
The Supremacy Clause reads: "This Constitution, and the
10
Laws of the United States which shall be made in Pursuance
38
1131244, 1131245, 1131264, 1131384, 1131514
constitutional law. The Supreme Court's interpretation of a
federal statute does not preclude all lower courts from
considering constitutional questions the Supreme Court has
never considered. Therefore, we must analyze the arbitration
provision in this case by the Seventh Amendment, the Supreme
Court's precedent interpreting the FAA notwithstanding.
II. Knowing, Willing, and Voluntary Waiver
If this Court still believes that predispute arbitration
agreements
are
enforceable,
the
Seventh
Amendment
notwithstanding, then it should remember that, "regardless of
the federal courts' policy favoring arbitration, we find
nothing in the FAA that would permit such a [jury] waiver
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2
(emphasis added).
"I, ........, solemnly swear (or affirm, as
11
the case may be) that I will support the
Constitution of the United States, and the
Constitution of the State of Alabama, so
long as I continue a citizen thereof; and
that I will faithfully and honestly
discharge the duties of the office upon
which I am about to enter, to the best of
my ability. So help me God."
§ 279, Ala. Const. 1901.
39
1131244, 1131245, 1131264, 1131384, 1131514
unless it is made knowingly, willingly, and voluntarily."
Allstar Homes, 711 So. 2d at 929. This rule is a slight
variation of a general rule in contract law that applies when
parties agree in advance to waive their rights to a trial by
jury.
"In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this
Court articulated three factors to consider in
evaluating whether to enforce a contractual waiver
of the right to trial by jury: (1) whether the
waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is
equal; and (3) whether the waiver was intelligently
and knowingly made."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Gaylord Department Stores of Alabama v. Stephens, 404 So. 2d
586, 588 (Ala. 1981), required such a test because "Article I,
§ 11, Constitution 1901, provides that the right to trial by
jury shall remain inviolate," describing the right to trial by
jury as a "precious right."
12
In this case, it is undisputed that the policyholders
never signed an arbitration agreement. The main opinion holds
This rule is not unique to Alabama. For a detailed
12
discussion of how other courts apply this rule, or some slight
variation of it, see Jean R. Sternlight, Mandatory Binding
Arbitration and the Demise of the Seventh Amendment Right to
a Jury Trial, 16 Ohio St. J. on Disp. Resol. 669, 678-90
(2001).
40
1131244, 1131245, 1131264, 1131384, 1131514
that the "declarations page" of the policies notified the
policyholders of the existence of the forms in question,
noting that the written insuring agreement provided that
"[t]his
policy is not complete without the declarations
page."
However, there is no document entitled "declarations page" in
the record. Although I do not dispute that the document relied
upon by the main opinion is typically referred to as a
"declarations page," there is nothing on the page itself that
would alert the policyholders that this page is the critical
document that has been referenced repeatedly throughout the
policies.
Moreover, nothing in plain English on the declarations
page indicates that the policyholders were waiving their
rights to trial by jury. As the main opinion notes, the
declarations page made a brief reference to forms AJ9821EPC-
0608 and N1961-0798. These combinations of letters and
13
numbers appear among eight other similar references in a small
space. There were only three words in English adjacent to
these 10 mysterious combinations of letters and numbers:
I realize that the number on one of the forms was
13
different for Gwendolyn Moody, just as the main opinion does.
See ___ So. 3d at ___ at n.1.
41
1131244, 1131245, 1131264, 1131384, 1131514
"FORMS AND ENDORSEMENTS." (Capitalization in original.) The
main opinion reasons that this should have prompted the
policyholders to investigate further, but nothing on the
declarations page necessarily indicates that the referenced
forms constitute part of the policy. There is no explanation
of what these "forms and endorsements" are, or even whether
they are part of the policy. Regardless of whatever American
Bankers was thinking, I cannot agree that those references on
the
declarations page were sufficient to constitute a
knowing,
willing, or voluntary waiver of the policyholders' inviolate
right to a jury trial.
I fear that the precedential effect of this case will be
disastrous. The main opinion stands for the proposition that
an insurance company may deprive policyholders of their
constitutional rights without their express consent so long as
a vague, mysterious, code-like reference to a form appears
somewhere in the policy. Under this rationale, why would
insurance companies even have to send arbitration forms to
their
policyholders? If the insurance company's failure to
get
the policyholders to sign the arbitration forms in this case
was an accident, what is there to stop an insurance company
42
1131244, 1131245, 1131264, 1131384, 1131514
from doing the same thing intentionally in the next case?
Policyholders are entitled to know in advance what their
obligations are and whether they are expected to give up their
rights, instead of being subjected to a game of insurance-
company "peek-a-boo."
14
III. Conclusion
The right to a trial by jury is a sacred and precious
right.
Sir William Blackstone called it the "best
preservative
of English liberty." 3 William Blackstone, Commentaries *381.
The American Founders declared independence from King George
III, in part, for depriving them of "the benefits of Trial by
Jury." The Declaration of Independence ¶ 20. The Framers
15
included the right to trial by jury in our national Bill of
Rights. The Alabama Constitution says that the right to trial
by jury "shall remain inviolate." § 11, Ala. Const. 1901. Then
Justice Rehnquist called the right to trial by jury "an
Cf. United States v. Virginia, 518 U.S. 515, 574 (1996)
14
(Scalia, J., dissenting) ("The States and the Federal
Government are entitled to know before they act the standard
to which they will be held, rather than be compelled to guess
about the outcome of Supreme Court peek-a-boo.").
As Justice Almon observed in his dissent in McNaughton:
15
"King George's denial of the right of trial by jury was one of
the articles of the Declaration of Independence." McNaughton,
728 So. 2d at 602 (Almon, J., dissenting).
43
1131244, 1131245, 1131264, 1131384, 1131514
important bulwark against tyranny and corruption, a safeguard
too precious to be left to the whim of the sovereign, or, it
might be added, to that of the judiciary." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J.,
dissenting).
How then has this Court held today that the right to
trial by jury may be destroyed through such an inconspicuous
means? I respectfully submit that this is the result of
following bad precedent. If the Supreme Court's precedent
16
The main opinion notes that the policyholders did not
16
invite us to overrule precedent and that this Court is not
inclined to do so without an invitation. This does necessarily
mean that it may not overrule controlling precedent without
being asked to do so. See, e.g., Travelers Indem. Co. of
Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(overruling a case while expressly noting that the Court had
not been asked to do so). Likewise, this Court is not
forbidden from addressing the Seventh Amendment issue or from
considering Allstar Homes even though neither of the parties
raised those claims. "[A] court may consider an issue
'antecedent to ... and ultimately dispositive of' the dispute
before it, even an issue the parties fail to identify and
brief." United States Nat'l Bank of Oregon v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). See also
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) ("'"Appellate review does not consist of
supine submission to erroneous legal concepts even though
none
of the parties declaimed the applicable law below. Our duty is
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or passivity, can force us
to abdicate our appellate responsibility"'" (quoting Forshey
v. Principi, 284 F.3d 1335, 1359 n.20 (Fed. Cir. 2002),
44
1131244, 1131245, 1131264, 1131384, 1131514
interpreting a federal statute conflicts with the United
States Constitution itself, then our duty is not to predict
the next bend in the crooked path by asking, "What would the
Supreme Court do?" Instead, our duty, under oath, is to ask,
"What
does the Constitution say?" Here, that Constitution
says
the policyholders have a right to a jury trial. Furthermore,
one may give up such an invaluable right, even in a case where
an injury has already occurred and a cause of action exists,
only when the waiver of that right is knowing, willing, and
voluntary, and in this case it was not.
I respectfully dissent.
quoting in turn Empire Life Ins. Co. of America v. Valdak
Corp., 468 F.2d 330, 334 (5th Cir. 1972))). This is especially
true when this Court affirms a ruling of a trial court, as I
would do here. See Southern Energy Homes, Inc. v. Gregor, 777
So. 2d 79, 81 (Ala. 2000) ("[T]his Court can affirm the ruling
of a trial court for any valid reason, even one not presented
to or considered by the trial court.").
45 | June 26, 2015 |
728a25c5-51bc-4a9a-862b-7e6f6521ad13 | Ex parte Thomas. | N/A | 1140594 | Alabama | Alabama Supreme Court | Rel: 06/26/2015
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, 2014-2015
_________________________
1140594
_________________________
Ex parte Charleston D. Thomas
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Charleston D. Thomas
v.
State of Alabama)
(Jefferson Circuit Court, Bessemer Division, CC-05-1292.60;
Court of Criminal Appeals, CR-12-0966)
MAIN, Justice.
Charleston D. Thomas, an inmate, filed a petition for
postconviction relief under Rule 32, Ala. R. Crim. P. The
1140594
Jefferson Circuit Court summarily dismissed the petition.
The
Court
of
Criminal
Appeals,
by
unpublished
memorandum,
affirmed
the summary dismissal of Thomas's petition, concluding that
Thomas's Rule 32 petition was untimely because, at the time he
filed his Rule 32 petition, Thomas had not paid the filing fee
or filed a request to proceed in forma pauperis. Thomas v.
State (No. CR-12-0966, Jan. 30, 2015), ___ So. 3d ___ (Ala.
Crim. App. 2015)(table). Thomas petitioned this Court for
certiorari review of the Court of Criminal Appeals' decision,
arguing that he had, in fact, filed with his Rule 32 petition
a timely request to proceed in forma pauperis. We granted
Thomas's petition for a writ of certiorari to review this
issue. We reverse the judgment of the Court of Criminal
Appeals and remand the case for further proceedings.
I. Facts and Procedural History
On May 15, 2006, Thomas was convicted of first-degree
kidnapping and was sentenced to 20 years' imprisonment.
Thomas filed a direct appeal. The Court of Criminal Appeals
ultimately affirmed Thomas's conviction and sentence and
issued its certificate of judgment on March 5, 2010. Thomas
v. State, 43 So. 3d 1288, 1291 (Ala. Crim. App. 2007).
2
1140594
Pursuant to Rule 32.2(c), Ala. R. Crim. P., Thomas had one
year from that date in which to file a Rule 32 petition for
postconviction relief, i.e., until March 7, 2011.
Thomas, acting pro se, filed a Rule 32 petition using the
standard form found in the Appendix to Rule 32. He attached
a supplement setting out his detailed claims for relief.
Thomas signed and dated the petition on February 18, 2011.
The petition was notarized by a prison official on February
18, 2011. Thomas also completed the standard in forma
pauperis declaration. Thomas signed and dated
the
declaration
on February 18, 2011. The declaration was notarized by a
prison official on February 18, 2011. Thomas claims that on
February 18, 2011, he gave both documents to a prison official
to be mailed on his behalf.
On March 18, 2011, the Jefferson Circuit clerk's office
sent Thomas a form letter indicating that it had received his
Rule 32 petition but stating that Thomas had failed to include
with his petition the filing fee or an application to proceed
in forma pauperis. In response to this letter, on March 23,
2011, Thomas filed a "motion for judicial notice that the
3
1140594
movant petitioner did, in fact, file his Rule 32 petition with
an in forma pauperis form." In that motion, Thomas stated:
1
"Comes now, Charleston D. Thomas, pro se, [and]
move[s] this Honorable Court to take judicial notice
that he did indeed file with his Rule 32 petition a
In Forma Pauperis form .... The Clerk's office
sent the movant's petition back instructing him to
include an In Forma Pauperis form, perhaps it was an
oversight on the clerks behalf. I have enclosed
another In Forma Pauperis Form [with] this motion
for Judicial Notice of this happening."
Thomas included with his motion a new in forma pauperis
declaration dated and notarized on March 23, 2011. That
declaration is stamped as having been filed with the circuit
clerk's office on March 28, 2011. The record on appeal also
contains a copy of the declaration form dated February 18,
2011. That document, however, bears no date stamp indicating
that it was received by the circuit clerk's office.2
On May 11, 2011, the circuit court granted Thomas's
request to proceed in forma pauperis. On May 27, 2011,
Thomas's Rule 32 petition was stamped "filed" by the circuit
It does not appear that the circuit court ever ruled on
1
this motion.
Thomas contends the February 18 declaration was mailed
2
with his original petition. The State posits that the
February 18 declaration was first submitted to the clerk with
Thomas's motion for judicial notice, but not before.
4
1140594
clerk's office. On July 12, 2011, the State filed a motion
3
requesting that the court reconsider its order
granting
Thomas
in forma pauperis status, arguing that Thomas was not
indigent. On September 14, 2011, the circuit court entered an
order rescinding its grant of in forma pauperis status and
ordering Thomas to pay the filing fee within 90 days. Thomas
paid the filing fee.
On January 6, 2012, the State filed its response and a
motion to dismiss Thomas's Rule 32 petition. One of the
grounds raised by the State was that the petition was due to
be summarily dismissed because it was filed beyond the one-
year limitations period provided by Rule 32.2(c), Ala. R.
Crim. P. On January 26, 2012, the circuit court entered an
order dismissing Thomas's Rule 32 petition, concluding, in
part, that the petition was untimely.
On February 6, 2012, Thomas filed a motion asking the
circuit court to set aside its order dismissing his Rule 32
petition. In that motion, Thomas argued that, despite the May
27, 2011, date stamp, his petition was not untimely. He
The petition, dated and notarized on February 18, 2011,
3
was obviously received by the circuit clerk's office well
before May 27, 2011, and sometime before the clerk's office
sent the March 18, 2011, form letter.
5
1140594
asserted that he had given his Rule 32 petition and in forma
pauperis declaration to prison officials to mail on February
18, 2011. In support of motion, Thomas submitted an
affidavit, in which he testified, in part, as follows:
"2.
On February 18, 2011 while I was incarcerated at
the Perry County Correctional Center I completed a
Rule 32 petition and had it notarized by Amy Green.
On the same date I also signed and had notarized a
declaration in support of request to proceed in
forma pauperis. Amy Green who was in charge of the
law library sent both documents together in the
mail. I saw her take my package to the
administration building where legal documents are
mailed.
"3.
Sometime in March, I received a letter from the
clerk's office in Bessemer telling me that I needed
to file an in forma pauperis affidavit. Although I
had already filed one with my Rule 32 I filed
another one on March 23, 2011 and mailed it that
day. I attached a copy of my original."
Thomas's motion also noted that, unlike the other filings, the
clerk's record did not contain the envelope in which the
clerk's office had received the Rule 32 petition, which would
have reflected a postmark.
On February 10, 2012, the circuit court set aside its
January 26, 2012, order. On March 15, 2012, the State again
moved to dismiss Thomas's petition. Once again, the State
argued that the petition was untimely. The State argued that
6
1140594
under Alabama law a Rule 32 petition is not deemed filed
unless it is accompanied by a filing fee or a request to
proceed in forma pauperis. The State argued that the March
18, 2011, letter from the clerk's office was conclusive proof
that the petition was not accompanied by a request to proceed
in forma pauperis and thus that the petition was not "filed"
until the clerk's office received the in forma pauperis
request on March 28, 2011 –- after the expiration of the one-
year limitations period.
On February 27, 2013, the circuit court entered a new
order summarily dismissing Thomas's petition. Again, among
various other reasons given for the dismissal, the circuit
court concluded that the petition was untimely. In declaring
4
Thomas's petition untimely, the circuit court made no
specific
findings of fact but concluded simply: "The Petition is barred
The circuit court also concluded that the petition was
4
procedurally barred under Rule 32.2(a), Ala. R. Crim. P.,
because the issues raised in the petition could have been, but
were not, raised at trial or on direct appeal. The circuit
court also ruled that the petition was due to be dismissed
under Rule 32.6(b), for lack of specificity, and that,
pursuant to Rule 32.7(d), no purpose would be served by any
further proceedings. Thomas addressed these alternative
grounds for dismissal in his appeal to the Court of Criminal
Appeals. The Court of Criminal Appeals, however, agreed that
Thomas's petition was time-barred and thus pretermited
discussion of the alternate grounds for dismissal.
7
1140594
by Rule 32.2(c) because the Petition is untimely." The circuit
court also denied Thomas's pending request for an evidentiary
hearing. Thomas appealed the dismissal to the Court of
Criminal Appeals.
On January 30, 2015, the Court of Criminal Appeals
affirmed, in an unpublished memorandum, the
summary
dismissal
of Thomas's Rule 32 petition, agreeing that Thomas's petition
was untimely. The Court of Criminal Appeals noted that the
circuit clerk is charged by statute with keeping the records
and docket of the circuit court and also with collection of
filing fees. See § 12-17-94(a)(3), Ala. Code 1975; § 12-19-
70, Ala. Code 1975. The Court of Criminal Appeals concluded:
"Implicit in the duties of a circuit clerk is
the duty to ascertain if the filing fee or a request
to proceed in forma pauperis accompanied a petition
filed pursuant to Rule 32, Ala. R. Crim. P. The
court could have reasonably determined that, despite
the self-serving affidavit of Thomas, the circuit
clerk's personnel in performing the duties of their
office, had correctly ascertained that Thomas had
failed to include a request to proceed in forma
pauperis when he originally sent his petition to the
clerk."
The Court of Criminal Appeals concluded that the claims raised
in Thomas's Rule 32 petition were not jurisdictional and that,
8
1140594
therefore, the circuit court properly dismissed the petition
as untimely.
We granted Thomas's petition for writ of certiorari to
review the decision of the Court of Criminal Appeals.
II. Analysis
The State does not dispute that Thomas's Rule 32 petition
was received by the Jefferson Circuit clerk's office before
the expiration of the applicable one-year limitations period.
Rather, the State contends that Thomas did not submit with his
petition a request to proceed in forma pauperis and that that
request was not received by the clerk until after the
expiration of the one-year limitations period. Under Alabama
5
law, a Rule 32 petition is not deemed "filed" until the
petition and a filing fee or, in lieu of the filing fee, a
request to proceed in forma pauperis are submitted to the
circuit clerk. See Rule 32.6(a), Ala. R. Crim. P.; Hyde v.
State, 950 So. 2d 344, 353 (Ala. Crim. App. 2006). Thus, the
State argues that Thomas's failure to file his in forma
pauperis declaration within the limitations period rendered
There are exceptions to the one-year limitations period
5
in Rule 32.2(c). Thomas does not argue that any of those
exceptions apply.
9
1140594
his Rule 32 petition untimely. According to the State, the
circuit court properly dismissed Thomas's petition and the
Court of Criminal Appeals correctly affirmed that judgment.
Thomas argues that the Court of Criminal Appeals' holding
conflicts with Holland v. State, 621 So. 2d 373 (Ala. Crim.
App. 1993). In Holland, the Court of Criminal Appeals held
that an incarcerated pro se petitioner "files" a Rule 32
petition when he or she hands the petition over to prison
authorities for mailing. This Court has recognized that the
"prison-mailbox rule" applies when a pro se petitioner faces
specific document-filing deadlines. See Ex parte Allen, 825
So. 2d 271, 274 (Ala. 2002). Thomas contends that his
uncontradicted testimony establishes that he handed both his
Rule 32 petition and his in forma pauperis declaration to
prison authorities for mailing on February 18, 2011. Thus, he
argues, the petition and the declaration were timely filed
before the expiration of the limitations period.6
The State argues that the prison-mailbox rule is not
6
applicable in this case because Thomas failed to complete
question number 18 on the standard Rule 32 form, which asks:
"What date is this petition being mailed?" See Beamon v.
State, [Ms. CR-11-1688, May 2, 2014] __ So. 3d __, ___ (Ala.
Crim. App. 2014). The present dispute, as presented to us,
however, does not concern whether Thomas's Rule 32 form was
timely mailed, but whether it was accompanied by an in forma
10
1140594
Whether Thomas included a request to proceed in forma
pauperis with his Rule 32 petition is inherently a factual
inquiry. The State argues that the May 27, 2011, form letter
from the circuit clerk's office is evidence that Thomas's Rule
32 petition was not accompanied by a request to proceed in
forma pauperis. Yet there was also direct evidence before the
circuit court indicating that Thomas, in fact, mailed his in
forma pauperis declaration with his Rule 32 petition on
February 18, 2011. Thomas submitted an affidavit stating that
on February 18, 2011, he handed both his petition and in forma
pauperis declaration to a prison official to be mailed on his
behalf. The record contains an executed in forma pauperis
declaration notarized by a prison official on February 18,
2011. Furthermore, Thomas disputed the circuit clerk's form
letter informing him that an in forma pauperis declaration was
not included with his petition by filing a motion for judicial
pauperis declaration. Regardless of whether Thomas completed
question number 18, that question does not answer whether he
mailed his in forma pauperis declaration with his petition.
Moreover, the in forma pauperis declaration form contains no
similar question asking when that form is being mailed, or
whether it is being mailed with the Rule 32 petition.
Accordingly, we know of no reason the prison-mailbox rule
would not apply to the in forma pauperis declaration in this
case.
11
1140594
notice that he had, in fact, filed the declaration. If this
evidence is believed, Thomas's petition was timely.
In the present case, we find that the evidence in the
record creates a question of material fact as to whether
Thomas's in forma pauperis declaration was filed with his Rule
32 petition, so as to render the Rule 32 petition timely.
Rule 32.9(a), Ala. R. Crim. P., states that a petitioner is
entitled to an evidentiary hearing "to determine disputed
issues of material fact." The circuit court, however, did not
hold an evidentiary hearing, made no findings of fact, and, in
its order of dismissal, made no reference to the evidence
submitted by Thomas. We, therefore, hold that, unless the
judgment of the circuit court is due to be affirmed based on
one or more of the alternate grounds for dismissal of Thomas's
Rule 32 petition, the Court of Criminal appeals should remand
this cause for the circuit court to conduct an evidentiary
hearing and make specific findings of fact as to whether
Thomas filed his in forma pauperis declaration with his timely
filed Rule 32 petition. See also Ex parte Wright, 860 So. 2d
1253 (Ala. 2002) (remanding for a determination as to whether
a pro se petitioner's notice of appeal was timely filed).
12
1140594
Accordingly, we reverse the judgment of the Court of
Criminal Appeals and remand this cause to that court for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Bolin, Parker, Murdock, and
Bryan, JJ., concur.
Shaw and Wise, JJ., dissent.
13 | June 26, 2015 |
414e7767-6540-40cc-914e-5b3329e4f360 | American Bankers Insurance Company of Florida v. Nadine Ivy | N/A | 1131384 | Alabama | Alabama Supreme Court | rel: 06/26/2015
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, 2014-2015
____________________
1131244
____________________
American Bankers Insurance Company of Florida
v.
Gladys Tellis
Appeal from Macon Circuit Court
(CV-14-900033)
____________________
1131245
____________________
American Bankers Insurance Company of Florida
v.
Sherry Bronson
Appeal from Macon Circuit Court
(CV-14-900025)
____________________
1131264
____________________
American Bankers Insurance Company of Florida
v.
Gwendolyn Moody
Appeal from Chambers Circuit Court
(CV-14-900022)
____________________
1131384
____________________
American Bankers Insurance Company of Florida
v.
Nadine Ivy
Appeal from Bullock Circuit Court
(CV-14-900015)
____________________
1131514
____________________
American Bankers Insurance Company of Florida
v.
Uneeda Trammell
Appeal from Chambers Circuit Court
(CV-14-900020)
1131244, 1131245, 1131264, 1131384, 1131514
STUART, Justice.
Gladys Tellis, Sherry Bronson, Gwendolyn Moody, Nadine
Ivy,
and
Uneeda
Trammell
(hereinafter
referred
to
collectively
as "the policyholders") initiated separate actions against
American Bankers Insurance Company of Florida ("American
Bankers"), asserting generally that American Bankers had sold
them homeowner's insurance policies providing a level of
coverage they could never receive, even in the event of a
total loss involving the covered property. American Bankers
thereafter moved the trial court hearing each action to compel
arbitration
pursuant
to
arbitration
provisions
it
alleged
were
part of the subject policies; however, the trial courts denied
those motions, and American Bankers now appeals. We
consolidated the five appeals for the purpose of writing one
opinion. We reverse and remand.
I.
The facts underlying each of these five consolidated
appeals are substantially identical. Sometime in 2012 or 2013
each of the policyholders renewed a homeowner's insurance
policy he or she had previously obtained from American
Bankers. Thereafter, each concluded that he or she was paying
3
1131244, 1131245, 1131264, 1131384, 1131514
excessive premiums inasmuch as the policies provided a level
of coverage that allegedly far exceeded the value of the
covered properties; in other words, the policyholders allege
that they were overinsured inasmuch as they could never
receive the policy limits even if the covered property was
declared a total loss. In February 2014, the policyholders
separately
sued
American
Bankers,
alleging
breach
of
contract,
several species of fraud, unjust enrichment, and negligence
and/or wantonness.
American Bankers thereafter moved the trial courts in
which these actions were filed –– the Bullock Circuit Court,
the Chambers Circuit Court, and the Macon Circuit Court –– to
compel arbitration pursuant to the following arbitration
provision it alleged was contained in the policyholders'
policies:
"Any and all claims, disputes, or controversies
of any nature whatsoever ... arising out of,
relating to, or in connection with (1) this policy
or certificate or any prior policy or certificate
issued by us to you ... shall be resolved by binding
arbitration before a single arbitrator. All
arbitrations shall be administered by the American
Arbitration Association ('AAA') in accordance with
its
Expedited
Procedures
of
the
Commercial
Arbitration Rules of the AAA in effect at the time
the claim is filed."
4
1131244, 1131245, 1131264, 1131384, 1131514
The policyholders opposed the motions to compel arbitration,
arguing that they had never consented to arbitrate their
claims, that they had not signed any documents containing an
arbitration provision, and that the arbitration provision in
the policies was unconscionable. The trial courts thereafter
denied
each
of
American
Bankers'
motions
to
compel
arbitration, and American Bankers separately appealed those
denials to this Court pursuant to Rule 4(d), Ala. R. App. P.
This Court consolidated the appeals based on the similarity of
the facts and the issues presented.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
5
1131244, 1131245, 1131264, 1131384, 1131514
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In order to answer the ultimate question in these cases
–– whether the trial courts erred in denying American Bankers'
motions to compel arbitration –– we must address three issues:
(1) whether the parties agreed to arbitrate the claims
asserted in the policyholders' complaints; (2) whether the
underlying transactions, i.e., the sale of the insurance
policies, affected interstate commerce; and (3) whether the
arbitration
provision
in
the
subject
policies
is
unconscionable. With regard to the first issue, American
Bankers submitted to the respective trial courts a copy of the
policy allegedly issued to each of the policyholders.
Included as part of those policies are basically two forms
referencing arbitration: form AJ9821EPC-0608 and form N1961-
0798. Form AJ9821EPC-0608 is entitled "Arbitration Provision
1
The policy issued to Moody, the plaintiff in appeal no.
1
1131264, included form AJ8654EXX-0604 instead of form
AJ9821EPC-0608; however, those two forms appear to be
6
1131244, 1131245, 1131264, 1131384, 1131514
Alabama" and contains a general arbitration provision,
part of
which is quoted above. Form N1961-0798 is entitled "Important
notice about the policy/certificate of insurance for
which
you
have applied" and explains generally what arbitration is and
states that the policy contains a binding arbitration
agreement pursuant to which the insured and the insurer waive
the right to trial in a court of law. Although form N1961-
0798 contains a signature line for the applicant, a co-
applicant, and a witness, it is undisputed that none of the
policyholders executed this form. The policyholders have
further executed affidavits swearing that they never received
or signed either form –– or any other document related to
their American Bankers' policies purporting to be an
arbitration provision –– when applying for insurance or at
anytime thereafter until the commencement of this litigation.
They further state that they never would have purchased
coverage from American Bankers had they been presented with
the arbitration provision American Bankers now seeks to
enforce.
identical in all material ways. For convenience, we
hereinafter include Moody's form in any reference to form
AJ9821EPC-0608.
7
1131244, 1131245, 1131264, 1131384, 1131514
American Bankers concedes that the policyholders never
signed
form
N1961-0798
or
separate
arbitration
agreements,
but
it argues that they nevertheless assented to the arbitration
provision in their policies. In support of its argument that
an arbitration provision in an insurance policy can be
effective even if not disclosed in the application and even
without the insured's signature, American Bankers cites
Southern United Fire Insurance Co. v. Howard, 775 So. 2d 156,
162-63 (Ala. 2000), which provides:
"[The plaintiff] argues that he did not assent
to the arbitration provision in the insurance policy
because the arbitration provision was not included
in the insurance application and because he did not
sign the insurance policy. First, a contractual
agreement to arbitrate may be found invalid only
'upon such grounds as exist at law or in equity for
the revocation of any contract.' 9 U.S.C. § 2. It
is not a requirement of Alabama contract law that
for a contract provision to be enforceable it must
have appeared also in the application to enter into
the contract. See Ex parte Foster, 758 So. 2d 516
(Ala. 1999). Thus, the arbitration provision need
not have appeared in the application for insurance
for the parties to be bound by it. Second, '[t]his
Court is required to compel arbitration if, under
"ordinary state-law principles that govern the
formation of contracts," the contract containing the
arbitration clause is enforceable.' Quality Truck
& Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167
(Ala. 1999). Alabama's general contract law permits
assent to be evidenced by means other than
signature, and, thus, the contract of insurance and
the arbitration provision contained in it can be
8
1131244, 1131245, 1131264, 1131384, 1131514
enforceable by the parties in the absence of
signatures, where the evidence establishes the
existence of the agreement. [The defendant insurance
company's] insurance policy is not subject to either
of Alabama's Statutes of Frauds, see Ala. Code §§
7–2–201 and 8–9–2, nor is it made contingent upon
the condition precedent that it be signed by [the
plaintiff]. [The plaintiff] accepted and acted upon
[the defendant's] insurance policy, which contained
the arbitration provision, by paying premiums,
renewing the policy, and submitting a claim under
the policy. Therefore, because [the plaintiff]
ratified the policy, the absence of his signature
does not render the policy, or the arbitration
provision contained in it, unenforceable."
(Footnote
omitted.)
American
Bankers
similarly
maintains
that
the policyholders have manifested their assent to arbitration
in these cases by accepting and acting upon the insurance
policies containing the arbitration provision.
Our caselaw supports American Bankers' position. Beyond
Howard, this Court has considered multiple other appeals in
which parties have sought to avoid arbitration provisions in
insurance
policies
by
claiming
that
the
arbitration
provisions
were not disclosed to them or that they never received a copy
of the policy containing the arbitration provision. In Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998), the plaintiffs
argued that they never agreed to arbitrate their claims
because their application for insurance did not mention
9
1131244, 1131245, 1131264, 1131384, 1131514
arbitration and because they did not sign the endorsement
attached to the policy that contained the arbitration clause.
This Court rejected those arguments, noting that "[m]any
parts
of an insurance policy are not mentioned in the application"
and
explaining further
that
the
unsigned
endorsement
containing the arbitration clause was part of the issued
policy because the policy expressly stated that "'[t]his
policy with any attached papers is the entire contract between
you and the [insurance] Company.'" 712 So. 2d at 335. See
also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000) ("Under
state-law
principles of
contract
interpretation,
parties
may
be
bound
by
documents
incorporated
by reference.").
It is unclear exactly what parts of the insurance policy
the
policyholders
acknowledge
receiving
in
this
case;
however,
they have stated in their affidavits only that they did not
receive the two identified forms specifically discussing
arbitration or any other document purporting to be an
arbitration agreement. Thus, they presumably received the
rest of the policy American Bankers submits was issued to
them, including the declarations page and the
written
insuring
10
1131244, 1131245, 1131264, 1131384, 1131514
agreement, which provides that "[t]his policy is not complete
without the declarations page." The declarations page lists
forms AJ9821EPC-0608 and N1961-0798 as part of the included
"forms and endorsements." Although the policyholders claim
2
not to have received forms AJ9821EPC-0608 and
N1961-0798,
they
had some duty to investigate the contents of those forms
because the declarations page indicated that the forms were
part of the policy. See, e.g., Alfa Life Ins. Co. v. Colza,
159 So. 3d 1240, 1249-50 (Ala. 2014) (noting that insurance
policyholders have a duty to read the documents provided them
and are charged with the knowledge such a reading would impute
to them), and McDougle v. Silvernell, 738 So. 2d 806, 808
(Ala. 1999) (stating that a party to a contract that fails to
inform himself or herself of extraneous facts or other
documents incorporated into the contract is nevertheless
"bound thereby" (quoting Ben Cheeseman Realty Co.
v.
Thompson,
216 Ala. 9, 12, 112 So. 151, 153 (1927))). We further note
that this Court has also enforced arbitration provisions in
The declarations page lists forms AJ9821EPC-0608 and
2
N1961-0798 as forms "AJ9821EPC 06/08" and "N1961 07/98,"
respectively. With regard to Moody, the declarations page in
her policy lists form AJ8654EXX-0604 as form "AJ8654EXX
06/04."
11
1131244, 1131245, 1131264, 1131384, 1131514
insurance policies where the plaintiffs claimed never to have
received the written policies containing the provisions.
See,
e.g., Ex parte Southern United Fire Ins. Co., 843 So. 2d 151,
156 (Ala. 2002) (enforcing an arbitration provision even
though it was claimed that "[the plaintiff] did not receive a
copy of either the policy or the arbitration rules referenced
in the policy"), and Philadelphia American Life Ins. Co. v.
Bender, 893 So. 2d 1104, 1109 (Ala. 2004) (enforcing an
arbitration provision in an insurance policy even though the
plaintiff "claims that he did not receive a copy of the
policy").
Finally, we note that this Court has, on other occasions,
considered similar cases involving financial agreements other
than insurance policies in which parties have challenged
arbitration
provisions
they
alleged
were
subsequently
added
to
the agreements without their express consent or knowledge. We
have uniformly recognized that a signature or express consent
is not required to give effect to the new arbitration
provisions; rather, we have held that the parties effectively
manifested their assent to the added provisions by continuing
the relationship after the arbitration provision was added.
12
1131244, 1131245, 1131264, 1131384, 1131514
We summarized some of these insurance and non-insurance cases
as follows in Providian National Bank v. Screws, 894 So. 2d
625, 627 (Ala. 2003):
"This
Court
has
previously
enforced
an
arbitration
provision
added
to
credit-card
agreements by amendment. See Ex parte Colquitt, 808
So. 2d 1018 (Ala. 2001). Further, this Court has
continually held that express assent is not required
in order for an arbitration provision to be
enforceable. SouthTrust Bank v. Williams, 775 So.
2d 184, 189 (Ala. 2000) (holding that an arbitration
provision added to a customer's account agreement by
notice was valid and enforceable); Woodmen of the
World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 367
(Ala. 1999) (holding that express assent to an
arbitration provision is not required when the
arbitration provision is added by amendment); Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998) (noting
that the inclusion of an arbitration provision is
not a material alteration to an insurance policy
requiring
a
signed
application);
Southern
Foodservice Mgmt., Inc. v. American Fid. Assurance
Co. 850 So. 2d 316 (Ala. 2002)(same)."
We note that, like the policyholders in these cases, the
plaintiffs in Ex parte Colquitt, 808 So. 2d 1018, 1021 n. 1
(Ala. 2001), and Woodmen of the World Life Insurance Society
v. Harris, 740 So. 2d 362, 366 n. 6 (Ala. 1999), claimed not
to have seen any notice that would have apprised them of the
fact that an arbitration provision was made part of their
agreements.
13
1131244, 1131245, 1131264, 1131384, 1131514
In sum, although the policyholders did not execute stand-
alone arbitration agreements or necessarily even read or
receive the insurance policies containing the arbitration
provisions, they have nevertheless manifested their assent to
those
policies
and,
necessarily,
the
arbitration
provisions
in
them, by accepting and acting upon the policies, inasmuch as
they all affirmatively renewed their policies and paid their
premiums, thus ratifying the policies. Howard, 775 So. 2d at
162-63. See also SouthTrust Bank v. Williams, 775 So. 2d 184,
189 (Ala. 2000) (stating that parties that "continued the
business
relationship
after
the
interposition
of
the
arbitration
provision"
"implicitly
assented
to
the
addition
of
the arbitration provision"). This holding is consistent with
our previous caselaw interpreting arbitration provisions in
insurance policies. Because the policyholders assented to,
3
We note that the policyholders have not asked us to
3
overrule Howard, Ex parte Rager, Ex parte Southern United,
Bender, or other cases in which this Court has reached similar
holdings. Indeed,
although
American Bankers discussed most of
these cases in the initial brief it filed with this Court, the
policyholders have not responded to American Bankers'
discussion of those cases or otherwise attempted to
distinguish the cases in their response brief, much less asked
us to overrule them. "Stare decisis commands, at a minimum,
a degree of respect from this Court that makes it disinclined
to overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
14
1131244, 1131245, 1131264, 1131384, 1131514
and are therefore subject to, the arbitration provision in
their insurance policies, we conclude that they agreed to
arbitrate the claims asserted in their complaints inasmuch as
those claims "aris[e] out of, relat[e] to, [and are]
connect[ed] with" those insurance policies.
Having established that the policyholders at least
ratified the insurance policies issued to them by American
Bankers and that those policies call for arbitration, we must
next address whether the sale of those policies affected
interstate commerce so as to require enforcement of the
policies' arbitration provision under the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The policyholders wisely do not
argue that American Bankers' sale of these insurance policies
does not affect interstate commerce; rather, they argue only
that American Bankers failed to put forth any evidence that
would establish that fact. See, e.g., Service Corp. Int'l v.
Fulmer, 883 So. 2d 621, 629 (Ala. 2003) (explaining that, in
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
inclined to abandon precedent without a specific
invitation
to
do so").
15
1131244, 1131245, 1131264, 1131384, 1131514
light of decisions of the Supreme Court of the United States,
"a trial court evaluating a contract connected to some
economic or commercial activity would rarely, if ever, refuse
to compel arbitration on the ground that the transactions
lacked 'involvement' in interstate commerce"), and Potts v.
Baptist Health Sys., Inc., 853 So. 2d 194, 199 (Ala. 2002)
("The burden of proof was on the [parties moving to compel
arbitration] to provide evidence demonstrating that [the
subject]
contract,
or
the
transaction
it
evidenced,
substantially affected interstate commerce.").
It appears that, in at least some of these consolidated
appeals, American Bankers made an additional evidentiary
submission intended to establish that the sale to certain of
the policyholders of these insurance policies affected
interstate commerce once it became apparent that the
policyholders would contest that issue; however, the trial
courts thereafter struck those submissions as being tardy.
Hence, the policyholders argue that American Bankers has
failed to put forth evidence that would satisfy the
interstate-commerce requirement. However, even without
considering those submissions, it is clear from the
undisputed
16
1131244, 1131245, 1131264, 1131384, 1131514
facts and the evidence in the record that these transactions
affected interstate commerce. As evidenced by the copies of
the insurance policies that are in the record in each case,
the policyholders are all Alabama residents and the subject of
each insurance policy is property located in Alabama. Those
same policies also indicate that American Bankers –– the full
corporate name is reflected on the policy as American Bankers
Insurance Company of Florida –– has a Florida address and that
the agent for each of the policies is shown as having either
a Florida or a Minnesota address. This diversity of
citizenship between the parties is sufficient to establish
that the transactions between them affected interstate
commerce. See, e.g., America's Home Place, Inc. v. Rampey,
[Ms. 1130150, October 24, 2014] ___ So. 3d ___ n. 2 (Ala.
2014) (indicating that the interstate-commerce requirement is
met when a contract showed on its face that the company
constructing a house in Alabama "listed its place of business
as being in 'Hall County, Gainesville, GA'"); DecisionQuest,
Inc. v. Hayes, 863 So. 2d 90, 95 (Ala. 2003) ("'"[A]ll
interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test,
17
1131244, 1131245, 1131264, 1131384, 1131514
of interstate commerce; and every negotiation, contract,
trade, and dealing between citizens of different states,
which
contemplates and causes such importation, whether it be of
good, person, or information, is a transaction of interstate
commerce."'" (quoting Uncle Ben's, Inc. v. Crowell, 482 F.
Supp. 1149, 1154 (E.D. Ark. 1980), quoting in turn Furst v.
Brewster, 282 U.S. 493, 497 (1931))); and Ex parte Dyess, 709
So. 2d 447, 450 (Ala. 1997) ("[T]he policy issued by American
Hardware [Insurance Group, Inc.,] to Jack Ingram Motors[,
Inc.,] involves interstate commerce because the policy was
between corporations of different states. Therefore, the
Federal Arbitration Act applies ....").4
Our final inquiry, therefore, is whether the arbitration
provision in the subject policies is unconscionable. In
We further note that the policyholders have filed
4
stipulations indicating that they are not seeking, and will
not accept, any award of damages that exceeds $74,999.99.
These stipulations were presumably filed in recognition
of
the
diversity
of
citizenship
that
exists
between
the
policyholders
and American Bankers and a desire to avoid the possibility of
the underlying cases being removed to federal court pursuant
to 28 U.S.C. § 1332 (granting federal district courts original
jurisdiction over all civil actions involving citizens of
different states where the value of the dispute exceeds
$75,000).
18
1131244, 1131245, 1131264, 1131384, 1131514
Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala.
2004), this Court stated:
"'[T]here is nothing inherently unfair or
oppressive about arbitration clauses,' Coleman v.
Prudential Bache Sec., Inc., 802 F.2d 1350, 1352
(11th Cir. 1986), and arbitration agreements are not
in themselves unconscionable, Ex parte McNaughton,
728 So. 2d 592, 597–98 (Ala. 1998). Instead,
unconscionability is an affirmative defense, and the
party asserting the defense bears the burden of
proof. Conseco Fin. v. Murphy, 841 So. 2d 1241,
1245 (Ala. 2002)."
In support of their argument that the arbitration provision in
their insurance policies is unconscionable, the policyholders
cite Anderson v. Ashby, 873 So. 2d 168 (Ala. 2003), for the
broad
proposition
that
an
arbitration
provision
is
unconscionable when the terms of the provision are grossly
favorable to a party that has overwhelming bargaining power,
but they otherwise rely entirely upon an August 2013 order
entered by an El Paso County, Texas, trial court finding a
certain arbitration provision before it to be unconscionable.
The arbitration provision in that case, Cardwell v.
Whataburger Restaurants, LLC, case no. 2013DCV0910, similarly
provided that arbitration would be administered by the
American Arbitration Association ("the AAA"); however, the El
Paso trial court declared the provision to be unconscionable
19
1131244, 1131245, 1131264, 1131384, 1131514
and refused to enforce it based on its belief that the fees
charged by the AAA were too high, regardless of whether they
were ultimately paid by the plaintiff or the defendant and
that the defendant was essentially trying to purchase a more
favorable forum for the dispute.
Of course, any precedential value of the El Paso County
court's judgment is limited to its interpretation of Texas
law. See, e.g., Pritchett v. State Farm Mut. Auto. Ins. Co.,
834 So. 2d 785, 794 (Ala. Civ. App. 2002) ("Any precedential
value of the Rhode Island Superior Court's judgment ... is
limited to its interpretation of Rhode Island law.").
However, even that limited precedential value evaporates if
the judgment is reversed on appeal, and, in fact, that is the
case with the El Paso court's judgment because, on October 24,
2014 –– well before briefs were submitted in these appeals ––
the Texas Court of Appeals reversed the El Paso trial court's
order based on "the trial court's clear failure to properly
analyze and apply the law of unconscionability." Whataburger
Rests. LLC v. Cardwell, 446 S.W.3d 897, 913 (Tex. App. 2014).
Moreover, to the extent the policyholders are arguing
that the arbitration provision is unconscionable because of
20
1131244, 1131245, 1131264, 1131384, 1131514
the financial burden arbitration would
impose upon them,
their
argument is not supported by the evidence in the record and,
in many respects, is contradicted by the evidence in the
record. First, there is no evidence in the record of the
policyholders' financial status that would indicate that they
can not afford to pay the costs of arbitration. See Leeman,
902 So. 2d at 651-52 (noting that there was no evidence in the
record of the plaintiffs' income or wealth that would indicate
that they would not be able to pay the fees and costs of
arbitration and concluding that the plaintiffs accordingly
"have not demonstrated that the arbitration provision in
[their contract with the defendant] is unconscionable on that
basis").
Second,
the
arbitration
provision
in
the
policyholders'
policies
expressly
provides
that
"[t]he
cost[s]
of all arbitration proceeding[s] shall be paid by [American
Bankers], with the exception of the cost of representation of
[the policyholder]" and that arbitration proceedings in each
case
"shall
be
conducted
in
the
county
where
[the
policyholder] reside[s], unless another location is mutually
agreed upon in writing."
21
1131244, 1131245, 1131264, 1131384, 1131514
In Commercial Credit Corp. v. Leggett, 744 So. 2d 890
(Ala. 1999), this Court considered an argument that an
arbitration provision was unconscionable for financial-
hardship reasons because it obligated the party initiating
arbitration to pay $125, while the defendant company agreed to
pay for the first eight hours of the arbitration proceedings,
the losing party to then be responsible for paying the costs
associated
with
any
additional
proceedings,
if
such
proceedings were necessary. We stated:
"It is difficult to see how a party who truly
believes she has a meritorious cause of action can
view these provisions as particularly onerous. [The
plaintiff] would initially have to pay only $125.00
to commence the process. Subsequently, the
defendants
would
pay
for
the
first
day
of
proceedings, regardless of the outcome. The losing
party would then pay for the remainder of the
proceedings.
In
fact,
the
only
parties
disadvantaged by these cost provisions are the
losing parties –– whoever they might be.
"In short, th[is] arbitration provision[] [is]
not 'unreasonably favorable to [the defendants],'
nor [is it] 'oppressive, one-sided, or patently
unfair.' Layne [v. Garner], 612 So. 2d [404,] 408
[(Ala. 1992)]."
744 So. 2d at 898. The arbitration provision in the instant
cases places even more of the cost burden for arbitration upon
American Bankers, and, in light of that fact and the record
22
1131244, 1131245, 1131264, 1131384, 1131514
before us, we find the policyholders' complaint of excessive
costs to be disingenuous. The policyholders have failed to
5
meet their burden of proof as to unconscionability;
accordingly, we decline to invalidate the arbitration
provision on that basis.
IV.
The policyholders sued American Bankers, asserting
various claims based on American Bankers' sale to them of
insurance policies allegedly providing more coverage than the
policyholders needed and could ever possibly benefit from.
The
trial courts thereafter
denied
American
Bankers'
subsequent motions to compel arbitration of the claims
asserted against it by the policyholders. We now reverse
those orders denying the motions to compel arbitration, based
We recognize that the arbitration provision in these
5
cases also authorizes the arbitrator to require the
policyholder to pay all arbitration costs if it is determined
that the policyholder's claim "is without substantial
justification." However, similar authority is held by a trial
court judge, who can require a party to pay not only court
costs, but also attorney fees. See § 12-19-272(c), Ala. Code
1975 ("The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or
party brought an action or any part thereof, or asserted any
claim or defense therein, that is without substantial
justification ...." (emphasis added)).
23
1131244, 1131245, 1131264, 1131384, 1131514
upon our holdings that the policyholders manifested their
assent to the arbitration provision in their policies by
continuing to renew the policies, that the sale of the
policies
affected
interstate
commerce,
and
that
the
arbitration provision in the policies is not unconscionable.
These causes are accordingly remanded for the trial courts to
enter new orders granting American Bankers' motions to compel
arbitration.
1131244 –– REVERSED AND REMANDED.
1131245 –– REVERSED AND REMANDED.
1131264 –– REVERSED AND REMANDED.
1131384 –– REVERSED AND REMANDED.
1131514 –– REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Bryan, J., concurs in the result.
Moore, C.J., and Murdock, J., dissent.
24
1131244, 1131245, 1131264, 1131384, 1131514
MOORE, Chief Justice (dissenting).
I respectfully, but strongly, dissent in these appeals
involving predispute arbitration agreements. It is undisputed
that the policyholders never signed the provision American
Bankers Insurance Company of Florida ("American Bankers")
seeks to enforce. Nevertheless, the main opinion holds that
the policyholders ratified the arbitration provision because
it was referenced on the declarations page of the policies and
because the policyholders paid premiums to renew
the
policies.
I cannot agree with that holding for two reasons. First, an
application of the Federal Arbitration Act ("the FAA"), 9
U.S.C. § 1 et seq., which is the basis for enforcing the
"purported"
arbitration
provision
in
this
case,
is
unconstitutional under the Seventh Amendment to the United
States Constitution. Second, because the right to a jury in
this case is a right secured by the Seventh Amendment to the
United States Constitution, any waiver of that right must be
knowing, willing, and voluntary, and the policyholders'
purported waiver in this case did not meet those requirements.
25
1131244, 1131245, 1131264, 1131384, 1131514
This Court now takes the crooked path of precedent in this
case and arrives at a truly erroneous conclusion.
6
I. Seventh Amendment
The Seventh Amendment to the United States Constitution
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
Any law, statute, or rule that takes away the right of a trial
by jury would violate the Seventh Amendment. It bears
repeating that "a law repugnant to the constitution is void."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also U.S. Const. art. VI, cl. 2 ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof ... shall be the supreme Law of the Land ...."
(emphasis added)). The FAA is no exception. See Ex parte
Hagan, 721 So. 2d 167, 174 n.3 (Ala. 1998) ("Certainly, the
See Lorence v. Hospital Bd. of Morgan Cnty., 294 Ala.
6
614, 618-19, 320 So. 2d 631, 634-35 (1975) (reproducing a poem
by Sam Walter Foss to illustrate the absurdity of blindly
following precedent and stating: "The quaint poetic lines of
Sam Walter Foss put in perspective the philosophy of those
courts which feel compelled to sacrifice their sense of reason
and justice upon the altar of the Golden Calf of precedent.").
26
1131244, 1131245, 1131264, 1131384, 1131514
FAA and arbitration clauses cannot be given precedence over
constitutional provisions, such as the Seventh and Fourteenth
Amendments to the Constitution of the United States."). But in
spite of the Constitution's protection of the right to a jury
trial in civil cases, courts have interpreted the FAA to take
away that most valuable right, even before a dispute arises or
any injury or cause of action exists.
Such an interpretation of the FAA is erroneous because
Congress, when it enacted the FAA in 1925, intended it to be
a rule of procedure in federal courts (not applicable to state
courts) involving only a specific class of contracts in
interstate commerce. I am not the only Justice, either on
7
this Court or on the United States Supreme Court, to hold this
view. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), Justice Black, joined by Justice
Douglas and Justice Stewart, argued in his dissent:
"[I]t is clear that Congress in passing the [Federal
Arbitration] Act relied primarily on its power to
create general federal rules to govern federal
I have explained elsewhere that Congress enacted the FAA
7
under its Article III powers to prescribe rules of procedure
for federal courts but that the courts have misinterpreted the
FAA as an exercise of Congress' Article I power over
interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824
So. 2d 668, 677-91 (Ala. 2001) (Moore, C.J., dissenting).
27
1131244, 1131245, 1131264, 1131384, 1131514
courts. Over and over again the drafters of the Act
assured
Congress:
'The
statute
establishes
a
procedure in the Federal courts .... It rests upon
the constitutional provision by which Congress is
authorized to establish and control inferior Federal
courts. So far as congressional acts relate to the
procedure in the Federal courts, they are clearly
within the congressional power.' And again: 'The
primary purpose of the statute is to make enforcible
in
the
Federal
courts
such
agreements
for
arbitration, and for this purpose Congress rests
solely upon its power to prescribe the jurisdiction
and duties of the Federal courts.' One cannot read
the legislative history without concluding that this
power, and not Congress' power to legislate in the
area of commerce, was the 'principal basis' of the
Act. Also opposed to the view that Congress intended
to create substantive law to govern commerce and
maritime transactions are the frequent statements in
the legislative history that the Act was not
intended to be 'the source of ... substantive law.'
As Congressman Graham explained the Act to the
House:
"'It
does
not
involve
any
new
principle of law except to provide a simple
method ... in order to give enforcement
.... It creates no new legislation, grants
no new rights, except a remedy to enforce
an agreement in commercial
contracts and in
admiralty contracts.' ...
"Finally, there are clear indications in the
legislative history that the Act was not intended to
make arbitration agreements enforceable in state
courts or to provide an independent federal-question
basis for jurisdiction in federal courts apart from
diversity jurisdiction. The absence of both of these
effects--which normally follow from legislation of
federal substantive law--seems to militate against
the view that Congress was creating a body of
federal substantive law."
28
1131244, 1131245, 1131264, 1131384, 1131514
388 U.S. at 418-20 (Black, J., dissenting) (footnotes
omitted).
Justice O'Connor, joined by then Justice Rehnquist, made
the same argument in a dissent issued 17 years after Prima
Paint was decided:
"One rarely finds a legislative history as
unambiguous as the FAA's. That history establishes
conclusively that the 1925 Congress viewed the FAA
as a procedural statute, applicable only in federal
courts, derived, Congress believed, largely from the
federal power to control the jurisdiction of the
federal courts.
"In
1925
Congress
emphatically
believed
arbitration to be a matter of 'procedure.' At
hearings on the Act congressional subcommittees were
told: 'The theory on which you do this is that you
have the right to tell the Federal courts how to
proceed.' ...
"....
"If
characterizing the
FAA
as
procedural
was
not
enough, the draftsmen of the Act, the House Report,
and the early commentators all flatly stated that
the Act was intended to affect only federal court
proceedings. Mr. Cohen, the American Bar Association
member
who
drafted
the
bill,
assured
two
congressional subcommittees in joint hearings:
"'Nor can it be said that the Congress of
the United States, directing its own courts
..., would infringe upon the provinces or
prerogatives of the States .... [T]he
question of the enforcement relates to the
law of remedies and not to substantive law.
The
rule
must
be
changed
for
the
29
1131244, 1131245, 1131264, 1131384, 1131514
jurisdiction in which the agreement is
sought to be enforced. ... There is not
disposition therefore by means of the
Federal bludgeon to force an individual
State into an unwilling submission to
arbitration enforcement.'"
Southland Corp. v. Keating, 465 U.S. 1, 25-27 (1984)
(O'Connor, J., dissenting) (footnotes omitted).
Justice Thomas, in a dissent joined by Justice Scalia,
argued the same 11 years after the Supreme Court issued its
opinion in Southland:
"Despite the FAA's general focus on the federal
courts, of course, § 2 itself contains no such
explicit limitation. But the text of the statute
nonetheless makes clear that § 2 was not meant as a
statement of substantive law binding on the States.
After all, if § 2 really was understood to 'creat[e]
federal substantive law requiring the parties to
honor arbitration agreements,' then the breach of an
arbitration agreement covered by § 2 would give rise
to a federal question within the subject-matter
jurisdiction of the federal district courts. Yet the
ensuing provisions of the Act, without expressly
taking away this jurisdiction, clearly rest on the
assumption that federal courts have jurisdiction to
enforce arbitration agreements only when they would
have had jurisdiction over the underlying dispute.
In other words, the FAA treats arbitration simply as
one means of resolving disputes that lie within the
jurisdiction of the federal courts .... [T]he reason
that § 2 does not give rise to federal-question
jurisdiction is that it was enacted as a purely
procedural provision. ..."
30
1131244, 1131245, 1131264, 1131384, 1131514
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 291 (1995)
(Thomas, J., dissenting) (citations omitted).
Finally, Justice Scalia, agreeing that Southland was
wrongly
decided, has told practitioners that he would
overrule
it if he were asked: "I shall not in the future dissent from
judgments that rest on Southland. I will, however, stand ready
to join four other Justices in overruling it, since Southland
will not become more correct over time ...." Allied-Bruce, 513
U.S. at 285 (Scalia, J., dissenting).
As to Justices on this Court, Justice Almon, joined by
Justice Shores, forcefully wrote in 1998:
"I cannot see how the United States Supreme
Court, which exists pursuant to the United States
Constitution, can apply an Act of Congress so as to
undermine the right of trial by jury in the states
that
guarantee
that
right
in
their
state
constitutions.
The
United
States
Constitution
guarantees the right of trial by jury in the Seventh
Amendment. That Amendment was adopted within the
Bill of Rights as a limitation on the Federal
Government.
Furthermore,
the
Tenth
Amendment
provides: 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively,
or to the people.' ...
"How
can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
31
1131244, 1131245, 1131264, 1131384, 1131514
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
constitutional authority."
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting).
Justice Cook, addressing the issue whether the Seventh
Amendment would bar the application of the FAA in state
courts, wrote:
"The fact that the United States Supreme Court
has never held the Seventh Amendment to be binding
on the states through the Fourteenth Amendment, as
it has certain other of the Bill of Rights
guarantees, is irrelevant in this context. This is
because the FAA is not a state law. Thus, the
constitutional deprivation, where one can be shown,
derives from an act of Congress, not a state
legislature. The Seventh Amendment, like the other
Bill of Rights provisions, was ratified as a
limitation on the power of Congress. Clearly,
Congress had no power to deprive a citizen of
Alabama of his right to a trial by jury before the
Fourteenth Amendment was ratified--a fortiori, it
has none now. Therefore, whether the Seventh
Amendment is binding on the states is entirely
irrelevant in any consideration of the FAA."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 934 (Ala. 1997)
(Cook, J., concurring specially).
This Court as a whole has recognized that "any
arbitration agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to a trial by
32
1131244, 1131245, 1131264, 1131384, 1131514
jury." Allstar Homes, 711 So. 2d at 929. I have no doubt that
8
my fellow Justices would agree that any law forcing a party to
arbitration if that party had not previously agreed to
arbitrate would be unconstitutional. But in this case, as in
many other arbitration cases, American Bankers argues that the
policyholders agreed, as a matter of contract, to go to
arbitration if a dispute arose. Thus, the question is whether
a party may validly bargain away his or her right to a trial
by jury before the right accrues. As I explained in my
specially concurring opinion in Ex parte First Exchange Bank,
150 So. 3d 1010, 1025-27 (Ala. 2013) (Moore, C.J., concurring
specially):
"I would hold that the right to a jury trial in
civil cases may not be waived by a party before a
lawsuit has been filed and the right accrues.
Because, '[o]rdinarily, the right to a jury trial is
determined by the cause of action stated,' Ex parte
Western Ry. of Ala., 283 Ala. 6, 12, 214 So. 2d 284,
289 (1968), logically that right cannot be exercised
before a lawsuit is filed. A maxim of the common law
states that 'no right can be barred before it
accrues.' Gould v. Womack, 2 Ala. 83, 88 (1841). See
also Blackmon v. Blackmon, 16 Ala. 633, 636 (1849)
(noting 'two maxims of the common law: 1st--that no
Allstar Homes was criticized in the plurality opinion of
8
Perry v. Hyundai Motor America, Inc., 744 So. 2d 859 (Ala.
1999). However, "[t]he precedential value of the reasoning in
a plurality opinion is questionable at best." Ex parte
Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).
33
1131244, 1131245, 1131264, 1131384, 1131514
right can be barred before it accrues....'); Adams
v. Adams, 39 Ala. 274, 281 (1864); Webb v. Webb's
Heirs, 29 Ala. 588, 601 (1857). One cannot have full
knowledge about what a right entails--about what,
exactly, he or she is waiving--until one fully
understands what is at stake by giving up the right.
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929
(Ala. 1997) (holding that a waiver of the right to
a trial by jury must be made knowingly, willingly,
and voluntarily).
"....
"'A man may not barter away his life or his
freedom, or his substantial rights.... In
a civil case he may submit his particular
suit by his own consent to an arbitration,
or to the decision of a single judge.... In
these aspects a citizen may no doubt waive
the rights to which he may be entitled. He
cannot, however, bind himself in advance by
an agreement, which may be specifically
enforced, thus to forfeit his rights at all
times and on all occasions whenever the
case may be presented.'
"Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445,
451, 22 L.Ed. 365 (1874). I articulated this
principle in my special writing in Ex parte Allen,
798 So. 2d 668, 676–77 (Ala. 2001) (Moore, C.J.,
concurring specially), which involved a predispute
arbitration agreement analogous to the predispute
waiver of a jury trial:
"'Predispute arbitration agreements are
problematic [because they] ... are signed
well before any dispute arises between the
parties. These predispute agreements are
often vague and give little notice to the
signing parties of the kinds of conflicts
that will subject them to arbitration
proceedings and the specific rights they
34
1131244, 1131245, 1131264, 1131384, 1131514
are
surrendering.
Because
predispute
agreements are entered into before the
grounds on which the waiver of rights is
based can be known, there is no real
"meeting of the minds," as contract law
requires between two parties who commit to
a binding agreement.'
"Waiver of a jury trial, to be valid, must occur
after a case has been initiated. 'Agreements entered
into after a controversy arises avoid this problem
[regarding full knowledge of the right being waived]
because when they enter such agreements, the parties
are aware of the kind of complaint they are allowing
to proceed to arbitration in the place of a jury
trial.' Allen, 798 So. 2d at 677 (Moore, C.J.,
concurring specially). ...
"Although outside the arbitration context no
federal
law
attempts
to
preempt
Alabama's
constitutional right to a jury trial, that inviolate
right does not accrue until a lawsuit is filed. No
individual may waive a right to a jury trial in
Alabama indefinitely into the future, for that right
does not accrue if it depends upon future events
that may or may not occur. If a person may not
exercise a jury-trial right until he or she has been
sued, it follows a fortiori that a person may not
waive that right before he or she has been sued.
"A jury-trial right is analogous to the right to
counsel, which cannot be waived until the initiation
of legal proceedings. Art. I, § 6, § 10, Ala. Const.
1901; Davis v. State, 292 Ala. 210, 291 So. 2d 346,
350 (1974); Withers v. State, 36 Ala. 252 (1860).
Other rights granted by the Declaration of Rights
cannot be waived before they accrue. For instance,
a person cannot contractually waive his or her right
to sue until that right has accrued. Art. I, § 10,
§ 11, § 13, Ala. Const. 1901. A person cannot
contractually waive his or her right to bail until
after that right has accrued. Art. I, § 16, Ala.
35
1131244, 1131245, 1131264, 1131384, 1131514
Const. 1901. Likewise, because § 11 declares the
right to a jury trial to be inviolate, an individual
may not waive that right before it accrues."
(Footnotes omitted.)
Based on the authorities cited in my specially concurring
opinion in Ex parte First Exchange Bank, it appears to me
that, at common law, one could not bargain away his or her
right to a jury trial until a cause of action had accrued.
This common-law history was not lost but was carried forward
in the Seventh Amendment.
"'The interpretation of the Constitution of the
United States is necessarily influenced by the fact
that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history.' ...
"'In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly
known to the framers of the Constitution.'"
Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888), and United States v.
Wong Kim Ark, 169 U.S. 649, 654 (1898)). Parties certainly
could have agreed to submit a dispute to arbitration once that
dispute arose. See 3 William Blackstone, Commentaries *16-17.
However, for the reasons stated above, I believe the Framers
of the Seventh Amendment would have viewed any law that
36
1131244, 1131245, 1131264, 1131384, 1131514
attempted
to
enforce
predispute
arbitration
agreements
as
void
under the Seventh Amendment.
Time and time again, the United States Supreme Court has
interpreted the FAA to be a valid exercise of Congress' power
under the Commerce Clause and has therefore required state
courts to apply the FAA. See, e.g., Allied-Bruce Terminix Cos.
v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating,
465 U.S. 1 (1984); and Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967). Justice Houston wrote in Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 38 (Ala.
1998) (Houston, J., concurring specially):
"Although I disagree with the majority of the United
States
Supreme
Court
in
its
Allied–Bruce
interpretation of the Federal Arbitration Act as it
applies to state courts, a majority opinion of that
Court is part of the law I have taken an oath to
uphold. See the second paragraph of Article VI of
the Constitution of the United States."9
However, the second paragraph in Article VI of the United
9
States Constitution says that state judges are bound by the
supreme law of the land, which consists of three things: (1)
the Constitution itself, (2) laws of the United States made
pursuant to the Constitution, and (3) treaties made under
authority of the United States. A Supreme Court opinion is not
the Constitution itself; it is not a law of the United States
made pursuant to the Constitution; and it is not a treaty made
under the authority of the United States--how then does
Article VI bind state judges to uphold Supreme Court opinions?
37
1131244, 1131245, 1131264, 1131384, 1131514
I do not agree that the Supreme Court's interpretation of
the FAA is a law I am required to apply, because that
interpretation does not conform to the United States
Constitution I am sworn to uphold and support. What if a state
court is presented with a constitutional question the United
States Supreme Court has not yet considered? As far as my
research shows, the United States Supreme Court has not yet
considered whether its interpretation of the FAA violates the
Seventh Amendment. As stated above, a federal statute is void
if it violates the Federal Constitution. Marbury, 5 U.S. at
180. As Chief Justice Marshall wrote in Marbury:
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot be
inspected by him?"
Marbury, 5 U.S. (1 Cranch) at 180.
If we declined to apply the Seventh Amendment because
doing so would undermine the United States Supreme Court's
interpretation of the FAA, which is not even a law but merely
a judicial opinion, then we would be violating the Supremacy
Clause, our oaths of office, and every sound principle of
10
11
The Supremacy Clause reads: "This Constitution, and the
10
Laws of the United States which shall be made in Pursuance
38
1131244, 1131245, 1131264, 1131384, 1131514
constitutional law. The Supreme Court's interpretation of a
federal statute does not preclude all lower courts from
considering constitutional questions the Supreme Court has
never considered. Therefore, we must analyze the arbitration
provision in this case by the Seventh Amendment, the Supreme
Court's precedent interpreting the FAA notwithstanding.
II. Knowing, Willing, and Voluntary Waiver
If this Court still believes that predispute arbitration
agreements
are
enforceable,
the
Seventh
Amendment
notwithstanding, then it should remember that, "regardless of
the federal courts' policy favoring arbitration, we find
nothing in the FAA that would permit such a [jury] waiver
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2
(emphasis added).
"I, ........, solemnly swear (or affirm, as
11
the case may be) that I will support the
Constitution of the United States, and the
Constitution of the State of Alabama, so
long as I continue a citizen thereof; and
that I will faithfully and honestly
discharge the duties of the office upon
which I am about to enter, to the best of
my ability. So help me God."
§ 279, Ala. Const. 1901.
39
1131244, 1131245, 1131264, 1131384, 1131514
unless it is made knowingly, willingly, and voluntarily."
Allstar Homes, 711 So. 2d at 929. This rule is a slight
variation of a general rule in contract law that applies when
parties agree in advance to waive their rights to a trial by
jury.
"In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this
Court articulated three factors to consider in
evaluating whether to enforce a contractual waiver
of the right to trial by jury: (1) whether the
waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is
equal; and (3) whether the waiver was intelligently
and knowingly made."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Gaylord Department Stores of Alabama v. Stephens, 404 So. 2d
586, 588 (Ala. 1981), required such a test because "Article I,
§ 11, Constitution 1901, provides that the right to trial by
jury shall remain inviolate," describing the right to trial by
jury as a "precious right."
12
In this case, it is undisputed that the policyholders
never signed an arbitration agreement. The main opinion holds
This rule is not unique to Alabama. For a detailed
12
discussion of how other courts apply this rule, or some slight
variation of it, see Jean R. Sternlight, Mandatory Binding
Arbitration and the Demise of the Seventh Amendment Right to
a Jury Trial, 16 Ohio St. J. on Disp. Resol. 669, 678-90
(2001).
40
1131244, 1131245, 1131264, 1131384, 1131514
that the "declarations page" of the policies notified the
policyholders of the existence of the forms in question,
noting that the written insuring agreement provided that
"[t]his
policy is not complete without the declarations
page."
However, there is no document entitled "declarations page" in
the record. Although I do not dispute that the document relied
upon by the main opinion is typically referred to as a
"declarations page," there is nothing on the page itself that
would alert the policyholders that this page is the critical
document that has been referenced repeatedly throughout the
policies.
Moreover, nothing in plain English on the declarations
page indicates that the policyholders were waiving their
rights to trial by jury. As the main opinion notes, the
declarations page made a brief reference to forms AJ9821EPC-
0608 and N1961-0798. These combinations of letters and
13
numbers appear among eight other similar references in a small
space. There were only three words in English adjacent to
these 10 mysterious combinations of letters and numbers:
I realize that the number on one of the forms was
13
different for Gwendolyn Moody, just as the main opinion does.
See ___ So. 3d at ___ at n.1.
41
1131244, 1131245, 1131264, 1131384, 1131514
"FORMS AND ENDORSEMENTS." (Capitalization in original.) The
main opinion reasons that this should have prompted the
policyholders to investigate further, but nothing on the
declarations page necessarily indicates that the referenced
forms constitute part of the policy. There is no explanation
of what these "forms and endorsements" are, or even whether
they are part of the policy. Regardless of whatever American
Bankers was thinking, I cannot agree that those references on
the
declarations page were sufficient to constitute a
knowing,
willing, or voluntary waiver of the policyholders' inviolate
right to a jury trial.
I fear that the precedential effect of this case will be
disastrous. The main opinion stands for the proposition that
an insurance company may deprive policyholders of their
constitutional rights without their express consent so long as
a vague, mysterious, code-like reference to a form appears
somewhere in the policy. Under this rationale, why would
insurance companies even have to send arbitration forms to
their
policyholders? If the insurance company's failure to
get
the policyholders to sign the arbitration forms in this case
was an accident, what is there to stop an insurance company
42
1131244, 1131245, 1131264, 1131384, 1131514
from doing the same thing intentionally in the next case?
Policyholders are entitled to know in advance what their
obligations are and whether they are expected to give up their
rights, instead of being subjected to a game of insurance-
company "peek-a-boo."
14
III. Conclusion
The right to a trial by jury is a sacred and precious
right.
Sir William Blackstone called it the "best
preservative
of English liberty." 3 William Blackstone, Commentaries *381.
The American Founders declared independence from King George
III, in part, for depriving them of "the benefits of Trial by
Jury." The Declaration of Independence ¶ 20. The Framers
15
included the right to trial by jury in our national Bill of
Rights. The Alabama Constitution says that the right to trial
by jury "shall remain inviolate." § 11, Ala. Const. 1901. Then
Justice Rehnquist called the right to trial by jury "an
Cf. United States v. Virginia, 518 U.S. 515, 574 (1996)
14
(Scalia, J., dissenting) ("The States and the Federal
Government are entitled to know before they act the standard
to which they will be held, rather than be compelled to guess
about the outcome of Supreme Court peek-a-boo.").
As Justice Almon observed in his dissent in McNaughton:
15
"King George's denial of the right of trial by jury was one of
the articles of the Declaration of Independence." McNaughton,
728 So. 2d at 602 (Almon, J., dissenting).
43
1131244, 1131245, 1131264, 1131384, 1131514
important bulwark against tyranny and corruption, a safeguard
too precious to be left to the whim of the sovereign, or, it
might be added, to that of the judiciary." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J.,
dissenting).
How then has this Court held today that the right to
trial by jury may be destroyed through such an inconspicuous
means? I respectfully submit that this is the result of
following bad precedent. If the Supreme Court's precedent
16
The main opinion notes that the policyholders did not
16
invite us to overrule precedent and that this Court is not
inclined to do so without an invitation. This does necessarily
mean that it may not overrule controlling precedent without
being asked to do so. See, e.g., Travelers Indem. Co. of
Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(overruling a case while expressly noting that the Court had
not been asked to do so). Likewise, this Court is not
forbidden from addressing the Seventh Amendment issue or from
considering Allstar Homes even though neither of the parties
raised those claims. "[A] court may consider an issue
'antecedent to ... and ultimately dispositive of' the dispute
before it, even an issue the parties fail to identify and
brief." United States Nat'l Bank of Oregon v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). See also
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) ("'"Appellate review does not consist of
supine submission to erroneous legal concepts even though
none
of the parties declaimed the applicable law below. Our duty is
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or passivity, can force us
to abdicate our appellate responsibility"'" (quoting Forshey
v. Principi, 284 F.3d 1335, 1359 n.20 (Fed. Cir. 2002),
44
1131244, 1131245, 1131264, 1131384, 1131514
interpreting a federal statute conflicts with the United
States Constitution itself, then our duty is not to predict
the next bend in the crooked path by asking, "What would the
Supreme Court do?" Instead, our duty, under oath, is to ask,
"What
does the Constitution say?" Here, that Constitution
says
the policyholders have a right to a jury trial. Furthermore,
one may give up such an invaluable right, even in a case where
an injury has already occurred and a cause of action exists,
only when the waiver of that right is knowing, willing, and
voluntary, and in this case it was not.
I respectfully dissent.
quoting in turn Empire Life Ins. Co. of America v. Valdak
Corp., 468 F.2d 330, 334 (5th Cir. 1972))). This is especially
true when this Court affirms a ruling of a trial court, as I
would do here. See Southern Energy Homes, Inc. v. Gregor, 777
So. 2d 79, 81 (Ala. 2000) ("[T]his Court can affirm the ruling
of a trial court for any valid reason, even one not presented
to or considered by the trial court.").
45 | June 26, 2015 |
66cac4a9-e9b3-4cad-93b2-a7b88b867f00 | Bonedaddy's of Lee Branch, LLC v. City of Birmingham | N/A | 1131338 | Alabama | Alabama Supreme Court | REL: 09/04/2015
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, 2015
_________________________
1131338
_________________________
Bonedaddy's of Lee Branch, LLC, d/b/a Bonedaddy's and d/b/a
Sweet Bones Alabama, and John L. Cowan, Jr.
v.
City of Birmingham
Appeal from Jefferson Circuit Court
(CV-13-215)
PER CURIAM.
The remaining defendants below, Bonedaddy's of Lee
Branch, LLC, d/b/a Bonedaddy's and d/b/a Sweet Bones Alabama
("Bonedaddy's" or "the LLC"), and John L. Cowan, Jr., appeal
from a judgment of the Jefferson Circuit Court in favor of the
1131338
City of Birmingham ("the City") following a bench trial. We
affirm in part and reverse in part.
Facts and Procedural History
On June 11, 2007, James A. Taylor, Jr. ("Jimmy"), filed
articles of organization for Bonedaddy's of Lee Branch, LLC,
a limited liability company, which initially did business as
Bonedaddy's, a restaurant. The articles of organization
listed the members of the LLC as Cowan and James A. Taylor
("Taylor"). It also stated that the LLC and its affairs would
be "member managed." The articles of organization listed
Cowan as the registered agent for Bonedaddy's and listed the
address for Bonedaddy's initial registered office as 1038
River Highlands Circle.
On July 16, 2008, Cowan filed an application with the
City for a "tax certificate." Section 2 of the application
was headed "LEGAL NAME AND MAILING ADDRESS to which tax forms
are to be sent." (Capitalization in original.) In that
section, the legal name of the business was listed as
"Bonedaddy's of Lee Branch LLC"; the address was listed as
1038 River Highlands Circle; and Cowan was listed as the
contact person. In the section of the application headed
2
1131338
"Tax Liabilities," with instructions to check the taxes for
which the business is liable, the boxes for sales tax,
occupational tax, and business-license tax were checked. In
the section dealing with company information,
Cowan
and Taylor
were listed as "partners" in the business; Cowan was listed as
the corporate resident agent or local manager for the
business; and Cowan's address was shown as 1038 River
Highlands Circle. The application was signed by Cowan and was
dated July 16, 2008.
Cowan testified that he and Taylor were originally "50-50
partners." However, when the restaurant moved to the Summit,
an upscale shopping area in Birmingham in 2008, under the name
"Sweet Bones," the Taylors had four friends invest $50,000
each into the LLC; in return, they "gave them five percent
interest in it." Cowan testified that that resulted in his
having a minority interest in the LLC and the remaining
members having a majority interest.
According to Cowan, when the restaurant moved to the
Summit in 2008, he opened a checking account for Bonedaddy's,
and he was the only person who could write checks on the
3
1131338
account at that time. Cowan admitted that, for many years, he
was responsible for remitting the taxes for the LLC.
Cowan testified that in February 2010 Jimmy and Brett
Taylor ("Brett") were added to the LLC's bank account. The
defense introduced copies of several checks written on
Bonedaddy's account between November 2010 and July 2011 that
listed the City as the payee and that were signed by Jimmy.
Some of those checks indicated that they were for business-
license or liquor taxes. Cowan's name was printed above the
signature line on each of those checks.
Cowan further testified that, in the fall of 2010, he,
Jimmy, and Yolanda Hunter, a senior auditor with the City's
department of finance, met in his office about business-
license taxes that had not been paid. He testified that he
was first made aware during that meeting that the business-
license taxes needed to be paid. Cowan testified that he and
Jimmy wanted to pay those taxes; that they talked to Hunter
about setting up a plan to take care of the taxes; and that
they were working in good faith toward paying those taxes.
Cowan testified that he was fired as the "general manager
and operating partner of the restaurant" in February 2011, but
4
1131338
he remained a member of the LLC. The defense presented
evidence indicating that on February 24, 2011, Cowan was
removed as a signatory from Bonedaddy's checking account.
Cowan further testified that, after February 2011, he did not
have any "say so" in the day-to-day operations of the
restaurant; that he did not pay the bills for the restaurant;
that he did not do the payroll; that he did not write the
checks; and that he no longer had any signing privileges on
the checking account.
Cowan also testified that, at some point, he received at
his residence a notice that the business-license taxes were
due and a notice that a check in partial payment of those
taxes had been returned for insufficient funds.
Subsequently,
he sent a letter to the City's finance department by certified
mail on April 5, 2011. The letter stated:
"This letter is to advise you I am no longer
employed as a manager or director by Bonedaddy's of
Lee Branch LLC .... I am returning their mail to
you with this notice so that you may direct it to
the current management.
"For your records the managing partner for this LLC
is Jimmy Taylor Jr. The business address for
Bonedaddy's of Lee Branch LLC is
"Dba Sweet Bones Alabama
"245 Summit Blvd.
5
1131338
"Birmingham, AL 35243.
"Please adjust your records accordingly to reflect
this change that went into effect early last month."
Cowan testified that, after he sent that letter to the City,
he did not receive any further communication from the City
regarding those taxes.
The defense also introduced a printout dated April 19,
2011,
from
the
City's
revenue
division
that
showed
delinquencies for Bonedaddy's. Handwritten on that printout
was a fax number, the name "Jimmy Taylor," and the word
"audit."
The defense presented evidence indicating that, on June
29, 2011, Hunter, on behalf of the City's revenue division,
sent an audit letter addressed to Bonedaddy's at the Summit
Boulevard address of Sweet Bones. The salutation on the
letter was "Dear Mr. Jimmy Taylor."
On October 24, 2011, Cowan filed a "Registered Agent
Resignation Notice" in the secretary of state's office. In
the notice, Cowan certified that, on October 10, 2011, he had
given Bonedaddy's a written notice of his resignation as its
registered agent. Cowan testified that he had previously sent
a resignation notice to the secretary of state's office; that
6
1131338
he checked with the secretary of state's office; that the
secretary of state's office indicated that it had not received
the notice; and that he refiled the notice at that time.
On January 6, 2012, a "Resolution of the Members of
Bonedaddy's of Lee Branch, LLC" was adopted. The resolution
stated:
"The undersigned members of Bonedaddy's of Lee
Branch, LLC, constituting over one-half of the
number of members of the company, and pursuant to
Section 10A-5-4.01, Ala. Code, have met, voted and
resolved to remove James A. Taylor, Jr., James A.
Taylor and Brett Taylor from any management or
employment position with the company and to remove
them from any authority to act on its behalf in the
business affairs of the company in any fashion and
hereby revoke any such prior grants of authority for
the company with any banks or other entities, with
this removal to be effective immediately."
The resolution was signed by Cowan; Dr. Ronald W. Orso; Carrie
Cearlock, as the executrix of the estate of Sperry Snow; Glen
Guthrie, as the representative of "Barkley Enterprises"; and
Scott Sink. Cowan testified that, when the other members of
Bonedaddy's discovered that Jimmy and Brett were using the
company's bank accounts and funds for their personal use,
those members came to him, said they wanted to stop Jimmy's
and Brett's use of the accounts and funds, and asked him if he
would join them. Cowan stated that, from the time his
7
1131338
employment was terminated until the time the other members of
the LLC decided to take action, he did not have any
involvement in the LLC. However, he admitted that, even at
the time of the trial, he remained a member of the LLC. Cowan
also testified that the articles of organization for
Bonedaddy's had not been amended to add the other members who
were participating in the LLC at the time the January 2012
resolution was adopted.
On February 9, 2012, the City issued a notice of final
assessment to "Bonedaddy's of Lee Branch LLC" for $32,253.54
in business-license taxes, interest, penalties, and fees for
the period 2008 through December 2012; a notice of final
assessment
to "Bonedaddy's of Lee Branch d/b/a
Bonedaddy's
and
d/b/a Sweetbones of Alabama" for $4,931.72 in occupational
taxes, interest, and penalties for the period July 1, 2011,
through December 31, 2011; and a notice of final assessment to
"Bonedaddy's of Lee Branch d/b/a Bonedaddy's and d/b/a
Sweetbones of Alabama" for $169,241.55 in sales taxes,
interest, and penalties for the period August 1, 2009, through
December 31, 2011. The address listed on each of the notices
was "245 Summit Blvd." However, the notices were sent, by
8
1131338
certified mail, to The Evans Law Firm, P.C., at an address on
Oxmoor Road. Neither Bonedaddy's nor Cowan paid any of the
three final assessments.
On March 20, 2013, the City filed in the Jefferson
Circuit court a "Complaint and Motion for Preliminary
Injunction" against Bonedaddy's, Cowan, Taylor, Orso, the
estate of Sperry Snow, Guthrie, and Sink (hereinafter
collectively referred to as "the defendants"). In the
complaint, the City alleged that the defendants had failed and
refused to submit business records and tax returns for the
periods that were the subject of the complaint; that the
defendants were currently engaged in business in the City of
Birmingham in violation of the City's business-license code;
and that notice of the final tax assessments had been mailed
but that no payments had been forthcoming. The City asked the
trial court to enter a preliminary injunction directing the
defendants to refrain from further conducting business within
the City and causing the sheriff to padlock the defendants'
place of business in the City. It also requested that the
trial court render a judgment in favor of the City and against
the defendants for the amount of taxes past due and owing and
9
1131338
the amount of taxes through the present date, together with
penalties and interest. Finally, it requested that, upon
final hearing, the trial court enter a permanent injunction
restraining the defendants from engaging in business within
the City's corporate limits until all the delinquent and
unpaid taxes, penalties, and interest were paid.
After a suggestion of bankruptcy was filed regarding
Taylor, the trial court entered an order staying all claims
asserted against Taylor. Also, based on a stipulation of
dismissal filed by the parties, the trial court entered an
order dismissing Orso, Guthrie, Sink, and Cearlock, as the
executrix of the estate of Sperry Snow, without prejudice.
On August 9, 2013, the trial court entered an order
stating:
"The above
referenced
matter
came
on
for
hearing
on the Plaintiff's Complaint and Motion seeking the
issuance of a Preliminary Injunction herein. The
Parties appeared by and through their respective
Counsel and announced to the Court that the subject
business has been closed for more than a year and
that the principal party herein namely, JAMES A.
TAYLOR, SR., has filed a Petition in the United
States Bankruptcy Court in the State of Oklahoma.
The portion of the Complaint filed by the Plaintiff
herein seeking injunctive relief is therefore hereby
declared to be MOOT."
10
1131338
Bonedaddy's and Cowan filed a motion for a partial
summary judgment as to the City's "claim against them for
Sales Taxes due for the year 2011-12." After the City filed
its response, the trial court denied the motion.
On June 23, 2014, the trial court conducted a bench
trial. On July 7, 2014, the trial court entered its "Order
Granting
Permanent
Injunction
and
Final
Judgment,"
finding,
in
pertinent part:
"(3)
That pursuant to the authority
granted by its members, John L.
Cowan,
Jr.
submitted
to
the
Plaintiff herein an Application
For Tax Certificate on or about
July 16, 2008, for the purposes
of registering and receiving a
license to operate a new business
known as Bonedaddy's and agreeing
therein to be in full 'compliance
with
all
applicable City of
Birmingham Tax Code provisions,
and state laws.'
"(4)
That the Application for Tax
Certificate was signed by John L.
Cowan, Jr., and in Section 10
thereof, identified sales tax,
occupational tax and business
license tax as being those taxes
for which the Company would be
liable.
"(5)
That the Plaintiff issued its
business
license
to
the
Defendant.
11
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"(6)
That
the
Defendant
commenced
operations
as
Bonedaddy's
Restaurant and operated for a
number of years during which
business license taxes, sales
taxes
and
occupational
taxes
became
due
and
were
paid
sporadically. According to this
Court's findings the total amount
of the taxes due to the Plaintiff
at
the
conclusion
of
the
testimony in this case is as
follows:
"• Business license taxes:
$ 32,253,54
"• Occupational taxes:
4,931.72
"• Sales taxes:
169,241,55
"• Total
$203,426.81
"(7)
That the Plaintiff entered its
Final Assessments for each of the
taxes
due
as
set
forth
in
paragraph 6 above on or about
February 9, 2012, serving copies
of each of the Final Assessments
as instructed to the then law
firm representing the Defendant
herein on February 10, 2012. No
Appeal of the Final Assessment
has been made to the date of the
trial of this cause to any
Administrative or Judicial body.
"(8)
That, though the defendant, John
L. Cowan, Jr., by letter dated
April 1,
2011, notified
the
Plaintiff that he was no longer
employed as a manager or director
by Bonedaddy's of Lee Branch, LLC
the said John L. Cowan, Jr.,
continued to exercise his rights
12
1131338
as
a
member/manager
of
the
Company as was evidenced by a
Resolution signed by John L.
Cowan, Jr., and other members on
or
about
January
6,
2012.
Further, the Court finds that,
though provisions exist for the
cessation of membership by one or
more members of the Company, John
L. Cowan, Jr., remained as a
member/manager of the Company
through the conclusion of the
trial of this matter.
"(9)
That
this
Court
is
without
subject-matter jurisdiction to
hear the substantive challenges
made by the Defendants to the
Final
Assessments
issued
on
February 9, 2012, because the
evidence submitted to this Court
established that the Defendants
did
not
appeal
said
Final
Assessments within the thirty
(30) day statutory time limit.
Furthermore, it was undisputed
that the Defendants failed to pay
the amounts shown on the Final
Assessments
or
execute
a
supersedeas bond, as required by
statute and ordinance, to invoke
this Court's jurisdiction to hear
an
appeal
from
the
Final
Assessments."
(Emphasis in original.) The trial court entered a judgment
against Bonedaddy's and Cowan, jointly and severally, in the
amount of $203,426.81. It also permanently enjoined
Bonedaddy's and Cowan from operating a business within the
13
1131338
City's corporate limits until Bonedaddy's and Cowan had
satisfied all the tax liabilities enumerated in the order.
This appeal followed.
Standard of Review
"'Because the trial court heard ore tenus
evidence during the bench trial, the ore tenus
standard of review applies.' Kennedy v. Boles
Invs., Inc., 53 So. 3d 60, 67 (Ala. 2010).
"'"'"[W]hen a trial court hears ore
tenus testimony, its findings on disputed
facts are presumed correct and its judgment
based on those findings will not be
reversed unless the judgment is palpably
erroneous or manifestly unjust."'" Water
Works & Sanitary Sewer Bd. v. Parks, 977
So. 2d 440, 443 (Ala. 2007) (quoting
Fadalla v. Fadalla, 929 So. 2d 429, 433
(Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)).
"'The presumption of correctness, however,
is rebuttable and may be overcome where
there
is
insufficient
evidence
presented
to
the trial court to sustain its judgment.'"
Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005) (quoting Dennis v. Dobbs, 474
So. 2d 77, 79 (Ala. 1985)). "Additionally,
the ore tenus rule does not extend to cloak
with a presumption of correctness a trial
judge's conclusions of law or the incorrect
application of law to the facts." Waltman
v. Rowell, 913 So. 2d at 1086.'
"Retail Developers of Alabama, LLC v. East Gadsden
Golf Club, Inc., 985 So. 2d 924, 929 (Ala. 2007).
'Questions of law are reviewed de novo.' Alabama
Republican Party v. McGinley, 893 So. 2d 337, 342
(Ala. 2004)."
14
1131338
Moultrie v. Wall, [Ms. 1130697, February 6, 2015] ___ So. 3d
___, ___ (Ala. 2015).
Discussion
I.
Cowan and Bonedaddy's argue that the trial court did not
have subject-matter jurisdiction to enter a final judgment
against Cowan in this case because, they say, the City did not
comply with certain provisions of the Alabama Taxpayers' Bill
of Rights and Uniform Revenue Procedures Act, § 40-2A-1 et
seq., Ala. Code 1975 ("the TBOR"). Specifically, they contend
that the City did not comply with § 40-2A-7, Ala. Code 1975,
because Cowan did not receive copies of the preliminary and
the final assessments; because the preliminary and final
assessments did not include Cowan's name; and because "[t]he
only purported notice offered by the City was a letter to the
LLC of the preliminary and final tax assessments delivered to
a secretary at a law firm that represented the LLC in another
matter." Cowan and Bonedaddy's brief, p. 15.
"The TBOR prescribes uniform procedures that
must be followed in assessing and collecting taxes.
§ 40–2A–1 and –2[, Ala. Code 1975]. Pursuant to the
TBOR, the State Department of Revenue ('the
Department') is required to provide a taxpayer with
notice of any planned audit of the taxpayer's books
15
1131338
and records; with a statement of the taxpayer's
procedural rights, including the right to an
administrative review of a preliminary assessment;
and with a written description of the grounds for
any claimed underpayment or nonpayment of a tax. §
40–2A–4[, Ala. Code 1975]. A taxpayer has the right
to the entry of a preliminary assessment stating the
specific amount of taxes the Department claims the
taxpayer owes, which must be either mailed or
personally delivered to the taxpayer. § 40–2A–7[,
Ala. Code 1975]. The taxpayer is then entitled to
dispute the preliminary assessment by filing a
petition for review with the Department. If the
parties are unable to resolve their differences and
the Department determines that the assessment is
valid, it must enter a final assessment. The
taxpayer may then appeal the assessment to the
administrative law division of the Department (or to
a similar administrative agency in the event the
dispute
involves
local
taxes
levied
by
a
municipality or county not administered by the
Department) or to the circuit court in the county
where the taxpayer resides. § 40–2A–7."
General Motors Acceptance Corp. v. City of Red Bay, 894 So. 2d
650, 653 (Ala. 2004).
Section 40-2A-7(b), Ala. Code 1975, provides, in
pertinent part:
"(3) ... The preliminary assessment entered by
the department, or a copy thereof, shall be promptly
mailed by the department to the taxpayer's last
known address by either first class U.S. mail or
certified mail with return receipt requested, but at
the option of the department, the preliminary
assessment may be delivered to the taxpayer by
personal service.
16
1131338
"(4)
Procedure
for
review
of
disputed
preliminary assessments; entry and notice of final
assessment.
"....
"d. The final assessment entered by
the department, or a copy thereof, shall be
mailed by the department to the taxpayer's
last known address (i) by either first
class U.S. mail or certified mail with
return receipt requested in the case of
assessments of tax of five hundred dollars
($500) or less or (ii) by certified mail
with return receipt requested in the case
of assessments of tax of more than five
hundred dollars ($500). In either case and
at the option of the department, the final
assessment, or a copy thereof, may be
delivered to the taxpayer by personal
service."
In the reply brief, Cowan and Bonedaddy's argue that the
issue of notice was raised at trial. There was some evidence
presented regarding the service of the notices of final
assessments and when Cowan actually received such notices.
However, Cowan and Bonedaddy's raise their argument that the
City did not comply with the procedures provided for in the
TBOR for the first time on appeal. Bonedaddy's and Cowan also
argue, based on this Court's decision in City of Red Bay, that
this issue implicates the subject-matter jurisdiction of the
17
1131338
trial court to enter a judgment in this case and therefore can
be raised for the first time on appeal.
In City of Red Bay, Red Bay and Franklin County filed a
class-action
lawsuit
against
GMAC
Leasing
Corporation
and
GMAC
Financial
Corporation
(hereinafter
collectively
referred
to
as
"GMAC") in which they asserted that GMAC had failed to collect
local sales or rental taxes on its leases and had failed to
remit such taxes to the local taxing jurisdictions. In that
case, this Court noted:
"GMAC argues that the City and the County are
subject to the TBOR. Therefore, it argues, before
the City and the County can seek to collect the
sales and rental taxes they claim GMAC owes them,
they must first comply with the TBOR by providing a
written statement to GMAC of its procedural rights,
including the right to administrative review of a
preliminary assessment; by providing a written
description of the basis for their claim to the
taxes owed; and by issuing a preliminary and a final
assessment. It is undisputed that the City and the
County have not taken any action required by the
TBOR.
"The City and the County argue that the TBOR
does not apply to local taxing jurisdictions. We
disagree."
894 So. 2d at 653. This Court went on to hold that "the Local
Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1988
('the LTSA'), made the TBOR equally applicable to tax
18
1131338
assessments and tax-collection procedures by local taxing
authorities such as the City and the County." 894 So. 2d at
653. This Court then addressed the following argument:
"The City and the County also argue that
compliance with the TBOR is not jurisdictional and
that they were not required to exhaust the
administrative remedies of the TBOR because of the
exception to the exhaustion-of-remedies-doctrine
that applies when questions of law and statutory
construction predominate over questions of fact.
Again we disagree.
"This Court addressed the TBOR in Patterson v.
Gladwin Corp., 835 So. 2d 137 (Ala. 2002). In
Patterson, a corporate taxpayer brought a class
action against the Department seeking refunds of
corporate franchise taxes. The taxpayer attempted
to rely on exceptions to the exhaustion-of-remedies
doctrine as authority for bypassing the requirements
of the TBOR. Although the Court noted that Alabama
recognizes
the
doctrine
of
exhaustion
of
administrative remedies and that that doctrine '"is
a judicially imposed prudential limitation, not an
issue of subject-matter jurisdiction,"' 835 So. 2d
at 142, the Court did not accept the taxpayer's
argument that it need not exhaust administrative
remedies when seeking a refund of taxes from the
Department. The Court held that compliance with the
TBOR is the exclusive means for obtaining a
franchise-tax refund, and explicitly stated that
'[t]he TBOR is jurisdictional on its face. See §
40–2A–7(c)(5)c; § 40–2A–9(g)(1)[, Ala. Code 1975].'
835 So. 2d at 153. See also State v. Amerada Hess
Corp., 788 So. 2d 179 (Ala. Civ. App. 2000), in
which the Court of Civil Appeals dismissed an action
by the Department to recover severance taxes on the
basis that the trial court lacked jurisdiction over
the action because the Department had failed to
follow the TBOR.
19
1131338
"Because the failure of the City and the County
to comply with the provisions of the TBOR before
filing their complaint deprived the trial court of
jurisdiction, we vacate the class-certification
order and remand the cause for the trial court to
enter an order of dismissal. Because we conclude
that the class-certification order must be vacated,
we need not address the other issues raised by
GMAC."
894 So. 2d at 655-56 (some emphasis added).
The City of Red Bay Court, in concluding that the circuit
court lacked jurisdiction because of a failure to follow the
TBOR, cited with approval the decision of the Court of Civil
Appeals in State v. Amerada Hess Corp., 788 So. 2d 179 (Ala.
Civ. App. 2000). In Amerada Hess Corp., the State of Alabama
and the State Department of Revenue (hereinafter collectively
referred to as "the Department") filed a complaint in the
Mobile Circuit Court alleging that Amerada Hess Corporation
and 35 other oil producers (hereinafter collectively referred
to as "the producers") had engaged in deceptive schemes and
practices for the purposes of underpaying severance taxes.
The
Department
sought to recover past-due taxes, interest, and
penalties and also sought declaratory and injunctive relief.
The Court of Civil Appeals noted that "the complaint included
no tax assessment advising the producers of the amount of
20
1131338
their tax liability." 788 So. 2d at 180. The producers filed
motions to dismiss the complaint, which the trial court
granted. The Department appealed, arguing that § 40-2-11,
Ala. Code 1975, "empower[ed] it to sue a taxpayer for the
collection of taxes or penalties due the state." 788 So. 2d
at 181. Although the producers did not dispute the
Department's authority to sue for the collection of taxes,
they argued that, when the Department sues a taxpayer to
recover taxes, penalties, and interest, it must proceed in
conformity with the TBOR. The Court of Civil Appeals stated:
"[T]his appeal turns on the question whether the procedures
set forth [in the TBOR] are minimum procedures the Department
is bound to follow." 788 So. 2d at 181. After a lengthy
discussion of the language in various provisions of the TBOR,
of cases from this Court emphasizing the need for taxing
authorities to provide notice of assessments to taxpayers, of
requirements in the original severance-tax-levy statute, and
of language in the Alabama Tax Enforcement and Compliance Act,
§ 40–29–1 et seq., Ala. Code 1975, the Court of Civil Appeals
concluded that the "legislature intended § 40-2-11 to empower
the Department to institute legal action against a taxpayer
21
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for tax liability once an assessment has been made. Any other
interpretation of this statute would render the Taxpayers'
Bill of Rights powerless." 788 So. 2d at 184. Ultimately, the
Court of Civil Appeals concluded "that the trial court
properly dismissed the Department's claims for money damages
and for a declaratory judgment, based on its lack of subject-
matter
jurisdiction
resulting
from
the
Department's
failure
to
follow the procedures mandated by the Taxpayers' Bill of
Rights." 788 So. 2d at 185 (emphasis added).
Three years after deciding City of Red Bay, this Court
took up another municipal-taxation dispute in Russell
Petroleum, Inc. v. City of Wetumpka, 976 So. 2d 428 (Ala.
2007). Russell Petroleum involved a circuit court action
filed by the City of Wetumpka ("Wetumpka") against Russell
Petroleum,
Inc.
("Russell
Petroleum"),
to
recover
unpaid
sales
taxes,
unpaid
business-license
fees,
and
unpaid
gasoline
taxes
that Russell Petroleum did not remit to Wetumpka on retail
sales of gasoline by the business. Russell Petroleum argued
that it was not required to purchase a business license from
Wetumpka or to remit any gasoline or sales taxes because, it
argued, the annexation into Wetumpka of the property on which
22
1131338
its convenience store and gasoline station were located was
invalid. Alternatively, Russell Petroleum argued that the
trial court lacked jurisdiction to order Russell Petroleum to
pay municipal sales taxes because Wetumpka had failed to
follow the procedures of the TBOR. The trial court rejected
all of Russell Petroleum's defenses and issued a final order
requiring Russell Petroleum to pay all the taxes.
This Court agreed with the trial court that Wetumpka had
followed the procedures necessary to annex the property on
which Russell Petroleum's convenience store and gasoline
station were located and that, therefore, Russell Petroleum
was liable for payment of the business-license fees and the
municipal gasoline taxes. The Court concluded, however, that
Wetumpka's failure to follow the procedures of the TBOR
rendered invalid its enforcement action to recover the unpaid
sales taxes. As the Court explained:
"The City of Red Bay decision is controlling
authority. As in that case, the circuit court here
did
not
have
subject-matter
jurisdiction
to
adjudicate the sales-tax issue because the City
litigated that dispute without availing itself of
the administrative procedures in the TBOR, which the
LTSA [Local Tax Simplification Act of 1998] made
applicable to the assessment of local sales, use,
rental, and lodgings taxes. ...
7
23
1131338
"_________________
" Our holding here is limited to municipal sales
7
taxes. Although the City did not follow the required
administrative procedures before it sued to collect
the unpaid business-license fees and gasoline taxes,
the trial court had jurisdiction to adjudicate the
disputes related to the levy of those taxes. ..."
976 So. 2d at 438 (emphasis other than an "sales" added).
1
In this case, the City had issued a final sales-tax
assessment against Bonedaddy's. The notice of final
assessment, however, did not name Cowan individually as the
taxpayer nor was the notice mailed to Cowan. Additionally,
the City did not present any evidence at trial to indicate
that it had ever issued a final sales-tax assessment against
Cowan per se. Based on the evidence presented at trial, it
2
See also § 11-51-210, Ala. Code 1975, as amended by the
1
Local Tax Simplification Act of 1998, Act. No. 98-192, Ala.
Acts 1998, referencing "taxes levied or assessed by any
municipality pursuant to the provisions of Section 11–51–200,
[Ala. Code 1975]," a statute concerned only with sales taxes.
The City attached to its complaint the following
2
resolution by the Birmingham City Council adopted on June 6,
2012:
"Be it resolved by the Council of the City of
Birmingham that the Sales Tax Assessment as levied
against Bonedaddy's of Lee Branch LLC & John L.
Cowan, the person responsible for the collection and
remittance of tax, doing business as (DBA) SWEET
BONES OF ALABAMA, by the Finance Department, dated
5/24/12 for the period of 10/08-02/12, in the amount
24
1131338
does not appear that the City complied with the requirements
of the TBOR with regard to Cowan. The evidence presented at
trial suggests that, rather than following the administrative
procedure set forth in the TBOR, the City's initial attempt to
collect the sales taxes from Cowan was in the circuit court.
3
Consistent with this Court's decision in Russell Petroleum, we
hold that the City's failure to comply with provisions of the
TBOR before it filed its complaint seeking to collect the
sales taxes from Cowan deprived the trial court of
of $152,892.10 for Sales Tax, is deemed correct and
is made final."
This resolution
was
not
introduced at trial. Additionally, the
resolution references an assessment dated May 24, 2012.
However, the City did not present any evidence at trial
regarding a sales-tax assessment dated May 24, 2012. Rather,
the only notices of final assessments that were introduced at
trial were dated February 9, 2012. Finally, the amount of the
sales tax in the February 9, 2012, assessment that was
introduced at trial was for an amount greater than the
assessment of May 24, 2012, that was referenced in the
resolution.
At trial, the City introduced a March 21, 2013, letter
3
written by Daniel Evans of The Evans Law Firm that referenced
a March 7, 2013, letter from the City regarding a notice of a
municipal tax lien that designated Cowan and Taylor as "'the
person[s] responsible for collection and remittance of
taxes.'" However, no municipal tax lien was introduced into
evidence at trial. Additionally, the City did not present any
evidence regarding the actual filing of any such lien.
25
1131338
jurisdiction over the City's claim for sales taxes against
Cowan.4
It is also true that the City did not follow the required
administrative procedure before suing Cowan for the business-
license taxes and occupational taxes. Again, keeping with the
above-described holding of this Court in Russell Petroleum,
however, we hold that the City's failure to comply with the
TBOR did not deprive the trial court of subject-matter
jurisdiction to adjudicate the dispute regarding those taxes.
II.
Cowan and Bonedaddy's also argue that the trial court
erred in awarding a judgment against Cowan personally based
upon Bonedaddy's application for a business-tax certificate
because he had not collected the taxes claimed; because he did
not have access to LLC's bank account; and because he cannot
be held personally responsible for the actions of the LLC.
More specifically, insofar as the latter argument relates to
the issue of liability for the City's business-license tax and
occupational tax, Cowan and Bonedaddy's correctly observe:
Neither party challenges the applicability of Russell
4
Petroleum to this case.
26
1131338
"Membership/ownership in an LLC ... is not a
basis for liability for debts of the LLC. In fact,
the limitation of such liability is one of the
foundations of the Limited Liability statutes. As a
member and manager of the LLC, Mr. Cowan cannot be
held personally responsible for actions of the LLC.
Alabama law has consistently held that LLC members
are limited in their liability: 'in general, members
of an LLC are not proper parties to proceedings
against the LLC, Ala. Code § 10-12-18, and members
are not liable for judgments against the LLC, Ala.
Code § 10-12-20.' Filo Am., Inc. v. Olhoss Trading
Co., L.L.C., 321 F. Supp. 2d 1266, 1268 (M.D. Ala.
2004).
"In 2009, Ala. Code § 10-12-18 was recodified
without change to Ala. Code § 10A-5-2.07 and it
states:
"'§
10A-5-2.07.
Parties
to
actions.
Neither a member nor a manager of a limited
liability company is a proper party to
proceedings by or against a limited
liability company, except where the object
is to enforce a member's or manager's
rights against or liability to the limited
liability company.'"
See also, e.g., J. William Callison and Maureen A. Sullivan,
Limited Liability Companies: A State-by-State Guide
To
Law And
Practice § 5:1 (2014) (noting that "[o]ne of the hallmark
features of limited liability companies is the members'
protection from personal liability for the LLC's debts,
obligations, and liabilities").
27
1131338
In response, the City invokes the administrative-law
decision of the Alabama Department of Revenue in Nonna Rose
Kingsley, LLC v. Alabama Department of Revenue (No. W.
09-1194, April 15, 2010) In Kingsley, the Department stated:
"[R]eading §§ 10-12-8(b)[, Ala. Code 1975,] and
10-12-20(a)[, Ala. Code 1975,] together, members of
LLCs that are taxed as partnerships are still LLC
members, and thus, pursuant to § 10-12-20(a), are
not personally liable for the tax obligations and
other debts of the LLC. That holding is consistent
with how the IRS taxes such members for federal
withholding and other employment taxes."
Id. at 5 (citing with approval Capitol Mach. & Equip Co. v.
State of Alabama, (No. S. 08-619, April 20, 2009), at 8-13).
More specifically, the City responds to Cowan and Bonedaddy's
argument by attempting to rely on the following exception to
the rule of nonliability invoked by Cowan and acknowledged by
the City itself:
"An LLC member may be personally liable for the
trust fund taxes of the LLC, but only if the member
is a responsible person under Alabama's 100 percent
penalty statutes, Code of Ala. 1975, § 40-29-72 and
40-29-73."
Kingsley, supra.
The problem with the City's argument is that neither the
business-license tax nor the occupational tax in question is
one of the taxes covered by Alabama's 100 percent penalty
28
1131338
statutes, §§ 40-29-72 and -73, Ala. Code 1975. Section 40-
5
29-73(a) provides as follows:
"Any person required to collect, truthfully account
for, and/or pay over any tax imposed by Sections
40-17-2 [motor-fuel tax], 40-17-220 [excise tax on
lubricating
oil],
40-18-71
[withholding
tax],
40-21-82 [sales tax on utilities], 40-23-2 [sales
tax], 40-23-61 [property tax], 40-26-1 [hotel tax]
and any other local sales, use, and gross receipts
taxes collected by the state Department of Revenue
who willfully fails to collect such tax, or
truthfully account for, and/or pay over such tax, or
willfully attempts in any manner to evade or defeat
any such tax or the payment thereof, shall, in
addition to other penalties provided by law, be
liable for a penalty up to the total amount of the
tax evaded, or not collected, or not accounted for
and paid over."
(Emphasis added.) None of the taxes referenced in this
section are the business-license tax or the occupational tax
Among other things, Cowan replies to the City's argument
5
that he should be deemed liable under §§ 40-29-72 and -73 by
stating that "[b]usiness license and occupational taxes are
not trust fund taxes and thus fall outside of the scope of
Alabama's 100 percent penalty statute." Cowan is correct that
a business-license tax is not a trust-fund tax; it is imposed
directly upon Bonedaddy's and is an obligation for which
Bonedaddy's is solely accountable to the City. And although
an "occupational tax" would appear to generally fit the
definition of a trust-fund tax as a tax collected by an entity
and held in trust on behalf of the taxpayer for the benefit of
the taxing authority, see, e.g., In re Markos Gurnee P'ship,
163 B.R. 124, 130 (Bankr. N.D. Ill. 1993), it clearly is a tax
that falls outside the scope of Alabama's 100 percent penalty
statutes. See discussion, infra.
29
1131338
at issue here. The only tax listed in the statute that even
resembles either the business-license tax or the occupational
tax is the tax imposed by § 40-18-71, Ala. Code 1975, but that
provision addresses only withholding moneys owed
in
respect of
Alabama state income taxes levied pursuant to Chapter 18 of
Title 40. The trial court therefore erred in holding Cowan
personally responsible for the business-license taxes and the
occupational taxes owed by Bonedaddy's.
III.
Finally, Bonedaddy's and Cowan argue that the trial court
did not have subject-matter jurisdiction to enter a final
order in this case because Bonedaddy's was not properly served
with notice of the preliminary or the final tax assessments,
as required by § 40-2A-7, Ala. Code 1975.
As to the preliminary assessments, in their original
brief, Bonedaddy's and Cowan assert that "[t]he
only purported
notice offered by the City was a letter to the LLC of the
preliminary and
final
tax assessments delivered to a secretary
at a law firm that represented the LLC in another matter."
Cowan and Bonedaddy's brief, p. 15. None of the parties
presented any evidence at trial, however, regarding the
30
1131338
issuance of the preliminary assessments or the address to
which any such preliminary assessments had been mailed.
Therefore, there is no evidence before this Court to indicate
that Bonedaddy's was not properly served with notice of the
preliminary assessments.
With regard to the notices of the final assessments, the
evidence indicated that the City had mailed the notices of the
final assessments by certified mail and that the notices had
been mailed to The Evans Law Firm. Sabrina Franklin, a senior
auditor with the City, testified:
"We send it certified to the address that we -- I
was told to send it to after communicating with the
attorney that had spoke with me by phone and through
E-mail. She told me to issue the final assessment
to the following address that has been listed on
this green card."
Franklin testified that the City received the return receipt
indicating that the certified mail had been accepted. Cowan
and Bonedaddy's did not present any evidence to dispute
Franklin's testimony that she had been instructed to send the
final assessments to The Evans Law Firm.
In Davidson v. State of Alabama Department of Revenue
(No. P. 2003-232, August 5, 2003), the Department of Revenue's
administrative-law division addressed the issue whether a
31
1131338
final assessment had been correctly mailed to a taxpayer's
last known address. In addressing this issue, the
administrative-law judge stated:
"The issue of whether a final assessment was
correctly mailed by the Department to a taxpayer's
last
known
address
was
discussed
in
Island
Interiors, Inc. v. State of Alabama, S. 01-317
(Admin. Law Div. Preliminary Order Dismissing
Department's Motion to Dismiss 8/23/01), as follows:
"'The Department is required to mail a
final assessment over $500 by certified
mail to the taxpayer's last known address.
Section 40-2A-7(b)(4)c. The requirement
that a final assessment must be mailed to
a taxpayer's last known address is modeled
after the federal requirement that a notice
of
deficiency
must
be
mailed
to
a
taxpayer's last known address. 26 U.S.C.
§
6212(b)(1).
Consequently,
federal
authority
should
be
followed
in
determining
if the Department properly mailed a final
assessment to a taxpayer's last known
address. Best v. State Dept. of Revenue,
417 So. 2d 197 (Ala. Civ. App. 1981) (when
an Alabama statute is modeled after a
federal statute, federal authority should
be followed in interpreting the Alabama
statute).
"'If a final assessment is timely mailed to
a taxpayer's last known address, actual
receipt by the taxpayer is not required.
Consequently, a taxpayer cannot refuse to
claim
a
final
assessment
served
by
certified mail, and thereby avoid the 30
day appeal deadline. Williams v. State,
Dept. of Revenue, 578 So. 2d 1345 (Ala.
Civ. App. 1991); see also, Robert A. Beach
32
1131338
v. State of Alabama, Inc. 00-615 (Admin.
Law Div. ODA 11/28/00). For federal cases
on point, see, Erhard v. C.I.R., 87 F.3d
273 (1996); Patman and Young Professional
Corp. v. C.I.R., 55 F.3d 216 (1995).
"'The Department must, however, exercise
reasonable diligence in determining a
taxpayer's last known address.
In deciding
if the Department has used reasonable
diligence, the focus is not on whether the
taxpayer notified the Department of a new
or different address, but rather, on the
most
current
information
which
the
Department possesses. U.S. v. Bell, 183
B.R. 650 (S.D. FL 1995).'
"Island Interiors, S. 01-316 at 4-5.
"....
"A mailing 'is sufficient if it is mailed to the
address where the Commissioner reasonably believes
the taxpayer wished to be reached.' Green v. United
States, 437 F. Supp. 334, 337 (1977). As stated
above, the focus is 'on the most current information
which the Department possesses.' U.S. v. Bell, 183
B.R. 650 (SD Fla. 1995). 'The controlling test ...
is
whether,
in
light
of
all
the
pertinent
circumstances, the IRS acted reasonably in mailing
the deficiency notice' to the address in question.
Crum v. C.I.R., 635 F.2d 895, 899 (1980)."
Davidson, at 2-3 (emphasis added).
In this case, the City presented undisputed evidence that
Franklin had been instructed to send the final assessments to
The Evans Law Firm. Therefore, the evidence presented at
trial indicated that the City mailed the notices of final
33
1131338
assessments to the address where Bonedaddy's wished to be
reached and that the City acted reasonably in mailing the
notices of final assessments to The Evans Law Firm.
Cowan and Bonedaddy's also argue that, without notice,
Bonedaddy's was deprived of its right to appeal and its
opportunity to exhaust administrative remedies. However,
Bonedaddy's did not present any evidence that it did not, in
fact, receive the notices of the final tax assessments or that
it did not receive the notices in time to file an appeal.
Finally, even after the City had filed its complaint in this
case, Bonedaddy's did not attempt to file an appeal from the
final tax assessments.
For these reasons, Bonedaddy's has not
established that it is entitled to relief as to this claim.
Accordingly, we affirm the trial court's judgment regarding
Bonedaddy's liability for the taxes owed.
Conclusion
Based on the foregoing, we affirm the trial court's
judgment with regard to the sales-tax, the business-license-
tax,
and
the
occupational-tax
assessments
against
Bonedaddy's.
We reverse the trial court's judgment with respect to Cowan's
responsibility to pay Bonedaddy's outstanding sales taxes
34
1131338
because the City's failure to comply with the provisions of
the TBOR before filing its complaint seeking to collect sales
taxes from Cowan deprived the trial court of jurisdiction over
that claim. We also reverse the trial court's judgment with
respect to Cowan's responsibility to pay the outstanding
business-license taxes and occupational taxes because those
are not taxes for which a member of an LLC can be held
personally liable under the 100 percent penalty provisions of
§§ 40-29-72 and -73. We remand this case with instructions
for the trial court to vacate its judgment against Cowan
regarding the payment of the assessments for sales,
occupational, and business-license taxes.6
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,
Main, Wise, and Bryan, JJ., concur.
Based on our disposition in this case, we pretermit any
6
other arguments raised by the parties.
35 | September 4, 2015 |
5edd25dc-61e8-402d-bb3c-f64981153db1 | Ex parte Jimmy Walker. | N/A | 1131448 | Alabama | Alabama Supreme Court | REL:08/28/2015
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, 2015
_________________________
1131448
_________________________
Ex parte Jimmy Walker
PETITION FOR WRIT OF MANDAMUS
(In re: Jeremy M. Deason
v.
Jimmy Walker et al.)
(Montgomery Circuit Court, CV-13-659)
SHAW, Justice.
Jimmy Walker, a defendant below, petitions this Court for
a writ of mandamus directing the Montgomery Circuit Court to
vacate its order denying his motion for a summary judgment in
1131448
the action commenced by the plaintiff, Jeremy M. Deason, a
former inmate in the custody of the Alabama Department of
Corrections
("DOC"),
alleging
negligence
and
wantonness
and
to
enter a summary judgment in Walker's favor on the basis of
State-agent immunity. We grant the petition and issue the
writ.
Facts and Procedural History
While Deason was incarcerated, he participated in a DOC
work-release program and was assigned to an inmate-
construction detail; Walker, who was employed as a "carpenter
supervisor" with DOC's Correctional Industries Division,
served as Deason's work-release supervisor. In 2010, Deason
suffered an on-the-job injury when scaffolding he and Walker
were dismantling collapsed. Before both Deason and Walker's
ascent onto the scaffolding, Walker had performed a visual
inspection of the scaffolding and the "mud plates," which
prevent scaffolding from settling, in order to assess the
stability of the scaffolding; according to Walker, the
scaffolding appeared secure before Deason started ascending.1
Deason's own testimony confirmed that nothing about the
1
scaffolding appeared unstable before his ascent.
2
1131448
As a result of his injuries, Deason sued, among other
defendants, numerous DOC officials, including Walker, whom
Deason sued only in his individual capacity. Specifically, as
to Walker, Deason contended that Walker "started climbing the
scaffold on the same side as [Deason] knowing that the
scaffold was not set up properly for workers to climb the same
side at the same time." During his subsequent deposition
testimony, Deason elaborated, explaining that Walker had
allegedly supervised the initial erection of the scaffolding,
which, according to Walker, was neither anchored to the wall
of the adjacent building nor supported by jacks. In his
answer to Walker's petition, Deason
lists
the alleged tortious
actions of Walker as including: "failing to inspect the
scaffold just before climbing and then climbing an unanchored
scaffold on the same side and just behind ... Deason."
Deason's answer and brief, at p. 23.
All
claims
in
Deason's
complaint,
excepting
the
negligence
and
wantonness
claims
against
Walker,
were
disposed
of either by dismissal or by summary judgment. Walker, too,
sought a summary judgment
on,
among other grounds, State-agent
and sovereign-immunity grounds. Deason opposed Walker's
3
1131448
motion, arguing, essentially, that "because the State can
never be liable for a tort, any time an employee of the State
commits a tort, he is acting beyond his authority." On August
5, 2014, the trial court entered an order denying Walker's
summary-judgment motion. In response, Walker filed the
instant petition seeking a writ of mandamus directing the
trial court to enter a summary judgment in his favor on the
basis of State-agent immunity.
Standard of Review
"'Mandamus is an extraordinary writ
and 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 Land, 775 So. 2d 847, 850 (Ala. 2000)
(quoting Ex parte Horton, 711 So. 2d 979,
983 (Ala. 1998)). When we consider a
mandamus petition, the scope of our review
is to determine whether the trial court
clearly exceeded its discretion. Ex parte
Tegner, 682 So. 2d 396 (Ala. 1996).'
"State v. Bui, 888 So. 2d 1227, 1229 (Ala. 2004).
We further note this Court's general rule that we
will not review the denial of a motion for a summary
judgment on a petition for the writ of mandamus
because an adequate remedy exists by way of an
appeal. Ex parte Par Pharm., Inc., 58 So. 3d 767,
775–76 (Ala. 2010). However, an exception to that
general rule is 'that the denial of a motion for
4
1131448
summary judgment grounded on a claim of immunity is
reviewable by petition for writ of mandamus.' Ex
parte Rizk, 791 So. 2d 911, 912 (Ala. 2000) (citing
Ex parte Purvis, 689 So. 2d 794 (Ala. 1996))."
Ex parte Thomas, 110 So. 3d 363, 365–66 (Ala. 2012).
In addition,
"[t]his
Court
has
established
a
'burden-shifting' process when a party raises the
defense of State-agent immunity. Giambrone v.
Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). In
order to claim State-agent immunity, a State agent
bears
the
burden
of
demonstrating
that
the
plaintiff's claims arise from a function that would
entitle the State agent to immunity. Giambrone, 874
So. 2d at 1052; Ex parte Wood, 852 So. 2d 705, 709
(Ala. 2002). If the State agent makes such a
showing, the burden then shifts to the plaintiff to
show
that
the
State
agent
acted
willfully,
maliciously, fraudulently, in bad faith, or beyond
his or her authority. Giambrone, 874 So. 2d at
1052; Wood, 852 So. 2d at 709; Ex parte Davis, 721
So. 2d 685, 689 (Ala. 1998). 'A State agent acts
beyond authority and is therefore not immune when he
or she "fail[s] to discharge duties pursuant to
detailed rules or regulations, such as those stated
on a checklist."' Giambrone, 874 So. 2d at 1052
(quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala.
2000))."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
Discussion
In his petition, Walker, citing, among other cases,
Carpenter v. Tillman, 948 So. 2d 536 (Ala. 2006), argues that
he
is entitled to State-agent immunity because, he
says,"[t]he
5
1131448
law is clear that 'employees of the DOC are entitled to
State-agent immunity when in conducting the activities made
the basis of the action they were exercising "judgment in the
administration" of the DOC.'" Petition, at 10 (quoting
Carpenter, 948 So. 2d at 538). According to Walker, at the
time of Deason's injury, Walker, among other things, "was
supervising personnel on a work squad and exercising
discretion in performing his duties as a supervisor."
Therefore, Walker argues that he is immune from suit pursuant
to Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000). We
2
agree.
Alabama law governing actions against State agents is
well settled:
"'State-agent
immunity
protects
state
employees,
as agents of the State, in the exercise of their
judgment in executing their work responsibilities.'
Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002). In
Cranman, this Court restated the rule governing
State-agent immunity:
"'A State agent shall be immune from
civil liability in his or her personal
capacity when the conduct made the basis of
Cranman was a plurality opinion. The test set forth in
2
Cranman was subsequently adopted by a majority of the Court in
Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000).
6
1131448
the claim against the agent is based upon
the agent's
"'(1) formulating plans, policies, or
designs; or
"'(2) exercising his or her judgment
in the administration of a department or
agency of government, including, but not
limited to, examples such as:
"'(a)
making
administrative
adjudications;
"'(b) allocating resources;
"'(c) negotiating contracts;
"'(d) hiring, firing, transferring,
assigning, or supervising personnel; or
"'(3) discharging duties imposed on a
department or agency by statute, rule, or
regulation, insofar as the statute, rule,
or regulation prescribes the manner for
performing the duties and the State agent
performs the duties in that manner; or
"'(4) exercising judgment in the
enforcement of the criminal laws of the
State, including, but not limited to,
law-enforcement officers' arresting or
attempting to arrest persons; or
"'(5) exercising judgment in the
discharge of duties imposed by statute,
rule,
or
regulation
in
releasing
prisoners,
counseling or releasing persons of unsound
mind, or educating students.
"'Notwithstanding anything to the
contrary in the foregoing statement of the
7
1131448
rule, a State agent shall not be immune
from civil liability in his or her personal
capacity
"'(1) when the Constitution or laws of
the United States, or the Constitution of
this State, or laws, rules, or regulations
of this State enacted or promulgated for
the purpose of regulating the activities of
a
governmental
agency
require
otherwise;
or
"'(2) when the State agent acts
willfully, maliciously, fraudulently, in
bad faith, beyond his or her authority, or
under a mistaken interpretation of the
law.'
"792 So. 2d at 405."
Reynolds, 946 So. 2d at 453-54.
As Deason notes, to be entitled to the claimed immunity,
Walker must generally demonstrate that his acts fall within
one of the five categories of conduct set out above. Once
Walker makes that demonstration, the burden then shifts to
Deason to show that, at the time of Deason's injury, Walker
was "'act[ing] willfully, maliciously, fraudulently, in bad
faith, beyond his ... authority, or under a mistaken
interpretation of the law.'" Id. We note that, in his answer
to Walker's petition, Deason argues alternatively that
Walker's actions do not fall within any of the five Cranman
categories and that he exceeded his authority. The crux of
8
1131448
Deason's argument in opposition to Walker's petition appears
to be that Walker's alleged negligent and/or wanton conduct
with regard to the inspection and ascent of the scaffolding is
sufficient to abrogate Walker's entitlement to State-agent
immunity. Deason states: "The requirement of State
constitutional immunity means that an employee is not immune
when he or she commits a tort that does not fit into the
immunities enumerated in the first five paragraphs of the
[Cranman] test."
Walker contends that, at the time of Deason's accident,
he was acting in his discretionary capacity as "carpenter
supervisor" and that his duties included "supervising,
instructing,
and training inmates in the specifications of
the
project" and "conducting safety checks to ensure that safe
techniques [were] being utilized with tools, including
scaffolding." Petition, at 14. Walker further contends that
his duties and actions in supervising the work site and the
inmates, including Deason, "necessarily involve planning,
directing, supervising, and making discretionary decisions."
Id. Thus, Walker appears to contend that his actions fall
within the second category of Cranman. Further, according to
9
1131448
Walker's summary-judgment motion, "[t]here is no rule or
regulation of [DOC or its subject entities] relating to
construction or of scaffolding, how it is to be anchored,
climbed, or additional safety equipment that must be used."
Thus, Walker also contends that there is no evidence
indicating that he acted beyond his authority.
The supporting evidence Walker submitted indicated that,
in his capacity as "carpenter supervisor," he was generally
responsible for supervising the work of inmates, including
Deason, and for conducting safety inspections at the work
site. More specifically, the list of general responsibilities
3
on Walker's "Employee Performance Appraisal" lists the job
responsibilities of a "carpenter supervisor" as including the
following:
"1. Reviews prints, shop drawings and job
specifications using all applicable building codes
to
learn
about
the
work
at
hand
and
find
discrepancies with no valid complaints.
"2. Visits job sites with inmates following written
and oral instructions to work on projects with
maximum productivity and no valid complaints.
Deason, who possessed carpentry experience, had worked
3
under Walker's supervision for more than a year before the
accident.
10
1131448
"3. Reviews purchasing paperwork against all
specifications to confirm materials required and
identify any problems for maximum productivity and
timely completion of assignments.
"4. Receives and stores materials at the job site,
verifying materials received, storing materials
properly and maintain[ing] property control with no
valid complaints.
"5. Supervises, instructs and trains inmates in the
use of any specifications available using hand tools
or power tools following all applicable codes in new
construction, remodeling, demolition and all related
work with no valid complaints.
"6. Completes assignments using inmate labor
following all available specifications, proper
construction techniques, following instructions, or
correcting problems at job sites.
"7. Troubleshoots all inmate work checking for
quality work, work meeting specifications, proper
construction techniques, following instructions, or
correcting problems at job sites.
"8. Conducts safety checks to ensure that inmates
use safe techniques as to power tool usage, all
electrical
devices,
scaffolding,
and
debris
removal."4
According to Walker, other than the foregoing, he has
4
never received anything in writing detailing the duties and
responsibilities of his position. Testimony from other DOC
personnel confirms that there are no written guidelines or
regulations for a
carpenter supervisor to follow in performing
his or her duties at a job site, nor are there any written
standards for performing the job in a "safe manner."
11
1131448
The evidence presented in support of Walker's summary-
judgment motion further established that, on the morning of
Deason's injury, Walker began the workday by generally
instructing his crew that a section of scaffolding had to be
taken down. In response to Walker's instructions, Deason
voluntarily ascended the scaffolding; once Deason had reached
the top tier of the scaffolding, Walker followed Deason up by
ascending the same side of the scaffolding that Deason had
climbed. When Walker reached approximately its second tier,
the scaffolding began swaying and ultimately toppled,
resulting in Deason's claimed injuries.
Deason's testimony indicated his belief that the work-
release center might have a policy governing required "job
inspections" for security of job sites; however, according to
Deason, to his knowledge, those inspections consist solely of
a work-release officer like Walker "com[ing] to jobs and
mak[ing] sure the inmates [are] doing what they're told [and
are] properly dressed." Further, DOC has issued no specific
rule or regulation governing either the construction,
anchoring, or ascension of scaffolding or the employment of
12
1131448
fall-protection
or
other
safety
equipment.
More
5
specifically, the record establishes that DOC does not have
any guidelines regarding the dismantling of scaffolding and,
instead, relies upon the discretion of the carpenter
supervisor as to the performance of such duties. Walker's
evidentiary submissions further established that, prior to
directing Deason to ascend the scaffolding for dismantling,
Walker performed a visual inspection of its condition.
Walker contends that, in light of the foregoing facts and
prior decisions of this Court, even assuming that he
negligently performed his duties
with regard to the inspection
and ascension of the scaffolding, those duties were performed
in the line and scope of his discretionary authority as a
carpenter supervisor. See Ex parte Randall, 971 So. 2d 652,
664 (Ala. 2007) ("This Court has previously held that poor
judgment or wanton misconduct, an aggravated form of
negligence, does not rise to the level of willfulness and
maliciousness necessary to put the State agent beyond the
immunity recognized in Cranman. See Giambrone [v. Douglas],
Deason's counsel acknowledged on the record below that
5
Occupational Safety and Health Administration regulations did
not apply in this case.
13
1131448
874 So. 2d [1046] at 1057 [(Ala. 2003),] (holding that
State-agent immunity 'is not abrogated for negligent and
wanton behavior; instead, immunity is withheld only upon a
showing that the State agent acted willfully, maliciously,
fraudulently,
in
bad
faith,
or
beyond
his
or
her
authority').").
The undisputed evidence before us establishes that Walker
clearly
possessed
discretion
regarding
the
day-to-day
activities on the job site at which Deason was working,
including the delegation of work necessary to complete a
particular project –- such as the dismantling of the
scaffolding. In fact, Walker's responsibilities specifically
include
both
"[s]upervis[ing]"
and
"instruct[ing]"
in
order
to
"[c]omplete[]
assignments
using
inmate
labor."
Nothing
before
us indicates that Walker exceeded the scope of his authority
as that authority was defined by his supervisors and by the
job description. Ex parte Hayles, 852 So. 2d 117, 122 (Ala.
2002) ("State-agent immunity protects state employees, as
agents of the State, in the exercise of their judgment in
executing their work responsibilities."). See also Ex parte
Spivey, 846 So. 2d 322, 331 (Ala. 2002) ("A State agent is ...
14
1131448
immune from civil liability for exercising judgment in
supervising personnel.").
Deason disputes that Walker's inmate work detail
constitutes "personnel" as the term is used in Cranman, and he
also appears to believe that, because supervision of inmates
on work release and, more specifically, the climbing of
scaffolding fail to appear as explicit categories in Cranman,
Walker failed to meet his initial burden of showing that his
actions fall within an activity entitling Walker to immunity
under Cranman. As Deason correctly notes, however, the list
of conduct enumerated by this Court in Cranman is not
exhaustive. See, e.g., Howard v. City of Atmore, 887 So. 2d
201, 206 (Ala. 2003).
Moreover, the caselaw cited by Deason in support of his
claim that a State agent "has no authority to act for the
state in the commission of a tort," see Elmore v. Fields, 153
Ala. 345, 350, 45 So. 66, 67 (1907), is notably pre-Cranman.
See also DeStafney v. University of Alabama, 413 So. 2d 391
(Ala. 1981). As this Court noted in Cranman, in DeStafney,
the Court "adopted a rule of qualified immunity" that
"partially closed the door that had been opened in Elmore."
15
1131448
792 So. 2d at 402. In Cranman, we discussed our prior
decisions, including Elmore, recognizing the difficulties –-
and potential inequities –- associated with applying the
DeStafney rule to certain discretionary functions and, in an
effort to avoid such inconsistent application, restated the
rule to result in the current rule, as set out above. 792 So.
2d at 405.
Deason further contends that on-site safety is one of
Walker's job responsibilities and that, therefore, ensuring
the security of the scaffolding "was not something he would
have discretion in deciding whether or not to do." In
addition, Deason argues that there is no immunity for
discharging duties imposed by a statute, rule, or regulation
where the statute, rule, or regulation prescribes the manner
for
performing
those
duties
and
the
agent
performs
accordingly. However, in both his response in opposition to
Walker's summary-judgment motion and his answer to the
petition, Deason conceded, and the evidence confirmed, that
"[t]here are no written guidelines for a [carpenter]
supervisor to follow in performing their [sic] duties as a
supervisor at a job site," nor are there any "written
16
1131448
standards used by supervisors on job sites to perform their
jobs in a safe manner." In addition, Deason acknowledged that
"[t]here
were
no
written
standards,
guidelines,
or
regulations
for ... Walker to follow as a carpentry supervisor, and no
standard used to determine if ... Walker was competent to be
a carpentry supervisor." More specifically, "'[t]here [are]
no written standards regarding Walker's responsibilities and
results as a carpentry supervisor ... with regard to the
erection or deconstruction of scaffolding." Here, Walker
undisputably assessed the security of the scaffolding before
he and Deason proceeded to climb it. The fact that Walker
allegedly performed that duty in a negligent and perfunctory
manner does not in itself deprive Walker of immunity. See
Randall, supra.
The record establishes that the actions of which Deason
complains amounted to discretionary actions by Walker in
allocating resources, assigning duties, and choosing the
manner in which to perform his role as a carpenter supervisor
over the job site and the inmates; therefore, the duties
Walker was discharging at the time Deason was injured were
within his authority and required him to exercise judgment in
17
1131448
discharging those duties. Further, the record is devoid of
any evidence indicating –- and Deason does not establish -–
either that Walker violated any applicable DOC rule or
regulation governing his conduct or that Walker was acting
"willfully, maliciously, fraudulently, [or] in bad faith" in
the exercise of judgment in regard to the scaffolding when
Deason was injured. Therefore, Walker has successfully
demonstrated that he is entitled to State-agent immunity as to
Deason's tort claims.
Conclusion
In consideration of the foregoing, and applying the law
established in Cranman and its progeny to the facts of this
case, we conclude that the Montgomery Circuit Court erred in
denying Walker's
motion
for a summary judgment; because Walker
has shown a clear legal right to the relief sought, we issue
the writ and direct that court to vacate its previous denial
and to enter a summary judgment in favor of Walker on Deason's
claims.
18
1131448
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., concur in the result.
19 | August 28, 2015 |
9ad0b3c3-fe89-4314-91a1-21af4be1859a | Ex parte James H. Suggs et al. | N/A | 1140986 | Alabama | Alabama Supreme Court | REL: 09/25/2015
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, 2015
____________________
1140986
____________________
Ex parte James H. Suggs et al.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Douglas S. Dickinson and Barbara Dickinson
v.
James H. Suggs et al.)
(Shelby Circuit Court, CV-08-900394;
Court of Civil Appeals, 2130899)
WISE, Justice.
The petition for the writ of certiorari is denied.
1140986
2
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT DENIED.
Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,
Main, and Bryan, JJ., concur. | September 25, 2015 |
581bd7e9-e4b0-44c5-83e5-b1b1ee8a2cef | Ex parte John William Gilam. | N/A | 1140672 | Alabama | Alabama Supreme Court | REL: 05/22/2015
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, 2014-2015
____________________
1140672
____________________
Ex parte John William Gilam
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: John William Gilam
v.
State of Alabama)
(DeKalb Circuit Court, CC-10-770; CC-12-02; and CC-13-220;
Court of Criminal Appeals, CR-13-1337)
STUART, Justice.
WRIT DENIED. NO OPINION.
1140672
Parker, Shaw, and Wise, JJ., concur.
Moore, C.J., concurs specially.
2
1140672
MOORE, Chief Justice (concurring specially).
On January 9, 2015, the Court of Criminal Appeals
dismissed, by order, John William Gilam's appeal from a Rule
32, Ala. R. Crim. P., petition challenging his convictions,
pursuant to guilty pleas, for discharging a firearm into an
occupied dwelling, driving under the influence, and altering
a firearm on the basis that the filing fee had not been paid
or waived and that, therefore, the DeKalb Circuit Court was
without jurisdiction to enter the order purporting to grant
Gilam's petition for an out-of-time appeal.
Because I agree that the circuit court was without
jurisdiction to grant Gilam's petition for an out-of-time
appeal, I concur in denying the petition for a writ of
certiorari. I write specially to note that it appears that
Gilam may still file in the circuit court another Rule 32
petition seeking an out-of-time appeal, this time either
paying the filing fee or requesting in forma pauperis status
with his petition; however, he must do so within the confines
of Rule 32.
1
"[T]he court shall not entertain any petition for relief
1
from a conviction or sentence on the grounds specified in Rule
32.1(a) and (f), unless the petition is filed: ... [I]n the
case of a conviction not appealed to the Court of Criminal
3
1140672
Appeals, within one (1) year after the time for filing an
appeal lapses; provided, however, that the time for filing a
petition under Rule 32.1(f) to seek an out-of-time appeal from
the dismissal or denial of a petition previously filed under
any provision of Rule 32.1 shall be six (6) months from the
date the petitioner discovers the dismissal or denial,
irrespective of the one-year deadlines specified in the
preceding subparts." Rule 32.2(c), Ala. R. Crim. P.
4 | May 22, 2015 |
b5035fce-62cb-4e8f-a503-48d97dd99c18 | Ex parte Knox. | N/A | 1131207 | Alabama | Alabama Supreme Court | REL: 06/26/2015
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, 2014-2015
____________________
1131207
____________________
Ex parte Teddy Lee Knox
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama
v.
Teddy Lee Knox)
(DeKalb Circuit Court, CC-12-353;
Court of Criminal Appeals, CR-12-2019)
MURDOCK, Justice.
Teddy Lee Knox filed a motion to suppress evidence in the
form of marijuana seized during a traffic stop. The DeKalb
Circuit Court granted the motion on the ground that there was
not reasonable suspicion for the search. The State appealed;
1131207
the Court of Criminal Appeals reversed the judgment on a
ground not raised in the circuit court: that Knox was no
longer being detained at the time the search was executed.
This Court granted certiorari review on the ground that
the Court of Criminal Appeals' decision conflicts with the
caselaw regarding the issue whether a party may present a new
legal question or issue on appeal.
I. Facts and Procedural History
In August 2011, Knox was driving north on Interstate 59
in Fort Payne. Officer Matt Wilson of the Fort Payne Police
Department stopped Knox's vehicle for improper lane use.
During the stop, Officer Wilson became suspicious that Knox
might be transporting drugs, and he requested backup from
Officer Tony Blackwell, who was a member of the county drug
task force and who had his drug-detection dog with him.
Lt. Randy Garrison, another member of the drug task force, was
also en route to the scene.
Officer Wilson eventually issued a warning citation to
Knox and told him that he was free to go, but he continued to
question Knox about his travel plans. Lt. Garrison and
Officer
Blackwell
arrived at some point
during the questioning
2
1131207
of Knox. After Officer Blackwell arrived with his dog,
1
Officer Wilson asked Knox if he would consent to a search of
his vehicle. Knox refused to consent, and Officer Blackwell
then deployed his dog to perform a free-air sniff. The dog
2
"indicated" on the vehicle for the odor of marijuana, and the
police eventually searched the vehicle and discovered
marijuana. The police seized in excess of 2.2 pounds of
marijuana and arrested Knox for trafficking in marijuana,
unlawful possession of marijuana, and first-degree unlawful
possession of drug paraphernalia.
Knox filed a motion to suppress the evidence of the
marijuana seized during the traffic stop. After an
evidentiary
hearing,
the circuit court entered a written order
granting the motion to suppress. The court enumerated nine
factors upon which Officer Wilson based his reasonable
suspicion that Knox was engaged in criminal activity involving
drugs. The court found that "neither the [nine] individual
factors nor the totality of those factors provided the officer
It is not clear from the record whether the other
1
officers arrived before or after Knox was given a citation and
was told that he was free to go.
The record does not disclose how much time elapsed
2
between the warning citation and the deployment of Officer
Blackwell's dog. The circuit court noted that the drug-
detection dog was deployed before Knox had been given an
opportunity to reenter his vehicle.
3
1131207
sufficient reasonable suspicion to detain Knox beyond the
point in time when the officer gave Knox the warning citation
and told him he was free to go." The circuit court granted
Knox's motion to suppress. The State appealed.
In a per curiam opinion issued on May 2, 2014, the Court
of Criminal Appeals reversed the circuit court's order
granting Knox's motion to suppress and remanded the case.
State v. Knox, [Ms. CR-12-2019, May 2, 2014] ___ So. 3d ___
(Ala. Crim. App. 2014).
3
The main opinion of the Court of Criminal Appeals noted
the circuit court's findings and conclusions, but did not
decide whether the totality of the circumstances was
sufficient to provide reasonable suspicion for a search of
Knox's vehicle. Instead, the Court of Criminal Appeals
reversed the order on a different ground, which the State
raised for the first time on appeal, i.e., that Knox was no
longer being detained for the traffic stop at the time of the
search by the drug-detection dog.4
Judge Kellum and Judge Burke concurred. Judge Joiner
3
concurred specially, with an opinion. Presiding Judge Windom
dissented, with an opinion. Judge Welch dissented, without an
opinion.
Specifically, the State contended that Knox had been
4
given his warning citation and had been told that he was free
to go and that there was no showing of authority restricting
Knox's ability to leave the scene. The principle case on
4
1131207
Knox argued to the Court of Criminal Appeals that the
State's argument that he was not being detained at the time of
the search by the drug-detection dog was not preserved for
appellate review. The Court of Criminal Appeals addressed
issue preservation in a footnote in its opinion as follows:
"Although the State did not raise this specific
argument below, 'we review the circuit court’s
application of the law to the facts in this case de
novo.' State v. Pollard, 160 So. 3d 826, 831 n.3
(Ala. Crim. App. 2013). Because this argument is
based on facts 'squarely presented to the circuit
court, the argument is properly before this Court
for review.' Id."
___ So. 3d at ___ n.1.
Judge Joiner concurred specially and discussed the
holdings of State v. Pollard, 160 So. 3d 826 (Ala. Crim. App.
2013), and Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009),
regarding the principle that on appeal an appellant may not
raise a new question of law but may offer an "'additional
"precise reason"'" for reversing the decision below. ___
So. 3d at ___ (quoting Jenkins, 26 So. 3d at 473 n.7). Judge
Joiner concluded that the State's argument in this case was
which the Court of Criminal Appeals relies with respect to a
show of authority is Bostick v. Florida, 501 U.S. 429 (1991),
a case not cited by the State in its brief to this Court. We
also note that the circuit court made no findings as to
whether there was a showing of authority necessary to
constitute a detention, and we note that there is essentially
no evidence in the record as to this point.
5
1131207
not a new question of law, but was an additional reason.
Significantly, the main opinion of the Court of Criminal
Appeals does not cite or discuss Jenkins.
Presiding Judge Windom dissented, citing her dissent in
Pollard. ___ So. 3d at ___. In her dissent in Pollard, Judge
Windom stated that the Court of Criminal Appeals' holding that
de novo review excuses a waiver of an argument presented for
the first time on appeal confuses de novo review with
preservation of issues for appellate review and concluded
that, "regardless of whether appellate review is for abuse of
discretion or de novo, a party seeking to have a circuit
court's decision overturned must have properly preserved the
argument upon which it seeks relief on appeal." Pollard, 160
So. 3d at 835 (Windom, P.J., dissenting).
This Court granted certiorari review regarding the
asserted conflict between the Court of Criminal Appeals'
decision and Jenkins regarding the principle that new
arguments may not be raised for the first time on appeal.
II. Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
6
1131207
III. Analysis
Before discussing the asserted conflict with Jenkins, we
note the long-established principle of issue preservation:
"[I]t is a well-settled rule that an appellate
court's review is limited to only those issues that
were raised before the trial court. Andrews v.
Merritt Oil Co., 612 So. 2d 409 (Ala. 1992) ....
Issues raised for the first time on appeal cannot be
considered. Andrews, supra .... However, '[t]he
rule requiring adherence to the theory relied on
below ... does not mean the parties are limited in
the appellate court to the same reasons or arguments
advanced in the lower court upon the matter or
question in issue.' Home Indemnity Co. v. Reed
Equipment Co., 381 So. 2d 45, 50 (Ala. 1980)."
Beavers v. County of Walker, 645 So. 2d 1365, 1372 (Ala.
1994).5
See also, e.g., Allsopp v. Bolding, 86 So. 3d 952, 962
5
(Ala. 2011) ("It is well settled that an appellate court may
not hold a trial court in error in regard to theories or
issues not presented to that court."); Smith v. Equifax
Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988) (noting that an
appellate court may affirm a judgment on any valid legal
ground, but "will not reverse the trial court's judgment on a
ground raised for the first time on appeal"); State v. Biddie,
516 So. 2d 846, 847 (Ala. 1987) (noting that Rule 45B, Ala. R.
App. P., abolished the requirement of Ala. Code 1975, § 12-22-
240, that the Court of Criminal Appeals "search the record"
for error in cases other than death-penalty cases, and
reiterating that appellate review is not permitted as to
questions not properly raised in the trial court); Defore v.
Bourjois, Inc., 268 Ala. 228, 230, 105 So. 2d 846, 847 (1958)
("We cannot put a trial court in error for failure to rule on
a matter which ... was not presented to, nor decided by [it]
...."); Lunsford v. Dietrich, 93 Ala. 565, 572, 9 So. 308, 311
(1891) ("[W]e cannot put [a trial court] in error for failing
to rule on a matter which has never been presented for [its]
decision or decided by [it].")
7
1131207
Jenkins did not abolish this principle, but merely
addressed its application. Jenkins stated that the rule of
issue preservation "generally prevents an appellant from
raising on appeal a question or theory that has not been
preserved for appellate review, not the provision to a higher
court of an additional specific reason or authority for a
theory or position asserted by the party in the lower court."
Jenkins, 26 So. 3d at 473 n.7. As discussed later in the
opinion, Jenkins provides no support for the notion expressed
in Pollard that, if a case is subject to de novo review, the
appellate court may consider any argument (whether or not
presented to the circuit court) that is based on "fact[s] ...
squarely presented to the circuit court." Pollard, 160 So. 3d
at 831 n.3.
In Jenkins, the trial court determined that a search
warrant was invalid because it was not supported by probable
cause and because it did not sufficiently describe the items
to be seized. On appeal, the Court of Criminal Appeals
reversed the trial court's order. This Court granted
certiorari review to examine the sufficiency of the
description in the warrant of the items to be seized.
Before this Court, the State offered an additional
reason, not previously offered, as to why the description of
8
1131207
the items to be seized was sufficient, i.e., that "drugs," the
term used in the warrant, and marijuana, not specifically
mentioned in the warrant as an item to be seized, would be
found in the same types of places, thus reducing the risk that
an inadequate description of the object would permit a general
exploratory search. This Court held that the warrant
sufficiently described the items to be seized and concluded as
follows as to issue preservation:
"In the present case, the question whether the
language of the warrant describing the object of the
search
was
specific
enough
to
satisfy
the
'thing-to-be-seized'
requirement
within
the
so-called 'particularity clause' of the Fourth
Amendment to the United States Constitution has
existed throughout. ... The trial court's order
analyzed the issue in-depth and concluded that the
language of the warrant did not satisfy the
particularity clause of the Fourth Amendment. ...
The State, by its citation to this Court of the
Montana and South Carolina Supreme Court cases
quoted in the text, is simply giving this Court the
benefit of an additional 'precise reason' and
authority as to why, as a matter of law, the trial
court wrongly decided this issue."
Jenkins, 26 So. 3d at 474 n.7 (emphasis added).
Jenkins did not alter the general principle of issue
preservation; it merely allowed an appellant to provide
additional precise reasons and authorities in support of a
theory or position properly raised below. Jenkins does not
6
In its brief to this Court, the State
incorrectly asserts
6
that Jenkins allows a party to provide the appellate court
9
1131207
support the notion that a new theory may be presented on
appeal merely in support of the broad claim that the trial
court erred.
In Jenkins, the question before the trial court was
whether the warrant was sufficiently specific when it
described the object of the search as "drugs," without
specifically listing marijuana. The similarity in possible
hiding places provided an additional precise reason the
description was sufficient, not an entirely new legal theory
justifying the search on some other basis.
In applying the holding and rationale of Jenkins to the
present case, the dispositive issue is whether the existence
of "reasonable suspicion" is a different question or a
different theory than an "absence of detention." We conclude
that it is a different question, not merely a new argument or
reason relating to the question presented to the circuit
court. Reasonable suspicion and absence of detention involve
different legal issues, different rules and authorities,
with additional reasons "as to why the trial court's decision
was erroneous," respondent's brief at 8, or "as to why the
trial court's decision was wrong." Id. at 9 and 19. That
assertion is too broad and is inconsistent with the principles
of issue preservation and with Jenkins. To the contrary, the
additional reasons must be offered in support of a theory,
issue, or position presented to the trial court, not merely in
support of a new theory as to why the trial court erred.
10
1131207
examination of different factual issues, a different focus
7
(observations of the officers versus the understanding of the
motorist), and, in this case, different time frames (before
versus after a warning citation is given).
Although Jenkins is directly on point as to the question
of issue preservation, the main opinion of the Court of
Criminal Appeals in this case did not cite or discuss Jenkins
itself. Instead, the court's opinion relied on statements
8
from Pollard regarding a different principle: that, if a case
is to be reviewed de novo, the appellate court may consider
arguments based on facts squarely presented below, whether or
not those arguments were presented to the trial court. Aside
from Pollard, the main opinion below does not cite any
authority supporting the notion that de novo review permits
the consideration by an appellate court of legal questions not
presented to the trial court. The stated notion is not a
correct statement of law and, in fact, is contrary to well
settled law in this area.
Among other things, the circuit court did not make any
7
findings as to whether there had been a "showing of authority"
or whether Knox felt free to leave the scene after the warning
citation was issued.
Jenkins
is
cited
only
in
the
special
concurrence
authored
8
by Judge Joiner, which was not joined by any other judge.
11
1131207
Among the countless Alabama cases that have articulated
the correct standard of law is Beavers v. County of Walker,
cited at the outset of this analysis. As noted, this Court
stated in Beavers:
"[I]t is a well-settled rule that an appellate
court's review is limited to only those issues that
were raised before the trial court. Andrews v.
Merritt Oil Co., 612 So. 2d 409 (Ala. 1992) ....
Issues raised for the first time on appeal cannot be
considered. Andrews, supra ...."
645 So. 2d at 1372.
The well settled rule as stated in Beavers and other
cases -- see, e.g., the cases cited supra note 5 -- admits of
no exception for cases in which legal issues, or the
application of legal principles to undisputed facts, are
considered de novo by the appellate court. Indeed, many of
the most often cited cases for the principle of issue
preservation involve de novo review by appellate courts of a
legal issue, or application of the principle governing it, in
relation to a summary judgment or an order addressing a motion
to dismiss. See, e.g., Rodriguez-Ramos v. J. Thomas Williams,
Jr., M.D., P.C., 580 So. 2d 1326 (Ala. 1991) (summary
judgment); Marks v. Tenbrunsel, 901 So. 2d 1255 (Ala. 2005)
(statutory immunity; motion to dismiss); and Andrews v.
12
1131207
Merritt Oil Co., 612 So. 2d 409 (Ala. 1992) (summary
judgment).9
The above-stated principle of issue preservation is
rooted in fundamental due-process concerns regarding notice
and the opportunity to be heard. In this case, it is likely
that the State's failure to raise the absence-of-detention
argument before the circuit court may have deprived Knox of an
opportunity to present evidence in opposition to that theory.
The primary focus of the suppression hearing was the existence
of reasonable suspicion, which was based largely on the police
officers' observations. Had the State raised the absence-of-
detention argument in the circuit court, it is possible that
Knox might have chosen to present evidence as to (1) whether
he felt free to leave the scene after he was given his warning
citation and (2) whether there was a showing of authority
See also Oden Music, Inc. v. First Baptist Church of East
9
Gadsden, 72 So. 3d 1238, 1242-43 n.2 (Ala. Civ. App. 2011):
"The
defendants
argue
that,
because
our
standard
of review is de novo, we can consider arguments
raised for the first time on appeal. We note,
however, that the defendants cite no law in support
of their position and that this court has previously
held in cases in which the standard of review was
de novo that arguments could not be raised for the
first time on appeal."
(Emphasis added.)
13
1131207
sufficient to constitute a detention. By failing to raise
this new issue at trial, the State deprived Knox of an
opportunity to present evidence and to make arguments. The
State's failure to raise the issue also deprived the circuit
court of the opportunity to make factual findings and
credibility determinations on this issue.
10
We conclude that the State raised a new legal question or
issue when it argued for the first time on appeal that Knox
was not being detained at the time of the canine search of his
vehicle that yielded the marijuana.
IV. Conclusion
Based on the foregoing, we reverse the judgment of the
Court of Criminal Appeals and remand the case for further
proceedings
consistent
with
this
opinion,
including
consideration of any issue pretermitted in that court's
opinion of May 2, 2014.
We note that Judge Joiner's special concurrence and the
10
State's brief to this Court suggest that it was undisputed
that Knox consented to any prolonging of the detention after
the warning citation had been issued. We do not find that
fact to be undisputed. The circuit court noted that the
request for Knox to remain and to answer questions "was made
in the presence of three police officers (and a canine unit)
and before Knox was given the opportunity to reenter his car.
Given these circumstances, Knox may or may not have considered
his decision to remain consensual." In any event, had the
absence-of-detention argument been raised by the State, Knox
would have had an opportunity to present evidence and to make
arguments, and the circuit court could have made findings
regarding that issue.
14
1131207
REVERSED AND REMANDED.
Moore, C.J., and Parker, Main, and Bryan, JJ., concur.
Shaw, J., concurs in the result.
Stuart, Bolin, and Wise, JJ., dissent.
15
1131207
SHAW, Justice (concurring in the result).
I believe that certain portions of this Court's decision
in Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009), have caused
confusion. As the main opinion notes, it is well settled
that, except for certain clearly defined exceptions, an
appellate court will not reverse a judgment of a lower court
on an issue that is raised for the first time on appeal.
There are numerous compelling reasons for this rule. As
Justice Maddox once stated in an often quoted special writing:
"The Oregon Court of Appeals has stated
additional reasons for holding that an error not
raised and preserved at the trial level cannot be
considered on appeal:
"'[I]t is a necessary corollary of our
adversary system in which issues are framed
by the litigants and presented to a court;
... fairness to all parties requires a
litigant to advance his contentions at a
time when there is an opportunity to
respond to them factually, if his opponent
chooses to; ... the rule promotes efficient
trial proceedings; ... reversing for error
not preserved permits the losing side to
second-guess its tactical decisions after
they do not produce the desired result; and
... there is something unseemly about
telling a lower court it was wrong when it
never was presented with the opportunity to
be
right.
The
principal
rationale,
however,
is
judicial
economy.
There
are
two
components to judicial economy: (1) if the
losing side can obtain an appellate
reversal because of error not objected to,
the parties and public are put to the
expense of retrial that could have been
avoided had an objection been made; and
(2) if an issue had been raised in the
16
1131207
trial court, it could have been resolved
there, and the parties and public would be
spared the expense of an appeal.'"
Cantu v. State, 660 So. 2d 1026, 1031-32 (Ala. 1994) (Maddox,
J., concurring in part and dissenting in part) (quoting State
v. Applegate, 39 Or. App. 17, 21, 591 P.2d 371, 373 (1979)).
In Jenkins, a narrow majority stated in a footnote:
"[T]he rule upon which the dissent attempts to rely
is one that generally prevents an appellant from
raising on appeal a question or theory that has not
been preserved for appellate review, not the
provision to a higher court of an additional
specific reason or authority for a theory or
position asserted by the party in the lower court.
The fundamental rule in this regard, as stated in
Corpus Juris Secundum, is that a 'higher court
normally will not consider a question which the
intermediate court could not consider.' 5 C.J.S.
Appeal and Error § 977 (2007). However, '[a]lthough
on appeal from an intermediate court the higher
court may be limited to the questions of law raised
or argued at the trial, it is not limited to the
arguments there presented.' 5 C.J.S. Appeal and
Error § 978 (2007) (emphasis added). In other
words, '[n]ew arguments or authorities may be
presented on appeal, although no new questions can
be raised.' 4 C.J.S. Appeal and Error § 297
(emphasis added)."
Jenkins, 26 So. 3d at 473 n.7. This rationale was applied by
the Court of Criminal Appeals in State v. Pollard, 160 So. 3d
826 (Ala. Crim. App. 2013). In dissenting from this Court's
quashing the writ of certiorari in Pollard, I wrote:
"I have serious concerns as to whether Ex parte
Jenkins, 26 So. 3d 464 (Ala. 2009), relied on by
the Court of Criminal Appeals, was correctly
decided. Assuming that it is easy to distinguish
between a legal 'question' and a mere 'argument' as
17
1131207
to that question, it seems that, if any 'question'
is defined broadly enough, anything can be preserved
for
review
and
considered
on
appeal.
This
drastically alters the traditional duties of parties
to preserve issues for appellate review. Further,
there should be consideration as to whether the
parties must take some initiative to ensure that the
trial court has the opportunity to make the correct
decision. Parties should be required to direct the
trial court to the correct 'arguments' instead of
allowing the focus to dwell on immaterial issues or,
intentionally or not, 'sandbagging' the trial court
with inconsequential 'arguments,' while leaving the
appellate courts to address the true 'questions'
never before brought to the attention of the lower
court."
Ex parte Pollard, 160 So. 3d 835, 837 (Ala. 2014) (Shaw, J.,
dissenting).
Whether
characterized
as
"arguments,"
"questions,"
"reasons," or "theories," I would hold that, if the appellant
did not present them in the trial court for its review and to
allow the opposing party the opportunity to respond, then they
are not preserved for appellate review. That formula, in my
mind, best serves the principles of fairness and judicial
economy.
In the instant case, the State of Alabama did not argue
in the trial court that Teddy Lee Knox was no longer being
detained at the time the drug-detection dog alerted on Knox's
vehicle. If the "question" was whether the evidence of the
marijuana seized should be suppressed, would not the
contention that Knox was not detained arguably be an
18
1131207
"additional specific reason" to deny the motion to suppress
that, under Jenkins, could be raised for the first time on
appeal? It is not clear to me when we should hold that the
lenient formulation stated in Jenkins has been stretched too
far. Instead, I would hold that, (1) because the trial court
did not have the opportunity to consider the State's
contention, (2) because Knox did not have the opportunity at
the proper time to rebut it, and (3) because judicial economy
would have best been served if the contention had first been
addressed below, that issue was not preserved for review on
11
appeal. Because that is the decision (but not the rationale)
of the main opinion, I concur in the result.
If the State's contention is meritorious, as the Court
11
of Criminal Appeals held, then the trial court would have
denied Knox's motion to suppress, thus avoiding these
appellate proceedings.
19
1131207
STUART, Justice (dissenting).
I respectfully dissent from the majority's reversal of
the judgment of the Court of Criminal Appeals.
A "sniff" by a trained canine in a public place is not a
"search" within the meaning of the Fourth Amendment. United
States v. Place, 462 U.S. 696, 707 (1983). See also Seeley v.
State, 669 So. 2d 209 (Ala. Crim. App. 1995)("[A] 'sniff test'
by [a] narcotic-detection dog [does] not come within the
protection afforded by the Fourth Amendment."). A sniff by a
drug-detection dog of the exterior of a vehicle parked on the
side of a public highway during a traffic stop that is lawful
at its origination and that is otherwise conducted in a
reasonable manner does not encroach upon a protected interest
in privacy provided by the Fourth Amendment. Illinois v.
Caballes, 543 U.S. 405, 409 (2005). After an officer has
decided to allow a traffic offender to depart, the Fourth
Amendment applies
to limit any subsequent detention or search.
United States v. Jacobsen, 466 U.S. 109, 124 (1984); State v.
Washington, 623 So. 2d 392 (Ala. Crim. App. 1993). If a law-
enforcement officer detains a traffic offender beyond the
scope of a routine traffic stop, the officer must possess a
justification for doing so other than the initial traffic
violation that prompted the stop. Florida v. Royer, 460 U.S.
491, 497 (1983). Thus, a prolonged automobile stop requires
20
1131207
either the driver's consent or a "reasonable suspicion" that
illegal activity, other than the traffic violation, exists.
Royer, 460 U.S. at 500–01. A sniff of the exterior of a
vehicle
by
a
drug-detection
dog
may
produce
an
unconstitutional seizure if the traffic stop is unreasonably
prolonged before the dog conducts its sweep. 543 U.S. at 407.
The record establishes that the law-enforcement officer
stopped Teddy Lee Knox's vehicle for a traffic violation.
After the law-enforcement officer handed Knox the traffic
citation and told Knox that he was free to go, the law-
enforcement officer asked Knox if he could discuss some
matters further with him. The record indicates that Knox
agreed to remain and to converse further with the officer.
The canine sweep of Knox's vehicle occurred after Knox agreed
to remain.
The record does not contain any pleadings addressing the
suppression of the evidence seized as a result of the canine
sweep. At the suppression hearing, Knox argued that his
detention during the traffic stop was unlawfully prolonged
because the law-enforcement officer did not have reasonable
suspicion to detain him. See United States v. Perkins, 348
F.3d 965, 970 (11th Cir. 2003)("A traffic stop may be
prolonged where an officer is able to articulate a reasonable
suspicion of other illegal activity beyond the traffic
21
1131207
offense."). The State did not make a legal argument per se at
the hearing; it, however, did make a minimal response to a
factor argued by Knox.
The circuit court held that the law-enforcement officer
did not have reasonable suspicion "to detain Knox beyond the
point in time when the officer gave Knox the warning citation
and told him he was free to go." In reaching its
determination, the circuit court considered Knox's consent to
prolonging the traffic stop, stating:
"The officer testified that after telling Knox
he was free to go, he requested that Knox remain and
answer more questions. When Knox acquiesced in this
request, the officer asked if there were any illegal
drugs in his car, inquiring specifically about
narcotics, cocaine, and marihuana. ...
"The request for Knox to remain and answer some
more questions was made in the presence of three
police officers (and a canine unit) and before Knox
was given the opportunity to reenter his car. Given
these circumstances, Knox may or may not have
considered his decision to remain consensual, but
assuming that he did, his answers at that point
provided
no
further
basis
for
reasonable
suspicion."12
On appeal to the Court of Criminal Appeals, the State
contended that the circuit court erred in holding that the
Although the circuit court improperly determined that Knox's
12
consent to remain was a factor in determining whether reasonable
suspicion existed, instead of an independent reason to lawfully
prolong the traffic stop, the circuit court's inclusion of the
evidence of Knox's consent in its analysis establishes that this
reason for prolonging the traffic stop was presented to and
considered by the circuit court.
22
1131207
law-enforcement officer unreasonably prolonged Knox's traffic
stop. The State noted that the record established a reason
additional
to
the existence of reasonable suspicion to support
a finding that Knox's traffic stop was not unlawfully
prolonged -- Knox's consent to prolonging the traffic stop.
The Court of Criminal Appeals agreed with the State that
because the record established that Knox had consented to
prolong the traffic stop, Knox's Fourth Amendment rights were
not infringed by the sweep of the vehicle by the drug-
detecting dog.
Applying the law to the facts of this case, I must
conclude that the only legal question presented to the circuit
court was whether the traffic stop was unlawfully prolonged.
If Knox's detention was unlawfully prolonged, then the
protections of the Fourth Amendment applied, and the canine
sniff of Knox's vehicle was unconstitutional. If Knox's
detention was not unlawfully prolonged, then the canine sniff
of Knox's vehicle did not infringe upon Knox's protected
interest in privacy. In my opinion, the State did not offer
a new theory on appeal, as the majority concludes; instead,
the State provided an "additional 'precise reason' and
authority as to why, as a matter of law, the trial court
wrongly decided th[e] issue [of whether Knox's detention was
unlawfully prolonged]." Ex parte Jenkins, 26 So. 3d 464, 474
23
1131207
n. 7 (Ala. 2009). Therefore, I agree with the Court of
Criminal Appeals that Knox's consent to continue conversing
with the law-enforcement officer effectively removed the
encounter from a Fourth Amendment inquiry.
Bolin and Wise, JJ., concur.
24 | June 26, 2015 |
6f5e8612-2535-4bb5-a303-f0d16abb48b1 | Ex parte Christopher Anthony Floyd. | N/A | 1130527 | Alabama | Alabama Supreme Court | REL: 05/29/2015
Modified on denial of reh'g: 08/21/2015
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, 2014-2015
____________________
1130527
____________________
Ex parte Christopher Anthony Floyd
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Christopher Anthony Floyd
v.
State of Alabama)
(Houston Circuit Court, CC-04-1670;
Court of Criminal Appeals, CR-05-0935)
1130527
STUART, Justice.1
This Court issued a writ of certiorari to determine
whether the following holdings of the Court of Criminal
Appeals in Christopher Anthony Floyd's appeal from his
capital-murder conviction are proper: that the Houston
Circuit Court ("the trial court") did not err in holding that
the State provided valid race- and gender-neutral reasons for
its exercise of its peremptory strikes during jury selection,
that the trial court did not err by refusing to admit into
evidence all of Floyd's statements made to law-enforcement
officers, and that the trial court did not err in denying
Floyd's motion for a new trial based on newly discovered
evidence. We affirm.
Facts and Procedural History
In 2005 Floyd was convicted of the murder of Waylon
Crawford. The murder was made capital because it was
committed during a robbery, see § 13A–5–40(a)(2), Ala. Code
1975. Floyd was sentenced to death. In selecting the jury
for Floyd's case, the prosecutor and Floyd's
counsel
exercised
This case was originally assigned to another Justice on
1
this Court; it was reassigned to Justice Stuart on January 5,
2015.
2
1130527
a total of 36 peremptory challenges. The State used its 18
challenges to remove 10 of 11 African-American veniremembers
and 12 of 18 female veniremembers. Floyd's counsel removed
one African-American and seven female veniremembers.
The
jury
consisted of six white male jurors, six white female jurors,
two alternate white male jurors and one alternate African-
American female juror. Floyd did not object to the jury based
on Batson v. Kentucky, 476 U.S. 79 (1986)(prohibiting racial
discrimination in jury selection), or J.E.B. v. Alabama, 511
U.S. 127 (1994)(prohibiting gender discrimination in jury
selection).
On direct appeal, the Court of Criminal Appeals held that
the record indicated that the prosecutor's use of his
peremptory challenges created a prima facie case of
discrimination under both Batson and J.E.B. That court
remanded the case for the trial court to conduct a
Batson/J.E.B. hearing. Floyd v. State, [Ms.
CR-05-0935,
Sept.
28, 2007] ___ So. 3d ___ (Ala. Crim. App. 2007).
On remand, the trial court conducted a hearing and
required
the
prosecutor,
Gary
Maxwell,
to
provide
2
Maxwell stated that he selected the jury for the State
2
with the exception of one juror, who, although he had
3
1130527
explanations for the exercised peremptory challenges. Before
providing explanations for his peremptory challenges, the
prosecutor explained his general practice in selecting a jury
for a capital case:
"In a capital murder case where voir dire is
extensive, and ordinarily the process lasts a day or
longer, I try to rate each and every juror initially
on gut reaction. If you will look at State's
Exhibit 1 there, in black outside of a lot of the
juror's names, I will write 'Okay.' I will write
just a dash for a minus. I might write a plus,
being –- minuses are bad gut reaction, pluses are a
good gut reaction. Okay is just okay. All right.
"Also, in doing so –- I do that when the clerk
is calling the names of the jurors and asking them
to stand. Now, also, as is the Court's practice –-
when I say the Court, the list that we have, I will
put a 'B' outside of the names of those who are
black. I do that not only from the appearance in
court but from the jury list that's propounded by
the clerk's office.[3]
"....
reservations about her serving in light of her responses to
questions
about
capital
murder,
the
district
attorney
directed
not be removed by a State peremptory challenge.
The record indicates that the court provided at least
3
three types of strike lists for the State and the defense to
use during jury selection. One strike list provided each
veniremember's name with an assigned juror number; another
strike list included each veniremember's name, juror number,
date of birth, sex, race, and address, and a third strike list
provided each veniremember's name, juror number, date of
birth, sex, race, occupation, employer, partial address,
spouse's name, and spouse's employer.
4
1130527
"I have done this same procedure, the initial
gut reaction rating system, for over 30 years. It's
proven to be pretty accurate, I think. Then as
questioning proceeds –- I adjust those ratings based
on responses or lack of responses to the questions,
questions the Court asks, questions the State asks,
and the questions that the defendant propounds as to
whether I feel they would favor the State or the
defense, on their demeanor, the way they answer the
questions, and not just the answer to the questions,
the answer or again their failure to respond.
"Now, ... I do that second rating system
basically in red. I may go back, I may change a
minus to a plus. I may change a plus to a minus.
"Ultimately, I try to strike those most likely
to lean towards the defense, not on race. I
consider such factors as their age, their place of
employment or lack of employment, their physical
ability based on appearance, and/or responses to the
questions that the Court propounds or the attorneys
propound or on their failure to respond to
questions. If they appear to be having a hard time
understanding the Court's instructions or questions
or those questions of the attorneys, I take that
into consideration. If they do not pay attention,
if they daydream, act as if they are bored or just
don't care, I take that into consideration in this
second rating system.
"In my rating system, for example, Juror [no.
30/]J.B.,
who was struck by the defense, I
[4]
considered to be an excellent juror for the State.
The State refers to prospective jurors using initials,
4
e.g., "Juror J.B."; Floyd uses numbers, e.g., "Juror no. 30."
For purposes of this opinion, the first time a prospective
juror is referenced in a discussion, we will identify the
juror by both number and initials. Thereafter, we will refer
to that juror using initials.
5
1130527
And I think you can see that on my list out there,
that there is a plus beside [Juror no. 30/J.B.'s]
name.
"The State seeks jurors who are stable members
of the community and due to the complexity of a
capital murder case, we prefer jurors who have had
jury experience and who have rendered a guilty
verdict in the past. We prefer jurors who have jobs
or
education
that
requires
concentration
and
attention to detail and also analysis.
"A juror's demeanor or body language, his lack
of eye contact with attorneys when they are asking
questions can be a factor especially when he appears
disinterested or shows more animosity towards the
prosecution or law enforcement.
"So that's just a basic background of what I do
in preparation for striking the jury."
After explaining his methodology for selecting a jury,
the prosecutor
offered
the
following reasons for his exercised
peremptory strikes of African-Americans and females:
Prospective juror no. 28/P.B.: The prosecutor stated
that he struck P.B., an African-American female,
because P.B. had 32 bad-check cases, her probation
had been revoked, and she was in the same age range
as Floyd.
Prospective juror no. 43/J.B.: The prosecutor stated
that he struck J.B., an African-American male,
because J.B. had two convictions for harassment and
had approximately 12 traffic tickets with the City
of Dothan.
Prospective juror no. 59/M.C.: The prosecutor stated
that he struck M.C., an African-American female,
because M.C. initially indicated that she could not
6
1130527
vote for the death penalty and was personally
opposed to capital punishment, and because she
vacillated when questioned by the trial court.
Prospective juror no. 38/K.B.: The prosecutor stated
that he struck K.B., an African-American male,
because K.B. had been convicted of disorderly
conduct, because he knew a potential witness who was
rumored to have been involved in the commission of
the offense charged, and because a member of law
enforcement had indicated that he would be a bad
juror for the State.
Prospective juror no. 46/T.C.: The prosecutor stated
that he struck T.C., an African-American female,
because T.C. had six convictions and her brother had
felony convictions, because during voir dire she
questioned the veracity of testimony from members of
law enforcement, and because of her familiarity with
members of the district attorney's office as a
result of that office's prosecution of her and her
brother.
Prospective juror no. 57/A.C.: The prosecutor
stated that he struck A.C., an African-American
female, because A.C. had been convicted of theft and
negotiating worthless negotiable instruments.
Prospective juror no. 60/L.C.: The prosecutor stated
that he struck L.C., an African-American female,
because he believed that L.C. was "too familiar with
everybody involved" in the case because she knew the
defense
attorneys,
members
of
the
district
attorney's office, and the forensic pathologist who
performed the autopsy on the victim. He further
explained
that
he
believed
L.C.'s
expressed
religious beliefs would impact her ability to sit in
judgment of the accused.
Prospective juror no. 19/D.B.: The prosecutor stated
that he struck D.B., an African-American female,
because she was inattentive during voir dire. The
7
1130527
prosecutor further stated that D.B. failed to make
eye contact with members of the prosecution team,
but at times during voir dire nodded in agreement
with defense counsel.
Prospective juror no. 58/I.C.: The prosecutor stated
that he struck I.C., an African-American female,
because I.C. did not respond to any questions during
voir dire and the prosecution did not know anything
about her.
Prospective juror no. 51/R.C.: The prosecutor stated
that he struck R.C., an African-American female who
ultimately served as an alternate juror, because
R.C. was 77 years of age and he had concerns, based
on her demeanor during voir dire and the length and
complexity of the case, that she would be able to
serve as a juror.
Prospective juror no. 5/T.M.A.: The prosecutor
stated that he struck T.M.A., a Caucasian female,
because of her age. He further stated that,
although he could not provide a specific reason, his
initial impression of T.M.A. was that she would not
be a good juror for the State and because of "the
age part."
Prospective juror no. 23/R.B.: The prosecutor stated
that he struck R.B., a Caucasian female, because his
initial impression of R.B. was that she would not be
a strong juror for the State and she did not respond
to any questions during voir dire.
Prospective juror no. 35/S.B.: The prosecutor
stated that he struck S.B., a Caucasian female,
because, although his initial impression was that
she would be an "okay" juror for the State, S.B. did
not respond to any questions during voir dire and
appeared to be close to Floyd's age.
8
1130527
Prospective juror no. 70/K.D.: The prosecutor stated
that he struck K.D., a Caucasian female, because
K.D. was approximately the same age as Floyd.
The prosecutor further stated that, based on his notes
and rating system, he had determined that prospective jurors
no. 8/M.W.A., no. 32/L.J.B., and no. 42/R.S.B, Caucasian
females who ultimately served on the jury, would be good
jurors for the State and that prospective jurors no. 18/K.P.B.
and no. 62/M.D., Caucasian females, and prospective juror no.
30/J.B., an African-American female, each of whom was struck
by the defense, would have also been good jurors for the
State.
The prosecutor explained that, during the selection
process, he noticed that the defense was using its peremptory
strikes to remove veniremembers who were not similar in age to
Floyd. He stated that, after he had removed veniremembers
that he believed would not be good jurors for the State, he
challenged veniremembers in the age group the defense was
trying to seat on the jury, i.e, those similar in age to
Floyd.
The prosecutor offered into evidence his strike list that
provided the names and numbers of the veniremembers, upon
9
1130527
which he had made notations about each of the veniremembers;
a list showing each veniremember's prior jury service and any
criminal charges; and the strike list that contained
information about the veniremembers, including race, sex,
occupation, etc., and upon which members of law enforcement
had made notations about various veniremembers and whether
those veniremembers would be good jurors for the State.
To rebut the prosecutor's reasons and to show that the
prosecutor
engaged
in
actual,
purposeful
discrimination,
Floyd
argued that the reasons offered by the prosecutor for his
strikes were pretextual and a sham because, he said, the
Houston County district attorney's office had in the past
engaged in discrimination during the jury-selection process.
In support of his argument, Floyd named five cases in which
convictions from the Houston Circuit Court had been reversed
based on the State's having exercised its peremptory
challenges in a discriminatory manner. He further argued
5
that, although the prosecutor claimed that a number of the
removed veniremembers or their family members had criminal
Floyd did not argue that Maxwell had selected the juries
5
for the State in any of the cases in which the defendant's
conviction had been reversed.
10
1130527
convictions, many of those convictions were not in the record
and/or were unavailable for verification by the defense; that
the prosecutor failed to ask follow-up questions during voir
dire of veniremembers who had been struck to associate the
reason provided to this case; that the prosecutor's exercise
of his peremptory strikes based on the race-neutral reason of
age was disingenuous because the prosecutor used age as a
reason to strike veniremembers ranging from age 28 years old
to 77 years old; and that, although the prosecutor stated that
he struck African-American veniremembers based on traffic
tickets and opinions they had regarding the death penalty, the
prosecutor did not strike two similarly situated Caucasian
veniremembers.
In support of his argument, Floyd submitted a legal
memorandum listing various cases in Houston County involving
Batson objections, including five cases in which an appellate
court had reversed convictions based on a Batson violation; a
copy of defense counsel's strike list; and a strike list
providing
additional
information
about
the
various
veniremembers,
including
date
of
birth,
sex,
race,
occupation,
etc.
11
1130527
After the hearing, the trial court entered a written
order finding that the prosecutor had proffered race- and
gender-neutral reasons for exercising his peremptory strikes.
On return to remand, the Court of Criminal Appeals upheld
the trial court's finding that the State had provided race-
and gender-neutral reasons for its use of its peremptory
strikes, considered the other issues presented on direct
appeal, and affirmed Floyd's conviction and sentence. Floyd
v. State, [Ms. CR-05-0935, August 29, 2008] ___ So. 3d ___
(Ala. Crim. App. 2007) (opinion on return to remand).
On certiorari review, this Court held that on remand the
trial court had failed to comply with the order of the Court
of Criminal Appeals that it provide specific findings
concerning the reasons proffered by the prosecutor for
striking
African-American
and/or
female
veniremembers
and
that
the Court of Criminal Appeals had erred in assuming the role
of the trial court and finding that the State's reasons for
striking prospective jurors no. 5/T.M.A. and no. 58/I.C. were
nondiscriminatory. Ex parte Floyd, [Ms. 1080107, September
28, 2012] ___ So. 3d ___, ___ (Ala. 2012). This Court
reversed the judgment of the Court of Criminal Appeals and
12
1130527
remanded the case for that court to remand the case with
directions for the trial court
"to make necessary findings of fact and conclusions
of law on the following issues: whether the State's
offered reasons for striking the African-American
jurors it struck were race neutral; whether the
State's offered reasons for striking the female
jurors it struck were gender neutral; and 'whether
the defendant has carried his burden of proving
purposeful discrimination.'"
Ex parte Floyd, ___ So. 3d at ___.
Pursuant to this Court's order, the Court of Criminal
Appeals remanded the case with instructions that the trial
court make the necessary findings of fact and conclusions of
law. Floyd v. State, [Ms. CR-05-0935, December 14, 2012] ___
So. 3d ___ (Ala. Crim. App. 2012). The trial court on second
remand entered an order, making specific findings of fact with
regard to the State's proffered reasons for striking African-
American and female veniremembers and finding that Floyd had
not demonstrated that the prosecutor had engaged in actual,
purposeful discrimination on the basis of race or gender
during the jury-selection process. The trial court rejected
Floyd's claims that the prosecutor had violated Batson and
J.E.B. during the jury-selection process and found that the
prosecutor had proffered race- and gender-neutral reasons for
13
1130527
his peremptory strikes and that Floyd had not satisfied his
burden of proving that the prosecutor's reasons had been
pretextual or sham or that the prosecutor had engaged in
actual, purposeful discrimination during the jury-selection
process.
On return to second remand, the Court of Criminal Appeals
affirmed Floyd's conviction and sentence, holding that the
trial court's judgment was not clearly erroneous because the
record supported the trial court's conclusion that the
prosecutor had presented facially race- and gender-neutral
reasons for his strikes, that the prosecutor's reasons were
not pretextual or sham, and that Floyd had not satisfied his
burden of proving that the prosecutor engaged in actual,
purposeful discrimination against African-American and female
veniremembers during the jury-selection process. Floyd v.
State, [Ms. CR-05-0935, November 8, 2013] ___ So. 3d ___, ___
(Ala. Crim. App. 2012) (opinion on return to second remand).
This Court has now granted certiorari review to consider
whether the Court of Criminal Appeals properly upheld the
trial court's denial of Floyd's Batson and J.E.B. claims, the
trial court's refusal to admit into evidence all of Floyd's
14
1130527
statements made to law-enforcement officers, and the trial
court's denial of Floyd's motion for a new trial based on
newly discovered evidence
Standard of Review
On certiorari review, this Court does not accord the
legal conclusions of an intermediate appellate court a
presumption of correctness. Therefore, this Court applies de
novo the standard of review that was applicable in the
intermediate appellate court. Ex parte Toyota Motor Corp.,
684 So. 2d 132, 135 (Ala. 1996).
Discussion
Floyd contends that the judgment of the Court of Criminal
Appeals upholding the trial court's finding that the State's
reasons for striking I.C. and T.M.A. were race- and gender-
neutral and that he did not satisfy his burden of proving that
the prosecutor engaged in actual, purposeful discrimination
during the jury-selection process conflicts with Batson and
J.E.B.
Floyd's contention that the trial court erred in not
finding a Batson or J.E.B. violation focuses on the second and
third step in a Batson/J.E.B. inquiry. In the second step of
15
1130527
the inquiry, the party against whom the prima facie case has
been established, i.e., the nonmoving party, has the burden of
proving that its reasons for its peremptory challenges were
race or gender neutral. Ex parte Branch, 526 So. 2d 609, 623
(Ala. 1987). The nonmoving party must provide "a clear,
specific, and legitimate reason for the challenge which
relates to the particular case to be tried, and which is
nondiscriminatory." Ex parte Branch, 526 So. 2d at 623. The
nonmoving party's reason, however, does not have to equal the
reason for a strike for cause; rather, the nonmoving party's
explanation must be facially valid. Ex parte Branch, 526 So.
2d at 623.
"Within the context of Batson, a 'race-neutral'
explanation 'means an explanation based on something
other that the race of the juror. At this step of
the inquiry, the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory
intent is inherent in the prosecutor's explanation,
the reasons offered will be deemed race neutral.'
Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct.
1859, 1866, 114 L.Ed.2d 395 (1991). 'In evaluating
the race-neutrality of an attorney's explanation, a
court must determine whether, assuming the proffered
reasons for the peremptory challenges are true, the
challenges violate the Equal Protection Clause as a
matter of law.' Id. '[E]valuation of the
prosecutor's state of mind based on demeanor and
credibility lies "peculiarly within the trial
judge's province."' Hernandez, 500 U.S. at 365, 111
S. Ct at 1969."
16
1130527
Allen v. State, 659 So. 2d 135, 147 (Ala. Crim. App. 1994).
After the trial court determines that the nonmoving party
has provided facially valid race- and gender-neutral reasons
for its peremptory challenges, the burden then shifts to the
moving party to prove that the nonmoving party has engaged in
actual, purposeful discrimination. During this third step of
the Batson/J.E.B. inquiry, the trial court evaluates the
persuasiveness of the nonmoving party's reasons to determine
whether the nonmoving party has engaged in purposeful
discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995).
The trial court's determination of the moving party's showing
of intent to discriminate is "a pure issue of fact subject to
review under a deferential standard." Hernandez v. New York,
500 U.S. 352, 364 (1991). As this Court explained in Ex parte
Branch:
"[T]he trial judge must make a sincere and
reasonable effort to evaluate the evidence and
explanations based on the circumstances as he knows
them, his knowledge of trial techniques, and his
observation of the manner in which the prosecutor
examined the venire and the challenged jurors.
People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 858,
197 Cal.Rptr. 71 (1983); see also [People v.]
Wheeler, 22 Cal. 3d [258] at 281, 583 P.2d [748] at
764, 148 Cal. Rptr. [890] at 906 [(1978)].
17
1130527
"In evaluating the evidence and explanations
presented, the trial judge must determine whether
the explanations are sufficient to overcome the
presumption of bias. Furthermore, the trial judge
must be careful not to confuse a specific reason
given by the state's attorney for his challenge,
with a 'specific bias' of the juror, which may
justify the peremptory challenge:
"'The latter, a permissible basis for
exclusion of a prospective juror, was
defined in Wheeler as "a bias relating to
the particular case on trial or the parties
or witnesses thereto." Wheeler, 22 Cal. 3d
at 276, 148 Cal. Rptr. at 902, 583 P.2d at
760. ...'
"Slappy [v. State], 503 So. 2d [350] at 354 [(Fla.
Dist. Ct. App. 1987)]. The trial judge cannot
merely accept the specific reasons given by the
prosecutor at face value, see Hall, 35 Cal. 3d at
168, 672 P.2d at 858–59, 197 Cal. Rptr. at 75;
Slappy, 503 So. 2d at 356; the judge must consider
whether the facially neutral explanations are
contrived
to
avoid
admitting
acts
of
group
discrimination."
526 So. 2d at 624.
An appellate court may reverse the trial court's
determination
that
the
nonmoving
party's
peremptory
challenges
were not motivated by intentional discrimination, the third
consideration in a Batson/J.E.B. inquiry, only if that
determination is clearly erroneous. Ex parte Branch, 526 So.
2d at 625. Whether the nonmoving party engaged in actual,
purposeful discrimination involves consideration of not only
18
1130527
the
nonmoving
party's
credibility,
but
also
the
veniremember's
demeanor, and such determinations rest on the trial court's
firsthand observations. As the United States Supreme Court
stated
in
Hernandez,
when
determinations
rest
upon
credibility
and demeanor, they rest "'peculiarly within a trial judge's
province.'" Hernandez, 500 U.S. at 365 (quoting Wainwright v.
Witt, 469 U.S. 412, 428 (1985)).
With regard to Floyd's claim that the prosecutor, the
nonmoving party in this case, purposefully excluded African-
Americans from his jury, Floyd focuses on the prosecutor's
exercise of a peremptory challenge to remove
prospective
juror
no. 58/I.C. from the venire. The prosecutor, when asked to
provide reasons why he exercised a peremptory challenge to
remove I.C. from the venire, stated that he removed I.C.
because he did not know much about her in that she had been
omitted from the State's strike lists and because she did not
respond to questions. The trial court found these reasons to
be race neutral, see Jackson v. State, 686 So. 2d 429, 431
(Ala. Crim. App. 1996)(holding that nonresponsiveness to
questioning can be a race-neutral reason), and State v.
Harris, 184 Ariz. 617, 620, 911 P.2d 623, 626 (Ariz. Ct. App.
19
1130527
1995)(finding the prosecutor's proffered reason that she
lacked knowledge about the veniremember to be race neutral).
The trial court further found that Floyd did not satisfy his
burden of proving that the prosecutor's reasons were
pretextual or sham and that he engaged in actual, purposeful
discrimination in the jury-selection process.
Floyd maintains that the reasons offered by the
prosecutor for his strikes of African-Americans and
females
do
not adequately rebut the inference of actual, purposeful
discrimination because, he says, those reasons are pretextual
or sham. He argues that I.C.'s alleged lack of responsiveness
to questions is pretextual or sham and is not supported by the
record because during group voir dire I.C., as did a Caucasian
veniremember, responded to questions as requested by the
questioner by either raising or not raising her hand. See Ex
parte Branch, 526 So. 2d at 625 (holding that disparate
treatment of veniremembers with the same characteristics or
who answer questions in the same manner suggests that the
reason for striking one over the other is pretextual or sham).
Similarly, he further argues that the prosecutor's lack of
knowledge about I.C. is pretextual or sham because the
20
1130527
prosecutor did not engage in additional voir dire with I.C. to
learn more about her. Ex parte Bird, 594 So. 2d 676, 683
(Ala. 1991)("[T]he failure of the State to engage in any
meaningful voir dire on a subject of alleged concern is
evidence that the explanation is a sham and a pretext for
discrimination.").
This Court, in light of the deference to be accorded the
trial court in its determination of whether Floyd satisfied
his burden of proving that the prosecutor engaged in actual,
purposeful discrimination, cannot conclude from the record
that the trial court's holding that Floyd did not satisfy his
burden of proving that the prosecutor engaged in actual,
purposeful discrimination is clearly erroneous. We cannot
agree with Floyd that the prosecutor engaged in disparate
treatment because he used a peremptory challenge to remove
I.C. and did not use a peremptory challenge to remove
prospective juror no. 21/A.B., a Caucasian male. The record
indicates that the prosecutor, who relied heavily upon his
impressions and knowledge of the veniremembers in
the
exercise
of his peremptory challenges, knew little about I.C. because
she was omitted from his strike lists. The record further
21
1130527
indicates that the prosecutor from his strike lists knew that
A.B. had not served previously on a jury and that he did not
have a criminal history. Under the facts of this case, these
known facts about A.B. negate the evidence of any disparate
treatment of I.C. and A.B.
Additionally, the prosecutor's admission of his lack of
knowledge about I.C. when proffering reasons for the exercise
of the peremptory challenge does not require the conclusion
that
the
prosecutor
engaged
in
actual,
purposeful
discrimination. This Court in State v. Bui, 627 So. 2d 855
(Ala. 1992), agreed with the United States Court of Appeals
for the Fifth Circuit that the "'"[f]ailure by a prosecutor to
explain every peremptory strike of black jurors is not
necessarily fatal to the prosecutor's ability to rebut a prima
facie case ...."'" State v. Bui, 627 So. 2d at 859 (quoting
United States v. Forbes, 816 F. 2d 1006, 1011 n. 7 (5th Cir.
1987), quoting in turn Unites States v. David, 803 F.2d 1567,
1571 (11th Cir. 1986)). Here, the prosecutor admitted that
I.C. had been inadvertently omitted from his strike lists and
that, consequently, he had little information about her. In
light of the prosecutor's explanation of the process he used
22
1130527
in striking a jury, the prosecutor's candor that he knew
nothing about I.C., his stated reluctance to seat a juror he
did not believe was good for the State, and the deference
accorded the trial court in making credibility determinations
concerning the prosecutor, we cannot hold that the trial
court's finding that Floyd did not satisfy his burden of
proving that the prosecutor engaged in actual, purposeful
discrimination in the selection of the jury in this regard is
clearly erroneous.
Floyd's contention that the prosecutor purposefully
excluded females from the jury focuses on the prosecutor's
exercise of a peremptory challenge to remove
prospective
juror
no. 5/T.M.A. from the venire. According to Floyd, the trial
court accepted at face value
the prosecutor's
proffered reason
of her age for the removal of T.M.A. from the jury. He
maintains that because the prosecutor
did not
connect
T.M.A.'s
age to the case, the reason is pretextual or sham and
evidences actual, purposeful discrimination on the part of
the
prosecutor. See Ex parte Branch, 526 So. 2d at 624 (providing
[substituted p. 23]
1130527
that a guideline for determining whether a
prosecutor's
reason
for an allegedly discriminatory strike was valid or sham
includes "'an explanation based on a group bias where the
group trait is not shown to apply to the challenged juror
specifically'" (quoting Slappy v. State, 503 So. 2d 350, 355
(Fla. Dist. Ct. App. 1987))). See also Ex parte Brooks, 695
So. 2d 184, 190 (Ala. 1997)(recognizing that "age, employment
status, and marital status are not sufficiently race-neutral
reasons for a peremptory strike, if the prosecutor gives that
reason as the sole basis for the strike, where that reason is
unrelated to the case").
The record, however, does not support Floyd's argument
that the prosecutor
engaged in disparate treatment because
the
record establishes that the prosecutor did relate the reason
of age to the case. The record establishes that Floyd, a
Caucasian, was 33 years old and that T.M.A. was 48 years old
at the time of the trial. At the Batson/J.E.B. hearing, the
prosecutor stated that he struck T.M.A. because he believed
she was within the age range of the juror the defense was
trying to seat. A review of the prosecutor's strikes
indicates that, after he struck veniremembers he believed
24
1130527
would not be good jurors for the State, he exercised his
peremptory challenges to remove veniremembers whose
ages were
in Floyd's age range in an effort to prevent the defense from
seating the type juror it believed would be pro-defense.
Thwarting the defense's objective in jury selection is a race-
neutral reason, and we cannot conclude based on the record
before us that the trial court's finding that Floyd did not
satisfy his burden of proving that the prosecutor engaged in
actual, purposeful discrimination by striking T.M.A. is
clearly erroneous.
This Court has reviewed the record in light of Floyd's
contention that the State did not provide race- and/or gender-
neutral reasons for striking prospective juror no. 59/M.C.,
prospective juror no. 19/D.B., prospective juror no. 60/L.C.,
prospective juror no. 23/R.B., prospective juror no. 35/S.B.,
and prospective juror no. 70/K.D. The record, however,
supports the trial court's conclusion
that the
State
proffered
race- and/or gender-neutral reasons for its peremptory
challenges of those jurors. See Whatley v. State 146 So. 3d
437, 456 (Ala. Crim. App. 2010) (noting that, "'"[a]lthough a
juror's reservations about the death penalty need not be
25
1130527
sufficient for a challenge for cause, his view may constitute
a reasonable explanation for the exercise of a peremptory
strike."'" (quoting Dallas v. State, 711 So. 2d 1101, 1104
(Ala. Crim. App. 1997), quoting in turn Johnson v. State, 620
So. 2d 679, 696 (Ala. Crim. App. 1992)), and finding a juror's
demeanor to be a race-neutral reason); Smith v. State, 838 So.
2d
413
(Ala.
Crim.
App.
2002)
(finding
a
juror's
religious/moral conviction against sitting in judgment to be
a race-neutral reason); Jackson, supra (finding a juror's
nonresponsiveness to be a race-neutral reason); and
Sanders
v.
State, 623 So. 2d 428, 432 (Ala. Crim. App. 1993)(recognizing
that age can provide a race-neutral reason). Additionally,
in light of the deference accorded to the trial court in
determining whether a prosecutor's reasons are pretextual or
sham, we cannot hold that Floyd satisfied his burden of
proving that the prosecutor engaged in actual, purposeful
discrimination.
"Deference to trial court findings on the issue
of discriminatory intent makes particular sense in
this context because, as we noted in Batson, the
finding will 'largely turn on evaluation of
credibility.' 476 U.S., at 98, n. 21. In the
typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral
explanation for a peremptory challenge should be
26
1130527
believed. There will seldom be much evidence
bearing on that issue, and the best evidence often
will be the demeanor of the attorney who exercises
the challenge. As with the state of mind of a
juror, evaluation of the prosecutor's state of mind
based on demeanor and credibility lies 'peculiarly
within a trial judge's province.' Wainwright v.
Witt, 469 U.S. 412, 428 (1985), citing Patton v.
Yount, 467 U.S. 1025, 1038 (1984)."
Hernandez v. New York, 500 U.S. at 364.
Nothing before this Court establishes that the trial
court's finding that Floyd did not satisfy his burden of
proving that the prosecutor engaged in actual, purposeful
discrimination in the selection of the jury is clearly
erroneous. "'[A] finding is "clearly erroneous" when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.'" Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)). Because
this Court does not have a firm conviction from the record
before us that the prosecutor committed a Batson or J.E.B.
violation during the selection of Floyd's jury, Floyd has not
established that the decision of the Court of Criminal Appeals
affirming the trial court's finding that no Batson or J.E.B.
27
1130527
violation occurred in the selection of his jury conflicts with
prior caselaw.
Next, Floyd contends that the decision of the Court of
Criminal Appeals upholding the trial court's refusal to admit
into evidence all of Floyd's statements to law-enforcement
officers
conflicts
with
Rule
801(c),
Ala.
R.
Evid.
Specifically, Floyd argues that the trial court exceeded the
scope of its discretion by refusing to admit into evidence all
the statements
he made to law-enforcement officers
because, he
says, those statements were admissible nonhearsay statements
and their preclusion from evidence inhibited the jury's
ability to evaluate the credibility and reliability of his
September 27, 2004, statement, which was admitted into
evidence, and prevented him from presenting a complete
defense.
On September 27, 2004, Floyd admitted to law-enforcement
officers that he shot Waylon Crawford. The trial court
admitted Floyd's confession into evidence. During
the
12-year
investigation of the offense, Floyd made several other
statements to law-enforcement officers. In those statements,
Floyd either denied participation in the offense or provided
28
1130527
information
about
the
offense
to
law-enforcement
officers
that
differed from the statement he had made on September 27, 2004.
The State filed a motion in limine asking the trial court to
prevent Floyd from making any reference either directly or
indirectly to any statement he had made to law-enforcement
officers or to the contents of the statement unless the State
notified the Court and the defense that it intended to
introduce that statement. The trial court granted the motion
and refused to admit any evidence regarding any of the
statements Floyd made to law-enforcement officers other than
evidence concerning the statement he made on September 27,
2004.
"The question of admissibility of evidence is
generally left to the discretion of the trial court,
and the trial court's determination on that question
will not be reversed except upon a clear showing of
abuse of discretion ...."
Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 2000).
Rule 802, Ala. R. Evid., provides: "Hearsay is not
admissible except as provided by these rules or other rules
adopted by the Supreme Court of Alabama or by statute." Rule
801(c), defines hearsay as "a statement other than one made by
the declarant while testifying at the trial or hearing,
29
1130527
offered in evidence to prove the truth of the matter
asserted." Generally, "'[t]he declarations of the accused
made after the commission of the crime, are not admissible in
his favor unless they constitute a part of the res gestae or
are introduced by the State.'" Wilsher v. State, 611 So. 2d
1175, 1186 (Ala. Crim. App. 1992) (quoting Harrell v. State,
470 So. 2d 1303, 1306 (Ala. Cr. App. 1984)).
In Miller v. State, 441 So. 2d 1038, 1039 (Ala. Crim.
App. 1983), the Court of Criminal Appeals addressed a
defendant's attempt to admit into evidence a statement he had
made to law-enforcement officers in an effort to present his
testimony without being subjected to cross-examination. That
court stated:
"'A "self-serving declaration" is a statement
made out of Court which is favorable to the interest
of the declarant. Unless, for some recognized
reason, it comes within the exception to the general
rule, such a declaration is not admissible in
evidence when tendered by the favored party, if not
a part of the res gestae. The prime objection to
this character of proof is that it does violence to
the hearsay rule. Further, it opens the door to the
introduction of untrustworthy declarations and
permits a party to manufacture his own evidence.'"
Miller, 441 So. 2d at 1039 (quoting Jarrell v. State, 35 Ala.
App. 256, 50 So. 2d 767 (1950)).
30
1130527
Floyd contends that the trial court erred in refusing to
admit into evidence all of his statements to law-enforcement
officers because, he says, the statements are not hearsay. He
maintains that he did not offer the statements to prove the
truth of the contents of the statements; rather, he says, he
offered the statements for the sole purpose of proving that he
made other statements and that those other statements are
inconsistent with his September 27, 2004, confession.
However, to achieve Floyd's objective for admitting the other
statements into evidence –- proving that his September 27,
2004, confession was unreliable in light of the inconsistency
of that statement with other statements he had made to law-
enforcement officers -- Floyd offered the other statements to
prove "the truth of the matter asserted" in each statement,
i.e., that he did not commit the offense. Thus, Floyd's
statements, other than his confession, which was submitted
into evidence by the State, made to law-enforcement officers
were hearsay, and the trial court did not exceed the scope of
its discretion by refusing to admit them into evidence. The
judgment of the Court of Criminal Appeals upholding the trial
court's refusal to admit all statements Floyd made to law-
31
1130527
enforcement officers into evidence does not conflict
with Rule
801(c), Ala. R. Evid.
6
Lastly, Floyd contends that the decision of the Court of
Criminal Appeals that the trial court did not err in denying
his motion for a new trial based on newly discovered evidence
conflicts with Ex parte Heaton, 542 So. 2d 931 (Ala. 1989).
Specifically, Floyd contends that the trial court
exceeded the
scope of its discretion in denying his motion for a new trial
because, he says, the evidence satisfied all the requirements
for a new trial.
At trial Floyd maintained that Paul Wayne Johnson, not
he, had committed the offense and that Johnson, by threatening
to harm Floyd and his family, had pressured him into
confessing that he committed the offense. After Floyd had
been convicted and sentenced, Dorothy Dyson, a friend of
Floyd's family, came forward stating that on the night
Crawford was murdered she saw Johnson and that his shirt was
Because Floyd's statements made to law-enforcement
6
officers, other than his confession, were inadmissible
hearsay; do not fall within an exception to the hearsay rule,
see Rules 803 and 804, Ala. R. Evid.; and were not by
definition not hearsay, see Rule 801(d), Ala. R. Evid., we
pretermit discussion of the other grounds of conflict Floyd
raises in this regard.
32
1130527
covered with blood. In light of this newly discovered
evidence, Floyd moved for a new trial, arguing that the
evidence supported the defense's theory that Johnson, not he,
committed the offense. The trial court, after conducting a
hearing at which Dyson testified, entered an
order
questioning
Dyson's credibility and denying Floyd's motion for a new
trial.
"'"The appellate courts look with
disfavor on motions for new trials based on
newly discovered evidence and the decision
of the trial court will not be disturbed
absent abuse of discretion." Further,
"this court will indulge every presumption
in favor of the correctness" of the trial
judge's decision. The trial court is in the
best position to determine the credibility
of the new evidence.'
"Isom v. State, 497 So. 2d 208, 212 (Ala. Crim. App.
1986) (citations omitted). To establish a right to
a new trial based on newly discovered evidence, the
petitioner must show the following: (1) that the
evidence will probably change the result if a new
trial is granted; (2) that the evidence has been
discovered since the trial; (3) that it could not
have been discovered before the trial by the
exercise of due diligence; (4) that it is material
to the issue; and (5) that it is not merely
cumulative or impeaching. ... While all five
requirements ordinarily must be met, the law has
recognized
that
in
certain
exceptional
circumstances, even if the newly discovered evidence
is cumulative or impeaching, if it appears probable
from looking at the entire case that the new
33
1130527
evidence would change the result, then a new trial
should be granted."
Ex parte Heaton, 542 So. 2d at 933 (emphasis added; some
citations omitted).
"The granting of a new trial on the basis of
newly discovered evidence 'rests in the sound
discretion of the trial court and depends largely on
the credibility of the new evidence.' Robinson v.
State, 398 So. 2d 144 (Ala. Crim. App.)[,] cert.
denied, 389 So. 2d 151 (Ala. 1980). The trial court
is the factfinder in a hearing on a motion for new
trial. One condition of the trial court's granting
a new trial based on newly discovered evidence is
that the court must believe the evidence presented
at the hearing. Seibert v. State, 343 So. 2d 788
(Ala. 1977)."
McDonald v. State, 451 So. 2d 440, 442 (Ala. Crim. App.
1984)(emphasis added).
Applying the guidelines for granting a new trial in light
of newly discovered evidence set forth in Ex parte Heaton and
McDonald to the facts of this case, we conclude that the trial
court did not exceed the scope of its discretion in denying
Floyd's motion for a new trial. At the end of Dyson's
testimony, the trial court questioned Dyson to address its
concerns about the credibility of her testimony. The record
indicates that the trial court's concerns were not abated by
Dyson's responses. Because "a condition to the granting of a
34
1130527
new trial on the basis of newly discovered evidence is that
the trial court must believe the evidence presented,"
McMillian v. State, 594 So. 2d 1253, 1264 (Ala. Crim. App.
1991), and the record indicates that Dyson's testimony did not
satisfy this criteria, this Court cannot conclude that the
trial court exceeded the scope of its discretion by denying
Floyd's motion for a new trial based on newly discovered
evidence. Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 12 (Ala.
1979) ("A judge abuses his discretion only when his decision
is based on an erroneous conclusion of law or where the record
contains no evidence on which he rationally could have based
his decision." (citing Premium Serv. Corp. v. Sperry &
Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)).
The decision of the Court of Criminal Appeals affirming
the trial court's denial of Floyd's motion for a new trial
does not conflict with Ex parte Heaton and the applicable
caselaw.
Conclusion
Based on the foregoing, the judgment of the Court of
Criminal Appeals is affirmed.
AFFIRMED.
35
1130527
Moore, C.J., and Bolin, Parker, Main, and Bryan, JJ.,
concur.
Murdock, J., dissents.
Shaw and Wise, JJ., recuse themselves.*
*Justice Shaw and Justice Wise were members of the Court
of Criminal Appeals when that court considered this case.
36
1130527
MURDOCK, Justice (dissenting).
Christopher Anthony Floyd argues, among other things,
that the trial court erred in not admitting statements he made
to police that were inconsistent with his out-of-court
confession to police. He contends that the excluded
statements tend to prove that his confession was not credible
and that their exclusion prevented him from presenting a
complete defense. The main opinion rejects this contention
with the reasoning that the proffered statements were
inadmissable
hearsay
because
"to
achieve
Floyd's
objective
for
admitting the other statements into evidence –- proving that
his September 27, 2004, confession was unreliable in light of
the inconsistency of that statement with other statements he
had made to law-enforcement officers -- Floyd [necessarily
sought to introduce] the other statements to prove 'the truth
of the matter asserted' in [those statements]." ____ So. 3d
at ___.
Given the unique circumstances of this case and the
content of many of those other statements, I am not persuaded
that the stated rationale for upholding their exclusion --
that "Floyd [necessarily sought] ... to prove the 'truth of
37
1130527
the matter asserted'" in them -- is correct. Even if the
trial court erred in excluding the subject statements on the
ground now urged by Floyd, however, this ground was not raised
below, and I cannot conclude that the exclusion of the
statements represents plain error.
That said, after reviewing the record in this case as it
now stands following a second remand, I have substantial
concerns regarding the so-called Batson/J.E.B. challenges to
prospective jurors no. 5/T.M.A. and no. 58/I.C., and I
therefore respectfully must dissent.7
For the reason expressed in my special writing in
7
Ex parte Floyd, [Ms. 1080107, September 28, 2012] ___ So. 3d
___, ___ (Ala. 2012) (Murdock, J., concurring in the result),
I continue to be concerned about the appropriateness of
allowing Batson challenges to be made in capital cases for the
first time on appeal. As I noted in Ex parte Floyd, however,
the State has not objected to this procedure in the present
case, and, as a result, I and the other members of this Court
have been placed in the position of assessing the Batson
issues as best we can under the circumstances.
38 | August 21, 2015 |
ac17c661-1b1f-405e-9366-8f6ef956a368 | Ex parte Lee Carroll Brooker. | N/A | 1141160 | Alabama | Alabama Supreme Court | Rel: 09/11/2015
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, 2015
____________________
1141160
____________________
Ex parte Lee Carroll Brooker
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Lee Carroll Brooker
v.
State of Alabama)
(Houston Circuit Court, CC-13-485;
Court of Criminal Appeals, CR-14-0126)
MAIN, Justice.
WRIT DENIED. NO OPINION.
Bolin, Murdock, and Bryan, JJ., concur.
Moore, C.J., concurs specially.
1141160
MOORE, Chief Justice (concurring specially).
I concur with this Court's denial of Lee Carroll
Brooker's petition for a writ of certiorari. Brooker, who is
76 years old, was sentenced, as a habitual felony offender, to
life imprisonment without the possibility of parole for a
nonviolent, drug-related crime. The Court of Criminal Appeals
affirmed his conviction and his sentence in an unpublished
memorandum. Brooker v. State (No. CR-14-0126, July 2, 2015),
___ So. 3d ___ (Ala. Crim. App. 2015)(table). I write
separately because I believe Brooker's sentence is excessive
and unjustified. In imposing the sentence, the judge stated:
"[I]f the Court could sentence you to a term that is less than
life without parole, I would. However, the law is very
specific as to the sentence in this case. There is no
discretion by the Court." Under circumstances like those of
Brooker's arrest and conviction, a trial court should have the
discretion to impose a less severe sentence than life
imprisonment without the possibility of parole.
The Court of Criminal Appeals' unpublished memorandum
presents the following facts:
"The evidence
at
trial
established
that,
on
July
20, 2011, Brooker was in possession of at least 2.2
2
1141160
pounds of marijuana plants. Investigator Ronald Hall
of the Dothan Police Department testified that, on
July 20, 2011, he obtained written consent from
Darren Brooker, Brooker's son, to search Darren's
home in connection with an investigation into stolen
property. Investigator Hall testified that Brooker
was present when he arrived at the residence.
Investigator Hall testified that he showed Brooker
the consent-to-search form signed by Darren and that
Brooker allowed him to enter the residence.
Investigator Hall testified that he began his search
in an upstairs bedroom and that he observed a
'growing light and pots in the bedroom on the left
that appeared to be a grow operation that was set up
indoors.' ...
"'....'
"... Investigator Hall confirmed that he did not
obtain Brooker's written consent to search the
residence. During Investigator Hall's testimony, the
State offered, and the trial court admitted, the
consent-to-search form signed by Darren Brooker and
17 photographs of the evidence discovered inside the
residence. Brooker did not object to the admission
of that evidence.
"Investigator [Jackie] Smith [of the Houston
County Sheriff's Department] testified that, after
Investigator Hall contacted him, he responded to
Darren's residence and observed what he believed to
be
an
indoor
marijuana-growing
operation.
Investigator Smith confirmed that, based on his
observations, he decided to search for additional
plants
outside
the
house.
Investigator
Smith
testified that Brooker confirmed to him that there
were marijuana plants outside. Investigator Smith
testified that 'there were few plants, infant
plants, real young plants, that were in pots just
outside the back door that was separate from the
garden where the bigger plants were.' Investigator
Smith testified that Brooker 'directed [him] down a
3
1141160
path behind the house' where 37 larger marijuana
plants were located approximately 100 yards away.
During Investigator Smith's testimony, the State
offered, and the trial court admitted, 20 photos of
the evidence discovered on Darien's property.
Brooker did not object to the admission of that
evidence.
"....
"...
During
Investigator
[Joshua]
Robertson's
testimony, the State offered, and the trial court
admitted, the marijuana plants, lights, light bulbs,
timers, scale, and sunlight supply power burners
collected from Darren's property as well as the
certified deed showing Darren as the owner of the
property. Brooker did not object to the admission
of that evidence. ...
"Michael Muraski of the Alabama Department of
Forensic Sciences testified that he determined that
the plants collected from Darren's residence were
marijuana plants weighing, at a minimum, 2.8 pounds.
During Muraski's testimony the State offered, and
the trial court admitted, the certificate of
analysis prepared as a result of the evidence
collected from Darren's residence. Brooker did not
object to the admission of that evidence.
"After the State rested, the trial court held a
hearing outside of the jury's presence on the motion
to suppress that Brooker had filed prior to trial.
Brooker testified that, on July 20, 2011, he was
present at the home he shared with Darren when law
enforcement knocked on the front door. Brooker
testified:
"'... I opened the door. And there
were two officers there. And they told me
that they come to search the house for
bicycles that was stolen. And I asked them
did they have a search warrant.
4
1141160
"'And they said, no, they didn't have
a search warrant. But they had a consent
form signed by my son.
"'Q. Did they show that to you?
"'A. I don't recall them showing it to
me.
"'Q. What did you say?
"'A. But I told them, I said, "Look,
I live here, too; and I'm not consenting to
a search. ..."
"'....'
"Brooker's defense counsel then argued that,
pursuant to Georgia v. Randolph, 547 U.S. 103, 126
S.Ct. 1515 (2006), a 'physically present defendant
would be a person that ... has the right to object
over, say, a roommate's consent'; counsel argued,
therefore, that because Brooker lived in Darren's
house, law enforcement were required to obtain
Brooker's
consent
to
search
the
residence,
regardless of the fact that Darren had given his
consent. The State responded that, because
Brooker's
testimony
contradicted
Investigator
Hall's
testimony, the Court had to determine which witness
was credible; if, the State argued, Investigator
Hall had testified truthfully, then Brooker had
given
his
consent
and
the
search
was
not
unreasonable. The trial court denied Brooker's
motion to suppress.
"Ultimately, the jury returned a guilty verdict
against Brooker. At Brooker's sentencing hearing,
the State offered certified records from the State
of Florida showing that Brooker was previously
convicted for one count of attempted robbery with a
firearm and three counts of robbery with a firearm.
... The trial court determined that, under Alabama
5
1141160
law, Brooker's robbery convictions would be treated
as Class A felonies. ..."
The trial court then sentenced Brooker, under the Habitual
Felony Offender Act, § 13A-5-9, Ala. Code 1975, to life
imprisonment without the
possibility
of parole, noting that it
had no discretion to sentence Brooker otherwise.
In my view, Brooker's sentence of life imprisonment
without the possibility of parole for a nonviolent, drug-
related crime reveals grave flaws in our statutory sentencing
scheme. I urge the legislature to revisit that statutory
sentencing scheme to determine whether it serves an
appropriate purpose.
6 | September 11, 2015 |
d0439f22-9743-4f7e-b919-3eef84cee6d0 | Ex parte Robert Anthony Simmons. | N/A | 1140860 | Alabama | Alabama Supreme Court | REL: 06/26/2015
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, 2014-2015
_________________________
1140860
_________________________
Ex parte Robert Anthony Simmons
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Robert Anthony Simmons
v.
State of Alabama)
(Houston Circuit Court, CC-93-1046.60 and CC-93-1047.60;
Court of Criminal Appeals, CR-13-1727)
WISE, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
1140860
MOORE, Chief Justice (dissenting).
Based on the facts properly before us, I believe that
Robert Anthony Simmons is entitled to an evidentiary hearing
on his ineffective-assistance-of-counsel claims.
I.
Simmons was convicted of first-degree sodomy and first-
degree sexual abuse. The victim was his then six-year-old
stepdaughter, D.Q. Although the events at issue occurred in
1986 when Simmons was 30, the trial did not occur until almost
25 years later. At trial, the victim, then more than 30 years
old, testified to the abuse. Simmons filed a timely Rule 32,
Ala. R. Crim. P., petition for postconviction relief, arguing
ineffective assistance of counsel on the basis of (1) evidence
that was not presented at trial and (2) inadequate objections
and cross-examination by trial counsel.
Simmons seeks certiorari review of the decision of the
Court
of
Criminal
Appeals
affirming,
by
unpublished
memorandum, the summary denial of his Rule 32 petition.
Simmons v. State (No. CR-13-1727, April 10, 2015), ___ So. 3d
___ (Ala. Crim. App. 2015) (table). The merits of Simmons's
claims are not before us. The issues before us are (1) whether
2
1140860
Simmons alleged specific facts that, if true, would entitle
him to an evidentiary hearing on his Rule 32 allegations, and
(2) whether he was entitled to a written explanation from the
trial court of its reasons for denying his petition. As
discussed below, I believe that Simmons's argument that he was
entitled to an evidentiary hearing has merit and that it was
properly preserved.1
II.
A Rule 32 petition must be specific:
"Each claim in the [Rule 32] petition must contain
a clear and specific statement of the grounds upon
which relief is sought, including full disclosure of
the factual basis of those grounds. A bare
allegation that a constitutional right has been
violated and mere conclusions of law shall not be
sufficient to warrant any further proceedings."
Rule 32.6(b), Ala. R. Crim. P. In its unpublished memorandum,
the Court of Criminal Appeals lists 17 reasons, derived from
Simmons's Rule 32 petition, why his trial counsel's
performance was deficient. Even though not described in
detail
in the memorandum, at least some of the grounds listed appear
Simmons is incorrect in his assertion that a trial court
1
must provide a written explanation for the summary denial of
a Rule 32 petition. "Rule 32.7 does not require the trial
court to make specific findings of fact upon a summary
dismissal." Fincher v. State, 724 So. 2d 87, 89 (Ala. Crim.
App. 1998).
3
1140860
to have the specificity that would entitle Simmons to an
evidentiary hearing:
"Specifically, Simmons alleged that his trial
counsel was ineffective because, he said, his trial
counsel (1) failed to ask the State for its notice
of intent to use Rule 404(b), Ala. R. Evid., before
trial; (2) failed to object to 23 different
questions and answers during D.Q.'s testimony; (3)
failed to effectively cross-examine D.Q.; (4) failed
to research D.Q.'s criminal history; (5) 'aroused
sympathy' for D.Q. by saying she had been abandoned
by her family; (6) failed to ascertain the dates on
which the offense was alleged to have been
committed; (7) failed to prove the content of a
Department of Human Resources ('DHR') report which,
he said, indicated that 'the examination was not
going to prove sexual abuse had occurred'; (8)
failed to subpoena the doctor who examined D.Q. to
testify at trial; (9) failed to question juror no.
81, who was struck for cause and who, Simmons said,
might have been a witness at trial; (10) failed to
subpoena the DHR representative who had investigated
the case; (11) failed to present testimony of
Simmons's
background;
(12)
failed
to
present
testimony of D.Q.'s mother's statement to Simmons in
which she told Simmons that the charges had been
dropped; (13) failed to make an offer of proof about
Simmons's ex-wife's extramarital affair; (14) failed
to call witnesses to contradict parts of D.Q.'s
testimony; (15) failed to call character witnesses
for Simmons at trial and at the sentencing hearing;
(16) failed to show that the reason for the delay in
trial was not because Simmons was attempting to
evade prosecution; and (17) failed to file discovery
requests."
(Emphasis added.)
4
1140860
The Court of Criminal Appeals did not dispute that
Simmons had alleged deficient performance on the part of his
trial counsel sufficient to entitle him to an evidentiary
hearing. That court instead stated that Simmons had failed to
allege facts sufficient to prove that he had been prejudiced
by the deficient performance. "The defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would
have been different. A reasonable probability is
a
probability
sufficient
to
undermine
confidence
in
the
outcome."
Strickland
v. Washington, 466 U.S. 668, 694 (1984).
At the pleading stage, a defendant need not prove his
allegations but need only present facts that, if true, would
entitle him to relief. Johnson v. State, 835 So. 2d 1077,
1079-80 (Ala. Crim. App. 2001). Trivial or harmless error does
not rise to the level of prejudicial error. But many of the
allegations listed in the unpublished memorandum of the Court
of Criminal Appeals appear far from trivial. In particular,
allegation 7 (that counsel failed to prove the contents of the
Department of Human Resources ("DHR") report that would show
that sexual abuse had not occurred), allegation 8 (that
5
1140860
counsel failed to subpoena the doctor who had examined D.Q. to
testify), and allegation 10 (that counsel failed to call as a
witness the DHR representative who had investigated the case)
would, if true, create a legally sufficient doubt as to
Simmons's guilt in the minds of the jurors, i.e., a reasonable
probability that the outcome of the proceeding would have been
different.
The Court of Criminal Appeals argued in a footnote that
Simmons
did
not
sufficiently
identify
witnesses
that
Simmons's
trial counsel should have called or state what the testimony
of those witnesses would have been. But allegations 7, 8, and
10,
taken
together,
specifically
identify
the
examining
doctor
and the DHR representative as witnesses and proof of the facts
alleged in the DHR report as the reason for their testimony.
At the pleading stage such allegations are sufficient. Rule
32.6(b) requires only "a clear and specific statement of the
grounds upon which relief is sought." The purpose of the
evidentiary hearing is to find the facts. Rule 32.9(a), Ala.
R. Crim. P. After the hearing, the court "shall make specific
findings of fact relating to each material issue of fact
presented." Rule 32.9(d), Ala. R. Crim. P.
6
1140860
But in this case no hearing occurred. Instead, the trial
court summarily dismissed the petition, an action that is
appropriate only if "the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or ...
no material issue of fact or law exists which would entitle
the petitioner to relief under this rule and ... no purpose
would be served by any further proceedings." Rule 32.7(d),
Ala. R. Crim. P.
III.
Simmons included in his petition for a writ of certiorari
five pages of detailed examples of alleged failures to object
to portions of the victim's testimony and two pages concerning
the evidentiary significance of the DHR report taken from his
amended petition in the trial court. He also included as an
exhibit to his petition in this Court the DHR report in
question. Evidence from the trial record, however, may not be
considered by this Court in reviewing a petition for a writ of
certiorari unless those facts appeared either in the opinion
or unpublished memorandum of the Court of Criminal Appeals or
in a statement of facts in an application for rehearing before
that court. See Rule 39(d)(5)(A), Ala R. App. P. Because
7
1140860
Simmons did not verify that the additional facts stated in his
petition to this Court were "a verbatim copy of the statement
presented to the court of appeals in the application for
rehearing," Rule 39(d)(5)(A)(ii), Ala. R. App. P., the only
facts this Court may consider in evaluating
Simmons's petition
are those stated by the Court of Criminal Appeals in its
unpublished memorandum.
The facts stated by the Court of Criminal Appeals
summarize the DHR evidence with sufficient specificity.
Simmons's inclusion in his petition for a writ of certiorari
of two pages of allegations about the DHR evidence taken from
his amended Rule 32 petition in the trial court may, at first
blush, appear to be an improper attempt to import an
additional unverified statement of facts into his petition.
This concern, however, may be unfounded because those "facts"
in large measure repeat the facts stated in the unpublished
memorandum of the Court of Criminal Appeals, facts we may
consider. In particular, the statement of facts in Simmons's
petition for certiorari review refers to "information
regarding an examination of the alleged victim by a physician
which showed no sexual abuse had occurred." This factual
8
1140860
statement
parallels
allegation
7
in
the
unpublished
memorandum
of the Court of Criminal Appeals. Another factual statement in
the petition refers to "fail[ure] to call as a witness for
[Simmons] the DHR representative who prepared the report."
This statement parallels allegation 10 in the unpublished
memorandum of the Court of Criminal Appeals. An additional
factual statement alleges deficient performance of counsel in
failing to call the examining physician as a witness. This
statement
parallels
allegation
8
in
the
unpublished
memorandum.
Because the facts asserted as to the DHR report, the
examining doctor, and the DHR representative all parallel
statements in the unpublished memorandum of the Court of
Criminal Appeals, those facts are properly before us. The
allegation that Simmons's counsel failed to present critical
evidence supporting the proposition that sexual abuse had not
occurred would, if proven, create "a reasonable probability
that, but for counsel's unprofessional errors, the results of
the proceeding would have been different." Strickland, 466
U.S. at 694.
9
1140860
IV.
In his petition for a writ of certiorari, Simmons clearly
argues that the deficient performance of his counsel caused
him prejudice:
"The deficient performance of [Simmons's] counsel in
failing to call as a witness for [Simmons] the DHR
representative who prepared the report ... and to
introduce the said report in evidence was actually
prejudicial to [Simmons] in that it was a failure to
present evidence strongly impeaching the alleged
victim and evidence strongly favorable to [Simmons]
which would have justified an acquittal on at least
one charge made against him."
Petition, at 12. Furthermore, he argued that the "physician
could present testimony refuting one or both charges made in
the indictments and justifying an acquittal of [Simmons], and
the absence of such testimony was actually and highly
prejudicial to [Simmons]." Id.2
Simmons was entitled to an evidentiary hearing on his
allegations about the DHR evidence. "Because [Simmons]
presented allegations that, if true, entitle him to relief,
the trial court erred in summarily dismissing this claim."
Although presented in the "additional facts" section of
2
Simmons's
petition
for
certiorari
review,
these
statements
are
no more than argument about the facts stated by the Court of
Criminal Appeals in its unpublished memorandum.
10
1140860
Carson v. State, 15 So. 3d 554, 557 (Ala. Crim. App. 2008). I
would issue the writ on this ground. Therefore, I dissent.
11 | June 26, 2015 |
7b51fc3d-637f-4649-bc54-da912d232324 | Ex parte B.M. | N/A | 1140414 | Alabama | Alabama Supreme Court | REL:08/28/2015
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, 2015
____________________
1140414
____________________
Ex parte B.M.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: B.M.
v.
Jefferson County Department of Human Resources)
(Jefferson Juvenile Court, JU-07-80717.04;
Court of Civil Appeals, 2130346)
PER CURIAM.
WRIT QUASHED. NO OPINION.
1140414
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
2
1140414
MOORE, Chief Justice (dissenting).
The Jefferson Juvenile Court ("the juvenile court")
terminated B.M.'s parental rights to her minor child, D.M.
The Court of Civil Appeals then unanimously affirmed, without
an opinion, the juvenile court's judgment. B.M v. Jefferson
Cnty. Dep't of Human Res. (No. 2130346, October 17, 2014), ___
So. 3d ____ (Ala. Civ. App. 2014) (table). B.M. petitioned
this Court for a writ of certiorari to review the decision of
the Court of Civil Appeals. This Court granted B.M.'s
petition, issued the writ, and, today, quashes the writ of
certiorari. I respectfully dissent.
I. Facts
Except where otherwise noted, the facts are not in
dispute. B.M. has been the victim of cruelty and extreme
suffering, having been raped five times since she was five
years old. B.M. has contracted the human immunodeficiency
virus ("HIV"), for which she receives treatment and
medication. She suffers from mental illness and claims to hear
voices. She has three children, two of whom live with
relatives. The oldest child was born when B.M. was 14. The
3
1140414
child at issue here, D.M., is the youngest child. B.M. and
D.M. love each other, and D.M. has bonded with his siblings.
Before D.M. was born, B.M.'s other children reported
being touched inappropriately by another family member while
B.M. was at work. B.M. took the children to Princeton Hospital
and called the Jefferson County Department of Human Resources
("JCDHR") to report the incident. After the incident, B.M.
suffered a mental breakdown for which she sought treatment at
the University of Alabama at Birmingham Hospital. Upon her
release she was referred to Western Mental Health, and her
children were placed in the custody of relatives.
D.M. was born on February 2, 2007. During her pregnancy
with D.M., B.M. took prescribed medications to prevent D.M.
from contracting HIV. D.M. was removed from B.M.'s custody by
JCDHR when he was five days old, and B.M. has not had custody
since then.
The parties dispute the degree to which B.M. cooperated
with JCDHR to work toward reunification with D.M. B.M. alleges
that she complied with JCDHR requests and made significant
progress toward JCDHR's goals. She was, she says, consistent
with her visits with D.M., her employment, her doctor visits,
4
1140414
and her visits with D.M.'s doctors. She has remained in
contact with JCDHR and has received individual and group
counseling at Birmingham Aids Outreach. She has completed a
drug screen that turned up negative. She participated in
parenting classes and maintained stable housing, having lived
at the same residence for seven years. She is current on rent
and other bills. Her house has three bedrooms and is
furnished. D.M. has his own room in her house. This room has
a
bed,
dresser,
television,
X-Box
video-game
console,
clothes,
shoes, sporting equipment, and a box of toys.
B.M.
claims
that
she
has
consistently
exercised
unsupervised visitation with D.M. during the weekends,
including overnight, and that her unsupervised visits
continued until the day her parental rights were terminated.
During her visits, she says, she and D.M. would play baseball,
ride bikes, cook, eat meals, visit the park, watch movies, and
visit stores and restaurants.
For roughly five months in 2012, B.M. and D.M. worked
with Sabrina Franks, a behavior analyst, regarding D.M.'s
behavior and need for discipline. D.M. suffers from
separation anxiety and severe behavioral problems, including
5
1140414
physical
aggression,
violence,
aggression
toward
property,
and
verbal
aggression.
Franks
implemented
"timeout"
procedures
for
D.M. and taught B.M. to incentivize D.M.'s good behavior.
Franks observed that B.M. understood the different techniques
Franks had taught her and that D.M. was receptive to B.M.'s
instruction.
Franks's
primary
concern
was
B.M.'s
inconsistency
using disciplinary practices.
D.M. receives treatment for his mental-health and
behavioral issues and takes medication for his aggression and
mood swings. His behavior has improved since he began working
with Franks. When Franks first encountered D.M., D.M. had run
away from his foster parent, had hit and bitten the foster
parent,
had cleared the countertop by knocking everything
off,
had dumped water on the floor, and had urinated on the floor.
D.M. has been kicked out of three or four day-care facilities;
however, he now attends a day-care facility for children with
behavioral issues and has begun taking tae kwon do martial-
arts courses to redirect his aggression toward a constructive
and disciplined activity.
D.M. has acted out sexually on B.M.'s leg and claims he
learned this behavior from watching television. While in the
6
1140414
care of his foster parents, he was twice hospitalized for his
behavior. The foster parents did not inform B.M. about the
hospitalizations until after D.M. was released from the
hospital.
B.M. does not trust D.M.'s foster parents. She alleges
that D.M. shows up at visitations with scratches, bruises,
burn marks, and fingerprints on his body after he leaves the
foster parents' care. She believes that DHR does not take
seriously her concern about these marks on D.M.'s body, and
she worries that D.M.'s behavior arises out of the foster
parents' treatment of him. B.M. indicates that D.M.'s guardian
ad litem also expressed concerns about the foster parents.
B.M. has never physically harmed or abused D.M. B.M.'s
only act of physical confrontation, in fact, occurred when a
neighbor attempted to steal a necklace from D.M., and that
confrontation did not involve D.M.
In 2012 B.M. began to work with Brandi Renfro, a
therapist with the Specialized Alternatives for Families and
Youth ("SAFY"). Renfro observed B.M. implementing proper
parenting techniques. However, B.M.'s services with Renfro
were discontinued upon B.M.'s request. B.M. missed some in-
7
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home-service visits with Renfro and canceled some visits with
Renfro
without
rescheduling.
B.M.
claims
that
she
discontinued
services with Renfro because Renfro lied to her, claiming that
B.M.'s oldest daughter no longer wished to visit B.M. B.M.
says she lost trust in Renfro after this incident. B.M. did
continue services with SAFY through a different therapist and
completed a "Tools of Choice" program implemented by SAFY.
This 5-week program consisted of 15 hours of class and in-home
instruction. Franks testified that B.M. made progress during
the Tools of Choice program and used the skills she learned
through the program. B.M. received a certificate for
completing the program.
Theodore Owens, a foster-care worker, testified that he
received B.M. and D.M.'s case in May 2007 and maintained the
case until October 2008. He saw B.M. caring for and
interacting well with D.M. but was concerned about B.M.'s
mental health and her ability to provide
consistent,
long-term
care for D.M. He did not recommend unsupervised visitation
between D.M. and B.M. On one occasion B.M. made an unannounced
visit to Owens, at which B.M. appeared disoriented and was
incoherent.
8
1140414
Tessa Miles, an adoption worker, was assigned to B.M. and
D.M.'s case from 2007 through 2009. She was reassigned to the
case in 2010 and continued on the case until 2011. Like Owens,
Miles observed B.M. caring for and interacting well with D.M.,
but Miles maintained concerns about B.M.'s mental health.
Miles testified that she was concerned B.M. might harm herself
or others if B.M. was not taking her medication. Miles based
this assessment on two occasions when B.M. failed to take her
medications
and
acted
erratically
and
aggressively.
Miles
also
expressed concern
about
D.M.'s bad behavior and B.M.'s ability
to control such behavior.
Moniqueca Barfield was a foster-care worker on B.M. and
D.M.'s case from April 2011 through August 2011 and from
October 10, 2012, to the date B.M.'s parental rights were
terminated. Barfield expressed concerns about B.M.'s mental
illness
and
B.M.'s
ability
to
take
her
medications
consistently; however, B.M. disputes Barfield's account about
how
consistently
B.M.
took
her
medications.
Barfield
explained
that B.M. enlisted in a continuum program to provide intensive
in-home services to effect reunification with D.M. According
to Barfield, B.M. participated in this program for six to
9
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seven
months before beginning to refuse this service.
Barfield
testified that she had witnessed D.M. acting out while
Barfield was at the foster home. She claimed that D.M. had
kicked the garage door of the foster home because the foster
parents had refused to give him a toy he wanted. He then
reentered the home, threw objects, knocked clean clothes on
the floor, knocked over a bar stool, and called Barfield
names.
Barfield
expressed
concerns
about
B.M.'s
mental
health,
her consistency in taking her medications, and her ability to
control and supervise D.M.
The juvenile court terminated B.M.'s parental rights on
December 17, 2013. The December 17, 2013, order was vacated,
and a new order terminating B.M.'s parental rights was entered
on January 9, 2014, in which the juvenile court made the
following findings:
"The court heard the testimony of all witnesses who
were first duly sworn. The court received into
evidence certain properly authenticated exhibits.
After due consideration of same, the court finds
from clear and convincing evidence, competent,
material and relevant in nature, that the child
named herein is a dependent child pursuant to Title
12-15-102, Code of Alabama 1975.
"Based
on
the
sworn
testimony
and
evidence
presented, this Court finds as follows:
10
1140414
"[D.M.] was born on February 2, 2007. He has been in
DHR foster care since he was five days old. The
mother had two older children who were removed from
her custody previously.
"In addition, the mother reports that she is
diagnosed with Bipolar Disorder and Psychosis [Not
Otherwise Specified]. She is also positive for HIV.
"The mother suffers from visual and auditory
hallucinations and has represented to the worker
that at times she believes she is Jesus. She took
herself off her medications several times. She has
been hospitalized several times for psychiatric
problems. There are concerns that she will not
remain
compliant
with
her
medications
for
psychiatric treatment and her medications for HIV.
"The mother refused to cooperate with in home
continuum of care services through SAFY which
included counseling. She terminated these services
and missed a number of appointments.
"The mother is currently in Mental Health Court for
a pending criminal charge.
"....
"Although the mother loves her child, this Court
finds that the child cannot be safe with the mother
due to her mental illness. She is unable to remain
consistently on her medications and continues to
have hallucinations. She cannot remain safe herself.
She is unable to parent the child.
"[D.M.], the child herein, is a Special Needs Child
who attends [a] [t]reatment [c]enter for children
with serious behavior and emotional problems. The
child was in multiple day cares but was removed due
to behavior issues. He attends the University of
Alabama Child Psychiatry and is on multiple
psychoactive medications. He is diagnosed with
11
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Oppositional
Defiant
Disorder
and
Separation
Anxiety.
"[D.M.] cannot tolerate change in his life. There
appears to be no mother and child bond between his
mother and him. The mother can be inappropriate with
the child while visiting and, in May of this year,
the child kicked the mother in the face.
"The court does find, pursuant to Title 12-15-319,
Code of Alabama 1975, that the mother and any
alleged or unknown father are unable to discharge
their responsibilities to and for the child; that
the conduct and condition of the mother and any
alleged or unknown father are such as to render them
unable to properly care for the child, and that such
conduct and condition are unlikely to change in the
foreseeable future.
"....
"The mother and any alleged or unknown father have
failed to adjust their circumstances to meet the
child's needs, pursuant to Title 12-15-319, Code of
Alabama 1975, and Title 12-15-301, Code of Alabama
1975.
"The court also finds that there are no suitable
relative resources willing or able to receive
custody of the child. The court finds there is no
viable alternative to termination of parental rights
in this case. The child is determined to be
adoptable.
"In addition, the court finds that the State of
Alabama Department of Human Resources is willing and
able to accept permanent legal custody, as provided
in Title 12-15-320, Code of Alabama 1975.
"In accordance with Public Law 96-272, as amended by
Public Law 105-89 and Section 12-15-319, Code of
Alabama 1975, this Court further finds that it would
12
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be in the best interest of the child named herein to
terminate the parental rights of the child's mother
and father."
The Court of Civil Appeals affirmed the juvenile court's
judgment without an opinion.
II. Analysis
B.M. argues that the juvenile court erred because, she
says, a less drastic alternative to termination exists. She
alleges that the State failed to demonstrate with clear and
convincing evidence that B.M. could
not
discharge her parental
duties.
To terminate a parent's rights to his or her child, a
trial court must find by clear and convincing evidence that
the child is dependent and that a less drastic alternative to
the termination of parental rights is unavailable. §
12–15–319, Ala. Code 1975; Ex parte Beasley, 564 So. 2d 950,
952 (Ala. 1990). That clear and convincing evidence is the
standard
applicable
in
termination-of-parental-rights
cases
is
set forth in § 12–15–319(a), Ala. Code 1975, which provides,
in pertinent part:
"If the juvenile court finds from clear and
convincing
evidence,
competent,
material,
and
relevant in nature, that the parents of a child are
unable
or
unwilling
to
discharge
their
13
1140414
responsibilities to and for the child, or that the
conduct or condition of the parents renders them
unable to properly care for the child and that the
conduct or condition is unlikely to change in the
foreseeable future, it may terminate the parental
rights of the parents."
Clear
and
convincing
evidence,
"'when
weighed
against
evidence
in opposition, will produce in the mind of the trier of fact
a firm conviction as to each essential element of the claim
and a high probability as to the correctness of the
conclusion.'" L.M. v. D.D.F., 840 So. 2d 171, 179 (Ala. Civ.
App. 2002) (quoting § 6–11–20(b)(4), Ala. Code 1975).
B.M. argues that the State has not met its burden under
the
clear-and-convincing-evidence
standard
but
merely
emphasized her mental illness:
"DHR has
not
established
by
clear
and
convincing
evidence that there is no less drastic alternative
to [termination of parental rights] here. § [12-15-
319(a)], Ala. Code 1975. It is very clear that the
only issue preventing reunification of the mother
and [D.M.] is her mental illness. All of the service
providers indicated their main concern was the
mother's mental illness. Each of the service
providers stated that if mother stays on her
medication, they do not see a problem."
The record supports B.M.'s contention. There is no evidence
indicating that B.M. abused, neglected, mistreated, or
abandoned D.M. B.M. did not abuse alcohol or controlled
14
1140414
substances and did not maltreat D.M. B.M. was not
incarcerated, and she never injured D.M. or placed D.M. at
risk of serious bodily injury. Nor did D.M. suffer any
physical injuries resulting from B.M.'s conduct. B.M. was not
the cause of any physical harms visited upon her children,
including
D.M.
It
was
another
family
member
who
inappropriately
touched
B.M.'s
other
children,
and
this
sexual
predation occurred before D.M.'s birth and was reported by
B.M. The record contains no evidence that D.M. was a victim of
sexual molestation or abuse.
Nothing in the record supports the juvenile court's
finding that B.M. "believes she is Jesus." B.M. testified that
she saw images of Jesus when she heard voices. Asked what
Jesus looks like, B.M. responded: "He's kneeling down. He's
beige looking. He's got the mustache over his face. And he's
kneeling down on one knee and he's wiping my tears and telling
me it's okay, my child, I'm here." B.M. testified that Jesus
"pushes me forward and makes me think happy thoughts."
Barfield testified that B.M. saw Jesus and that Jesus spoke to
B.M., but Barfield did not testify that B.M. believes herself
15
1140414
to be Jesus. Instead, Barfield testified that B.M. had said
"she felt like Jesus had taken over her body."
The juvenile court's finding that B.M. is "in Mental
Health Court for a pending criminal charge" is also
questionable. The record indicates that B.M. had hired an
attorney and was cleared of any criminal charges, although her
case was referred to mental-health court. B.M. explained the
charges and why they had been cleared: "Somebody stole my ID
and used it and the Birmingham police came. But a sheriff came
to my house saying that Bessemer wanted me on two possessions
of controlled substance. One of the bonds was a signature, but
I still had a five thousand dollar bond. It wasn't me. It was
somebody else using my identity."
Furthermore, the juvenile court's claim that there
"appears to be no mother and child bond" is contradicted by
the record. B.M. testified that her bond with D.M. was "very,
very strong." "He still remembers," she testified, "the song
I sung to him in the nursery." Asked what that song was, B.M.
responded: "Mommy loves you, mommy loves you, uh-huh, uh-huh,
uh-huh. I will be back for you. Mommy loves you."
16
1140414
Although Barfield testified that she believed there was
no bond between B.M. and D.M., she also claimed that B.M.
loved D.M. and that, in the approximately seven years that
D.M. was in JCDHR's custody, Barfield had observed only six
visits
between D.M. and B.M. Moreover, Barfield testified that
B.M. had been enjoying unsupervised visitation with D.M. for
more than three years and was continuing that unsupervised
visitation at the time of trial. Barfield admitted that B.M.
consistently visited D.M. and that JCDHR never terminated and
never had cause to terminate B.M.'s unsupervised visitation
with D.M.
B.M. sought treatment for her mental and physical health
and maintained employment, housing, and visitation with D.M.
B.M. was never violent toward D.M. She made efforts to adjust
her circumstances to meet D.M.'s needs. The foster-care and
adoption workers in this case expressed concerns about B.M.'s
ability to raise her children but did not state without
qualification that she was incapable of raising her children,
i.e., of discharging her parental duties. Even Barfield, who
believed B.M.'s parental rights should be terminated,
testified that her assessment would be different "if it was
17
1140414
[sic] some stability with [B.M.]'s mental health and if she
was compliant with her medication and [D.M.]'s." The guardian
ad litem likewise expressed reservations about terminating
B.M.'s parental rights. These mixed assessments hardly give
rise to "a firm conviction as to each essential element of the
claim" or a "high probability as to the correctness of the
conclusion" that B.M.'s parental rights should be terminated.
L.M. v. D.D.F., 840 So. 2d at 719. Absent clear and convincing
evidence that B.M. could not discharge her duties as a parent,
the State did not meet its burden of proving that a
termination of parental rights would "'protect the welfare of
[D.M.] by providing stability and continuity in [his life],
and at the same time ... protect the rights of [B.M.].'"
Beasley, 564 So. 2d at 952 (quoting § 26-18-2, Ala. Code 1975
(now repealed)). Furthermore, the juvenile court did not
properly consider whether the termination of B.M.'s parental
rights was in D.M.'s best interest.
"The prima facie right of a natural parent to the custody
of his or her child ... is grounded in the common law concept
that this primary parental right of custody is in the best
interest and welfare of the child as a matter of law." Ex
18
1140414
parte Mathews, 428 So. 2d 58, 59 (Ala. 1983). "There is a
presumption that the child's best interest will be served by
placing it in the custody of the natural parents." In re
Hickman, 489 So. 2d 601, 602 (Ala. Civ. App. 1986). Pointing
to B.M.'s mental health, JCDHR argues that it overcame this
presumption. JCDHR highlights B.M.'s struggle with psychosis
and bipolar manic depression and her tendency to hear voices.
The juvenile court accorded these factors great weight,
stating:
"Although [B.M.] loves [D.M.], this Court finds that
[D.M.] cannot be safe with [B.M.] due to [B.M.'s]
mental
illness.
[B.M.]
is
unable
to
remain
consistently on her medications and continues to
have hallucinations. She cannot remain safe herself.
She is unable to parent [D.M.]."
Evidence in the record, however, refutes those findings. For
example, B.M. was prescribed medications for her mental
illness and testified that she has taken those medications
consistently. She testified that she discontinued some
medications on her doctor's orders. She was discharged from
the hospital after receiving treatment for
mental illness. She
has seen therapists for her condition, which condition is, she
testified, inconvenient only to the extent that it causes her
to forget where she placed her house keys or shoes. She
19
1140414
acknowledged that she has a problem with mental health and
admitted that she hears voices, but she does not feel
threatened by the voices, which, she claimed, have never
instructed her to do bad things. When asked what the voices
say to her, she responded: "Good things. Tell me it's okay,
stop crying, everything going to be all right, and I always
see a picture of Jesus." B.M. has never held suicidal thoughts
and has never attempted to harm herself or her children.1
B.M.'s only physical altercation was with a neighbor who
attempted to steal a necklace from D.M.
The present case is analogous to S.M.M. v. R.S.M., 83 So.
3d 572 (Ala. Civ. App. 2011), in which the Court of Civil
Appeals reversed an order of the Etowah Juvenile Court
terminating a mother's parental rights because "the father
presented no evidence indicating that the mother's supervised
visits had endangered the child physically or emotionally."
S.M.M., 83 So. 3d at 574. The mother in S.M.M. used drugs, had
committed a theft, and had been incarcerated from June 2009
Asked whether she ever had suicidal thoughts, B.M. said,
1
"No." Asked whether she had ever attempted suicide, B.M. said,
"No, ma'am. Not that I can be aware of, no, ma'am. I never
wanted to hurt myself."
20
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through July 2010. B.M. has done nothing of the sort and is
thus entitled to the same relief afforded the mother in S.M.M.
"Although the evidence," both here and in S.M.M., "indicates
that the mother suffers from mental-health conditions, no
evidence was offered to suggest that she posed a physical
threat to the child or that the mother's treatment and
medication were insufficient to address her mental-health
conditions." S.M.M., 83 So. 3d at 577. This is important
because
the "purpose of the statute authorizing termination
of
parental rights is to protect children from harm emanating
from an adverse parental relationship." S.M.M., 83 So. 3d at
573 (citing Ex parte A.S., 73 So. 3d 1223 (Ala. 2011)).
The record here suggests that the juvenile court was
equally, if not more, concerned about D.M.'s bad behavior than
it was about B.M.'s ability to parent. In effect, the juvenile
court reversed the determinant roles of parent and child,
finding that B.M. was unfit to enjoy parental rights, not
because of her own violence or indiscretion but because of
D.M.'s capacity for mischief. The juvenile court found
specifically that D.M. had kicked B.M. in the face and that
B.M. generally was unable to control D.M. Yet D.M. was never
21
1140414
threatened or unsafe in B.M.'s care. Nor did B.M. jeopardize
D.M.'s physical well being or bodily integrity. It does not
take an expansive imagination to envision the potential
problems and absurdities that might arise if courts were to
begin
disproportionately
basing
their
termination-of-parental-
rights decisions on the behavior of children rather than on
the behavior of parents.
This Court "'has consistently held that the existence of
current conditions or
conduct
relating to a parent's inability
or unwillingness to care for his or her children is implicit
in the requirement that termination of parental rights be
based on clear and convincing evidence.'" Ex parte T.V., 971
So. 2d 1, 5 (Ala. 2007)(quoting D.O. v. Calhoun Cnty. Dep't of
Human Res., 859 So. 2d 439, 444 (Ala. Crim. App. 2003)). B.M.
has struggled throughout her life, but she has taken steps to
improve the quality of her health and her relationship with
D.M. She may struggle with mental-health issues, but the
evidence suggests that her mental-health problems are
alleviated by medication.
B.M. may not be a model parent --
nor D.M. a model child -- but the State may not easily or
without due cause sever the natural ties between a parent and
22
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a child. The law does not require parental perfection. "Only
in the most egregious of circumstances" is a child's best
interest served by the termination of parental rights.
Beasley, 564 So. 2d at 952.
"A finding of dependency alone will not allow a trial
court to terminate a parent's rights to his or her child; the
trial court also must find by clear and convincing evidence
that there are no viable alternatives to the termination of
parental rights." T.V., 971 So. at 7. Although the juvenile
court declared in its order terminating B.M.'s
parental
rights
that "there is no viable alternative to termination of
parental rights in this case," including no suitable relative
resources willing or able to receive custody of the child, "it
is not clear from the record what possible viable alternatives
might have been found." T.V., 971 So. 2d at 7. "The record as
it currently stands ... does not demonstrate that the trial
court examined all the viable alternatives to the termination
of [B.M.'s] parental rights." T.V., 971 So. 2d at 8. The
juvenile court's "conclusion that there are no viable
alternatives to terminating [B.M.'s] parental rights is not
23
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supported by clear and convincing evidence" and is thus due to
be reversed. T.V., 971 So. 2d at 10.
III. Conclusion
The evidence in this case "does not rise to the level of
being so clear and convincing as to support termination of the
parental rights of the mother, such action being the last and
most extreme disposition permitted by statute." A.M. v. St.
Clair Cnty. Dep't of Human Res., 146 So. 3d 425, 435 (Ala.
Civ. App. 2013). "The termination of parental rights is an
extreme matter and is not to be considered lightly." S.K. v.
State Dep't of Human Res., 993 So. 2d 15, 24 (Ala. Civ. App.
2008). "Because the record does not contain evidence that a
fact-finder reasonably could find to clearly and convincingly
establish that [B.M.'s] current conduct or condition renders
her unable to properly care for [D.M.]," I would reverse the
Court of Civil Appeals' judgment and remand the case with
instructions for that court to reverse and remand to the
juvenile court for further proceedings. M.G. v. Etowah Cnty.
Dep't of Human Res., 26 So. 3d 436, 444 (Ala. Civ. App. 2009).
Therefore, I dissent from quashing the writ.
24 | August 28, 2015 |
f51a3216-0060-47e8-bfbf-f48e44b1538b | Branch Banking & Trust Company v. Nichols | N/A | 1130631 | Alabama | Alabama Supreme Court | Rel: 4/24/15
Modified on denial of reh'g: 7/10/15
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, 2014-2015
____________________
1130631
____________________
Branch Banking & Trust Company et al.
v.
Rex A. Nichols and Claudene Nichols
Appeal from Baldwin Circuit Court
(CV-10-900411)
BRYAN, Justice.
Branch Banking & Trust Company ("BB&T"), Rusty Winfree,
and Todd Fullington (hereinafter collectively referred to as
"the appellants") appeal a judgment entered by the Baldwin
Circuit Court in favor of Rex A. Nichols ("Sonny") and
Claudene
Nichols
("Claudene")
on
the
Nicholses'
claims
against
1130631
the appellants and on BB&T's counterclaim against the
Nicholses. We reverse the circuit court's judgment and remand
the cause to the circuit court for further proceedings.
Facts and Procedural History
In late 2005, Sonny began talking to Winfree about
obtaining
financing
from
Colonial
Bank
("Colonial"),
Winfree's
employer, for the purchase of approximately 500 acres of real
property in Stapleton, Alabama ("the Stapleton property").
The Nicholses intended to develop the Stapleton property into
a subdivision. Both Sonny and Claudene had worked in the
real-estate market in Baldwin County for several years before
the events underlying this action. The Nicholses had a long-
standing relationship with Colonial and had worked with
Winfree on prior loans for real-estate-development projects.
Sonny testified that he and Winfree were "business friendly"
and that he treated Winfree like a confidant and trusted him
to be honest with him.
In December 2005, Sonny wrote Winfree a letter describing
a development opportunity for the Stapleton property and
requesting financing through Colonial for purchasing the
Stapleton property. The letter did not set forth the
2
1130631
requested terms for the proposed financing, but Sonny
testified that he had been talking to Winfree about
structuring the loan as a "carried-interest" loan, the terms
of which were to be similar to those Colonial had given the
Nicholses when financing a prior development project ("the
Sehoy project"). The Nicholses describe the loan for the
Sehoy project as follows:
"The loan to acquire and develop Sehoy was known as
a 'carried interest loan,' on which interest accrues
and is added to the principal balance of the loan.
'Development costs,' the money for constructing the
streets and connected structures, are part of the
loan balance. The bank is repaid by receiving 80-90
percent of the proceeds from lot sales."
The Nicholses' brief, at 7.1
Around February 6, 2006, Sonny contacted Winfree and
asked whether the requested financing for the Stapleton
property had been approved. Sonny indicated that he needed to
know whether the loan had been approved so that he could send
$214,000 in earnest money as a down payment to purchase from
Blue Sky Timber Properties, LLC ("Blue Sky"), 362 acres of the
Stapleton property owned by Blue Sky. Sonny testified that
The appellants note that "[t]he testimony concerning
1
terms such as 'carried interest' was admitted over objection.
Even if true, [the appellants] submit that such evidence would
not be material." Appellants' brief, at 10 n.5.
3
1130631
Winfree told him that the loan had been approved and that he
could send the earnest money, which, Sonny states, was
nonrefundable. Sonny paid the earnest money for the purchase
of the 362 acres from Blue Sky. On February 13, Winfree
informed Sonny that Colonial had not yet approved the loan for
the Stapleton property, which included the 362 acres.2
In mid-February 2006, the Nicholses met with Winfree and
Fullington, who was Winfree's supervisor at Colonial, to
discuss the financing for the Stapleton property. Laura
Hotard Scott, who worked as Sonny's executive assistant on
development projects, also attended the meeting. Sonny
testified that, at the meeting, Fullington apologized to the
Nicholses, stating that Colonial could not make a carried-
interest loan for the Stapleton property at that time but
that, if the Nicholses would pay the interest on the loan for
the first two years, Colonial would "put the interest from
that property onto the development loan," i.e., it would carry
The appellants argue that, although Sonny says that the
2
$214,000 earnest money was nonrefundable, the Nicholses'
contract with Blue Sky was not effective until signed by Blue
Sky, which, the appellants argue, did not occur until February
21. The Nicholses were informed on February 13 that the loan
had not been approved. Thus, the appellants argue, the
Nicholses had time to get their earnest money back from Blue
Sky.
4
1130631
the interest on the loan going forward. Scott also testified
that Fullington promised the Nicholses, if they would "do the
initial purchase of the land and pay the interest for two
years, that after that two-year period, [Colonial] would ...
rework the loan with the interest and the development costs to
proceed with the project." Fullington testified that he did
not remember making that promise.
On February 27, 2006, the Nicholses executed a loan
agreement with Colonial, in which Colonial agreed to lend the
Nicholses, "upon the terms and subject to the conditions
herein set forth, a loan in the principal amount up to but not
exceeding the sum of $2,734,515.00," which was to be "used by
[the Nicholses] for business purposes only to purchase the
[Stapleton] property." The loan agreement went on to provide
that the loan would be "evidenced by and subject to the terms
of a promissory note of even date herewith in a form
satisfactory to [Colonial], executed by [the Nicholses], and
any renewals, modifications or extensions thereof" and would
be secured by, among other things, a mortgage on the Stapleton
property. The promissory note and mortgage were also executed
on February 27, 2006.
5
1130631
Section 8.02 of the loan agreement provided, in pertinent
part:
"All covenants, agreements, representations and
warranties made herein or in connection herewith
shall survive the execution and delivery hereof and
shall continue in full force and effect so long as
the Loan or other Liabilities, indebtedness or other
obligations to [Colonial] are outstanding and
unpaid, and each representation and warranty shall
be deemed to have been reaffirmed at the time each
advance is made hereunder."
Section 8.09 of the loan agreement provided, among other
things:
"[The loan] agreement, together with the Note and
the other Loan Documents, constitutes and embodies
the entire agreement and understanding between the
parties,
supersedes
all
prior
agreements,
representations and understandings related to the
subject matter hereof or thereof, and may not be
modified or amended except by a written agreement
executed by the [Nicholses] and [Colonial]. No oral
promise, agreement, representation or statement made
by [Colonial] may be relied upon, or create any
liabilities of [Colonial] and shall not be binding
or have any effect whatsoever unless reduced to
writing and executed by [Colonial]."
The promissory note provided, in pertinent part:
"[The Nicholses] ... HEREBY PROMISE TO PAY, to the
order of Colonial Bank, N.A. or its assigns ..., to
such account or place as the holder hereof may
designate in writing, the principal sum of TWO
MILLION SEVEN HUNDRED THIRTY FOUR THOUSAND FIVE
HUNDRED FIFTEEN and NO/100 UNITED STATES DOLLARS (US
$2,734,515.00) or such lesser amount as shall be
outstanding at maturity, together with interest on
6
1130631
the outstanding principal amount of this Note from
the date hereof until such principal has been paid
in full, at a variable rate per annum equal to the
30-day LIBOR Index plus 2.25 percent to be adjusted
with a floor of 6.86%. [The Nicholses] shall pay
interest monthly on the 27th day of each month
commencing March 27, 2006 and the 27th day of each
month thereafter. The outstanding principal amount
under this Note, together with all unpaid interest
and any other costs outstanding pursuant to the Loan
Documents shall be due and payable on February 27,
2008 (the 'Maturity Date')."
Using the loan funds, Sonny purchased the Stapleton
property, and the Nicholses began paying interest on the loan,
in accordance with the terms of the loan documents. Sonny
testified that in late 2007, as the maturity date on the note
approached, he began contacting Colonial regarding renewing
the loan; he further testified that, around the same time,
Winfree became slow to communicate with him. Sonny also
testified that before the February 27, 2008, maturity date on
the promissory note, he spoke to Fullington about renewing the
loan, with Colonial carrying the interest going forward. The
February 27 maturity date passed without any change being made
to the terms of the loan.
On March 11, 2008, the Nicholses were notified that
Colonial would not carry the interest on the loan or provide
additional funds for development of the property. On March
[substituted p.7]
1130631
18, 2008, the Nicholses signed the first of several 90-day-
extension agreements, in which they promised to continue
paying interest pursuant to the terms of the original loan
documents in exchange for extending the maturity date on the
note. Sonny testified that, at the time he signed the loan-
extension agreements, he was in severe financial distress
because of Colonial's failure to carry the interest on the
loan.
On September 18, 2008, the Nicholses entered into another
90-day-extension agreement for repayment of the loan. The
September 18 extension included both 'release' and 'covenant
not to sue' provisions. The release provision of the
September 18 extension provided, in pertinent part:
"In
consideration
of
the
agreements
of
[Colonial] contained herein and for other good and
valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, [the Nicholses] ...
hereby absolutely, unconditionally and irrevocably
release[],
remise[]
and
forever
discharge[]
[Colonial], and its successors and assigns, ...
([Colonial] and all such other Persons being
hereinafter
referred
to
collectively
as
the
'Releasees' and individually as a 'Releasee'), of
and from all demands, actions, causes of action,
suits,
covenants,
contracts,
controversies,
agreements, promises, sums of money, accounts,
bills, reckonings, damages and any and all other
claims, counterclaims, defenses, rights of set-off,
demands and liabilities whatsoever ... of every name
8
1130631
and
nature,
known
or
unknown,
suspected
or
unsuspected, both at law and in equity, which [the
Nicholses] ... may now or hereafter own, hold, have
or claim to have against the Releasees or any of
them for, upon, or by reason of any circumstances,
action, cause or thing whatsoever which arose or has
arisen at any time on or prior to the day and date
of this Agreement, including, without limitation,
for or on account of, or in relation to, or in any
way in connection with the Premises, ... the
purchase thereof, the originator of any loan related
to the Premises, ... the Loan Documents or this
Agreement or transactions thereunder or related
therein."
Sonny argues that in late 2008 and early 2009 he made
proposals to Colonial on how the Nicholses might reduce the
loan balance. He also testified that he continued to discuss
development
of
the
Stapleton
property
with
Colonial
throughout
2008 and that Colonial's officers expressed concerns about
whether a market existed for the planned development on the
property. Sonny testified that he talked to Fullington about
selling five-acre parcels on the Stapleton property. Sonny
testified that Fullington said, "Show me there's a market,"
which, Sonny testified, he understood to mean that, if Sonny
could show Colonial that a market existed for five-acre
parcels, Colonial would
lend the Nicholses additional money to
develop the Stapleton property to serve that market.
Fullington testified, however, that he made no promise to
9
1130631
Sonny on behalf of Colonial that if Sonny could demonstrate
that a market existed for five-acre parcels on the Stapleton
property, Colonial would lend the Nicholses additional money
to develop that property.
On June 5, 2009, the Nicholses and Colonial executed a
"First Amendment to Loan and Security Agreement," in which
Colonial agreed to extend the maturity date on the note for
one year in exchange for a principal-reduction payment of
$135,000 from the Nicholses. The parties renewed the
promissory note with a new maturity date of June 5, 2010.
Aside from a few specific additions unrelated to our analysis
here, the other terms of the loan agreement and other loan
documents remained in effect. Sonny again testified that the
Nicholses executed the amended loan agreement because
Colonial's failure to renew the loan to the carry the interest
had put them in a distressed financial condition.
Between June 10, 2009, and June 23, 2009, Sonny and his
son obtained sales contracts for eight parcels of the
Stapleton property, but Sonny testified that, when he showed
those contracts to Fullington and asked Colonial to release
the lots from the mortgage securing the promissory note on the
10
1130631
property, Fullington insisted that Sonny provide him with
closing dates for those sales, not merely sales contracts.
Sonny testified that he and Fullington reached an agreement
that, as a condition to releasing the parcels from the
mortgage, Colonial would receive 80% of the proceeds from the
sale of parcels on the Stapleton property. Fullington
testified that he agreed to ask Colonial about releasing the
parcels for 80% of the sales proceeds but that Colonial did
not immediately agree to that arrangement. Sonny testified
that, after his meeting with Fullington, he spent $55,000 to
have a plat created for the Stapleton property so that he
would be able to close the sales.
Colonial failed, and on August 14, 2009, the FDIC assumed
control of its assets and liabilities. The FDIC sold many of
Colonial's assets and liabilities to BB&T, including the
Nicholses' loan. Fullington was hired by BB&T; Winfree was
not. In October 2009, Fullington informed Sonny that BB&T
would release lots from the mortgage in exchange for 90% of
the sale proceeds. Sonny testified that because of the delay
in getting the lots released from the mortgage, Sonny was
11
1130631
successful in closing only four of the sales for which he had
initially obtained contracts.
In early November 2009, BB&T informed the Nicholses that
it would not lend them additional funds to develop the
property. Sonny testified that this was the first time he had
been informed that no development loan would be forthcoming.
The Nicholses stopped making interest payments on the loan in
November 2009. On March 10, 2010, the Nicholses sued the
appellants and fictitiously named defendants, alleging fraud,
reformation, negligence, wantonness, and breach of fiduciary
duty against all appellants. Against BB&T, the Nicholses also
alleged a claim of unjust enrichment and sought damages on a
theory of promissory estoppel. The appellants separately
moved the circuit court to dismiss the complaint pursuant to
Rule 12(b)(6), Ala. R. Civ. P., alleging that the Nicholses
had failed to state a claim upon which relief could be
granted. BB&T also filed a counterclaim, alleging that the
Nicholses had defaulted on their obligations under the June 5,
2009, promissory note and seeking damages related to that
default. The appellants also moved to strike the Nicholses'
demand for a jury trial on the basis that the Nicholses had
12
1130631
waived their right to a jury trial in the promissory note.
The circuit court denied the motions to dismiss the complaint
but granted the motion to strike the request for a jury trial.
In July 2012, the Nicholses amended their complaint to
add a claim alleging breach of contract against BB&T and to
request a judgment declaring the parties' obligations to each
other in light of BB&T's counterclaim. The appellants moved
the circuit court for a summary judgment, alleging, among
other things, that the Nicholses' claims were barred by the
Statute of Frauds. The circuit court denied that motion. The
appellants moved the circuit court to strike the first amended
complaint, and the circuit court denied the motion. BB&T
filed a supplemental motion for a partial summary judgment,
alleging that the Nicholses' breach-of-contract claim, which
had been added in the amended complaint, was barred by the
Statute of Frauds, which motion was also denied.
The circuit court held a trial on three separate days
between October 2012 and September 2013. At the close of the
Nicholses' evidence and again at the close of the appellants'
evidence, the appellants moved for a judgment on partial
findings, pursuant to Rule 52, Ala. R. Civ. P. Those motions
13
1130631
were denied. On November 5, 2013, the circuit court entered
a judgment in favor of the Nicholses on their claims against
the appellants, awarding them $642,000 against Winfree and
$11,554,754.84 against Fullington and BB&T.
The
circuit
court
also found in favor of the Nicholses on BB&T's counterclaim
against them. The circuit court did not provide in its
judgment any findings of fact or conclusions of law, noting
that no such findings or conclusions had been requested by the
parties. Costs were taxed to the appellants.
The appellants filed a motion to alter, amend, or vacate
the circuit court's judgment and moved the circuit court to
make specific findings of fact and to itemize the damages. On
November 25, 2013, the appellants also moved for a stay of the
judgment and a supersedeas bond. The stay and the bond were
granted. The motion to alter, amend, or vacate was denied by
operation of law.
Issues
The appellants allege several grounds as reasons for
which, they argue, the circuit court erred in entering a
judgment in favor of the Nicholses. Specifically, they argue
that the Nicholses' claims are precluded under the Statute of
14
1130631
Frauds, that the circuit court erred by allowing parol
evidence of the alleged oral promises that contradicted the
written loan documents, and that the circuit court erred "by
permitting the Nichols[es] to rely upon oral statements which
were
not
sufficiently
definite
to
be
enforceable."
Appellants' brief, at 4.
The appellants also argue that the Nicholses' recovery is
barred pursuant to the legal doctrine set forth in D'Oench,
Dume & Co. v. FDIC, 315 U.S. 447 (1842), and the applicable
statute of limitations and that the circuit court erred by
failing to find that any reliance by the Nicholses on the
alleged oral promises by the appellants was unreasonable as a
matter of law. The appellants also argue that the circuit
court erred by failing to enforce the release provisions in
the loan documents.
The appellants also argue that the circuit court erred
"in admitting the testimony of expert witnesses who were not
disclosed timely, who were incompetent to testify, or who were
permitted to testify on matters of law" and by allowing the
Nicholses to amend their complaint more than two years after
initiating the action without seeking leave of the court or
15
1130631
otherwise showing good cause. Appellants' brief, at 6-7.
Finally, BB&T argues that the circuit court erred in denying
its counterclaim against the Nicholses.
Standard of Review
"Because the trial court heard ore tenus
evidence during the bench trial, the ore tenus
standard of review applies. 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)).
"'....'
"... 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).
Under the ore tenus standard, questions of law are
reviewed de novo, see R&G, LLC v. RCH IV WB, LLC, 122 So. 3d
1253, 1256 (Ala. 2013) ("We review questions of law de
novo."), and, "'when a trial court makes no specific findings
of fact, "this Court will assume that the trial judge made
those findings
necessary
to
support
the
judgment."'"
16
1130631
Merchants Bank v. Head, [Ms. 1121142, May 30, 2014] ___ So. 3d
___, ___ (Ala. 2014) (quoting New Props., L.L.C. v. Stewart,
905 So. 2d 797, 799 (Ala. 2004), quoting in turn Transamerica
Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d 375,
378 (Ala. 1992)).
Analysis
The appellants first argue that the circuit court erred
in entering a judgment in favor of the Nicholses because
"[t]he Alabama Statute of Frauds bars all of the Nichols[es]'
claims as a matter of law." Appellants' brief, at 25.
Alabama's Statute of Frauds provides:
"In
the
following cases,
every
agreement is
void
unless such agreement or some note or memorandum
thereof expressing the consideration is in writing
and subscribed by the party to be charged therewith
or some other person by him thereunto lawfully
authorized in writing:
"....
"(7) Every agreement or commitment to
lend money, delay or forebear repayment
thereof or to modify the provisions of such
an agreement or commitment except for
consumer loans with a principal amount
financed less than $25,000 ...."
§ 8-9-2, Ala. Code 1975.
17
1130631
The Nicholses' breach-of-contract claim against BB&T is
based on Fullington's alleged promises that Colonial would
carry the interest on the loan after the initial two-year term
and would lend the Nicholses additional money for development
of the Stapleton property. No party disputes that such
agreements are subject to the Statute of Frauds. The parties
disagree, however, as to whether the existing agreements
satisfy the requirement in § 8-9-2 that the agreements to
carry interest on the loan and to lend additional money be
memorialized in writing.
The appellants argue that there are no written documents
memorializing the alleged promises to carry the interest on
the loan or to lend the Nicholses additional money to fund
development of the Stapleton property. The Nicholses argue,
in contrast, that § 8.02 of the loan agreement provides for
the "survival" of "agreements ... made ... in connection" with
the initial loan and that the mortgage contemplates the
assumption of additional debt that would be secured by the
property subject to the mortgage. The Nicholses also cite
"memoranda signed by [Colonial]" that, they argue, "reflect
18
1130631
the essential terms of the agreement and the consideration."
The Nicholses' brief, at 37. The Nicholses argue:
"The [memoranda] indicate that the loan will be
repaid from 'future development' of the land.
Moreover, according to these memoranda, Sonny will
'hold the property for a period of at least two
years before development.' The memoranda describe
a 'maturity' date for the loan in two years, but
other parts show that payment is not expected at
that time. The documents show that the source of
repayment is 'future development,' not to occur for
at least two years."
The Nicholses' brief, at 38.
Citing Truck Rentals of Alabama, Inc. v. M.O. Carroll-
Newton Co., 623 So. 2d 1106 (Ala. 1993), and City of
Greenville v. Greenville Waterworks Co., 125 Ala. 625, 27 So.
764 (1900), the Nicholses argue that, in light of the loan
agreement, the mortgage, and the memoranda, the "[a]ppellants
are wrong to argue ... that there is no writing supporting any
oral promise claimed by the Nichols[es]." The Nicholses'
brief, at 38. However, the documents at issue in Truck
Rentals and City of Greenville contained more than just the
general language relied on by the Nicholses here. In Truck
Rentals, this Court stated:
"We agree that the documents taken together
suffice to meet the requirement of the Statute of
Frauds. The negotiated contract constitutes an
19
1130631
'agreement or some note or memorandum thereof
expressing the consideration ... in writing,' and
the invoices submitted by [Truck Rentals of Alabama
('TRA')]
to
M.O.
Carroll[-Newton
Co.
('M.O.
Carroll')], as well as TRA's endorsements of checks
submitted by M.O. Carroll, are sufficient under
these circumstances to meet the requirement of the
Statute of Frauds that the writing be 'subscribed by
the party to be charged therewith.'"
623 So. 2d at 1112. In City of Greenville, we noted that an
ordinance passed by Greenville's city council, which set out
the terms of the agreement sought to be enforced in that case,
was sufficient to comply with the Statute of Frauds.
In contrast to Truck Rentals and City of Greenville, none
of the documents cited by the Nicholses here includes any
mention of carried interest on the loan or provides for an
additional development loan for the Stapleton property. The
general statements in the memoranda that repayment was
anticipated through future development does not constitute an
agreement to lend additional funds to enable
that development.
Contrary to the Nicholses' arguments, the alleged oral
agreements to modify the loan after the initial two-year term
so that the loan would carry interest going forward and to
lend additional funds for development of the Stapleton
property are not supported by writings sufficient to satisfy
20
1130631
the Statute of Frauds. See DeFriece v. McCorquodale, 998 So.
2d 465, 471 (Ala. 2008) ("[T]hese deeds contain no language
that would indicate the Ernest Jr. and Nell actually made the
misrepresentations they are accused of making; rather
they are
standard
deeds
conveying
and
partitioning
property.
'Although
a writing relied on to satisfy the Statute of Frauds need not
be a complete contract, it must contain the essential terms of
the alleged contract, "namely, an offer and an acceptance,
consideration, and mutual assent to the essential terms of the
agreement."'" (quoting Fausak's Tire Ctr., Inc. v. Blanchard,
959 So. 2d 1132, 1138 (Ala. Civ. App. 2006), quoting in turn
Davis v. Barnfield, 833 So. 2d 58, 62 (Ala. Civ. App. 2002))).
Therefore, the Nicholses' breach-of-contract claim based on
those alleged agreements is barred under the Statute of
Frauds.
The Nicholses have also alleged several tort claims
against the appellants. Specifically, they argue
that Winfree
and Fullington made fraudulent representations to the
Nicholses to induce them to enter into the loan agreement and
that BB&T was unjustly enriched by the interest and fees it
collected on the loan after the first two years, when it
21
1130631
refused to carry interest on the loan going forward. They
also argue that the appellants negligently and/or wantonly
breached duties of ordinary care and good faith and breached
fiduciary duties owed to the Nicholses in negotiating and
making the loan because they made representations that they
knew or should have known would induce the Nicholses to
"commit substantial funds and enter into long term financial
obligations based upon their representations and agreements,"
and that resulted in the Nicholses becoming "obligated on a
loan under terms to which [they] never agreed." The Nicholses
also argued that appellants negligently breached their duties
of ordinary care and good faith by failing to lend them
additional funds to enable development of the Stapleton
property and sale of the subdivision lots.3
This Court has stated:
"As a general rule, '[i]f the proof of a promise
or contract, void under the statute of frauds, is
essential to maintain the action, there may be no
recovery.' Pacurib v. Villacruz, 183 Misc. 2d 850,
861, 705 N.Y.S. 2d 819, 827 (N.Y. Civ. Ct. 1999)
(emphasis added); see also Dwight v. Tobin, 947 F.2d
455, 460 (11th Cir. 1991); McDabco, Inc. v. Chet
Adams Co., 548 F. Supp. 456, 458 (D.S.C. 1982) (it
is a 'well accepted doctrine that one cannot
circumvent the Statute of Frauds by bringing an
Apparently the claim seeking reformation was abandoned.
3
22
1130631
action in tort, when the tort action is based
primarily on the unenforceable contract'); Weakly v.
East, 900 S.W.2d 755 (Tex. Ct. App. 1995). This is
so, because, '[i]f a plaintiff was allowed to
recover the benefit of a bargain already barred by
the statute of frauds, the statute of frauds would
become
meaningless.'
Sonnichsen
v.
Baylor
University, 47 S.W.3d 122, 127 (Tex. Ct. App. 2001).
'Thus, the statute of frauds bars a [tort] claim
when a plaintiff claims as damages the benefit of
the bargain that he would have obtained had the
promise been performed.' Id. (emphasis added)."
Holman v. Childersburg Bancorporation, Inc., 852 So. 2d 691,
699 (Ala. 2002).
The Court in Holman went on to state:
"In accord with the general rule, we hold that
where, as here, an element of a tort claim turns on
the existence of an alleged agreement that cannot,
consistent with the Statute of Frauds, be proved to
support a breach-of-contract claim, the Statute of
Frauds also bars proof of that agreement to support
the tort claim. Were the rule otherwise, the
Statute of Frauds could be effectively avoided by
the simple wording of the complaint."
Holman, 852 So. 2d at 701. The Court went on to conclude that
the Holmans' various tort claims failed as a matter of law
because they all "turn[ed] on proof of an alleged oral
promise" that was precluded by the Statute of Frauds. 852 So.
2d at 702.
Like the tort claims in Holman, the Nicholses' tort
claims all turn on proof of alleged representations or
23
1130631
promises that are invalid under the Statute of Frauds –-
namely, that Colonial would modify the loan after the initial
two-year term so that Colonial would carry the interest going
forward and that Colonial would lend additional funds for
development of the Stapleton property. Because those tort
claims "turn[] on the existence of ... alleged agreement[s]
that cannot, consistent with the Statute of Frauds, be proved
to support a breach-of-contract claim, the Statute of Frauds
also bars proof of [those] agreement[s] to support the tort
claim[s]." Holman, 852 So. 2d at 701. Thus, the Nicholses'
tort claims also fail as a matter of law.
The Nicholses have also claimed damages under a theory of
promissory estoppel, alleging that BB&T is estopped from
"denying its obligations and not fulfilling its promises to
fund the loan to develop the property" and from denying the
Nicholses reimbursement "for the damage occasioned by [their]
reliance on the promises made and the misrepresentations and
wrongful acts of [Colonial]." This Court has stated:
"The
purpose
of
equitable
estoppel
and
promissory estoppel is to promote equity and justice
in an individual case by preventing a party from
asserting rights under a general technical rule of
law when his own conduct renders the assertion of
such rights contrary to equity and good conscience.
24
1130631
First National Bank of Opp v. Boles, 231 Ala. 473,
479, 165 So. 586, 592 (1936).
"....
"Except for the nature of the conduct on which
the estoppel is based, the elements of equitable and
promissory estoppel are essentially the same.
"Promissory
estoppel
is
defined
in
Bush
v.
Bush,
278 Ala. 244, 245, 177 So. 2d 568, 578 (1964):
"'"A promise which the promisor should
reasonably expect to induce action or
forbearance of a definite and substantial
character on the part of the promisee and
which
does
induce
such
action
or
forbearance is binding if injustice can be
avoided
only
by
enforcement
of
the
promise." Restatement of the Law of
Contracts, § 90, page 110.'
"....
"The basic elements of equitable estoppel are
stated in Dobbs, Remedies § 2.3 (1973):
"'An estoppel ... has three important
elements. The actor, who usually must have
knowledge of the true facts, communicates
something in a misleading way, either by
words, conduct or silence. The other
relies upon that communication. And the
other would be harmed materially if the
actor is later permitted to assert any
claim
inconsistent
with
his
earlier
conduct.'"
25
1130631
Mazer v. Jackson Ins. Agency, 340 So. 2d 770, 772-73 (Ala.
1976).4
The appellants argue that the Nicholses cannot recover on
a promissory-estoppel theory because "promissory estoppel
[cannot] be used to enforce an oral agreement that [is] void
under the Statute of Frauds." Appellants' brief, at 41. We
agree. This Court has stated:
"[T]o the extent ... the defendants rely on the
doctrine of promissory ... estoppel, their argument
is foreclosed by the implications of Darby [v.
Johnson, 477 So. 2d 322 (Ala. 1985),] and the clear
holdings of our other cases. See, e.g., Hurst v.
Thomas, 265 Ala. 398, [402,] 91 So. 2d 692[, 695]
(1956) [('It is well-settled in Alabama that "an
executory agreement which is void under the statute
of frauds cannot be made effectual by estoppel
merely because it has been acted on by the promisee,
and has not been performed by the promisor."')].
Although
allowing
a
plaintiff's
reliance
on
nonfraudulent
representations
to
abrogate
the
Statute of Frauds is a widespread phenomenon, ...
Alabama has rejected this approach to date, and the
plaintiffs make no compelling arguments based on
statutory construction or public policy inviting our
reconsideration of this position."
The appellants argue that the Nicholses did not allege
4
equitable estoppel until their posttrial brief and that they
"have no right to raise such a defense for the first time
after trial." Appellants' brief, at 43. However, the
appellants have not cited any authority in support of this
argument. See discussion, infra.
26
1130631
Durham v. Harbin, 530 So. 2d 208, 213 (Ala. 1988). Pursuant
to our decisions in Durham and Hurst v. Thomas, 265 Ala. 398,
91 So. 2d 692 (1956), the Nicholses' reliance on Winfree's and
Fullington's
alleged
"representations,
promises,
and
agreements" that Colonial would modify the loan after the
initial two years to carry the interest going forward and
would lend additional funds to develop the Stapleton property
does not "abrogate the Statute of Frauds." Durham, 530 So. 2d
at 213. Therefore, the Nicholses' promissory-estoppel claim
fails as a matter of law.
The appellants also note that, "[i]n their post-trial
promissory estoppel argument, the Nichols[es] also discussed
equitable estoppel even though it was not pleaded."
Appellants' brief, at 43. The appellants argue that, to the
extent an equitable-estoppel claim was properly raised, it is
defeated by the Statute of Frauds. The Nicholses argue that,
although "equitable estoppel will not ... remedy the breach of
a contract," the Nicholses' brief, at 52, the doctrine of
equitable estoppel "provides the trial court necessary
authority to prevent abuse of the statute of frauds," id., at
27
1130631
53, and "applies here to preclude [the appellants] from
asserting the statute of frauds as a defense." Id., at 52.
However, the Nicholses' estoppel claim is based on their
allegations that
Fullington
represented
to
them
that
"[Colonial] would advance the funds necessary to
construct the
subdivision and [to] carry the interest for the next two (2)
years," that they accepted those representations, and that
they relied on those representations in paying interest under
the terms of the loan documents. The Nicholses also argue
that they relied on Fullington's alleged representation that
"if [the] Nichols[es] would 'show us there is a market ...
we'll advance the funds'" for development of the Stapleton
property. These allegations are in the nature of promissory,
rather than equitable, estoppel, see Mazer, supra, and, for
the reasons set forth previously, fail as a matter of law.
For the foregoing reasons, we hold that the circuit court
erred in entering a judgment in favor of the Nicholses on
their claims against the appellants. Our decision in this
regard pretermits consideration of the appellants' remaining
arguments.
28
1130631
The appellants also argue that the circuit court erred in
entering a judgment in favor of the Nicholses on BB&T's
counterclaim, in which BB&T alleged that the Nicholses had
defaulted on their obligations under the renewed promissory
note. The appellants argue on appeal that the Nicholses
"admit that they executed each loan document," appellants'
brief, at 59-60, and that "the note includes their promise to
repay [Colonial] the principal plus interest." Id., at 60.
The appellants also argue that Colonial's interest in the
renewed note was assigned to BB&T and that "[t]here was no
material dispute regarding the assignment or balance of the
[renewed] note." Id.
The Nicholses do not dispute the terms or validity of the
renewed note or that Colonial's interest in the renewed note
was assigned to BB&T. Instead, they argue that "BB&T should
not receive a money judgment on its promissory note when its
own conduct has prevented repayment in the
manner
contemplated
by the parties in the Loan Agreement" (i.e., development of
the Stapleton property) and that "given the additional
agreement made in connection with the 2006 Loan Agreement, to
carry interest after the first two years, any money that might
29
1130631
be owing in the future is not yet due." The Nicholses' brief,
at 72-73. However, the Nicholses have cited no authority in
support of their argument that BB&T is estopped from seeking
enforcement of the promissory note, and the argument that the
Nicholses' obligations under the note have not yet matured is
based on the alleged oral agreement to carry the interest
after the initial loan term, which agreement we have stated is
invalid under the Statute of Frauds.
Under the terms of the renewed note, the Nicholses were
obligated to make monthly interest payments until the note
matured on June 5, 2010, at which time "all outstanding
principal, costs, and any accrued and unpaid interest [would]
be due and payable in full." The renewed note also provided
that "[f]ailure by the [Nicholses] to pay this Note on demand,
or if no demand, at Maturity or a failure by the [Nicholses]
to pay any installment payment required to be paid by this
Note when due" constituted default under the renewed note. It
is undisputed that the Nicholses stopped making interest
payments in November 2009 and that the Nicholses did not pay
the note in full by the June 5, 2010, maturity date.
Therefore, the Nicholses are in default on the promissory
30
1130631
note, and the circuit court erred in entering a judgment in
the Nicholses' favor on BB&T's counterclaim.
Conclusion
For the foregoing reasons, we hold that the circuit court
erred in entering a judgment in favor of the Nicholses on
their claims against the appellants and on
BB&T's
counterclaim
against them. The judgment is, therefore, reversed and the
cause is remanded with instructions to the circuit court to
enter a judgment in favor of the appellants on the Nicholses'
claims against them and in favor of BB&T on its counterclaim
against the Nicholses and to determine the damages to be
awarded on the counterclaim.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, C.J., and Bolin, Parker, and Murdock, JJ., concur.
Main, J., recuses himself.
31 | July 10, 2015 |
174ffe88-2a79-4743-b359-ffab11aa2a72 | Ex parte T. G. | N/A | 1140122 | Alabama | Alabama Supreme Court | REL:04/17/2015
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, 2014-2015
_________________________
1140122
_________________________
Ex parte T.G.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: T.G.
v.
State of Alabama)
(Jefferson Juvenile Court, JU-14-75.01;
Court of Criminal Appeals, CR-13-1068)
SHAW, Justice.
WRIT DENIED. NO OPINION.
Stuart, Parker, Murdock, Main, Wise, and Bryan, JJ.,
concur.
Bolin and Shaw, JJ., concur specially.
Moore, C.J., dissents.
1140122
SHAW, Justice (concurring specially).
I concur to deny the petition. The petitioner, T.G., who
is represented by counsel, challenges whether a patdown for
weapons, which resulted in the seizure of contraband, was
permissible. Under Terry v. Ohio, 392 U.S. 1 (1968), a law-
1
enforcement officer, for his or her own protection and safety,
may conduct a patdown to find weapons he or she reasonably
believes or suspects are then in the possession of a person
subject to an investigatory stop. Ybarra v. Illinois, 444
U.S. 85, 93 (1979). Further, "[t]he Court recognized in Terry
that the policeman making a reasonable investigatory stop
should not be denied the opportunity to protect himself from
attack by a hostile suspect." Adams v. Williams, 407 U.S.
143, 146 (1972).
Officers stopped the vehicle T.G. was driving for
committing a traffic violation. The stop occurred in a high
crime area at night. The person seated next to T.G. had an
outstanding warrant for her arrest. The Supreme Court of the
United States has recognized that "[t]raffic stops ... are
'especially fraught with danger to police officers.'"
Arizona
The facts of this case are stated in the Chief Justice's
1
dissent, and I see no need to repeat them.
2
1140122
v. Johnson, 555 U.S. 323, 324 (2009) (quoting Michigan v.
Long, 463 U.S. 1032, 1047 (1983)). T.G.'s presence in a high
crime area, the surrounding darkness, and T.G.'s proximity to
and confederation with someone who had an outstanding warrant2
are all circumstances that allowed the officer to believe
"that the persons with whom he [was] dealing may be armed and
presently dangerous" and thus entitled him "for the
protection
of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault
him." Terry, 392 U.S. at 30. Under the totality of the
circumstances, the officer was justified in conducting the
patdown search for weapons. To hold that it is impermissible
to frisk for weapons under these facts would create a
dangerous legal precedent and, more importantly, would create
a dangerous environment for all law-enforcement officers.
The Court of Criminal Appeals in its unpublished
memorandum, T.G. v. State (No. CR-13-1068, Sept. 26, 2014),
I see nothing in the record justifying an attempt to
2
minimize the nature of the warrant for the passenger; even
T.G. states in his petition that there is no information in
the record regarding the basis for that warrant. Further, it
is unclear whether the officers believed that the warrant was
issued by the City of Birmingham or whether the warrant simply
originated from that city.
3
1140122
___ So. 3d ___ (Ala. Crim. App. 2014) (table), noted that T.G.
challenged only the justification for the patdown; he did not
challenge the further search of the cigarette box containing
a controlled substance discovered by the officer during the
patdown. In his certiorari petition, T.G. again does not
challenge the search of the cigarette box even though the
Court of Criminal Appeals pointed out the issue; it is his
prerogative to decline to do so. Further, it is a well
settled principle that an appellate court will consider only
the issues raised by the parties "and will not search out
errors which have not been properly preserved or assigned."
Ex parte Riley, 464 So. 2d 92, 94 (Ala. 1985). In our
adversarial system, "we should rely on the parties to raise
issues they believe worthy of review." Ex parte Conner, [Ms.
1130650, Sept. 26, 2014] ___ So. 3d ___, ___ (Ala. 2014)
(Shaw, J., concurring specially). If T.G. does not believe
that
the
search
of
the
cigarette
box
violated
his
constitutional rights and was, as the Chief Justice
characterizes it, like those conducted by "'authoritarian
governments,'" then I believe that we should address only the
arguments he actually presents. ___ So. 3d at ___ (Moore,
C.J., dissenting) (quoting Ex parte Warren, 783 So. 2d 86, 96
4
1140122
(Ala. 2000) (Johnstone, J., concurring specially)). Criminal
3
cases routinely involve searches and seizures by law
enforcement; I do not believe that it is advisable or
practicable to perform a plain-error review in all such cases.
Bolin, J., concurs.
I am not viewing T.G.'s challenge "narrowly"; I am
3
viewing it as actually stated in his petition. Whether a
search of a container discovered during a patdown was legal
involves an analysis completely different--"separable"--from
an analysis of the issue whether the frisk was justifiable in
the first place. The petition cites no authority for and
undertakes no analysis as to this narrower issue.
5
1140122
MOORE, Chief Justice (dissenting).
In my estimation, the frisk of petitioner T.G. in this
case very likely violated the Fourth Amendment to the United
States Constitution. I would therefore grant his petition for
a writ of certiorari to review the unpublished memorandum of
the Court of Criminal Appeals affirming his conviction. State
v. T.G. (No. CR-13-1068, Sept. 26, 2014), ___ So. 3d ___ (Ala.
Crim. App. 2014) (table).
Background
In January 2014, two Birmingham police officers,
patrolling a "high crime area," pulled over a car for failing
to yield the right-of-way. T.G., the 17-year-old driver,
produced a driver's license, as did the two passengers. On
checking the licenses, the officers discovered that the
female
passenger had an active warrant with the City of Birmingham.
The officers ordered all the passengers out of the car and
frisked the two male passengers. According to the unpublished
memorandum issued by the Court of Criminal Appeals, Officer
Josh Phillips, when patting down T.G., "discovered
a
cigarette
box in the top of his jacket and one in his pocket." Officer
Phillips opened the cigarette boxes and in one of them found
6
1140122
pills that were later determined to be a Schedule IV
controlled substance.
During the criminal proceedings, T.G. filed a motion to
suppress the pills on the basis that the initial patdown was
illegal.
At
the
suppression
hearing,
Officer
Demarcus
Blanding
stated that T.G. had done nothing to prompt the frisk.
Verified Statement of Facts, at 2. Reserving the right to
appeal the denial of his motion to suppress, T.G. pleaded true
to a delinquency petition. The trial court sentenced T.G. to
probation. The Court of Criminal Appeals affirmed. T.G. now
seeks certiorari review, arguing that the frisk of his person
violated the Fourth Amendment.
Discussion
I believe T.G. has stated a sufficient conflict with
precedent to warrant review of the constitutionality of the
frisk at its inception. To stop a citizen and perform a frisk
for weapons on less than probable cause that a crime has been
committed, a police officer must have reasonable suspicion
that the suspect is armed and dangerous. Terry v. Ohio, 392
U.S. 1, 24, 27 (1968). Reasonable suspicion
requires
"specific
and
articulable
facts,"
not
a
mere
"inchoate
and
unparticularized suspicion or 'hunch.'" Terry, 392 U.S. at
21,
7
1140122
27. "The 'narrow scope' of the Terry exception does not permit
a frisk for weapons on less than reasonable belief or
suspicion directed at the person to be frisked ...." Ybarra v.
Illinois, 444 U.S. 85, 94 (1979) (emphasis added).
Nonetheless, even if I were to concede that the frisk was
constitutional at its inception, the opening of the cigarette
boxes discovered during the frisk violated the Fourth
Amendment by exceeding the permissible scope of a Terry-stop
search for weapons. The Court of Criminal Appeals, however,
noted that T.G. had not presented this specific sub-issue for
review and thus had waived it: "T.G. challenges only the
justification for the initial patdown; he does not challenge
Officer Phillips's further search of the cigarette box
recovered from T.G.'s person, and we do not address it."
Although "it is this Court's practice not to address issues
not presented on appeal," Travelers Indem. Co. of Connecticut
v. Miller, 86 So. 3d 338, 347 (Ala. 2011), I believe that the
search of the cigarette boxes is a subsidiary issue fairly
included within the issue T.G. raised regarding the legality
of the search of his person under the Terry exception to the
Fourth Amendment. Once the patdown revealed no weapons, the
justification for the Terry search dissipated, rendering
8
1140122
illegal any further search of T.G.'s person without probable
cause of criminal activity.
I would not view T.G.'s challenge to the search of his
person under a Terry rationale so narrowly as to exclude from
its ambit the continuation of that search once the rationale
for it no longer existed. The requirement that a police
officer must have reasonable suspicion to initiate a Terry
search is inseparable from the parallel requirement that the
search must cease once that suspicion is determined to be
groundless. The search was one event, and T.G., in my view, by
challenging the
constitutionality
of
the search,
has
reasonably brought before the appellate courts for review not
only the initiation of the search but also its continuation.
T.G. was adjudicated delinquent for possessing pills, the
discovery of which was outside the scope of a permissible
frisk of his person. A patdown search for weapons for the
purpose of "neutraliz[ing] the threat of physical harm,"
Terry, 392 U.S. at 24, "must ... be confined in scope to an
intrusion
reasonably
designed
to
discover
guns,
knives,
clubs,
or other hidden instruments for the assault of the police
officer." 392 U.S. at 29. Because a Terry stop is "a carefully
limited search of the outer clothing ... in an attempt to
9
1140122
discover weapons which might be used to assault" the officer,
id. at 30, that search is "not justified by any need to
prevent the disappearance or destruction of evidence of
crime." Id. at 29. "Nothing in Terry can be understood to
allow ... any search whatever for anything but weapons."
Ybarra, 444 U.S. at 93-94. See Adams v. Williams, 407 U.S.
143, 146 (1972) (noting that "[t]he purpose of this limited
search is not to discover evidence of crime").
Once the absence of weapons has been confirmed, a further
search of the person in the absence of probable cause of
criminal activity violates the Fourth Amendment. In Minnesota
v. Dickerson, 508 U.S. 366 (1993), the Court held that
contraband incidentally detected during "a protective patdown
search," id. at 368, may be seized only if the "contour or
mass" of the object "makes its identity
immediately
apparent."
Id. at 375. This "plain-feel" doctrine does not permit the
officer to continue to manipulate or to examine the object to
determine its illegal character once the officer is assured
that it is not a potential weapon. Otherwise the "'strictly
circumscribed'" search for weapons allowed under Terry,
Dickerson, 508 U.S. at 378 (quoting Terry, 392 U.S. at 26),
could be converted into "'the equivalent of a general warrant
10
1140122
to rummage and seize at will.'" Dickerson, 508 U.S. at 378
(quoting Texas v Brown, 460 U.S. 730, 748 (1983) (Stevens, J.,
concurring in the judgment)).
In Ex parte Warren, 783 So. 2d 86 (Ala. 2000), this Court
applied Dickerson to exclude from evidence a plastic box an
officer detected during a patdown search for weapons. Upon
removing the plastic box from Warren's pocket, the officer
identified it as a Tic Tac brand breath-mint container. The
officer opened the box and discovered small rocks of crack
cocaine. Warren, 783 So. 2d at 88. This Court framed the legal
question as follows: "Can an officer's tactile perception of
an object such as a Tic Tac box, a matchbox, a pill bottle, or
a film canister give the officer probable cause to believe,
before seizing it, that the object is contraband?" 783 So. 2d
at 91. In other words, does the mere tactile perception of a
container automatically create probable cause to seize the
object as contraband under the "plain-feel" doctrine?
After surveying cases from other jurisdictions, this
Court held "that if the object detected by the officer's touch
during a Terry search is a hard-shell, closed container, then
the incriminating nature of any contents of that container
cannot be immediately apparent to the officer until he seizes
11
1140122
it and opens it." 783 So. 2d at 94. Consequently, "the officer
cannot satisfy the Dickerson requirement that the
officer
have
probable cause to believe, before seizing it, that the object
is contraband." Id. The leading treatise agrees: "If during
a lawful pat-down an officer feels an object that obviously is
not a weapon, further 'patting' of it is not permissible." 4
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 9.6(b) (5th ed. 2012).
Other states apply Dickerson as this Court did in Warren.
See Harford v. State, 816 So. 2d 789, 792 & n.2 (Fla. Dist.
Ct. App. 2002) (holding that a police officer who removed a
Newport brand cigarette box from a person in the course of a
patdown for weapons was not justified in opening the box for
further examination of the contents); Barfield v. State, 776
N.E.2d 404, 407 (Ind. Ct. App. 2004) (holding that a police
officer's action in removing a Marlboro brand cigarette box
from a person stopped for a traffic infraction and looking
inside the box -- in the absence of an immediate perception
that it was a weapon or contraband -- "was a search that
'exceeded the permissible bounds of a legitimate patdown'"
(quoting Johnson v. State, 710 N.E.2d 925, 930 (Ind. Ct. App.
1999))); Commonwealth v. Jones, 217 S.W.3d 190, 197 (Ky. 2006)
12
1140122
(holding that it was error to remove a pill bottle detected
during a patdown search for weapons, because "the criminal
nature of the item ... was not readily apparent until the item
was moved or manipulated by the officer"); State v. Lagarde,
778 So. 2d 585, 585 (La. 2001) (holding that the search of a
"cigarette pack ... leading to the discovery of a crack-pipe,
exceeded the permissible scope of the pat-down frisk
sanctioned by" Terry); and Commonwealth v. Stewart, 469 Mass.
257, 261, 13 N.E.3d 981, 986 (2014) (holding that "reasonable
suspicion alone was not sufficient to allow [a police officer]
lawfully to open [a] hard cigarette box, where there was
nothing to suggest that a weapon was inside").
Officer Phillips's action in removing and opening the
cigarette boxes he detected during his patdown of T.G. seems
to contradict the holding of Warren. I would therefore grant
T.G.'s petition for a writ of certiorari and order
supplemental briefing on the application of Warren to the
record facts of this case. As Justice Johnstone noted in his
special concurrence in Warren:
"Allowing searches beyond constitutional limits
would solve or detect some more crimes, as a number
of authoritarian governments around the world have
proved. Allowing searches beyond constitutional
limits, however, would convert the authorities
themselves from the solution into the problem, as
13
1140122
the same authoritarian governments have likewise
proved.
"The founders of our country opted for the
balance of limited government, which has become a
blessing to our citizens and a tradition revered at
home
and
famous
abroad.
Limited
government
necessarily entails some limits on the government."
783 So. 2d at 96.4
Conclusion
For the above reasons, I respectfully dissent from the
denial of T.G.'s petition for a writ of certiorari.
Justice Shaw's special concurrence argues, contrary to
4
the above analysis, that the legality of the search of the
cigarette box is a separate and distinct issue from the
legality of the patdown. Should T.G. decide that his counsel
was at fault in not expressly raising the cigarette-box issue
as a stand-alone legal argument, T.G. may potentially seek
relief under Rule 32.2(d), Ala. R. Crim. P.
14 | April 17, 2015 |
687f2369-9d2b-4a29-9e05-a95c42290d25 | Ex parte Jackie Burton. | N/A | 1140135 | Alabama | Alabama Supreme Court | Rel: 6/26/15
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, 2014-2015
____________________
1140135
____________________
Ex parte Jackie Burton
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jackie Burton
v.
State of Alabama)
(Jefferson Circuit Court, Bessemer Division, CC-05-51 and
CC-05-51.62;
Court of Criminal Appeals, CR-12-1807)
BRYAN, Justice.
WRIT QUASHED. NO OPINION.
1140135
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise,
JJ., concur.
Moore, C.J., dissents.
2
1140135
MOORE, Chief Justice (dissenting).
Because I believe the petitioner, Jackie Burton, was
entitled to withdraw his guilty plea, I dissent from quashing
the writ of certiorari previously issued by this Court.
Charged with reckless murder for a fatality resulting
from an automobile accident, Burton, who was driving under the
influence, pleaded guilty to reckless manslaughter, a Class B
felony with a sentencing range of 2 to 20 years. When the
judge sentenced him to 20 years' imprisonment, Burton wrote
the court a letter that stated: "I believe I wasn't given a
fair trial because there was certain things that wasn't
brought up in my behalf .... I feel I need to appeal my
sente[n]cing and I need another court-appointed lawyer."
Burton did not file a direct appeal but subsequently filed a
Rule 32, Ala. R. Crim. P., petition challenging his guilty-
plea conviction. The trial court denied Burton's Rule 32
petition, and he appealed that denial to the Court of Criminal
Appeals.
The letter Burton wrote the court, as the judge presiding
at Burton's Rule 32 hearing on remand noted, merely requested
1
The Court of Criminal Appeals remanded the case by order
1
for the trial court to conduct a hearing to address Burton's
3
1140135
counsel to appeal. Having pleaded guilty without
reserving any
issues for appeal, however, Burton had forfeited his right to
appeal. See Rule 14.4(a)(1)(viii), Ala. R. Crim. P. Faced with
this conundrum,
the original sentencing judge decided
to
treat
Burton's letter as a motion to withdraw his guilty plea, thus
avoiding having to tell him he had no right to appeal. That
2
decision, accompanied by a summary order denying the
withdrawal motion, set in motion the train of events
underlying this petition.
In 2013, six years after the denial of his motion to
withdraw his guilty plea and after the original sentencing
judge had left office, Burton, represented by counsel, filed
a Rule 32 petition seeking relief from his conviction and
sentence based on the lack of counsel during the "critical
stage" of the court's consideration of his motion to withdraw
his guilty plea. An accused is entitled to counsel at
"critical stages" of a proceeding, United States v. Wade, 388
U.S. 218, 227 (1967), and the withdrawal of a guilty plea is
allegation that he was entitled to counsel on his motion to
withdraw his guilty plea, discussed infra.
An appeal does lie from the denial of a motion to
2
withdraw a guilty plea. Rule 26.9(b)(4), Ala. R. Crim. P.
4
1140135
such a stage. The presence of counsel or a valid waiver of the
right to counsel in proceedings involving a motion to withdraw
a guilty plea is a constitutional requirement. Berry v. State,
630 So. 2d 127 (Ala. Crim. App. 1993). The absence of either
counsel or a waiver of the right to counsel invalidates the
proceedings on the motion to withdraw and is a jurisdictional
error that may be raised at any time. See Frost v. State, 141
So. 3d 1103, 1106 (Ala. Crim. App. 2012); Ex parte Pritchett,
117 So. 3d 356 (Ala. 2012).
On Burton's appeal from the denial of his Rule 32
petition, the Court of Criminal Appeals, by order, remanded
the case for a hearing on the absence-of-counsel issue. On
remand, the trial judge vacated the order denying Burton's
motion to withdraw his guilty plea and held a new hearing on
the issue of the withdrawal of his guilty plea; at that
hearing Burton was represented by counsel. The trial court
denied Burton's motion to withdraw his guilty plea, and the
Court
of
Criminal
Appeals,
by
unpublished
memorandum,
affirmed
its denial on return to remand. Burton v. State (CR-12-1807,
Sept. 26, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)
(table). This Court granted Burton's petition for a writ of
5
1140135
certiorari to determine whether the absence of a transcript of
the
original
guilty-plea
hearing
requires
reversal.
Verzone
v.
State, 841 So. 2d 312 (Ala. Crim. App. 2002). The issues
before this Court, therefore, relate to whether
error
occurred
in the original guilty-plea hearing that would require
vacating Burton's guilty plea and allowing him to enter
another plea or go to trial.
The Hearing on Remand
Before accepting a guilty plea, the court must engage in
a colloquy to make sure that the defendant understands certain
facts. Rule 14.4(a), Ala. R. Crim. P. At the hearing on
remand, counsel for Burton asked him about the colloquy that
occurred when Burton entered his guilty plea:
"Q. When you pled guilty -- let's go over Rule 14.4,
once you pled guilty to manslaughter, did Judge
Petelos [tell] you what you pled guilty -- you were
pleading to mans1aughter?
"A . Yes, ma'am.
"....
"Q. Did Judge Petelos [tell] you the elements that
the State would have to prove?
"A. Yes, ma'am.
"Q. Did she tell you the minimum and the maximum of
the sentence?
6
1140135
"A. Yes, ma'am.
"Q. Did she tell you that you had the right to plead
not guilty?
"A. Yes, ma'am.
"Q. Did she tell you that if you plead guilty, there
would be no jury trial?
"A. Yes, ma'am.
"Q. Did she tell you that if you plead guilty, you
have no right to appeal unless you reserve the right
-- you reserve some issue?
"A. No, ma'am, she never did say that.
"....
"Q. When you were sentenced, did Judge Petelos ask
you if you had anything to say on your beha1f?
"A. On my behalf, no, ma'am.
"Q. What did she say?
"A. If I had anything to say to the family.
"Q. To the victim?
"A. To the victim's family."
(Emphasis added.)
The first four questions, to which Burton responded
affirmatively, correspond to Rule 14.4(a)(1)(i), (ii), (iv),
and (vi), Ala. R. Crim. P. The fifth question corresponds to
Rule 14.4(a)(1)(viii). Burton answered that he was not
7
1140135
informed that he would have no right to appeal unless he
reserved a particular issue for appeal. That Burton wrote to
Judge Petelos requesting to appeal his sentence is evidence
indicating that he was not aware of this consequence of his
plea. Finally, Burton indicated that he was not given the
opportunity personally to address the court on his behalf
before sentencing. Rule 26.9(b), Ala. R. Crim. P., states: "In
pronouncing sentence, the court shall: (1) Afford the
defendant an opportunity to make a statement in his or her own
behalf before imposing sentence."
Burton's attorney argued to the trial court, in part, as
follows:
"Rule 14.4 is very clear. It says that the Court
shall not accept a guilty plea unless certain things
are done. It's not that the court 'should' or
'would.' It's the court 'shall,' and we itemized
certain things, and Judge Petelos should have told
my client that if he pled guilty, then there would
be no right to appeal unless he reserved some
certain issue for appeal. It was never explained
that to him.
"Also, at the sentencing part, which is Rule
26.9, it says, 'The court shall --' not should or
would '-- also afford the defendant an opportunity
to make a statement in his or her own behalf,' which
never did also. So, Judge, I'm asking that my client
be allowed to withdraw his guilty plea ...."
8
1140135
In denying Burton's motion to withdraw his guilty plea,
the trial court on remand relied on two documents Burton had
signed: A statement of satisfaction with his attorney's
services and an explanation-of-rights form. The court stated:
"I think these documents are conclusive that the plea
agreement reached in this case was voluntarily and knowingly,
so that the motion to withdraw the guilty plea is denied."3
On Return to Remand
In his brief to the Court of Criminal Appeals on return
to remand, Burton stated: "The judgment of the Court is due to
be reversed since the Court did not comply with Rule 14.4 and
Rule 26.9." In particular, "[t]he Court did not comply with
Rule
14.4(a)[(1)](viii)"
in
that
the
original
sentencing
judge
did not explain the loss of the right to appeal or with Rule
26.9 in that Burton was not afforded an opportunity to make a
statement. In its unpublished memorandum on return to remand,
the Court of Criminal Appeals did not address the Rule
14.4(a)(1)(viii)
issue.
Referring
to
Burton's
testimony
in
the
hearing on remand, the Court of Criminal Appeals incorrectly
That the forms manifest assent is not sufficient. The
3
trial court must conduct "a personal colloquy" with the
defendant to assure that the defendant understands each item
in the form. Rule 14.4(d), Ala. R. Crim. P.
9
1140135
said: "He also stated that he was informed by the judge of all
of his rights under Rule 14.4 ...." Neither did the Court of
Criminal Appeals address the Rule 26.9 right of allocution.
Burton's
"Additional
Statement
of
Facts"
in
his
application for rehearing on return to remand in the Court of
Criminal Appeals included the transcript portions of his
testimony quoted above. Burton specifically quoted the
sections that reflected his testimony about the lack of a
colloquy explaining the loss of his right to appeal and the
lack of an opportunity to address the court on his behalf
before sentencing. In his petition for a writ of certiorari to
this Court, Burton included a verified and verbatim copy of
that "Additional Statement of Facts." Thus, Burton's trial
court testimony on remand on the right to appeal (Rule
14.4(a)(1)(viii)) and the right to an allocution (Rule
26.9(b)) was properly before us when we granted certiorari
review on the transcript issue. Rule 39(d)(5), Ala. R. App. P.
In his petition for a writ of certiorari, Burton argued that
a transcript of the original guilty-plea hearing was
especially necessary because the original sentencing judge
10
1140135
"did not comply with Rule 14.4, or allow [Burton] to speak on
his own behalf pursuant to Rule 26.9(b)."
Before this Court
After we issued the writ, Burton waived an opening brief,
Rule 39(g)(1), Ala. R. App. P., and then replied to the
State's brief. In its brief, the State argued that Verzone v.
State, supra, should be overruled because it stated an
apparent "bright line rule of automatic reversal when there is
no reporter's transcript." State's brief, at 27. In his reply
brief, Burton argued that he had not contended at trial or on
appeal for automatic reversal when the transcript of the
guilty-plea hearing was unavailable. Instead, he had argued
that review of his allegations that he was not told about the
loss of his right to appeal and that he was not permitted to
make a statement on his own behalf could not occur without a
transcript
of
the
guilty-plea
colloquy.
Verzone,
he
explained,
held that the absence of the transcript required reversal only
when the transcript was necessary for the appellate court to
review the identified error. This reading of Verzone is
correct. In Verzone the Court of Criminal Appeals reversed the
trial court's judgment because it could not
"adequately
review
11
1140135
the appellant's arguments without a transcript of the guilty
plea colloquy." 841 So. 2d at 314 n.1. The Court of Criminal
Appeals further stated: "Without a transcript of the guilty
plea colloquy, if the trial court conducted one, we cannot
determine whether the appellant preserved any of these
arguments ...." Id. at 314 (footnote omitted).
The State argues that Burton first raised the issue of
the absence of a transcript in his brief on return to remand
and did not cite Verzone until he filed his application for
rehearing on return to remand. Thus, the State says, his
argument on this point was untimely. However,
Burton
testified
in the hearing on remand that he had not been told in his
guilty-plea hearing that he would forfeit his right to appeal
nor was he allowed a right of allocution. His attorney argued
that these failings entitled him to a reversal of his
conviction and an opportunity to reenter a plea or go to
trial. Although the Court of Criminal Appeals did not address
these issues on return to remand, they were argued and
preserved and are properly before us. Review of these issues
necessarily implicates Verzone if their validity cannot be
12
1140135
determined without the transcript of the original guilty-plea
hearing.
As Burton states in his reply brief: "[T]he State fails
to recognize that Burton raised underlying claims which could
only be reviewed with a transcript." Burton's reply brief, at
13 (emphasis added). "Thus, in Verzone it was the errors
complained of by the appellant coupled with the lack of a
transcript with which to review said errors that prompted the
appellate court to reverse the conviction." Id. at 12
(emphasis added). Because the errors at issue are those
relating to the failure of the colloquy, the need of the
transcript is derivative of those errors and not itself an
independent basis for reversal that had to be raised in the
trial court.
Conclusion
Burton's actual claims of error have been preserved. A
correct reading of Verzone requires not automatic reversal,
but instead a fact-specific inquiry as to whether the claimed
errors can be reviewed without a transcript. The Court of
Criminal Appeals never addressed the two specific claims of
error Burton raised; it merely affirmed the trial court's
13
1140135
judgment that, even though the harsh sentence was unexpected,
Burton's guilty plea was knowing and voluntary. I would
reverse the judgment of the Court of Criminal Appeals and
remand for that court to determine whether Burton's two
specific preserved claims of error left unaddressed by that
court are reviewable without a transcript. If not, pursuant to
Verzone, Burton should be allowed to withdraw his guilty plea.
Accordingly, I dissent from quashing the writ of
certiorari.
14 | June 26, 2015 |
eca30550-43e4-4190-8e40-1ed2b33a1ae8 | American Bankers Insurance Company of Florida v. Uneeda Trammell | N/A | 1131514 | Alabama | Alabama Supreme Court | rel: 06/26/2015
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, 2014-2015
____________________
1131244
____________________
American Bankers Insurance Company of Florida
v.
Gladys Tellis
Appeal from Macon Circuit Court
(CV-14-900033)
____________________
1131245
____________________
American Bankers Insurance Company of Florida
v.
Sherry Bronson
Appeal from Macon Circuit Court
(CV-14-900025)
____________________
1131264
____________________
American Bankers Insurance Company of Florida
v.
Gwendolyn Moody
Appeal from Chambers Circuit Court
(CV-14-900022)
____________________
1131384
____________________
American Bankers Insurance Company of Florida
v.
Nadine Ivy
Appeal from Bullock Circuit Court
(CV-14-900015)
____________________
1131514
____________________
American Bankers Insurance Company of Florida
v.
Uneeda Trammell
Appeal from Chambers Circuit Court
(CV-14-900020)
1131244, 1131245, 1131264, 1131384, 1131514
STUART, Justice.
Gladys Tellis, Sherry Bronson, Gwendolyn Moody, Nadine
Ivy,
and
Uneeda
Trammell
(hereinafter
referred
to
collectively
as "the policyholders") initiated separate actions against
American Bankers Insurance Company of Florida ("American
Bankers"), asserting generally that American Bankers had sold
them homeowner's insurance policies providing a level of
coverage they could never receive, even in the event of a
total loss involving the covered property. American Bankers
thereafter moved the trial court hearing each action to compel
arbitration
pursuant
to
arbitration
provisions
it
alleged
were
part of the subject policies; however, the trial courts denied
those motions, and American Bankers now appeals. We
consolidated the five appeals for the purpose of writing one
opinion. We reverse and remand.
I.
The facts underlying each of these five consolidated
appeals are substantially identical. Sometime in 2012 or 2013
each of the policyholders renewed a homeowner's insurance
policy he or she had previously obtained from American
Bankers. Thereafter, each concluded that he or she was paying
3
1131244, 1131245, 1131264, 1131384, 1131514
excessive premiums inasmuch as the policies provided a level
of coverage that allegedly far exceeded the value of the
covered properties; in other words, the policyholders allege
that they were overinsured inasmuch as they could never
receive the policy limits even if the covered property was
declared a total loss. In February 2014, the policyholders
separately
sued
American
Bankers,
alleging
breach
of
contract,
several species of fraud, unjust enrichment, and negligence
and/or wantonness.
American Bankers thereafter moved the trial courts in
which these actions were filed –– the Bullock Circuit Court,
the Chambers Circuit Court, and the Macon Circuit Court –– to
compel arbitration pursuant to the following arbitration
provision it alleged was contained in the policyholders'
policies:
"Any and all claims, disputes, or controversies
of any nature whatsoever ... arising out of,
relating to, or in connection with (1) this policy
or certificate or any prior policy or certificate
issued by us to you ... shall be resolved by binding
arbitration before a single arbitrator. All
arbitrations shall be administered by the American
Arbitration Association ('AAA') in accordance with
its
Expedited
Procedures
of
the
Commercial
Arbitration Rules of the AAA in effect at the time
the claim is filed."
4
1131244, 1131245, 1131264, 1131384, 1131514
The policyholders opposed the motions to compel arbitration,
arguing that they had never consented to arbitrate their
claims, that they had not signed any documents containing an
arbitration provision, and that the arbitration provision in
the policies was unconscionable. The trial courts thereafter
denied
each
of
American
Bankers'
motions
to
compel
arbitration, and American Bankers separately appealed those
denials to this Court pursuant to Rule 4(d), Ala. R. App. P.
This Court consolidated the appeals based on the similarity of
the facts and the issues presented.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
5
1131244, 1131245, 1131264, 1131384, 1131514
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In order to answer the ultimate question in these cases
–– whether the trial courts erred in denying American Bankers'
motions to compel arbitration –– we must address three issues:
(1) whether the parties agreed to arbitrate the claims
asserted in the policyholders' complaints; (2) whether the
underlying transactions, i.e., the sale of the insurance
policies, affected interstate commerce; and (3) whether the
arbitration
provision
in
the
subject
policies
is
unconscionable. With regard to the first issue, American
Bankers submitted to the respective trial courts a copy of the
policy allegedly issued to each of the policyholders.
Included as part of those policies are basically two forms
referencing arbitration: form AJ9821EPC-0608 and form N1961-
0798. Form AJ9821EPC-0608 is entitled "Arbitration Provision
1
The policy issued to Moody, the plaintiff in appeal no.
1
1131264, included form AJ8654EXX-0604 instead of form
AJ9821EPC-0608; however, those two forms appear to be
6
1131244, 1131245, 1131264, 1131384, 1131514
Alabama" and contains a general arbitration provision,
part of
which is quoted above. Form N1961-0798 is entitled "Important
notice about the policy/certificate of insurance for
which
you
have applied" and explains generally what arbitration is and
states that the policy contains a binding arbitration
agreement pursuant to which the insured and the insurer waive
the right to trial in a court of law. Although form N1961-
0798 contains a signature line for the applicant, a co-
applicant, and a witness, it is undisputed that none of the
policyholders executed this form. The policyholders have
further executed affidavits swearing that they never received
or signed either form –– or any other document related to
their American Bankers' policies purporting to be an
arbitration provision –– when applying for insurance or at
anytime thereafter until the commencement of this litigation.
They further state that they never would have purchased
coverage from American Bankers had they been presented with
the arbitration provision American Bankers now seeks to
enforce.
identical in all material ways. For convenience, we
hereinafter include Moody's form in any reference to form
AJ9821EPC-0608.
7
1131244, 1131245, 1131264, 1131384, 1131514
American Bankers concedes that the policyholders never
signed
form
N1961-0798
or
separate
arbitration
agreements,
but
it argues that they nevertheless assented to the arbitration
provision in their policies. In support of its argument that
an arbitration provision in an insurance policy can be
effective even if not disclosed in the application and even
without the insured's signature, American Bankers cites
Southern United Fire Insurance Co. v. Howard, 775 So. 2d 156,
162-63 (Ala. 2000), which provides:
"[The plaintiff] argues that he did not assent
to the arbitration provision in the insurance policy
because the arbitration provision was not included
in the insurance application and because he did not
sign the insurance policy. First, a contractual
agreement to arbitrate may be found invalid only
'upon such grounds as exist at law or in equity for
the revocation of any contract.' 9 U.S.C. § 2. It
is not a requirement of Alabama contract law that
for a contract provision to be enforceable it must
have appeared also in the application to enter into
the contract. See Ex parte Foster, 758 So. 2d 516
(Ala. 1999). Thus, the arbitration provision need
not have appeared in the application for insurance
for the parties to be bound by it. Second, '[t]his
Court is required to compel arbitration if, under
"ordinary state-law principles that govern the
formation of contracts," the contract containing the
arbitration clause is enforceable.' Quality Truck
& Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167
(Ala. 1999). Alabama's general contract law permits
assent to be evidenced by means other than
signature, and, thus, the contract of insurance and
the arbitration provision contained in it can be
8
1131244, 1131245, 1131264, 1131384, 1131514
enforceable by the parties in the absence of
signatures, where the evidence establishes the
existence of the agreement. [The defendant insurance
company's] insurance policy is not subject to either
of Alabama's Statutes of Frauds, see Ala. Code §§
7–2–201 and 8–9–2, nor is it made contingent upon
the condition precedent that it be signed by [the
plaintiff]. [The plaintiff] accepted and acted upon
[the defendant's] insurance policy, which contained
the arbitration provision, by paying premiums,
renewing the policy, and submitting a claim under
the policy. Therefore, because [the plaintiff]
ratified the policy, the absence of his signature
does not render the policy, or the arbitration
provision contained in it, unenforceable."
(Footnote
omitted.)
American
Bankers
similarly
maintains
that
the policyholders have manifested their assent to arbitration
in these cases by accepting and acting upon the insurance
policies containing the arbitration provision.
Our caselaw supports American Bankers' position. Beyond
Howard, this Court has considered multiple other appeals in
which parties have sought to avoid arbitration provisions in
insurance
policies
by
claiming
that
the
arbitration
provisions
were not disclosed to them or that they never received a copy
of the policy containing the arbitration provision. In Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998), the plaintiffs
argued that they never agreed to arbitrate their claims
because their application for insurance did not mention
9
1131244, 1131245, 1131264, 1131384, 1131514
arbitration and because they did not sign the endorsement
attached to the policy that contained the arbitration clause.
This Court rejected those arguments, noting that "[m]any
parts
of an insurance policy are not mentioned in the application"
and
explaining further
that
the
unsigned
endorsement
containing the arbitration clause was part of the issued
policy because the policy expressly stated that "'[t]his
policy with any attached papers is the entire contract between
you and the [insurance] Company.'" 712 So. 2d at 335. See
also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000) ("Under
state-law
principles of
contract
interpretation,
parties
may
be
bound
by
documents
incorporated
by reference.").
It is unclear exactly what parts of the insurance policy
the
policyholders
acknowledge
receiving
in
this
case;
however,
they have stated in their affidavits only that they did not
receive the two identified forms specifically discussing
arbitration or any other document purporting to be an
arbitration agreement. Thus, they presumably received the
rest of the policy American Bankers submits was issued to
them, including the declarations page and the
written
insuring
10
1131244, 1131245, 1131264, 1131384, 1131514
agreement, which provides that "[t]his policy is not complete
without the declarations page." The declarations page lists
forms AJ9821EPC-0608 and N1961-0798 as part of the included
"forms and endorsements." Although the policyholders claim
2
not to have received forms AJ9821EPC-0608 and
N1961-0798,
they
had some duty to investigate the contents of those forms
because the declarations page indicated that the forms were
part of the policy. See, e.g., Alfa Life Ins. Co. v. Colza,
159 So. 3d 1240, 1249-50 (Ala. 2014) (noting that insurance
policyholders have a duty to read the documents provided them
and are charged with the knowledge such a reading would impute
to them), and McDougle v. Silvernell, 738 So. 2d 806, 808
(Ala. 1999) (stating that a party to a contract that fails to
inform himself or herself of extraneous facts or other
documents incorporated into the contract is nevertheless
"bound thereby" (quoting Ben Cheeseman Realty Co.
v.
Thompson,
216 Ala. 9, 12, 112 So. 151, 153 (1927))). We further note
that this Court has also enforced arbitration provisions in
The declarations page lists forms AJ9821EPC-0608 and
2
N1961-0798 as forms "AJ9821EPC 06/08" and "N1961 07/98,"
respectively. With regard to Moody, the declarations page in
her policy lists form AJ8654EXX-0604 as form "AJ8654EXX
06/04."
11
1131244, 1131245, 1131264, 1131384, 1131514
insurance policies where the plaintiffs claimed never to have
received the written policies containing the provisions.
See,
e.g., Ex parte Southern United Fire Ins. Co., 843 So. 2d 151,
156 (Ala. 2002) (enforcing an arbitration provision even
though it was claimed that "[the plaintiff] did not receive a
copy of either the policy or the arbitration rules referenced
in the policy"), and Philadelphia American Life Ins. Co. v.
Bender, 893 So. 2d 1104, 1109 (Ala. 2004) (enforcing an
arbitration provision in an insurance policy even though the
plaintiff "claims that he did not receive a copy of the
policy").
Finally, we note that this Court has, on other occasions,
considered similar cases involving financial agreements other
than insurance policies in which parties have challenged
arbitration
provisions
they
alleged
were
subsequently
added
to
the agreements without their express consent or knowledge. We
have uniformly recognized that a signature or express consent
is not required to give effect to the new arbitration
provisions; rather, we have held that the parties effectively
manifested their assent to the added provisions by continuing
the relationship after the arbitration provision was added.
12
1131244, 1131245, 1131264, 1131384, 1131514
We summarized some of these insurance and non-insurance cases
as follows in Providian National Bank v. Screws, 894 So. 2d
625, 627 (Ala. 2003):
"This
Court
has
previously
enforced
an
arbitration
provision
added
to
credit-card
agreements by amendment. See Ex parte Colquitt, 808
So. 2d 1018 (Ala. 2001). Further, this Court has
continually held that express assent is not required
in order for an arbitration provision to be
enforceable. SouthTrust Bank v. Williams, 775 So.
2d 184, 189 (Ala. 2000) (holding that an arbitration
provision added to a customer's account agreement by
notice was valid and enforceable); Woodmen of the
World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 367
(Ala. 1999) (holding that express assent to an
arbitration provision is not required when the
arbitration provision is added by amendment); Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998) (noting
that the inclusion of an arbitration provision is
not a material alteration to an insurance policy
requiring
a
signed
application);
Southern
Foodservice Mgmt., Inc. v. American Fid. Assurance
Co. 850 So. 2d 316 (Ala. 2002)(same)."
We note that, like the policyholders in these cases, the
plaintiffs in Ex parte Colquitt, 808 So. 2d 1018, 1021 n. 1
(Ala. 2001), and Woodmen of the World Life Insurance Society
v. Harris, 740 So. 2d 362, 366 n. 6 (Ala. 1999), claimed not
to have seen any notice that would have apprised them of the
fact that an arbitration provision was made part of their
agreements.
13
1131244, 1131245, 1131264, 1131384, 1131514
In sum, although the policyholders did not execute stand-
alone arbitration agreements or necessarily even read or
receive the insurance policies containing the arbitration
provisions, they have nevertheless manifested their assent to
those
policies
and,
necessarily,
the
arbitration
provisions
in
them, by accepting and acting upon the policies, inasmuch as
they all affirmatively renewed their policies and paid their
premiums, thus ratifying the policies. Howard, 775 So. 2d at
162-63. See also SouthTrust Bank v. Williams, 775 So. 2d 184,
189 (Ala. 2000) (stating that parties that "continued the
business
relationship
after
the
interposition
of
the
arbitration
provision"
"implicitly
assented
to
the
addition
of
the arbitration provision"). This holding is consistent with
our previous caselaw interpreting arbitration provisions in
insurance policies. Because the policyholders assented to,
3
We note that the policyholders have not asked us to
3
overrule Howard, Ex parte Rager, Ex parte Southern United,
Bender, or other cases in which this Court has reached similar
holdings. Indeed,
although
American Bankers discussed most of
these cases in the initial brief it filed with this Court, the
policyholders have not responded to American Bankers'
discussion of those cases or otherwise attempted to
distinguish the cases in their response brief, much less asked
us to overrule them. "Stare decisis commands, at a minimum,
a degree of respect from this Court that makes it disinclined
to overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
14
1131244, 1131245, 1131264, 1131384, 1131514
and are therefore subject to, the arbitration provision in
their insurance policies, we conclude that they agreed to
arbitrate the claims asserted in their complaints inasmuch as
those claims "aris[e] out of, relat[e] to, [and are]
connect[ed] with" those insurance policies.
Having established that the policyholders at least
ratified the insurance policies issued to them by American
Bankers and that those policies call for arbitration, we must
next address whether the sale of those policies affected
interstate commerce so as to require enforcement of the
policies' arbitration provision under the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The policyholders wisely do not
argue that American Bankers' sale of these insurance policies
does not affect interstate commerce; rather, they argue only
that American Bankers failed to put forth any evidence that
would establish that fact. See, e.g., Service Corp. Int'l v.
Fulmer, 883 So. 2d 621, 629 (Ala. 2003) (explaining that, in
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
inclined to abandon precedent without a specific
invitation
to
do so").
15
1131244, 1131245, 1131264, 1131384, 1131514
light of decisions of the Supreme Court of the United States,
"a trial court evaluating a contract connected to some
economic or commercial activity would rarely, if ever, refuse
to compel arbitration on the ground that the transactions
lacked 'involvement' in interstate commerce"), and Potts v.
Baptist Health Sys., Inc., 853 So. 2d 194, 199 (Ala. 2002)
("The burden of proof was on the [parties moving to compel
arbitration] to provide evidence demonstrating that [the
subject]
contract,
or
the
transaction
it
evidenced,
substantially affected interstate commerce.").
It appears that, in at least some of these consolidated
appeals, American Bankers made an additional evidentiary
submission intended to establish that the sale to certain of
the policyholders of these insurance policies affected
interstate commerce once it became apparent that the
policyholders would contest that issue; however, the trial
courts thereafter struck those submissions as being tardy.
Hence, the policyholders argue that American Bankers has
failed to put forth evidence that would satisfy the
interstate-commerce requirement. However, even without
considering those submissions, it is clear from the
undisputed
16
1131244, 1131245, 1131264, 1131384, 1131514
facts and the evidence in the record that these transactions
affected interstate commerce. As evidenced by the copies of
the insurance policies that are in the record in each case,
the policyholders are all Alabama residents and the subject of
each insurance policy is property located in Alabama. Those
same policies also indicate that American Bankers –– the full
corporate name is reflected on the policy as American Bankers
Insurance Company of Florida –– has a Florida address and that
the agent for each of the policies is shown as having either
a Florida or a Minnesota address. This diversity of
citizenship between the parties is sufficient to establish
that the transactions between them affected interstate
commerce. See, e.g., America's Home Place, Inc. v. Rampey,
[Ms. 1130150, October 24, 2014] ___ So. 3d ___ n. 2 (Ala.
2014) (indicating that the interstate-commerce requirement is
met when a contract showed on its face that the company
constructing a house in Alabama "listed its place of business
as being in 'Hall County, Gainesville, GA'"); DecisionQuest,
Inc. v. Hayes, 863 So. 2d 90, 95 (Ala. 2003) ("'"[A]ll
interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test,
17
1131244, 1131245, 1131264, 1131384, 1131514
of interstate commerce; and every negotiation, contract,
trade, and dealing between citizens of different states,
which
contemplates and causes such importation, whether it be of
good, person, or information, is a transaction of interstate
commerce."'" (quoting Uncle Ben's, Inc. v. Crowell, 482 F.
Supp. 1149, 1154 (E.D. Ark. 1980), quoting in turn Furst v.
Brewster, 282 U.S. 493, 497 (1931))); and Ex parte Dyess, 709
So. 2d 447, 450 (Ala. 1997) ("[T]he policy issued by American
Hardware [Insurance Group, Inc.,] to Jack Ingram Motors[,
Inc.,] involves interstate commerce because the policy was
between corporations of different states. Therefore, the
Federal Arbitration Act applies ....").4
Our final inquiry, therefore, is whether the arbitration
provision in the subject policies is unconscionable. In
We further note that the policyholders have filed
4
stipulations indicating that they are not seeking, and will
not accept, any award of damages that exceeds $74,999.99.
These stipulations were presumably filed in recognition
of
the
diversity
of
citizenship
that
exists
between
the
policyholders
and American Bankers and a desire to avoid the possibility of
the underlying cases being removed to federal court pursuant
to 28 U.S.C. § 1332 (granting federal district courts original
jurisdiction over all civil actions involving citizens of
different states where the value of the dispute exceeds
$75,000).
18
1131244, 1131245, 1131264, 1131384, 1131514
Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala.
2004), this Court stated:
"'[T]here is nothing inherently unfair or
oppressive about arbitration clauses,' Coleman v.
Prudential Bache Sec., Inc., 802 F.2d 1350, 1352
(11th Cir. 1986), and arbitration agreements are not
in themselves unconscionable, Ex parte McNaughton,
728 So. 2d 592, 597–98 (Ala. 1998). Instead,
unconscionability is an affirmative defense, and the
party asserting the defense bears the burden of
proof. Conseco Fin. v. Murphy, 841 So. 2d 1241,
1245 (Ala. 2002)."
In support of their argument that the arbitration provision in
their insurance policies is unconscionable, the policyholders
cite Anderson v. Ashby, 873 So. 2d 168 (Ala. 2003), for the
broad
proposition
that
an
arbitration
provision
is
unconscionable when the terms of the provision are grossly
favorable to a party that has overwhelming bargaining power,
but they otherwise rely entirely upon an August 2013 order
entered by an El Paso County, Texas, trial court finding a
certain arbitration provision before it to be unconscionable.
The arbitration provision in that case, Cardwell v.
Whataburger Restaurants, LLC, case no. 2013DCV0910, similarly
provided that arbitration would be administered by the
American Arbitration Association ("the AAA"); however, the El
Paso trial court declared the provision to be unconscionable
19
1131244, 1131245, 1131264, 1131384, 1131514
and refused to enforce it based on its belief that the fees
charged by the AAA were too high, regardless of whether they
were ultimately paid by the plaintiff or the defendant and
that the defendant was essentially trying to purchase a more
favorable forum for the dispute.
Of course, any precedential value of the El Paso County
court's judgment is limited to its interpretation of Texas
law. See, e.g., Pritchett v. State Farm Mut. Auto. Ins. Co.,
834 So. 2d 785, 794 (Ala. Civ. App. 2002) ("Any precedential
value of the Rhode Island Superior Court's judgment ... is
limited to its interpretation of Rhode Island law.").
However, even that limited precedential value evaporates if
the judgment is reversed on appeal, and, in fact, that is the
case with the El Paso court's judgment because, on October 24,
2014 –– well before briefs were submitted in these appeals ––
the Texas Court of Appeals reversed the El Paso trial court's
order based on "the trial court's clear failure to properly
analyze and apply the law of unconscionability." Whataburger
Rests. LLC v. Cardwell, 446 S.W.3d 897, 913 (Tex. App. 2014).
Moreover, to the extent the policyholders are arguing
that the arbitration provision is unconscionable because of
20
1131244, 1131245, 1131264, 1131384, 1131514
the financial burden arbitration would
impose upon them,
their
argument is not supported by the evidence in the record and,
in many respects, is contradicted by the evidence in the
record. First, there is no evidence in the record of the
policyholders' financial status that would indicate that they
can not afford to pay the costs of arbitration. See Leeman,
902 So. 2d at 651-52 (noting that there was no evidence in the
record of the plaintiffs' income or wealth that would indicate
that they would not be able to pay the fees and costs of
arbitration and concluding that the plaintiffs accordingly
"have not demonstrated that the arbitration provision in
[their contract with the defendant] is unconscionable on that
basis").
Second,
the
arbitration
provision
in
the
policyholders'
policies
expressly
provides
that
"[t]he
cost[s]
of all arbitration proceeding[s] shall be paid by [American
Bankers], with the exception of the cost of representation of
[the policyholder]" and that arbitration proceedings in each
case
"shall
be
conducted
in
the
county
where
[the
policyholder] reside[s], unless another location is mutually
agreed upon in writing."
21
1131244, 1131245, 1131264, 1131384, 1131514
In Commercial Credit Corp. v. Leggett, 744 So. 2d 890
(Ala. 1999), this Court considered an argument that an
arbitration provision was unconscionable for financial-
hardship reasons because it obligated the party initiating
arbitration to pay $125, while the defendant company agreed to
pay for the first eight hours of the arbitration proceedings,
the losing party to then be responsible for paying the costs
associated
with
any
additional
proceedings,
if
such
proceedings were necessary. We stated:
"It is difficult to see how a party who truly
believes she has a meritorious cause of action can
view these provisions as particularly onerous. [The
plaintiff] would initially have to pay only $125.00
to commence the process. Subsequently, the
defendants
would
pay
for
the
first
day
of
proceedings, regardless of the outcome. The losing
party would then pay for the remainder of the
proceedings.
In
fact,
the
only
parties
disadvantaged by these cost provisions are the
losing parties –– whoever they might be.
"In short, th[is] arbitration provision[] [is]
not 'unreasonably favorable to [the defendants],'
nor [is it] 'oppressive, one-sided, or patently
unfair.' Layne [v. Garner], 612 So. 2d [404,] 408
[(Ala. 1992)]."
744 So. 2d at 898. The arbitration provision in the instant
cases places even more of the cost burden for arbitration upon
American Bankers, and, in light of that fact and the record
22
1131244, 1131245, 1131264, 1131384, 1131514
before us, we find the policyholders' complaint of excessive
costs to be disingenuous. The policyholders have failed to
5
meet their burden of proof as to unconscionability;
accordingly, we decline to invalidate the arbitration
provision on that basis.
IV.
The policyholders sued American Bankers, asserting
various claims based on American Bankers' sale to them of
insurance policies allegedly providing more coverage than the
policyholders needed and could ever possibly benefit from.
The
trial courts thereafter
denied
American
Bankers'
subsequent motions to compel arbitration of the claims
asserted against it by the policyholders. We now reverse
those orders denying the motions to compel arbitration, based
We recognize that the arbitration provision in these
5
cases also authorizes the arbitrator to require the
policyholder to pay all arbitration costs if it is determined
that the policyholder's claim "is without substantial
justification." However, similar authority is held by a trial
court judge, who can require a party to pay not only court
costs, but also attorney fees. See § 12-19-272(c), Ala. Code
1975 ("The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or
party brought an action or any part thereof, or asserted any
claim or defense therein, that is without substantial
justification ...." (emphasis added)).
23
1131244, 1131245, 1131264, 1131384, 1131514
upon our holdings that the policyholders manifested their
assent to the arbitration provision in their policies by
continuing to renew the policies, that the sale of the
policies
affected
interstate
commerce,
and
that
the
arbitration provision in the policies is not unconscionable.
These causes are accordingly remanded for the trial courts to
enter new orders granting American Bankers' motions to compel
arbitration.
1131244 –– REVERSED AND REMANDED.
1131245 –– REVERSED AND REMANDED.
1131264 –– REVERSED AND REMANDED.
1131384 –– REVERSED AND REMANDED.
1131514 –– REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Bryan, J., concurs in the result.
Moore, C.J., and Murdock, J., dissent.
24
1131244, 1131245, 1131264, 1131384, 1131514
MOORE, Chief Justice (dissenting).
I respectfully, but strongly, dissent in these appeals
involving predispute arbitration agreements. It is undisputed
that the policyholders never signed the provision American
Bankers Insurance Company of Florida ("American Bankers")
seeks to enforce. Nevertheless, the main opinion holds that
the policyholders ratified the arbitration provision because
it was referenced on the declarations page of the policies and
because the policyholders paid premiums to renew
the
policies.
I cannot agree with that holding for two reasons. First, an
application of the Federal Arbitration Act ("the FAA"), 9
U.S.C. § 1 et seq., which is the basis for enforcing the
"purported"
arbitration
provision
in
this
case,
is
unconstitutional under the Seventh Amendment to the United
States Constitution. Second, because the right to a jury in
this case is a right secured by the Seventh Amendment to the
United States Constitution, any waiver of that right must be
knowing, willing, and voluntary, and the policyholders'
purported waiver in this case did not meet those requirements.
25
1131244, 1131245, 1131264, 1131384, 1131514
This Court now takes the crooked path of precedent in this
case and arrives at a truly erroneous conclusion.
6
I. Seventh Amendment
The Seventh Amendment to the United States Constitution
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
Any law, statute, or rule that takes away the right of a trial
by jury would violate the Seventh Amendment. It bears
repeating that "a law repugnant to the constitution is void."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also U.S. Const. art. VI, cl. 2 ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof ... shall be the supreme Law of the Land ...."
(emphasis added)). The FAA is no exception. See Ex parte
Hagan, 721 So. 2d 167, 174 n.3 (Ala. 1998) ("Certainly, the
See Lorence v. Hospital Bd. of Morgan Cnty., 294 Ala.
6
614, 618-19, 320 So. 2d 631, 634-35 (1975) (reproducing a poem
by Sam Walter Foss to illustrate the absurdity of blindly
following precedent and stating: "The quaint poetic lines of
Sam Walter Foss put in perspective the philosophy of those
courts which feel compelled to sacrifice their sense of reason
and justice upon the altar of the Golden Calf of precedent.").
26
1131244, 1131245, 1131264, 1131384, 1131514
FAA and arbitration clauses cannot be given precedence over
constitutional provisions, such as the Seventh and Fourteenth
Amendments to the Constitution of the United States."). But in
spite of the Constitution's protection of the right to a jury
trial in civil cases, courts have interpreted the FAA to take
away that most valuable right, even before a dispute arises or
any injury or cause of action exists.
Such an interpretation of the FAA is erroneous because
Congress, when it enacted the FAA in 1925, intended it to be
a rule of procedure in federal courts (not applicable to state
courts) involving only a specific class of contracts in
interstate commerce. I am not the only Justice, either on
7
this Court or on the United States Supreme Court, to hold this
view. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), Justice Black, joined by Justice
Douglas and Justice Stewart, argued in his dissent:
"[I]t is clear that Congress in passing the [Federal
Arbitration] Act relied primarily on its power to
create general federal rules to govern federal
I have explained elsewhere that Congress enacted the FAA
7
under its Article III powers to prescribe rules of procedure
for federal courts but that the courts have misinterpreted the
FAA as an exercise of Congress' Article I power over
interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824
So. 2d 668, 677-91 (Ala. 2001) (Moore, C.J., dissenting).
27
1131244, 1131245, 1131264, 1131384, 1131514
courts. Over and over again the drafters of the Act
assured
Congress:
'The
statute
establishes
a
procedure in the Federal courts .... It rests upon
the constitutional provision by which Congress is
authorized to establish and control inferior Federal
courts. So far as congressional acts relate to the
procedure in the Federal courts, they are clearly
within the congressional power.' And again: 'The
primary purpose of the statute is to make enforcible
in
the
Federal
courts
such
agreements
for
arbitration, and for this purpose Congress rests
solely upon its power to prescribe the jurisdiction
and duties of the Federal courts.' One cannot read
the legislative history without concluding that this
power, and not Congress' power to legislate in the
area of commerce, was the 'principal basis' of the
Act. Also opposed to the view that Congress intended
to create substantive law to govern commerce and
maritime transactions are the frequent statements in
the legislative history that the Act was not
intended to be 'the source of ... substantive law.'
As Congressman Graham explained the Act to the
House:
"'It
does
not
involve
any
new
principle of law except to provide a simple
method ... in order to give enforcement
.... It creates no new legislation, grants
no new rights, except a remedy to enforce
an agreement in commercial
contracts and in
admiralty contracts.' ...
"Finally, there are clear indications in the
legislative history that the Act was not intended to
make arbitration agreements enforceable in state
courts or to provide an independent federal-question
basis for jurisdiction in federal courts apart from
diversity jurisdiction. The absence of both of these
effects--which normally follow from legislation of
federal substantive law--seems to militate against
the view that Congress was creating a body of
federal substantive law."
28
1131244, 1131245, 1131264, 1131384, 1131514
388 U.S. at 418-20 (Black, J., dissenting) (footnotes
omitted).
Justice O'Connor, joined by then Justice Rehnquist, made
the same argument in a dissent issued 17 years after Prima
Paint was decided:
"One rarely finds a legislative history as
unambiguous as the FAA's. That history establishes
conclusively that the 1925 Congress viewed the FAA
as a procedural statute, applicable only in federal
courts, derived, Congress believed, largely from the
federal power to control the jurisdiction of the
federal courts.
"In
1925
Congress
emphatically
believed
arbitration to be a matter of 'procedure.' At
hearings on the Act congressional subcommittees were
told: 'The theory on which you do this is that you
have the right to tell the Federal courts how to
proceed.' ...
"....
"If
characterizing the
FAA
as
procedural
was
not
enough, the draftsmen of the Act, the House Report,
and the early commentators all flatly stated that
the Act was intended to affect only federal court
proceedings. Mr. Cohen, the American Bar Association
member
who
drafted
the
bill,
assured
two
congressional subcommittees in joint hearings:
"'Nor can it be said that the Congress of
the United States, directing its own courts
..., would infringe upon the provinces or
prerogatives of the States .... [T]he
question of the enforcement relates to the
law of remedies and not to substantive law.
The
rule
must
be
changed
for
the
29
1131244, 1131245, 1131264, 1131384, 1131514
jurisdiction in which the agreement is
sought to be enforced. ... There is not
disposition therefore by means of the
Federal bludgeon to force an individual
State into an unwilling submission to
arbitration enforcement.'"
Southland Corp. v. Keating, 465 U.S. 1, 25-27 (1984)
(O'Connor, J., dissenting) (footnotes omitted).
Justice Thomas, in a dissent joined by Justice Scalia,
argued the same 11 years after the Supreme Court issued its
opinion in Southland:
"Despite the FAA's general focus on the federal
courts, of course, § 2 itself contains no such
explicit limitation. But the text of the statute
nonetheless makes clear that § 2 was not meant as a
statement of substantive law binding on the States.
After all, if § 2 really was understood to 'creat[e]
federal substantive law requiring the parties to
honor arbitration agreements,' then the breach of an
arbitration agreement covered by § 2 would give rise
to a federal question within the subject-matter
jurisdiction of the federal district courts. Yet the
ensuing provisions of the Act, without expressly
taking away this jurisdiction, clearly rest on the
assumption that federal courts have jurisdiction to
enforce arbitration agreements only when they would
have had jurisdiction over the underlying dispute.
In other words, the FAA treats arbitration simply as
one means of resolving disputes that lie within the
jurisdiction of the federal courts .... [T]he reason
that § 2 does not give rise to federal-question
jurisdiction is that it was enacted as a purely
procedural provision. ..."
30
1131244, 1131245, 1131264, 1131384, 1131514
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 291 (1995)
(Thomas, J., dissenting) (citations omitted).
Finally, Justice Scalia, agreeing that Southland was
wrongly
decided, has told practitioners that he would
overrule
it if he were asked: "I shall not in the future dissent from
judgments that rest on Southland. I will, however, stand ready
to join four other Justices in overruling it, since Southland
will not become more correct over time ...." Allied-Bruce, 513
U.S. at 285 (Scalia, J., dissenting).
As to Justices on this Court, Justice Almon, joined by
Justice Shores, forcefully wrote in 1998:
"I cannot see how the United States Supreme
Court, which exists pursuant to the United States
Constitution, can apply an Act of Congress so as to
undermine the right of trial by jury in the states
that
guarantee
that
right
in
their
state
constitutions.
The
United
States
Constitution
guarantees the right of trial by jury in the Seventh
Amendment. That Amendment was adopted within the
Bill of Rights as a limitation on the Federal
Government.
Furthermore,
the
Tenth
Amendment
provides: 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively,
or to the people.' ...
"How
can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
31
1131244, 1131245, 1131264, 1131384, 1131514
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
constitutional authority."
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting).
Justice Cook, addressing the issue whether the Seventh
Amendment would bar the application of the FAA in state
courts, wrote:
"The fact that the United States Supreme Court
has never held the Seventh Amendment to be binding
on the states through the Fourteenth Amendment, as
it has certain other of the Bill of Rights
guarantees, is irrelevant in this context. This is
because the FAA is not a state law. Thus, the
constitutional deprivation, where one can be shown,
derives from an act of Congress, not a state
legislature. The Seventh Amendment, like the other
Bill of Rights provisions, was ratified as a
limitation on the power of Congress. Clearly,
Congress had no power to deprive a citizen of
Alabama of his right to a trial by jury before the
Fourteenth Amendment was ratified--a fortiori, it
has none now. Therefore, whether the Seventh
Amendment is binding on the states is entirely
irrelevant in any consideration of the FAA."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 934 (Ala. 1997)
(Cook, J., concurring specially).
This Court as a whole has recognized that "any
arbitration agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to a trial by
32
1131244, 1131245, 1131264, 1131384, 1131514
jury." Allstar Homes, 711 So. 2d at 929. I have no doubt that
8
my fellow Justices would agree that any law forcing a party to
arbitration if that party had not previously agreed to
arbitrate would be unconstitutional. But in this case, as in
many other arbitration cases, American Bankers argues that the
policyholders agreed, as a matter of contract, to go to
arbitration if a dispute arose. Thus, the question is whether
a party may validly bargain away his or her right to a trial
by jury before the right accrues. As I explained in my
specially concurring opinion in Ex parte First Exchange Bank,
150 So. 3d 1010, 1025-27 (Ala. 2013) (Moore, C.J., concurring
specially):
"I would hold that the right to a jury trial in
civil cases may not be waived by a party before a
lawsuit has been filed and the right accrues.
Because, '[o]rdinarily, the right to a jury trial is
determined by the cause of action stated,' Ex parte
Western Ry. of Ala., 283 Ala. 6, 12, 214 So. 2d 284,
289 (1968), logically that right cannot be exercised
before a lawsuit is filed. A maxim of the common law
states that 'no right can be barred before it
accrues.' Gould v. Womack, 2 Ala. 83, 88 (1841). See
also Blackmon v. Blackmon, 16 Ala. 633, 636 (1849)
(noting 'two maxims of the common law: 1st--that no
Allstar Homes was criticized in the plurality opinion of
8
Perry v. Hyundai Motor America, Inc., 744 So. 2d 859 (Ala.
1999). However, "[t]he precedential value of the reasoning in
a plurality opinion is questionable at best." Ex parte
Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).
33
1131244, 1131245, 1131264, 1131384, 1131514
right can be barred before it accrues....'); Adams
v. Adams, 39 Ala. 274, 281 (1864); Webb v. Webb's
Heirs, 29 Ala. 588, 601 (1857). One cannot have full
knowledge about what a right entails--about what,
exactly, he or she is waiving--until one fully
understands what is at stake by giving up the right.
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929
(Ala. 1997) (holding that a waiver of the right to
a trial by jury must be made knowingly, willingly,
and voluntarily).
"....
"'A man may not barter away his life or his
freedom, or his substantial rights.... In
a civil case he may submit his particular
suit by his own consent to an arbitration,
or to the decision of a single judge.... In
these aspects a citizen may no doubt waive
the rights to which he may be entitled. He
cannot, however, bind himself in advance by
an agreement, which may be specifically
enforced, thus to forfeit his rights at all
times and on all occasions whenever the
case may be presented.'
"Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445,
451, 22 L.Ed. 365 (1874). I articulated this
principle in my special writing in Ex parte Allen,
798 So. 2d 668, 676–77 (Ala. 2001) (Moore, C.J.,
concurring specially), which involved a predispute
arbitration agreement analogous to the predispute
waiver of a jury trial:
"'Predispute arbitration agreements are
problematic [because they] ... are signed
well before any dispute arises between the
parties. These predispute agreements are
often vague and give little notice to the
signing parties of the kinds of conflicts
that will subject them to arbitration
proceedings and the specific rights they
34
1131244, 1131245, 1131264, 1131384, 1131514
are
surrendering.
Because
predispute
agreements are entered into before the
grounds on which the waiver of rights is
based can be known, there is no real
"meeting of the minds," as contract law
requires between two parties who commit to
a binding agreement.'
"Waiver of a jury trial, to be valid, must occur
after a case has been initiated. 'Agreements entered
into after a controversy arises avoid this problem
[regarding full knowledge of the right being waived]
because when they enter such agreements, the parties
are aware of the kind of complaint they are allowing
to proceed to arbitration in the place of a jury
trial.' Allen, 798 So. 2d at 677 (Moore, C.J.,
concurring specially). ...
"Although outside the arbitration context no
federal
law
attempts
to
preempt
Alabama's
constitutional right to a jury trial, that inviolate
right does not accrue until a lawsuit is filed. No
individual may waive a right to a jury trial in
Alabama indefinitely into the future, for that right
does not accrue if it depends upon future events
that may or may not occur. If a person may not
exercise a jury-trial right until he or she has been
sued, it follows a fortiori that a person may not
waive that right before he or she has been sued.
"A jury-trial right is analogous to the right to
counsel, which cannot be waived until the initiation
of legal proceedings. Art. I, § 6, § 10, Ala. Const.
1901; Davis v. State, 292 Ala. 210, 291 So. 2d 346,
350 (1974); Withers v. State, 36 Ala. 252 (1860).
Other rights granted by the Declaration of Rights
cannot be waived before they accrue. For instance,
a person cannot contractually waive his or her right
to sue until that right has accrued. Art. I, § 10,
§ 11, § 13, Ala. Const. 1901. A person cannot
contractually waive his or her right to bail until
after that right has accrued. Art. I, § 16, Ala.
35
1131244, 1131245, 1131264, 1131384, 1131514
Const. 1901. Likewise, because § 11 declares the
right to a jury trial to be inviolate, an individual
may not waive that right before it accrues."
(Footnotes omitted.)
Based on the authorities cited in my specially concurring
opinion in Ex parte First Exchange Bank, it appears to me
that, at common law, one could not bargain away his or her
right to a jury trial until a cause of action had accrued.
This common-law history was not lost but was carried forward
in the Seventh Amendment.
"'The interpretation of the Constitution of the
United States is necessarily influenced by the fact
that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history.' ...
"'In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly
known to the framers of the Constitution.'"
Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888), and United States v.
Wong Kim Ark, 169 U.S. 649, 654 (1898)). Parties certainly
could have agreed to submit a dispute to arbitration once that
dispute arose. See 3 William Blackstone, Commentaries *16-17.
However, for the reasons stated above, I believe the Framers
of the Seventh Amendment would have viewed any law that
36
1131244, 1131245, 1131264, 1131384, 1131514
attempted
to
enforce
predispute
arbitration
agreements
as
void
under the Seventh Amendment.
Time and time again, the United States Supreme Court has
interpreted the FAA to be a valid exercise of Congress' power
under the Commerce Clause and has therefore required state
courts to apply the FAA. See, e.g., Allied-Bruce Terminix Cos.
v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating,
465 U.S. 1 (1984); and Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967). Justice Houston wrote in Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 38 (Ala.
1998) (Houston, J., concurring specially):
"Although I disagree with the majority of the United
States
Supreme
Court
in
its
Allied–Bruce
interpretation of the Federal Arbitration Act as it
applies to state courts, a majority opinion of that
Court is part of the law I have taken an oath to
uphold. See the second paragraph of Article VI of
the Constitution of the United States."9
However, the second paragraph in Article VI of the United
9
States Constitution says that state judges are bound by the
supreme law of the land, which consists of three things: (1)
the Constitution itself, (2) laws of the United States made
pursuant to the Constitution, and (3) treaties made under
authority of the United States. A Supreme Court opinion is not
the Constitution itself; it is not a law of the United States
made pursuant to the Constitution; and it is not a treaty made
under the authority of the United States--how then does
Article VI bind state judges to uphold Supreme Court opinions?
37
1131244, 1131245, 1131264, 1131384, 1131514
I do not agree that the Supreme Court's interpretation of
the FAA is a law I am required to apply, because that
interpretation does not conform to the United States
Constitution I am sworn to uphold and support. What if a state
court is presented with a constitutional question the United
States Supreme Court has not yet considered? As far as my
research shows, the United States Supreme Court has not yet
considered whether its interpretation of the FAA violates the
Seventh Amendment. As stated above, a federal statute is void
if it violates the Federal Constitution. Marbury, 5 U.S. at
180. As Chief Justice Marshall wrote in Marbury:
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot be
inspected by him?"
Marbury, 5 U.S. (1 Cranch) at 180.
If we declined to apply the Seventh Amendment because
doing so would undermine the United States Supreme Court's
interpretation of the FAA, which is not even a law but merely
a judicial opinion, then we would be violating the Supremacy
Clause, our oaths of office, and every sound principle of
10
11
The Supremacy Clause reads: "This Constitution, and the
10
Laws of the United States which shall be made in Pursuance
38
1131244, 1131245, 1131264, 1131384, 1131514
constitutional law. The Supreme Court's interpretation of a
federal statute does not preclude all lower courts from
considering constitutional questions the Supreme Court has
never considered. Therefore, we must analyze the arbitration
provision in this case by the Seventh Amendment, the Supreme
Court's precedent interpreting the FAA notwithstanding.
II. Knowing, Willing, and Voluntary Waiver
If this Court still believes that predispute arbitration
agreements
are
enforceable,
the
Seventh
Amendment
notwithstanding, then it should remember that, "regardless of
the federal courts' policy favoring arbitration, we find
nothing in the FAA that would permit such a [jury] waiver
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2
(emphasis added).
"I, ........, solemnly swear (or affirm, as
11
the case may be) that I will support the
Constitution of the United States, and the
Constitution of the State of Alabama, so
long as I continue a citizen thereof; and
that I will faithfully and honestly
discharge the duties of the office upon
which I am about to enter, to the best of
my ability. So help me God."
§ 279, Ala. Const. 1901.
39
1131244, 1131245, 1131264, 1131384, 1131514
unless it is made knowingly, willingly, and voluntarily."
Allstar Homes, 711 So. 2d at 929. This rule is a slight
variation of a general rule in contract law that applies when
parties agree in advance to waive their rights to a trial by
jury.
"In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this
Court articulated three factors to consider in
evaluating whether to enforce a contractual waiver
of the right to trial by jury: (1) whether the
waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is
equal; and (3) whether the waiver was intelligently
and knowingly made."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Gaylord Department Stores of Alabama v. Stephens, 404 So. 2d
586, 588 (Ala. 1981), required such a test because "Article I,
§ 11, Constitution 1901, provides that the right to trial by
jury shall remain inviolate," describing the right to trial by
jury as a "precious right."
12
In this case, it is undisputed that the policyholders
never signed an arbitration agreement. The main opinion holds
This rule is not unique to Alabama. For a detailed
12
discussion of how other courts apply this rule, or some slight
variation of it, see Jean R. Sternlight, Mandatory Binding
Arbitration and the Demise of the Seventh Amendment Right to
a Jury Trial, 16 Ohio St. J. on Disp. Resol. 669, 678-90
(2001).
40
1131244, 1131245, 1131264, 1131384, 1131514
that the "declarations page" of the policies notified the
policyholders of the existence of the forms in question,
noting that the written insuring agreement provided that
"[t]his
policy is not complete without the declarations
page."
However, there is no document entitled "declarations page" in
the record. Although I do not dispute that the document relied
upon by the main opinion is typically referred to as a
"declarations page," there is nothing on the page itself that
would alert the policyholders that this page is the critical
document that has been referenced repeatedly throughout the
policies.
Moreover, nothing in plain English on the declarations
page indicates that the policyholders were waiving their
rights to trial by jury. As the main opinion notes, the
declarations page made a brief reference to forms AJ9821EPC-
0608 and N1961-0798. These combinations of letters and
13
numbers appear among eight other similar references in a small
space. There were only three words in English adjacent to
these 10 mysterious combinations of letters and numbers:
I realize that the number on one of the forms was
13
different for Gwendolyn Moody, just as the main opinion does.
See ___ So. 3d at ___ at n.1.
41
1131244, 1131245, 1131264, 1131384, 1131514
"FORMS AND ENDORSEMENTS." (Capitalization in original.) The
main opinion reasons that this should have prompted the
policyholders to investigate further, but nothing on the
declarations page necessarily indicates that the referenced
forms constitute part of the policy. There is no explanation
of what these "forms and endorsements" are, or even whether
they are part of the policy. Regardless of whatever American
Bankers was thinking, I cannot agree that those references on
the
declarations page were sufficient to constitute a
knowing,
willing, or voluntary waiver of the policyholders' inviolate
right to a jury trial.
I fear that the precedential effect of this case will be
disastrous. The main opinion stands for the proposition that
an insurance company may deprive policyholders of their
constitutional rights without their express consent so long as
a vague, mysterious, code-like reference to a form appears
somewhere in the policy. Under this rationale, why would
insurance companies even have to send arbitration forms to
their
policyholders? If the insurance company's failure to
get
the policyholders to sign the arbitration forms in this case
was an accident, what is there to stop an insurance company
42
1131244, 1131245, 1131264, 1131384, 1131514
from doing the same thing intentionally in the next case?
Policyholders are entitled to know in advance what their
obligations are and whether they are expected to give up their
rights, instead of being subjected to a game of insurance-
company "peek-a-boo."
14
III. Conclusion
The right to a trial by jury is a sacred and precious
right.
Sir William Blackstone called it the "best
preservative
of English liberty." 3 William Blackstone, Commentaries *381.
The American Founders declared independence from King George
III, in part, for depriving them of "the benefits of Trial by
Jury." The Declaration of Independence ¶ 20. The Framers
15
included the right to trial by jury in our national Bill of
Rights. The Alabama Constitution says that the right to trial
by jury "shall remain inviolate." § 11, Ala. Const. 1901. Then
Justice Rehnquist called the right to trial by jury "an
Cf. United States v. Virginia, 518 U.S. 515, 574 (1996)
14
(Scalia, J., dissenting) ("The States and the Federal
Government are entitled to know before they act the standard
to which they will be held, rather than be compelled to guess
about the outcome of Supreme Court peek-a-boo.").
As Justice Almon observed in his dissent in McNaughton:
15
"King George's denial of the right of trial by jury was one of
the articles of the Declaration of Independence." McNaughton,
728 So. 2d at 602 (Almon, J., dissenting).
43
1131244, 1131245, 1131264, 1131384, 1131514
important bulwark against tyranny and corruption, a safeguard
too precious to be left to the whim of the sovereign, or, it
might be added, to that of the judiciary." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J.,
dissenting).
How then has this Court held today that the right to
trial by jury may be destroyed through such an inconspicuous
means? I respectfully submit that this is the result of
following bad precedent. If the Supreme Court's precedent
16
The main opinion notes that the policyholders did not
16
invite us to overrule precedent and that this Court is not
inclined to do so without an invitation. This does necessarily
mean that it may not overrule controlling precedent without
being asked to do so. See, e.g., Travelers Indem. Co. of
Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(overruling a case while expressly noting that the Court had
not been asked to do so). Likewise, this Court is not
forbidden from addressing the Seventh Amendment issue or from
considering Allstar Homes even though neither of the parties
raised those claims. "[A] court may consider an issue
'antecedent to ... and ultimately dispositive of' the dispute
before it, even an issue the parties fail to identify and
brief." United States Nat'l Bank of Oregon v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). See also
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) ("'"Appellate review does not consist of
supine submission to erroneous legal concepts even though
none
of the parties declaimed the applicable law below. Our duty is
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or passivity, can force us
to abdicate our appellate responsibility"'" (quoting Forshey
v. Principi, 284 F.3d 1335, 1359 n.20 (Fed. Cir. 2002),
44
1131244, 1131245, 1131264, 1131384, 1131514
interpreting a federal statute conflicts with the United
States Constitution itself, then our duty is not to predict
the next bend in the crooked path by asking, "What would the
Supreme Court do?" Instead, our duty, under oath, is to ask,
"What
does the Constitution say?" Here, that Constitution
says
the policyholders have a right to a jury trial. Furthermore,
one may give up such an invaluable right, even in a case where
an injury has already occurred and a cause of action exists,
only when the waiver of that right is knowing, willing, and
voluntary, and in this case it was not.
I respectfully dissent.
quoting in turn Empire Life Ins. Co. of America v. Valdak
Corp., 468 F.2d 330, 334 (5th Cir. 1972))). This is especially
true when this Court affirms a ruling of a trial court, as I
would do here. See Southern Energy Homes, Inc. v. Gregor, 777
So. 2d 79, 81 (Ala. 2000) ("[T]his Court can affirm the ruling
of a trial court for any valid reason, even one not presented
to or considered by the trial court.").
45 | June 26, 2015 |
2bf9b1df-a7ed-4e6f-9431-24fb5d98dfe2 | Ex parte Shannon Cahill. | N/A | 1140305 | Alabama | Alabama Supreme Court | rel: 04/17/2015
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, 2014-2015
____________________
1140305
____________________
Ex parte Shannon Cahill
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Antoinette Cahill Smith
v.
Shannon Cahill)
(Marshall Circuit Court, DR-05-161.01;
Court of Civil Appeals, 2130357)
PER CURIAM.
The petition for the writ of certiorari is denied.
1140305
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT DENIED.
Stuart, Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Parker, J., dissent.
2 | April 17, 2015 |
3c39296e-d4b7-4072-8ab5-545b7e50512e | Ex parte Alfa Mutual General Insurance Company. | N/A | 1140642 | Alabama | Alabama Supreme Court | REL:06/26/2015
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, 2014-2015
_________________________
1140642
_________________________
Ex parte Alfa Mutual General Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: Mark D. Trotter
v.
Alfa Mutual General Insurance Company)
(Mobile Circuit Court, CV-14-902840)
SHAW, Justice.
Alfa Mutual General Insurance Company ("Alfa") petitions
this Court for a writ of mandamus directing the Mobile Circuit
1140642
Court to grant its motion seeking to realign the parties to
the underlying litigation so that Alfa may "opt out" of
participation in the trial. We grant the petition and issue
the writ.
Facts and Procedural History
In October 2012, the respondent, Mark D. Trotter, was
injured when a "road sweeper" he was operating was struck by
a vehicle being operated by Daniel Elijah Davis, an uninsured
motorist. In October 2014, Trotter sued Alfa in the Mobile
Circuit Court seeking to recover uninsured/underinsured-
motorist ("UIM") benefits pursuant to a policy of insurance
issued by Alfa to Trotter, which was in place at the time of
the 2012 accident. Trotter did not include Davis as a
codefendant in his action against Alfa.
Alfa subsequently filed a third-party complaint adding
Davis as a third-party defendant. More particularly, Alfa's
third-party complaint alleged that, to the extent it was
determined to be liable to Trotter for UIM benefits, then Alfa
was subrogated to and entitled to recover the amount of that
liability from Davis. Thereafter, Alfa filed a "Motion to
Realign Parties," which stated, in part:
2
1140642
"Pursuant to the principles set out in the case
of Lowe v. Nationwide Insurance Company, 521 So. 2d
1309 (Ala. [1988]), Defendant Alfa Mutual General
Insurance Company would move the Court to realign
the parties so that Daniel Elijah Davis is a
Defendant and to allow the Defendant Alfa Mutual
General Insurance Company to opt out of the
litigation."
Without explaining the findings on which its decision was
based, the trial court denied Alfa's motion. In response,
Alfa filed this petition for a writ of mandamus.
Standard of Review
"A writ of mandamus is an extraordinary remedy,
and is appropriate when the petitioner can show (1)
a clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court."
Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).
"A petition for a writ of mandamus is the appropriate means
for challenging a trial court's refusal to grant a UIM carrier
the right to opt out of litigation pursuant to Lowe [v.
Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988)]." Ex
parte Geico Cas. Co., 58 So. 3d 741, 743 (Ala. 2010).
Discussion
Alfa, citing Lowe v. Nationwide Insurance Co., 521 So. 2d
1309 (Ala. 1988), maintains that an insurer that is named as
3
1140642
a party to litigation against a UIM motorist "[has] the right,
within a reasonable time ..., to elect either to participate
in the trial (in which case its identity and the reason for
its being involved are proper information for the jury), or
not to participate in the trial (in which case no mention of
it or its potential involvement is permitted by the trial
court)." 521 So. 2d at 1310. Alfa's petition makes clear its
understanding, as our caselaw mandates, that, even if
permitted to opt out of participation at trial, Alfa
nonetheless agrees to be "bound by the factfinder's decisions
on the issues of liability and damages." See Lowe; Driver v.
National Sec. Fire & Cas. Co., 658 So. 2d 390, 394 (Ala.
1995). Alfa further expresses its intent, upon electing not
to participate, for its counsel to continue to defend Davis.
See Driver, 658 So. 2d at 395 ("If the uninsured motorist
carrier opts out of the trial of the case and there is no
defense counsel already in place to represent the defendant
motorist, then there is no mechanism to protect the interests
of the insurer if the defendant motorist fails to, or chooses
not to, defend his case. Understanding the need for the
uninsured
motorist
insurance
carrier
to
protect
its
interests,
4
1140642
we hold that once the carrier opts out of the trial under
Lowe, it may, in its discretion, hire an attorney to represent
the uninsured motorist defendant."). See also Ex parte State
Farm Auto. Ins. Co., 674 So. 2d 75, 77 (Ala. 1995) (plurality
opinion).
Trotter, who contends that his action against Alfa was
permissible, see, generally, State Farm Mutual Automobile
Insurance Co. v. Griffin, 51 Ala. App. 426, 286 So. 2d 302
(Ala. Civ. App. 1973), nonetheless concedes that Alfa
possesses the above-described rights under Alabama law.
However, according to Trotter, in order for Alfa to be
permitted to realign the parties, withdraw, then provide
Davis with counsel, Alfa may not continue to prosecute the
subrogation claims asserted in its third-party complaint.
More specifically, Trotter contends that our decisions in
Driver, supra, and in Ex parte Littrell, 73 So. 3d 1213 (Ala.
2011), require that a UIM carrier must waive any subrogation
rights it might have against the uninsured/underinsured
motorist to avoid a conflict of interest between the carrier
and the party it is defending. We disagree.
5
1140642
Although, as Trotter notes, the UIM carrier in Driver had
waived its right of subrogation, that decision does not
indicate that such a waiver is required. Additionally,
Littrell involved the ability of the plaintiff's UIM carrier
to provide counsel to an underinsured motorist; that decision
is careful to distinguish the ability of a UIM insurer to
provide counsel to uninsured motorists, such as in this case.
73 So. 3d at 1219. Littrell does not hold that a UIM carrier
must waive any subrogation rights before hiring counsel to
represent an uninsured-motorist defendant. Further, Justice
Murdock specifically noted in his dissenting opinion in
Littrell:
"It is true that in Driver the Court did make
note of the fact that the uninsured-motorist carrier
in that case had waived its subrogation rights
against the alleged tortfeasor 'in order to avoid
any conflict [of interest],' 658 So. 2d at 394 ....
Nowhere, however, does the Court in Driver state
that the uninsured-motorist carrier's waiver of
subrogation rights was necessary to its holding that
the tortfeasor could be represented by the same
counsel
that
previously
had
represented
the
uninsured-motorist carrier. There was no mention of
any such waiver in [Ex parte] State Farm [Automobile
Insurance Co., 674 So. 2d 75 (Ala. 1995)]. Further,
the potential conflict referenced by the Court is
one
t ha t
w o u l d
b e
b e t we e n
the
uninsured/underinsured-motorist carrier and the
alleged tortfeasor. (If anything, a less than
zealous representation of the alleged tortfeasor
6
1140642
resulting from counsel's knowledge that the insurer
with whom he or she maintains a relationship
maintains a right of subrogation against the alleged
tortfeasor would tend to work to the plaintiff's
advantage.) Again, I fail to see how, in a case
where the alleged tortfeasor (and his or her
liability carrier if applicable) chooses to be
represented
by
an
attorney
proposed
by
the
uninsured/underinsured-motorist
carrier,
and
accordingly waives any possible conflict relating to
such
representation,
the
plaintiff
has
any
'standing' to complain as to whom the alleged
tortfeasor chooses to have represent him or her.
Insofar as I can see, the alleged tortfeasor's
choice of attorney does not disrupt the arrangement
adopted in Lowe or, more specifically, deprive the
plaintiff of the 'benefit' intended for the
plaintiff by that arrangement, i.e., litigating all
its claims in one proceeding."
73 So. 3d at 1222-23 (Murdock, J., dissenting) (emphasis
added). Trotter identifies no authority mandating, in every
case, a waiver of subrogation rights.
In light of the foregoing, we conclude that Alfa has
demonstrated a clear legal right to have its motion to realign
the parties granted and to allow it to opt out of the
underlying litigation. No authority is cited requiring that,
in order to make the permitted election, Alfa must first
release the right of subrogation to which it is also clearly
entitled. See Aetna Cas. & Sur. Co. v. Turner, 662 So. 2d
237, 240 (Ala. 1995) (holding "that an insurer that pays
7
1140642
underinsured motorist benefits to a party pursuant to a
wrongful death claim is entitled to subrogation from the
wrongdoer"). As a result, Alfa's petition for the writ of
mandamus is due to be granted. Accordingly, we direct the
Mobile Circuit Court to vacate its February 18, 2015, order
denying Alfa's motion to realign the parties and to allow it
to opt out of the litigation.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., concur in the result.
8
1140642
MURDOCK, Justice (concurring in the result).
To the extent the main opinion suggests that the result
in this case depends upon a distinction between cases
involving underinsured motorists and uninsured motorists, I
decline to concur in that reasoning. I concur in the result
reached based solely on the reasoning reflected in my
dissenting opinion quoted in the main opinion. ___ So. 3d at
___ (quoting Ex parte Littrell, 73 So. 3d 1213, 1222-23 (Ala.
2011) (Murdock, J., dissenting)). That said, it should be
noted that the Court is not asked in the present case to
revisit Littrell insofar as it suggests a distinction of the
nature stated above.
9 | June 26, 2015 |
ee80a48b-b921-4cb4-b6fb-7131f73f90ea | Ex parte Ricky Dean Butler. | N/A | 1140933 | Alabama | Alabama Supreme Court | REL: 08/28/2015
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, 2015
____________________
1140933
____________________
Ex parte Ricky Dean Butler
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Ricky Dean Butler
v.
State of Alabama)
(Cleburne Circuit Court, CC-09-369.60;
Court of Criminal Appeals, CR-13-1484)
STUART, Justice.
WRIT DENIED. NO OPINION.
1140933
Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., concurs specially.
2
1140933
MOORE, Chief Justice (concurring specially).
Ricky Dean Butler was convicted of possession of
controlled substances and was sentenced to 6 months in prison
for possession of a marijuana cigarette and to 10 years’
imprisonment for possession of one Valium tablet. He was also
convicted of manufacturing methamphetamine and was sentenced
to 35 years on that conviction. Butler claims that the
convictions for possession of marijuana and Valium constitute
a single crime and that he was placed in double jeopardy by
being convicted of two crimes for a single offense. On direct
appeal, the Court of Criminal Appeals affirmed
his
convictions
and sentences on July 15, 2010. Butler v. State (No. CR-10-
0243), 114 So. 3d 166 (Ala. Crim. App. 2011) (table).
Butler filed the instant Rule 32, Ala. R. Crim. P.,
petition for postconviction relief in September 2013, which
the trial court denied. The Court of Criminal Appeals affirmed
the trial court’s judgment by an unpublished memorandum.
Butler v. State (No. CR-13-1484, April 10, 2015), ___ So. 3d
___ (Ala. Crim. App. 2015) (table).
Butler argues that double-jeopardy principles prohibit
his being sentenced separately for drug-possession offenses
3
1140933
that occurred at the same time and in the same place. He cites
Vogel v. State, 426 So. 2d 863 (Ala. Crim. App. 1980), for the
proposition that federal and state constitutional double-
jeopardy provisions "prohibit the splitting of a single
criminal act so as to justify multiple prosecutions for the
identical criminal behavior." 426 So. 2d at 879. In Vogel, the
defendant was separately convicted for each of the different
banned substances he possessed. Those convictions, however,
all arose from the violation of a single statute, § 20-2-
70(a), Ala. Code 1975 (repealed in 1987), which made
possession of certain enumerated substances a felony and
provided for a single sentence for that possession. Vogel,
426 So. 2d at 878.
In this case, however, Butler's marijuana- and Valium-
possession
convictions
arise
under
separate
statutes
that
have
different elements and sentencing provisions. Butler's
conviction and sentence for possession of Valium arose under
§ 13A-12-212, Ala. Code 1975, a statute similar to the statute
in Vogel that makes possession of any drug listed on certain
schedules a felony. The conviction for marijuana possession,
however, arose under a separate statute--§ 13A-12-214, Ala.
4
1140933
Code 1975--that
makes possession of marijuana for
personal use
a misdemeanor. Thus, unlike the situation in Vogel, where the
possession of different controlled substances made criminal
under the same statute was split into multiple prosecutions,
Butler committed two separate and distinct criminal offenses
under two separate and distinct statutes.
Rather than being convicted twice under the same statute,
Butler was convicted under two separate statutes the elements
and sentencing
provisions of which differ. Therefore,
I
concur
in denying his petition for a writ of certiorari.
5 | August 28, 2015 |
943ef8a2-af77-41be-a8b7-0bfc67ca6ee9 | Ex parte State of Alabama. | N/A | 1140635 | Alabama | Alabama Supreme Court | REL: 07/10/2015
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, 2015
____________________
1140635
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Eric Lemont Higdon
v.
State of Alabama)
(Jefferson Circuit Court, CC-13-365;
Court of Criminal Appeals, CR-13-1305)
STUART, Justice.
1140635
This Court issued a writ of certiorari to address the
State's request that this Court overrule Ex parte J.A.P., 853
So. 2d 280 (Ala. 2002), the controlling precedent applied by
the Court of Criminal Appeals in reversing Eric Lemont
Higdon's conviction for first-degree sodomy by forcible
compulsion, see § 13A-6-63(a)(1), Ala. Code 1975. We overrule
Ex parte J.A.P., reverse the judgment of the Court of Criminal
Appeals, and remand.
Facts and Procedural History
The Court of Criminal Appeals, in its opinion, summarized
the pertinent facts surrounding the offense:
"In the summer of 2012, Higdon, who was 17 years
old, worked as an intern at Momma's Place Christian
Academy, a day-care facility. Higdon's duties
primarily
consisted
of
cleaning
the
day-care
facility and supervising children, either alone or
in conjunction with an adult. During that summer,
K.S., who was then four years old, was enrolled as
a student at Momma's Place.
"During August 2012, Higdon accompanied K.S. to
the bathroom on multiple occasions. While in the
bathroom, Higdon pulled down K.S.'s pants, touched
K.S.'s penis, and performed oral sex on K.S. K.S.
did not report Higdon's actions because Higdon told
K.S. not to tell anyone.
"On August 23, 2012, A.D., the parent of another
child enrolled in the day-care facility, filed a
police report alleging that Higdon had performed
similar acts on her son. A.D. contacted K.S.'s
2
1140635
mother, K.W., to alert her to the allegations
against Higdon. K.W. asked K.S. if anyone at the
day-care facility had touched him inappropriately.
K.S. replied that Higdon had touched him and had
'put his mouth on his wee-wee.' During an interview
with the clinical director of the Prescott House, a
child-advocacy center, K.S. stated that Higdon had
touched him and had performed oral sex on him on
several occasions in the bathroom at Momma's Place."
Higdon v. State, [Ms. CR-13-1305, December 19, 2014] ___ So.
3d ___, ___ (Ala. Crim. App. 2014).
A jury convicted Higdon of first-degree sodomy of K.S.,
a child less than 12 years old, § 13A-6-63(a)(3), Ala. Code
1975, and of first-degree sodomy by forcible compulsion of
K.S., § 13A-6-63(a)(1), Ala. Code 1975. Higdon appealed his
convictions to the Court of Criminal Appeals. The Court of
Criminal
Appeals
affirmed
Higdon's
conviction
for
first-degree
sodomy of a child less than 12 years old and reversed Higdon's
conviction for first-degree sodomy by forcible compulsion,
holding that the State had failed to present sufficient
evidence of the element of forcible compulsion, and rendered
a judgment in Higdon's favor on that charge. Higdon v. State,
___ So. 3d at ___. The State petitioned this Court for a
review of the Court of Criminal Appeals' reversal of Higdon's
3
1140635
conviction for first-degree sodomy by forcible compulsion,1
requesting that this Court overrule Ex parte J.A.P., which
holds that, in a case in which the State must prove forcible
compulsion and the offender is a juvenile in a relationship of
trust with a child victim, evidence of the element of forcible
compulsion cannot be established by an implied threat.
Standard of Review
The State's request that this Court overrule Ex parte
J.A.P. requires this Court to reconsider our determination
that, as a matter of law, the element of forcible compulsion
cannot be established by evidence of an implied threat when
the defendant is a juvenile in a relationship of trust with
the child victim. Because the State's request presents a pure
question of law, our review is de novo. Ex parte Morrow, 915
So. 2d 539, 541 (Ala. 2004)("'This Court reviews pure
questions of law in criminal cases de novo.'"(quoting Ex parte
Key, 890 So. 2d 1056, 1059 (Ala. 2003))).
Higdon did not petition this Court for certiorari review
1
of the Court of Criminal Appeals' decision affirming his
conviction for first-degree sodomy of a child less than 12
years old. Therefore, that conviction is not before this
Court for review.
4
1140635
Discussion
The State contends that this Court should overrule Ex
parte J.A.P. because, it says, Ex parte J.A.P. prohibits the
State from proving the element of forcible compulsion through
evidence of an implied threat, as defined in § 13A-6-60(8),
Ala. Code 1975, in cases in which the defendant is a juvenile
in a position of authority over a child victim.
To establish a prima facie case of first-degree rape or
first-degree sodomy, thus allowing the matter to be submitted
to the jury, the State must present evidence indicating that
the defendant engaged in sexual intercourse by forcible
compulsion, i.e., that the defendant engaged in sexual
intercourse under circumstances in which the victim earnestly
resisted the sexual act or was threatened into the sexual act.
§ 13A-6-61 and § 13A-6-63, Ala. Code 1975. "Forcible
compulsion" is defined as "[p]hysical force that overcomes
earnest resistance or a threat, express or implied, that
places a person in fear of immediate death or serious physical
injury to himself or another person." § 13A-6-60(8).
In Powe v. State, 597 So. 2d 721 (Ala. 1991), this Court
examined whether the State had presented sufficient evidence
5
1140635
to sustain the defendant's conviction
for first-degree
rape by
forcible compulsion. In Powe, the 40-year-old natural father
had assaulted his 11-year-old daughter in his bedroom while no
one else was home. The daughter testified that she was afraid
of her father. No evidence, however, was presented indicating
that the daughter had been overcome by physical force exerted
by the father or that the father had expressly threatened the
daughter. This Court, however, reasoned that a child's
general fear of a parent can suffice as the "force" necessary
to support a rape conviction; this Court, therefore, affirmed
the conviction, concluding that that the totality of the
evidence was sufficient to establish an implied threat that
placed the daughter "in fear of immediate death or serious
physical injury." § 13A-6-60(8). We stated:
"[A] jury could reasonably infer that [the father]
held a position of authority and domination with
regard to his daughter sufficient to allow the
inference of an implied threat to her if she refused
to comply with his demands."
597 So. 2d at 728. We observed that the decision
"establishe[d] a mechanism by which the unique
relationship between children and the adults who
exercise a position of domination and control over
them may be taken into consideration in determining
whether the element of forcible compulsion has been
established."
6
1140635
597 So. 2d at 729.
In Ex parte J.A.P., this Court refused to extend the
forcible-compulsion analysis in Powe to a case in which the
defendant charged with attempting to engage in sexual
intercourse by forcible compulsion with a child was a
juvenile. Instead of focusing on whether the totality of the
evidence sufficiently established that the juvenile defendant
exercised a position of domination and control over the child
victim such that a jury could infer an implied threat from the
child victim's perspective to establish the element of
forcible compulsion, this Court held that the holding in Powe
applied "only to cases involving the sexual assault of
children by adults who exercised positions of domination and
control over the children." 853 So. 2d at 284. This Court's
decision in Ex parte J.A.P. established a "bright line" rule
that shifted the focus with regard to the trial court's
determination of the sufficiency of the evidence of forcible
compulsion away from the perspective of the child, instead
focusing the determination solely on the offender's age.
Upon further consideration, however, we recognize that
the focus in determining whether sufficient evidence has been
7
1140635
presented from which a jury can infer that forcible compulsion
by an implied threat exists should be the perspective of the
child victim. As this Court recognized in Powe:
"When a defendant who plays an authoritative role in
a child's world instructs the child to submit to
certain acts, an implied threat of some sort of
disciplinary action accompanies the instruction. If
the victim is young, inexperienced, and perhaps
ignorant of the 'wrongness' of the conduct, the
child may submit to acts because the child assumes
that the conduct is acceptable or because the child
does not have the capacity to refuse."
597 So. 2d at 728-29 (emphasis added). Thus, regardless of the
defendant's age, when determining as a matter of law the
sufficiency of the evidence of an implied threat from which a
jury may infer the element of forcible compulsion, the trial
court may consider from the child victim's perspective, among
other factors, the difference in age or physical maturity
between the defendant and the child victim and the defendant's
conduct and exercise of a position of authority or control
over the child victim. Because our holding in Ex parte J.A.P.
unjustly limited the effect of the definition of forcible
compulsion by an implied threat and inappropriately shifted
the trial court's examination of the sufficiency of the
evidence of forcible compulsion by an implied threat in cases
8
1140635
involving a juvenile offender from the perspective of the
child victim to the age of the offender, Ex parte J.A.P. is
hereby overruled.
In overruling Ex parte J.A.P., this Court returns to an
approach more consonant with the statutory definition of
forcible compulsion and the principles set forth in a Powe in
conducting a forcible-compulsion analysis when a defendant,
regardless of his or her age, exercises a position of
domination and control over a child.
Conclusion
Accordingly, the judgment of the Court of Criminal
Appeals is reversed, and this case is remanded for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ.,
concur.
Shaw, J., concurs specially.
Moore, C.J., dissents.
9
1140635
SHAW, Justice (concurring specially).
I concur fully in the main opinion, which overrules Ex
parte J.A.P., 853 So. 2d 280 (Ala. 2002). That decision
reversed the Court of Criminal Appeals' judgment in J.A.P. v.
State, 853 So. 2d 264 (Ala. Crim. App. 2001), an opinion I
authored when I was a judge on the Court of Criminal Appeals.
I "continue to believe" what a majority of the Court of
Criminal Appeals expressed in J.A.P. v. State:
"We continue to believe that the focus in cases of
this kind ... must be on the child victim and that
the issue of the sufficiency of the evidence to
support a finding of forcible compulsion must be
resolved by viewing the totality of the evidence
from the perspective of the child victim. We also
believe that in close cases of this nature, the
juvenile court is in a unique position to assess the
credibility of the witnesses and to determine
whether a young child was physically compelled or
psychologically coerced or conditioned by years of
sexual abuse into participating in a sex act with an
older child."
853 So. 2d at 269.
10
1140635
MOORE, Chief Justice (dissenting).
I dissent because I am concerned the Court is stepping
into the shoes of the legislature in this case.
Sodomy is an abhorrent crime and should be strictly
punished. In this case the defendant, Eric Lemont Higdon, a
17-year-old who worked as an intern at a day-care facility,
was convicted under § 13A-6-63(a)(3), Ala. Code 1975, of
sodomy in the first degree of a child under 12 years old and
was sentenced to 23 years' imprisonment. He has not challenged
that conviction on appeal.
Higdon was also charged under § 13A-6-63(a)(1), Ala. Code
1975, which states: "A person commits the crime of sodomy in
the first degree if ... [h]e engages in deviate sexual
intercourse with another by forcible compulsion." (Emphasis
added.) "Forcible compulsion," in turn, is defined as
"[p]hysical force that overcomes earnest resistance or a
threat, express or implied, that places another person in fear
of immediate death or serious physical injury to himself or
another person." § 13A-6-60(8), Ala. Code 1975 (emphasis
added).
11
1140635
The "implied" threat in the definition of forcible
compulsion is not the threat of sexual assault but of
"immediate death or serious physical injury." The legislature
has defined serious physical injury as "[p]hysical injury
which creates a substantial risk of death, or which causes
serious
and
protracted
disfigurement,
protracted
impairment
of
health, or protracted loss or impairment of the function of
any bodily organ." § 13A-1-2(14), Ala. Code 1975.
Because there was no evidence in this case of an implied
threat of serious physical injury under this definition, or of
an implied threat of death, Higdon cannot be convicted of
sodomy in the first degree "by forcible compulsion." This
Court has previously taken the position that an implied threat
under § 13A-6-60(8) may be inferred in cases "concerning the
sexual assault of children by adults with whom the children
are in a relationship of trust." See Powe v. State, 597 So. 2d
721, 728 (Ala. 1991)(emphasis added). Today the Court extends
that rule to cases involving sexual assault of children by
other children, of perhaps a different age and level of
maturity. Although this may be a noble cause in certain
situations, policymaking is beyond the role of this Court.
12
1140635
This Court has potentially opened the door to cases in which
a 10-year-old could be convicted of "first-degree sodomy by
forcible compulsion" for intercourse with an 8-year-old, or a
6-year-old with a 4-year-old, or a 16-year-old with a 14-year-
old. The legislature, however, has already drawn these lines
in the statute under which Higdon was convicted, stating that
a person commits sodomy in the first degree if "[h]e, being 16
years old or older, engages in deviate sexual intercourse with
a person who is less than 12 years old." § 13A-6-63(a)(3).
Because the Legislature of Alabama has adopted § 13A-6-
63(a)(3), which covered Higdon's conduct, for which he is
being punished, this Court has no "right" or "authority" to
make a "new" law to govern conduct between minors the
legislature
obviously
chose
not
to
address.
Therefore,
because
I believe this Court is adding its own rule to the statute, I
respectfully dissent.
13 | July 10, 2015 |
f3ae1e5a-1d5e-4e14-8d5c-3cc4ae765a8a | Ex parte Marvin Nikia Gaston. | N/A | 1130469 | Alabama | Alabama Supreme Court | REL:06/12/2015
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, 2014-2015
____________________
1130469
____________________
Ex parte Marvin Nikia Gaston
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Marvin Nikia Gaston
v.
State of Alabama)
(Montgomery Circuit Court, CC-10-597;
Court of Criminal Appeals, CR-11-0823)
PER CURIAM.
1130469
WRIT QUASHED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and
Bryan, JJ., concur.
Moore, C.J., dissents.
2
1130469
MOORE, Chief Justice (dissenting).
Marvin Nikia Gaston was convicted of felony murder, see
§ 13A-6-2(a)(3), Ala. Code 1975, and first-degree
assault,
see
§ 13A-6-20, Ala. Code 1975. Gaston was sentenced to 30 years'
imprisonment on each conviction, the sentences to run
concurrently, and he was ordered to pay $8,140 in restitution
and $50 to the Crime Victims Compensation Fund. On appeal, the
Court of Criminal Appeals affirmed Gaston's convictions and
sentences
in
an
unpublished
memorandum,
reasoning,
among
other
things, that Gaston failed to preserve for appellate review
his objection that his accomplice's testimony was not
corroborated. Gaston v. State (No. CR-11-0823, Dec. 13,
2013),
___ So. 3d ___ (Ala. Crim. App. 2014) (table). This Court
issued a writ of certiorari to review the Court of Criminal
Appeals' decision but now quashes the writ. Because I do not
believe the State presented sufficient evidence to convict
Gaston, I respectfully dissent.
On the evening of June 13, 2009, Marvin Gaston,
Samdriquez Hall, Jemario Mushat, Seandarius Savage, and Pete
Mungro were riding around Montgomery in a blue GMC Yukon
sport-utility vehicle ("the SUV") that belonged to Gaston's
3
1130469
aunt, who had allowed Mungro to borrow it. At approximately
10:00 p.m., Gaston and his companions stopped at a Pace Car
gasoline station on Narrow Lane Road. While they were putting
gasoline into the SUV, Hall was involved in a brief
altercation with LaQuinta Shuford. Hall punched Shuford,
yelling "f[***] Court Block," an apparent reference to a gang
whose area is South Court Street in Montgomery. Shuford's
girlfriend, Kimberly Manor, intervened and stopped the
situation from escalating.
Shuford testified that he then reached for his cellular
telephone and that, when he did so, Mungro approached Shuford
holding his belt, as if "he had a gun tucked under his belt."
Apparently, Mungro believed that Shuford was reaching for a
gun. Savage intervened and told Mungro that Shuford did not
have a gun and that he was not threatening them. Shuford and
Manor returned to their vehicle, and Mungro, Hall, and their
companions (including Gaston) returned to the SUV. As Manor
was driving her vehicle away from the gas station, the SUV
pulled up beside her vehicle. Manor heard someone yell,
"B[****], pull over." Manor looked to her left, where she saw
Mushat pointing a gun out of the passenger-side front window
4
1130469
of the SUV. Mushat fired a shot, which hit Manor's vehicle.
Nobody was injured, and the SUV sped away.
Manor testified that she did not know Gaston, that she
could not identify him as an occupant of the SUV, that he did
not threaten her at the gas station, that she did not see him
with a gun, and that he did not aid "in anything that went on"
that night. Likewise, Shuford testified that there was no "bad
blood" between him and Gaston. Shuford also testified that he
could not implicate Gaston in the events of June 13, 2009.
When asked to describe Gaston's involvement in
the
gas-station
altercation, Shuford testified that Gaston was merely in the
"[w]rong place at the wrong time."
Between 30 to 60 minutes after the incident at the Pace
Car gas station, Steve Arrington and Terrance Ponder were
heading westbound on East Boulevard in a Buick Roadmaster
automobile. Arrington testified that, after he and
Ponder
went
through a traffic light near the Pace Car gas station on
Narrow Lane Road, the blue SUV carrying Gaston and his
companions came up behind them and tried to run them off the
road. Occupants of the SUV fired shots at the Roadmaster and
eventually came alongside it on the left, at which point the
5
1130469
vehicles collided. More shots were fired into the Roadmaster,
and the SUV then sped away. Arrington was wounded and Ponder
was killed as a result of the shooting. Arrington was unable
to say which occupants of the SUV had fired the shots.
Arrington also testified that he did not know Gaston.
Mungro returned the SUV to Gaston's aunt sometime between
11:00 p.m. and 12:00 a.m. that night. The SUV had sustained
damage to its right rear-quarter panel. The following day,
Mungro told Gaston's aunt to put the SUV in her backyard and
instructed her not to open the door of her house for anyone.
Police confirmed that the Roadmaster had been shot 19
times. Police also recovered seven shell casings from the area
in which the shooting occurred. Adam Groom, a forensic
scientist with the Department of Forensic Sciences, testified
that the shell casings appeared to be fired from three
different weapons. However, police were unable to connect the
ejected shells to any firearms that were seized during the
investigation; therefore, they were unable to connect the
shell casings or bullets to any of the occupants of the SUV.
Sgt. Michael Myrick of the Montgomery Police Department
testified that Gaston voluntarily gave a statement to the
6
1130469
police during the investigation of the incident. According to
Sgt. Myrick, Gaston admitted that he had been riding around in
the SUV earlier on the evening of the shooting. However,
Gaston denied any knowledge of the shooting, claiming that he
and Mushat had been dropped off before the time at which the
police indicated the shooting occurred.
Gaston and his companions were arrested for their
involvement in the shooting. Gaston was charged with the
felony murder of Ponder and with first-degree assault as to
Arrington. The State's theory of the incident was that
Shuford's friends and Gaston's friends were members of rival
groups and that the encounter at the Pace Car gas station
prompted Gaston and his companions to look for other members
of Shuford's group to harm, which led to the shooting of
Arrington and Ponder. Gaston and Hall were tried together but
were represented by different counsel. During her opening
statement, Gaston's counsel told the jury that Gaston would
not dispute either that he was present during the incident at
the Pace Car gas station or that he was in the SUV when
Arrington and Ponder were shot.
7
1130469
Mushat, who had pleaded guilty to Ponder's murder and to
Arrington's assault, testified for the State at Gaston's
trial. Mushat testified that, when the shootings of Arrington
and Ponder occurred, three people were sitting in the backseat
of the SUV, that Gaston was one of them, and that Gaston was
sitting behind the driver. Mushat said he was sitting in the
front passenger seat. Mushat testified that shots were fired
from the backseat out of the rear passenger window (which
could be lowered only halfway), but he was unable to say which
of the three men in the backseat fired the shots. Mushat also
provided the following on cross-examination:
"Q.
You're not saying Mr. Gaston had a gun, are
you?
"A.
No ma'am.
"Q.
You're not saying Mr. Gaston shot at anybody
that night, are you?
"A.
No ma'am.
"Q.
You're not saying that he was the person who
instigated a fight with [Shuford] at Pace Car?
"A.
No ma'am.
"Q.
You're not saying he was the one who was
driving, following Ponder and Arrington in that
car
after
[they
left]
Front
Street
[a
nightclub]?
8
1130469
"A.
No, ma'am.
"....
"Q.
And you're not saying that any time that he
[Gaston] is leaning out of the window or
shooting out of the passenger side of the car?
"A.
No, ma'am.
"Q.
In fact, you never put him on the passenger
side of that vehicle, do you?
"A.
No, ma'am."
The State also introduced a letter Mushat admitted to
authoring in part and sending to Gaston while they were both
in jail. The letter urged Gaston to agree with Mushat that
Mungro was the shooter and that Savage was the driver.
At the close of the State's evidence, Gaston moved for
judgments of acquittal, arguing that the State could not
establish that he was involved in the shootings of Arrington
and Ponder. Specifically, Gaston's counsel commented three
times that the State failed to make a "prima facie showing"
that Gaston was complicit in the shootings of Arrington and
Ponder. Gaston's counsel also presented detailed arguments as
to why the evidence was insufficient to convict Gaston. As
part of the "prima facie showing" argument, Gaston's counsel
also discussed Mushat's
testimony in detail and concluded that
9
1130469
Mushat "has no information to show that Mr. Gaston or at least
no testimony was solicited that he either encouraged,
promoted, assisted or [in] any other manner was complicit in
the actions –- or the injuries caused to Mr. Ponder and Mr.
Arrington." The trial court denied Gaston's motion.
As part of his defense, Gaston called Robert Scott, an
automobile mechanic who had worked on the SUV. Scott testified
that the rear driver-side door window on the SUV was
manufactured in such a way that it lowered only about five
inches. Scott also testified that the door handle on the rear
driver-side door was broken and could not be opened from the
inside. Thus, according to the defense, Gaston was unable to
get out of the SUV without assistance from someone outside the
vehicle.
At the close of all the evidence, Gaston renewed his
motion for judgments of acquittal on both charges. The trial
court again denied Gaston's motion. The jury found Gaston
guilty of first-degree assault and felony murder. The trial
court sentenced Gaston to 30 years' imprisonment on each
conviction, the sentences to run concurrently.
10
1130469
On appeal to the Court of Criminal Appeals, Gaston
argued, among other things, that the trial court erred in
denying his motions for judgments of acquittal. In the
"Statement of the Issues" section of his brief to the Court of
Criminal Appeals, Gaston framed the issue as follows: "The
trial court erred in denying Gaston's motion for a judgment of
acquittal
where,
excluding
the
accomplice
testimony,
the
State
failed to present legally sufficient evidence that Gaston
acted either as a principal or accessory as to the offenses at
bar." After discussing the applicable law, Gaston began his
analysis by arguing that, "subtracting Jemario Mushat's
accomplice testimony, the State failed to present sufficient
evidence to connect Gaston to the commission of the offense."
Gaston
then
presented
the
following supporting
arguments:
(1) that, although the State presented evidence indicating
that Gaston was in the SUV when the incident at the Pace Car
gas station occurred, it presented no corroborating evidence
to show that Gaston was in the SUV when the shootings of
Arrington and Ponder occurred; (2) that there was no physical
or forensic evidence connecting Gaston to the offenses; (3)
that, even if the jury believed that Gaston was in the vehicle
11
1130469
at the time of the shootings, all the evidence placed him in
the backseat on the driver's side of the SUV, whereas the
gunfire came from the passenger's side of the SUV; and (4)
that none of the remaining evidence, if the accomplice
testimony is subtracted, suggested that Gaston was guilty of
the criminal offenses for which he was charged. Gaston
concluded the argument section of this issue as follows:
"Unlike his codefendant and alleged accomplices, there is no
evidence indicating that Gaston took any action at any point
in the evening, either by cursing, hitting, driving, or
shooting. The evidence does nothing to actually
connect
Gaston
to the commission of the offenses." Gaston
therefore concluded
that his motion for judgments of acquittal should have been
granted and requested that the Court of Criminal Appeals
reverse his convictions and sentences and render judgments of
acquittal in his favor.
In its unpublished memorandum, the Court of Criminal
Appeals framed this issue as follows:
"Gaston contends that the trial court erred in
denying his motion for judgments of acquittal
because,
he
says,
the
State's
evidence
was
insufficient to support a finding of guilt.
Specifically, Gaston argues that the State did not
produce evidence to corroborate the testimony of
12
1130469
accomplice Jemario Mushat, as required by §
12-21-222, Ala. Code, 1975. ..."
Citing Marks v. State, 20 So. 3d 166, 172 (Ala. Crim. App.
2008), the Court of Criminal Appeals held that Gaston failed
to preserve this issue for appeal because he challenged only
the sufficiency of
the
evidence at trial, without specifically
arguing that Mushat's testimony was uncorroborated.
Gaston petitioned this Court for a writ of certiorari,
which this Court granted on August 28, 2014.
"'"Appellate courts are limited in
reviewing a trial court's denial of a
motion for judgment of acquittal grounded
on insufficiency." McFarland v. State, 581
So. 2d 1249, 1253 (Ala. Crim. App. 1991).
"The standard of review in determining
sufficiency
of
evidence
is
whether
evidence
existed at the time [the defendant's]
motion for acquittal was made, from which
the jury could by fair inference find the
[defendant] guilty." Linzy v. State, 455
So. 2d 260, 26[2] (Ala. Crim. App. 1984)
(citing Stewart v. State, 350 So. 2d 764
(Ala. Crim. App. 1977), and Hayes v. State,
395 So. 2d 127 (Ala. Crim. App.), writ
denied, 395 So. 2d 150 (Ala. 1981)). In
determining
the
sufficiency
of
the
evidence, we view the evidence in the light
most favorable to the State. Linzy, supra.'
"Ex parte Burton, 783 So. 2d 887, 890-91 (Ala.
2000).
"'The role of appellate courts is not to say
what the facts are. Our role ... is to judge whether
13
1130469
the evidence is legally sufficient to allow
submission of an issue for decision to the jury.' Ex
parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."
Ex parte Williford, 931 So. 2d 10, 13 (Ala. 2005) (alterations
in original).
Gaston argues, among other things, that Marks and Ex
parte Weeks, 591 So. 2d 441 (Ala. 1991), upon which Marks was
based, are due to be overruled because, he says, they are
inconsistent
with
decisions
of
this
Court addressing
preservation of the issue of sufficiency of the evidence for
appellate review. In Ex parte Maxwell, 439 So. 2d 715, 717
(Ala. 1983), this Court stated the general rule for preserving
an objection to the sufficiency of the evidence:
"To preserve the issue for appeal, it is
necessary for defendant to state his grounds upon
moving to exclude evidence; however, it is not
necessary to draw the trial court's attention to the
particular defect. It is sufficient that the
defendant state the ground that the prosecution has
failed to make a prima facie case."
This general rule in Maxwell has been cited favorably
many times by this Court. See, e.g., Ex parte Parks, 923 So.
2d 330, 334 (Ala. 2005); Ex parte McNish, 878 So. 2d 1199,
1200-01 (Ala. 2003); Ex parte Hall, 843 So. 2d 746, 748-49
14
1130469
(Ala. 2002); and Ex parte Johnson, 620 So. 2d 665, 668-69
(Ala. 1993).
However, in Ex parte Weeks, 591 So. 2d at 442, this
Court, almost in passing, effectively held that a general
motion for a judgment of acquittal is insufficient to preserve
for appellate review the issue whether an accomplice's
testimony was sufficiently corroborated. Weeks did not quote
from, cite to, or even mention Maxwell. Since Weeks was
decided in 1991, this Court has never cited Weeks again in any
of its decisions involving the issue before us.
The Court of Criminal Appeals examined Weeks carefully in
Marks, interpreting Weeks to mean that an objection to the
sufficiency of the evidence does not preserve the specific
issue of accomplice corroboration. Although the Marks court
held that Weeks was an "anomaly" in the precedent of this
Court, it nevertheless felt bound to follow Weeks on the
specific issue of preservation of the issue of accomplice
corroboration for appellate review. Marks, 20 So. 3d at 172.
As noted above, the Court of Criminal Appeals in the present
case based its decision on Marks and, in turn, on Weeks.
15
1130469
Section
12-21-222,
Ala.
Code
1975,
provides:
"A
conviction of felony cannot be had on the testimony of an
accomplice unless corroborated by other evidence tending to
connect the defendant with the commission of the offense, and
such corroborative evidence, if it merely shows
the
commission
of the offense or the circumstances thereof, is not
sufficient." In other words, if a conviction for a felony is
based on an accomplice's testimony, then there must be
corroborating evidence tending to connect the defendant with
the commission of the offense. It would appear, then, that if
the State does not present such corroborating evidence, it has
not presented sufficient evidence to send the question of the
defendant's guilt to the jury. If this is true, then it is
difficult to justify Weeks (and subsequently Marks).1
In the appropriate case, this Court should consider
overruling Weeks and Marks. However, I believe it is not
necessary in this case to overrule Weeks and Marks because,
even if Mushat's testimony was sufficiently corroborated, I
2
I note, however, that the State made excellent arguments
1
in response to Gaston's contentions in his brief to this Court
and that Gaston failed to file a reply brief.
"'Corroborate means to strengthen, to make stronger; to
2
strengthen, not the proof of any particular fact to which the
16
1130469
believe that the State still failed to present sufficient
evidence that Gaston was guilty of the crimes with which he
was charged. Mushat testified that Gaston was in the SUV at
the time of the shooting, that Gaston was sitting in the
backseat behind the driver, and that the shots came from the
backseat, although he could not tell who was firing the shots.
Mushat did not testify that Gaston fired the shots that killed
Ponder or wounded Arrington, that Gaston fired any shots at
all, or that Gaston even had a gun. Moreover, Mushat did not
testify to anything from which the jury could reasonably infer
that Gaston aided, abetted, or encouraged those who did fire
the shots. In other words, Mushat testified only that Gaston
was in the SUV when the crimes occurred, and "mere presence at
witness has testified, but to strengthen the probative,
criminating force of his testimony.'" Andrews v. State, 370
So. 2d 320, 322 (Ala. Crim. App. 1979) (citing Malachi v.
State, 89 Ala. 134, 140-41, 8 So. 104, 106 (1889)). "Evidence
of flight or other indications of consciousness of guilt may
be considered as corroborative evidence." Andrews, 370 So. 2d
at 322. In this case, Gaston's apparent lie to the police –-
that he and Mushat were not in the SUV when the shooting
occurred –- tended to corroborate Mushat's testimony that
Gaston was in the SUV when the shooting occurred. Because I
believe
that
Mushat's
testimony
was
sufficiently
corroborated,
I believe that overruling Weeks and Marks would have made no
difference in this case; therefore, it was not necessary to do
so.
17
1130469
the scene of a crime is not enough to support a conviction."
Ex parte Smiley, 655 So. 2d 1091, 1095 (Ala. 1995).
Yet even taken together with Mushat's testimony, the
other evidence in this case was also insufficient to allow a
reasonable jury to find beyond a reasonable doubt that Gaston
was guilty of the charged offenses. Shuford testified merely
that Gaston was present at the Pace Car gas station 30 to 60
minutes before the shootings. Shuford testified that there
was
no "bad blood" between him and Gaston and that Gaston was
merely in the wrong place at the wrong time. Manor likewise
testified that Gaston was not involved in the altercation at
the gas station. Although a jury might reasonably infer that,
based on the gas-station altercation, Gaston would have a
desire to harm others who did have "bad blood" with his
friends, a jury would have to make yet another inference that
Gaston committed the wrongful acts for which he was charged.
See Systrends, Inc. v. Group 8760, LLC, 959 So. 2d 1052, 1074
(Ala. 2006) (noting that an "'"inference" is a reasonable
deduction of fact, unknown or unproved, from a fact that is
known or proved,'" but that an "'"inference cannot be derived
18
1130469
from another inference"'" (quoting Khirieh v. State Farm Mut.
Auto. Ins. Co., 594 So. 2d 1220, 1224 (Ala. 1992))).
Also, Sgt. Myrick testified that Gaston admitted to
riding around in the SUV that evening but told him that he and
Mushat were not in the SUV when the shooting occurred. Because
the jury knew that Mushat pleaded guilty, the jury could
reasonably infer that Gaston lied to Sgt. Myrick about that
fact. Nevertheless, the jury would have to make another
inference based on that inference to determine that Gaston was
guilty of the crimes with which he was being charged.
Likewise, even assuming that the shells found at the
scene of the shooting could be connected to the occupants of
the SUV, the evidence showed that the shots came from three
different weapons. Because there were five occupants of the
SUV, the jury would have had to guess which of the occupants
fired the shots. There is a difference between reasonably
inferring guilt from the evidence presented, which is
permissible, and completely guessing, which is not. See
Systrends, 959 So. 2d at 1074 (noting that a jury "might draw
reasonable inferences from the facts established by the
evidence" but that "'"[e]vidence ... which affords nothing
19
1130469
more than mere speculation, conjecture, or guess is
insufficient to warrant the submission of a case to the
jury"'" (quoting Finley v. Patterson, 705 So. 2d 826, 830
(Ala. 1984), quoting in turn Sprayberry v. First Nat'l Bank,
465 So. 2d 1111, 1114 (Ala. 1984))).
In short, the State wholly failed to present evidence
indicating that Gaston fired the shots that killed Ponder and
wounded Arrington, which are the wrongful acts for which
Gaston was tried. The jury could not reasonably infer that
Gaston shot Arrington and Ponder just because he was present
in the vehicle. "[M]ere presence at the scene of a crime is
not enough to support a conviction." Smiley, 655 So. 2d at
1095. Given the lack of evidence in this case, no jury could
find beyond a reasonable doubt that Gaston committed either of
the crimes with which he was charged; therefore Gaston's
motion for judgments of acquittal was due to be granted.
Likewise, there was not sufficient evidence to find
Gaston guilty under the theory of aiding and abetting.
"A person is legally accountable for the
behavior of another constituting a criminal offense
if, with the intent to promote or assist the
commission of the offense:
"....
20
1130469
"(2) He aids or abets such other person in
committing the offense."
§ 13A-2-23, Ala. Code 1975.
"In order to convict [a defendant] under this
complicity provision, 'the State must adduce some
legal evidence implying that he either recruited,
helped or counseled in preparing ... [to commit the
crime] or undertook some part in its commission.
Criminal agency in another's offense is not shown
merely by an exhibition of passivity.'"
Jones v. State, 481 So. 2d 1183, 1187 (Ala. Crim. App. 1985)
(quoting Pugh v. State, 42 Ala. App. 499, 502, 169 So. 2d 27,
30 (1964)) (second alteration in the original).
The prosecutor told the jury during his closing argument:
"If you don't even want to address the issue of
who pulled the trigger, it does not matter.
"Under the theory of aiding and abetting ...
when you offer any sort of assistance, support, any
sort of encouragement –- and you don't actually have
to say I hereby assist you, I support you in this,
here use my gun; you don't have to say those things
–- it can be implied –- but with that, that means
you do not have to put a gun in one of their hands."
The State still failed to present evidence indicating that
Gaston provided any assistance, support, or encouragement in
the commission of these crimes.
It is not abundantly clear in this case whether Gaston
was challenging only the Court of Criminal Appeals' holding
21
1130469
that he had waived the argument that Mushat's testimony was
not sufficiently corroborated or whether he was also bringing
to us the ultimate issue of the sufficiency of the evidence to
sustain the convictions. At trial, Gaston argued in his motion
for judgments of acquittal that the State failed to present a
prima facie case. As part of that argument, Gaston argued that
Mushat did not testify to anything that would have established
Gaston's guilt. On appeal, Gaston argued that, if Mushat's
testimony is excluded, the State failed to present sufficient
evidence to convict him.
The language in Gaston's brief to the Court of Criminal
Appeals was confusing. On the one hand, it could imply that
the evidence presented by the State would have been sufficient
if Mushat's testimony had been corroborated. On the other
hand, it could mean that Mushat's testimony was due to be
excluded because it did nothing to establish Gaston's guilt
and that, if Mushat's testimony is excluded, the State failed
to present sufficient evidence to convict Gaston. I believe
that Gaston meant the latter, especially because (1) this
interpretation is consistent with what Gaston argued at trial
and (2) Gaston concluded his argument before the Court of
22
1130469
Criminal Appeals by arguing that the State presented no
evidence (which necessarily would include Mushat's testimony)
indicating that Gaston committed the offenses in question. I
believe, therefore, that the Court of Criminal Appeals
incorrectly interpreted Gaston's argument to be solely about
corroboration of accomplice testimony when it was
really
about
the sufficiency of the evidence as a whole.
In his petition for a writ of certiorari, Gaston
addressed not only the issue whether his corroboration
argument had been preserved for appeal (which, in turn,
required asking us to overrule Weeks), but also the issue
whether the State presented sufficient evidence to convict
him. Gaston argued that the Court of Criminal Appeals confused
the question of law, which was whether the State presented
sufficient evidence to convict him, with a specific argument,
which dealt with whether Mushat's testimony had been
sufficiently corroborated. Gaston also argued that, once
Mushat's testimony was subtracted, the State
failed
to
present
sufficient evidence to convict him. After this Court granted
certiorari review, Gaston briefed these issues, and the State
made no objection that Gaston was briefing an irrelevant issue
23
1130469
because
the
sufficiency-of-the-evidence
issue
was
not
properly
before us. Thus, I believe the issue of the sufficiency of the
evidence was properly before this Court.
However, even if it was not, the United States Supreme
Court has held that "a court may consider an issue 'antecedent
to ... and ultimately dispositive of' the dispute before it,
even an issue the parties fail to identify and brief." United
States Nat'l Bank of Oregon v. Independent Ins. Agents of
America, Inc., 508 U.S. 439, 447 (1993) (quoting Arcadia v.
Ohio Power Co., 498 U.S. 73, 77 (1990)). The present dispute
3
ultimately arose from the question whether the
State
presented
sufficient evidence to convict Gaston. The issue of the
See also Planned Parenthood of Kansas & Mid-Missouri v.
3
Moser, 747 F.3d 814, 837 (10th Cir. 2014) (following United
States Nat'l Bank) ("Waiver, however, binds only the party,
not the court. A party that waives an issue is not entitled to
have us consider and rule on it. But it is well-settled that
courts have discretion to raise and decide issues sua sponte,
even for the purpose of reversing a lower-court judgment.");
Belize Telecom, Ltd. v. Government of Belize, 528 F.3d 1298,
1303-04 (11th Cir. 2008) (applying United States Nat'l Bank);
cf. Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.
2d 949, 960 (Ala. 2004) ("'"Appellate review does not consist
of supine submission to erroneous legal concepts .... Our duty
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or by passivity, can force
us to abdicate our appellate responsibility."'" (quoting
Forshey v. Principi, 284 F.3d 1335, 1357 n.20 (Fed. Cir.
2002), quoting in turn Empire Life Ins. Co. of America v.
Voldak Corp., 468 F. 2d 330, 334 (5th Cir. 1972))).
24
1130469
sufficiency of the evidence is therefore antecedent to the
questions
whether
Mushat's
testimony
was
corroborated
sufficiently and whether Gaston preserved that argument for
appellate review. Moreover, if the State failed to present
sufficient evidence to convict Gaston, then Gaston
is
entitled
to a judgment of acquittal, which would dispose of the other
issues.
"He that walketh with wise men shall be wise: but a
companion of fools shall be destroyed." Proverbs 13:20 (King
James). Gaston may have been a "companion of fools," but that
is all that the State could prove. Merely being a companion of
fools is not a punishable crime at law. The jury could not
reasonably infer from the fact that Gaston was in the SUV with
four other people that he was the one who fired the shots or
that he aided or abetted those who did. I therefore believe
the
prosecution
obtained
Gaston's
convictions
and
sentences
by
proving "guilt by association" instead of by proving guilt
beyond a reasonable doubt. Because the State did not meet its
burden, I believe the judgment of the Court of Criminal
Appeals is due to be reversed and that Gaston is due to be
acquitted. For these reasons, I respectfully dissent.
25 | June 12, 2015 |
785b659f-a851-4399-8996-650e4c75b3a6 | American Bankers Insurance Company of Florida v. Sherry Bronson | N/A | 1131245 | Alabama | Alabama Supreme Court | rel: 06/26/2015
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, 2014-2015
____________________
1131244
____________________
American Bankers Insurance Company of Florida
v.
Gladys Tellis
Appeal from Macon Circuit Court
(CV-14-900033)
____________________
1131245
____________________
American Bankers Insurance Company of Florida
v.
Sherry Bronson
Appeal from Macon Circuit Court
(CV-14-900025)
____________________
1131264
____________________
American Bankers Insurance Company of Florida
v.
Gwendolyn Moody
Appeal from Chambers Circuit Court
(CV-14-900022)
____________________
1131384
____________________
American Bankers Insurance Company of Florida
v.
Nadine Ivy
Appeal from Bullock Circuit Court
(CV-14-900015)
____________________
1131514
____________________
American Bankers Insurance Company of Florida
v.
Uneeda Trammell
Appeal from Chambers Circuit Court
(CV-14-900020)
1131244, 1131245, 1131264, 1131384, 1131514
STUART, Justice.
Gladys Tellis, Sherry Bronson, Gwendolyn Moody, Nadine
Ivy,
and
Uneeda
Trammell
(hereinafter
referred
to
collectively
as "the policyholders") initiated separate actions against
American Bankers Insurance Company of Florida ("American
Bankers"), asserting generally that American Bankers had sold
them homeowner's insurance policies providing a level of
coverage they could never receive, even in the event of a
total loss involving the covered property. American Bankers
thereafter moved the trial court hearing each action to compel
arbitration
pursuant
to
arbitration
provisions
it
alleged
were
part of the subject policies; however, the trial courts denied
those motions, and American Bankers now appeals. We
consolidated the five appeals for the purpose of writing one
opinion. We reverse and remand.
I.
The facts underlying each of these five consolidated
appeals are substantially identical. Sometime in 2012 or 2013
each of the policyholders renewed a homeowner's insurance
policy he or she had previously obtained from American
Bankers. Thereafter, each concluded that he or she was paying
3
1131244, 1131245, 1131264, 1131384, 1131514
excessive premiums inasmuch as the policies provided a level
of coverage that allegedly far exceeded the value of the
covered properties; in other words, the policyholders allege
that they were overinsured inasmuch as they could never
receive the policy limits even if the covered property was
declared a total loss. In February 2014, the policyholders
separately
sued
American
Bankers,
alleging
breach
of
contract,
several species of fraud, unjust enrichment, and negligence
and/or wantonness.
American Bankers thereafter moved the trial courts in
which these actions were filed –– the Bullock Circuit Court,
the Chambers Circuit Court, and the Macon Circuit Court –– to
compel arbitration pursuant to the following arbitration
provision it alleged was contained in the policyholders'
policies:
"Any and all claims, disputes, or controversies
of any nature whatsoever ... arising out of,
relating to, or in connection with (1) this policy
or certificate or any prior policy or certificate
issued by us to you ... shall be resolved by binding
arbitration before a single arbitrator. All
arbitrations shall be administered by the American
Arbitration Association ('AAA') in accordance with
its
Expedited
Procedures
of
the
Commercial
Arbitration Rules of the AAA in effect at the time
the claim is filed."
4
1131244, 1131245, 1131264, 1131384, 1131514
The policyholders opposed the motions to compel arbitration,
arguing that they had never consented to arbitrate their
claims, that they had not signed any documents containing an
arbitration provision, and that the arbitration provision in
the policies was unconscionable. The trial courts thereafter
denied
each
of
American
Bankers'
motions
to
compel
arbitration, and American Bankers separately appealed those
denials to this Court pursuant to Rule 4(d), Ala. R. App. P.
This Court consolidated the appeals based on the similarity of
the facts and the issues presented.
II.
Our standard of review of a ruling denying a motion to
compel arbitration is well settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
5
1131244, 1131245, 1131264, 1131384, 1131514
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In order to answer the ultimate question in these cases
–– whether the trial courts erred in denying American Bankers'
motions to compel arbitration –– we must address three issues:
(1) whether the parties agreed to arbitrate the claims
asserted in the policyholders' complaints; (2) whether the
underlying transactions, i.e., the sale of the insurance
policies, affected interstate commerce; and (3) whether the
arbitration
provision
in
the
subject
policies
is
unconscionable. With regard to the first issue, American
Bankers submitted to the respective trial courts a copy of the
policy allegedly issued to each of the policyholders.
Included as part of those policies are basically two forms
referencing arbitration: form AJ9821EPC-0608 and form N1961-
0798. Form AJ9821EPC-0608 is entitled "Arbitration Provision
1
The policy issued to Moody, the plaintiff in appeal no.
1
1131264, included form AJ8654EXX-0604 instead of form
AJ9821EPC-0608; however, those two forms appear to be
6
1131244, 1131245, 1131264, 1131384, 1131514
Alabama" and contains a general arbitration provision,
part of
which is quoted above. Form N1961-0798 is entitled "Important
notice about the policy/certificate of insurance for
which
you
have applied" and explains generally what arbitration is and
states that the policy contains a binding arbitration
agreement pursuant to which the insured and the insurer waive
the right to trial in a court of law. Although form N1961-
0798 contains a signature line for the applicant, a co-
applicant, and a witness, it is undisputed that none of the
policyholders executed this form. The policyholders have
further executed affidavits swearing that they never received
or signed either form –– or any other document related to
their American Bankers' policies purporting to be an
arbitration provision –– when applying for insurance or at
anytime thereafter until the commencement of this litigation.
They further state that they never would have purchased
coverage from American Bankers had they been presented with
the arbitration provision American Bankers now seeks to
enforce.
identical in all material ways. For convenience, we
hereinafter include Moody's form in any reference to form
AJ9821EPC-0608.
7
1131244, 1131245, 1131264, 1131384, 1131514
American Bankers concedes that the policyholders never
signed
form
N1961-0798
or
separate
arbitration
agreements,
but
it argues that they nevertheless assented to the arbitration
provision in their policies. In support of its argument that
an arbitration provision in an insurance policy can be
effective even if not disclosed in the application and even
without the insured's signature, American Bankers cites
Southern United Fire Insurance Co. v. Howard, 775 So. 2d 156,
162-63 (Ala. 2000), which provides:
"[The plaintiff] argues that he did not assent
to the arbitration provision in the insurance policy
because the arbitration provision was not included
in the insurance application and because he did not
sign the insurance policy. First, a contractual
agreement to arbitrate may be found invalid only
'upon such grounds as exist at law or in equity for
the revocation of any contract.' 9 U.S.C. § 2. It
is not a requirement of Alabama contract law that
for a contract provision to be enforceable it must
have appeared also in the application to enter into
the contract. See Ex parte Foster, 758 So. 2d 516
(Ala. 1999). Thus, the arbitration provision need
not have appeared in the application for insurance
for the parties to be bound by it. Second, '[t]his
Court is required to compel arbitration if, under
"ordinary state-law principles that govern the
formation of contracts," the contract containing the
arbitration clause is enforceable.' Quality Truck
& Auto Sales, Inc. v. Yassine, 730 So. 2d 1164, 1167
(Ala. 1999). Alabama's general contract law permits
assent to be evidenced by means other than
signature, and, thus, the contract of insurance and
the arbitration provision contained in it can be
8
1131244, 1131245, 1131264, 1131384, 1131514
enforceable by the parties in the absence of
signatures, where the evidence establishes the
existence of the agreement. [The defendant insurance
company's] insurance policy is not subject to either
of Alabama's Statutes of Frauds, see Ala. Code §§
7–2–201 and 8–9–2, nor is it made contingent upon
the condition precedent that it be signed by [the
plaintiff]. [The plaintiff] accepted and acted upon
[the defendant's] insurance policy, which contained
the arbitration provision, by paying premiums,
renewing the policy, and submitting a claim under
the policy. Therefore, because [the plaintiff]
ratified the policy, the absence of his signature
does not render the policy, or the arbitration
provision contained in it, unenforceable."
(Footnote
omitted.)
American
Bankers
similarly
maintains
that
the policyholders have manifested their assent to arbitration
in these cases by accepting and acting upon the insurance
policies containing the arbitration provision.
Our caselaw supports American Bankers' position. Beyond
Howard, this Court has considered multiple other appeals in
which parties have sought to avoid arbitration provisions in
insurance
policies
by
claiming
that
the
arbitration
provisions
were not disclosed to them or that they never received a copy
of the policy containing the arbitration provision. In Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998), the plaintiffs
argued that they never agreed to arbitrate their claims
because their application for insurance did not mention
9
1131244, 1131245, 1131264, 1131384, 1131514
arbitration and because they did not sign the endorsement
attached to the policy that contained the arbitration clause.
This Court rejected those arguments, noting that "[m]any
parts
of an insurance policy are not mentioned in the application"
and
explaining further
that
the
unsigned
endorsement
containing the arbitration clause was part of the issued
policy because the policy expressly stated that "'[t]his
policy with any attached papers is the entire contract between
you and the [insurance] Company.'" 712 So. 2d at 335. See
also Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000) ("Under
state-law
principles of
contract
interpretation,
parties
may
be
bound
by
documents
incorporated
by reference.").
It is unclear exactly what parts of the insurance policy
the
policyholders
acknowledge
receiving
in
this
case;
however,
they have stated in their affidavits only that they did not
receive the two identified forms specifically discussing
arbitration or any other document purporting to be an
arbitration agreement. Thus, they presumably received the
rest of the policy American Bankers submits was issued to
them, including the declarations page and the
written
insuring
10
1131244, 1131245, 1131264, 1131384, 1131514
agreement, which provides that "[t]his policy is not complete
without the declarations page." The declarations page lists
forms AJ9821EPC-0608 and N1961-0798 as part of the included
"forms and endorsements." Although the policyholders claim
2
not to have received forms AJ9821EPC-0608 and
N1961-0798,
they
had some duty to investigate the contents of those forms
because the declarations page indicated that the forms were
part of the policy. See, e.g., Alfa Life Ins. Co. v. Colza,
159 So. 3d 1240, 1249-50 (Ala. 2014) (noting that insurance
policyholders have a duty to read the documents provided them
and are charged with the knowledge such a reading would impute
to them), and McDougle v. Silvernell, 738 So. 2d 806, 808
(Ala. 1999) (stating that a party to a contract that fails to
inform himself or herself of extraneous facts or other
documents incorporated into the contract is nevertheless
"bound thereby" (quoting Ben Cheeseman Realty Co.
v.
Thompson,
216 Ala. 9, 12, 112 So. 151, 153 (1927))). We further note
that this Court has also enforced arbitration provisions in
The declarations page lists forms AJ9821EPC-0608 and
2
N1961-0798 as forms "AJ9821EPC 06/08" and "N1961 07/98,"
respectively. With regard to Moody, the declarations page in
her policy lists form AJ8654EXX-0604 as form "AJ8654EXX
06/04."
11
1131244, 1131245, 1131264, 1131384, 1131514
insurance policies where the plaintiffs claimed never to have
received the written policies containing the provisions.
See,
e.g., Ex parte Southern United Fire Ins. Co., 843 So. 2d 151,
156 (Ala. 2002) (enforcing an arbitration provision even
though it was claimed that "[the plaintiff] did not receive a
copy of either the policy or the arbitration rules referenced
in the policy"), and Philadelphia American Life Ins. Co. v.
Bender, 893 So. 2d 1104, 1109 (Ala. 2004) (enforcing an
arbitration provision in an insurance policy even though the
plaintiff "claims that he did not receive a copy of the
policy").
Finally, we note that this Court has, on other occasions,
considered similar cases involving financial agreements other
than insurance policies in which parties have challenged
arbitration
provisions
they
alleged
were
subsequently
added
to
the agreements without their express consent or knowledge. We
have uniformly recognized that a signature or express consent
is not required to give effect to the new arbitration
provisions; rather, we have held that the parties effectively
manifested their assent to the added provisions by continuing
the relationship after the arbitration provision was added.
12
1131244, 1131245, 1131264, 1131384, 1131514
We summarized some of these insurance and non-insurance cases
as follows in Providian National Bank v. Screws, 894 So. 2d
625, 627 (Ala. 2003):
"This
Court
has
previously
enforced
an
arbitration
provision
added
to
credit-card
agreements by amendment. See Ex parte Colquitt, 808
So. 2d 1018 (Ala. 2001). Further, this Court has
continually held that express assent is not required
in order for an arbitration provision to be
enforceable. SouthTrust Bank v. Williams, 775 So.
2d 184, 189 (Ala. 2000) (holding that an arbitration
provision added to a customer's account agreement by
notice was valid and enforceable); Woodmen of the
World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 367
(Ala. 1999) (holding that express assent to an
arbitration provision is not required when the
arbitration provision is added by amendment); Ex
parte Rager, 712 So. 2d 333, 335 (Ala. 1998) (noting
that the inclusion of an arbitration provision is
not a material alteration to an insurance policy
requiring
a
signed
application);
Southern
Foodservice Mgmt., Inc. v. American Fid. Assurance
Co. 850 So. 2d 316 (Ala. 2002)(same)."
We note that, like the policyholders in these cases, the
plaintiffs in Ex parte Colquitt, 808 So. 2d 1018, 1021 n. 1
(Ala. 2001), and Woodmen of the World Life Insurance Society
v. Harris, 740 So. 2d 362, 366 n. 6 (Ala. 1999), claimed not
to have seen any notice that would have apprised them of the
fact that an arbitration provision was made part of their
agreements.
13
1131244, 1131245, 1131264, 1131384, 1131514
In sum, although the policyholders did not execute stand-
alone arbitration agreements or necessarily even read or
receive the insurance policies containing the arbitration
provisions, they have nevertheless manifested their assent to
those
policies
and,
necessarily,
the
arbitration
provisions
in
them, by accepting and acting upon the policies, inasmuch as
they all affirmatively renewed their policies and paid their
premiums, thus ratifying the policies. Howard, 775 So. 2d at
162-63. See also SouthTrust Bank v. Williams, 775 So. 2d 184,
189 (Ala. 2000) (stating that parties that "continued the
business
relationship
after
the
interposition
of
the
arbitration
provision"
"implicitly
assented
to
the
addition
of
the arbitration provision"). This holding is consistent with
our previous caselaw interpreting arbitration provisions in
insurance policies. Because the policyholders assented to,
3
We note that the policyholders have not asked us to
3
overrule Howard, Ex parte Rager, Ex parte Southern United,
Bender, or other cases in which this Court has reached similar
holdings. Indeed,
although
American Bankers discussed most of
these cases in the initial brief it filed with this Court, the
policyholders have not responded to American Bankers'
discussion of those cases or otherwise attempted to
distinguish the cases in their response brief, much less asked
us to overrule them. "Stare decisis commands, at a minimum,
a degree of respect from this Court that makes it disinclined
to overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
14
1131244, 1131245, 1131264, 1131384, 1131514
and are therefore subject to, the arbitration provision in
their insurance policies, we conclude that they agreed to
arbitrate the claims asserted in their complaints inasmuch as
those claims "aris[e] out of, relat[e] to, [and are]
connect[ed] with" those insurance policies.
Having established that the policyholders at least
ratified the insurance policies issued to them by American
Bankers and that those policies call for arbitration, we must
next address whether the sale of those policies affected
interstate commerce so as to require enforcement of the
policies' arbitration provision under the Federal Arbitration
Act, 9 U.S.C. § 1 et seq. The policyholders wisely do not
argue that American Bankers' sale of these insurance policies
does not affect interstate commerce; rather, they argue only
that American Bankers failed to put forth any evidence that
would establish that fact. See, e.g., Service Corp. Int'l v.
Fulmer, 883 So. 2d 621, 629 (Ala. 2003) (explaining that, in
So. 2d 914, 926 (Ala. 2002). See also Clay Kilgore Constr.,
Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898 (Ala.
2006) (noting the absence of a specific request by the
appellant to overrule existing authority and stating that,
"[e]ven if we would be amenable to such a request, we are not
inclined to abandon precedent without a specific
invitation
to
do so").
15
1131244, 1131245, 1131264, 1131384, 1131514
light of decisions of the Supreme Court of the United States,
"a trial court evaluating a contract connected to some
economic or commercial activity would rarely, if ever, refuse
to compel arbitration on the ground that the transactions
lacked 'involvement' in interstate commerce"), and Potts v.
Baptist Health Sys., Inc., 853 So. 2d 194, 199 (Ala. 2002)
("The burden of proof was on the [parties moving to compel
arbitration] to provide evidence demonstrating that [the
subject]
contract,
or
the
transaction
it
evidenced,
substantially affected interstate commerce.").
It appears that, in at least some of these consolidated
appeals, American Bankers made an additional evidentiary
submission intended to establish that the sale to certain of
the policyholders of these insurance policies affected
interstate commerce once it became apparent that the
policyholders would contest that issue; however, the trial
courts thereafter struck those submissions as being tardy.
Hence, the policyholders argue that American Bankers has
failed to put forth evidence that would satisfy the
interstate-commerce requirement. However, even without
considering those submissions, it is clear from the
undisputed
16
1131244, 1131245, 1131264, 1131384, 1131514
facts and the evidence in the record that these transactions
affected interstate commerce. As evidenced by the copies of
the insurance policies that are in the record in each case,
the policyholders are all Alabama residents and the subject of
each insurance policy is property located in Alabama. Those
same policies also indicate that American Bankers –– the full
corporate name is reflected on the policy as American Bankers
Insurance Company of Florida –– has a Florida address and that
the agent for each of the policies is shown as having either
a Florida or a Minnesota address. This diversity of
citizenship between the parties is sufficient to establish
that the transactions between them affected interstate
commerce. See, e.g., America's Home Place, Inc. v. Rampey,
[Ms. 1130150, October 24, 2014] ___ So. 3d ___ n. 2 (Ala.
2014) (indicating that the interstate-commerce requirement is
met when a contract showed on its face that the company
constructing a house in Alabama "listed its place of business
as being in 'Hall County, Gainesville, GA'"); DecisionQuest,
Inc. v. Hayes, 863 So. 2d 90, 95 (Ala. 2003) ("'"[A]ll
interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test,
17
1131244, 1131245, 1131264, 1131384, 1131514
of interstate commerce; and every negotiation, contract,
trade, and dealing between citizens of different states,
which
contemplates and causes such importation, whether it be of
good, person, or information, is a transaction of interstate
commerce."'" (quoting Uncle Ben's, Inc. v. Crowell, 482 F.
Supp. 1149, 1154 (E.D. Ark. 1980), quoting in turn Furst v.
Brewster, 282 U.S. 493, 497 (1931))); and Ex parte Dyess, 709
So. 2d 447, 450 (Ala. 1997) ("[T]he policy issued by American
Hardware [Insurance Group, Inc.,] to Jack Ingram Motors[,
Inc.,] involves interstate commerce because the policy was
between corporations of different states. Therefore, the
Federal Arbitration Act applies ....").4
Our final inquiry, therefore, is whether the arbitration
provision in the subject policies is unconscionable. In
We further note that the policyholders have filed
4
stipulations indicating that they are not seeking, and will
not accept, any award of damages that exceeds $74,999.99.
These stipulations were presumably filed in recognition
of
the
diversity
of
citizenship
that
exists
between
the
policyholders
and American Bankers and a desire to avoid the possibility of
the underlying cases being removed to federal court pursuant
to 28 U.S.C. § 1332 (granting federal district courts original
jurisdiction over all civil actions involving citizens of
different states where the value of the dispute exceeds
$75,000).
18
1131244, 1131245, 1131264, 1131384, 1131514
Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala.
2004), this Court stated:
"'[T]here is nothing inherently unfair or
oppressive about arbitration clauses,' Coleman v.
Prudential Bache Sec., Inc., 802 F.2d 1350, 1352
(11th Cir. 1986), and arbitration agreements are not
in themselves unconscionable, Ex parte McNaughton,
728 So. 2d 592, 597–98 (Ala. 1998). Instead,
unconscionability is an affirmative defense, and the
party asserting the defense bears the burden of
proof. Conseco Fin. v. Murphy, 841 So. 2d 1241,
1245 (Ala. 2002)."
In support of their argument that the arbitration provision in
their insurance policies is unconscionable, the policyholders
cite Anderson v. Ashby, 873 So. 2d 168 (Ala. 2003), for the
broad
proposition
that
an
arbitration
provision
is
unconscionable when the terms of the provision are grossly
favorable to a party that has overwhelming bargaining power,
but they otherwise rely entirely upon an August 2013 order
entered by an El Paso County, Texas, trial court finding a
certain arbitration provision before it to be unconscionable.
The arbitration provision in that case, Cardwell v.
Whataburger Restaurants, LLC, case no. 2013DCV0910, similarly
provided that arbitration would be administered by the
American Arbitration Association ("the AAA"); however, the El
Paso trial court declared the provision to be unconscionable
19
1131244, 1131245, 1131264, 1131384, 1131514
and refused to enforce it based on its belief that the fees
charged by the AAA were too high, regardless of whether they
were ultimately paid by the plaintiff or the defendant and
that the defendant was essentially trying to purchase a more
favorable forum for the dispute.
Of course, any precedential value of the El Paso County
court's judgment is limited to its interpretation of Texas
law. See, e.g., Pritchett v. State Farm Mut. Auto. Ins. Co.,
834 So. 2d 785, 794 (Ala. Civ. App. 2002) ("Any precedential
value of the Rhode Island Superior Court's judgment ... is
limited to its interpretation of Rhode Island law.").
However, even that limited precedential value evaporates if
the judgment is reversed on appeal, and, in fact, that is the
case with the El Paso court's judgment because, on October 24,
2014 –– well before briefs were submitted in these appeals ––
the Texas Court of Appeals reversed the El Paso trial court's
order based on "the trial court's clear failure to properly
analyze and apply the law of unconscionability." Whataburger
Rests. LLC v. Cardwell, 446 S.W.3d 897, 913 (Tex. App. 2014).
Moreover, to the extent the policyholders are arguing
that the arbitration provision is unconscionable because of
20
1131244, 1131245, 1131264, 1131384, 1131514
the financial burden arbitration would
impose upon them,
their
argument is not supported by the evidence in the record and,
in many respects, is contradicted by the evidence in the
record. First, there is no evidence in the record of the
policyholders' financial status that would indicate that they
can not afford to pay the costs of arbitration. See Leeman,
902 So. 2d at 651-52 (noting that there was no evidence in the
record of the plaintiffs' income or wealth that would indicate
that they would not be able to pay the fees and costs of
arbitration and concluding that the plaintiffs accordingly
"have not demonstrated that the arbitration provision in
[their contract with the defendant] is unconscionable on that
basis").
Second,
the
arbitration
provision
in
the
policyholders'
policies
expressly
provides
that
"[t]he
cost[s]
of all arbitration proceeding[s] shall be paid by [American
Bankers], with the exception of the cost of representation of
[the policyholder]" and that arbitration proceedings in each
case
"shall
be
conducted
in
the
county
where
[the
policyholder] reside[s], unless another location is mutually
agreed upon in writing."
21
1131244, 1131245, 1131264, 1131384, 1131514
In Commercial Credit Corp. v. Leggett, 744 So. 2d 890
(Ala. 1999), this Court considered an argument that an
arbitration provision was unconscionable for financial-
hardship reasons because it obligated the party initiating
arbitration to pay $125, while the defendant company agreed to
pay for the first eight hours of the arbitration proceedings,
the losing party to then be responsible for paying the costs
associated
with
any
additional
proceedings,
if
such
proceedings were necessary. We stated:
"It is difficult to see how a party who truly
believes she has a meritorious cause of action can
view these provisions as particularly onerous. [The
plaintiff] would initially have to pay only $125.00
to commence the process. Subsequently, the
defendants
would
pay
for
the
first
day
of
proceedings, regardless of the outcome. The losing
party would then pay for the remainder of the
proceedings.
In
fact,
the
only
parties
disadvantaged by these cost provisions are the
losing parties –– whoever they might be.
"In short, th[is] arbitration provision[] [is]
not 'unreasonably favorable to [the defendants],'
nor [is it] 'oppressive, one-sided, or patently
unfair.' Layne [v. Garner], 612 So. 2d [404,] 408
[(Ala. 1992)]."
744 So. 2d at 898. The arbitration provision in the instant
cases places even more of the cost burden for arbitration upon
American Bankers, and, in light of that fact and the record
22
1131244, 1131245, 1131264, 1131384, 1131514
before us, we find the policyholders' complaint of excessive
costs to be disingenuous. The policyholders have failed to
5
meet their burden of proof as to unconscionability;
accordingly, we decline to invalidate the arbitration
provision on that basis.
IV.
The policyholders sued American Bankers, asserting
various claims based on American Bankers' sale to them of
insurance policies allegedly providing more coverage than the
policyholders needed and could ever possibly benefit from.
The
trial courts thereafter
denied
American
Bankers'
subsequent motions to compel arbitration of the claims
asserted against it by the policyholders. We now reverse
those orders denying the motions to compel arbitration, based
We recognize that the arbitration provision in these
5
cases also authorizes the arbitrator to require the
policyholder to pay all arbitration costs if it is determined
that the policyholder's claim "is without substantial
justification." However, similar authority is held by a trial
court judge, who can require a party to pay not only court
costs, but also attorney fees. See § 12-19-272(c), Ala. Code
1975 ("The court shall assess attorneys' fees and costs
against any party or attorney if the court, upon the motion of
any party or on its own motion, finds that an attorney or
party brought an action or any part thereof, or asserted any
claim or defense therein, that is without substantial
justification ...." (emphasis added)).
23
1131244, 1131245, 1131264, 1131384, 1131514
upon our holdings that the policyholders manifested their
assent to the arbitration provision in their policies by
continuing to renew the policies, that the sale of the
policies
affected
interstate
commerce,
and
that
the
arbitration provision in the policies is not unconscionable.
These causes are accordingly remanded for the trial courts to
enter new orders granting American Bankers' motions to compel
arbitration.
1131244 –– REVERSED AND REMANDED.
1131245 –– REVERSED AND REMANDED.
1131264 –– REVERSED AND REMANDED.
1131384 –– REVERSED AND REMANDED.
1131514 –– REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Bryan, J., concurs in the result.
Moore, C.J., and Murdock, J., dissent.
24
1131244, 1131245, 1131264, 1131384, 1131514
MOORE, Chief Justice (dissenting).
I respectfully, but strongly, dissent in these appeals
involving predispute arbitration agreements. It is undisputed
that the policyholders never signed the provision American
Bankers Insurance Company of Florida ("American Bankers")
seeks to enforce. Nevertheless, the main opinion holds that
the policyholders ratified the arbitration provision because
it was referenced on the declarations page of the policies and
because the policyholders paid premiums to renew
the
policies.
I cannot agree with that holding for two reasons. First, an
application of the Federal Arbitration Act ("the FAA"), 9
U.S.C. § 1 et seq., which is the basis for enforcing the
"purported"
arbitration
provision
in
this
case,
is
unconstitutional under the Seventh Amendment to the United
States Constitution. Second, because the right to a jury in
this case is a right secured by the Seventh Amendment to the
United States Constitution, any waiver of that right must be
knowing, willing, and voluntary, and the policyholders'
purported waiver in this case did not meet those requirements.
25
1131244, 1131245, 1131264, 1131384, 1131514
This Court now takes the crooked path of precedent in this
case and arrives at a truly erroneous conclusion.
6
I. Seventh Amendment
The Seventh Amendment to the United States Constitution
provides:
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to
the rules of the common law."
Any law, statute, or rule that takes away the right of a trial
by jury would violate the Seventh Amendment. It bears
repeating that "a law repugnant to the constitution is void."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803). See
also U.S. Const. art. VI, cl. 2 ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof ... shall be the supreme Law of the Land ...."
(emphasis added)). The FAA is no exception. See Ex parte
Hagan, 721 So. 2d 167, 174 n.3 (Ala. 1998) ("Certainly, the
See Lorence v. Hospital Bd. of Morgan Cnty., 294 Ala.
6
614, 618-19, 320 So. 2d 631, 634-35 (1975) (reproducing a poem
by Sam Walter Foss to illustrate the absurdity of blindly
following precedent and stating: "The quaint poetic lines of
Sam Walter Foss put in perspective the philosophy of those
courts which feel compelled to sacrifice their sense of reason
and justice upon the altar of the Golden Calf of precedent.").
26
1131244, 1131245, 1131264, 1131384, 1131514
FAA and arbitration clauses cannot be given precedence over
constitutional provisions, such as the Seventh and Fourteenth
Amendments to the Constitution of the United States."). But in
spite of the Constitution's protection of the right to a jury
trial in civil cases, courts have interpreted the FAA to take
away that most valuable right, even before a dispute arises or
any injury or cause of action exists.
Such an interpretation of the FAA is erroneous because
Congress, when it enacted the FAA in 1925, intended it to be
a rule of procedure in federal courts (not applicable to state
courts) involving only a specific class of contracts in
interstate commerce. I am not the only Justice, either on
7
this Court or on the United States Supreme Court, to hold this
view. In Prima Paint Corp. v. Flood & Conklin Manufacturing
Co., 388 U.S. 395 (1967), Justice Black, joined by Justice
Douglas and Justice Stewart, argued in his dissent:
"[I]t is clear that Congress in passing the [Federal
Arbitration] Act relied primarily on its power to
create general federal rules to govern federal
I have explained elsewhere that Congress enacted the FAA
7
under its Article III powers to prescribe rules of procedure
for federal courts but that the courts have misinterpreted the
FAA as an exercise of Congress' Article I power over
interstate commerce. Selma Med. Ctr., Inc. v. Fontenot, 824
So. 2d 668, 677-91 (Ala. 2001) (Moore, C.J., dissenting).
27
1131244, 1131245, 1131264, 1131384, 1131514
courts. Over and over again the drafters of the Act
assured
Congress:
'The
statute
establishes
a
procedure in the Federal courts .... It rests upon
the constitutional provision by which Congress is
authorized to establish and control inferior Federal
courts. So far as congressional acts relate to the
procedure in the Federal courts, they are clearly
within the congressional power.' And again: 'The
primary purpose of the statute is to make enforcible
in
the
Federal
courts
such
agreements
for
arbitration, and for this purpose Congress rests
solely upon its power to prescribe the jurisdiction
and duties of the Federal courts.' One cannot read
the legislative history without concluding that this
power, and not Congress' power to legislate in the
area of commerce, was the 'principal basis' of the
Act. Also opposed to the view that Congress intended
to create substantive law to govern commerce and
maritime transactions are the frequent statements in
the legislative history that the Act was not
intended to be 'the source of ... substantive law.'
As Congressman Graham explained the Act to the
House:
"'It
does
not
involve
any
new
principle of law except to provide a simple
method ... in order to give enforcement
.... It creates no new legislation, grants
no new rights, except a remedy to enforce
an agreement in commercial
contracts and in
admiralty contracts.' ...
"Finally, there are clear indications in the
legislative history that the Act was not intended to
make arbitration agreements enforceable in state
courts or to provide an independent federal-question
basis for jurisdiction in federal courts apart from
diversity jurisdiction. The absence of both of these
effects--which normally follow from legislation of
federal substantive law--seems to militate against
the view that Congress was creating a body of
federal substantive law."
28
1131244, 1131245, 1131264, 1131384, 1131514
388 U.S. at 418-20 (Black, J., dissenting) (footnotes
omitted).
Justice O'Connor, joined by then Justice Rehnquist, made
the same argument in a dissent issued 17 years after Prima
Paint was decided:
"One rarely finds a legislative history as
unambiguous as the FAA's. That history establishes
conclusively that the 1925 Congress viewed the FAA
as a procedural statute, applicable only in federal
courts, derived, Congress believed, largely from the
federal power to control the jurisdiction of the
federal courts.
"In
1925
Congress
emphatically
believed
arbitration to be a matter of 'procedure.' At
hearings on the Act congressional subcommittees were
told: 'The theory on which you do this is that you
have the right to tell the Federal courts how to
proceed.' ...
"....
"If
characterizing the
FAA
as
procedural
was
not
enough, the draftsmen of the Act, the House Report,
and the early commentators all flatly stated that
the Act was intended to affect only federal court
proceedings. Mr. Cohen, the American Bar Association
member
who
drafted
the
bill,
assured
two
congressional subcommittees in joint hearings:
"'Nor can it be said that the Congress of
the United States, directing its own courts
..., would infringe upon the provinces or
prerogatives of the States .... [T]he
question of the enforcement relates to the
law of remedies and not to substantive law.
The
rule
must
be
changed
for
the
29
1131244, 1131245, 1131264, 1131384, 1131514
jurisdiction in which the agreement is
sought to be enforced. ... There is not
disposition therefore by means of the
Federal bludgeon to force an individual
State into an unwilling submission to
arbitration enforcement.'"
Southland Corp. v. Keating, 465 U.S. 1, 25-27 (1984)
(O'Connor, J., dissenting) (footnotes omitted).
Justice Thomas, in a dissent joined by Justice Scalia,
argued the same 11 years after the Supreme Court issued its
opinion in Southland:
"Despite the FAA's general focus on the federal
courts, of course, § 2 itself contains no such
explicit limitation. But the text of the statute
nonetheless makes clear that § 2 was not meant as a
statement of substantive law binding on the States.
After all, if § 2 really was understood to 'creat[e]
federal substantive law requiring the parties to
honor arbitration agreements,' then the breach of an
arbitration agreement covered by § 2 would give rise
to a federal question within the subject-matter
jurisdiction of the federal district courts. Yet the
ensuing provisions of the Act, without expressly
taking away this jurisdiction, clearly rest on the
assumption that federal courts have jurisdiction to
enforce arbitration agreements only when they would
have had jurisdiction over the underlying dispute.
In other words, the FAA treats arbitration simply as
one means of resolving disputes that lie within the
jurisdiction of the federal courts .... [T]he reason
that § 2 does not give rise to federal-question
jurisdiction is that it was enacted as a purely
procedural provision. ..."
30
1131244, 1131245, 1131264, 1131384, 1131514
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 291 (1995)
(Thomas, J., dissenting) (citations omitted).
Finally, Justice Scalia, agreeing that Southland was
wrongly
decided, has told practitioners that he would
overrule
it if he were asked: "I shall not in the future dissent from
judgments that rest on Southland. I will, however, stand ready
to join four other Justices in overruling it, since Southland
will not become more correct over time ...." Allied-Bruce, 513
U.S. at 285 (Scalia, J., dissenting).
As to Justices on this Court, Justice Almon, joined by
Justice Shores, forcefully wrote in 1998:
"I cannot see how the United States Supreme
Court, which exists pursuant to the United States
Constitution, can apply an Act of Congress so as to
undermine the right of trial by jury in the states
that
guarantee
that
right
in
their
state
constitutions.
The
United
States
Constitution
guarantees the right of trial by jury in the Seventh
Amendment. That Amendment was adopted within the
Bill of Rights as a limitation on the Federal
Government.
Furthermore,
the
Tenth
Amendment
provides: 'The powers not delegated to the United
States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively,
or to the people.' ...
"How
can
the
Supreme
Court,
ignoring
the
Seventh
and Tenth Amendments and state constitutional
guarantees of the right of trial by jury, construe
an Act of Congress beyond its original intent in
such a way as to prevent citizens of the United
31
1131244, 1131245, 1131264, 1131384, 1131514
States and the states from exercising their
constitutional right to litigate in court? Neither
the Supreme Court nor the Congress has that
constitutional authority."
Ex parte McNaughton, 728 So. 2d 592, 601-02 (Ala. 1998)
(Almon, J., dissenting).
Justice Cook, addressing the issue whether the Seventh
Amendment would bar the application of the FAA in state
courts, wrote:
"The fact that the United States Supreme Court
has never held the Seventh Amendment to be binding
on the states through the Fourteenth Amendment, as
it has certain other of the Bill of Rights
guarantees, is irrelevant in this context. This is
because the FAA is not a state law. Thus, the
constitutional deprivation, where one can be shown,
derives from an act of Congress, not a state
legislature. The Seventh Amendment, like the other
Bill of Rights provisions, was ratified as a
limitation on the power of Congress. Clearly,
Congress had no power to deprive a citizen of
Alabama of his right to a trial by jury before the
Fourteenth Amendment was ratified--a fortiori, it
has none now. Therefore, whether the Seventh
Amendment is binding on the states is entirely
irrelevant in any consideration of the FAA."
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 934 (Ala. 1997)
(Cook, J., concurring specially).
This Court as a whole has recognized that "any
arbitration agreement is a waiver of a party's right under
Amendment VII of the United States Constitution to a trial by
32
1131244, 1131245, 1131264, 1131384, 1131514
jury." Allstar Homes, 711 So. 2d at 929. I have no doubt that
8
my fellow Justices would agree that any law forcing a party to
arbitration if that party had not previously agreed to
arbitrate would be unconstitutional. But in this case, as in
many other arbitration cases, American Bankers argues that the
policyholders agreed, as a matter of contract, to go to
arbitration if a dispute arose. Thus, the question is whether
a party may validly bargain away his or her right to a trial
by jury before the right accrues. As I explained in my
specially concurring opinion in Ex parte First Exchange Bank,
150 So. 3d 1010, 1025-27 (Ala. 2013) (Moore, C.J., concurring
specially):
"I would hold that the right to a jury trial in
civil cases may not be waived by a party before a
lawsuit has been filed and the right accrues.
Because, '[o]rdinarily, the right to a jury trial is
determined by the cause of action stated,' Ex parte
Western Ry. of Ala., 283 Ala. 6, 12, 214 So. 2d 284,
289 (1968), logically that right cannot be exercised
before a lawsuit is filed. A maxim of the common law
states that 'no right can be barred before it
accrues.' Gould v. Womack, 2 Ala. 83, 88 (1841). See
also Blackmon v. Blackmon, 16 Ala. 633, 636 (1849)
(noting 'two maxims of the common law: 1st--that no
Allstar Homes was criticized in the plurality opinion of
8
Perry v. Hyundai Motor America, Inc., 744 So. 2d 859 (Ala.
1999). However, "[t]he precedential value of the reasoning in
a plurality opinion is questionable at best." Ex parte
Discount Foods, Inc., 789 So. 2d 842, 845 (Ala. 2001).
33
1131244, 1131245, 1131264, 1131384, 1131514
right can be barred before it accrues....'); Adams
v. Adams, 39 Ala. 274, 281 (1864); Webb v. Webb's
Heirs, 29 Ala. 588, 601 (1857). One cannot have full
knowledge about what a right entails--about what,
exactly, he or she is waiving--until one fully
understands what is at stake by giving up the right.
Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 929
(Ala. 1997) (holding that a waiver of the right to
a trial by jury must be made knowingly, willingly,
and voluntarily).
"....
"'A man may not barter away his life or his
freedom, or his substantial rights.... In
a civil case he may submit his particular
suit by his own consent to an arbitration,
or to the decision of a single judge.... In
these aspects a citizen may no doubt waive
the rights to which he may be entitled. He
cannot, however, bind himself in advance by
an agreement, which may be specifically
enforced, thus to forfeit his rights at all
times and on all occasions whenever the
case may be presented.'
"Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445,
451, 22 L.Ed. 365 (1874). I articulated this
principle in my special writing in Ex parte Allen,
798 So. 2d 668, 676–77 (Ala. 2001) (Moore, C.J.,
concurring specially), which involved a predispute
arbitration agreement analogous to the predispute
waiver of a jury trial:
"'Predispute arbitration agreements are
problematic [because they] ... are signed
well before any dispute arises between the
parties. These predispute agreements are
often vague and give little notice to the
signing parties of the kinds of conflicts
that will subject them to arbitration
proceedings and the specific rights they
34
1131244, 1131245, 1131264, 1131384, 1131514
are
surrendering.
Because
predispute
agreements are entered into before the
grounds on which the waiver of rights is
based can be known, there is no real
"meeting of the minds," as contract law
requires between two parties who commit to
a binding agreement.'
"Waiver of a jury trial, to be valid, must occur
after a case has been initiated. 'Agreements entered
into after a controversy arises avoid this problem
[regarding full knowledge of the right being waived]
because when they enter such agreements, the parties
are aware of the kind of complaint they are allowing
to proceed to arbitration in the place of a jury
trial.' Allen, 798 So. 2d at 677 (Moore, C.J.,
concurring specially). ...
"Although outside the arbitration context no
federal
law
attempts
to
preempt
Alabama's
constitutional right to a jury trial, that inviolate
right does not accrue until a lawsuit is filed. No
individual may waive a right to a jury trial in
Alabama indefinitely into the future, for that right
does not accrue if it depends upon future events
that may or may not occur. If a person may not
exercise a jury-trial right until he or she has been
sued, it follows a fortiori that a person may not
waive that right before he or she has been sued.
"A jury-trial right is analogous to the right to
counsel, which cannot be waived until the initiation
of legal proceedings. Art. I, § 6, § 10, Ala. Const.
1901; Davis v. State, 292 Ala. 210, 291 So. 2d 346,
350 (1974); Withers v. State, 36 Ala. 252 (1860).
Other rights granted by the Declaration of Rights
cannot be waived before they accrue. For instance,
a person cannot contractually waive his or her right
to sue until that right has accrued. Art. I, § 10,
§ 11, § 13, Ala. Const. 1901. A person cannot
contractually waive his or her right to bail until
after that right has accrued. Art. I, § 16, Ala.
35
1131244, 1131245, 1131264, 1131384, 1131514
Const. 1901. Likewise, because § 11 declares the
right to a jury trial to be inviolate, an individual
may not waive that right before it accrues."
(Footnotes omitted.)
Based on the authorities cited in my specially concurring
opinion in Ex parte First Exchange Bank, it appears to me
that, at common law, one could not bargain away his or her
right to a jury trial until a cause of action had accrued.
This common-law history was not lost but was carried forward
in the Seventh Amendment.
"'The interpretation of the Constitution of the
United States is necessarily influenced by the fact
that its provisions are framed in the language of
the English common law, and are to be read in the
light of its history.' ...
"'In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly
known to the framers of the Constitution.'"
Schick v. United States, 195 U.S. 65, 69 (1904) (quoting Smith
v. Alabama, 124 U.S. 465, 478 (1888), and United States v.
Wong Kim Ark, 169 U.S. 649, 654 (1898)). Parties certainly
could have agreed to submit a dispute to arbitration once that
dispute arose. See 3 William Blackstone, Commentaries *16-17.
However, for the reasons stated above, I believe the Framers
of the Seventh Amendment would have viewed any law that
36
1131244, 1131245, 1131264, 1131384, 1131514
attempted
to
enforce
predispute
arbitration
agreements
as
void
under the Seventh Amendment.
Time and time again, the United States Supreme Court has
interpreted the FAA to be a valid exercise of Congress' power
under the Commerce Clause and has therefore required state
courts to apply the FAA. See, e.g., Allied-Bruce Terminix Cos.
v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating,
465 U.S. 1 (1984); and Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967). Justice Houston wrote in Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 38 (Ala.
1998) (Houston, J., concurring specially):
"Although I disagree with the majority of the United
States
Supreme
Court
in
its
Allied–Bruce
interpretation of the Federal Arbitration Act as it
applies to state courts, a majority opinion of that
Court is part of the law I have taken an oath to
uphold. See the second paragraph of Article VI of
the Constitution of the United States."9
However, the second paragraph in Article VI of the United
9
States Constitution says that state judges are bound by the
supreme law of the land, which consists of three things: (1)
the Constitution itself, (2) laws of the United States made
pursuant to the Constitution, and (3) treaties made under
authority of the United States. A Supreme Court opinion is not
the Constitution itself; it is not a law of the United States
made pursuant to the Constitution; and it is not a treaty made
under the authority of the United States--how then does
Article VI bind state judges to uphold Supreme Court opinions?
37
1131244, 1131245, 1131264, 1131384, 1131514
I do not agree that the Supreme Court's interpretation of
the FAA is a law I am required to apply, because that
interpretation does not conform to the United States
Constitution I am sworn to uphold and support. What if a state
court is presented with a constitutional question the United
States Supreme Court has not yet considered? As far as my
research shows, the United States Supreme Court has not yet
considered whether its interpretation of the FAA violates the
Seventh Amendment. As stated above, a federal statute is void
if it violates the Federal Constitution. Marbury, 5 U.S. at
180. As Chief Justice Marshall wrote in Marbury:
"Why does a judge swear to discharge his duties
agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot be
inspected by him?"
Marbury, 5 U.S. (1 Cranch) at 180.
If we declined to apply the Seventh Amendment because
doing so would undermine the United States Supreme Court's
interpretation of the FAA, which is not even a law but merely
a judicial opinion, then we would be violating the Supremacy
Clause, our oaths of office, and every sound principle of
10
11
The Supremacy Clause reads: "This Constitution, and the
10
Laws of the United States which shall be made in Pursuance
38
1131244, 1131245, 1131264, 1131384, 1131514
constitutional law. The Supreme Court's interpretation of a
federal statute does not preclude all lower courts from
considering constitutional questions the Supreme Court has
never considered. Therefore, we must analyze the arbitration
provision in this case by the Seventh Amendment, the Supreme
Court's precedent interpreting the FAA notwithstanding.
II. Knowing, Willing, and Voluntary Waiver
If this Court still believes that predispute arbitration
agreements
are
enforceable,
the
Seventh
Amendment
notwithstanding, then it should remember that, "regardless of
the federal courts' policy favoring arbitration, we find
nothing in the FAA that would permit such a [jury] waiver
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2
(emphasis added).
"I, ........, solemnly swear (or affirm, as
11
the case may be) that I will support the
Constitution of the United States, and the
Constitution of the State of Alabama, so
long as I continue a citizen thereof; and
that I will faithfully and honestly
discharge the duties of the office upon
which I am about to enter, to the best of
my ability. So help me God."
§ 279, Ala. Const. 1901.
39
1131244, 1131245, 1131264, 1131384, 1131514
unless it is made knowingly, willingly, and voluntarily."
Allstar Homes, 711 So. 2d at 929. This rule is a slight
variation of a general rule in contract law that applies when
parties agree in advance to waive their rights to a trial by
jury.
"In Gaylord Department Stores of Alabama v.
Stephens, 404 So. 2d 586, 588 (Ala. 1981), this
Court articulated three factors to consider in
evaluating whether to enforce a contractual waiver
of the right to trial by jury: (1) whether the
waiver is buried deep in a long contract; (2)
whether the bargaining power of the parties is
equal; and (3) whether the waiver was intelligently
and knowingly made."
Ex parte BancorpSouth Bank, 109 So. 3d 163, 166 (Ala. 2012).
Gaylord Department Stores of Alabama v. Stephens, 404 So. 2d
586, 588 (Ala. 1981), required such a test because "Article I,
§ 11, Constitution 1901, provides that the right to trial by
jury shall remain inviolate," describing the right to trial by
jury as a "precious right."
12
In this case, it is undisputed that the policyholders
never signed an arbitration agreement. The main opinion holds
This rule is not unique to Alabama. For a detailed
12
discussion of how other courts apply this rule, or some slight
variation of it, see Jean R. Sternlight, Mandatory Binding
Arbitration and the Demise of the Seventh Amendment Right to
a Jury Trial, 16 Ohio St. J. on Disp. Resol. 669, 678-90
(2001).
40
1131244, 1131245, 1131264, 1131384, 1131514
that the "declarations page" of the policies notified the
policyholders of the existence of the forms in question,
noting that the written insuring agreement provided that
"[t]his
policy is not complete without the declarations
page."
However, there is no document entitled "declarations page" in
the record. Although I do not dispute that the document relied
upon by the main opinion is typically referred to as a
"declarations page," there is nothing on the page itself that
would alert the policyholders that this page is the critical
document that has been referenced repeatedly throughout the
policies.
Moreover, nothing in plain English on the declarations
page indicates that the policyholders were waiving their
rights to trial by jury. As the main opinion notes, the
declarations page made a brief reference to forms AJ9821EPC-
0608 and N1961-0798. These combinations of letters and
13
numbers appear among eight other similar references in a small
space. There were only three words in English adjacent to
these 10 mysterious combinations of letters and numbers:
I realize that the number on one of the forms was
13
different for Gwendolyn Moody, just as the main opinion does.
See ___ So. 3d at ___ at n.1.
41
1131244, 1131245, 1131264, 1131384, 1131514
"FORMS AND ENDORSEMENTS." (Capitalization in original.) The
main opinion reasons that this should have prompted the
policyholders to investigate further, but nothing on the
declarations page necessarily indicates that the referenced
forms constitute part of the policy. There is no explanation
of what these "forms and endorsements" are, or even whether
they are part of the policy. Regardless of whatever American
Bankers was thinking, I cannot agree that those references on
the
declarations page were sufficient to constitute a
knowing,
willing, or voluntary waiver of the policyholders' inviolate
right to a jury trial.
I fear that the precedential effect of this case will be
disastrous. The main opinion stands for the proposition that
an insurance company may deprive policyholders of their
constitutional rights without their express consent so long as
a vague, mysterious, code-like reference to a form appears
somewhere in the policy. Under this rationale, why would
insurance companies even have to send arbitration forms to
their
policyholders? If the insurance company's failure to
get
the policyholders to sign the arbitration forms in this case
was an accident, what is there to stop an insurance company
42
1131244, 1131245, 1131264, 1131384, 1131514
from doing the same thing intentionally in the next case?
Policyholders are entitled to know in advance what their
obligations are and whether they are expected to give up their
rights, instead of being subjected to a game of insurance-
company "peek-a-boo."
14
III. Conclusion
The right to a trial by jury is a sacred and precious
right.
Sir William Blackstone called it the "best
preservative
of English liberty." 3 William Blackstone, Commentaries *381.
The American Founders declared independence from King George
III, in part, for depriving them of "the benefits of Trial by
Jury." The Declaration of Independence ¶ 20. The Framers
15
included the right to trial by jury in our national Bill of
Rights. The Alabama Constitution says that the right to trial
by jury "shall remain inviolate." § 11, Ala. Const. 1901. Then
Justice Rehnquist called the right to trial by jury "an
Cf. United States v. Virginia, 518 U.S. 515, 574 (1996)
14
(Scalia, J., dissenting) ("The States and the Federal
Government are entitled to know before they act the standard
to which they will be held, rather than be compelled to guess
about the outcome of Supreme Court peek-a-boo.").
As Justice Almon observed in his dissent in McNaughton:
15
"King George's denial of the right of trial by jury was one of
the articles of the Declaration of Independence." McNaughton,
728 So. 2d at 602 (Almon, J., dissenting).
43
1131244, 1131245, 1131264, 1131384, 1131514
important bulwark against tyranny and corruption, a safeguard
too precious to be left to the whim of the sovereign, or, it
might be added, to that of the judiciary." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J.,
dissenting).
How then has this Court held today that the right to
trial by jury may be destroyed through such an inconspicuous
means? I respectfully submit that this is the result of
following bad precedent. If the Supreme Court's precedent
16
The main opinion notes that the policyholders did not
16
invite us to overrule precedent and that this Court is not
inclined to do so without an invitation. This does necessarily
mean that it may not overrule controlling precedent without
being asked to do so. See, e.g., Travelers Indem. Co. of
Connecticut v. Miller, 86 So. 3d 338, 347 (Ala. 2011)
(overruling a case while expressly noting that the Court had
not been asked to do so). Likewise, this Court is not
forbidden from addressing the Seventh Amendment issue or from
considering Allstar Homes even though neither of the parties
raised those claims. "[A] court may consider an issue
'antecedent to ... and ultimately dispositive of' the dispute
before it, even an issue the parties fail to identify and
brief." United States Nat'l Bank of Oregon v. Independent Ins.
Agents of America, Inc., 508 U.S. 439, 447 (1993) (quoting
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)). See also
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d
949, 960 (Ala. 2004) ("'"Appellate review does not consist of
supine submission to erroneous legal concepts even though
none
of the parties declaimed the applicable law below. Our duty is
to enunciate the law on the record facts. Neither the parties
nor the trial judge, by agreement or passivity, can force us
to abdicate our appellate responsibility"'" (quoting Forshey
v. Principi, 284 F.3d 1335, 1359 n.20 (Fed. Cir. 2002),
44
1131244, 1131245, 1131264, 1131384, 1131514
interpreting a federal statute conflicts with the United
States Constitution itself, then our duty is not to predict
the next bend in the crooked path by asking, "What would the
Supreme Court do?" Instead, our duty, under oath, is to ask,
"What
does the Constitution say?" Here, that Constitution
says
the policyholders have a right to a jury trial. Furthermore,
one may give up such an invaluable right, even in a case where
an injury has already occurred and a cause of action exists,
only when the waiver of that right is knowing, willing, and
voluntary, and in this case it was not.
I respectfully dissent.
quoting in turn Empire Life Ins. Co. of America v. Valdak
Corp., 468 F.2d 330, 334 (5th Cir. 1972))). This is especially
true when this Court affirms a ruling of a trial court, as I
would do here. See Southern Energy Homes, Inc. v. Gregor, 777
So. 2d 79, 81 (Ala. 2000) ("[T]his Court can affirm the ruling
of a trial court for any valid reason, even one not presented
to or considered by the trial court.").
45 | June 26, 2015 |
59ae3151-a145-41b1-8264-9b0f336eb161 | Ex parte Courtyard Citiflats, LLC, and Action Property Management LLC. | N/A | 1140264 | Alabama | Alabama Supreme Court | REL:06/12/2015
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, 2014-2015
_________________________
1140264
_________________________
Ex parte Courtyard Citiflats, LLC, and Action Property
Management, L.L.C.
PETITION FOR WRIT OF MANDAMUS
(In re: Coretta Arrington
v.
Courtyard Citiflats, LLC, and Action Property Management,
L.L.C.)
(Montgomery Circuit Court, CV-14-447)
SHAW, Justice.
Courtyard
Citiflats,
LLC, and
Action
Property
Management,
1140264
L.L.C. (hereinafter collectively referred to as "Citiflats"),
the defendants below, petition this Court for a writ of
1
mandamus directing the Montgomery
Circuit
Court to dismiss the
complaint of the plaintiff, Coretta Arrington, as untimely
filed. We grant the petition and issue the writ.
Facts and Procedural History
On July 18, 2014, Arrington filed, both individually and
in her capacity as the administrator of the estate of her
deceased
minor child,
a
complaint
against
Citiflats.
Arrington's complaint alleged tort-based claims in connection
with the death of Arrington's child as the result of injuries
allegedly sustained on July 24, 2012, on premises owned and
managed by Citiflats. Arrington's complaint was accompanied
by an "Affidavit of Substantial Hardship" (hereinafter
referred to as "the hardship statement") alleging that
Arrington was unable to pay the corresponding filing fee. See
§ 12–19–70, Ala. Code 1975. It is undisputed that, at the
2
Based
on the limited materials before us, it appears that
1
Courtyard Citiflats, LLC, and Action Property Management,
L.L.C., are, respectively, the owner of an apartment complex
and the management company for the complex.
Section 12-19-70 provides as follows:
2
2
1140264
time it was filed, the hardship statement had not been
approved by the trial court as required by § 12-19-70(b).
Arrington's complaint was also accompanied by the summonses
necessary for service on the named defendants, which were
stamped "filed" by the clerk of the trial court on the filing
date.
On August 18, 2014 –- after the July 24, 2014, expiration
of the applicable two-year statute of limitations –- the trial
court entered an order purporting to approve the hardship
statement. On August 19, 2014, the clerk of the trial court
issued the previously filed summonses for service.
Citiflats filed a motion pursuant to Rule 12(b)(6), Ala.
R. Civ. P., seeking to dismiss Arrington's complaint on the
"(a) There shall be a consolidated civil filing
fee, known as a docket fee, collected from a
plaintiff at the time a complaint is filed in
circuit court or in district court.
"(b) The docket fee may be waived initially and
taxed as costs at the conclusion of the case if the
court finds that payment of the fee will constitute
a substantial hardship. A verified statement of
substantial hardship, signed by the plaintiff and
approved by the court, shall be filed with the clerk
of court."
(Emphasis added.)
3
1140264
ground that the statutory limitations period had expired
without the payment of a filing fee or the approval of a
hardship statement–-either of which, according to Citiflats,
was necessary to commence the action and to invoke the
jurisdiction of the trial court. Relying on prior authority
from this Court, notably De-Gas, Inc. v. Midland Resources,
470 So. 2d 1218 (Ala. 1985), and Mace v. Centel Business
Systems, 549 So. 2d 70 (Ala. 1989), Citiflats alleged that the
mere filing of Arrington's complaint without payment of the
filing fee or approval of the hardship statement was
insufficient
to
commence
the
action
for
statute-of-limitations
purposes;
thus,
Citiflats
contended,
all
of
Arrington's
claims
were time-barred.
In her opposition to the dismissal motion, Arrington,
among her other arguments, attempted to distinguish the
present case from the authorities cited by Citiflats and
requested, pursuant to Hornsby v. Sessions, 703 So. 2d 932
(Ala. 1997), that the trial court enter an order nunc pro tunc
deeming its approval of the hardship statement as having been
"retroactively entered" on the original filing date.
4
1140264
After a hearing, the trial court, on November 5, 2014,
entered, over Citiflats' opposition, an order approving the
hardship statement "Nunc Pro Tunc retroactive to [the
original] filing date"; shortly thereafter, the trial court
entered a second order denying Citiflats' motion to dismiss.
Citiflats promptly filed this petition for a writ of mandamus.
Standard of Review
A writ of mandamus will be granted where there is
"'"(1)
a
clear
legal
right
in
the
petitioner to the order sought; (2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of
the court."'
"Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810,
813 (Ala. 2003)(quoting Ex parte Alfab, Inc., 586
So. 2d 889, 891 (Ala. 1991)). Mandamus will lie to
direct a trial court to vacate a void judgment or
order. Ex parte Chamblee, 899 So. 2d 244, 249 (Ala.
2004)."
Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004).
Discussion
In its petition, Citiflats maintains that either the
payment of the requisite filing fee or the trial court's
approval of the hardship statement was a jurisdictional
prerequisite
for the commencement of Arrington's action.
More
5
1140264
specifically,
Citiflats
contends
that
the
trial
court
exceeded
its discretion in issuing an order "nunc pro tunc" in an
effort to cure a jurisdictional defect. Although this Court
is aware of the unfortunate result from Arrington's
perspective, and despite her attempts to demonstrate that the
authorities cited by Citiflats are inapposite, we must agree
that the authorities cited by Citiflats are both applicable
and controlling: caselaw clearly dictates that the payment of
a filing fee or the preapproval of the hardship statement is
a jurisdictional
prerequisite
to
the
commencement of
Arrington's action.
Here, it is undisputed that Arrington timely filed her
complaint -- accompanied by the hardship statement -- within
the applicable limitations period. This Court has repeatedly
cautioned, however, that mere filing, alone, is not always
sufficient to commence an action and to toll the running of
the limitations period:
"Although Rule 3, Ala. R. Civ. P., states that
'[a] civil action is commenced by filing a complaint
with the court,' this Court has held that the filing
of a complaint is not the sole factor in determining
when an action is 'commenced.' A major function of
Rule 3, Ala. R. Civ. P., is to identify, with
certainty, the specific time when a civil action is
initiated. The filing of a complaint is, therefore,
6
1140264
a significant factor in commencing an action and
suspending the operation of the applicable statute
of limitations; however, it is not the sole factor.
Ward v. Saben Appliance Co., 391 So. 2d 1030, 1032
(Ala. 1980). This Court has held that the filing of
a complaint, standing alone, does not commence an
action for statute-of-limitations purposes."
Ex parte East Alabama Mental Health-Mental Retardation Bd.,
Inc., 939 So. 2d 1, 3 (Ala. 2006).
In De-Gas, supra, the plaintiffs delivered both summonses
and a complaint to the clerk of the trial court, who stamped
the items "filed" on the date they were delivered. 470 So. 2d
at 1219. However, the plaintiffs neglected to pay the filing
fee at that time. Over one month later, the plaintiffs paid
the filing fee, and service was then effected; however, the
statute of limitations on at least one of the plaintiffs'
claims had expired between the filing of the complaint and the
payment of the filing fee. In rejecting the claim that the
delivery of the complaint and summonses without the payment of
the filing was sufficient to commence the action for statute-
of-limitations purposes, this Court explained:
"The use of the term 'shall' in [§ 12-19-70]
makes the payment of the filing fee mandatory. See
Prince v. Hunter, 388 So. 2d 546, 547 (Ala. 1980).
It was the obvious intent of the legislature to
require that either the payment of this fee or a
court-approved verified statement of substantial
7
1140264
hardship accompany the complaint at the time of
filing."
470 So. 2d 1220 (first emphasis added).
In reaching that conclusion in De-Gas, we further noted
that "'[t]he most important and essential element of
interruption of [the running of the limitations period] is
that defendant be judicially notified of the rights which are
sought and of plaintiff's intent to proceed with the action.'"
470 So. 2d at 1221 (quoting 54 C.J.S. Limitations of Actions
§ 264 at p. 294 (1948)). Thus, we held that "the payment of
the fees required by § 12-19-70 or the filing of a
court-approved verified statement of substantial hardship is
a jurisdictional prerequisite
to
the commencement of an action
for statute of limitations purposes." 470 So. 2d at 1222
(emphasis added). See also Reynolds v. Sheppard, 818 So. 2d
389, 391 (Ala. 2001) ("Unless the filing fee is paid or a
court-approved verified statement of substantial hardship is
filed within the limitations period, the action has not been
commenced within that period." (emphasis added)); Ex parte
Beavers, 779 So. 2d 1223, 1225 (Ala. 2000) (concluding, where
the circuit court had ruled on the merits of postconviction
petition after it had denied petitioner's request to proceed
8
1140264
in forma pauperis, that, solely "[b]ecause the circuit court
denied [petitioner's] request
to proceed in forma pauperis, it
lacked jurisdiction to rule on the merits of his petition");
Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008) ("The
payment of a filing fee or the filing of a court-approved
verified
statement
of
substantial
hardship
is
a
jurisdictional
prerequisite to the commencement of an action." (emphasis
added)); Carpenter v. State, 782 So. 2d 848, 850 (Ala. Crim.
App. 2000) (dismissing the appeal as from a void judgment
where trial court had purported to rule on affidavit of
substantial hardship at the conclusion of the underlying
proceeding on ground that "[a] trial court does not obtain
jurisdiction of an action until either a filing fee is paid or
the fee is properly waived according to § 12-19-70" (emphasis
added)); and Goldsmith v. State, 709 So. 2d 1352, 1353 (Ala.
Crim. App. 1997) ("[A]bsent payment of the filing fee or
approval of the in forma pauperis declaration, the circuit
court
does
not
acquire
subject-matter
jurisdiction."
(emphasis
added)).
Mace, supra, similarly involved a plaintiff who filed a
complaint at or near the statutory deadline with an
9
1140264
accompanying, but unapproved, affidavit of substantial
hardship. Relying on De-Gas, among other cases, we affirmed,
on direct appeal, a summary judgment for the defendants on the
ground that the plaintiff's claim was barred by the applicable
statute of limitations. 549 So. 2d at 71. It is true, as
Arrington notes, that the plaintiff in Mace also failed to
include, at the time of filing, the summonses and information
necessary to accomplish service on the defendants -– which the
Court considered evidence of Mace's lack of intent actually to
commence the lawsuit at filing. Id. We note, however, that,
despite the inclusion of the summonses with her complaint,
Arrington's failure to pay the filing fee or to submit a
court-approved hardship statement at the time of filing
resulted in a similar delay in the service of her own
summonses. Moreover, in De-Gas, we specifically concluded
that cases in which service was withheld on instruction of the
plaintiff were applicable to cases involving nonpayment of
filing fees:
"By failing to pay at the time of filing the
complaint the filing fee mandated by § 12-19-70, the
plaintiffs not only caused service to be withheld
but effectively precluded any action by the clerk's
office necessary to actually set the case in
motion."
10
1140264
470 So. 2d at 1221-22. Despite Arrington's attempt to
demonstrate
otherwise,
the
facts
in
Mace
appear
indistinguishable from those in the present case. As
3
Arrington notes, the provision for proceeding in forma
pauperis is an attempt to make sure even our poorest citizens
receive access to our courts for the redress of perceived
grievances; nonetheless, to gain that access, parties
proceeding in forma
pauperis must nevertheless
comply
with the
accompanying filing prerequisites. See § 12-19-70(b), Ala.
Code 1975.
In light of the foregoing, the trial court lacked the
authority to grant Arrington's request for a nunc pro tunc
order retroactively approving the hardship statement. See
State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028
(Ala. 1999) ("'[A] jurisdictional defect ... cannot be cured
nunc pro tunc back to the date when the original complaint was
filed.'" (quoting Tyler House Apartments, Ltd. v. United
In her answer to Citiflats' petition, Arrington
3
identifies minor factual distinctions between the identified
precedents and the facts of her case and identifies exceptions
she contends prevent the application here of those cases.
Arrington does not, however, argue that those cases were
wrongly decided, nor does she request that they be overruled.
11
1140264
States, 38 Fed. Cl. 1, 7 (1997))); Farmer v. Farmer, 842 So.
2d 679, 681 (Ala. Civ. App. 2002) ("The failure to pay the
filing or docketing fee is a jurisdictional defect.").
4
Finally,
because
the
identified
defect
was
jurisdictional, it would not appear to be, as Arrington urges,
subject to principles of equitable tolling. In any event,
Arrington has failed to allege circumstances sufficient to
demonstrate that she is entitled to equitable tolling;
We note, too, as Citiflats argued both in the trial court
4
and on appeal, that, even considering the minor typographical
error consisting of the transposition of Arrington's
first
and
last names in its August 18, 2014, order, the trial court's
November 5, 2014, order does not appear to fall within the
limited category of situations in which a judgment nunc pro
tunc may be applied –- nor was that error a ground cited by
Arrington in support of her request for its issuance. See Ex
parte Brown, 963 So. 2d 604, 608 (Ala. 2007) ("'"'The object
of a judgment nunc pro tunc is not the rendering of a new
judgment and the ascertainment and determination of new
rights, but is one placing in proper form on the record, the
judgment that had been previously rendered, to make it speak
the truth, so as to make it show what the judicial action
really was, not to correct judicial errors, such as to render
a judgment which the court ought to have rendered, in the
place of the one it did erroneously render, nor to supply
non-action by the court, however erroneous the judgment may
have been.'"'" (quoting other cases)). See also BMJA, LLC v.
Murphy, 41 So. 3d 751, 756 (Ala. 2010); Hornsby, supra. We
likewise conclude that the court's inherent authority to
control "calendaring" within its own docket under Rule 16,
Ala. R. Jud. Admin., fails to supply sufficient authority for
the trial court's action in entering the nunc pro tunc order.
12
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specifically, as Citiflats notes, Arrington offers no
explanation –- much less an "extraordinary" circumstance –-
either for her failure to seek approval of the hardship
statement prior to filing or for waiting until six days before
the expiration of the limitations period to file the hardship
statement. See Weaver v. Firestone, 155 So. 3d 952, 957-58
(Ala. 2013) ("'[A] litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been
pursuing
his
rights
diligently,
and
(2)
that
some
extraordinary circumstance stood in his way' as to the filing
of his action. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.
Ct. 1807, 161 L. Ed. 2d 669 (2005)."). See also Ex parte
Ward, 46 So. 3d 888, 897 (Ala. 2007) (holding that "equitable
tolling is available in extraordinary circumstances that are
beyond the petitioner's control and that are unavoidable even
with the exercise of diligence").
Certainly,
nothing suggests
that any action by or on behalf of Citiflats either caused or
contributed to Arrington's delay.
Conclusion
"A writ of mandamus is a drastic and extraordinary
remedy, and to justify issuance of such a writ there must be
13
1140264
a clear showing of injury to the petitioner." Ex parte
Thomas, 628 So. 2d 483, 485 (Ala. 1993) (citing Ex parte
J.E.W., 608 So. 2d 728 (Ala. 1992) (emphasis added)). Because
we hold that the trial court erred in refusing to dismiss
Arrington's complaint as untimely, we conclude that Citiflats
has made the requisite showing of a clear legal right to the
relief sought. Ex parte Hodge, 153 So. 3d 734 (Ala. 2014).
We therefore grant the petition and issue the writ of mandamus
directing the Montgomery Circuit Court to dismiss Arrington's
complaint.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
14
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MOORE, Chief Justice (dissenting).
Coretta Arrington sued Courtyard Citiflats, LLC, the
owner of an apartment complex, and its property-management
company, Action Property Management, L.L.C. (hereinafter
collectively referred to as "Citiflats"), alleging multiple
tort claims after her six-year-old child drowned in a pool on
premises
owned
and
managed
by
Citiflats.
Arrington's
complaint
was
filed within the
applicable
two-year
statute-of-
limitations period. However, she was unable to pay the filing
fee required by § 12-19-70(a), Ala. Code 1975; therefore, she
filed with her complaint a statement of substantial hardship,
seeking judicial verification of that hardship pursuant to §
12-19-70(b), Ala. Code 1975 (permitting circuit courts to
waive filing fees for plaintiffs suffering from substantial
hardship). The circuit court verified that Arrington was
suffering from substantial hardship and thus was excused from
paying the filing fee required by § 12-19-70(a), although the
circuit court did not do so until after the expiration of the
statute of limitations.
Today this Court overrides the circuit court's finding
that Arrington suffered from substantial hardship and holds,
15
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on procedural grounds, that the circuit court lacked subject-
matter jurisdiction to consider Arrington's case on its
merits. I believe this holding mistakes the nature and
function of subject-matter jurisdiction and continues a line
of erroneous precedent that elevates judicially created
procedural technicalities over the substance of the case.
Subject-matter jurisdiction is "a court's power to decide
certain types of cases." Ex parte Seymour, 946 So. 2d 536, 538
(Ala. 2006). See Woolf v. McGaugh, 175 Ala. 299, 303, 57 So.
754, 755 (1911) ("'By jurisdiction over the subject-matter is
meant the nature of the cause of action and of the relief
sought.'" (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308,
316 (1870))). This Court has recently stated:
"Subject-matter
jurisdiction
is
a
simple
concept:
"'Jurisdiction of the subject matter is the
power to hear and determine cases of the
general class to which the proceedings in
question belong. The principle of subject
matter jurisdiction relates to a court's
inherent authority to deal with the case or
matter before it. The term means not simply
jurisdiction of the particular case then
occupying the attention of the court but
jurisdiction of the class of cases to which
the particular case belongs.'
16
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"21 C.J.S. Courts § 11 (2006). In determining a
trial court's subject-matter jurisdiction, this
Court asks '"only whether the trial court had the
constitutional and statutory authority" to hear the
case.' Russell v. State, 51 So. 3d 1026, 1028 (Ala.
2010) (quoting Ex parte Seymour, 946 So. 2d 536, 538
(Ala.
2006)).
Problems
with
subject-matter
jurisdiction arise if, for example, a party files a
probate action in a juvenile court, a divorce action
in a probate court, or a bankruptcy petition in a
circuit court, because the nature or class of those
actions is limited to a particular forum with the
authority to handle them. There are, however, no
problems with subject-matter jurisdiction merely
because a party files an action that ostensibly
lacks a probability of merit."
Ex parte Safeway Ins. Co. of Alabama, 148 So. 3d 39, 42-43
(Ala. 2013). A circuit court has jurisdiction over the tort
claims alleged by Arrington; therefore, regardless of whether
Arrington paid the filing fee in this case, the circuit court
did not lack subject-matter jurisdiction. If Arrington's
failure to pay the filing fee was a procedural prerequisite to
jurisdiction,
then the filing deadline mandated by the statute
of limitations was subject to equitable tolling on the basis
that the clerk or circuit court–-not the filer--delayed the
verification of hardship until the statutory limitations
period had expired. If the doctrine of equitable tolling
applies, then the circuit court's verification of Arrington's
affidavit of substantial hardship relates back to the filing
17
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of the complaint, and her cause of action is not barred by the
statute of limitations. See Weaver v. Firestone, 155 So. 3d
952, 957-68 (Ala. 2013) (discussing equitable tolling in the
context of statutes of limitations).
Justice Murdock and I agree on the fundamental issue
before us concerning subject-matter jurisdiction; we disagree
only regarding the application of the doctrine of equitable
tolling. He does not believe the facts before us present an
extraordinary circumstance warranting the application of the
doctrine of equitable tolling, whereas I do. The United
5
States Supreme Court has stated: "We have allowed equitable
tolling in situations where the claimant has actively pursued
his judicial remedies by filing a defective pleading during
I note that the Court in Weaver permitted equitable
5
tolling on the basis that the plaintiff in that case was
unable to identify the defendants before the running of the
statutory
limitations
period,
a
situation
no
less
extraordinary than the one before us involving an indigent
plaintiff with no means to pay the filing fee. The fact that
the underlying facts in Weaver were horrific –- they involved
a conspiracy in which certain men set another man on fire in
a cabin in the woods –- should not distract from the
procedural issue regarding the tolling of the statute of
limitations. See Weaver, 155 So. 3d at 954-56. The discovery
of eligible defendants after the running of the limitations
period seems just as common or uncommon as the inability of an
indigent plaintiff to pay a filing fee before the running of
the limitations period.
18
1140264
the statutory period" and that "[w]e generally have been much
less forgiving in receiving late filings where the claimant
failed to exercise due diligence in preserving his legal
rights." Irwin v. Department of Veterans Affairs, 498 U.S. 89,
96 (1990). Lacking the means to pay the filing fee, Arrington
actively pursued the only judicial remedies available to her
when she filed a hardship statement with her complaint. The
record suggests she exercised due diligence in preserving her
legal rights. By holding that she somehow was required to
obtain court approval of her hardship statement before she
ever filed it with the clerk of court, this Court punishes
Arrington for her poverty and preserves a rule that is not
articulated in our statutes or rules. Alabama law is silent as
to how, procedurally, an indigent plaintiff with no means to
pay a filing fee must obtain court approval of substantial
hardship before the statute of limitations runs on his or her
claims. The reasonable and commonsense approach for obtaining
such approval would be filing with the circuit court the
affidavit of substantial hardship along with the complaint
before the statutory limitations period runs, as Arrington
did.
19
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The erroneous rule that a failure to pay the filing fee
deprives the circuit court of subject-matter jurisdiction
emanates from expansive interpretations by the Court of Civil
Appeals of this Court's holding in De-Gas, Inc. v. Midland
Resources, 470 So. 2d 1218, 1222 (Ala. 1985), that "the
payment of the fees required by § 12–19–70[, Ala. Code 1975,]
or the filing of a court-approved verified statement of
substantial hardship is a jurisdictional prerequisite to the
commencement
of an action for statute of limitations
purposes"
(emphasis added). Although De-Gas did not hold that the
failure to pay a filing fee deprives the circuit court of
subject-matter jurisdiction, the Court of Civil Appeals
repeatedly held otherwise until at last this Court, in Johnson
v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012), adopted the
erroneous holdings of the Court of Civil Appeals. Realizing
6
the harmful and unintended consequences flowing from those
erroneous holdings, two judges on the Court of Civil Appeals
now urge this Court to correct our mistake in Hetzel.
Presiding Judge Thompson has stated:
See, e.g., Odom v. Odom, 89 So. 3d 121 (Ala. Civ. App.
6
2011), Vann v. Cook, 989 So. 2d 556 (Ala. Civ. App. 2008), and
Farmer v. Farmer, 842 So. 2d 679 (Ala. Civ. App. 2002).
20
1140264
"I would urge the supreme court to examine its
holding in Johnson v. Hetzel, supra, and to consider
whether, in this case, the main opinion again
improperly expands the holding of De-Gas to hold
that, in all cases, a failure to pay a filing fee
under § 12-19-70 divests the circuit court of
subject-matter jurisdiction over the action. I do
not believe that such a holding was the intention of
the legislature in enacting the requirement that
litigants pay filing fees to offset the costs of
litigation at the commencement of their actions."
Hicks v. Hicks, 130 So. 3d 184, 193 (Ala. Civ. App.
2012)(Thompson, P.J., dissenting). Recently, Judge Thomas
stated: "I now join Presiding Judge Thompson in calling on our
supreme court to reexamine De-Gas and [Hetzel] and to
determine that the failure to pay a filing fee at the time of
an action is commenced does not necessarily deprive the trial
court
of
subject-matter
jurisdiction."
Burgett
v.
Porter,
[Ms.
2130889, April 10, 2015] ___ So. 3d ___, ____ (Ala. Civ. App.
2015)(Thomas, J., concurring specially). The majority in this
case furthers an erroneous rule that prudent judges bound by
our earlier mistake are urging us to overrule. In a previous
case, I stated: "[T]his Court and the Court of Civil Appeals
have erroneously confused subject-matter jurisdiction and
filing-fee requirements in cases applying the holding in
De–Gas." Ex parte Hicks, 130 So. 3d 194 (Ala. 2013)(Moore,
21
1140264
C.J., dissenting). Because my views about De-Gas and its
progeny have not changed, I must respectfully dissent.
22
1140264
MURDOCK, Justice (dissenting).
I agree with Chief Justice Moore that Coretta Arrington's
complaint was not due to be dismissed for lack of subject-
matter jurisdiction. Indeed, were it not for the passage in
which Chief Justice Moore urges equitable tolling as the
doctrinal basis for what we both agree would be the correct
result in this case, I would join Chief Justice Moore's
dissent. I write separately then (1) to explain my
disagreement with Chief Justice Moore's invocation of the
doctrine of equitable estoppel in this case and, further,
(2) to explain why I believe the actions taken by Arrington
nonetheless
were
sufficient
to
meet
the
statute
of
limitations.
To begin, I agree with the statements at the outset of
Chief Justice Moore's dissent to the effect that the subject
matter of this case -- a tort action -- certainly is subject
matter
over
which
the
Montgomery
Circuit
Court
had
jurisdiction. I also agree, as the dissent concludes, that
this Court's opinion in De-Gas, Inc. v. Midland Resources, 470
So. 2d 1218 (Ala. 1985), was concerned with what a plaintiff
must do to satisfy a statute of limitations, not with the
23
1140264
subject-matter jurisdiction of the trial court, and that
Johnson v. Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012), in which
this Court gave a more expansive reading to De-Gas, should be
overruled.
What I cannot agree with in Chief Justice Moore's dissent
is the discussion in which he suggests resort to the doctrine
of equitable estoppel. As the author of this Court's opinion
in Weaver v. Firestone, 155 So. 3d 952 (Ala. 2013), I cannot
agree that the doctrine of equitable tolling invoked in that
case is the proper vehicle for examining the issue presented
here. As we explained in Weaver, the application of the
doctrine of equitable tolling to provide relief from the
running of a statutory limitations period requires a very
fact-specific weighing of the applicable facts and, at the end
of the day, is available only in response to extraordinary
circumstances:
"'[A] litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way' as
to the filing of his action. Pace v. DiGuglielmo,
544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669
(2005). In Ex parte Ward, 46 So. 3d 888 (Ala.
2007), this Court '[held] that equitable tolling is
available in extraordinary circumstances that are
beyond the petitioner's control and that are
24
1140264
unavoidable even with the exercise of diligence.' 46
So. 3d at 897. The Court noted that in determining
whether
equitable
tolling
is
applicable,
consideration must be given as '"to whether
principles
of
'equity
would
make
the
rigid
application of a limitation period unfair' and
whether the petitioner has 'exercised reasonable
diligence in investigating and bringing [the]
claims.'"' Id. (quoting Fahy v. Horn, 240 F.3d 239,
245 (3d Cir. 2001), quoting in turn Miller v. New
Jersey Dep't of Corr., 145 F.3d 616, 618 (3d Cir.
1998)); see also Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d
435 (1990) ('We have allowed equitable tolling in
situations where the claimant has actively pursued
his judicial remedies by filing a defective pleading
during
the
statutory
period,
or
where
the
complainant has been induced or tricked by his
adversary's misconduct into allowing the filing
deadline to pass. We have generally been much less
forgiving in receiving late filings where the
claimant failed to exercise due diligence in
preserving his legal rights.' (footnotes omitted)).
This Court acknowledged in Ward that '"the threshold
necessary to trigger equitable tolling is very high,
lest the exceptions swallow the rule." United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000).' 46 So. 3d at 897. The plaintiff
"'bears the burden of demonstrating ...
that
there
are
...
extraordinary
circumstances
justifying
the
application
of
the doctrine of equitable tolling. See
Spitsyn v. Moore, 345 F.3d [796,] 799 [(9th
Cir. 2003)] (holding that the burden is on
the petitioner for the writ of habeas
corpus to show that the exclusion applies
and that the "extraordinary circumstances"
alleged, rather than a lack of diligence on
his part, were the proximate cause of the
untimeliness);
Drew
v.
Department
of
Corr.,
297 F.3d 1278, 1286 (11th Cir. 2002) ("The
25
1140264
burden of establishing entitlement to this
extraordinary
remedy
plainly
rests
with
the
petitioner.").'
"Ward, 46 So. 3d at 897. It is well settled that
whether equitable tolling is applicable in a case
generally involves a '"fact-specific inquiry."'
See, e.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th
Cir. 2003); Putnam v. Galaxy 1 Marketing, Inc., 276
F.R.D. 264, 275 (S.D. Iowa 2011) ('[R]esolution of
the issue is fact-specific.'); see also Transport
Ins. Co. v. TIG Ins. Co., 202 Cal. App. 4th 984,
1012, 136 Cal. Rptr. 3d 315, 337 (2012) ('[W]e are
hard pressed to think of more fact-specific issues
than "accrual" and [equitable] "tolling."')."
Weaver, 155 So. 3d at 957-58 (footnote omitted).
The circumstance presented here –- an indigent plaintiff
timely filing a complaint accompanied by an affidavit of
substantial hardship in lieu of a filing fee —- does not in my
view
constitute
the
extraordinary
circumstance
contemplated
by
our holding in Weaver. To the contrary, in fact, the
circumstances in this case do not even represent a failure of
the plaintiff to meet the deadline for commencing an action
imposed by the statute of limitations thereby necessitating
resort to any doctrine to save the complaint, much less the
doctrine of equitable estoppel.
As the main opinion notes:
"'Although Rule 3, Ala. R. Civ. P., states that
"[a] civil action is commenced by filing a complaint
26
1140264
with the court," this Court has held that the filing
of a complaint is not the sole factor in determining
when an action is "commenced."'"
___ So. 3d. at ___ (quoting Ex parte East Alabama Mental
Health-Mental Retardation Bd., Inc., 939 So. 2d 1, 3 (Ala.
2006)). We have explained that, in addition to being filed in
a timely manner, the filing of a complaint must be done in a
manner that demonstrates "a bona fide intent, at the time of
filing, to proceed with this action." De-Gas, 470 So. 2d at
1222. That is, the complaint may not be filed in a manner
that "effectively preclude[s] any action by the clerk's
office," but must be filed with everything "necessary to
actually set the case in motion." Id., at 1220, 1222. Thus,
in Pettibone Crane Co. v. Foster, 485 So. 2d 712, 713 (Ala.
1989), we held that "the filing of a complaint within the
statutory period but without any instructions with regard to
serving the defendant with process and without
any
explanation
as to why no instructions are included" does not demonstrate
the bona fide intent to proceed with the action at that time
and is insufficient to meet the statute of limitations.
Contrary to the view expressed in the main opinion, it
appears to me that the result in Mace v. Centel Business
27
1140264
Systems, 549 So. 2d 70 (Ala. 1989), was a function of a
comparable failure of the plaintiff to include with the filing
of her complaint the necessary summons and information to
accomplish service that evidenced a lack of intent to actually
commence the lawsuit in that case. Similarly, in Ward v.
Saben Appliance Co., 391 So. 2d 1030, 1035 (Ala. 1980), we
held that an action was not commenced for statute-of-
limitations purposes on the day the complaint was filed when
that filing was accompanied by a request to withhold service.
And in De-Gas, a case in which the plaintiff merely neglected
to pay the filing fee (there was no attempt to file an
affidavit of substantial hardship in lieu of the payment of
the fee), we explained:
"By failing to pay at the time of filing the
complaint the filing fee mandated by § 12-19-70,
[Ala. Code 1975,] the plaintiffs not only caused
service to be withheld but effectively precluded any
action by the clerk's office necessary to actually
set the case in motion."
470 So. 2d at 1221-22 (emphasis, other than on "any," added).
Unfortunately for present purposes, the opinion in De-Gas
went further and, through dicta in the following single
sentence, laid the groundwork for what I consider to be much
confusion: "[T]he payment of the [filing] fee[] ... or the
28
1140264
filing of a court-approved verified statement of substantial
hardship is a jurisdictional prerequisite to the commencement
of an action for statute of limitations purposes." 470 So. 2d
at 1222 (emphasis added). This sentence unfortunately
conflates the issue of what is necessary to meet the filing
deadline of a statute of limitations (which has nothing to do
with "jurisdiction") and the issue of what must occur in order
for a court thereafter to have authority to act in an
otherwise timely filed case.
In particular, the first problem with this sentence is
that, in dicta, it references a potential factual scenario not
at issue in De-Gas, i.e., the filing by a plaintiff of a
complaint accompanied by an affidavit of substantial hardship
in lieu of the filing fee. De-Gas involved nothing more than
a mere failure on the part of the plaintiff to pay the filing
fee; no attempt to file an affidavit of substantial hardship
was made in De-Gas, and no issue regarding the timing or
nature of the affidavit that would have to be filed was before
the court.
Making this dicta more problematic, the sentence injects
into the discussion the concept of "jurisdiction." This in a
29
1140264
case involving an issue of satisfaction of the statute of
limitations, an issue that has nothing whatsoever to do with
the jurisdiction of the court -- subject-matter or otherwise.
A failure to satisfy a statute of limitations merely gives
rise to a waivable affirmative defense.
Further confusing the issue, the problematic sentence
speaks of "the filing of a court-approved verified statement
of substantial hardship," which the main opinion takes as
requiring Court
approval before the statute of
limitations
has
run. Yet, if read literally, this sentence actually would
require that the statement of substantial hardship must
already be approved at the time of its filing. In any event,
our rules offer no procedure entitling a plaintiff to seek
some sort of pre-complaint approval of a statement of
substantial hardship. It appears then that the Court was
intending to describe simply the requirement that, if a filing
fee is not paid with the complaint, the plaintiff must file an
affidavit that, ultimately, meets with the approval of the
court.
The main opinion's understanding of this language as
requiring that the affidavit of substantial hardship be
30
1140264
approved at some point before the statute of limitations
expires would mean that a plaintiff's meeting a statute-of-
limitations deadline depends not on the plaintiff's own
action, but on how quickly a third party -- a trial court
judge -- takes some sort of action. Such a scheme is unseemly
at best, and unworkable and inequitable at worst. Indeed, it
raises the specter that two plaintiffs appearing before two
different judges in adjoining circuits, or even in the same
circuit, with similar causes of action against the same
defendant might file essentially the same "papers" (including
in both cases similar affidavits of substantial hardship) in
an effort to commence an action several weeks (or perhaps even
months) before the expiration of a statute of limitations and
that one will be deemed in the end to have succeeded in
meeting the deadline while the other will not, the only
difference between them being the timeliness of the trial
judge assigned to their respective cases. Surely the
satisfaction of a statute of limitations, not to mention the
invocation of a court's jurisdiction, is something that is to
be within the control of the plaintiff and not dependent on
31
1140264
the actions of a third party, even if that third party is the
court itself.
In the end, I must conclude that the reference in De-Gas
to the necessity of a "court-approved verified statement of
substantial hardship" was a loosely, and ultimately poorly,
worded attempt to note that a trial court loses authority to
act in a case if it subsequently fails to approve the
plaintiff's affidavit.
Again,
however, even this statement is
dicta in that the issue in De-Gas was compliance with the
statute of limitations. That also is the only issue here.7
Consistent with the approach of overruling Johnson v.
7
Hetzel, 100 So. 3d 1056, 1057 (Ala. 2012), as urged by two
judges of the Court of Civil Appeals and discussed in Chief
Justice Moore's dissent, the reference to "jurisdiction" in
the problematic sentence in De-Gas can and should be treated
as a reference not to the "subject-matter jurisdiction"
imparted to circuit courts by § 142 of the Alabama
Constitution of 1901, but to what is properly understood as
"jurisdiction over the case." By this I mean the authority of
a court over a given case that is acquired when there has been
compliance with the necessary procedural formalities to put
the case before the court and the failure of which may be
waived if not timely objected to by the court or the opposing
party. Cf. Thompson v. Lea, 28 Ala. 453 (1856), in which
Justice Stone wrote the court's opinion inquiring whether
failure to post a bond as required by a statute governing
appeals could be considered a defect of subject-matter
jurisdiction of the Supreme Court. "To hold them such,"
Justice Stone reasoned, "is to declare that the solemn
judgments of this court, pronounced on records wanting either
the bond or certificate, or when either is substantially
defective, are absolute nullities, and may be collaterally
32
1140264
impeached ...." 28 Ala. at 456. Justice Stone continued:
"Section 3041 declares, that 'no appeal can be
taken without giving bond to supersede the execution
of the judgment or decree, unless the appellant give
security for the costs of such appeal.' Section
3016 enacts, that the certificate, in conformity
with
its
terms,
'gives
the
supreme
court
jurisdiction of the case.' In my opinion, the term
'jurisdiction,' as found in this chapter of the
Code, cannot properly be regarded as conferring
power to declare or apply the law to either
subject-matter or persons, technically so called. It
gives jurisdiction over the case. It is the mode
prescribed, by which a party asserting rights
against another, may compel that other, with or
without his consent, to come into court, and have
those rights litigated and passed on."
Thompson, 28 Ala. at 456-57 (emphasis added). Justice Stone
reasoned that the Court would be bound to dismiss the appeal
if an objection was timely made, but that "when there has been
joinder in error, arguments on the merits, or other act done
which admits the case rightfully in this court, the motion to
dismiss for
insufficient
or defective appeal, comes
too late."
Id. at 458.
Justice Walker agreed with Justice Stone's distinction
between subject-matter jurisdiction and jurisdiction over the
case, and warned of the injustices that could arise from the
failure
to
distinguish
between
subject-matter
jurisdiction
and
jurisdiction over the case:
"To deny to a joinder in error the effect of
waiving an appeal, or deficiencies in it, would be
productive of great injustice. It would permit
appellees to conceal a detected deficiency in the
appeal, until another appeal was barred by lapse of
time, or until on the hearing in this court he might
find the inclination of the court adverse to him on
the merits. He would thus be able to wrong his
33
1140264
Unlike in De-Gas, in which the plaintiff merely neglected
to pay a filing fee and there was no attempt to file an
affidavit of substantial hardship in lieu thereof, the
plaintiff in this case did file such an affidavit and thereby
did everything she could do to "set the case in motion." The
clerk was not waiting on anything further from the plaintiff.
The statute of limitations therefore was satisfied in this
case. If in the end the affidavit had not been approved,
then, upon proper motion of the defendant or on the court's
own motion, the trial court would have been obligated to
dismiss the case for loss of jurisdiction over the case. Even
that turn of events would not have undone the plaintiff's
previous meeting of the statute of limitations.
adversary and speculate upon the chances in this
court. A rule which would be attended by such
consequences, ought not to be inferred from the
statute, unless it is required by the clearest
language."
Thompson, 28 Ala. at 462-63 (opinion of Walker, J.).
34 | June 12, 2015 |
626a3302-5fd6-43c0-8442-376e84651cd9 | Steinfurth v. Ski Lodge Apartments, LLC | N/A | 1130832 | Alabama | Alabama Supreme Court | Rel: 04/17/2015
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, 2014-2015
____________________
1130832
____________________
Paul R. Steinfurth and Paul C. Steinfurth
v.
Ski Lodge Apartments, LLC
Appeal from Montgomery Circuit Court
(CV-12-901265)
PARKER, Justice.
Paul R. Steinfurth ("Paul R.") and Paul C. Steinfurth
("Paul C.") (hereinafter collectively referred to as "the
guarantors") appeal from the denial by the Montgomery Circuit
Court of their postjudgment motion requesting that a judgment
1130832
entered against them and in favor of Ski Lodge Apartments, LLC
("Ski Lodge"), be amended insofar as the judgment held that
the guarantors had waived their personal exemptions under § 6-
10-123, Ala. Code 1975.
Facts and Procedural History
The facts are undisputed. On or about February 13, 2009,
Styles
Manager,
LLC
("Styles
Manager"),
purchased
from
Vintage
Pointe Apartments, LLC ("Vintage Pointe"), an interest in an
apartment complex located in Montgomery ("the apartment
complex"). On February 13, 2009, as part of this transaction,
Styles Manager executed a promissory note promising to pay
Vintage Pointe $800,000 ("the promissory note"). Paul C.
signed the promissory note in his official capacity as
"manager" of Styles Manager. In pertinent part, the
promissory note states:
"12. Renunciation and Assignment of Exemptions.
To the fullest extent allowed by law, the Maker
hereby waives and renounces for itself, its legal
representatives, successors and assigns, all rights
to the benefits of any moratorium, reinstatement,
marshaling,
forbearance,
valuation,
stay,
extension,
appraisement, and exemption now provided, or which
may hereafter be provided, by the Constitution or
laws of the United States of America or of any state
thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement
and collection of the obligations evidenced by this
2
1130832
Note. The undersigned hereby transfers, conveys, and
assigns to the Holder a sufficient amount of such
exemption, as may be set apart in bankruptcy, to pay
this Note in full, with all cost of collection, and
does hereby direct any trustee in bankruptcy having
possession of such exemption to deliver to the
Holder a sufficient amount of the property or monies
set apart as exempt to pay the indebtedness
evidenced hereby, or any renewal thereof, and does
hereby appoint the Holder as the attorney-in-fact
for the undersigned to claim any and all exemptions
allowed by law.
"....
"20. Loan Documents. As used herein, the term
'Loan Documents' shall refer to any and all
documents or agreements executed in connection with
or related to the loan evidenced by this Note
including, but not limited to, letters of credit,
guaranties, security agreements and instruments, and
financing statements (and any renewals, extensions
and
modifications
thereof)
whenever
any
such
documents are executed."
As security for the performance of the payment of the
promissory note, the
guarantors,
in
their individual
capacities, executed a "guaranty of payment and performance"
of the promissory note ("the guaranty agreement"). The
guaranty agreement states, in pertinent part:
"A. Styles Manager, LLC, a Delaware limited
liability company (the 'Maker'), has requested that
the Holder [(Vintage Pointe)] loan to the Maker the
principal sum of EIGHT HUNDRED THOUSAND AND NO/100
DOLLARS ($ 800,000.00) (the 'Loan'), to be evidenced
by a Promissory Note of even date herewith (the
'Note') payable by the Maker to the Holder and such
3
1130832
other documents as are more particularly set forth
in the Note. As a condition to making the Loan (and
as an obligation in the Purchase Agreement (as
defined below)), the Holder has required that the
Guarantor
guarantee
the
Loan
and
any
other
obligations of the Maker to the Holder pursuant to
the Loan Documents (as such term is defined in Note)
executed in connection therewith, whether now
existing or hereafter incurred.
"....
"NOW, THEREFORE, in consideration of the
foregoing recitals, and as an inducement to the
Holder to make the Loan to the Maker, and as
additional security for the payment of the Loan and
all interest thereon, all modifications, renewals
and extensions thereof, and all other indemnities,
charges, expenses and any other indebtedness of any
nature now existing and hereafter incurred by the
Maker to the Holder in connection therewith or
otherwise, and the performance of all other
obligations of the Maker under the Note, the Loan
Documents or any other obligations of any nature of
the Maker to the Holder (the Loan and all other
indebtedness, liabilities, and obligations secured
hereby being hereinafter called 'Obligations'), the
Guarantor agrees and covenants with the Holder and
represents and warrants to the Holder as follows:
"1.
The
Guarantor
hereby
absolutely
and
unconditionally guarantees to the Holder when due
(whether at stated maturity, by acceleration or
otherwise), the regular, complete and punctual
payment and performance of the Obligations. The
Guarantor hereby further guarantees the prompt
performance of any other obligations of any kind or
character of the Maker to the Holder set forth in
any of the Loan Documents, as the same may hereafter
be amended by the Maker and the Holder, the consent
of the Guarantor to which shall not be required, and
upon failure of the Maker to timely do so, the
4
1130832
Guarantor guarantees to the Holder the payment of
all costs and expenses incurred by the Holder in
performing such obligations. Further, the Guarantor
guarantees the payment of all costs, reasonable
attorney fees or expenses which may be incurred by
the Holder by reason of a default of the Maker under
the Obligations.
"Should an Event of Default as defined in the
Note (an 'Event of Default') occur, the Guarantor
unconditionally promises to pay to the Holder such
amounts and/or perform such Obligations as are
necessary to cure the default, or at the option of
the Holder, the Guarantor agrees to pay the entire
indebtedness owed the Holder by the Maker at the
time of such default.
"....
"2.
The
Guarantor represents
and
warrants
to
the
Holder that: (a) the Guarantor has full power and
unrestricted right to enter into this Guaranty, to
incur the obligations provided for herein, and to
execute and deliver this Guaranty to the Holder, and
that when executed and delivered, this Guaranty will
constitute a valid and legally binding obligation of
the Guarantor, enforceable in accordance with its
terms; (b) this Guaranty is executed at the request
of the Maker; (c) the Guarantor has established
adequate means of obtaining from the Maker on a
continuing basis information pertaining to, and is
now and on a continuing basis will be completely
familiar with, the financial condition, operations,
properties and prospects of the Maker; (d) the
Guarantor has received and approved copies of the
Note and all other Loan Documents; and (e) no oral
promises, assurances, representations or warranties
have been made by or on behalf of the Holder to
induce the Guarantor to execute and deliver this
Guaranty."
5
1130832
(Capitalization in original.) On September 8, 2010, Vintage
Pointe assigned to Ski Lodge the "loan documents," as that
term is defined in the promissory note, set forth above ("the
assignment"), including the promissory note and the guaranty
agreement.
The parties agree that Styles Manager defaulted on the
promissory note in January 2011. Pursuant to the promissory
note, the entire principal amount of the promissory note and
all accrued interest was then due on February 13, 2011.
Neither Styles Manager nor the guarantors cured the default.
Accordingly, on September 27, 2012, Ski Lodge sued the
guarantors, alleging breach of the guaranty agreement, in
order to collect the outstanding debt on the promissory note.
Ski Lodge requested $804,333.36, together with additional
accrued interest, in damages. In its complaint, Ski Lodge did
not expressly allege that the guarantors had waived their
right to a personal exemption. However, Ski Lodge did attach
to its complaint copies of the loan documents, which include
the promissory note and the guaranty agreement, and stated
that each was "incorporated herein by reference." The
guarantors filed an answer on November 8, 2012.
6
1130832
On March 29, 2013, the guarantors filed counterclaims
against Ski Lodge alleging misrepresentation and suppression.
The guarantors also filed a third-party complaint against
Charles F. Mullins, Jr., the sole owner of Vintage Pointe at
the time Styles Manager purchased the apartment complex,
alleging claims of misrepresentation and suppression. Ski
Lodge and Mullins filed answers to the respective claims filed
against them by the guarantors.
On December 3, 2013, the guarantors filed a motion to
dismiss, with prejudice, their counterclaims against Ski
Lodge. In that same motion, the guarantors stated they
"no longer intend ... to defend themselves against
[Ski Lodge's] claims made in the original suit. The
[guarantors] do not contest judgment entered against
them on their personal guaranties in the amount of
$1,057,490.09. Upon information and belief, this
amount represents the principal and interest owed
pursuant to the subject guaranties. The [guarantors]
also do not contest an attorney's fee added to this
judgment in the amount of $158,623.51, which is 15
percent of the total amount owed through the date of
this pleading."
On the same day, the guarantors and Mullins filed a joint
stipulation to dismissal, with prejudice, of the guarantors'
third-party claims against Mullins.
7
1130832
On December 9, 2013, Ski Lodge and Mullins filed a
response to the guarantors' motions, submitting a proposed
order to the circuit court granting the guarantors' motion to
dismiss its counterclaims against Ski Lodge and
dismissing
the
third-party claims against Mullins. The proposed order
included the following language pertinent to this appeal:
"Said judgment is entered with a waiver of
exemptions under the Constitution and the laws of
the United States of America, and any state thereof,
according to the terms expressed in the Promissory
Note and Guaranty of Payment and Performance which
are the subject matter of this action, as the same
were incorporated and adopted into the complaint."
The guarantors objected to the above language of the proposed
order, arguing that the proposed order "includes a
declaration
that there has been a waiver of exemptions under the
[promissory] [n]ote and [the] [g]uaranty [agreement]." The
guarantors argued that the guaranty agreement, "which is the
basis of the lawsuit against the [guarantors], does not
contain a waiver of exemptions." The guarantors further
stated that they "agreed to the entry of a money judgment
under the Complaint and the amount of the attorney's fees
claimed in the proposed order, but have not agreed or
consented to a declaration that they have waived any
8
1130832
exemptions." In response, Ski Lodge requested a hearing.
Before the hearing, which was held on January 21, 2014, Ski
Lodge and the guarantors submitted briefs to the circuit court
presenting their legal arguments on the issue whether the
guarantors had waived their personal exemptions.
On February 11, 2014, the circuit court adopted as its
final judgment the proposed order submitted by Ski Lodge and
Mullins, which states:
"This cause [was] called for trial on January
21, 2014. No testimony was taken as the counsel for
the parties stipulate that the Motion for Dismissal
of Counterclaims and Notice of Non-Contesting for
Entry of Judgment filed by the [guarantors] is
dispositive of any disputed issues of fact to be
tried.
"Having read and considered the motion, the
briefs, oral arguments of counsel, and based upon a
review of all pleadings and evidence in the record
in this cause, it is hereby ORDERED, ADJUDGED AND
DECREED as follows:
"1. The counterclaim filed by [the guarantors]
against ... Ski Lodge ... is hereby dismissed with
prejudice, with the costs to be taxed as paid. The
court notes that a separate Joint Stipulation for
Dismissal has been filed with respect to the third-
party
claim
asserted
in
this
cause
by
the
[guarantors] against Charles F. Mullins, Jr., an
individual.
"2. Judgment is hereby entered in favor of Ski
Lodge ... and against the [guarantors], jointly and
severally, for the principal sum of Eight Hundred
9
1130832
Thousand and No/100 Dollars ($800,000.00), together
with pre-judgment interest in the amount of Two
Hundred Fifty-Seven Thousand Four Hundred Ninety and
09/100 Dollars ($257,490.09), as calculated to
December 3, 2013, the date of the [guarantors']
pleading giving notice of non-contesting for entry
of judgment. Said judgment is entered pursuant to
Alabama law with a waiver of exemptions, according
to the terms expressed in the [p]romissory [n]ote
and [the] [g]uaranty [agreement] which are the
subject matter of this action, as the same were
incorporated and adopted into the complaint. This
finding
is
made
overruling
the
[guarantors']
objection in their brief and oral argument on the
issue of whether the [guarantors] waived exemptions
and that the waiver was not properly [pleaded]. The
court specifically finds that the waiver of
exemptions does not constitute a waiver of any
homestead exemption rights.
"3. Pursuant to § 8-8-10, Code of Alabama
[1975], and in accordance with the terms of the
promissory note upon which this action was based,
post-judgment interest shall accrue at the rate of
13 percent.
"4. Further, the court finds that an attorney's
fee in the amount of One Hundred Fifty-Eight
Thousand Six Hundred Twenty-Three and 51/100 Dollars
($158,623.51) is awarded to [Ski Lodge] and to which
the [guarantors] do not contest the reasonableness
of said fee.
"WHEREFORE, judgment is entered for the total
sum of $1,216,113.60, upon which execution may
issue, with waiver of exemptions."
(Capitalization in original.)
On March 12, 2014, the guarantors filed a Rule 59(e),
Ala. R. Civ. P., motion to alter, amend, or vacate the circuit
10
1130832
court's judgment insofar as the circuit court held that the
"judgment is entered pursuant to Alabama law with a waiver of
exemptions, according to the terms expressed in the
[p]romissory
[n]ote
and
[the]
[g]uaranty
[agreement]
which
are
the subject matter of this action, as the same were
incorporated and adopted into the complaint." The guarantors
argued that "waiver was not properly [pleaded]" and that the
guaranty agreement did "not provide for waiver of exemptions
by" the guarantors.
On March 19, 2014, the circuit court denied the
guarantors' postjudgment motion. The guarantors appealed.
Standard of Review
In Kappa Sigma Fraternity v. Price-Williams, 40 So. 3d
683, 694 (Ala. 2009), this Court stated:
"'Whether to grant relief under Rule 59(e), Ala. R.
Civ. P., is within the trial court's discretion.'
Bradley v. Town of Argo, 2 So. 3d 819, 823 (Ala.
2008). However, when the facts are undisputed and
the '"ruling [is] a reconsideration of a question of
law, ... the standard of review is de novo."' 2 So.
3d at 824 (quoting Pioneer Natural Res. USA, Inc. v.
Paper, Allied Indus., Chem. & Energy Workers Int'l
Union Local 4–487, 328 F.3d 818, 820 (5th Cir.
2003), applying the analogous Rule 59(e), Fed. R.
Civ. P.)."
Discussion
11
1130832
The guarantors argue that the circuit court erred for two
reasons in holding that the guarantors had waived their
personal exemptions. First, the guarantors argue that Ski
Lodge did not plead that the guarantors had waived their
personal exemptions. Second, the guarantors recognize that
Styles Manager, the maker of the promissory note, waived its
exemptions in the promissory note, but the guarantors argue
that the guaranty agreement, which they personally signed,
does not provide for a waiver of their personal exemptions.
We address the guarantors' arguments in turn.
First, the guarantors argue that § 6-10-123 requires that
a plaintiff alleging that a defendant has waived his personal
exemptions plead waiver in the plaintiff's complaint.
Section
6-10-123 states:
"In any civil action, in which a waiver of the
right of homestead or other exemption is sought to
be enforced, the fact of waiver and its extent must
be averred in the complaint or petition and by
appropriate pleading may be controverted. If such
averment is sustained, the fact of waiver and its
extent must be declared in the judgment and endorsed
on the execution or other process issued thereon.
Such waiver shall extend to the costs of the
action."
Ski Lodge argues to this Court, as it did below, that its
attachment of the
loan
documents and its express incorporation
12
1130832
of those documents into its complaint satisfied the
requirements of § 6-10-123. In so arguing, Ski Lodge relies
upon Pierce v. Grant, 652 So. 2d 284 (Ala. Civ. App. 1994),
and upon Rule 10(c), Ala. R. Civ. P., which states:
"Statements in a pleading may be adopted by reference in a
different part of the same pleading or in another pleading or
in any motion. A copy of any written instrument which is an
exhibit to a pleading is a part thereof for all purposes."
In Pierce, a garnishment case, a lessor sued a lessee to
enforce a lease, which undisputedly contained a waiver of the
lessee's
personal
exemptions.
The
lessor's
complaint
included
the following boilerplate language from the lease: "'[T]he
lessee hereby waives all right which lessee may have under the
Constitution and Laws of the State of Alabama or any other
State of the United States, to have any personal property of
the lessee exempt from levy or sale or other legal process.'"
652 So. 2d at 285. The lessor did not attach a copy of the
lease to his complaint. The lessee did not answer the
complaint. The lessor then filed "an application for entry of
default and default judgment" against the lessee. 652 So. 2d
at 285. A copy of the lease was attached to the lessor's
13
1130832
application for entry of default. The trial court granted the
lessor's application and entered a default judgment against
the lessee.
The lessor then filed a motion to amend the default
judgment, noting that the default judgment did not state that
the lessee had waived his personal exemptions; the lessor
requested that the trial court alter its judgment to include
a determination that the lessee had waived his personal
exemptions. The trial court granted the lessor's motion and
amended the judgment. The lessee then filed a motion to
alter, amend, or vacate the trial court's order, which the
trial court denied. The lessee appealed.
On appeal, the lessee argued "that the conditional nature
of the averment of the waiver of exemption contained in the
complaint was not sufficient to comply with the requirements
of Ala. Code 1975, § 6-10-123." 652 So. 2d at 256. The
lessor argued "that the averment in his complaint was
sufficient to comply with the requirements of § 6-10-123
because the lease which was signed by [the lessee] and which
contained the waiver of exemption was adopted by reference
pursuant to Rule 10(c), A[la]. R. Civ. P." Id. The lessor
14
1130832
also argued "that the averment in his complaint was sufficient
to place [the lessee] on notice that a waiver of exemption was
being claimed." Id.
The Court of Civil Appeals disagreed with the lessor,
stating:
"As previously noted, [the lessor] filed a
complaint which contained boilerplate language to
the effect that if the contract contained a waiver
of exemption, then [the lessor] was claiming the
benefit of that provision of the contract. [The
lessor's] attorney testified at the February 25,
1994, hearing that the language contained in the
complaint regarding the waiver of exemption is
standard language included in all of his complaints.
[The lessor's] attorney also testified that he could
not recall whether he had the lease in hand when he
filed the complaint in the present case. It does not
appear from our review of the record that a copy of
the August 1990 lease was attached to the complaint,
which was filed with the court and, ultimately, was
served upon [the lessee]. [The lessee] could have
thought that there was no waiver of exemption in the
lease he executed. Without a specific averment
contained in the complaint or a copy of the lease
attached to the complaint, we cannot say with any
certainty that [the lessee] was 'on notice' that a
waiver of exemption was being claimed.
"Further, it does not appear that the averment
contained in [the lessor's] complaint was sufficient
to place the court and the clerk on notice that a
waiver of exemption was claimed, as there was no
mention of a waiver of exemption in the court's
[default] judgment of February 12, 1993."
652 So. 2d at 286 (emphasis added).
15
1130832
In the present case, Ski Lodge did not specifically aver
in its complaint that the guarantors had waived their personal
exemptions. However, Ski Lodge did attach to its complaint
the loan documents and stated that it was incorporating the
loan documents into its complaint. Accordingly, Ski Lodge
satisfied the standard set forth in Pierce, that, in order to
place the defendant on notice that the plaintiff is claiming
that the defendant waived his or her personal exemptions, the
plaintiff must include a "specific averment" in the complaint
or a copy of the document containing the defendant's waiver of
his or her personal exemptions. See Rule 10(c) ("A copy of
any written instrument which is an exhibit to a pleading is a
part thereof for all purposes." (emphasis added)); see also 1
Champ Lyons, Jr., and Ally Windsor Howell, Alabama Rules of
Civil Procedure Annotated 10.6 (4th ed. 2004) ("Ala. R. Civ.
P. Rule 10(c) expressly provides that the exhibit is then a
part of the pleading for all purposes." (emphasis added)).
Therefore, the guarantors' argument that Ski Lodge "did not
plead waiver in its complaint, such that [the guarantors] did
not have the opportunity to appear and contest it" is
unpersuasive.
16
1130832
Moreover, we note that the guarantors did, in fact,
receive notice that Ski Lodge was claiming that the guarantors
had waived their personal exemptions and that the guarantors
did, in fact, appear and contest their alleged waiver of those
exemptions before the circuit court entered its final
judgment. The guarantors argue that the attachment of the
loan documents to Ski Lodge's complaint was not sufficient to
comply with the requirements of § 6-10-123. The guarantors
state that Ski Lodge "did not plead waiver in its complaint,
such that [the guarantors] did not have the opportunity to
appear and contest it." Guarantors' brief, at 7. As set
forth above, after the guarantors consented to a judgment
being entered against them, Ski Lodge presented a proposed
order to the circuit court that included language holding that
the guarantors had waived their personal exemptions. Before
the circuit court entered its final judgment, the guarantors
objected to the proposed order based on the language
indicating that they had waived their personal exemptions. As
a result, the circuit court ordered a hearing on the issue and
ordered the parties to submit briefs addressing the issue
before the hearing. Only after the guarantors had had the
17
1130832
opportunity to raise their concerns in writing and at the
hearing did the circuit court enter its final judgment, which
included the holding that the guarantors had waived their
personal exemptions. Therefore, even if Ski
Lodge's
complaint
had failed to meet the requirements of § 6-10-123, the
guarantors nonetheless received notice that Ski Lodge was
alleging that they had waived their personal exemptions and
had the opportunity to be heard concerning this matter. For
this reason as well,
the guarantors' argument
is
unpersuasive.
Next, the guarantors argue that the guaranty agreement,
which they executed, "does not provide for a waiver of
exemptions by the ... guarantors." Guarantors' brief, at 8.
It is undisputed that the promissory note is the only document
that includes a waiver of exemptions; the guaranty agreement
contains no such waiver. It is also undisputed that the
promissory note was executed only by Paul C. and only in his
official capacity as manager of Styles Manager; neither Paul
C. nor Paul R. signed the promissory note in his individual
capacity. Thus, the guarantors argue that they did not waive
their personal exemptions by signing the guaranty agreement.
18
1130832
In response, Ski Lodge argues that the loan documents
must be read together and that "[i]t is abundantly clear from
the plain meaning of the language of the contractual
instruments, the [p]romissory [n]ote and the [g]uaranty
[agreement], read together as part of a single transaction,
that the trial court properly found that the Steinfurths had
waived their personal exemptions in writing as required by
law." Ski Lodge's brief, at 16. In so arguing, Ski Lodge
notes the undisputed fact that the promissory note contains a
waiver of Styles Manager's personal exemptions. Ski Lodge
then directs this Court's attention to the several instances
in the guaranty agreement that state that the guarantors agree
to perform the "obligations" of Styles Manager if Styles
Manager defaults on the promissory note. The entire crux of
Ski Lodge's argument is that those "obligations" in the
guaranty agreement the guarantors agreed to perform include
the waiver, in the promissory note, of Styles Manager's
personal exemptions. Ski Lodge argues: "The Steinfurths not
only obligated themselves to make payment under
the
promissory
note in the event of default, in their individual capacities,
but also to perform all obligations of the note, including, we
19
1130832
contend, the waiver of personal exemptions." Id., at 12. We
disagree with Ski Lodge's argument.
The guaranty agreement requires the guarantors to perform
all "obligations" Styles Manager had under the promissory
note; the term "obligations" in the guaranty agreement does
not, however, include Styles Manager's waiver of personal
exemptions in the promissory note. In Broadway v. Household
Finance Corp. of Huntsville, 351 So. 2d 1373, 1377 (Ala. Civ.
App. 1977), the Court of Civil Appeals stated:
"The [Alabama Supreme Court] further said in
Neely v. Henry, 63 Ala. 261 (1879), 'A waiver of
exemption is a contract, and it must be construed,
and have the operation and effect of other
contracts.' Whether there has been a waiver may be
determined from a fair and reasonable construction
of the contract. Terrell & Vincent v. Hurst, Miller
& Co., 76 Ala. 588 (1884). Tit. 7, § 707 [now § 6-
10-121, Ala. Code 1975,] provides that the waiver
may be made by separate instrument in writing
subscribed by the party, or it may be included in
any promissory note, or other written contract
executed by him. Though contained therein, the
waiver is not a part of the obligation of the note
but is an additional agreement which the maker
enters into and must be so pleaded in suit.
Scarbrough v. City Nat'l Bank, 157 Ala. 577, 48 So.
62 (1908). There must be an adjudication of the fact
of waiver and its extent or judgment may not be
entered thereon even though there is judgment on the
obligation of the note. A.G. Story Mercantile Co. v.
McClellan, 145 Ala. 629, 40 So. 123 (1905)."
20
1130832
(Emphasis added.) The Court of Civil Appeals in Broadway,
relying upon this Court's decision in Scarbrough v. City
National Bank, 157 Ala. 577, 48 So. 62 (1908), held that a
waiver in a promissory note is not part of the obligation of
the promissory note, but is an additional agreement that the
maker of the promissory note enters into. See Scarbrough, 157
Ala. at 583, 48 So. at 64 ("The waiver of the exemptions is no
part of the obligation of the note, but simply an additional
agreement which the maker of the note makes."). As stated
above, the guarantors did not sign the promissory note in
their individual capacities; only Paul C. signed the
promissory note, and he signed it in his official capacity as
manager of Styles Manager. Therefore, Ski Lodge's argument is
unavailing. The fact that the guarantors agreed to perform
all of Styles Manager's obligations under the
promissory
note,
in the event that Styles Manager defaulted on the promissory
note, did not include Styles Manager's waiver of its personal
exemptions because a waiver is not an obligation of a
promissory note.
Lastly, related to its argument that the loan documents
must be read together, we note that Ski Lodge also argues that
21
1130832
"contractual documents executed at the same time on the same
subject matter constitute one and the same contract." Ski
Lodge's brief, at 13. Although Ski Lodge does not explicitly
say as much, it appears that Ski Lodge may be arguing that the
guarantors have waived their personal exemptions based on
Styles Manager's waiver in the promissory note because, by
signing the guaranty agreement, the guarantors essentially
signed the promissory note. However, Ski Lodge appears to
abandon this argument immediately after asserting it because
Ski Lodge relies exclusively on language in the guaranty
agreement to support its argument that the guarantors waived
their personal exemptions. Out of an abundance of caution, we
will address what we perceive to be a potential argument
asserted by Ski Lodge.
Ski Lodge relies upon Beaver Construction Co. v.
Lakehouse, L.L.C., 742 So. 2d 159, 166 (Ala. 1999), in making
its argument, which states in pertinent part: "A familiar rule
of contract law holds that '[w]here a written contract refers
to another instrument and makes the terms and conditions of
such other instrument a part of it, the two will be construed
together as the agreement of the parties.' 17A Am. Jur. 2d
22
1130832
Contracts § 400 (1991)." (Emphasis added.) Beavers does not
support Ski Lodge's assertion that the promissory note and the
guaranty agreement are "one and the same contract," nor does
any other general authority relied upon by Ski Lodge. Under
Beavers, in order for the guaranty agreement to fully
incorporate the terms and conditions of the promissory note,
the guaranty agreement would have to refer to the promissory
note -- which it does -- and make the terms and conditions of
the promissory note a part of the guaranty agreement -- which
it does not. The guaranty agreement does not incorporate the
terms of the promissory note as part of the guaranty
agreement. In fact, the guaranty agreement states:
"11. This Guaranty constitutes the entire
agreement and supersedes all prior agreements and
understandings both oral and written between the
parties with respect to the subject matter hereof.
This Guaranty may be executed in any number of
counterparts, each of which shall be deemed an
original, but such counterparts together shall
constitute one and the same instrument."
Therefore, we reject Ski Lodge's argument that the promissory
note and the guaranty agreement are "one and the same
contract." The terms and conditions of the promissory note
were not incorporated into the guaranty agreement.
Conclusion
23
1130832
The circuit court's holding that the guarantors waived
their personal exemptions was in error. Accordingly, we
reverse the circuit court's judgment and remand the matter for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart and Wise, JJ., concur.
Shaw, J., concurs in part and concurs in the result.
24
1130832
SHAW, Justice (concurring in part and concurring in the
result).
I do not believe that Pierce v. Grant, 652 So. 2d 284
(Ala. Civ. App. 1994), stands for the proposition that
attaching to a complaint certain documents evidencing
a
waiver
of an exemption is sufficient to comply with the requirements
of Ala. Code 1975, § 6-10-123.1
In Pierce, the complaint referred to the possible
existence of a waiver of an exemption: "'In the event
Plaintiff's contract contains a clause allowing for waiver of
exemption ..., Plaintiff hereby claims the benefit of said
provision.'" 652 So. 2d at 285. That reference,
characterized as an "averment" by the appellate court, was
conditional: "[The complaint] contained boilerplate language
Section 6-10-123 provides:
1
"In any civil action, in which a waiver of the
right of homestead or other exemption is sought to
be enforced, the fact of waiver and its extent must
be averred in the complaint or petition and by
appropriate pleading may be controverted. If such
averment is sustained, the fact of waiver and its
extent must be declared in the judgment and endorsed
on the execution or other process issued thereon.
Such waiver shall extend to the costs of the
action."
25
1130832
to the effect that if the contract[, which was a lease,]
contained a waiver of exemption, then [the plaintiff] was
claiming the benefit of that provision of the contract." 652
So. 2d at 286 (emphasis added). No copy of the contract was
included with the complaint. In concluding that there was
insufficient notice of a waiver under § 6-10-123, the court
stated: "Without a specific averment contained in the
complaint or a copy of the lease attached to the complaint, we
cannot say with any certainty that Pierce was 'on notice' that
a waiver of exemption was being claimed." Pierce, 652 So. 2d
at 286.
Pierce does not hold that attaching "a copy of the lease"
to the complaint would alone be sufficient to satisfy § 6-10-
123; instead, it holds that attaching a copy of the lease in
conjunction with the conditional averment in the complaint
would be sufficient. Thus, later in Pierce, the court states:
"[T]he boilerplate language contained in the complaint,
without the lease being attached to the complaint, was not
sufficient to place [the defendant] on notice that [the
plaintiff] was seeking to enforce a waiver of exemption,
particularly in view of § 6-10-123." 652 So. 2d at 287
26
1130832
(emphasis added). I read Pierce to hold that compliance with
§ 6-10-123 would have been accomplished with either the
"specific averment" or the "boilerplate language"/conditional
averment in combination with the attachment of the document
containing the waiver.
This view of Pierce complies with the language of § 6-10-
123, which requires that, when a "waiver ... is sought to be
enforced," the existence of the waiver "must be averred." To
"aver" is "to declare or assert; to set distinctly and
formally; to allege." Black's Law Dictionary 135 (6th ed.
1990). The complaint in this case did not allege, declare,
assert, or state distinctly and formally that a waiver existed
under § 6-10-123 (or that Ski Lodge Apartments, LLC ("Ski
Lodge"), sought to enforce it). Although it is true that the
actual written waiver found in the loan documents was
considered, by virtue of Rule 10(c), Ala. R. Civ. P., to be
"part" of the pleadings, I do not believe that this
constitutes placing the party on notice under § 6-10-123 that
the existence of the "waiver and its extent" was averred or
that it was "sought to be enforced."
27
1130832
Despite
my
disagreement
with
the
main
opinion's
interpretation of Pierce, I agree with the
alternate rationale
that the guarantors nevertheless received notice that Ski
Lodge was claiming that the guarantors had waived an
exemption. The guarantors' brief quotes Fears v. Thompson, 82
Ala. 294, 2 So. 719 (1887), which, in examining a predecessor
statute to § 6-10-123, stated: "The design of the statute is,
to provide the mode by which the claim of the waiver of
exemptions may be regularly and appropriately presented in
the
pleadings, so that issue thereon may be joined, and the
defendant have opportunity to appear and contest it." 82 Ala.
at 296, 2 So. 720 (emphasis added). Here, as demonstrated by
the main opinion, the guarantors had the opportunity to
"contest" the waiver. No authority is cited for the
proposition that such a waiver cannot be enforced when it is
not pleaded even if, as in this case, the party had the
opportunity to contest it. Therefore, the failure to comply
with § 6-10-123 does not control the outcome of this case, and
the discussion of the Pierce decision appears to be dictum.
28
1130832
I concur in the result as to the issue whether Ski Lodge
complied with § 6-10-123. As to the remainder of the main
opinion, I concur.
29 | April 17, 2015 |
c4389853-41dc-4deb-9d90-0b8cebd821c2 | Crouch v. North Alabama Sand & Gravel, LLC | N/A | 1131086 | Alabama | Alabama Supreme Court | REL:03/27/2015
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, 2014-2015
____________________
1131086
____________________
Roland Crouch and Sandra Crouch
v.
North Alabama Sand & Gravel, LLC, and Austin Powder Company
Appeal from Franklin Circuit Court
(CV-06-306)
BOLIN, Justice.
Roland Crouch and Sandra Crouch appeal from a summary
judgment in favor of North Alabama Sand & Gravel, LLC, now
operating as Alliance Sand & Gravel, LLC, and Austin Powder
1
This entity is also referred to in the record as Alliance
1
Sand & Aggregates, LLC.
1131086
Company ("Austin Powder") on the Crouches' claim asserting
property damage resulting from Alliance Sand & Gravel's
blasting operations. We affirm in part and reverse in part.
I. Facts and Procedural History
Alliance Sand & Gravel owns and operates a sand and
gravel quarry in Franklin. Alliance Sand & Gravel has used
blasting to loosen the sand and gravel at its quarry since
2004. Austin Powder has performed the blasting for Alliance
Sand & Gravel since 2005; the blasting is monitored by the use
of seismographs. According to Alliance Sand & Gravel, it has
performed approximately one blast per month since September
2004 and has never received a citation or a regulatory penalty
as a result of its blasting operations.
On December 5, 2006, the Crouches sued Alliance Sand &
Gravel
and
Austin
Powder
(hereinafter
referred
to
collectively
as "Alliance"), seeking compensation for damage to their
property, which, they say, was caused by Alliance's blasting
operations. According to the Crouches, their house was in
2
excellent condition before Alliance started its blasting and
The complaint also lists other plaintiffs in Franklin
2
County who allegedly suffered property damage as a result of
the blasting operations; however, this appeal concerns only
the Crouches.
2
1131086
the blasting caused extensive damage to their house and
diminished its value. The Crouches specifically alleged that
Alliance conducted its blasting operations in a negligent and
wanton manner; that it trespassed and/or created a nuisance by
interfering with the Crouches' possession, use, and enjoyment
of their property; and that it engaged in an abnormally
dangerous activity for which it is strictly liable. Alliance
moved for a summary judgment against the Crouches, pursuant to
Rule 56(c), Ala. R. Civ. P.; the trial court granted
Alliance's motion, and it certified its judgment as final
pursuant to Rule 54(b), Ala. R. Civ. P. The Crouches appeal.
3
We note initially that the parties do not dispute that
3
the summary judgment in favor of the Crouches is a final
appealable judgment pursuant to Rule 54(b), even though the
judgment disposes of fewer than all the plaintiffs. As
previously noted, the complaint names numerous other property
owners in Franklin County who also seek compensation for
damage to their property that allegedly occurred as a result
of Alliance's blasting operations. In Haynes v. Alfa
Financial Corp., 730 So. 2d 178, 181 (Ala. 1999), this Court
stated:
"Pursuant to Rule 54(b), a trial court may
direct 'the entry of a final judgment as to one or
more but fewer than all of the claims or parties.'
But Rule 54(b) makes an order final -– and therefore
appealable –- 'only where the trial court "has
completely disposed of one of a number of claims, or
one of multiple parties."' Tanner v. Alabama Power
Co., 617 So. 2d 656, 656 (Ala. 1993) (quoting
Committee Comments on the 1973 adoption of Rule
3
1131086
II. Standard of Review
"In reviewing a summary judgment, we use the
same standard the trial court used in determining
whether the evidence before it presented a genuine
issue of material fact and whether the movant was
entitled to a judgment as a matter of law. Bussey v.
John Deere Co., 531 So. 2d 860, 862 (Ala. 1988);
Rule 56(c), Ala. R. Civ. P. When the movant makes a
prima facie showing that no genuine issue of
material fact exists, the burden then shifts to the
nonmovant to present substantial evidence creating
such an issue. Bass v. SouthTrust Bank of Baldwin
County, 538 So. 2d 794 (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). In reviewing a summary
judgment, this Court must review the record in a
light most favorable to the nonmovant and must
resolve all reasonable doubts against the movant.
Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412
(Ala. 1990)."
Johnson v. Sorensen, 914 So. 2d 830, 833 (Ala. 2005).
III. Analysis
A. Abnormally Dangerous Activity
54(b)) .... In other words, for a Rule 54(b)
certification of finality to be effective, it must
fully adjudicate at least one claim or fully dispose
of the claims as they relate to at least one party."
(Emphasis omitted; emphasis added.) Here, the trial court's
judgment fully disposed of all the claims asserted by the
Crouches; accordingly, the summary judgment in favor of
Alliance is a final appealable judgment.
4
1131086
In Harper v. Regency Development Co., 399 So. 2d 248
(Ala. 1981), this Court adopted the doctrine set out in the
Restatement (Second) of Torts § 519 (1977), which imposes
strict liability upon one carrying on an abnormally dangerous
activity that results in damage to the property of another. In
Birmingham Coal & Coke Co., 10 So. 3d 993, 996-97 (Ala.
2008), this Court, elaborating on Harper, stated:
"Liability in blasting cases is governed by the
principles
established
in
Harper
v.
Regency
Development Co., 399 So. 2d 248 (Ala. 1981). In that
case this Court abandoned the application of
traditional negligence principles in blasting cases
and adopted a test based on the Restatement (Second)
of Torts §§ 519—520 (1977). The Restatement (Second)
of Torts § 519 provides:
"'(1) One who carries on an abnormally
dangerous activity is subject to liability
for harm to the person, land or chattels of
another
resulting
from
the
activity,
although he has exercised the utmost care
to prevent the harm.
"'(2) This strict liability is limited to
the kind of harm, the possibility of which
makes the activity abnormally dangerous.'
"The Restatement (Second) of Torts § 520 lists the
following factors as those that should be considered
in determining whether an activity is abnormally
dangerous:
"'(a) existence of a high degree of
risk of some harm to the person, land or
chattels of others;
5
1131086
"'(b) likelihood that the harm that
results will be great;
"'(c) inability to eliminate the risk
by the exercise of reasonable care;
"'(d) extent to which the activity is
not a matter of common usage;
"'(e)
inappropriateness
of
the
activity to the place where it is carried
on; and
"'(f) extent to which its value to the
community is outweighed by its dangerous
attributes.'
"This Court concluded in Harper that '[t]he use
of
the
explosives
under
abnormally
dangerous
conditions is negligence, and thus actionable if
such conduct proximately causes damage to another.'
Harper, 399 So. 2d at 252. This Court further held:
"'A finding, guided by a consideration
of factors outlined in the Restatement,
that the blaster was "one who carries on an
abnormally
dangerous
activity"
is
a
finding
of negligence -– the breach of a legal duty
-- and, a further finding that such conduct
proximately damaged another, renders the
blaster liable therefor. Ordinarily, both
of these determinations will be issues of
fact for the jury.'[4]
In a footnote, the Harper Court additionally stated:
4
"We note that this aspect of our holding,
particularly the determination of the issue of
'abnormally dangerous activity,' is at odds with
Comment (1) of the Restatement. Consistent with our
holdings in Casrell [v. Altec Industries, Inc., 335
So. 2d 128 (Ala. 1976),] and Atkins [v. American
6
1131086
"Harper, 399 So. 2d at 253. This Court further
stated that the law will not 'permit the blaster to
defend on the ground that he carefully prepared and
detonated the explosive.' Id."
(Some emphasis added.)
In support of its motion for a summary judgment, Alliance
asserted that it did not perform its blasting operations under
abnormally dangerous conditions, that its blasting was
performed with reasonable care and within the standards
provided by government and industry sources, and that its
blasting did not cause the damage the Crouches claimed it
caused to their property. Alliance submitted the affidavit of
its expert, Fred M. Nicol, who had reviewed Alliance's
blasting reports and seismic records and opined that it was
physically and scientifically impossible for the blasting to
have damaged the Crouches' house. Alliance also states that
it relied on the deposition testimony of Carl Mote, an expert
who was deposed on behalf of another plaintiff in this action
Motors Corp., 335 So. 2d 134 (Ala. 1976)], we adhere
to the traditional rule of submitting both the issue
of culpability and proximate cause to the jury
except where no dispute of fact is presented on the
issue by the evidence."
399 So. 2d at 253 n. 7.
7
1131086
-- not the Crouches. According to Alliance, Mote's testimony
5
established that he had "no criticism with the manner in which
[Alliance] conducted its blasting" and that Mote "declined to
provide an opinion that blasting was the cause of [the
Crouches'] damages in this case." A closer look at Mote's
testimony demonstrates that Mote was retained as an expert,
not to render an opinion as to Alliance's blasting but to
provide testimony regarding blasting in general. Mote stated
in his deposition that he had been retained as an expert to
give an opinion on blasting but not to provide any criticism
of Alliance's blasting specifically. He testified that he had
no analysis or opinions relative to the location, size, or any
characteristics of Alliance's
blasts; that he had
not
reviewed
any of the seismic data associated with Alliance's blasting
operations; and that he did not know who monitored the seismic
data associated with Alliance's blasting operations. Thus,
Mote's testimony does not appear to support
Alliance's
earlier
asserted contentions that its blasting was performed under
safe conditions and that its blasting was not the cause of the
The Crouches state in their brief in response to
5
Alliance's summary-judgment motion that Mote's testimony "is
irrelevant" and that his testimony has not been offered on the
Crouches' behalf.
8
1131086
damage to the Crouches' house. Furthermore, as stated in
Harper, the law will not "permit the blaster to defend on the
ground that he carefully prepared and detonated the
explosive." 399 So. 2d at 253. See also Birmingham Coal,
rejecting Birmingham Coal's defense that its blasting was
conducted according to State regulations. 10 So. 3d at 997.
In response to Alliance's motion for a summary judgment,
the Crouches argued that their house, which was located less
than one mile from the blasting site, was in excellent
condition before Alliance started its blasting operations.
Although Mr. Crouch testified that he could hear the blasts
from outside his house, he placed more emphasis on the
vibrations from the blasting, which he alleges caused the
damage to his house. Mr. Crouch stated in his deposition that
the blasting felt like an earthquake and that, on one
particular day, the blasting "about shook [his] house off the
mountain," causing his entire house to move. Mr. Crouch
described the physical damage to his house that, he says,
occurred after Alliance started its blasting operations:
drywall had fallen out of the ceiling, pictures had fallen off
the walls, a chandelier had almost pulled out of the ceiling,
9
1131086
windows had broken, bricks had fallen out of the windowsills,
"cracks" had appeared in the house, including the porches, and
floors had buckled. The Crouches submitted with their
response
the affidavit of their son, Jonathon Crouch, a contractor, who
stated:
"Since [Alliance] started blasting about 10 years
ago, the vibrations to my parents' house have caused
significant damage. As recently as last summer, of
2013, I was hired by my parents to do major
renovations. The main reason they were having
renovations done was because the shaking of the
house from the blasts had caused water to leak into
the house. The basement had become infiltrated with
black mold, which was aggravating my Dad's [chronic
obstructive pulmonary disease], as well as making my
Mom sick too. They spent about $50,000 on the
renovations, and it would have cost more if I had
not been providing them with a family discount of
sorts.
"I am not a blasting expert, but it is only logical
that the damage[] to the house that I saw and sought
to repair, [was] most likely caused by the house
being shook by the blasting at [Alliance], which is
less than a mile away."
The trial court did not include any findings of fact or
explain its basis for entering the summary judgment in favor
of Alliance. According to Alliance, the trial court entered
a summary judgment in its favor because the Crouches failed to
offer any expert testimony that Alliance had performed its
blasting under abnormally dangerous conditions; Alliance
10
1131086
contends that the Crouches were required to offer evidence
regarding the Restatement § 520 guidelines listed in Harper in
determining whether its blasting constituted an abnormally
dangerous activity. As noted in Harper, however, "[e]ach case
will present its own set of facts against which the § 520
guidelines will apply," and, "[a] finding, guided by a
consideration of factors outlined in the Restatement,
that the
blaster was 'one who carries on an abnormally dangerous
activity'" is an "issue[] of fact for the jury." 399 So. 2d
at 253.
In Harper, this Court stated:
"Both prongs of proof [of the traditional
negligence standard ] set the stage for a battle of
6
the experts. The first prong, in the absence of
statutory or regulatory guidelines, places the
plaintiff's expert against the defendant's expert in
a contest to determine the industry's empirical
standard of care. Republic Steel Corp. v. Peoples,
217 F.2d 236 (5th Cir. 1954). The latter prong pits
the plaintiff's evidence of before and after damage
-- in the context of circumstantial cause and effect
"Under
a
traditional
standard
of
negligence
approach,
the
6
plaintiff must specifically show negligent conduct in the
operative blasting procedures that proximately caused damage.
In
essence,
the
plaintiff's
evidentiary
hurdles
are
two-pronged: 1) proving that the defendant's conduct fell
below the industry's acceptable standard of care; and 2)
proving that such conduct proximately caused the damage
suffered." Harper, 399 So. 2d at 251.
11
1131086
-- against the defendant's expert, who testifies
that the damage is not the result of the blasting.
"In light of the subjective nature of any
scientific criteria, fostered by disagreement among
industry experts, creation of an acceptable standard
of conduct becomes extremely difficult. ...
"In recognition of the harshness of the
traditional negligence standard of liability, the
Court has relaxed the requisite standard of proof in
blasting cases."
399 So. 2d at 251 (emphasis added). Cases subsequent to
Harper have concluded that a plaintiff in a blasting case is
not always required to offer expert testimony on the issue of
causation. See, e.g., Birmingham Coal (affirming an award of
damages in a blasting case where the plaintiffs did not offer
expert testimony linking the damages to damage to their
houses, but instead presented evidence of hearing the blasts,
of feeling vibrations from the blasting in their houses, and
of noticing damage to their houses after the blasting began).
See also McCuller v. Drummond Co., 714 So. 2d 298, 299 (Ala.
Civ. App. 1997)(holding that McCuller presented substantial
evidence creating a genuine issue of material fact as to
whether Drummond's blasting was the cause of the damage to
McCuller's house where "McCuller testified that Drummond's
blasting could be felt in his home, and he presented evidence
12
1131086
that the extent of the damage done to his home goes beyond
normal shrinkage or wear and tear. Craig Ledbetter, a
construction management consultant, said in his deposition
that although he is not an expert in blasting, he could say
that the damage to McCuller's home was consistent with
blasting damage."). In this case, the Crouches presented
evidence indicating that they could hear the blasts while they
were outside their house and that they could feel the
vibrations from the blasting in their house, and they
described the damage to their house that they say occurred
after Alliance began blasting. The Crouches' son, a
contractor, also opined in his affidavit that the damage to
his parents' house was most likely caused by blasting
vibrations. In viewing the evidence in a light most favorable
to the Crouches, as we must, Hanners v. Balfour Guthrie, Inc.,
564 So. 2d 412 (Ala. 1999), we conclude that they presented
substantial evidence creating a genuine issue of
material
fact
regarding whether Alliance's blasting was performed under
abnormally dangerous conditions and whether the blasting was
the cause of the damage to the Crouches' house. Again, as
stated in Harper, the questions whether the defendant is
13
1131086
engaged in an abnormally dangerous activity, guided by a
consideration of the factors outlined in Restatement (Second)
of Torts § 520, and whether there is proximate causation, will
normally be questions for the jury. Both the issue of
culpability and the issue of causation should be submitted to
the jury "except where no dispute of fact is presented on the
issue by the evidence." 399 So. 2d at 253 n. 7. Because the
evidence in this case is not without dispute, the trial court
erred in entering a summary judgment for Alliance on the
Crouches' abnormally-dangerous-activity claim.
B. Wantonness
The Crouches argue that the trial court improperly
entered the summary judgment on their wantonness claim. We
agree. Section 6–11–20(b)(3), Ala. Code 1975, defines
"wantonness" as "[c]onduct which is carried on with a reckless
or conscious disregard of the rights or safety of others." In
IMAC Energy, Inc. v. Tittle, 590 So. 2d 163 (Ala. 1991), this
Court stated, regarding wantonness in the context of a
blasting case:
"Wantonness is the doing of some act or the omission
to do some act with reckless indifference that such
act or omission will likely or probably result in
injury. Wantonness may arise from knowledge that
14
1131086
persons are likely to be in a position of danger.
This knowledge need not be shown by direct proof,
but, like any other fact, may be shown by
circumstances from which the fact of actual
knowledge is a legitimate inference. Bishop v.
Poore, 475 So. 2d 486 (Ala. 1985).
"In considering the question whether the
evidence of wantonness was sufficient to be
submitted to the jury, this Court must accept as
true the evidence most favorable to the plaintiff,
and must indulge such reasonable inferences as the
jury was free to draw from that evidence. Jackson v.
Cook, 275 Ala. 151, 153 So. 2d 229 (1963). A
wantonness count should go to the jury if there is
any evidence to support a finding of wantonness.
Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797
(1972). See Bishop, 475 So. 2d at 487.
"The Tittles presented evidence that IMAC was
well aware of the Tittles' complaints, yet continued
its blasting operations for another two years.
Ronnie Tittle testified that on several occasions he
personally went to IMAC's mine site to complain
about the blasting. After a review of the record, we
hold that the Tittles presented sufficient evidence
of wantonness to support the jury's award of
punitive damages for IMAC's damage to the Tittles'
real property."
590 So. 2d at 169 (emphasis added).
In this case, it is undisputed that Alliance performed
its blasting operations less than a mile from the Crouches'
house. Mr. Crouch testified in his deposition that he had
7
Alliance's expert stated that the closest distance
7
between the Crouches' house and the nearest blast as of April
9, 2013, was 3,800 feet.
15
1131086
"been over to that plant ... 20 or 30 times asking them to
quit blasting" because they were "tearing [up his house]."
Mr. Crouch testified that, on one occasion, he traveled to
Decatur to talk to Rodney Terry, who is either the owner or
manager of Alliance Sand & Gravel. According to Mr. Crouch,
Terry stated that he did not think his company's blasting had
caused the damage to the Crouches' house, and he "challenged"
Mr. Crouch to sue Alliance. Mr. Crouch also testified that he
had met numerous times with Billy Richardson, the plant
manager at Alliance Sand & Gravel; that he had shown
Richardson pictures of the damage to his house; that
Richardson visited the Couches' house on several occasions;
that Richardson observed the damage to the house; that
Richardson opined that the damage to the house was caused by
Alliance's blasting; and that Richardson had told him that
Alliance's blasting had also caused damage to other houses in
the area and that the Crouches needed to consult with an
attorney. Like the plaintiffs in IMAC Energy, the Crouches
presented sufficient evidence that Alliance was well aware of
their complaints, yet it ignored those complaints and
continued its blasting operations and, according to Mr.
16
1131086
Crouch, challenged him to sue. See Roberts v. Brown, 384 So.
2d 1047, 1048 (Ala. 1980)("The most crucial element of
wantonness is knowledge, and while that element need not be
shown by direct evidence –- it may be made to appear by
showing circumstances from which the fact of knowledge is a
legitimate inference ...."). In viewing the evidence in a
light most favorable to the Crouches, we conclude that they
provided sufficient evidence warranting submission of their
wantonness claim to a jury. Accordingly, the summary judgment
is reversed insofar as it relates to the Crouches' wantonness
claim.
C. Nuisance
The Crouches also claim that they presented substantial
evidence that Alliance's blasting operations created a
nuisance by interfering with their use and enjoyment of their
property. See Borland v. Sanders Lead Co., 369 So. 2d 523,
529-30 (Ala. 1979)(holding that the law of nuisance applies,
in the traditional sense, where there is interference with the
use and enjoyment of one's property). Specifically, the
Crouches claim that Alliance's blasting operations (1) caused
major damage to their house, (2) affected their day-to-day
17
1131086
activities, (3) affected their ability and willingness to
entertain, (4) affected their entire lifestyle, (5) caused
Mrs. Crouch to become a "nervous wreck" and made her "ill,"
(6) aggravated Mr. Crouch's chronic obstructive pulmonary
disease, (7) frightened their children to the point of crying
over what they believed were earthquakes, (8) caused Mr.
Crouch to become "disgusted," and (9) caused marital problems
between them.
In Hilliard v. City of Huntsville Electric Utility Board,
599 So. 2d 1108, 1112-13 (Ala. 1992), this Court stated,
regarding a nuisance claim:
"Section 6–5–120, Ala. Code 1975, defines
nuisance as 'anything that works hurt, inconvenience
or damage to another.' This Court has construed this
statute to be declaratory of the common law of
nuisance. Lauderdale County Bd. of Educ. v.
Alexander, 269 Ala. 79, 110 So. 2d 911 (1959).
Further, this Court has stated that the 'anything'
referred to in § 6–5–120
"'may
consist
of
conduct
that
is
intentional, unintentional, or negligent.
Indeed, it may even consist of activities
that are conducted in an otherwise lawful
and careful manner, as well as conduct that
combines with the culpable act of another,
so long as it works hurt, inconvenience, or
damage to the complaining party.
"'This does not mean, however, that
the plaintiff is not required to prove
18
1131086
against the defendant the elements of legal
duty and causal relation between the
conduct or activity complained of and the
hurt, inconvenience, or damage sued for.
That which works hurt to another, to
satisfy the statutory definition of a
nuisance, must comport with the classical
tort concepts of duty and causation.'
"Tipler v. McKenzie Tank Lines, 547 So. 2d 438, 440
(Ala. 1989). (Citations omitted.)
"Thus, for an action in nuisance under §
6–5–120, Ala. Code, 1975, the plaintiff must show
conduct, be it intentional, unintentional, or
negligent, on the defendant's part, which was the
breach of a legal duty, and which factually and
proximately
caused
the
complained-of
hurt,
inconvenience, or damage. Because we have found,
above, that Hilliard presented sufficient evidence
on the elements of his negligence claim to submit
that claim to the jury, we hold that Hilliard's
nuisance claim also should be submitted to the
jury."
(Emphasis added.) Additionally, in Morgan Concrete Co. v.
Tanner, 374 So. 2d 1344, 1346 (Ala. 1979), this Court stated,
regarding a private nuisance:
"'The essence of private nuisance is an
interference with the use and enjoyment of land. ...
So long as the interference is substantial and
unreasonable, and such as would be offensive or
inconvenient to the normal person, virtually any
disturbance to the enjoyment of property may amount
to a nuisance.' W. Prosser, Handbook of the Law of
Torts § 89, at 591-93 (4th ed. 1971). Accordingly,
this court has often stated that any establishment
erected on one's premises, though for the purposes
of a lawful trade or business, which, from the
19
1131086
situation, the inherent qualities of the business,
or the manner in which it is conducted, directly
causes substantial injury to the property of another
or produces material annoyance or inconvenience to
the occupants of adjacent dwellings rendering them
physically uncomfortable, is a nuisance. In applying
this principle it has been repeatedly held that
smoke, offensive odors, noise, or vibrations of such
degree or extent as to materially interfere with the
ordinary comfort of human existence will constitute
a nuisance. Baldwin v. McClendon, 292 Ala. 43, 288
So. 2d 761 (1974); Coleman v. Estes, 281 Ala. 234,
201 So. 2d 391 (1967)."
(Emphasis added.)
In viewing the evidence in a light most favorable to the
Crouches, we conclude that they provided sufficient evidence
warranting the submission of their nuisance claim to a jury.
As previously indicated: "The use of explosives under
abnormally dangerous conditions is negligence, and thus
actionable if such conduct proximately causes damage to
another." Harper, 399 So. 2d at 252. See also Terrell v.
Alabama Water Serv. Co., 245 Ala. 68, 70, 15 So. 2d 727, 729
(1943)("[A] nuisance may be and frequently is the consequence
of negligence, or the same acts or omissions which constitute
negligence may give rise to a nuisance."). Accordingly, the
summary judgment in favor of Alliance is also reversed insofar
as it relates to the Crouches' nuisance claim.
20
1131086
D. Trespass
The Crouches lastly assert in a footnote that "[t]respass
and nuisance are related actions and the same set of facts
will frequently provide a recovery under either theory." See,
however, Borland v. Sanders Lead Co., 369 So. 2d at 529 n. 1
(noting that "because of the comprehensive language of our
nuisance statute ([Ala. Code 1975,] § 6-5-120), conduct which
rises to the level of trespass to land, generally speaking,
would support a nuisance action; the converse, however, is not
necessarily true").
In Born v. Exxon Corp., 388 So. 2d 933, 934 (Ala. 1980),
this Court quoted Borland, 369 So. 2d at 530, regarding the
two actions:
"'For an indirect invasion to amount
to an actionable trespass, there must be an
interference with plaintiff's exclusive
possessory interest; that is, through the
defendant's intentional conduct, and with
reasonable foreseeability, some substance
has entered upon the land itself, affecting
its nature and character, and causing
substantial actual damage to the res. For
example,
if
the
smoke
or
polluting
substance emitting from a defendant's
operation causes discomfort and annoyance
to the plaintiff in his use and enjoyment
of the property, then the plaintiff's
remedy is for nuisance; but if, as a result
of
the
defendant's
operation,
the
polluting
21
1131086
substance
is
deposited
upon
the
plaintiff's
property,
thus
interfering
with
his
exclusive possessory interest by causing
substantial damage to the res, then the
plaintiff may seek his remedy in trespass,
though his alternative remedy in nuisance
may co-exist.'"
(Emphasis added.)
In this case, the Crouches do not allege that Alliance's
blasting has caused any type of physical substance such as
rock or other debris to be deposited onto their property. See
also Borland, supra, recognizing that "Alabama case law
rejects the theory that mere concussion caused by blasting
operations constitutes a trespass." 369 So. 2d at 528.
Accordingly, the trial court did not err in entering a summary
judgment in favor of Alliance on the Crouches' trespass claim.
IV. Conclusion
We affirm the trial court's summary judgment in favor of
Alliance on the Crouches' trespass claim. We reverse the
summary judgment in favor of Alliance on the Crouches' claims
alleging an abnormally dangerous activity, wantonness, and
nuisance, and we remand the case to the trial court for
proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
22
1131086
Moore, C.J., and Main and Bryan, JJ., concur.
Murdock, J., concurs in part and concurs in the result.
23
1131086
MURDOCK, Justice (concurring in part and concurring in the
result).
I concur in all parts of the main opinion with the
exception of Part III.A., as to which I concur in the result.
24 | March 27, 2015 |
b7b84cc5-0115-44e9-ae01-0e639584f14d | Ex parte Orrin C. Hudson. | N/A | 1131281 | Alabama | Alabama Supreme Court | REL:04/10/2015
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, 2014-2015
_________________________
1131281
_________________________
Ex parte Orrin C. Hudson
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Orrin C. Hudson
v.
Clairerencia Hudson)
(Shelby Circuit Court, DR-97-553.02;
Court of Civil Appeals, 2120884)
SHAW, Justice.
The petition for the writ of certiorari is denied.
1131281
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT DENIED.
Moore, C.J., and Stuart, Parker, and Wise, JJ., concur.
2 | April 10, 2015 |
fd06df88-e5a7-4e7c-867e-ef59118bc735 | Ex parte Quality Carriers, Inc. | N/A | 1140202 | Alabama | Alabama Supreme Court | REL: 06/05/2015
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, 2014-2015
_________________________
1140202
_________________________
Ex parte Quality Carriers, Inc., and Bennie Hugh Orcutt
PETITION FOR WRIT OF MANDAMUS
(In re: Robert Speer, as administrator of the Estate of
Kimberly Shonta Livingston, deceased
v.
Quality Carriers, Inc., Bennie Hugh Orcutt, and Desmond
Rachard Woods)
(Dallas Circuit Court, CV-14-900079)
WISE, Justice.
1140202
Quality Carriers, Inc., and Bennie Hugh Orcutt, two of
the defendants below, filed a petition for a writ of mandamus
requesting this Court to direct the Dallas Circuit Court to
vacate its order denying their motion to transfer the
underlying action to the Autauga Circuit Court and to enter an
order granting the motion. We grant the petition and issue
the writ.
Facts and Procedural History
On February 9, 2014, Desmond Rachard Woods was driving
northbound on Interstate 65 in Autauga County in a Ford Crown
Victoria automobile; Kimberly Shonta Livingston, Tory Danta
Cooper, Marquita Shonay Speer ("Marquita"), and Aaron Randall
Jones were passengers in the automobile. The automobile Woods
was driving had a mechanical problem and stalled in the right
travel lane; it was nighttime, and the lights on the
automobile were not on. Woods, Cooper, and Jones got out of
the automobile and started looking under the hood. Livingston
and Marquita remained in the automobile.
Orcutt, who was employed by Quality Carriers, was also
traveling northbound on Interstate 65 in
a
tractor-trailer rig
that was owned by Quality Carriers. The tractor-trailer rig
2
1140202
Orcutt was driving collided with the back of the automobile,
which was stalled in the roadway. Both vehicles caught fire.
Livingston and Marquita, who were in the automobile when it
caught fire, were pronounced dead at the scene by Malvin O.
Barber, the Autauga County coroner. Woods and Cooper were
transported to
Prattville
Hospital. According to the accident
report, marijuana was found on Woods's person at the hospital.
At the time the accident report was filed, toxicology results
were pending to determine whether Woods was under the
influence of marijuana at the time of the crash.
The deputy sheriff who was the first responder to the
scene worked in Autauga County. Additionally, a member of the
Autauga County Rescue Squad also responded to the scene and
assisted in the care of the injured individuals. The Autauga
County coroner also responded to the scene and pronounced
Livingston and Marquita dead. Kenneth Barber and Catherine
Ricketts, who were both assistant Autauga County coroners,
also responded to the scene. In his affidavit, Kenneth Barber
stated that he was also the chief of the Marbury Volunteer
Fire Department ("MVFD"); that he was a resident of Autauga
County; and that he directed the MVFD's work and assisted with
3
1140202
the pronouncements of death in this case. In her affidavit,
Ricketts stated that she was also the assistant chief of the
MVFD; that she also assisted in the pronouncements of death;
and that she also assisted with MVFD's work.
Livingston and Marquita were both residents of Autauga
County. At all material times, Orcutt was a resident of
Pensacola, Florida. Quality Carriers is an Illinois
corporation, with its principal place of business in Tampa,
Florida. Quality Carriers has never been an Alabama
corporation and has never had its principal place of business
in Alabama.
On
March
19,
2014,
Robert
Speer
("Speer"),
as
administrator of
Livingston's
estate, filed
a complaint in the
Dallas Circuit Court against Quality Carriers, Orcutt, and
Woods. Speer, a resident of Autauga County, asserted claims
of negligence and wantonness against all the defendants. With
regard to Woods, Speer asserted that Woods had negligently and
wantonly failed to move his automobile out of the lane of
traffic, which resulted in the collision. He asserted that
Woods had breached his duty of care by
"failing to pay proper attention to the roadway and
the traffic, failing to obey the laws and rules of
4
1140202
the State of Alabama, failing to control the vehicle
in order to avoid a collision, and failing to move
his vehicle out of the lanes of traffic when stalled
which resulted in a collision. Further, Defendant
Woods was not fit to safely operate a motor vehicle
at the time of the incident in question."
Speer
also
asserted
claims
of
negligent
entrustment,
negligent
hiring, and negligent supervision against Quality Carriers.
Woods subsequently answered the complaint and filed cross-
claims against Quality Carriers and Orcutt.
On May 12, 2014, Quality Carriers and Orcutt filed a
motion to transfer the action from Dallas County to Autauga
County based on the doctrine of forum non conveniens, as
codified in § 6-3-21.1, Ala. Code 1975. On August 19, 2014,
Speer filed his first amended complaint and a response in
opposition to the motion to transfer. In his amended
complaint, Speer amended his negligence and wantonness claims
against Woods to add the allegation that Woods had
"negligently and wantonly inspected his vehicle." On August
19, 2014, Woods filed a "Joinder in Opposition to the Motion
to Transfer Venue." On October 15, 2014, the trial court
denied the motion to transfer. This petition followed.
Standard of Review
5
1140202
"A petition for a writ of mandamus is the
appropriate 'method for obtaining review of a denial
of a motion for a change of venue' pursuant to §
6–3–21.1. Ex parte National Sec. Ins. Co., 727 So.
2d 788, 789 (Ala. 1998). ...
"'....'
"'A party moving for a transfer under § 6–3–21.1
has the initial burden of showing, among other
things, one of two factors: (1) that the transfer
is justified based on the convenience of either the
parties or the witnesses, or (2) that the transfer
is justified "in the interest of justice."' Ex
parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539
(Ala. 2008). Although we review a ruling on a
motion to transfer to determine whether the trial
court exceeded its discretion in granting or denying
the motion, id., where 'the convenience of the
parties and witnesses or the interest of justice
would be best served by a transfer, § 6–3–21.1, Ala.
Code 1975, compels the trial court to transfer the
action to the alternative forum.' Ex parte First
Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 912
(Ala. 2008) (emphasis added)."
Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573 (Ala. 2011).
Discussion
Quality Carriers and Orcutt argue that the trial court
exceeded its discretion in denying their motion to transfer
the
action
from
Dallas
County
to
Autauga
County.
Specifically, they contend that Autauga County has a strong
connection to the case because all the material events that
gave rise to Speer's claims occurred there. In contrast,
6
1140202
Quality Carriers and Orcutt assert, Dallas County has, at
best, only a tenuous connection to the case -- namely, the
facts that Woods resides there and that maintenance on the
automobile Woods was driving at the time of the accident may
or may not have been performed in Dallas County. Quality
Carriers and Orcutt assert that the interest-of-justice prong
of Alabama's forum non conveniens statute mandates a transfer
to Autauga County.
Quality Carriers and Orcutt have filed a motion to strike
certain exhibits attached to the responses to the mandamus
petition that were filed by Speer and Woods and to strike any
arguments based upon those exhibits because those exhibits
were not before the trial court at the time the trial court
ruled on the motion to transfer. Neither Speer nor Woods has
disputed the assertions of Quality Carriers and Orcutt in this
regard. Additionally, it does not appear that Exhibits 2-11
to Speer's response or Exhibits 10-12 to Woods's response were
before the trial court when it ruled on the motion to
transfer.
"It is well settled that, 'in a mandamus proceeding,
this Court will not consider evidence not presented
to the trial court.' Ex parte Cincinnati Ins. Co.,
51 So. 3d 298, 310 (Ala. 2010). See Ex parte Ford
7
1140202
Motor Credit Co., 772 So. 2d 437, 442 (Ala. 2000)
('"On review by mandamus, we must look only at those
facts before the trial court."' (quoting Ex parte
Baker, 459 So. 2d 873, 876 (Ala. 1984))). '[T]his
Court is bound by the [materials before it], and it
cannot consider a statement or evidence in a party's
brief that was not before the trial court.' Ex
parte Pike Fabrication[, Inc.], 859 So. 2d [1089,]
1091 [(Ala. 2002)]. Accordingly, we have not
considered those exhibits attached to Tinney's
answer in response to the mandamus petition. See Ex
parte Pike Fabrication, 859 So. 2d at 1091, and
Verbena United Methodist Church, 953 So. 2d 395, 399
(Ala. 2006) (refusing to consider an affidavit
submitted in opposition to a mandamus petition
because the affidavit was not before the trial court
when that court rendered the decision under review).
..."
Ex parte East Alabama Med. Ctr., 109 So. 3d 1114, 1117-18
(Ala. 2012) (emphasis added). Accordingly, we grant Quality
Carriers' and Orcutt's motion to strike Exhibits 2-11 to
Speer's response and Exhibits 10-12 to Woods's response, and
we will not consider those exhibits or any arguments based on
those exhibits.
Section 6-3-21.1, Ala. Code 1975, provides, in pertinent
part:
"With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
8
1140202
have been properly filed and the case shall proceed
as though originally filed therein."
(Emphasis added.)
"Historically,
the
plaintiff
has
had
the
initial
choice of venue under the system established by the
legislature for determining venue. Before the
enactment of § 6–3–21.1 by the Alabama Legislature
in 1987, a plaintiff's choice of venue could not be
disturbed on the basis of convenience to the parties
or the witnesses or in the interest of justice.
With the adoption of § 6–3–21.1, trial courts now
have 'the power and the duty to transfer a cause
when "the interest of justice" requires a transfer.'
Ex parte First Family Fin. Servs., Inc., 718 So. 2d
658, 660 (Ala. 1998) (emphasis added). In First
Family, this Court noted that an argument that trial
judges
have
almost
unlimited
discretion
in
determining whether a case should be transferred
under § 6–3–21.1 'must be considered in light of the
fact that the Legislature used the word "shall"
instead of the word "may" in § 6–3–21.1.' 718 So.
2d at 660. This Court has further held that
'Alabama's
forum
non
conveniens
statute
is
compulsory.' Ex parte Sawyer, 892 So. 2d 898, 905
n.9 (Ala. 2004)."
Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745, 748-49
(Ala. 2010).
"The 'interest of justice' prong of § 6–3–21.1
requires 'the transfer of the action from a county
with little, if any, connection to the action, to
the county with a strong connection to the action.'
Ex parte National Sec. Ins. Co., 727 So. 2d [788,]
790 [(Ala. 1998)]. Therefore, 'in analyzing the
interest-of-justice prong of § 6–3–21.1, this Court
focuses on whether the "nexus" or "connection"
between the plaintiff's action and the original
forum is strong enough to warrant burdening the
9
1140202
plaintiff's forum with the action.' Ex parte First
Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911
(Ala. 2008). Additionally, this Court has held that
'litigation should be handled in the forum where the
injury occurred.' Ex parte Fuller, 955 So. 2d 414,
416 (Ala. 2006). Further, in examining whether it
is in the interest of justice to transfer a case, we
consider 'the burden of piling court services and
resources upon the people of a county that is not
affected by the case and ... the interest of the
people of a county to have a case that arises in
their county tried close to public view in their
county.' Ex parte Smiths Water & Sewer Auth., 982
So. 2d 484, 490 (Ala. 2007)."
Ex parte Indiana Mills & Mfg, Inc., 10 So. 3d 536, 540 (Ala.
2008).
The parties do not dispute that the complaint was filed
in an appropriate venue, namely, Dallas County. Likewise,
they do not dispute that the action could properly have been
filed in Autauga County. However, they do dispute whether
1
With regard to venue of actions against individuals, §
1
6-3-2, Ala. Code 1975, provides, in pertinent part:
"(a) In proceedings of a legal nature against
individuals:
"....
"(3) All other personal actions [than
for the recovery of land or on contracts],
if the defendant or one of the defendants
has within the state
a permanent residence,
may be commenced in the county of such
residence or in the county in which the act
10
1140202
the interest-of-justice prong of § 6-3-21.1 requires a
or omission complained of may have been
done or may have occurred."
With regard to venue of actions against foreign and domestic
corporations, § 6-3-7, Ala. Code 1975, provides, in pertinent
part:
"(a) All Civil actions against corporations may
be brought in any of the following counties:
"(1) In the county in which a
substantial part of the events or omissions
giving rise to the claim occurred, or a
substantial part of real property that is
the subject of the action is situated; or
"(2)
In
the
county
of
the
corporation's principal office in this
state; or
"(3) In the county in which the
plaintiff resided, or if the plaintiff is
an entity other than an individual, where
the plaintiff had its principal office in
this state, at the time of the accrual of
the cause of action, if such corporation
does business by agent in the county of the
plaintiff's residence; or
"(4) If subdivisions (1), (2), or (3)
do not apply, in any county in which the
corporation was doing business by agent at
the time of the accrual of the cause of
action."
Rule 82(c), Ala. R. Civ. P., provides, in pertinent part:
"Where several claims or parties have been joined,
the suit may be brought in any county in which any
one of the claims could properly have been brought."
11
1140202
transfer of this case from Dallas County to Autauga County.
In
this
case,
Quality
Carriers
and
Orcutt
have
established that Autauga County has a stronger connection to
the claims in this case than has Dallas County. The accident
from which all the claims in this case arise occurred in
Autauga County. The deputy sheriff who was the first
responder to the scene lives and works in Autauga County. A
member of the Autauga County Rescue Squad, who was also an
Autauga County resident, responded to the scene and assisted
in the care of the injured individuals. The Autauga County
coroner, who is also an Autauga County resident, responded to
the scene and pronounced Livingston and Marquita dead.
Kenneth Barber and Ricketts, the assistant Autauga County
coroners and the chief and assistant chief, respectively, of
the MVFD who had assisted in the pronouncements of death in
this case and had directed and worked with the MVFD on the
scene, both work and live in Autauga County. Both Alabama
State Troopers who responded to the scene were assigned to the
Montgomery post of the Alabama State Troopers, which covers
Montgomery, Autauga, Chilton, Elmore, and Lowndes Counties;
they did not patrol in Dallas County. One of the State
12
1140202
Troopers was a resident of Autauga County. The accident
report indicates that Woods and Cooper, who had also been a
passenger in the automobile, were both taken to the hospital
in Prattville, which is in Autauga County. The accident
report also indicates that, while Woods was at the hospital,
marijuana was found on his person.
Both victims who died in the fire, Livingston and
Marquita, were residents of Autauga County. The accident
report indicated that Cooper was also a resident of Autauga
County. Additionally, the accident report indicates that
Kuambe Woods was the owner of the automobile and that he was
a resident of Autauga County. Finally, Speer is also a
resident of Autauga County.
In contrast, Woods was the only resident of Dallas
County. In his amended complaint, Speer added a claim that
Woods had negligently and wantonly failed to inspect and
maintain the automobile. In his affidavit attached to Speer's
opposition to the motion to transfer, Woods does not state
that he owned the automobile. Rather, he merely refers to
"the vehicle we were traveling in on the night in question."
Woods goes on to make the bare assertion that "[a]ny
13
1140202
maintenance on the subject vehicle would have occurred in
Dallas County." Based on this assertion, Speer argues:
"All of the maintenance of the vehicle occurred in
Dallas County. Thus, documents and witnesses having
information about the maintenance of the car will be
in Dallas County."
There was no evidence presented to the trial court to
establish that Woods owned the automobile. In fact, the
accident report indicated that Kuambe, who was a resident of
Autauga County, was the owner of the automobile in which
Woods, Livingston, and the others were traveling on the night
in question. Additionally, Quality Carriers and Orcutt
attached to their reply to Speer's opposition to the motion to
transfer and their reply to Woods's joinder in the motion to
transfer a copy of Speer's responses to Quality Carriers'
first interrogatories. In his response, Speer listed Kuambe
as a potential witness and stated: "Kuambe Woods: vehicle
owner, may have knowledge concerning the vehicle."
Further, Woods does not include any facts regarding how
long he had been in possession of the automobile or any
assertions that the automobile in question had ever been
located in Dallas County. Rather, the only facts that were
presented to the trial court indicated that the vehicle and
14
1140202
its
occupants were traveling from Livingston's home in
Autauga
County to Calera, Alabama.
Finally, there was no evidence to establish that any
maintenance had actually been performed on the automobile in
Dallas County. Neither Speer nor Woods presented any evidence
indicating that there were actually any witnesses in Dallas
County who would testify as to any maintenance that had been
performed on the automobile or that any documents actually
existed in Dallas County regarding maintenance of the
automobile.
Based on the foregoing, Dallas County has only a very
weak overall connection to this case, while Autauga County has
a much stronger connection. See Ex parte Manning, [Ms.
1131152, Dec. 5, 2014] ___ So. 3d ___ (Ala. 2014); Ex parte
Morton, [Ms. 1130302, Aug. 29, 2014] ___ So. 3d ___ (Ala.
2014); Ex parte State Farm Mut. Auto. Ins. Co., 149 So. 3d
1082 (Ala. 2014); and Ex parte Indiana Mills & Mfg., Inc.,
supra. Therefore, the interest-of-justice prong of the forum
non conveniens
statute requires
that the action be transferred
to Autauga County.
Conclusion
15
1140202
For the above-stated reasons, we conclude that the trial
court exceeded its discretion in denying Quality Carriers and
Orcutt's motion for a transfer based on the interest-of-
justice
prong
of
the
forum
non
conveniens
statute.
Accordingly, we grant the petition for the writ of mandamus
and direct the trial court, in the interest of justice, to
enter an order transferring the case from the Dallas Circuit
Court to the Autauga Circuit Court.2
MOTION TO STRIKE GRANTED; PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ.,
concur.
Moore, C.J., dissents.
Based on our disposition of the "interest of justice"
2
prong of the forum non conveniens, we pretermit any argument
regarding the "convenience of the parties and witnesses"
prong.
16 | June 5, 2015 |
08d62334-04e8-45b5-8f67-67b345b47af9 | Ex parte Duerr. | N/A | 1140294 | Alabama | Alabama Supreme Court | REL: 06/26/2015
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, 2014-2015
____________________
1140294
____________________
Ex parte Andrew Arthur Duerr
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Andrew Arthur Duerr
v.
Anne Marie Duerr)
(Montgomery Circuit Court, DR-09-768.03;
Court of Civil Appeals, 2121086)
WISE, Justice.
1140294
Andrew Arthur Duerr ("the father") argues that the Court
of Civil Appeals erred in affirming the order of the
Montgomery Circuit Court awarding postminority educational
support for his daughter, N.D. We reverse and remand.
Facts and Procedural History
The father and Anne Marie Duerr ("the mother") were
married in 1989, and four children were born during the
marriage. The parties were divorced in 2003. In October
1
2011, the father filed a petition to terminate alimony and to
modify child support and visitation. In April 2013, the
mother filed an answer and a counterclaim in which she sought
postminority educational support for N.D., a child of the
marriage, who was attending the Cleveland Institute of Music.
After conducting a hearing, the trial court, among other
things, ordered the father to pay up to $12,000 per semester
in postminority support for N.D.'s tuition. On September 26,
2013, the father filed a notice of appeal to the Court of
Civil Appeals.
During the marriage, the father also adopted two of the
1
mother's children from a previous marriage.
2
1140294
On August 8, 2014, the Court of Civil Appeals affirmed
the trial court's judgment, without an opinion. See Duerr v.
Duerr, [Ms. 2121086, August 8, 2014] ___ So. 3d ___ (Ala.
Civ. App. 2014). Judge Thomas concurred in part with and
dissented in part from the no-opinion affirmance,
reasoning as
follows:
"This is an appeal in a domestic-relations
action. I concur as to the affirmance of the
Montgomery Circuit Court's decision to reinstate its
award of periodic alimony to Anne Marie Duerr.
However, I respectfully dissent as to the affirmance
of
the
trial
court's
award
of
postminority
educational support. On October 4, 2013, our
supreme court released Ex parte Christopher, 145 So.
3d 60 (Ala. 2013), in which our supreme court
expressly overruled Ex parte Bayliss, 550 So. 2d 986
(Ala. 1989).
"In overruling Bayliss, our supreme court
specifically held that,
"'[a]lthough [this] decision does not
affect
final
orders
of
postminority
educational support already entered, our
overruling of Bayliss is applicable to all
future cases. Further, this decision also
applies to current cases where no final
postminority-support
order
has
been
entered
or
where
an
appeal
from
a
postminority-support
order
is
still
pending.'
"Christopher, 145 So. 3d at 72 (emphasis added).
"As I explained in my special writing in Morgan
v. Morgan, [Ms. 2120101, July 11, 2014] ___ So. 3d
3
1140294
___,
___
(Ala.
Civ.
App.
2014)(Thomas,
J.,
concurring in part and concurring in the result in
part), the above language in Christopher plainly
states that the holding in Christopher is applicable
to
any
case
in
which
an
appeal
of
a
postminority-educational-support order was pending
at the time the supreme court's opinion in
Christopher was released; there is no mention of an
obligation of a party to have raised the issue
before the trial court.
"The
State
Judicial
Information
System
case-action-summary sheet in this case indicates
that Andrew Arthur Duerr ('the former husband')
filed this appeal on September 26, 2013, and that
the appeal remained pending when the opinion in
Christopher was released on October 4, 2013.
Accordingly, it is my opinion that, based upon the
plain language used by our supreme court, this court
must reverse that portion of the trial court's
divorce judgment ordering the former husband to pay
postminority educational support, in accordance with
the supreme court's holding in Christopher that 'the
child-custody statute does not authorize a court in
a divorce action to require a noncustodial parent to
pay educational support for children over the age of
19.' 145 So. 3d at 72."
___ So. 3d at ___.
On March 19, 2015, this Court granted the father's
petition for a writ of certiorari to determine whether the
decision of the Court of Civil Appeals affirming the trial
court's order awarding postminority educational support for
N.D. conflicted with Ex parte Christopher, 145 So. 3d 60 (Ala.
2013).
4
1140294
Standard of Review
"'"On certiorari review, this Court
accords no presumption of correctness to
the legal conclusions of the intermediate
appellate court. ..." Ex parte Toyota
Motor Corp., 684 So. 2d 132, 135 (Ala.
1996).'
"Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003).
'"[O]n appeal, the ruling on a question of law
carries no presumption of correctness, and this
Court's review is de novo."' Rogers Found. Repair,
Inc. v. Powell, 748 So. 2d 869, 871 (Ala. 1999)
(quoting Ex parte Graham, 702 So. 2d 1215, 1221
(Ala. 1997))."
Ex parte C.L.C., 897 So. 2d 234, 236–37 (Ala. 2004).
Discussion
The father argues that the Court of Civil Appeals erred
in not reversing the trial court's award of postminority
educational support for N.D. He argues that the reversal of
that order is mandated by Ex parte Christopher, 146 So. 3d 60
(Ala. 2013). This Court addressed a similar argument in Ex
parte Jones, [Ms. 1131479, February 27, 2015] ___ So. 3d ___,
___ (Ala. 2015), stating:
"In Ex parte Christopher, this Court overruled
Ex parte Bayliss, 550 So. 2d 986 (Ala. 1989), and
held that the child-custody statute, § 30–3–1, Ala.
Code 1975, did not authorize a trial court in a
divorce action to require a noncustodial parent to
pay educational support for a child who was over the
age of 19. 145 So. 3d at 72. This Court further
5
1140294
held that the decision in Ex parte Christopher would
not affect final orders of postminority education
support but would apply to cases where an appeal of
a
postminority-educational-support
order
was
pending
at the time Ex parte Christopher was decided.
"Because the trial court's order awarding
postminority educational support was pending on
appeal in the Court of Civil Appeals when Ex parte
Christopher was decided, the Court of Civil Appeals
erred in not applying Ex parte Christopher in this
case. The father filed an appeal from the trial
court's postminority-educational-support order on
September 10, 2013. This Court decided Ex parte
Christopher on October 4, 2013. Because this case
was pending on appeal in the Court of Civil Appeals
when Ex parte Christopher was decided, the Court of
Civil Appeals erred by not applying the holding in
Ex parte Christopher that a trial court does not
have authority to order postminority educational
support in this case and by not reversing the trial
court's order. Because the judgment of the Court of
Civil Appeals affirming the trial court's order
conflicts with Ex parte Christopher, that court's
judgment is reversed."
Likewise, the father in this case filed his notice of
appeal from the trial court's order awarding postminority
educational support on September 26, 2013, and this case was
pending on appeal in the Court of Civil Appeals at the time
this Court decided Ex parte Christopher. Therefore, based on
the reasoning in Ex parte Jones, the Court of Civil Appeals
erred when it did not apply the holding in Ex parte
Christopher to this case and reverse the trial court's award
6
1140294
of postminority educational support for N.D. Because the
trial court's order conflicts with this Court's holding in Ex
parte Christopher, that court's judgment must be reversed.
Conclusion
Accordingly, we reverse the judgment of the Court of
Civil Appeals and remand this case for proceedings consistent
with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Bolin, Parker, Main, and Bryan,
JJ., concur.
Murdock and Shaw, JJ., dissent.
7 | June 26, 2015 |
c2dbed80-8200-4c6c-b1e9-021e6933e351 | Howard v. Cullman County | N/A | 1140748 | Alabama | Alabama Supreme Court | REL: 12/4/2015
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, 2015-2016
____________________
1140748
____________________
Michael A. Howard
v.
Cullman County and Barry Willingham,
Revenue Commissioner of Cullman County
Appeal from Cullman Circuit Court
(CV-13-900495)
MURDOCK, Justice.
Michael A. Howard appeals the summary judgment entered
against him by the Cullman Circuit Court in the action he
commenced on behalf of himself and all other similarly
1140748
situated taxpayers in Cullman County against Cullman County
and its Revenue Commissioner Barry Willingham, in
his
official
capacity ("the revenue commissioner"), seeking a refund of
property taxes he and other taxpayers paid in 2013. We affirm
the summary judgment.
I. Facts
The revenue commissioner for each county is responsible
for the assessment of property for the purpose of taxing the
property,
collecting those taxes,
and
making
reports
concerning the same. County property taxes are due on
October 1 of each year and must be paid by December 31 to
avoid incurring a late fee.
Before its amendment during the course of this action,
§ 40-7-42, Ala. Code 1975 (hereinafter "former § 40-7-42"),
provided:
"The county commission, at the first regular
meeting in February in each year, shall levy the
amount of general taxes required for the expenses of
the county for the current year, not to exceed one
half of one percent of the value of the taxable
property as assessed for revenue for the state as
shown by the book of assessments after it shall have
been corrected, at the same time levying the amount
of special taxes required for the county for the
current year, which levy shall be made upon the same
basis of valuation provided above and, when such
levy shall be made, shall certify the rate or rates
2
1140748
of taxation and the purpose or purposes for which
the tax is levied to the tax assessor of the
county."
(Emphasis added.)
On February 14, 2013, the Cullman County Commission ("the
Commission") held its first regular meeting of the month. It
is undisputed that the Commission did not levy any property
taxes during that meeting. Instead, the Commission levied
property taxes at a meeting held in May 2013; the levy was set
at the same level as the prior year. There is also no dispute
that the Commission was aware of the requirements of former
§ 40-7-42. Based on the May 2013 levy, the revenue
1
commissioner assessed general and special property taxes
against owners of property in the county, issued tax notices,
and collected property taxes for the 2013 tax year. The
county
administrator
for
the
Commission
testified
by
affidavit
that, "[w]ithout the levy of ad valorem taxes, Cullman County
Howard notes that notice of the timing provision in
1
former § 40-7-42 was regularly provided to county commissions
by the Association of County Commissions of Alabama. The
notice dated January 22, 2013, stated: "For your agenda in
February: Here's a reminder that the commission is required
to levy taxes for the coming year at its first regular meeting
in February, according to Ala. Code Section 40-7-42. (This
applies only to ad valorem taxes.)." Howard also notes that
the Commission set the levy in 2014 during its first meeting
in February of 2014.
3
1140748
could not pay for either the necessary general expenditures of
the County, including its various contracts, or [its] bond
debts."
Howard owns real property in Cullman County. He was
assessed general and special property taxes for the period
October 1, 2012, to September 30, 2013. He timely paid those
taxes without filing any protest.
On December 27, 2013, Howard commenced this action
against
Cullman
County
and
the
revenue
commissioner
(hereinafter sometimes referred to collectively as "the
defendants") on behalf of himself and a putative class of
taxpayers in Cullman County. Howard sought a judgment
declaring that,
pursuant to former § 40-7-42,
the
Commission's
levy of property taxes for October 1, 2012, through
September 30, 2013, was invalid because it was done in May
2013 rather than at the Commission's first regular meeting in
February 2013. He also sought the return of property taxes
collected in 2013. Howard filed a first amended complaint on
February 4, 2014.
4
1140748
Because of the present action and similar actions that
had been filed against other county commissions, the Alabama
2
Legislature amended § 40-7-42, effective April 10, 2014, by
enacting Act No. 2014-433, Ala. Acts 2014. The amended
version of § 40-7-42 provides:
"(a) The
county
commission,
at
the
first
regular
meeting in February 2015, shall levy the amount of
general taxes required for the expenses of the
county, not to exceed one half of one percent of the
value of the taxable property as assessed for
revenue for the state as shown by the book of
assessments after it shall have been corrected, at
the same time levying the amount of special taxes
required for the county, which levy shall be made
upon the same basis of valuation provided above and,
when the levy shall be made, shall certify the rate
or rates of taxation and the purpose or purposes for
which the tax is levied to the tax assessor of the
county. The levies established as provided herein
shall be assessed and collected in all subsequent
tax years unless altered by the county commission in
compliance with a change in the tax rate by general
law not later than the last day of February prior to
the effective date of the change in tax rate.
"(b) Any general or special taxes levied by the
county commission prior to April 10, 2014, are
The defendants inform us that property-tax levies have
2
been challenged in at least five other counties: Pickens
County
(Mary
Hammett
v.
Pickens
County,
Case
No.
CV-2014-900015); Walker County (Donald Joe Stephens v. Walker
County,
Case
No.
CV-2014-900038);
Fayette
County
(Lori
Mancone
Cain v. Fayette County, Case No. CV-2014-900004); Elmore
County (James A. Sutherland v. Elmore County, Case No.
CV-2014-900211); and Autauga County (Mark A. Sheridan v.
Autauga County, Case No. CV-2014-900096).
5
1140748
hereby ratified and confirmed irrespective of
whether the general or special taxes were levied
during the first county commission meeting held in
February of any year."
Thus, the amended version of § 40-7-42 purported to
retroactively validate any past levies of property taxes by
county commissions that were not levied during the first
regular meeting in February of a given year.
On April 24, 2014, Howard filed a second amended
complaint
adding
various
claims
challenging
the
constitutionality of Act No. 2014-433. In accordance with
§ 6-6-227, Ala. Code 1975, Howard served notice upon the
attorney general of his constitutional challenges to Act No.
2014-433.
On May 12, 2014, the defendants filed a motion for a
summary judgment. On September 8, 2014, Howard filed a motion
for a summary judgment. The trial court held a hearing on the
motions on October 24, 2014. On December 15, 2014, the trial
court issued its order in which it granted the summary-
judgment motion filed by the County and the revenue
commissioner and denied the summary-judgment motion filed by
Howard. In a lengthy order, the trial court concluded that
6
1140748
"the timing provision in [former § 40-7-42] is directory in
nature," rather than mandatory, and that
"[t]he mandatory clause -- the essence of the former
version of Ala. Code [1975,] § 40-7-42 -- is the
requirement that a county commission 'shall levy the
amount of general taxes required for the expenses of
the county for the current year.' Interpreting the
adverbial clause regarding the timing of the levy to
be mandatory in nature would have the absurd result
of thwarting the very purpose of the statute, which
is to ensure that each county has sufficient revenue
to meet its legal responsibilities. Indeed, if the
Cullman County Commission had refused to do so, the
caselaw suggests that a writ of mandamus would lie
in favor of the County's debtors and, arguably, its
citizens, requiring such a levy. See State v.
Laurendine, 199 Ala. 312, 314-15, 74 So. 370, 371
(Ala. 1917).
"To be clear: in deciding in Cullman County's
favor as to this issue, the Court is not condoning
the failure of the Cullman County Commission to levy
the taxes as required by law. While not commendable,
however, levying the taxes after the statutorily
directed time is not, in and of itself, sufficient
to render the whole of the levy void and thus
entitle Howard to a refund. Because this Court finds
that the timing provision in the former version of
Ala. Code [1975,] § 40-7-42[,] is directory,
judgment is due to be granted in favor of Cullman
County and Revenue Commissioner Willingham, in his
official capacity as Revenue Commissioner of Cullman
County, Alabama."
(Footnote omitted.)
Because the trial court concluded that the Commission's
2013 levy of property taxes was not invalidated by its failure
7
1140748
to levy the taxes in February 2013, the trial court also
concluded
that
Howard's
claims
concerning
the
constitutionality of Act No. 2014-433 were moot. The trial
court reasoned that Howard's constitutional challenges
"all rest on the contention that the ratification of
previous irregular tax levies interferes with his
right to a refund of the allegedly void taxes, which
he claims vested either at the moment of taxation
or, at the latest, upon the filing of this lawsuit.
... Because Howard never had a right to a refund of
his 2013 taxes, it is axiomatic that such a right
never vested in him, so that the ratification of the
previous tax levies does not violate Section 13, 22,
or 95 of the Alabama Constitution of 1901."
3
The trial court
likewise
concluded that Howard's argument that
the retroactivity provision of Act No. 2014-433 violated his
right to due process of law under the Fourteenth Amendment was
mooted by its decision that the May 2013 levy was valid.
Finally, the trial court noted: "Howard has generally
asserted that he is immune from retroactive tax liability;
however, he has asserted no legal basis for this claim."
Accordingly, the trial court rejected Howard's immunity
argument.
Howard
specifically
states
in
his
brief
that,
because
his
3
challenges to the constitutionality of Act No. 2014-433 "were
not considered or decided by the Circuit Court[, they] should
not be reviewed by this Court in this appeal."
8
1140748
On January 14, 2015, Howard filed a Rule 59(e), Ala. R.
Civ. P., motion to alter, amend, or vacate the judgment. The
trial court denied the postjudgment motion on March 4, 2015.
Howard appealed.
II. Standard of Review
"'This Court's review of a summary
judgment is de novo. Williams v. State
Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of
review
as
the
trial
court
applied.
Specifically,
we
must
determine
whether
the
movant has made a prima facie showing that
no genuine issue of material fact exists
and that the movant is entitled to a
judgment as a matter of law. Rule 56(c),
Ala. R. Civ. P.; Blue Cross & Blue Shield
of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a
determination, we must review the evidence
in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d
756, 758 (Ala. 1986). Once the movant
makes a prima facie showing that there is
no genuine issue of material fact, the
burden then shifts to the nonmovant to
produce "substantial evidence" as to the
existence of a genuine issue of material
fact. Bass v. SouthTrust Bank of Baldwin
County, 538 So. 2d 794, 797-98 (Ala. 1989);
Ala. Code 1975, § 12-21-12. "[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).'
9
1140748
"Dow v. Alabama Democratic Party, 897 So. 2d 1035,
1038-39 (Ala. 2004)."
Ex parte Jackson Cnty. Bd. of Educ., 4 So. 3d 1099, 1102 (Ala.
2008).
III. Analysis
As noted above, the trial court concluded that the timing
provision of former § 40-7-42 was directory rather than
mandatory, the effect of which is that a failure by the
Commission to levy property taxes at its first regular meeting
in February did not extinguish the Commission's power to levy
property taxes at a later time. The trial court concluded
that the mandatory portion of former § 40-7-42 was the
Commission's responsibility to levy the amount of property
taxes "required for the expenses of the county for the current
year."
The distinction drawn by the trial court between
directory and mandatory provisions of a statute is well
established, having been employed by this Court at least as
early as 1844, see Anderson v. Rhea, 7 Ala. 104, 106 (1844).
Our courts have continued to apply this distinction to the
interpretation of statutes up to the present day. See, e.g.,
Cox v. Mobile Cnty. Bd. of Sch. Comm'rs, 157 So. 3d 897, 902
10
1140748
(Ala. Civ. App. 2013), reh'g denied (Dec. 6, 2013), cert.
denied (July 18, 2014). As succinct a summary of the
distinction as this Court has made is found in Mobile County
Republican Executive Committee v. Mandeville, 363 So. 2d 754,
757 (Ala. 1978):
"The distinction between a mandatory provision
and one which is only directory is that when the
provision of a statute is the essence of the thing
to
be
done,
it
is
mandatory.
Under
these
circumstances, where the provision relates to form
and manner, or where compliance is a matter of
convenience, it is directory. Rodgers v. Meredith,
274 Ala. 179, 146 So.2d 308 (1962); Board of
Education of Jefferson County v. State, 222 Ala. 70,
131 So. 239 (1930). In making this determination, it
is legislative intent, rather than supposed words
[of] art such as 'shall,' 'may' or 'must,' which
ultimately controls."
Thus, a statutory requirement is directory if it "merely
prescrib[es] a rule of legislative procedure that to violate
would not avoid the enactment." Coleman v. Town of Eutaw, 157
Ala. 327, 333, 47 So. 703, 705 (1908). A requirement is
mandatory if it "'relate[s] to the essence of the thing to be
done.'" Alabama Pine Co. v. Merchants' & Farmers' Bank of
Aliceville, 215 Ala. 66, 67, 109 So. 358, 359 (1926) (quoting
25 R.C.L. 767 § 14). The Court has also noted:
"[I]t may be stated as a general proposition that a
mandatory statute is one which prescribes, in
11
1140748
addition to the requirement of performing the thing
specified, the result obtained if that performance
is not done; if the statute is directory only, the
statute's content is limited to the performance
required."
Ex parte Hood, 404 So. 2d 717, 718 (Ala. 1981).
A helpful discussion of the distinction between directory
and mandatory provisions in the context of a tax statute is
contained in State Auditor v. Jackson County, 65 Ala. 142
(1880):
"It is contended before us, that in the
assessment of the railroad valuations, and in the
levy of the county taxes, many irregularities
intervened, which render the proceedings void. The
question has been much discussed, what regulations
for the levy and assessment of taxes are mandatory,
and what are simply directory. All directions given
in the statutes, concerning the levy and assessment
of taxes, ought to be substantially followed by
courts and officers charged with the duties. They
would not be enacted, if this were not the intention
of the law-making power. 'But the negligence of
officers, their mistakes of fact or of law, and many
other
causes,
will
often
prevent
a
strict
observance; and when the provisions which have been
disregarded constitute parts of an important,
perhaps complicated system, it becomes of the
highest importance to ascertain the effect the
failure to obey them shall have on the other
proceedings with which they were associated in the
law.' -- Cooley on Tax. 213. In French v. Edwards,
[80 U.S.] 13 Wall. 506 [20 L.Ed. 702 (1871)], the
Supreme Court of the United States said: 'There
are,
undoubtedly,
many
statutory
requisitions
intended for the guide of officers in the conduct of
business devolved upon them, which do not limit
12
1140748
their power, or render its exercise in disregard of
the requisitions ineffectual. Such, generally, are
regulations designed to secure order, system and
dispatch in proceedings, and by a disregard of which
the
rights
of
parties
interested
cannot
be
injuriously affected. Provisions of this character
are not usually regarded as mandatory, unless
accompanied by negative words, importing that the
act required shall not be done in any other manner
or time than that designated. But, when the
requisitions
prescribed
are
intended
for
the
protection of the citizen, and to prevent a
sacrifice of his property, and by a disregard of
which his rights might be, and generally would be,
injuriously affected, they are not directory, but
mandatory. They must be followed, or the acts done
will be invalid. The power of the officer, in all
such cases, is limited by the measure and conditions
prescribed for its exercise.'
"....
"In Torrey v. Milbury, [38 Mass.] 21 Pick. 64
[(1838)], the court said: 'In considering the
various statutes regulating the assessment of taxes,
and the measures preliminary thereto, it is not
always easy to distinguish which are conditions
precedent to the legality and validity of the tax,
and which are directory merely, and do not
constitute conditions. One rule is very plain and
well settled -- that all those measures which are
intended for the security of the citizen, for
ensuring an equality of taxation, and to enable
every one to know with reasonable certainty for what
polls and for what real and personal estate he is
taxed, and for what all those who are liable with
him are taxed, are conditions precedent; and if they
are not observed, he is not legally taxed, and he
may resist it in any of the modes authorized by law
for contesting the validity of the tax. But many
regulations are made by statute, designed for the
information of assessors and officers, and intended
13
1140748
to promote method, system and uniformity in the
modes
of
proceeding,
the
compliance
or
non-compliance with which does in no respect affect
the rights of tax-paying citizens. These may be
considered directory; officers may be liable to
legal animadversion, perhaps to punishment, for not
observing them; but yet their observance is not a
condition precedent to the validity of the tax.'"
65 Ala. at 149-51 (emphasis added). See also Court of Comm'rs
of Washington Cnty. v. State, 172 Ala. 242, 249-51, 55 So.
623, 625-26 (1911) (reaffirming the discussion in State
Auditor v. Jackson Cnty.); Brasher v. State, 555 So. 2d 184,
190–91 (Ala. Crim. App. 1988), affirmed, 555 So. 2d 192 (Ala.
1989) (describing the distinction in a similar manner).
As the final quoted portion of State Auditor v. Jackson
County emphasized above noted, labeling a provision directory
in nature does not relieve public officials from following the
statutory direction in the provision. The Court noted in
State Auditor v. Jackson County that for directory and
mandatory provisions "it is the duty of the assessor to
observe and obey; but a failure to conform to those falling
within the first class, does not invalidate the assessment,
while a non-observance of the mandatory duties renders it
wholly void." 65 Ala. at 155. Likewise, in Birmingham
Building & Loan Ass'n v. State, 120 Ala. 403, 25 So. 52
14
1140748
(1899), the Court stressed that in considering a provision to
be directory "it is not meant that a duty does not rest upon
the officer to act within the time, a duty which he may be
compelled to perform, but simply that his power to act does
not expire with the time." 120 Ala. at 409, 25 So. at 54. In
other words, the failure to follow a directory provision does
not affect the essential power granted to a public official or
a public body in a particular statute, but officials still may
be compelled to perform the directory duty in the future.
The trial court quoted and cited several of the
authorities provided above in reaching the conclusion
that the
timing provision of former § 40-7-42 is directory, while the
requirement to levy the amount of property taxes necessary to
fund a county's expenses is mandatory. The trial court deemed
the essence of former § 40-7-42 to be the grant to a county
commission of the power to levy property taxes for funding
county expenses. It considered the timing provision to relate
to form and manner, a provision "'intended for the guide of
officers in the conduct of business devolved upon them,'"
which was "'designed to secure order, system and dispatch in
proceedings'" concerning the levy and subsequent assessment
15
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and collection of property taxes. State Auditor v. Jackson
Cnty., 65 Ala. at 150 (quoting French v. Edwards, 80 U.S. 506,
510 (1871)). Confirming this determination was the fact that
former § 40-7-42 did not contain any language detailing a
consequence for a failure to follow the timing provision. See
Ex parte Hood, 404 So. 2d at 718.
In addition to the above-related general observations as
to why the trial court reached the conclusion it did, the
trial court also discussed and relied upon a case from this
Court that appears to be directly on point to the statute in
issue. Perry County v. Selma, Marion & Memphis R.R., 58 Ala.
546 (1877), was a consolidated appeal consisting of three
cases: Perry County v. Selma, Marion & Memphis R.R.; Western
R.R. of Alabama v. Chambers County; and Savannah & Memphis
R.R. v. Weaver. The decision pertinent to the present case
involved Western Railroad of Alabama v. Chambers County, in
which the railroad company alleged that Chambers County had
"attempted to assess and levy a county tax for the
year 1875, on that part of [Western Railroad's]
road-bed, main and side track, situated in said
county, and that said county is now proceeding by
and through its tax collector, Julius G. Weaver, to
collect said tax by a levy upon property of [Western
Railroad], located in said county."
16
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58 Ala. at 549-50. Chambers County levied the property tax
under the authority of § 93 of the Revenue Law of 1875-76.
Section 93 provided:
"Be it further enacted, That it shall be the
duty of the court of county commissioners, at the
July term, to proceed to levy the amount of taxes
required for their county for that year, not to
exceed one-half of one per centum on the value of
all taxable property therein as assessed for revenue
to the State; and after the commissioners shall have
received the books from the tax assessor, and they
shall have corrected errors as provided in this act,
the Probate Judges shall make a book containing in
a concise form, the amount of taxes due by each tax
payer, which book shall show the amount of tax on
real estate and personal property separately,
together with the fees of the assessor and
collector, which book shall be turned over by the
Judge to the tax collector on or before the first
day of September in each year; Provided, this act
shall not be construed as to repeal any acts
authorizing commissioner's courts to levy special
taxes for special purposes."
(Emphasis added.)
Western Railroad contended that Chambers County was not
entitled to collect the property taxes, arguing, among other
things, that "the commissioners' court of said county did not
levy the tax for county purposes at their July term for 1875,
but all the action was taken at their August term for said
year." 58 Ala. at 550. In other words, Western Railroad made
the same argument Howard makes in this case, i.e., that the
17
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county could not levy and collect the property tax in question
because it did not levy the tax at the time it was directed by
the statute to do so.
This Court
rejected
Western
Railroad's
argument, stating:
"The only other question we consider it
necessary to determine, arises on the averment of
the bill of the Western Railroad Company against
Chambers county, that the county tax of 1875 was
levied in August of that year, when it should have
been done in July, under section 93 of the revenue
law of 1875. We hold this provision of the law to be
directory, and that such levy made at the regular
August term of the court, as this was done, is
valid.-- See Hilliard on Taxation, 299, et seq.;
Burroughs on Taxation, 249; Cooley, do. 212, et
seq."
58 Ala. at 562.
The trial court here compared the pertinent language from
§ 93 of the Revenue Law of 1875-76 ("That it shall be the duty
of the court of county commissioners, at the July term, to
proceed to levy the amount of taxes required for their county
for that year ....") to the pertinent language of former
§ 40-7-42 ("The county commission, at the first regular
meeting in February in each year, shall levy the amount of
general taxes required for the expenses of the county for the
current year ...."). The trial court observed that, "[i]n
both statutes, the timing provision is set off as an adverbial
18
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phrase, separate and apart from the requirement that the
commission levy taxes." The trial court concluded that it was
"clear that the logic of Perry County applies to the statute
at issue."
Howard contends that the trial court committed various
errors in determining that the timing provision of former
§ 40-7-42 was directory rather than mandatory and that those
errors require the reversal of the trial court's decision.
Howard first argues that the trial court violated the cardinal
rule of statutory construction that a court must apply the
plain language of a statute, i.e., that it cannot change the
words of a statute to fit a desired outcome.
"The cardinal rule of statutory interpretation
is to determine and give effect to the intent of the
legislature as manifested in the language of the
statute. Gholston v. State, 620 So. 2d 719 (Ala.
1993). Absent a clearly expressed legislative intent
to the contrary, the language of the statute is
conclusive. Words must be given their natural,
ordinary, commonly understood meaning, and where
plain language is used, the court is bound to
interpret that language to mean exactly what it
says."
Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala.
1996).
19
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Howard argues that the plain language of former § 40-7-42
dictates that the Commission must levy property taxes at its
first regular February meeting and that, therefore,
because
it
did not do so in February 2013, its levy in May 2013 is void.
Howard states:
"Section 40-7-42 is not ambiguous in any
respect. The Defendants never alleged § 40-7-42 to
be ambiguous. And, the Circuit Court made no
finding that § 40-7-42 is ambiguous. In that
situation, the Circuit Court lacked authority to
interpret § 40-7-42. Nonetheless it proceeded to
rewrite § 40-7-42 to remove the timing limitation
for the purpose of avoiding what the Circuit Court
perceived to be an absurd result if the statute were
followed as enacted. Instead of judicially rewriting
the statute, the Circuit Court should have simply
applied § 40-7-42 to the undisputed facts of this
case."
The
problem
with
Howard's
argument
is
that
his
interpretation of the statute is not buttressed by the plain
language of former § 40-7-42 any more than is the trial
court's interpretation. Howard contends that a county
commission's failure to follow the timing provision of the
statute prevents the county commission from levying property
taxes during a particular year. In other words, Howard
insists that the statutorily directed timing of the levy is a
prerequisite to a valid levy. But the statute does not, on
20
1140748
its face, state that that is the case. The trial court held
that the timing provision directed county commissions when to
levy property taxes but that the power to levy those taxes
existed independent of that direction. The statute likewise
does not, on its face, state that this is so. Thus, in order
to decide this case, the trial court was required to place a
judicial construction on the language of the statute that
manifested the intent of the legislature.
Howard repeatedly states throughout his brief in one form
or another that the trial court "remove[d] the timing
limitation" from the statute, but it did no such thing. The
trial court never stated that the Commission did not have to
follow the legislative directive to levy property taxes at the
first regular February meeting of the Commission or that, in
a proper action, a court could not order such compliance. The
trial court expressly stated that it did not condone the
Commission's action of instituting a levy in May 2013 rather
than in February. What the trial court also said, however,
was that a failure to follow the timing provision did not
negate the Commission's power to levy property taxes. That is
not the same thing as removing the timing provision from the
21
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statute. In short, the trial court's interpretation of former
§ 40-7-42 did not fly in the face of the "plain language" of
the statute.4
In keeping with his assertion that the trial court read
the timing provision out of the statute, Howard argues that
the result of the trial court's interpretation is that a
property-tax levy can occur at any time. He argues that "a
levy can occur after a collection, or even before an
assessment. That is legally impossible." This exaggerates
the trial court's holding. As we have already observed, the
trial court did not state that the Commission did not have to
follow the timing provision of the statute, nor did it hold
that a levy could occur at any time. As Howard notes, this
Court has stated: "It is elementary that there can be no tax
due until there is a levy." W.S. Brewbaker, Inc. v. City of
Montgomery, 270 Ala. 460, 463, 119 So. 2d 887, 890 (1960).
The trial court did not say otherwise. The trial court was
Howard's separate argument that the trial court
4
"engag[ed] in an impermissible exercise of legislative power
in violation of section 43 of the Alabama Constitution" is
simply a reiteration of his charge that the trial court did
not apply the plain language of the statute and instead
interpreted it the way the trial court thought it should read.
It therefore requires no further response.
22
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not presented with a scenario in which the Commission
attempted to levy taxes before the assessments on property or
after the collection of the taxes. The trial court simply
held that a levy that occurred after the first regular meeting
of the Commission in February is not invalid solely based on
its timing.
Howard also argues that, in concluding that the timing
provision was directory but that the provision empowering the
Commission to levy property taxes was mandatory, the trial
court "got it backwards." He asserts that "[t]he County
Commission's limited authority to levy county ad
valorem
taxes
is permissive. It is the timing of any levy that is
mandatory." This is so, Howard insists, because "the date for
levy of taxes is a component of the annual process of
assessment, levy, and collection of ad valorem taxes by the
Commission. Timing cannot be considered a 'mere matter of
form' because without a levy there can be no valid tax."
Howard goes so far as to say that the trial court's reading of
the statute "requir[es] a county to exercise its taxing
authority each year regardless of its financial needs."
Howard
contends that such a reading is incorrect because, he argues,
23
1140748
the Commission has the power, but not a duty, to levy property
taxes for county purposes. For support, Howard cites § 11-3-
11(a)(2), Ala. Code 1975, which states that "[t]he county
commission shall have authority ... [t]o levy a general tax,
for general county purposes and a special tax, for special
purposes, according to this Code."
Again, Howard exaggerates the trial court's holding. In
finding the provision of the statute pertaining to levying
property taxes to be mandatory, the trial court necessarily
did so within the confines of the language of the statute.
Former § 40-7-42 provides that "[t]he county commission ...
shall levy the amount of general taxes required for the
expenses of the county for the current year." (Emphasis
added.) The statute itself empowers a county commission to
levy only the amount of taxes necessary to meet county
expenses. Nowhere in the trial court's order did it state that
the Commission was required to levy taxes even if the county
had enough funds to cover its expenses without those taxes.
The trial court concluded that the provision for levying
property taxes was mandatory for the purpose of meeting county
expenses. The provision is mandatory because the essence --
24
1140748
or focus -- of the statute is the power to levy taxes; the
timing of the levy is ancillary to that essence.
Howard may be correct that former § 40-7-42 included a
timing provision that mentions an early date in the year
because a levy is only the first step in the process of
obtaining annual property taxes. But, if true, this fact does
not make the timing provision the essence of the statute; it
simply
constitutes
an
acknowledgment
that
the
process
requires
enough time to assess property in each county and to collect
property taxes from each owner of property in each county. In
other words, the timing provision is "designed for the
information of assessors and officers, and intended
to
promote
method, system and uniformity in the modes of proceeding."
State Auditor v. Jackson Cnty., 65 Ala. at 151.
Howard insists that the timing provision "serves as
notice to taxpayers that any levy will occur during the county
commission meeting each February" and that "[t]axpayers have
a right to rely upon this notice." It is certainly true that
the timing provision could have the effect of giving taxpayers
notice of when a levy will occur, but Howard cites no
authority stating that that is the purpose of the timing
25
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provision. Moreover, the fact that the timing provision can
serve as notice to taxpayers of when a levy of property taxes
will occur does not demonstrate that the timing provision is
an essential prerequisite to the power granted in the statute
to levy the taxes. If this were so, then timing provisions in
all tax statutes would be mandatory because each could be said
to provide notice to taxpayers, but this Court has established
no such blanket rule.
Howard also takes issue with the trial court's reliance
upon the Perry County decision. Howard argues that the
situation on which the holding in Perry County is based is
distinguishable from the situation in this case because
"[t]here are significant and meaningful differences in the
language of each statute." Specifically, Howard highlights
several differences in wording between the two statutes, and
he attempts to distinguish Perry County on the basis of those
differences.
Howard argues as follows:
"In
§
40-7-42,
the
legislature
clearly
and
unambiguously mandated that if the county commission
exercises its discretion to levy county ad valorem
taxes, it must do so at the first regular meeting in
February in each year. In comparison, § 93 merely
recognized a [']duty of the court of county
26
1140748
commissioners, at the July term, to proceed to levy
...' There is no usage of the phrase 'shall levy' or
the resultant imposition of a deadline as in
§ 40-7-42 (i.e., 'at the first regular meeting in
February')."
Howard
also
posits
that
there
is
a
substantive
distinction between the phrases "proceed to levy" and "shall
levy." As he puts it: "'[T]o proceed to levy,' as utilized
in § 93, anticipates commencement of a process during the July
term without a mandated deadline, while 'shall levy' in § 40-
7-42 is a mandatory command with a definitive deadline for
action -- 'at the first regular meeting in February in each
year.'" Howard's only support for this distinction is a
citation to the Merriam-Webster's Online Dictionary that
defines "proceed," in part, as "to continue to do something."
One problem with this distinction is that the Perry
County Court did not read § 93 as saying that all the court of
county commissioners had to do was start the process of
levying sometime in the July term but that it could finish the
process at some other time. The specific argument presented
in Perry County was that the taxes were supposed to be levied
in July but instead were levied in August. The Court held
that instituting the levy in August rather than in July did
27
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not invalidate the levy. In other words, the Perry County
Court adopted the common-sense understanding of the timing
provision in § 93, which was that it was directing the court
of county commissioners as to when it should levy property
taxes but that a failure to follow this directive did not
negate that body's power to levy property taxes.
In Howard's final attempt to distinguish the language of
§ 93 from the language in former § 40-7-42, he argues:
"[T]he phrase 'at the July term' in § 93 does not
identify a specific date for action, as does the
phrase 'at the first regular meeting in February,'
included in § 40-7-42. The 'July term' is a vague
term referring to an extended period of time that
could be altered and extended at the discretion of
the
court
of
county
commissioners.
More
specifically, the 'July term' could have encompassed
multiple meetings strung out over a period of weeks
or months, just as if it were a term of court. Thus,
§ 93 did not impose a limitation on the power to
levy taxes, as does § 40-7-42."
We first note that Howard cites absolutely no authority
for his interpretation of the phrase "at the July term" in
§ 93. Second, Howard once again ignores the facts presented
in Perry County. Again, Western Railroad argued in Perry
County that "the commissioners' court of said county did not
levy the tax for county purposes at their July term for 1875,
28
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but all the action was taken at their August term for said
year." 58 Ala. at 550. The Court later reiterated that
"the county tax of 1875 was levied in August of that
year, when it should have been done in July, under
section 93 of the revenue law of 1875. We hold this
provision of the law to be directory, and that such
levy made at the regular August term of the court,
as this was done, is valid."
Id. at 562. The clear implication from the Perry County
Court's discussion is that the phrase "at the July term" meant
at the court of county commissioners' July meeting, not some
period extending over the course of several weeks or months.
Consequently, this difference in wording does not mark a
substantive difference between § 93 and former § 40-7-42 that
would warrant distinguishing the decision in Perry County.
Howard also faults the trial court for failing to follow
the interpretation of former § 40-7-42 provided in opinions of
the attorney general over the years. It is true that several
attorney general opinions have discussed the timing provision
of former § 40-7-42. Most of them did so in merely a
descriptive way. See, e.g., Ala. Op. Att'y Gen. No. 2001-141
(March 30, 2001) ("The statute requires the county commission
to levy, each year, general and special taxes at its first
regular meeting in February."); Ala. Op. Att'y Gen. No.
29
1140748
1986-00340 (Aug. 21, 1986) ("The County Commission sets the
millage rate in February of each year under the provisions of
§ 40-7-42, Code of Alabama 1975, for all general and special
county taxes."); Ala. Op. Att'y Gen. No. 82-00427 (July 8,
1982) ("We further observed that § 40-7-42, Code of Alabama
1975, provides for the levy of ad valorem taxes at the first
regular meeting in February of each year of the county
commission.").
One
attorney
general
opinion,
however,
appears
to take the view that the timing provision triggers a county
commission's power to levy property taxes. See Ala. Op. Att'y
Gen. No. 2011-093 (Aug. 30, 2011) (stating that "[s]ection
40-7-42 of the Code makes clear that the Commission must levy
the tax at the first regular meeting in February" and
concluding that the Monroe County Commission "is not
authorized to amend the levy of a tax after the appropriate
time for such tax to be levied").5
Howard asserts that a second attorney general opinion
5
provided the same interpretation, namely Ala. Op. Att'y Gen.
No. 2001-184 (May 15, 2001), which states that "[i]f the
[Chilton] county commission did not levy the tax at its
February 2001 meeting, it may do so at its first regular
meeting in February 2002." The attorney general was not asked
in that opinion, however, whether a levy initiated in a
meeting
after
the
Chilton
County
Commission's
February
meeting
was invalid. It was simply asked when a special tax
authorized under a specific act (Act No. 2000-370, Ala. Acts
30
1140748
Howard notes that this Court has stated that "[t]he
interpretation
by
the
attorney
general
and
popular
interpretation as exemplified in practice for a number of
years will be given weight as a factor in judicial
construction of a statute where its meaning is doubtful."
Cherokee Cnty. v. Cunningham, 260 Ala. 1, 4-5, 68 So. 2d 507,
510 (1953). Although this is true, we also have observed that
attorney general opinions "are not controlling, but merely
advisory." State Dep't of Revenue v. Arnold, 909 So. 2d 192,
194 (Ala. 2005). The reason for their advisory nature is
abundantly clear in a situation such as this one. None of the
attorney general opinions cited by Howard directly addressed
the question whether a levy by a county commission done
outside the time frame of the timing provision in former
§ 40-7-42 is void for that reason. This is not surprising,
given that when public officials ask for attorney general
opinions those officials are usually seeking advice on
prospective actions. Because of this fact, it is also not
2000) was supposed to be collected, and the attorney general's
opinion referred the Chilton County Commission to former
§ 40-7-42 for guidance because Act No. 2000-370 stated that
"the tax collector of Chilton County shall collect the tax in
the same manner and method that other ad valorem taxes are
collected."
31
1140748
surprising that the office of the attorney general does not
advise public officials to ignore a statutory directive.
Instead, the attorney general advises public officials as to
what the law commands. In this instance, it is indisputable
that former § 40-7-42 required county commissions to levy
property taxes in their first regular February meeting of a
given year. The question before the trial court and before us
in this appeal, however, concerns the effect of a failure to
follow that directive, a question not posed or answered in the
attorney general opinions.
Moreover, as we have already noted, our own opinion in
Perry County contradicts the interpretation in Attorney
General Opinion No. 2011-093. Our own precedent obviously
takes priority over an opinion of the attorney general. In
addition, other decisions of this Court concur with the
interpretation in Perry County that timing provisions
like the
one in former § 40-7-42 are directory rather than mandatory.
Stickney v. Huggins, 10 Ala. 106 (1846), concerned an
action by the Mobile County treasurer against a county tax
collector for failure to forward the full amount of taxes he
had collected on behalf of the county. A judgment was
32
1140748
rendered against the tax collector for $2,134.33, but the
judgment was reversed by this Court and the case remanded for
further proceedings. Upon commencement of the new trial, the
defendant tax collector argued that the trial court was
without jurisdiction to try the case because,
in
contravention
to the statutory basis for the action, the cause was heard
more than 20 days after the Mobile County treasurer had filed
a complaint against the tax collector. The trial court
dismissed the action, and the Mobile County treasurer
appealed. The statute in question provided:
"'If any person authorized by law to collect the
taxes in any of the counties of this State, shall
fail to collect and pay the same to the county
treasurer, within the time prescribed by law, the
Judge of the county court, if of his own knowledge,
or on complaint of the treasurer, shall hold a
special court within twenty days thereafter, to try
such delinquent collector; and if it appear that he
has so failed to collect, or pay over such taxes,
said court shall enter judgment in favor of the
treasurer, against such collector and his security,
or securities in office, for the amount of such
county tax so due and unpaid, together with ten per
centum as damages, on the amount,' &c. Clay's Dig.
575, § 96."
10 Ala. at 108 (emphasis added). This Court reversed the
judgment dismissing the action, reasoning:
"Although this section addresses itself in
mandatory terms to the Judges of the county courts,
33
1140748
yet it cannot be understood, that in requiring him
to act within twenty days from the time the default
is developed, his right to act is limited to that
period. Time was not prescribed for the benefit of
the collector, but rather to quicken the diligence
of the Judge, so that justice might be promptly
administered,
and
the
greater
certainty
of
collections insured.
"According to all analogies, in directing the
proceedings to be instituted within a definite time,
the act must be considered as directory merely. It
is the duty of the Judge to yield a ready obedience
to its directions, but if he fails to do this, his
authority to act under it is not gone."
10 Ala. at 108-09 (emphasis added). See also Boring v.
Williams, 17 Ala. 510, 518 (1850) (reaching the same
conclusion concerning the act at issue in Stickney). Despite
the wording of the statute that the judge "shall hold a
special court within twenty days" of the filing of the
complaint, this Court interpreted the timing provision to be
directory rather than mandatory.
A similar decision was reached in Birmingham Building &
Loan Ass'n v. State, 120 Ala. 403, 25 So. 52 (1899). In
Birmingham Building & Loan Association, the Birmingham
Building & Loan Association ("BB&L") paid its taxes to the tax
assessor of Jefferson County for the year 1896 within the time
prescribed by law. On July 2, 1896, the Jefferson County
34
1140748
Board of Tax Equalization ("the Board") issued a citation
notifying BB&L that in a regular session held on July 2, 1896,
the Board had raised the tax assessment on BB&L's property and
that the cause was set for a hearing at the next regular
session of the Board, to be held on July 10, 1896. BB&L
appeared at the hearing, and it filed a motion to dismiss the
cause on the ground that the Board had not performed the
equalization at its May meeting as it was statutorily required
to do. This Court explained:
"By section 5 of the 'Act to amend the revenue
laws of Alabama,' approved February 18, 1894 (Acts
1894-95, p. 1192), a county board of equalization of
taxes in each county is created, in the manner
therein specified.
"Section 31 of said act provides that said board
will convene at the court house of the county on the
first Monday in May, and shall rigidly examine each
assessment list, and compare all such lists
carefully with the book of assessment, and institute
inquiry as to the correctness of any assessment of
real or personal property, or subject of taxation;
and if upon such inquiry any assessment, whether
made by the tax-payer, his agent, or by the
assessor, is supposed not to be full and complete,
or the property assessed at less or more than its
actual value, or that property has been omitted that
should have been assessed, the said board of
equalization shall enter the same on a docket to be
kept for that purpose by said board in the name of
the state of Alabama as plaintiff and the tax-payer
as defendant, and shall issue a notice and copy
thereof, addressed to the tax-payer, stating the
35
1140748
substance
of
the
supposed
error,
improper
assessment, under-valuation or over-valuation, and
citing such tax-payer to appear before said of
equalization on the first Monday in June, to show
cause why such error, omission, or under-valuation
should not be corrected, and in what respect. ..."
120 Ala. at 404-05, 25 So. at 53 (emphasis added). This Court
stated:
"[T]he principal question presented for our decision
is whether or not it was essential to the lawful
exercise of the jurisdiction which the act confers
upon the board that the preliminary ex parte action
in reference to raising the assessment and issuing
the citation should have been had at the May term,
in strict conformity to the statute."
120 Ala. at 407, 25 So. at 54. The Court concluded that "the
proceeding was not without the jurisdiction of the board,
either of the subject-matter or person." 120 Ala. at 410, 25
So. at 55. The Court reasoned:
"'A statute specifying a time within which a public
officer is to perform an official act affecting the
rights of others is directory merely, as to the time
within which the act is to be done, unless, from the
nature of the act or the phraseology of the statute,
the designation of the time must be considered a
limitation on the power of the officer. ...
"'By this it is not meant that a duty does not rest
upon the officer to act within the time, a duty
which he may be compelled to perform, but simply
that his power to act does not expire with the time.
...
36
1140748
"'When a statute directs an officer to do a thing in
a
certain
time,
without
any
negative
words
restraining him from doing it afterwards, the naming
of the time will not be construed as a limitation of
his authority.'"
120 Ala. at 409, 25 So. at 54 (quoting Commissioners' Court v.
Rather, 48 Ala. 433, 440 (1872) (emphasis added)).
In short, our cases confirm that timing provisions such
as the one in former § 40-7-42 are directory rather than
mandatory and that a failure to follow such a timing provision
is not a prerequisite to being able to exercise the power that
is the essence of the statute. That interpretation was
confirmed in the one case directly on point, Perry County, in
which this Court was called upon to interpret a predecessor to
former § 40-7-42, and the Court turned aside the exact kind of
argument made by Howard in this case. The understanding that
the timing provision is directory rather than mandatory also
flows naturally from the language of the statute. For all
those reasons, we conclude that the trial court correctly held
that the timing provision is directory in nature and that the
Commission's May 2013 levy was valid.
Howard next argues that the trial court erred in denying
his due-process claims. Howard argues that the Commission's
37
1140748
failure to follow the timing provision of former § 40-7-42
violated his right to due process of law under the Fourteenth
Amendment to the United States Constitution in two ways.
First, he contends that the revenue commissioner's collection
of taxes without a valid levy constituted a taking of his
property without due process of law. Second, he contends that
the levy in May 2013 violated his due-process right of notice
and opportunity to be heard before the taxes were levied.
The problem with these arguments is that they are
premised on the notion that the timing provision of former
§ 40-7-42 was mandatory. Because the timing provision was, in
fact, directory, the Commission's May 2013 levy of property
taxes was valid. Therefore, Howard's property was not taken
without due process of law. Moreover, because the timing
provision was directory, and thus primarily intended for the
benefit of Cullman County's public officials rather than for
the protection of the taxpayers, the statute did not grant a
constitutional right of notice and an opportunity to be heard.
Accordingly, as the trial court concluded, Howard's due-
process claims lacked merit.
38
1140748
Howard's final argument is that the trial court erred in
concluding that his assertion of immunity to the allegedly
retroactive tax liability imposed by Act No. 2014-433 lacked
a legal basis. Howard states that his basis for being immune
from the "retroactive" taxes "arises from the protections
afforded by §§ 13, 22, 43, and 95 of the Alabama Constitution
and from the due process clause of the Fifth and Fourteenth
Amendments of the U.S. Constitution." Although Howard does
not elaborate on his "immunity" claim, its premise is the same
as his other claimed constitutional violations pertaining to
Act No. 2014-433, i.e., that the legislature cannot ratify an
illegal tax. Because the trial court concluded that the May
2013 tax levy was valid, however, Act No. 2014-433 did not
ratify an illegal tax. Therefore, Howard's immunity argument
is immaterial.
IV. Conclusion
The trial court correctly concluded that the Commission's
failure to follow the timing provision of former § 40-7-42 did
not invalidate its subsequent levy in 2013 of property taxes
upon Howard and other property owners in Cullman County.
Therefore, we affirm the summary judgment on all of Howard's
39
1140748
claims
in
favor
of
Cullman
County
and
the
revenue
commissioner.
AFFIRMED.
Moore, C.J., and Main, J., concur.
Bolin and Bryan, JJ., concur in the result.
40 | December 4, 2015 |
cdb4dba2-d2b4-4634-b0ff-19e82daa0d2f | Ex parte Nicholson Manufacturing Ltd. | N/A | 1130411 | Alabama | Alabama Supreme Court | REL:05/29/2015
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, 2014-2015
_________________________
1130411
_________________________
Ex parte Nicholson Manufacturing Limited
PETITION FOR WRIT OF MANDAMUS
(In re: Gerald A. Templeton, as administrator of the Estate
of Casimiro Deleon Ixcoy, deceased
v.
KyKenKee, Inc., et al.)
(Tuscaloosa Circuit Court, CV-12-901218)
SHAW, Justice.
Nicholson Manufacturing Limited ("Nicholson") petitions
this Court for a writ of mandamus directing the Tuscaloosa
Circuit Court to enter a summary judgment in its favor on the
1130411
ground that Gerald A. Templeton's substitution of Nicholson
for a fictitiously named defendant was made after the
expiration of the applicable statutory limitations period and
does not "relate back" to the filing of the original
complaint. We grant the petition and issue the writ.
Facts and Procedural History
On December 31, 2010, Casimiro Deleon Ixcoy died as the
result of injuries sustained at KyKenKee, Inc., a sawmill
where he was employed. At this sawmill, logs are cut and, by
way of an "in-feed" conveyor, fed into a "debarker" machine
that removes the bark from the logs. When the debarking
process is complete, the logs are carried on an "out-feed"
conveyor to another station, where they are then cut into
boards. The conveyors were manufactured by Morbark
Industries, Inc.; the debarker machine was manufactured by
Nicholson. As Ixcoy was walking through the debarking area,
he was struck on the head by a 160-pound log that fell from a
conveyor overhead. He died as a result of the injury.
Templeton, the administrator of Ixcoy's estate, retained
the services of an attorney to investigate any potential
wrongful-death claims. On January 5, 2011 -- five days after
2
1130411
the accident -- the attorney sent a letter to KyKenKee,
demanding that evidence regarding the accident be preserved.
Nearly two years later, in December 2012, a second attorney
was hired to assist in filing a complaint.
On December 28, 2012, Templeton, through the second
attorney, filed a complaint seeking damages for wrongful
death
against
several
named
and
fictitiously
named
defendants.
Among other things, the complaint alleged that the accident
that resulted in Ixcoy's death was a result of negligent,
wanton, willful, and intentional conduct. Additionally,
Templeton sought damages on a products-liability theory.
On January 2, 2013 -- two days after the expiration of
the two-year statutory limitations period -- Templeton filed
an amendment to the original complaint seeking to substitute
Nicholson, as the manufacturer of the debarker machine, for
one of the fictitiously named defendants, claiming that
Nicholson was liable as the manufacturer of a defective
product. Nicholson filed an answer and raised the two-year
statute of limitations as an affirmative defense.
Subsequently, Nicholson moved for a summary judgment in
its favor. It argued that its substitution as a defendant
3
1130411
after the expiration of the two-year limitations period did
not "relate back" to the date the original complaint was filed
and that, therefore, the claims against it were time-barred.
In response, Templeton filed an opposition and requested that
the trial court deny Nicholson's summary-judgment motion.
Following a hearing, the trial court denied Nicholson's
motion. Nicholson then petitioned this Court for a writ of
mandamus.
Standard of Review
This Court will issue a writ of mandamus when the
petitioner shows: "'(1) a clear legal right to the order
sought; (2) an imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of another
adequate remedy; and (4) the properly invoked jurisdiction of
the court.'" Ex parte General Motors of Canada Ltd., 144 So.
3d 236, 238 (Ala. 2013) (quoting Ex parte BOC Grp., Inc., 823
So. 2d 1270, 1272 (Ala. 2001)). This Court generally will not
review by a writ of mandamus a trial court's denial of a
motion for a summary judgment unless one of a limited number
of exceptions apply. The case before us satisfies one such
exception:
4
1130411
"'...In a narrow class of cases
involving
fictitious
parties
and
the
relation-back doctrine, this Court has
reviewed the merits of a trial court's
denial of a summary-judgment motion in
which
a
defendant
argued
that
the
plaintiff's claim was barred by the
applicable statute of limitations. See Ex
parte Snow, 764 So. 2d 531 (Ala. 1999)
(issuing the writ and directing the trial
court to enter a summary judgment in favor
of the defendant); Ex parte Stover, 663 So.
2d 948 (Ala. 1995) (reviewing the merits of
the trial court's order denying the
defendant's motion for a summary judgment,
but denying the defendant's petition for a
writ of mandamus); Ex parte FMC Corp., 599
So. 2d 592 (Ala. 1992) (same); Ex parte
Klemawesch, 549 So. 2d 62, 65 (Ala. 1989)
(issuing the writ and directing the trial
court "to set aside its order denying [the
defendant's] motion to quash service or, in
the alternative, to dismiss, and to enter
an order granting the motion"). ...'"
Ex parte Mobile Infirmary Ass'n, 74 So. 3d 424, 427-28 (Ala.
2011) (quoting Ex parte Jackson, 780 So. 2d 681, 684 (Ala.
2000)).
Discussion
The parties do not dispute that a two-year statute of
limitations applies to the claims against Nicholson. The
accident that resulted in Ixcoy's death occurred on December
31, 2010; Templeton filed his original complaint on December
28, 2012. The parties likewise do not dispute that on January
5
1130411
2, 2013--the date Templeton attempted to amend the complaint
to substitute Nicholson for one of the fictitiously named
defendants--the two-year limitations period had expired.
Rule 9(h), Ala. R. Civ. P., provides:
"When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and
when the party's true name is discovered, the
process and all pleadings and proceedings in the
action may be amended by substituting the true
name."
This rule permits a party who is "ignorant of the name of an
opposing party" to identify that party by a fictitious name.
Once the true name of the opposing party is discovered, the
party may amend the pleadings to substitute that true name.
Rule 15(c)(4), Ala. R. Civ. P., provides that such an
amendment shall "relate[] back to the date of the original
pleading when ... relation back is permitted by principles
applicable to fictitious party practice pursuant to Rule
9(h)."
"However, the relation back principle applies only
when the plaintiff 'is ignorant of the name of an
opposing party.' Rule 9(h); Harmon v. Blackwood,
623 So. 2d 726, 727 (Ala. 1993) ('In order to invoke
the relation-back principles of Rule 9(h) and Rule
15(c), a plaintiff must ... be ignorant of the
identity of that defendant ....'); Marsh v. Wenzel,
732 So. 2d 985 (Ala. 1998)."
6
1130411
Ex parte General Motors, 144 So. 3d at 239.
"'The requirement that the plaintiff
be ignorant of the identity of the
fictitiously
named
party
has
been
generally
explained as follows: "The correct test is
whether the plaintiff knew, or should have
known,
or
was
on
notice,
that
the
substituted defendants were in fact the
parties described fictitiously." Davis v.
Mims, 510 So. 2d 227, 229 (Ala. 1987)....'"
Ex parte Mobile Infirmary, 74 So. 3d at 429 (quoting Crawford
v. Sundback, 678 So. 2d 1057, 1060 (Ala. 1996)(emphasis
added)).
In addition to being ignorant of the fictitiously named
party's identity, the plaintiff has a duty to exercise "due
diligence" in identifying such a defendant. Ex parte Mobile
Infirmary, 74 So. 3d at 429; Crowl v. Kayo Oil Co., 848 So. 2d
930, 940 (Ala. 2002). It is incumbent upon the plaintiff to
exercise due diligence both before and after the filing of the
complaint. Ex parte Ismail, 78 So. 3d 399 (Ala. 2011). Only
if the plaintiff has acted with due diligence in discovering
the true identity of a fictitiously named defendant will an
amendment substituting such a party relate back to the filing
of the original complaint. Ex parte Mobile Infirmary, 74 So.
3d at 429. Therefore, if at the time the complaint is filed,
7
1130411
a plaintiff knows the identity of the fictitiously named party
or should have discovered that party's identity, relation
back
is not permitted and the running of the statute of limitations
is not tolled:
"[A]n amendment substituting a new defendant in
place of a fictitiously named defendant will relate
back to the filing of the original complaint only if
the
plaintiff
acted
with
'due
diligence
in
identifying the fictitiously named defendant as the
party the plaintiff intended to sue.' Ignorance of
the new defendant's identity is no excuse if the
plaintiff should have known the identity of that
defendant when the complaint was filed ...."
74 So. 3d at 429 (quoting Ex parte Snow, 764 So. 2d 531, 537
(Ala. 1999)(emphasis added)).
Nicholson argues that Templeton did not act with due
diligence in attempting to discover its identity because, it
says, Templeton should have known when he filed the original
complaint that Nicholson manufactured the debarker machine.
Specifically, Nicholson argues that Templeton failed to
recognize that both a sheriff's incident report and a
Department of Labor decision and order issued following the
accident identified Nicholson as the manufacturer of the
debarker machine. With its summary-judgment motion below,
Nicholson provided a copy of the incident report, which
8
1130411
included multiple photographs of the debarker machine
on
which
was posted a clearly legible label stating "NICHOLSON."
Further, Nicholson also provided a copy of a November 13,
2012, Department of Labor decision and order discussing the
accident that resulted in Ixcoy's death and identifying,
within
the
inspection-summary
section,
the
equipment
allegedly
involved in the accident as a "Nicholson" debarker machine.
Nicholson thus argues that Templeton had sufficient and
readily available sources of information to lead to the
discovery of its identity.
In Ex parte Mobile Infirmary, supra, the plaintiff filed
a wrongful-death action against an entity he identified in the
complaint as Infirmary Health Systems, Inc., which had
allegedly treated the decedent. 74 So. 3d at 427. After the
statutory limitations period had run, the plaintiff attempted
to
substitute
Mobile
Infirmary
Association
("Mobile
Infirmary") for a fictitiously named defendant. Id. In
deciding whether the substitution related back to the filing
of the original complaint, we stated:
"The evidence attached to Mobile Infirmary's
summary-judgment
motion
indicates
that
[the
plaintiff] did not act with due diligence. When he
filed the original complaint, [the decedent's]
9
1130411
family had possessed her medical records for 20
months, and [the plaintiff] had possessed [the
decedent's] medical records for at least 3 months,
including various paperwork from Mobile Infirmary,
which indicated that [the decedent] had been
admitted to the [Mobile Infirmary] Medical Center,
had undergone surgery there, and had been treated
there following her surgery. A reasonably diligent
plaintiff possessing that information should have at
least attempted to identify the corporation doing
business as Mobile Infirmary Medical Center and
include it as a defendant. See Fulmer v. Clark
Equip. Co., 654 So. 2d 45, 46 (Ala. 1995) (holding
that where plaintiff knew the allegedly defective
forklift was manufactured by 'Clark' and possessed
forklift manuals providing Clark's name but did not
attempt to amend the complaint until after the
limitations period had run, the plaintiff 'did not
act diligently in attempting to learn Clark
Equipment's identity'). As this Court has said,
"'[i]f the plaintiff knows the identity of
the
fictitiously
named
parties
or
possesses
sufficient facts to lead to the discovery
of their identity at the time of the filing
of the complaint, relation back under
fictitious party practice is not permitted
and the running of the limitations period
is not tolled.'
"Clay v. Walden Joint Venture, 611 So. 2d 254, 256
(Ala. 1992)."
74 So. 3d at 429-30 (emphasis added). See Marsh v. Wenzel,
732 So. 2d 985, 990 (Ala. 1998) (holding that one could not
reasonably conclude that a plaintiff was ignorant of the name
of her pathologist when the pathologist was identified by name
in the plaintiff's medical records).
10
1130411
Like the plaintiff in Mobile Infirmary, Templeton had
access to information that would have led him to discover the
identity of the manufacturer of the debarker machine:
photographs included in the incident report clearly showing
the "NICHOLSON" label on the debarker machine and the
Department of Labor decision and order identifying Nicholson
as the manufacturer of the debarker machine. Templeton
argues, however, that he was not actually in possession of the
incident report at the time the complaint was filed and,
nevertheless,
that
he
acted
with
due
diligence
in
investigating
and
discovering
Nicholson's
identity.
Specifically, he argues that his current counsel did not
receive copies of the incident report until after the
statute of limitations had run. He also contends that the
Department of Labor decision and order does not provide proper
notice because, he says, it is "unsigned" and "non-final."
Lastly, he argues that his current counsel had been denied
access to inspect the accident site and, therefore, was
prohibited from identifying the manufacturer of the debarker
machine.
11
1130411
The materials before us demonstrate that the incident
report containing the photographs of the Nicholson debarker
machine had been available to the public since September
2011. Further, despite the fact that the Department of Labor
1
decision and order, available since November 13, 2012, was
neither
final
nor
signed,
it
nevertheless
identifies
Nicholson
as the manufacturer of the debarker machine. Both sources
would have led to the discovery of Nicholson's identity with
the exercise of due diligence.
It is true that at the time of filing the complaint
Templeton was not in possession of the incident report.
However, simply lacking information that discloses an
unidentified
defendant
does
not
necessarily
excuse
the
failure
to exercise due diligence. In Crowl, supra, the plaintiff,
Crowl, was injured when he slipped and fell at a gasoline-
service station. 848 So. 2d at 932. He attempted to initiate
an action against the owner of the gasoline-service station;
after the statute of limitations had run, Crowl discovered the
name of, and attempted to substitute for a fictitiously named
defendant, the actual owner of the service station, Kayo Oil
Templeton did not request a copy until December 2012.
1
12
1130411
Company. 848 So. 2d at 933-34. This Court held that Crowl
had failed to exercise due diligence because Crowl did nothing
to ascertain Kayo Oil's identity before the statutory
limitations period expired. Id. at 937. Specifically, we
stated that the identity of Kayo Oil could have been
ascertained
by
requesting
and
reviewing
the
publicly
available
property-tax records. Id.
The
circumstances
surrounding
the
discovery
of
Nicholson's identity are analogous to those in Crowl. The
incident report had been available for nearly 15 months and
the Department of Labor decision and order had been available
for nearly 2 months before the expiration of the statutory
limitations period. Consequently, Templeton, like the
plaintiff in Crowl, could have easily obtained
those
documents
before filing the complaint. The documents are products of
2
standard investigations into a work-site-related death. Due
diligence in identifying an unknown defendant should lead a
Indeed, Templeton's counsel states in an affidavit that
2
the photographs in the incident report gave him the
information
necessary
to
file
the
amended
complaint
substituting Nicholson for a fictitiously named defendant.
That information was available some 15 months before the
complaint was filed, and copies of the report had previously
been requested by other attorneys/law firms and by the
Occupational Safety and Health Administration.
13
1130411
party to seek out and to consult readily and publicly
available documents of importance regarding a standard
investigation of an accident forming the basis of a claim.
Crowl, supra. See also Ex parte Nationwide Ins. Co., 991 So.
2d 1287, 1291 (Ala. 2008) (finding that the substitution of a
defendant for a fictitiously named party does not relate back
when the plaintiff could have discovered the insurer's
identity by, among other things, reviewing an accident
report). The fact that Templeton was not in possession of
both documents is the result of a failure to exercise due
diligence in attempting to discover Nicholson's identity.
Furthermore, we note that the evidence in this case
discloses that the debarker machine is labeled with the name
of its manufacturer. In a products-liability action, a party
cannot claim ignorance of the identity of the manufacturer of
the product--the very subject of the lawsuit--when a simple
inspection of that most crucial piece of evidence would have
revealed the name of the manufacturer, which is clearly stated
on the allegedly defective product itself. Ex parte General
Motors, 144 So. 3d at 239 (holding that the plaintiff failed
to exercise due diligence to learn the identity of an
14
1130411
automobile manufacturer because, among other things, no
inspection of the automobile was undertaken that would have
discovered a label identifying the manufacturer required by
federal regulations); Fulmer v. Clark Equip. Co., 654 So. 2d
45, 46 (Ala. 1995)(holding that exercising due
diligence would
have revealed the name of the forklift manufacturer, which was
clearly stated on the identification plate on the forklift);
and Jones v. Resorcon, Inc., 604 So. 2d 370, 373 (Ala. 1992)
(holding that the plaintiff failed to exercise due diligence
by not inspecting the allegedly defective blower fan labeled
with the manufacturer's name).
Templeton argues that he was denied access to the
accident site in December 2012 and was thus prevented from
discovering Nicholson's identity. However, the refusal of
access to inspect an allegedly defective product that is the
subject of a products-liability action, this Court has
previously held, does not necessarily excuse the failure to
examine it to learn the identity of the manufacturer:
"It is relevant to the question of due diligence
that an inspection of the fan would almost certainly
be necessary to maintain the product liability
action against any defendant. If Jones's assertions
that USX refused access are true, then due diligence
15
1130411
would have required an attempt to obtain a court-
ordered inspection."
Jones, 604 So. 2d at 373 (emphasis added).
In the instant case, as in Jones, Templeton--in the two
years following the accident--could have requested a court-
ordered inspection of the equipment forming the basis of the
defective-product claim. Unlike Jones, however, other
information that would have revealed the name of the
manufacturer of the
debarker
machine was readily available and
ascertainable from two other sources--the incident report and
the Department of Labor decision and order--both of which were
available to the public. Therefore, Templeton's failure to
ascertain this information amounts to a lack of due diligence
in identifying Nicholson as the manufacturer. See Crowl, 848
So. 2d at 937.
Because Templeton failed to act with due diligence in
discovering the identity of the fictitiously named defendant,
the trial court had no discretion other than to grant
Nicholson's motion for a summary judgment in its favor on the
statute-of-limitations ground. For the foregoing reasons, we
3
Templeton argues that his current counsel was hired
3
shortly before the expiration of the statutory limitations
16
1130411
grant Nicholson's petition and issue a writ of mandamus
directing the Tuscaloosa Circuit Court to enter an order
granting Nicholson's motion for a summary judgment.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
period and acted as diligently as possible during that short
time. However, as Nicholson notes, the duty to exercise due
diligence is the party's, and Templeton had almost two years
to discover Nicholson's identity. We see no authority
excusing a party's duty to exercise due diligence when new
counsel is acquired at the eve of the expiration of the
statutory limitations period. Cf. Ex parte General Motors,
144 So. 3d at 241.
17
1130411
MOORE, Chief Justice (dissenting).
I dissent because I do not believe that the petitioner
has satisfied its burden of establishing the elements
necessary for mandamus relief.
"Mandamus
is
an
extraordinary
remedy
and
will be
granted only where there is '(1) a clear legal right
in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc.,
586 So. 2d 889, 891 (Ala. 1991). This Court will not
issue the writ of mandamus where the petitioner has
'"full and adequate relief"' by appeal. State v.
Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526 (1972)
(quoting State v. Williams, 69 Ala. 311, 316
(1881))."
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala.
2003). Because there is a reasonable basis for controversy
concerning
whether
Gerald
A.
Templeton
exercised
due
diligence
in identifying Nicholson Manufacturing Limited ("Nicholson")
as the manufacturer of the debarker machine involved in the
death of Casimiro Deleon Ixcoy, I do not believe that
Nicholson has a clear legal right to a summary judgment.
Furthermore, because nothing indicates that Nicholson sought
a permissive appeal of the trial court's denial of summary
18
1130411
judgment under Rule 5, Ala. R. App. P., Nicholson also failed
to exhaust its other adequate remedy.
The facts indicate that Nicholson's right to the relief
sought is far from clear and that the trial judge acted within
its discretion in denying its motion for a summary judgment.
Before the two-year statutory limitations period expired,
Templeton's attorney requested permission to inspect the
facility at which the fatal accident occurred, and the request
was denied. When Templeton filed his complaint within the
4
limitations period, he also filed interrogatories requesting
the name of the manufacturer of the "conveyor and/or machinery
which is at the basis of this lawsuit." Despite the fact that
the debarker machine was on the property, and presumably
within the control of one or more defendants, other named
defendants -- Treeline Transportation, Inc., Newton Lumber
The majority cites Jones v. Resorcon, Inc., 604 So. 2d
4
370 (Ala. 1992), in concluding that Templeton should have
sought a court-ordered inspection of the debarker machine.
However, Jones's lack of due diligence was exhibited by a
totality of circumstances. "When Jones did begin efforts ...
to determine the true manufacturer, his efforts were sporadic
and ineffectual ...." 604 So. 2d at 374. After obtaining leave
from the trial court to substitute the proper defendant more
than a year after the limitations period had run, Jones waited
another 26 days to file his amended complaint. 604 So. 2d at
371-72.
19
1130411
Company, LLC, Kutz, LLC, Burt Holdings, LLC, and Burt Lumber
Co., Inc. -- denied knowing the identity of the manufacturer
of the relevant machinery in responses dated five months after
the statutory limitations period had expired.
Templeton's attorney requested the incident report kept
by the Tuscaloosa Sheriff's Department within the limitations
period but did not receive it until two days after the
limitations period had expired. The nonfinal decision issued
by the Department of Labor, publicly available for less than
2 months before the limitations period expired, is a 13-page
document containing a single reference to "Nicholson," not
"Nicholson Manufacturing Limited."
"The clear legal right must be an 'indisputable
right to a particular result.' Ex parte Rudolph, 515
So. 2d 704, 706 (Ala. 1987) (emphasis added). '[T]he
right to the relief sought [must be] clear and
certain, with no reasonable basis for controversy.'
Ex parte Nissei Sangyo America Ltd., 577 So. 2d 912,
914 (Ala. 1991) (emphasis added)."
Ex parte General Motors of Canada Ltd., 144 So. 3d 236, 243-44
(Ala. 2013) (Moore, C.J., dissenting). I agree with the
sentiment expressed by the trial court in its order denying
Nicholson's summary-judgment motion that this is a "close
case." In close cases, we generally defer to the reasoned
20
1130411
judgment of the fact-finder. Because a reasonable basis for
controversy exists as to whether Templeton exercised due
diligence in identifying Nicholson as the manufacturer of the
debarker machine, Nicholson has not established a clear legal
right to the relief sought.
Furthermore, the materials before us do not show that
Nicholson sought to avail itself of the alternative remedy of
a permissive appeal under Rule 5, Ala. R. App. P. "In the
normal case where a party may, under Rule 5, Ala. R. App. P.,
petition for permission to appeal, this court will not
entertain a petition for a writ of mandamus, because such a
petition may not substitute for an appeal." Ex parte Burch,
730 So. 2d 143, 145 (Ala. 1999). Had Nicholson sought and been
denied permission to appeal, it might have established the
lack of an adequate remedy. See Ex parte Jackson, 780 So. 2d
681, 685 (Ala. 2000) ("If [the petitioners] had asked the
trial court to give the certification required by [Rule 5] and
the trial court had refused, this might be a different
case.").5
Although the Jackson Court purported to acknowledge an
5
exception to the rule that mandamus cannot substitute for an
appeal in "cases involving fictitious parties and the
21
1130411
Nicholson fails to plead the elements necessary for the
extraordinary remedy of a writ of mandamus in its petition or
reply brief, much less shows how it satisfies those elements.
"Moreover, if [the petitioner] had adequately pleaded the
required elements, [the petitioner] would still not be
entitled to the writ" because it lacks a clear legal right to
the relief sought and because it failed to take advantage of
another adequate remedy. General Motors of Canada Ltd., 144
So. 3d at 246 (Moore, C.J., dissenting). I believe that by
relaxing a defendant's burden to prove entitlement
to
mandamus
relief in cases involving fictitiously named parties and the
relation-back doctrine, this Court has turned the elements of
mandamus relief into a hollow refrain. Therefore, I
respectfully dissent.
relation-back doctrine," that statement was dicta, because
relation back was not an issue in Jackson. See Jackson, 780
So. 2d at 684.
22 | May 29, 2015 |
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