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5ce42346-f49c-4f4b-96cd-5e2353c7e71f	Alabama Department of Transportation; Joe McInnes, director of the Alabama Department of Transportation; and Governor Bob Rileyv. Harbert International, Inc.	N/A	1050271	Alabama	Alabama Supreme Court	This case was originally assigned to another Justice; it 1 was reassigned to Justice Smith. REL:03/07/2008 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, 2007-2008 ____________________ 1050271 ____________________ Alabama Department of Transportation; Joe McInnes, director of the Alabama Department of Transportation; and Governor Bob Riley v. Harbert International, Inc. Appeal from Mobile Circuit Court (CV-99-474) SMITH, Justice.1 The Alabama Department of Transportation ("ALDOT"); Governor Bob Riley; and the director of ALDOT, Joe McInnes ("the director"), appeal from the judgment of the trial court in favor of Harbert International, Inc. ("Harbert"), in 1050271 2 Harbert's action seeking declaratory and mandamus relief. We affirm in part, reverse in part, dismiss in part, and remand with directions. In the early 1980s, ALDOT determined that the existing Cochrane Bridge over the Mobile River in Mobile needed to be replaced. A contract for the construction of a new bridge was awarded by ALDOT to S.J. Groves and Sons ("Groves"), and construction of the new bridge began in 1985. However, Groves ultimately defaulted in performing the contract, and ALDOT terminated the contract in 1988. In 1989, ALDOT sought bids for contracts to finish the bridge. Harbert was awarded two contracts--one for the completion of the main span of the bridge and a separate one for the completion of the elevated roadway approach spans (hereinafter referred to collectively as "the contract"). The main span of the bridge was designed as a "cable-stayed cantilever structure." The construction of such a bridge required segments of the span, called cantilevers, to be built out from opposite sides of vertical towers. These cantilevers are supported from the towers by "stay cables" that are placed under a predetermined amount of tension. The 1050271 Harbert argues that ALDOT employees misunderstood the 2 nature of the proposed erection-sequence procedure and that 3 contract specified a procedure to install the stay cables and cantilevers called "balanced stay stressing," in which cables attached to opposing cantilevers on either side of the towers are put under tension simultaneously. Special provision 398 of the contract provided that the balanced-stay-stressing procedure presented in the contact (referred to as an "erection sequence") was "not mandatory" and that Harbert could present a "totally different erection sequence" to be reviewed by ALDOT's "engineer." Harbert wanted to use a different erection-sequence procedure called "out-of-balance stay stressing" that was purportedly cheaper and more efficient. Harbert thus requested ALDOT to approve this alternative erection-sequence procedure. In a letter dated November 14, 1989, ALDOT's bridge engineer, William Conway, notified Harbert that "the proposed construction scheme" for the main span was denied. Specifically, Conway indicated that the proposed procedure "violate[d] the contract requirement of Special Provision No. 396 and contract plans requirement that the ... stays be simultaneously stressed ...." (Emphasis added.) Construction 2 1050271 they did not get "meaningful" outside input into the viability of the proposed change in the erection sequence. 4 of the bridge proceeded using the balanced-stay-stressing erection sequence. The contract contained a provision that allowed ALDOT to assess liquidated damages for each day Harbert exceeded the time specified by the contract in which to complete the bridge. In early 1991, ALDOT began assessing liquidated damages at the rate of $2,000 per day for each contract, totaling $4,000 per day. Although the construction work was not yet completed, in August 1991 the bridge opened for traffic, and ALDOT suspended the imposition of liquidated damages. However, on October 14, 1991, ALDOT again began imposing liquidated damages while Harbert finished the project. ALDOT ultimately stopped assessing these damages in February 1992. During the course of the project, ALDOT made periodic payments to Harbert. Pursuant to a provision in the contract, ALDOT retained a portion of each payment, which is referred to in the record as "retainage." According to Harbert, ALDOT was required to pay this retainage to Harbert at the end of the project. However, ALDOT purportedly had not paid $291,750 of 1050271 Harbert contended that ALDOT withheld the liquidated 3 damages and retainage as a "bargaining chip" in negotiations with Harbert over compensation for other work Harbert performed for ALDOT in conjunction with the bridge project. 5 the retainage at the time of trial. 3 Harbert alleges that during the project it was required to perform "extra work," i.e., work that was outside the scope of the project. The contract incorporated by reference certain procedures by which Harbert could request compensation for the extra work and also resolve any contract disputes with ALDOT. These procedures were specified in, among other places, a document referred to in the record as the "Standard Specifications," specifically, section 109.10 of the 1989 version of the Standard Specifications. That section provided, among other things, that claims by the contractor-- Harbert--would be initially evaluated by a "construction bureau"; if the contractor was unsatisfied with the construction bureau's evaluation, it could request a hearing before a "claims committee" made up of certain ALDOT employees who were not involved in the project. The claims committee would review the claims and issue a recommendation to the director regarding payment. If the contractor was still dissatisfied, it could request, at the discretion of the 1050271 6 director, the formation of an advisory board to review the claims and to make another recommendation to the director, who would ultimately decide how much should be paid. In 1992, Harbert submitted a claim under these procedures both for the "extra work" performed and also for expenses Harbert claimed it incurred based on the allegedly improper rejection by ALDOT's employee of the out-of-balance-stay- stressing erection procedure. Harbert maintained at trial that ALDOT and its director "disregarded" the claims-review process and instituted new procedures that were advantageous to ALDOT, including: appointing a person who had been involved in the project as a member of the claims committee; creating a second, "shadow claims committee" that supplied ex parte communications to the claims committee; denying Harbert the ability to rebut ALDOT's position before the claims committee; delaying resolution of Harbert's claims; failing to conduct a hearing on a "claim supplement" Harbert was required to provide; and failing to review "major aspects" of Harbert's claims, including whether the imposition of liquidated damages was wrongful and whether ALDOT failed to give proper consideration to the out-of-balance-stay-stressing erection 1050271 Subsequent changes in administrations have resulted in 4 Governor Riley and Director McInnes being substituted as parties. See Rule 25(d), Ala. R. Civ. P. 7 sequence. Additionally, Harbert further contended that an advisory board was formed but disbanded before it could hear the claims and that the director made his decision regarding Harbert's claims without reviewing a recommendation by an advisory board. In May 1995, Harbert sued ALDOT and others in federal court. Those proceedings were ultimately dismissed. In November 2001, Harbert sued ALDOT and numerous employees of ALDOT, as well as the Governor and the director of ALDOT.4 The complaint, which was subsequently amended, sought declarations that the defendants erroneously and unreasonably construed the contract to preclude out-of-balance stay stressing, that the liquidated damages constituted an unlawful penalty, that the defendants were under a legal duty to return all unlawful liquidated damages as well as the "retainage," and that Harbert was entitled to compensation for extra work performed under the contract. The complaint further alleged that the defendants violated Harbert's due-process rights in wrongfully administering both the contract and Harbert's claim 1050271 Count X alleged that the defendants were estopped from 5 denying Harbert's claims for "just compensation"; Harbert dismissed count X during trial. 8 for compensation for the extra work, that ALDOT officers misrepresented that Harbert could request alternate erection- sequence procedures and that the request would receive a good- faith review, and that the defendants engaged in an unlawful condemnation of Harbert's property. The complaint thus sought mandamus relief directing payment of the liquidated damages, the retainage, and compensation for the extra work Harbert performed. Alternately, the complaint sought a writ of mandamus to compel the defendants to give it a fair and impartial forum for Harbert to submit its claim for extra compensation.5 The case went to trial in August 2005. At the close of the evidence, Harbert moved for a judgment as a matter of law ("JML") as to counts II and III of the amended complaint, which sought payment of the retainage and liquidated damages. In an order dated September 14, 2005, the trial court granted the motion, stating: "All funds being held by [ALDOT] as 'Retainage' shall be released to [Harbert] and all funds assessed as 'Liquidated Damages' after August 15, 1991 shall be paid over to [Harbert] forthwith. 1050271 9 "The Court hereby holds as a matter of law that 'Liquidated Damages' assessed after August 15, 1991 are an illegal penalty and thus void under Alabama law. The sum of $534,000.00 plus interest from August 15, 1991 shall be paid over to [Harbert] by [ALDOT]. The Court will calculate interest in a separate order. "The Court hereby holds as a matter of law that the 'Retainage' is the property of [Harbert]. [ALDOT] is hereby ordered to pay said 'Retainage' forthwith to [Harbert]." The trial court then submitted the remaining claims to the jury. A verdict form with 18 special interrogatories was submitted to the jury. The trial court's final judgment, entered on the jury's verdict, held: "This matter was tried before a jury commencing August 22, 2005. Without objection, the Court submitted the cause to the jury pursuant to Special Interrogatories, which were answered by the jury on September 15. ... The Court informed the parties it intended to treat the jury's findings as advisory with respect to the equitable claims in this case, and the Court hereby renders the following Final Judgment upon Plaintiff Harbert International's causes of action: ".... "2. Count I of Harbert's Amended Complaint sought a declaration that Harbert's contracts with the State permitted Harbert to submit proposals for alternate construction methods including out-of-balance stay stressing and that the defendants' interpretation of those contracts was mistaken, unreasonable, and inconsistent with the 1050271 10 express terms of the contract. The jury answered Special Interrogatories 1 and 2 relating to this issue in the affirmative. The Court accordingly enters judgment on Count I in favor of Harbert and against defendant Alabama Department of Transportation ('ALDOT') and Joe McInnes in his official capacity as Director of the Department of Transportation and Bob Riley in his official capacity as Governor, consistent with the jury's findings. "3. Count II of Harbert's Amended Complaint sought a declaratory judgment that liquidated damages imposed by the State after August 15, 1991, when the Cochrane Bridge was opened to traffic, were an unlawful penalty and that Harbert was entitled to the return of such liquidated damages and also to the return of retainage that ALDOT continued to hold. At the close of the evidence, the Court granted Harbert's Motion for Judgment as a Matter of Law on this claim. See Order of September 14, 2005 (incorporated herein). The Court thus enters judgment on Count II in favor of Harbert and against defendants ALDOT, Joe McInnes in his official capacity as Director of the Department of Transportation, and Bob Riley in his official capacity as Governor, with respect to liquidated damages imposed after August 15, 1991 and with respect to retainage. "4. Count III of Harbert's Amended Complaint seeks mandamus compelling the official-capacity defendants to return the liquidated damages and retainage that were the subject of Count II. The Court's Order of September 14, 2005 directs ALDOT to return the liquidated damages imposed after August 15, 1991 in the amount of $534,000.00, and also to return the retainage in the amount of $291,750.00 ALDOT continues to hold. Accordingly, the Court enters judgment on Count III in favor of Harbert and against ALDOT, Joe McInnes in his official capacity, and Bob Riley in his official capacity in accordance 1050271 11 with the Order of September 14, 2005. "5. Counts IV and VIII of Harbert's Amended Complaint seek relief for the taking of Harbert's property without just compensation in violation of Harbert's rights under Sections 13 and 23 of Article I of the Alabama Constitution of 1901. The jury answered Special Interrogatories 1, 2, 3, 5, 8, 9, 10, and 11, and 17 in the affirmative, which compels the finding that ALDOT put Harbert's property to a public use and failed to pay just compensation for that property, and further, acted arbitrarily, capriciously, in bad faith, beyond its authority, and under a mistaken interpretation of law. The jury determined the value of the property taken to be $2,350,000, and separately determined that Coastal Materials of Alabama, Inc. ('Coastal'), Harbert's subcontractor, was due $8,451. The jury also answered Special Interrogatories 7 and 13 in the negative. Accordingly, this Court enters judgment on Counts IV and VIII in favor of Harbert and against defendant ALDOT and the other official-capacity defendants, in the amount of $2,350,000.00, and in the amount of $8,451.00 on behalf of Coastal, plus interest and attorneys fees as provided for below. ... "6. Count V of Harbert's amended complaint seeks mandamus directed to Joe McInnes in his official capacity as Director of the Alabama Department of Transportation, and Bob Riley in his official capacity as Governor, directing them to pay the amount of Harbert's just claim for extra compensation made pursuant to the contracts between Harbert and the State. The jury found that ALDOT arbitrarily and capriciously interpreted the contracts during their administration; and further, that ALDOT failed to follow the claims process set out in the contracts, arbitrarily and capriciously failed to adequately review Harbert' s claim, and arbitrarily and capriciously denied the claim. The court treats those findings as advisory only, but 1050271 A judgment was entered on counts VI and VII in favor of 6 the defendants; that part of the judgment is not challenged on appeal. 12 fully concurs in the jury's findings that the State acted arbitrarily, capriciously and wrongfully. The Court further finds that Harbert has exhausted its administrative remedies and that further efforts at review by defendants ALDOT and McInnes would be futile. Thus, mandamus may properly issue to the official capacity defendants to compel the proper exercise of their discretion and to pay the just amount of Harbert' s claims. The jury determined the amount of Harbert's claim which was due to be paid was $2,350,000.00 and $8,451.00 on behalf of Coastal. The Court treats that finding as advisory, and independently determines the proper amount due on the claim to be $2,350,000.00 and $8,451.00 on behalf of Coastal. Accordingly, Joe McInnes in his official capacity, and Bob Riley in his official capacity, are ordered to pay Harbert $2,358,451.00 pursuant to its claim for extra compensation, plus interest as provided for below. "7. Counts VI and VII of Harbert's Amended Complaint seek damages for fraudulent misrepresentation. ... However, the jury also found that Harbert suffered no damages resulting from the misrepresentations....[ ] 6 "8. Count IX of Harbert's Amended Complaint is moot in light of this judgment; however, the Court notes that Harbert would be entitled to said relief if for any reason this judgment was overturned. Harbert has withdrawn Count X. ".... "Based on the foregoing, the Court enters judgment as follows: "a. On Count III, in accordance with the Court's 1050271 The trial court did not render a judgment against the 7 individually named ALDOT employees; they are not parties to this appeal. 13 Order of September 14, 2005, and this Final Judgment the Court issues a mandamus directed to Joe McInnes in his official capacity as Director of the Alabama Department of Transportation, and Bob Riley in his official capacity as Governor to pay Harbert $1,277,646.00 in returned liquidated damages, interest and in returned retainage; "b. On Count V, the Court issues a mandamus directed to Joe McInnes in his official capacity as Director of the Alabama Department of Transportation, and Bob Riley in his official capacity as Governor to pay Harbert $4,270,846.00; "c. On Counts VI and VII, in accordance with the jury's answer to Special Interrogatories 15 and 16, the Court awards Harbert $0; "d. On Counts IV and VIII the Court enters judgment for Harbert against ALDOT, Joe McInnes, in his official capacity as Director of the Alabama Department of Transportation, and Bob Riley, in his official capacity as Governor in the amount of $4,270,846.00, plus pursuant to Alabama Code § 18-1A-32, the Court awards Harbert its litigation expenses of $552,747.00 for a total judgment of $4,823,593.00." ALDOT, Governor Riley, and the director appeal. 7 Discussion The appellants argue that Harbert's action is barred by Article I, § 14, Alabama Constitution of 1901. Section 14 provides generally that the State of Alabama is immune from 1050271 14 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 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 1050271 15 "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). The immunity afforded State officers sued in their official capacities, however, is not unlimited: "[Section 14] immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So. 2d 931 (Ala. 1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc., 353 So. 2d 779 (Ala. 1977); Tennessee & Coosa R.R. Co. v. Moore, 36 Ala. 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So. 2d 428 1050271 16 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion. See Barnes v. State, 274 Ala. 705, 151 So. 2d 619 (1963)." McDowell-Purcell, Inc. v. Bass, 370 So. 2d 942, 944 (Ala. 1979). 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 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)]; 1050271 17 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)) (emphasis added in Jones). As a threshold issue, we must first determine whether ALDOT is properly a party in this case. ALDOT, as a State agency, is absolutely immune from suit. Ex parte Alabama Dep't of Transp., [Ms. 1051661, August 10, 2007] ___ So. 2d ___, ___ (Ala. 2007) ("ALDOT is a State agency ... and, 1050271 18 therefore, is absolutely immune from suit ...."). Generally, "any exceptions to that immunity extend only to suits naming the proper State official in his or her representative capacity." Ex parte Alabama Dep't of Transp., [Ms. 1060078, July 20, 2007] ___ So. 2d ___, ___ (Ala. 2007) (emphasis added). However, ALDOT is a named defendant in this case. This Court has recently noted that "[i]t may be argued that language from some of our cases would permit a declaratory-judgment action directly against the State or its agencies ...." Id. at ___ n.3. As this Court held in Lowndesboro, "[t]he exception afforded declaratory-judgment actions under § 14 generally applies only when the action seeks 'construction of a statute and how it should be applied in a given situation,' Aland v. Graham, 287 Ala. 226, 230, 250 So. 2d 677, 679 (1971), and not when an action seeks other relief." 950 So. 2d at 1211. Early cases discussing the declaratory-judgment-action "exception" to § 14 describe the purpose of a declaratory- judgment action as giving direction and instruction to individual State officers on the interpretation and application of the law: 1050271 19 "In State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 633, 11 So. 2d 342, 345 (1943), superseded, in part, on other grounds, Ala. Code 1940, tit. 7, § 167 (now Ala. Code 1975, § 6-6-221), we further explained why a declaratory-judgment action is not barred by § 14: "'But we have held that when an officer of the State is confronted with an uncertain problem of what the law means which requires certain acts on his part, or whether the law is valid, and he proposes to pursue a certain course of conduct in that connection, which would injuriously affect the interests of others who contend that he has no legal right thus to act, there is thereby created a controversy between them and the Declaratory Judgments Act furnishes a remedy for either party against the other to declare the correct status of the law. The purpose is to settle a controversy between individuals, though some of them may be State officers.' "See also Thurlow v. Berry, 247 Ala. 631, 639, 25 So. 2d 726, 733 (1946) ('This court has declared the rule to be that when a suit against a state official seeks a declaration of applicable principles of law to a certain status and direction of the parties in the premises, it does not infringe Section 14, Constitution, or violate sovereign immunity.')." Lowndesboro, 950 So. 2d at 1211 n.5. Subsequent cases, however, seemed to imply that this "exception" could allow an action against the State or a State agency. As one Justice of this Court recently noted: "It is true that the opinion in the 1971 case of Aland v. Graham, 287 Ala. 226, 229-30, 250 So. 2d 1050271 20 677, 679 (1971), quoted in Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002), ... was worded in such a way as to leave open the possibility that the exception for declaratory- judgment actions is not limited to actions against State officials. It is my conclusion, however, that cases such as Aland have not been careful in their articulation of this exception to sovereign immunity, particularly in light of the absolute immunity that it is now well established extends both to the State and to State agencies." Main v. Raley, [Ms. 1050547, December 21, 2007] ___ So. 2d ___, ___ (Ala. 2007) (Murdock, J., concurring in part and concurring in the result) (footnote omitted). The purpose of the so-called "exception" to § 14 allowing declaratory-judgment actions is to give direction to State officers. Consistent with the other "exceptions" to § 14 immunity, we hold that only State officers named in their official capacity--and not State agencies--may be defendants in such proceedings. Therefore, the trial court did not have jurisdiction in the instant case to entertain an action or to enter a judgment against ALDOT, and ALDOT is due to be dismissed as a party. Therefore, as to ALDOT, the appeal is dismissed. I. The remaining appellants, the Governor and the director, 1050271 21 argue that Harbert's claims against them are essentially claims against the State seeking money damages, which they assert are barred by § 14. The Governor and the director further contend that Harbert has essentially "repackaged" its claims in an attempt to fit them within the "exceptions" to § 14. Nevertheless, the Governor and the director maintain that when considering the nature of the action and the relief awarded--and not the labels placed on the claims by Harbert-- the resulting judgment impacts the State in a manner barred by § 14. As noted above, Harbert sought a writ of mandamus ordering the release of both the liquidated damages and the "retainage" reserved by ALDOT. The trial court's JML on counts II and III stated: "The Court hereby holds as a matter of law that 'Liquidated Damages' assessed after August 15, 1991 are an illegal penalty and thus void under Alabama law. The sum of $534,000.00 plus interest from August 15, 1991 shall be paid over to [Harbert] by [ALDOT]. The Court will calculate interest in a separate order. "The Court hereby holds as a matter of law that the 'Retainage' is the property of [Harbert]. [ALDOT] is hereby ordered to pay said 'Retainage' forthwith to [Harbert]." The trial court thus issued a writ of mandamus directing the 1050271 22 Governor and the director to pay the liquidated damages and the retainage to Harbert. On appeal, the Governor and the director argue generally that this judgment is barred by § 14. Generally, mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of liquidated or certain sums the State is legally obligated to pay under a contract. State Highway Dep't v. Milton Constr. Co., 586 So. 2d 872, 875 (Ala. 1991); see also Jones, 895 So. 2d at 877-79 (describing as "well-established [the] rule that a writ of mandamus will issue to compel payment of only such claims as are liquidated" and noting that prior caselaw had held "that payment for goods or services, for which the State had contracted and accepted, could be compelled by mandamus"); and State Bd. of Admin. v. Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) ("the claim asserted [against the State was] for an amount fixed or determinable by the terms of the contract of sale," and was "definite and certain, ... and not an unliquidated claim, in the sense that would render mandamus unavailable"). We find our opinions in Milton Construction Co. v. State Highway Department, 568 So. 2d 784 (Ala. 1990) ("Milton I"), 1050271 23 and State Highway Department v. Milton Construction Co., 586 So. 2d 872 (Ala. 1991) ("Milton II"), dispositive on this issue. In Milton I, the plaintiff, Milton Construction Company, asked the trial court to declare the disincentive clause of an "incentive/disincentive-payments provision" in two highway-construction contracts it had entered into with ALDOT (then called "the Highway Department") void and unenforceable as a penalty. Milton Construction further asked the trial court to order the defendants--the State, ALDOT, and ALDOT's director--to pay it the amounts of "disincentive payments" ALDOT had allegedly wrongfully withheld. On appeal, this Court held that the "disincentive clause" in the contracts was "void as a penalty and therefore unenforceable," 568 So. 2d at 791, and remanded the case. On return to remand, the defendants claimed that § 14 barred the trial court from ordering them to pay the money they had withheld from Milton Construction under the void disincentive clause. In Milton II, this Court disagreed, stating: "It is true that § 14 of the Constitution prevents a suit against the state as well as suits against its agencies. See Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989); Rutledge v. Baldwin County 1050271 24 Comm'n, 495 So. 2d 49 (Ala. 1986). However, this Court has also recognized that there are certain established exceptions to the protection afforded the state or its agencies by sovereign immunity. See Ex parte Carter, 395 So. 2d 65, 68 (Ala. 1981). Among those recognized exceptions are actions brought to force state employees or agencies to perform their legal duties. Id. See also Nix and Vercelli, Immunities Available In Alabama For Cities, Counties And Other Governmental Entities, And Their Officials, 13 Am. J. Trial Advoc. 615 (1989). "... Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts. See, e.g., Gunter v. Beasley, 414 So. 2d 41 (Ala. 1982); State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928). "It is undisputed that Milton Construction has already rendered the services called for under the contract. Consequently, we hold that this lawsuit is not barred by the doctrine of sovereign immunity, because it is in the nature of an action to compel state officers to perform their legal duties and pay Milton Construction for services contracted for and rendered. Gunter, supra; Roquemore, supra. "For example, in Roquemore the Highway Department contracted with Roquemore to purchase hay. After Roquemore had delivered a substantial amount of hay to the Highway Department, it refused to accept any further deliveries of hay and refused to pay for the hay that it had already received. Roquemore petitioned this Court for a writ of mandamus ordering the State Board of Administration 1050271 25 and the Highway Department to pay him for the hay that he had delivered. This Court held that the writ was proper and was not barred by the doctrine of sovereign immunity because, under the applicable statutes, the Highway Department could not refuse to pay for goods that it had already accepted. This Court held that the suit in Roquemore was one to force a state agency to perform its legal duty, i.e., to force the Highway Department to pay for the hay that it had already accepted. Likewise, in this case, Milton Construction's action against the Highway Department is not barred by the doctrine of sovereign immunity." Milton II, 586 So. 2d at 875. This Court thus upheld the trial court's judgment holding that the moneys withheld under the disincentive clause were due to be paid to Milton Construction. Like the plaintiff in Milton I and Milton II, Harbert contended that a provision in a contract with ALDOT was void as a penalty. Harbert thus sought mandamus relief directing that State officers pay the funds withheld by ALDOT. The trial court agreed and, like the trial court in Milton II, ordered that the withheld funds be paid. In their initial brief on appeal, the Governor and the director do not appear to contest the trial court's holding that the liquidated- damages provision was unlawfully applied in this case. Thus, under the authority of Milton II, the trial court's mandamus 1050271 26 relief directing that the funds withheld as liquidated damages are due to be returned to Harbert is affirmed. See Hardin v. Fullilove Excavating Co., 353 So. 2d 779, 783 (Ala. 1977) (agreeing with the trial court's factual findings and legal conclusions interpreting a contract between a State agency and a contractor "as calling for payment of the disputed sum" and affirming the issuance of the writ of mandamus to compel State officers to tender payment). Additionally, the Governor and the director do not properly present an argument as to how ALDOT is legally entitled to the funds withheld from Harbert as retainage. For all that appears, the trial court correctly held that the funds were to be paid to Harbert. Therefore, the trial court's mandamus relief also directing the retainage to be paid to Harbert is due to be affirmed. II. The trial court's judgment on counts I, IV, V, and VIII, however, requires a different analysis. These counts, in essence, seek unliquidated damages for, among other things, the defendants' alleged failure to properly consider the proposed erection sequence and the claim for compensation for 1050271 Count I sought a declaration that the contract permitted 8 Harbert to submit alternate erection procedures and that the defendants' interpretation of the contract on this issue was incorrect. Count IV alleged that the defendants acted willfully, maliciously, fraudulently, in bad faith, beyond their authority, and under a mistaken interpretation of the law by rejecting the proposed erection sequence, and that they willfully and in bad faith failed to provide a proper claims process. As to count V, the complaint alleged that all the individual defendants in their official capacities were under a legal duty to pay Harbert's claims for "extra compensation." The trial court found that "the State" had acted arbitrarily and capriciously in interpreting the contract and in failing to follow the claims process. "Inverse condemnation is defined as the taking of private 9 property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation." Carter, 395 So. 2d at 67. The specific facts of this case do not reveal an attempt to take property for public use without the formalities of a condemnation proceeding. Instead, Harbert's claim for inverse-condemnation damages is essentially a claim that the defendants violated the duties and obligations of the contract, which resulted in the taking of Harbert's labor, materials, and services. This claim, in substance, is actually a claim that ALDOT breached its contract with Harbert, resulting in damage to Harbert. 27 extra work performed. Additionally, count VIII purported to 8 allege a cause of action for inverse condemnation. The 9 Governor and the director contend that despite Harbert's efforts to characterize these claims as falling within the purported "exceptions" to § 14, they are, in effect, in the 1050271 28 nature of claims seeking damages for breach of contract, which is forbidden under § 14. We agree. As noted above, this Court has upheld actions that seek relief in the form of compelling State officers to properly exercise their discretion or judgment when it is alleged that the State officers have abused that discretion or judgment or exercised them in an arbitrary manner. McDowell-Purcell, Inc., 370 So. 2d at 944 ("In limited circumstances the writ of mandamus will lie to require action of state officials. ... If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof."). However, in this case, the assessment of damages against the State officers named in their official capacities divests the treasury of funds in manner that is prohibited by § 14. In Stark v. Troy State University, 514 So. 2d 46 (Ala. 1987), the plaintiff, an employee of a State university, sued certain State officers employed by the university, arguing that they had violated the university's policies in underpaying him during a prior academic year. He thus sought damages for back pay. The defendants argued that the action was barred by § 14. We 1050271 29 stated: "Based on the foregoing, if the individual defendants have not acted toward the plaintiff in accordance with the rules and regulations set by the university, their acts are arbitrary and an action seeking to compel them to perform their legal duties will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901; however, the action for compensatory damages cannot be maintained. The reason was stated in Gunter v. Beasley, 414 So. 2d 41 (Ala. 1982): "'Section 14 prohibits the State from being made a defendant in any court of this state and neither the State nor any individual can consent to a suit against the State. Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971). The application of Section 14 to suits against officers of the State was treated in Ex parte Carter, 395 So. 2d 65 (Ala. 1980), as follows: "'"... In 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. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So. 2d 428 (1967). This Court has held that § 14 prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234 (1963)."' (Emphasis added.) "414 So. 2d at 48." 1050271 30 514 So. 2d at 50-51. Furthermore, in Vaughan v. Sibley, 709 So. 2d 482 (Ala. Civ. App. 1997), an employee of the University of Alabama at Birmingham ("UAB") sued various UAB officials seeking back pay and an order requiring the enforcement of UAB's salary policies. The university's officers argued that § 14 barred the action, and the trial court agreed. On appeal, the Court of Civil Appeals concluded that insofar as the plaintiff requested relief ordering the defendants to follow the salary policy in the future, § 14 did not bar the action. 709 So. 2d at 485. However, the plaintiff was not entitled to retrospective relief in the form of back pay: "Because of the sovereign immunity clause, the courts of this state are without jurisdiction to entertain a suit seeking damages, including back pay, for breach of contract against the state." 709 So. 2d at 486. See also Williams v. Hank's Ambulance Serv., Inc., 699 So. 2d 1230, 1232 (Ala. 1997) (holding that a judgment requiring reimbursement from the State for services provided, which payment had been withheld under the State's erroneous interpretation of federal statutes, would directly affect a property right of the State 1050271 31 and, therefore, was barred by § 14). As illustrated in Part I of this opinion, the trial court can generally, by writ of mandamus, order State officers in certain situations to pay liquidated damages or contractually specified debts. The payment of these certain, liquidated amounts would be only a ministerial act that State officers do not have the discretion to avoid. Jones, 895 So. 2d at 878- 79; Roquemore, 218 Ala. at 124, 117 So. at 760. Furthermore, although the payment of the funds "may ultimately touch the State treasury," Horn v. Dunn Bros., 262 Ala. 404, 410, 79 So. 2d 11, 17 (1955), the payment does not "affect the financial status of the State treasury," Lyons, 858 So. 2d 261, because the funds "do not belong to the State," Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950 So. 2d 1180, 1190 n.6 (Ala. Civ. App. 2005) (two-judge opinion), and the State treasury "suffers no more than it would" had the State officers originally performed their duties and paid the debts. Horn, 262 Ala. at 410, 79 So. 2d at 17. The trial court may not, however, award retroactive relief in the nature of unliquidated damages or compensatory damages, because such relief affects a property or contract right of the State. 1050271 The Governor and the director also contend that the 10 trial court erred in allowing certain evidence to be admitted at trial and in calculating the amount of the final award. No authority is cited in support of these arguments; therefore, there is nothing for this Court to review on these issues. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1 (Ala. 2007). 32 Stark; Williams; Roquemore; J.B. McCrary Co. v. Brunson, 204 Ala. 85, 86, 85 So. 396, 396 (1920) ("mandamus will not lie to compel the payment of unliquidated claims"); and Vaughan. Therefore, under § 14 the trial court was without jurisdiction to enter a judgment or to direct the Governor and the director to pay on counts I, IV, V, and VIII, and those counts are due to be dismissed.10 Although the trial court cannot award compensatory damages or unliquidated damages in this case, the trial court does have the ability to compel State officers who are acting arbitrarily and capriciously to properly perform their duties. Stark, 514 So. 2d at 50 (holding that an action seeking to compel State officers who are acting arbitrarily to perform their legal duties "will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901"); McDowell-Purcell, 370 So. 2d at 944 ("If judgment or discretion is abused, and exercised in an arbitrary or 1050271 Harbert argues that the previous claims-review process 11 was futile because of the actions of the defendants. Should the trial court find in favor of Harbert on count IX and order the Governor and the director to provide a fair forum in which Harbert can present its claims for extra compensation, the trial court may use its inherent powers to enforce that judgment, subject, of course, to the limitations of § 14. See Cherry v. Mazzone, 568 So. 2d 799, 804 (Ala. 1990) (stating that courts "have the inherent power" to enforce their judgments and to make such orders as necessary to render the judgments effective); but see also Haley, 885 So. 2d at 788-89 (holding that the trial court's attempt to compel compliance with its judgment through monetary sanctions violated § 14). 33 capricious manner, mandamus will lie to compel a proper exercise thereof."); St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So. 2d 333, 334 (1961) ("Injunctive action may be maintained against a state official, if the official is acting beyond the scope of his authority or acting illegally, in bad faith, or fraudulently."). Count IX of the complaint sought a writ of mandamus to compel the defendants to provide a fair and impartial process in which Harbert could submit its claims. The trial court held that count IX was moot in light of its judgment but that Harbert would be entitled to relief under that count should the judgment be reversed on appeal. We therefore remand the cause for the trial court to rule on count IX.11 Conclusion 1050271 34 The trial court's judgment insofar as it ordered ALDOT to pay damages is void because that court lacked jurisdiction as to ALDOT, and, as to ALDOT, the appeal is dismissed. Furthermore, the judgment as to counts I, IV, V, and VIII, directing the State to pay damages to Harbert, is due to be dismissed. The trial court's judgment is reversed insofar as it holds that count IX is moot; because of our holding as to counts I, IV, V, and VIII, the question whether the claims procedure was fair and impartial is no longer moot. The remainder of the judgment, including the order to pay Harbert the liquidated damages and retainage, is affirmed. The case is remanded for proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; APPEAL DISMISSED IN PART; AND REMANDED WITH DIRECTIONS. Cobb, C.J., and See, Woodall, Stuart, Bolin, and Parker, JJ., concur. Murdock, J., concurs specially. Lyons, J., recuses himself. 1050271 35 MURDOCK, Justice (concurring specially). I begin by noting my agreement with the conclusion in the main opinion that the so-called "exception" to State immunity for declaratory-judgment actions does not extend to State agencies. See ___ So. 2d at ___. I write separately (a) to affirm my understanding of certain principles relating to State immunity and the "exceptions" thereto, and (b) to explain that, in the particular circumstances presented in this case, especially the limited nature of the arguments made by the State defendants as to the issues of liquidated damages and retainage, I do not read the main opinion as inconsistent with my understanding of these principles. A. General Principles The above-referenced declaratory-judgment exception to immunity is one of six exceptions that have been recognized: "'A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala. Code 1975, construing a statute and applying it in a given situation.' 1050271 36 "Latham v. Department of Corr., 927 So. 2d 815, 821 (Ala. 2005). Other actions that are not prohibited by § 14 include: "'(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.' "Drummond Co. [v. Alabama Dep't of Transp.], 937 So. 2d [56,] 58 [(Ala. 2006)](emphasis omitted)." Ex parte Alabama Dep't of Transp., [Ms. 1060078, July 20, 2007] __ So. 2d __, __ (Ala. 2007) (footnote omitted). As the main opinion correctly notes, however, this Court has qualified the foregoing "exceptions," as follows: "'"[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."'" ___ So. 2d at ___ (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 873 (Ala. 2004), quoting in turn Shoals Cmty. Coll. v. Colagross, 674 So. 2d 1311, 1314 (Ala. Civ. App. 1995) (emphasis added in Jones)). This Court stated in Haley v. Barbour County, 885 So. 2d 783, 788 (Ala. 2004), that, to 1050271 37 determine whether an action against a State officer is, in fact, one against the State, a court must consider "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,] 261 [(Ala. 2003)]." B. Application of General Principles in the Present Case, Particularly as to Liquidated Damages and Retainage At first glance, it would appear that Harbert's recovery in this case of liquidated damages and retainage "would directly affect a contract ... right of the State," Mitchell v. Davis, 598 So. 2d 801, 806 (Ala. 1992), "'would result in the plaintiff's recovery of money from the [S]tate,'" Jones, 895 So. 2d at 873, and "would directly affect the financial status of the State treasury," Lyons v. River Road Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003). The main opinion overcomes this apparent obstacle, however, with the following reasoning: "Generally, mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of 1050271 38 liquidated or certain sums the State is legally obligated to pay under a contract. State Highway Dep't v. Milton Constr. Co., 586 So. 2d 872, 875 (Ala. 1991) [('Milton II')]; see also [Alabama Agric. & Mech. Univ. v.] Jones, 895 So. 2d [867] at 877-79 [(Ala. 2004)] (describing as 'well-established [the] rule that a writ of mandamus will issue to compel payment of only such claims as are liquidated' and noting that prior caselaw had held 'that payment for goods or services, for which the State had contracted and accepted, could be compelled by mandamus'); and State Bd. of Admin. v. Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) ('the claim asserted [against the State was] for an amount fixed or determinable by the terms of the contract of sale,' and was 'definite and certain, ... and not an unliquidated claim, in the sense that would render mandamus unavailable')." ___ So. 2d at ___ (emphasis in first sentence added). As a threshold matter, I do not read the foregoing passage, and particularly its reference to the availability of mandamus relief, as in any way altering the above-quoted principles regarding § 14 immunity. Those principles apply regardless of whether the vehicle used by a plaintiff is an action at law (e.g., an action alleging breach of contract or negligence) or an action in equity, including, for example, a petition for a writ of mandamus. This Court has never held that there is one set of "exceptions" to § 14 immunity in actions generally and some other, special, set of "exceptions" uniquely applicable to petitions for the writ of mandamus. 1050271 I also note that, when a State official fails to perform 12 a ministerial task, the official has provided the "arbitrary" action, or the "abuse of discretion," to which our cases sometimes refer as a basis for the issuance of a writ of mandamus. See ___ So. 2d at ___, citing McDowell-Purcell, 370 So. 2d at 944, and Stark v. Troy State Univ., 514 So. 2d 46, 50-51 (Ala. 1987). There is also potential for confusion over a third 13 manner in which the term "liquidated" appears in this case. Under the terms of the Harbert contracts with the State, "liquidated damages" are the amounts the contracts define as payable to the State (or deductible from the amounts owed to Harbert) in the event Harbert is responsible for a delay in the performance of its contractual obligations. As discussed in the main text of this writing, however, such contractually defined "liquidated damages" for late performance, though of a sum certain, are not necessarily undisputed amounts owed to 39 Such cases as Jones and McDowell-Purcell, Inc. v. Bass, 370 So. 2d 942, 944 (Ala. 1979), both of which sought writs of mandamus, bear this out. Further, the reference to ministerial acts in the first sentence reflects the third of the numbered exceptions to State immunity, as quoted above.12 Having said that, it becomes critical, I think, to recognize that the reference in the cases cited in the above- quoted passage from the main opinion to claims that are "liquidated," when considered in context, are references not merely to claims for amounts that have been reduced to sums certain, but claims as to which there is no room for dispute as to liability, i.e., whether the amounts at issue are owed.13 1050271 the State within the contemplation of this Court's opinion in cases such as Jones, McDowell-Purcell, and even State Highway Dep't v. Milton Constr. Co., 586 So. 2d 872 (Ala. 1991). To the contrary, whether a contractor is late in performing construction or should be charged with responsibility for the alleged late performance could well be, and frequently is, the subject of dispute in a given case. Likewise, a given case could involve a dispute as to whether a contractor is entitled to be paid the retainage provided for in its contract with the State, even if the amount of that retainage is a sum certain. See, e.g., J.L. Simmons Co. v. Capital Dev. Bd., 98 Ill. App. 3d 445, 424 N.E.2d 821, 54 Ill. Dec. 71 (1981) (holding that state principles of sovereign immunity required a contractor's suit for the recovery of retainage under its construction contract with a state board to be brought in the Illinois Court of Claims). In such cases, I would not be able to agree with a statement, such as that found in Part II of the main opinion, that a judgment against the State would not directly affect the treasury of the State. In the present case, however, I read that statement in the context of the circumstances presented. As discussed in more detail in the main text of this writing, infra, those circumstances include the fact that the appellants have not provided this Court with an argument as to why the trial court's treatment of the State's obligations with respect to the liquidated damages and retainage is in error. For purposes of this case, therefore, we are left to consider those alleged obligations no differently than if they were in fact ministerial obligations of the State. 40 In this regard, Part III.B. of the Jones opinion, titled "Mandamus," is particularly instructive. The Jones Court parses the holdings in State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928); Dampier v. Pegues, 362 So. 2d 224 (Ala. 1978); Hardin v. Fullilove Excavating Co., 353 So. 2d 779 (Ala. 1977); and State of 1050271 41 Alabama Highway Department v. Milton Construction Co., 586 So. 2d 872 (Ala. 1991) ("Milton II"), most of which are relied upon by the main opinion in the present case. As to Dampier, the Jones Court noted that that case arose out of an action "seeking a writ of mandamus to require [certain State officials] to pay [Dampier] $14,325.66 allegedly due under a contract." 895 So. 2d at 878. The Jones Court explained that, taking the allegations of the complaint as true in the context of a motion to dismiss, the case before it was one in which the services at issue "[had been] accepted, approved and used by the [State]." 895 So. 2d at 878. "Similarly," according to the Jones Court, the issue in Hardin "was whether, '[a]fter approval of final payment, including the sum of $15,413.76, [the State officials could] interpret, or reinterpret, the contract and specifications and rescind prior approval of payment'" under a construction contract. 895 So. 2d at 879. "Without discussing § 14 expressly, the [Hardin] Court explained: 'In this case the discretion of [the State officials] was exhausted, at the very latest, when approval was given Fullilove's final payment 1050271 In Jones, the Court also discussed Vaughan v. Sibley, 14 709 So. 2d 482 (Ala. Civ. App. 1997), in which a professor at the University of Alabama at Birmingham sought to recover back pay. The Jones Court quoted with approval from the Court of Civil Appeals' opinion, noting that the professor's "'remedy, if any, is with the Board of Adjustment.'" 895 So. 2d at 874 (quoting Vaughan, 709 So. 2d at 486). After quoting §§ 41-9-62(a)(4) and (a)(7), Ala. Code 1975, providing for claims against the State of Alabama to be heard by the Board of Adjustment, the Jones Court, quoting Vaughan, 709 So. 2d at 486, stated: "'The Board of Adjustment has jurisdiction over claims against the state that are not justiciable in the courts because of the state's constitutional immunity from being made a defendant. Lee v. Cunningham, 234 Ala. 639, 641, 176 So. 477 (1937). The Board of Adjustment has exclusive jurisdiction over a contract claim against a state university. Alabama State University v. State Bd. of Adjustment, 541 So. 2d 567 (Ala. Civ. App. 1989).'" 895 So. 2d at 874. 42 request ....'" 895 So. 2d at 879 (emphasis omitted) (quoting Hardin, 353 So. 2d at 784).14 The Jones Court then turned its attention to a case that, like the present case, involved an action by a contractor against the director of the Alabama Highway Department seeking to recover moneys allegedly owed under a construction contract. Quoting from this Court's opinion in McDowell- Purcell, 370 So. 2d at 944, the Jones Court reiterated: "'In limited circumstances the writ of mandamus will 1050271 43 lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc., 353 So. 2d 779 (Ala. 1977).... The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion.... "'.... "'[Purcell] contends that because the required rock bolting has been completed and accepted [emphasis in original] by ... Bass, all that remains is for Bass to perform a ministerial act: paying [Purcell] for all rock bolting at four dollars per linear foot. Were one other circumstance present we would be compelled to agree. The payment request for the rock bolting ... has never been approved [emphasis in original] by the Highway Department. Had it been, mandamus would lie because all that would remain would be for Bass to make payment. See Dampier v. Pegues, 362 So. 2d 224 (Ala. 1978); Hardin v. Fullilove Excavating Co., Inc., 353 So. 2d 779 (Ala. 1977).'" 895 So. 2d at 880 (emphasis in first two sentences added). The Jones Court noted that the contractor in McDowell-Purcell "'had constructive notice that it could not sue the State over a contract dispute. Section 14, Const. 1901....'" 895 So. 2d at 880 (quoting McDowell-Purcell, 370 So. 2d at 944). "'In this case [the director of ALDOT] had a duty to either approve or disapprove payment according to one of two different interpretations of the 1050271 Consistent with this parenthetical explanation by the 15 Jones Court of the holding in Milton II, it would appear that the contractor in Milton II was able to recover only because of the unique procedural posture of that case. It is a case in which an earlier appeal, in which the issue of sovereign immunity was not raised or discussed, resulted in a holding that a contractual provision requiring certain compensation to the State for late performance by the contractor of its construction obligations was void as a penalty. Milton Constr. Co. v. State Highway Dep't, 578 So. 2d 784 (Ala. 1990) ("Milton I"). That holding became the law of the case 44 contract. Performance of that duty rested upon his judgmental or discretionary ascertainment of facts or existence of conditions to be applied under the terms of the contract. The writ of mandamus will not lie to compel him to exercise his discretion and apply the ascertained facts or existing conditions under the contract so as to approve payment to [Purcell] according to its interpretation of the contract rather than his.'" Jones, 895 at 880-81 (quoting McDowell-Purcell, 370 So. 2d at 944) (emphasis added in Jones). The Jones Court then concluded its analysis as follows: "Thus, in Roquemore, Hardin, and Dampier, the writ of mandamus issued, as McDowell-Purcell explains, only after the discretion of state officials had been exhausted. Consequently, mandamus was, in those cases, an available remedy to compel state agents to perform the essentially ministerial act of rendering payment for goods or services accepted. Cf. State of Alabama Highway Dep't v. Milton Constr. Co., 586 So. 2d 872 (Ala. 1991) (State Highway Department had no right to withhold payment from a construction company under a contractual clause held in an earlier opinion by this Court to be a void penalty provision)."15 1050271 insofar as Milton II was concerned and, as a result, the State officials had no discretion in the context of Milton II to dispute that the amount in question was due to be refunded. The refunding of that amount essentially became a ministerial act after the decision in Milton I. See also, e.g., Horn v. Dunn Bros., 262 Ala. 404, 409-10, 79 So. 2d 11, 16-17 (1955) ("The decree of 29 February 1952, established the taxpayer's right to a refund for taxes paid on interstate operations. All that remained to be done by the State Department of Revenue was the computation of such refund and the necessary certification to the comptroller. At leas[t], to that extent, the duties of the Commissioner were ministerial only."; disagreeing with the position of the commissioner that he had some discretion in the matter and was not governed by a "clear, legal duty under the circumstances."). 45 Jones, 895 So. 2d at 881 (emphasis added). Although the State defendants' brief to this Court agrees with the foregoing analysis as to the meaning of "liquidated" claims in the above-discussed cases, it does so in the context of arguments relating to the dispute over the extra work for which the jury returned a $2,350,000 verdict in Harbert's favor. The State defendants make essentially no argument in their briefs to this Court specifically contesting that portion of the trial court's judgment requiring the State defendants to pay to Harbert amounts equal to the liquidated damages withheld after August 15, 1991, and the retainage. As to the liquidated damages, the State defendants' brief provides this Court with no argument (although a portion of 1050271 Nor do the State defendants ask this Court to overrule 16 Milton I and Milton II as inconsistent with other decisions of this Court both before and since those cases were decided. 46 the State defendants' "Statement of Facts" suggests one) as to whether, how, or to what extent the State defendants took the position in the trial court that the State's alleged obligations were disputed, i.e, that the State's discretion as to those obligations was not exhausted (in the same manner the State's discretion was not exhausted in Jones, supra, and McDowell-Purcell, supra), rather than obligations of an essentially ministerial nature like those in Milton II (see n.15, supra) and Roquemore, Hardin, and Dampier. Further, it may well be that Milton II is distinguishable on the ground set out in note 15, supra; the State defendants do not make this argument, however.16 Similarly, the brief of the State defendants does not offer an explanation as to whether, how, or to what extent the State defendants challenged at trial their alleged obligation to pay the retainage to Harbert as distinguishable from the ministerial obligation of the State to pay for those goods or services contracted for, "accepted," and "approved" in Roquemore, Hardin, and Dampier. Nor do they ask us to 1050271 47 overrule those decisions. Because under the arguments and circumstances presented in this case I do not read the main opinion as inconsistent with the general principles discussed herein, I concur in that opinion.	March 7, 2008
99ed22b7-2bc5-4867-ab7b-59c8d26dc3f4	United Land Corporation v. Drummond Company, Inc.	N/A	1061342	Alabama	Alabama Supreme Court	REL: 03/07/08 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, 2007-2008 _________________________ 1061342 _________________________ United Land Corporation v. Drummond Company, Inc. Appeal from Tuscaloosa Circuit Court (CV-02-673) LYONS, Justice. United Land Corporation appeals from a summary judgment in favor of Drummond Company, Inc., in an action arising from a dispute concerning leases entered into by United's and Drummond's predecessors in interest granting Drummond's 1061342 2 predecessor in interest the right to strip-mine coal from property owned by United. We affirm. I. Facts and Procedural History This is the second time this case has been before this Court. For a full discussion of the factual and procedural history underlying this dispute, see our opinion in Drummond Co. v. Walter Industries, Inc., 962 So. 2d 753 (Ala. 2006) ("Drummond I"). In Drummond I, this Court affirmed in part and reversed in part the judgment of the trial court and remanded the case for further proceedings regarding United's breach-of-contract and fraud counterclaims against Drummond. The trial court's subsequent summary judgment in favor of Drummond on United's counterclaims is the basis of this second appeal. We will hereinafter discuss the facts and procedural history only as necessary for our discussion of the issues presented on this appeal. The predecessors of United and Drummond entered into three strip-mining leases for properties owned by United; these leases are referred to as the Beltona lease, the Kellerman lease, and the Flat Top lease. The leases were executed in the late 1960s and early 1970s, and expired 1061342 3 according to their express terms by the mid-1980s. In Drummond I, this Court agreed with the trial court's finding that after these leases expired "Drummond, with United's consent, remained on United's properties, [and] the relationship between Drummond and United became a tenancy at will." 962 So. 2d at 773, 778. Each lease granted Drummond the right to strip-mine coal from property covered by the particular lease; in exchange, Drummond was to pay royalties to United for each ton of coal removed from the property. In strip-mining, coal is recovered by removing rock and debris, also known as "overburden," from the surface. This process exposes a seam of coal, which is then removed. United alleged that Drummond breached the leases by failing to mine and remove all the economically recoverable coal from the properties as it says Drummond was obliged to do under the leases. United also alleged that Drummond affirmatively misrepresented that it had recovered all the economically recoverable coal on the properties. Paragraph 1 of each lease contains substantially similar language regarding Drummond's mining obligations. Paragraph 1 of the Flat Top lease provides: 1061342 4 "1. The lessee is hereby authorized to take possession of the Pratt (upper and lower) and American seams of coal in, on and under the said lands on and after the first day of the term covered by this Agreement. Lessee shall begin the mining of coal hereunder as soon as practicable after the beginning of said term, and shall continue such mining with promptness and diligence during the term covered hereby, and the lessee agrees to mine and remove all coal in said seams in, on and under said lands which can be economically recovered by generally accepted methods of strip mining subject to the following conditions: "(a) Lessee shall mine said coal in accordance with the best practice so that there will be no needless loss or waste and to the satisfaction of Lessor; "(b) Lessee shall undertake to recover all mineable coal as follows: (To a recoverable depth up to seventy-five feet above the Pratt Upper Seam,) provided that Lessee shall not be obligated to mine in areas where by reason of terrain or inherent nature or conditions of the strata the removal of the coal is not practicable; "(c) In general, Lessee shall mine all mineable coal that [a] prudent owner would mine if he were conducting his own operation." The difference in the three leases is found in subparagraph 1(b). In the Beltona lease, subparagraph 1(b) states: 1061342 5 "Lessee shall undertake to recover all mineable coal in Jefferson and Black Creek Seams where the overburden does not exceed 150 feet over the Black Creek Seam, provided that Lessee shall not be obligated to mine in areas where by reason of terrain or inherent nature or conditions of the strata the removal of the coal is not practicable." In the Kellerman lease, subparagraph 1(b) states: "Lessee shall undertake to recover all mineable coal as follows: Where the overburden does not exceed eighty (80) feet, provided that Lessee shall not be obligated to mine in areas where by reason of terrain or inherent nature or conditions of the strata the removal of the coal is not economical or practicable." Regarding the payment of royalties to United, paragraph 7 of each lease states: "Lessee's obligations to pay minimum royalties shall cease and be of no effect if and when all recoverable coal agreed to be mined by Lessee from said lands shall have been mined and removed therefrom." Paragraph 9 of each lease further states: "If the Lessee should fail to mine all mineable coal in accordance with Paragraph 1(a), 1(b), and 1(c) above prior to the termination of this lease or any extension thereof, the engineers of Lessor shall estimate the quantity of such mineable coal and the Lessee shall pay the Lessor royalty at the actual royalty rate provided in this contract for coal to be mined ...." Paragraph 12 of each lease states: "The Lessor and its engineers and agents and attorneys shall have the right and privilege at all 1061342 6 times of entering upon, examining and surveying said mines and lands and inspecting, examining and verifying all books, accounts, statements, sales, maps and plans of the Lessee for the purpose of ascertaining the amount of coal taken from said lands, and the manner in which the mining operations of the Lessee are being conducted thereon. Lessee agrees, that upon notice from Lessor in writing requesting it so to do, it will furnish to Lessor, within sixty (60) days from date of the notice, and every six (6) months thereafter, during the term of this lease, a survey and map showing, in plat, the extent and progress of all stripping operations and the thickness of coal at reasonable intervals, said survey and map to be prepared and certified by a Registered Engineer." As set forth in Drummond I, the trial court, in the proceedings that led to the first appeal, disposed of United's breach-of-contract counterclaim against Drummond as follows: "'The next consideration is defendant United Land Company's counterclaim. Count 1 claims breach of contract as to the Beltona, Kellerman, and Flat Top leases. These leases having all expired in the 1980's, and [Drummond] having mined under a tenancy at will subsequently to the expiration of said leases, [Drummond] is entitled to judgment as a matter of law on count one (1).'" 962 So. 2d at 768. This Court then reversed the judgment of the trial court, stating: "United next argues that the trial court erred in dismissing its counterclaims alleging breach of the Beltona, Kellerman, and Flat Top leases. On appeal, United argues that '[a]s a tenant at will ... Drummond should have continued to bear the obligations that it bore under the expired leases 1061342 A fourth lease, the Cluster Springs lease, was addressed 1 in Drummond I. However, United's breach-of-contract and fraud counterclaims involved only the Beltona, Kellerman, and Flat Top leases. See Drummond I, 962 So. 2d at 764. 7 from which those tenancies emanated.' (United's brief at 68.) "We must agree with United. If Drummond's right to remain on United's properties was governed by the terms of the expired leases, and we have held that it was, Drummond's obligations to United also continued to be governed by the terms of those expired leases. Whether the parties' agreements created formal lease agreements or tenancies at will, their relationship was governed by the terms stated in the four original leases.[1] "Therefore, United should have been allowed to proceed with its claims that Drummond breached the terms of those leases, including, among others, that Drummond failed to pay minimum royalties (if required under the terms of the expired leases); that Drummond failed to continuously mine (if required under the terms of the expired leases); and that Drummond failed to provide documentation of its mining plans (if required under the terms of the expired leases). We express no opinion on the merits of United's breach-of-contract claim; we simply conclude that the trial court improperly dismissed this claim. "The trial court erred in dismissing United's claim for breach of the tenancy at will. We reverse this aspect of the trial court's summary judgment and remand the case for further proceedings as to that aspect consistent with this opinion." Drummond I, 962 So. 2d at 786. 1061342 8 In proceedings that led to the first appeal, the trial court also disposed of United's counterclaim against Drummond alleging fraud on three theories. First, the trial court held that the rights under the earlier leases had expired by the time the alleged misrepresentations were made. In Drummond I, this Court could not reconcile this conclusion with the trial court's finding of the existence of a tenancy at will, a conclusion this Court upheld. 962 So. 2d at 787. This Court also noted that the trial court offered, as reasons to dispose of the fraud claim, the alternative theories of insufficient pleading of fraud and inconsistency of allegations in the complaint. 962 So. 2d at 788. This Court affirmed the judgment of the trial court insofar as it held that the pleading of fraud as to the Beltona and Kellerman leases was insufficient, but we reversed its judgment as to the Flat Top lease. 962 So. 2d at 788-89. Lastly, this Court in Drummond I also rejected the trial court's alternative holding that United's allegations regarding the Flat Top lease were inconsistent. 962 So. 2d at 788. This Court, in Drummond I, then concluded: "The elements of a fraud claim are (1) a false representation, (2) of a material existing fact, (3) reasonably relied on by the claimant (4) who 1061342 9 suffered damage as a proximate consequence of the misrepresentation. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143 (Ala. 2003). United established evidence tending to show that Drummond represented that it had mined all the strippable coal from the Flat Top property; that Drummond's representation was false; that United relied on that representation; and that United sustained damages as a result of its reliance. The record contains evidence to indicate both that Drummond did, and did not, mine all the strippable coal from the Flat Top property. Thus, a factual dispute as to this issue has been presented. Accordingly, as to the Flat Top property, the trial court improperly entered a judgment in favor of Drummond. "We conclude that in Count II of its counterclaim United failed to plead its fraud claim with sufficient specificity as to the Beltona and Kellerman leases, and we affirm this aspect of the trial court's summary judgment entered on Count II of United's counterclaim. As to United's allegations in Count II regarding the Flat Top property, the trial court improperly entered a summary judgment in favor of Drummond. We reverse this aspect of the summary judgment." Drummond I, 962 So. 2d at 788-89. Drummond then filed an application for rehearing. Relevant to this second appeal, Drummond's application for rehearing asserted that this Court improperly reversed the summary judgment entered by the trial court on United's fraud counterclaim with respect to the Flat Top lease. Drummond argued that there is no evidence, much less substantial evidence, supporting United's fraud counterclaim. This Court 1061342 10 overruled Drummond's application for rehearing on February 16, 2007. On remand, the parties did not conduct additional discovery. Drummond moved for a summary judgment challenging the sufficiency of the evidence on United's breach-of-contract counterclaim and fraud counterclaim (as to the Flat Top lease). On May 30, 2007, the trial court entered a summary judgment for Drummond on the fraud counterclaim, entered a partial summary judgment as to damages, and denied the summary-judgment motion as to United's breach-of-contract claim. With respect to the fraud claim, the trial court held: "As to the fraud claim there are disputed facts, but considering the evidence most favorably to the [United], [Drummond] is entitled to summary judgment, because [United] cannot prove one element of the fraud claim. In order to recover on a fraud claim, the plaintiff must present substantial evidence that the defendant made a misrepresentation of a material fact. A fraud claim must be specifically plead[ed]. [United] claims that in a August 1999 letter from [Drummond] to [United], [Drummond] made a misrepresentation of material fact. The letter read in pertinent part, regarding the Flat Top Mine; 'this inventory has been depleted.' [United] allege[s] that [Drummond] was representing that the word inventory was referring to coal reserves. The evidence is undisputed that in the coal mining industry, the word inventory refers to stockpiles of coal that have been mined. There is no evidence that the statement that 'the inventory at the Flat Top Mine has been depleted' was not true. Therefore, [United] failed to present 1061342 11 substantial admissible evidence that [Drummond] made a misrepresentation of a material fact, and summary judgment on the fraud claim is granted in favor of the defendant Drummond Company Inc., and against [United]." On the breach-of-contract claim, the trial court held: "In construing the contracts, this court must give the generally accepted meaning to contract terms. There is a legal dispute as to the meaning of the terms contained in paragraph 1(a), (b), and (c) of the contract. Paragraphs 1(a) and (c), although not ambiguous, leave room for interpretation, because the paragraphs do not define the terms, 'best practice,' and 'all coal that a prudent owner would mine if he were conducting his own operations.' However paragraph 1(b) is not ambiguous and the depth listed in that paragraph is found to be the maximum depth that [Drummond] was required to mine. "The only evidence presented on the issue of how deep [Drummond] mined, is the affidavit of J. Michael Tracy. His testimony was that [Drummond] mined to a depth greater than the depths required under the lease, be they minimum or maximum depths. This evidence is undisputed. Therefore, [Drummond] is entitled to partial summary judgment on the issues of damages under paragraph 9 of the leases, because [United] would have to prove that [Drummond] breached its obligations under paragraphs 1(a), (b), and (c) as a condition precedent to recovering these damages under paragraph 9. "There are disputed facts, which prohibit summary judgment on the issue of whether or not [Drummond] mined all the economically recoverable coal. Therefore, summary judgment is denied on the breach of contract claim. "This case will proceed to trial on [United's] breach of contract claim, with the recoverable damages limited to the clause of the leases 1061342 12 providing for minimum royalties, should the jury find that [Drummond] failed to mine all economically recoverable coal." Two days later on June 1, 2007, United moved for reconsideration of the summary-judgment order. On June 7, 2007, just seven days after it acknowledged, in the summary- judgment order, the existence of disputed issues of fact on the breach-of-contract claim, the trial court, without explanation, amended its previous order and entered a summary judgment in favor of Drummond as to all United's remaining claims. United then appealed to this Court. II. Standard of Review "The standard by which this Court will review a motion for summary judgment is well established: "'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); § 12-21-12(d)[,] Ala. Code 1975. Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of 1061342 13 impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). "'In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we 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).'" Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)). III. Analysis A. Breach-of-Contract Claim In Drummond I, this Court stated: "We express no opinion on the merits of United's breach-of-contract claim; we simply conclude that the trial court improperly dismissed this claim." 962 So. 2d at 786. United argues that the trial court erred in again entering a summary judgment in favor of Drummond as to United's claim alleging that Drummond breached the leases. Paragraph 1 of each lease sets out Drummond's obligation to mine and remove all coal that can be economically recovered by 1061342 14 generally accepted methods of strip-mining and is expressly subject to three subparagraphs, 1(a), 1(b), and 1(c). Subparagraph 1(b) of each lease sets out that Drummond must recover all mineable coal where the overburden does not exceed a depth specific to each property. We must determine whether subparagraph 1(b) of each lease establishes the minimum or maximum depth to which Drummond must mine. The trial court, as previously noted, held as follows: "Paragraphs 1(a) and (c), although not ambiguous, leave room for interpretation, because the paragraphs do not define the terms, 'best practice,' and 'all coal that a prudent owner would mine if he were conducting his own operations.' However paragraph 1(b) is not ambiguous and the depth listed in that paragraph is found to be the maximum depth that [Drummond] was required to mine." (Emphasis added.) The trial court further found that "[t]he only evidence presented on the issue of how deep [Drummond] mined, is the affidavit of J. Michael Tracy. His testimony was that [Drummond] mined to a depth greater than the depths required under the lease ...." If Drummond has failed to mine and remove the coal it was required to mine and remove under the leases, United contends that Drummond is obligated to pay a royalty to United, notwithstanding that it failed to mine the coal. On the other hand, if subparagraph 1(b) expresses 1061342 15 a minimum and if the evidence is undisputed that Drummond exceeded that minimum, then Drummond is entitled to a summary judgment. First, United contends that contrary to the trial court's findings, subparagraph 1(b) of the leases is ambiguous and is more easily read as establishing the minimum amount of coal that Drummond was obligated to mine. United notes that "a contract must be construed as a whole and, whenever possible, effect must be given to all its parts." Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 698, 299 So. 2d 289, 295 (1974). Thus, beginning with the main text of the lease, United argues that paragraph 1 broadly requires Drummond to mine and remove all economically recoverable coal and that subparagraphs 1(a), 1(b), and 1(c) then establish conditions, not limitations, on this obligation, which therefore constitute Drummond's minimum mining obligations. United further asserts that subparagraphs 1(a) and 1(c) unambiguously establish conditions on Drummond's broad mining obligations, with subparagraph 1(a) requiring Drummond to use the best mining practices and to minimize waste and subparagraph 1(c) requiring Drummond to mine as a prudent owner would. United argues that the conditions of 1061342 16 subparagraphs 1(a) and 1(c) suggest a corresponding reading of 1(b) that imposes an additional condition, rather than a limitation, on Drummond's obligation. That condition, United says, required Drummond to, at a minimum, recover all mineable coal where the overburden does not exceed the specified depth; the maximum amount of coal Drummond would be required to recover would depend on future market conditions and costs of mining. United also contends that the leases are ambiguous because, it says, they are reasonably susceptible to a reading requiring United to show only that Drummond failed to mine all the economically recoverable coal. And because, United says, it produced evidence indicating that Drummond failed to mine all economically recoverable coal, United is entitled to a trial on the issue of Drummond's alleged breach of the leases. Drummond agrees with United that paragraph 1 of the leases establishes a broad obligation to mine and to recover economically recoverable coal, but it argues that this obligation was expressly "subject to" limitations set out in subparagraphs 1(a), 1(b), and 1(c). Drummond notes this Court's recognition in Pardue v. Citizens Bank & Trust Co., 287 Ala. 50, 56, 247 So. 2d 368, 372 (1971), of the construction of the words "subject to" by other courts, 1061342 17 including our recognition that "[i]n Texaco, Inc. v. Piggot, D.C., 235 F. Supp. 458 [(S.D. Miss. 1964)], aff'd 358 F.2d 723 (5th Cir. [1966]), it was held that the words 'subject to' as used in a deed mean 'subservient to' or 'limited by' and are 'words of qualification showing the grantor's intent not to grant an absolute title.'" Thus, Drummond contends that the broad obligation in paragraph 1 was "limited" or "qualified" by the provisions in subparagraph 1(b) requiring Drummond to mine to specified depths. Drummond therefore argues that the trial court's judgment should be affirmed because, it says, the evidence is undisputed that Drummond complied with its obligations under the plain language of the leases. Drummond notes that it is axiomatic that "[c]ontract interpretation is guided by the intent of the parties, which, absent ambiguity, is evidenced by the plain language of the contract." Woodmen of World Life Ins. Soc'y v. Harris, 740 So. 2d 362, 368 (Ala. 1999). Drummond asserts that it has presented undisputed evidence indicating that it mined all economically recoverable coal up to and exceeding the depths of the overburden specified in subparagraph 1(b) of each lease and that in doing so mined as if Drummond were a prudent owner mining its own property. 1061342 18 Drummond further asserts that because, it says, United has presented no evidence indicating that Drummond did not comply with the leases, United has created a strained interpretation of the standard lease in order to argue that the leases are ambiguous. It is undisputed that Drummond mined to the depths specified in subparagraph 1(b) of the three leases. United, in its brief to this Court, and consistent with its view that subparagraph 1(b) expresses only a minimum, states that "the evidence showed that Drummond had mined to the depth listed in Subparagraph 1(b)" and "Drummond mined and removed coal in amounts far exceeding those stipulated in Subparagraph 1(b)." United's brief at pp. 8 and 19, respectively. We agree with the trial court that subparagraph 1(b) of each lease unambiguously specifies the maximum depth to which Drummond was required to mine overburden under the terms of the lease. Paragraph 1 of each of the three leases states that Drummond "agrees to mine and remove all coal in said seams in, on and under said lands which can be economically recovered by generally accepted methods of strip mining subject to the following conditions ...." (Emphasis added.) Thus, the generality of the foregoing statement is limited by 1061342 19 the conditions of the subparagraphs, and subparagraph 1(b) is a condition on the obligation to mine economically recoverable coal. Likewise, subparagraph 1(b) in each of the three leases begins with the phrase, "Lessee shall undertake to recover all mineable coal ...." then identifies a specific site and depth of overburden, and adds the proviso, "provided that Lessee shall not be obligated to mine in areas where by reason of terrain or inherent nature or conditions of the strata the removal of the coal is not practicable." The expansive introductory language of subparagraph 1(b) in each of the leases ("all mineable coal") is narrowed by the subsequent description of the specific depth of overburden to be mined. The reference to "areas" in the proviso must be reasonably read as the geographical area described within the subparagraph. Also, subparagraphs 1(a) and 1(c), dealing with the Drummond's obligation to use the "best practice" and to deal with the property as would a prudent owner mining coal for his own account, respectively, are conditions that harmonize rather than conflict with the limit established in subparagraph 1(b) of each lease. 1061342 20 United's contention that accepting Drummond's interpretation -- that subparagraph 1(b) establishes a maximum -- means that Drummond violated the lease by mining to depths in excess of the depths set in subparagraph 1(b) overlooks the unusual culture of laxity in the relationships between these parties as they over the years acquiesced in conduct inconsistent with the express terms of the leases. As this Court addressed in detail in Drummond I, these leases were entered into in the late 1960s and early 1970s, yet the parties continued to operate under them long after the stated expiration date of the initial terms of each lease. Drummond simply continued mining over the years. United had the right pursuant to paragraph 12 of the leases to enter upon the mines and lands "for the purpose of ascertaining the amount of coal taken from said lands, and the manner in which the mining operations of the Lessee are being conducted thereon" and, on request, to obtain "a survey and a map showing, in plat, the extent and progress of all stripping operations and the thickness of coal at reasonable intervals." United and its predecessors in fact audited Drummond's books and records. Nevertheless, United repeatedly accepted royalty payments from Drummond over the years without question as to 1061342 Our disposition of the breach-of-contract counterclaim 2 renders moot the controversy over the proper interpretation of paragraph 9 of the leases. 21 the extent to which the location of the coal that made the basis of the royalty payment exceeded the area described in subparagraph 1(b). That such construction of subparagraph 1(b) places Drummond in default of the terms of the lease by mining too much coal does not, under the circumstances here presented, justify disregard of the clear import of subparagraph 1(b). Accordingly, we conclude that subparagraph 1(b) in each of the three leases stipulates the maximum depth to which Drummond must mine economically recoverable coal. Because there is undisputed evidence that Drummond mined to the depths specified in each of the three leases, the trial court properly entered a summary judgment in favor of Drummond on United's breach-of-contract counterclaim. 2 B. Fraud Claim United argues that the trial court erred in two respects by again entering summary judgment in favor of Drummond on United's fraud counterclaim. First, United asserts that the trial court violated the law-of-the-case doctrine by reentering a summary judgment on that counterclaim. Second, United asserts that the record contains substantial evidence 1061342 22 indicating that Drummond's statement regarding the "inventory" of coal at the property covered by the Flat Top lease was fraudulent. United argues that this Court's decision in Drummond I established that United is entitled to a jury trial on its fraud counterclaim and that the trial court violated the law- of-the-case doctrine by entering a summary judgment on United's fraud counterclaim instead of allowing that counterclaim to be heard by a jury. See Gray v. Reynolds, 553 So. 2d 79, 81 (Ala. 1989) ("Gray II") ("on remand the issues decided by an appellate court become the 'law of the case,' and ... the trial court must comply with the appellate court's mandate"). United specifically looks to this Court's statements, in Drummond I, that "United established evidence tending to show that Drummond represented that it had mined all the strippable coal from the Flat Top property" and "that Drummond's representation was false." 962 So. 2d at 788. Accordingly, United contends that the trial court's entry of a summary judgment on remand based on its finding that United failed to present substantial evidence indicating that Drummond misrepresented a material fact contradicts this 1061342 23 Court's holding in Drummond I and therefore violates the law- of-the-case doctrine. Drummond responds by arguing that the law-of-the-case doctrine is inapplicable here. Drummond states first that it has difficulty imagining anything more undermining to the judicial system than allowing nonmeritorious claims to proceed to a trial before a jury. Arguing that United's reliance on the law-of-the-case doctrine is misplaced, Drummond notes this Court's statement in Gray II, 553 So. 2d at 81, that "[w]hile we are bound to carry out the holding as to the precise question before the Court on the first appeal, we are not necessarily bound to carry out literally the dicta pertaining to questions that were not then presented." (Emphasis added.) Drummond essentially contends that this Court's holding, in Drummond I, that evidence existed tending to show that Drummond had misrepresented a material fact to United was merely dicta. See Gray II, 553 So. 2d at 81. In Gray v. Reynolds, 514 So. 2d 973, 975-76 (Ala. 1987) ("Gray I"), a breach-of-contract action, the trial court held that an enforceable contract did not exist between the parties. In Gray I, this Court held that an enforceable contract did exist between the parties and noted that the 1061342 24 defendant had breached the contract. 514 So. 2d at 975-76. As set forth in Gray II, on remand the trial court held that the defendant was not liable for breach of contract "because [the plaintiff] had failed to act in good faith and to make efforts to mitigate his damages," and the plaintiff again appealed. 553 So. 2d at 81. This Court held that the second appeal was not barred by the law-of-the-case doctrine because, on the first appeal, the holding of this Court did not go to the ultimate issue -- liability for breach of the contract. Gray II, 553 So. 2d at 81. Drummond contends that this Court did not reach the merits of United's fraud counterclaim in Drummond I, because, it says, the trial court in proceedings that led to the first appeal held only that the fraud counterclaim was insufficiently pleaded and did not render a decision on the merits of that claim. Drummond notes that this Court has held that an "appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court records presenting that argument to the trial court before or at the time of submission of the motion for summary judgment." Ex parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000). Therefore, 1061342 25 Drummond asserts that this Court's holding in Drummond I on the issue whether the fraud counterclaim was sufficiently pleaded is the only holding that constitutes law of the case. In response to Drummond's argument that United's reliance on the law-of-the-case doctrine is misplaced, United asserts that this Court's conclusions on the sufficiency of the evidence supporting the fraud counterclaim are an operative portion of the opinion in Drummond I and are not merely dicta. United argues that this Court's statements in Drummond I as to the merits of the fraud counterclaim were necessary to this Court's decision because if the record had lacked evidence tending to show fraud, this Court could have affirmed the trial court's judgment on that ground. Last, United asserts that the record of the first appeal showed and Drummond's application for rehearing argued that the evidence is undisputed that the term "inventory" as used in the coal- mining industry refers to stockpiles of coal that have already been mined. In Drummond I this Court stated: "The elements of a fraud claim are (1) a false representation, (2) of a material existing fact, (3) reasonably relied on by the claimant (4) who suffered damage as a proximate consequence of the misrepresentation. Waddell & Reed, Inc. v. United 1061342 26 Investors Life Ins. Co., 875 So. 2d 1143 (Ala. 2003). United established evidence tending to show that Drummond represented that it had mined all the strippable coal from the Flat Top property; that Drummond's representation was false; that United relied on that representation; and that United sustained damages as a result of its reliance. The record contains evidence to indicate both that Drummond did, and did not, mine all the strippable coal from the Flat Top property. Thus, a factual dispute as to this issue has been presented. Accordingly, as to the Flat Top property, the trial court improperly entered a judgment in favor of Drummond." 962 So. 2d at 788. This conclusion must be read in context with what this Court held as to the breach-of-contract counterclaim in Drummond I. As we previously noted, this Court held: "Therefore, United should have been allowed to proceed with its claims that Drummond breached the terms of those leases, including, among others, that Drummond failed to pay minimum royalties (if required under the terms of the expired leases); that Drummond failed to continuously mine (if required under the terms of the expired leases); and that Drummond failed to provide documentation of its mining plans (if required under the terms of the expired leases)." 962 So. 2d at 786 (emphasis added). Continuing, we stated: "We express no opinion on the merits of United's breach-of-contract claim; we simply conclude that the trial court improperly dismissed this claim." 962 So. 2d at 786. Our previous findings in Drummond I as to the fraud 1061342 The absence of materiality makes it unnecessary to 3 address United's assertion that the record contains substantial evidence indicating that Drummond's statement regarding the "inventory" at the property covered by the Flat Top lease was fraudulent. Because we do not deem it necessary to revisit our 4 earlier holding on the premise that it was wrongly decided, we need not deal with the effect of § 12-2-13, Ala. Code 1975 ("The Supreme Court, in deciding each case when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion, at that time is law, without any regard to such former ruling on the law by it; but the right of third persons, acquired on the faith of the former ruling, shall not be defeated or interfered with by or on account of any subsequent ruling."). 27 counterclaim therefore of necessity depended on the existence of contractual rights that made any alleged misrepresentation material. As we noted in Drummond I, "[t]he elements of a fraud claim are (1) a false representation, (2) of a material existing fact ...." 962 So. 2d at 788. Because we have concluded that Drummond is entitled to a summary judgment on the breach-of-contract claim, any misrepresentation as to the absence of "strippable coal" from the property covered by the Flat Top lease at sites of necessity beyond the area described in subparagraph 1(b) is drained of its materiality. The law- 3 of-the-case doctrine does not apply in a setting where, as here, the holding is necessarily contingent on resolution of other issues in the case. The trial court properly entered 4 1061342 28 a summary judgment in favor of Drummond on United's fraud counterclaim. IV. Conclusion We affirm the trial court's summary judgment in favor of Drummond on United's breach-of-contract and fraud counterclaims. AFFIRMED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., concurs in part and concurs in the result. 1061342 29 MURDOCK, Justice (concurring in part and concurring in the result). Both parties refer to the issue before us as whether paragraph 1(b) of the leases describes a "minimum" or a "maximum" mining requirement. To couch the issue in this manner (and particularly to discuss paragraph 1(b) in terms of the depth to which Drummond must mine) is confusing, at least to this judge. I believe this confusion results from the parties' failure to recognize, or at least to clearly articulate, that, properly read, paragraph 1(b) describes both the minimum and the maximum area where Drummond was required to mine. That is, insofar as what was required of Drummond under the leases, paragraph 1(b) defines the area –- specifically, the area on a horizontal plane –- beneath which Drummond was required to mine all coal (subject of course to the qualification of economic recoverability and the other qualifications stated in paragraph 1). It is true that paragraph 1(b) of each lease does contain a numerical, vertical measurement. As the main opinion points out, however, it is a vertical measurement of overburden, not coal. The effect of using this measurement is to guide the parties horizontally to the areas where Drummond was required 1061342 30 to mine. It could have done so through the use of a metes- and-bounds description applicable to the surface of the property or by means of an outline drawn on a surface map. Instead, paragraph 1(b) simply explains that Drummond is required to mine in those areas where the distance between the surface of the land and the top of the coal seam is less than a certain measurement. What the leases do not do, at least not with a numerical measurement, is specify how deeply Drummond must mine within the specified area once it reaches the top of the coal seam. Instead, the leases provided that, in the areas where the overburden is not greater than the specified amount, Drummond is to mine all coal found within the identified seams that (a) is economically recoverable, (b) subject to the "best practices" and "prudent owner" standards found in paragraphs 1(a) and 1(c), respectively. On the record before us, there is no genuine issue of fact but that Drummond did this; therefore, summary judgment in its favor was appropriate as to any claim alleging that it failed to mine enough coal. Consistent with the foregoing, paragraph 1(b) also does not prescribe a numerically measured depth, within each coal seam, beneath which Drummond was not permitted to mine. (Nor 1061342 31 do the leases prescribe a horizontal dimension, other than the horizontal dimensions of the coal seam itself, beyond which Drummond was not permitted to mine.) It is for this reason that Drummond also was entitled to a summary judgment as to any claims that it exceeded some alleged limitation on the coal it could mine under the leases. As to United's fraud claim, I fully concur in the well- reasoned analysis provided by the main opinion. In so doing, I wish to emphasize that that analysis does not involve an acceptance of the definition of "inventory" that was accepted by the trial court or an acceptance of the trial court's view of the undisputed nature of the evidence supporting that definition.	March 7, 2008
144cdf8a-2d30-472e-b72f-d24c9bc80287	Ex parte Margaret Dabbs. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Margaret Dabbs v. SRE, Inc., d/b/a Southern Real Estate)	N/A	1070606	Alabama	Alabama Supreme Court	rel: 04/25/2008 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, 2007-2008 _________________________ 1070606 _________________________ Ex parte Margaret Dabbs PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Margaret Dabbs v. SRE, Inc., d/b/a Southern Real Estate) (Escambia Circuit Court, CV-05-306; Court of Civil Appeals, 2060531) BOLIN, Justice. The petition for the writ of certiorari is denied. 1070606 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. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock, JJ., concur.	April 25, 2008
76d1a58a-092e-477b-a246-a75b9e95fa03	Ex parte Vulcan Materials Company. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: James Blizard d/b/a Blizard Construction Company and Hollywood Materials v. Jeffrey Chandler and Vulcan Materials Company)	N/A	1051184	Alabama	Alabama Supreme Court	This case has previously been assigned to other Justices 1 on this Court. It was reassigned to Justice Woodall on January 17, 2008. Rel 04/25/08 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, 2007-2008 _________________________ 1051184 _________________________ Ex parte Vulcan Materials Company PETITION FOR WRIT OF MANDAMUS (In re: James Blizard d/b/a Blizard Construction Company and Hollywood Materials v. Jeffrey Chandler and Vulcan Materials Company) (Jackson Circuit Court, CV-00-259) WOODALL, Justice.1 1051184 Vulcan and Blizard dispute whether the verdict form is 2 inconsistent regarding which of the defendants is responsible for the compensatory-damages award. That dispute is beyond the scope of this petition, and nothing in this opinion is to be construed as determinative of whether the verdict is inconsistent in form or substance. 2 This petition for writ of mandamus seeks review of a trial court's order regarding permissible posttrial discovery in response to a motion for a remittitur of a punitive-damages award. We deny the petition in part and grant it in part. I. Facts James Blizard, doing business as Blizard Construction Company and Hollywood Materials (collectively referred to as "Blizard"), sued Vulcan Materials Company ("Vulcan") and Jeffrey Chandler. The trial court submitted the case to a jury on counts of breach of contract, various species of fraud, intentional interference with contractual or business relations, and civil conspiracy. The jury returned a verdict for Blizard on claims of breach of contract and intentional interference with business relations, awarding compensatory damages of $130,000 and punitive damages of $3 million.2 According to the parties, the trial court entered judgment on the jury verdict on February 1, 2006. 1051184 3 On March 1, 2006, Vulcan filed a "Renewed Motion for Judgment as a Matter of Law, or, in the Alternative, for New Trial, or, in the Further Alternative, for Remittitur and Constitutional Reduction of Punitive Damages." On March 9, 2006, Blizard served Vulcan with a postjudgment request for production of documents ("the request"). The request sought, in pertinent part: "2. Any and all documents, including but not limited to, internal memoranda, press releases, notes, e-mail or correspondence circulated within Vulcan regarding this case and/or the verdict in this case. ".... "8. Any and all balance sheets, income statements and/or financial statements generated by Vulcan for the past five (5) years. ".... "10. Any and all documents, including but not limited to memoranda, reports and/or correspondence, whether prepared by you, your agents, employees or attorneys, that were provided to independent auditors and/or consultants regarding any other litigation against Vulcan in preparation of the Financial Reports, Annual Reports, and/or other required reports relating to Vulcan's finances for the past five (5) years or since this case has been pending, whichever is greater. "11. Federal corporate tax returns for Vulcan for the past five (5) years. 1051184 4 "12. State corporate tax returns for Vulcan for the past five (5) years. "13. Audit reports prepared by Vulcan's independent auditors for the past five (5) years. "14. All documents and/or working papers provided to you by your independent auditors which were used to determine 'materiality' in the audited financial statements during the periods described above. ".... "19. Any and all copies of the Minutes of each meeting of the Vulcan Board of Directors or Trustees during the past five (5) years. ".... "21. Any and all reports and any and all statements which Vulcan has made to its stockholders within the past five (5) years. "22. Copies of the complaints in each lawsuit filed within the last five years in which Vulcan is named as a defendant. ".... "24. Any and all documents, records, correspondence, e-mails, memos, statements, reports, papers or typed, printed or handwritten materials relating to the knowledge which Vulcan and/or its directors, managers or executive officers may have had during the past five (5) years with regard to verdicts and/or judgments rendered in the courts of Alabama during the past five (5) years. "25. Any and all pleadings and/or documents that Vulcan has filed in other cases in the State of 1051184 5 Alabama in which the excessiveness of punitive damages was challenged. "26. A copy of all pleadings or documents that Vulcan has filed (or someone has filed on its behalf) in the state of Alabama or any other state in which it argued (even indirectly) it was entitled to punitive damages. "27. An itemization of the fees and expenses paid to any attorney for the defense of this case. ".... "35. Please supplement with updated information all your previous responses to requests for production." Blizard also served Vulcan with postjudgment interrogatories ("the interrogatories"). The interrogatories stated, in pertinent part: "20. State whether or not there have been, or are now, lawsuits pending against Vulcan claiming injury or damage from wrongful interference with business or contractual relations, improper restraint of trade, and/or improper price fixing. If so, for each lawsuit state: "(a) the date of the filing of each such lawsuit; "(b) the court in which such lawsuit was filed; "(c) the nature of each such lawsuit; "(d) the names and addresses of all parties, including plaintiffs and defendants to each such lawsuit; 1051184 6 "(e) a full and complete statement of the substance of all claims and allegations of each such suit; "(f) the jurisdiction in which each such action was filed; "(g) the jurisdiction in which each such action came or will come to trial if different from answer in (f); "(h) the disposition of each such lawsuit; and "(i) the name and address of each person or entity having possession, control or custody of any or all records relating to such legal action against this defendant involving such a claim or similar claim. ".... "23. Please state the total amount of attorney's fees and expenses reimbursed and/or paid to your attorneys in this case. ... ".... "24. Has Vulcan ever acquired rights in property which included an existing rock quarry and that another entity was operating (e.g., selling ag lime, producing rock for sale, etc.) in at the time of said acquisition? If so, please identify all such quarries and provide the name, address, and telephone number of each entity working in that quarry at the time of Vulcan's acquisition." On April 10, 2006, Vulcan filed responses to the request and interrogatories, objecting to these discovery requests on grounds of relevance, overbreadth, undue burden, and attorney- 1051184 7 client privilege. In particular, Vulcan objected to producing discovery of its financial wealth and condition, stating that such discovery was irrelevant because Vulcan was "expressly disclaim[ing]" reliance on its financial position as a reason for remitting the punitive damages awarded by the jury. On April 19, 2006, Blizard filed a motion to compel Vulcan to respond to the posttrial discovery. On April 26, 2006, the trial court held a hearing on the motion to compel. Subsequently, on May 8, 2006, the trial court issued an order compelling Vulcan to respond within 21 days to the request and the interrogatories. Eleven days later, on May 19, 2006, Vulcan filed a motion for a protective order and a conditional motion for a stay of all postjudgment discovery pending this Court's review of its petition for the writ of mandamus. In that motion, Vulcan stated that it had "already produced or [would] produce" documents sought in request no. 25, but limited to the last five years, and documents sought in request no. 26, but limited to those filed in the State of Alabama within the last five years. On May 23, 2006, the trial court denied the motion for a stay. It also denied the motion for a protective 1051184 8 order, with one pertinent exception. It regarded Vulcan's motion as moot as it related to requests no. 25 and no. 26, stating: "[Vulcan] represented to the court that it had already answered [Blizard's] request." On May 24, 2006, Vulcan filed its petition for a writ of mandamus, requesting an order directing the trial court to vacate its order requiring it to produce the information Blizard sought in the request and interrogatories listed above. More specifically, Vulcan argues that the trial court exceeded its discretion in ordering it to produce (1) all financial information it had generated within five years of the order; (2) information regarding Vulcan's involvement in, or knowledge of, other litigation without additional temporal or geographical restrictions; (3) minutes of meetings of its board of directors; (4) e-mail correspondence; (5) information relating to its acquisition of other quarries; (6) statements Vulcan made to its stockholders; (7) information regarding its attorney fees and litigation costs; and (8) supplementation of its preverdict discovery responses. II. Standard of Review 1051184 9 "The trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs ... to ensure the orderly and expeditious disposition of cases." Salser v. K.I.W.I., S.A., 591 So. 2d 454, 456 (Ala. 1991). Therefore, this Court will not interfere with a trial court's ruling on a discovery matter unless this Court "'determines, based on all the facts that were before the trial court, that the trial court clearly [exceeded] its discretion.'" Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (quoting Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998)). "A mandamus petition is a proper means of review to determine whether a trial court has [exceeded] its discretion in discovery matters." Ex parte Alabama Dep't of Human Res., 719 So. 2d 194, 197 (Ala. 1998). The petitioner seeking a writ of mandamus bears the affirmative burden of proving the existence of the conditions requisite for issuance of the writ. See Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). Mandamus relief is appropriate "when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute 1051184 10 harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party." Id. III. Analysis A. Blizard's Right to Posttrial Discovery of Vulcan's Financial Information The trial court's order, to the extent it granted Blizard's motion to compel production of the information Blizard sought in requests no. 8 and nos. 11-14, requires Vulcan to produce all financial information it generated within five years preceding the order. Vulcan first contends that the trial court erred in ordering it to produce that information despite Vulcan's concession "that its financial position does not warrant reduction of the punitive award." Petition, at 7. According to Vulcan, its "concession rendered that information irrelevant to the post-trial analysis of [the] punitive award." Id. (emphasis added). Vulcan's petition requires this Court to determine, as a question of first impression, whether a defendant who has filed a motion for a remittitur of punitive damages may preclude posttrial discovery of its financial information by stipulating that it 1051184 11 will not rely on its financial status as a ground for the remittitur. We answer that question in the affirmative. Under Rule 26(b)(1), Ala. R. Civ. P., a party "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." (Emphasis added.) Considerations relevant to a trial court's inquiry on a motion for a remittitur of punitive damages have been promulgated by the United States Supreme Court. In BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), that Court set forth three "guideposts" for determining whether a punitive-damages award offends the United States Constitution. Those guideposts are "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (discussing the guideposts set forth in BMW). 1051184 12 Additionally, in its review of a punitive-damages award, this Court considers the factors set forth in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989). Those factors include (1) the reprehensibility of the defendant's conduct; (2) the harm that actually occurred, or that is likely to occur, from the defendant's conduct; (3) the defendant's profit from its misconduct ("the profitability factor"); (4) the relationship between the defendant's financial position and the size of the punitive-damages award ("the relationship factor"); (5) the cost to the plaintiff of the litigation; (6) whether the defendant has been subject to criminal sanctions for similar conduct; and (7) other civil actions the defendant has been involved in arising out of similar conduct. See Shiv-Ram, Inc. v. McCaleb, 892 So. 2d 299, 317 (Ala. 2003) (discussing the Green Oil factors). Blizard says that the financial evidence he seeks is discoverable under two of these Green Oil factors. Specifically, he argues that the evidence is relevant (1) to the relationship factor, and (2) to the profitability factor. We disagree. 1051184 13 1. Relationship factor. "[T]he purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer ... from committing similar wrongs in the future." Green Oil, 539 So. 2d at 222 (emphasis added). Society's goal is to deter -- not to destroy -- the wrongdoer. Id. To effectuate that purpose, a punitive-damages award "'ought to sting in order to deter.'" Id. (quoting Ridout's Brown Serv., Inc. v. Holloway, 397 So. 2d 125, 127 (Ala. 1981) (Jones, J., concurring specially) (emphasis added)). "A party does not have a right to a Hammond hearing on the question of the adequacy of punitive damages." Ex parte Weyerhaeuser Co., 702 So. 2d 1227, 1229 (Ala. 1996) (emphasis added). "In regard to punitive damages, the purpose of the Hammond hearing [at which the Green Oil factors are considered] is to protect a defendant against due process violations arising from an award of excessive damages." Id. (emphasis added). Indeed, where a jury has awarded punitive damages, a trial court may not, consistent with the right to a trial by a jury as guaranteed by Ala. Const. 1901, § 11, order an additur of punitive damages under any, or any 1051184 14 combination, of the Green Oil factors. Bozeman v. Busby, 639 So. 2d 501, 502 (Ala. 1994). In that connection, Vulcan states: "If a defendant has conceded that its financial position provides no basis for remittitur, then further discovery directed to that factor is pointless because a court's analysis of the factor will not change in any way based upon the relative wealth of the defendant. ... [W]hen presented with such a concession, there is simply nothing more for the court to consider." Reply brief, at 7-8 (emphasis added). We agree. Because the Green Oil factors are considered for the benefit of defendants, a defendant may waive the benefit of one or more of the factors. In fact, our cases have held that a defendant's failure to produce evidence of its net worth effectively negates the benefit to the defendant of the relationship factor. In other words, a defendant cannot argue as a basis for reducing the punitive-damages award that the award "stings" too much, in the absence of evidence of the defendant's financial status. See Shiv-Ram, 892 So. 2d at 319 (defendant's concession that it was insured, coupled with the absence of "evidence that payment of the damages awarded [would] cause it any undue financial hardship .... weigh[ed] against a finding of 1051184 15 excessiveness"); Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1220 (Ala. 1999) (where the defendant produced no evidence of its net worth or evidence "showing that the verdict [would] affect its future insurability," the relationship factor would not benefit the defendant); Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968, 981 (Ala. 1998) (where the defendant "stipulated that it would not be crippled financially if it had to pay the punitive damages award," the relationship factor was of no benefit). Moreover, it has, indeed, been held -- correctly, in our view -- that a defendant may avoid extensive inquiry into its financial affairs simply by stipulating to its net worth, Sprague v. Walter, 441 Pa. Super. 1, 62, 656 A.2d 890, 920 (1995) ("it is a sound defense strategy to prevent freewheeling financial discovery by stipulating to a specific net worth"), or to its ability to satisfy a punitive-damages award. Cobb v. Superior Ct. of California, 99 Cal. App. 3d 543, 551, 160 Cal. Rptr. 561, 566- 67 (1979) (inquiry into the effect of a verdict awarding punitive damages can often be satisfied by a "simple request for a stipulation"). 1051184 16 Here, by expressly conceding "that its financial position does not warrant reduction of the punitive award," Petition, at 7, Vulcan has disclaimed reliance on the relationship factor as a reason for remitting the punitive-damages award. That disclaimer requires the trial court to weigh the relationship factor against a remittitur. Consequently, financial discovery as to that factor is unnecessary and irrelevant. 2. Profitability factor. The parties dispute the relevance of evidence of a defendant's general financial status, or net worth, to the profitability factor. In Green Oil, this Court said: "'If the wrongful conduct was profitable to the defendant, the punitive damages should remove the profit and should be in excess of the profit, so that the defendant recognizes a loss.'" 539 So. 2d at 223 (quoting Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050, 1062 (Houston, J., concurring specially)). Blizard contends that the financial information he seeks in the requests is relevant to enable the trial court to determine whether the punitive-damages award exceeds the 1051184 17 profit Vulcan realized from its wrongful conduct. However, according to Vulcan: "While there may be circumstances where certain financial information could be relevant to [the profitability] factor, Blizard's notion that he can obtain sweeping discovery into all aspects of Vulcan's finances to advance his arguments with regard to that factor cannot be right. The key is that the factor seeks to remove the profit arising from the alleged conduct for which punitive damages are being imposed, not any profit generally." Reply brief, at 9 (emphasis added). We agree with Vulcan. The profitability factor speaks to the particular conduct that occasioned the imposition of punitive damages. Evidence of Vulcan's general financial status is far too attenuated for useful analysis under the profitability factor. In that connection, Vulcan did not object to Blizard's request for the production of documents ostensibly relevant to the specific circumstances at issue. In particular, Blizard sought in request no. 32, and Vulcan expressly agreed to produce, "[a]ny and all documents, items or things which reflect Vulcan's profit per ton of rock sold from the Scottsboro quarry for the past ten (10) years." However, Blizard's requests no. 8 and nos. 11-14 are not directed to, and do not reference, profit from the conduct underlying this 1051184 Interestingly, Vulcan has also agreed to produce 3 information as to its net worth for the years 2002 to 2005, in addition to "public financial reports which have been generated by Vulcan for the past five (5) years," as well as "all documents ... that [it provided] to independent auditors and/or consultants regarding this case in preparation of the Financial Reports ... relating to Vulcan's finances" since this case has been pending. Reply brief, at 10 n.4. 18 litigation. Therefore, production of those documents would add little, or nothing, of value to a profitability analysis beyond what Vulcan has agreed to produce.3 For these reasons, we conclude that the trial court exceeded its discretion in denying Vulcan's motion for a protective order as to the financial information sought in requests no. 8 and nos. 11-14. Thus, we grant Vulcan's petition insofar as it is directed to that portion of the request. B. Discovery of Other Litigation According to Vulcan, "[t]he circuit court exceeded its discretion in requiring Vulcan to produce information concerning" Vulcan's involvement in, or knowledge of, other litigation, without regard to where or when the litigation was filed, "or whether the subject matter of the lawsuits was remotely similar to the claims made in this case." Petition, 1051184 19 at 9. This argument relates to requests no. 10, no. 22, and no. 24, as well as to interrogatory no. 20. It should, of course, be noted that one of the inquiries is limited geographically to the State of Alabama (request no. 24), and some of the inquiries are temporally limited to five years (requests no. 10, no. 22, and no. 24), while one of the inquiries has neither temporal nor geographical limitations (interrogatory no. 20). Without reasonable temporal and geographical limitations and subject-matter similarity, Vulcan argues, discovery of the requested material would be unduly burdensome and oppressive, as well as "ultimately irrelevant to the question of punitive damages." Petition, at 12. More specifically, Vulcan contends that a reasonable inquiry would be limited to litigation involving Vulcan in the State of Alabama within five years of this dispute. Id. We agree. "'The first step in determining whether the court has [exceeded] its discretion is to determine the particularized need for discovery, in light of the nature of the claim.'" Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (quoting Ex parte Rowland, 669 So. 2d 125, 127 (Ala. 1995) (emphasis added)). 1051184 20 To be relevant to a constitutionally sanctioned punitive- damages review, any extraterritorial conduct of the defendant "must have a nexus to the specific harm suffered by the plaintiff." Campbell, 538 U.S. at 422 (emphasis added). An action in one state may not be "used as a platform to expose, and punish, the perceived deficiencies of [a defendant's] operations throughout the country." Campbell, 538 U.S. at 420. "A defendant's dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff ...." 538 U.S. at 422-23. This is so, because, "as a general rule," a State does not "have a legitimate concern in imposing punitive damages to punish defendants for unlawful acts committed outside of the State's jurisdiction." 538 U.S. at 421. Thus, a litigant may not seek to support a punitive-damages award through discovery aimed at generic, undelineated out-of-state conduct. Our recent cases have stated or applied similar principles, albeit in different terms, in the context of general pretrial discovery. The Court has insisted that 1051184 21 discovery requests be "closely tailored" to the plaintiff's claims. Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998). Nationwide discovery has been held "overly broad and ... not closely tailored to the nature of the [plaintiff's claims]." Ex parte Henry, 770 So. 2d at 80. See Ex parte Orkin, Inc., 960 So. 2d 635, 642 (Ala. 2006) (an order compelling production of customer files "stored in five states" was not closely tailored and could not be "sanctioned on the unsubstantiated hypothesis that a search of records related to nonparties might uncover fact patterns similar to" those underlying the plaintiffs' claims); Ex parte National Sec. Ins. Co., 773 So. 2d 461, 465 (Ala. 2000) (an order limiting discovery to five years and to the borders of Alabama was "closely tailored" to the plaintiff's fraud allegations); see also Ex parte Union Sec. Life Ins. Co., 723 So. 2d 34, 40 (Ala. 1998) (the trial court exceeded its discretion in compelling production of "records from a seven-state area" in the "Southeast"). Furthermore, discovery requests must generally be subject to reasonable temporal limitations. In Ex parte Orkin, we said: 1051184 22 "No bright line exists concerning the maximum period over which a litigant should be required to search for records. The length of that period depends on whether the records being searched are 'relevant to the subject matter involved in the dispute.' Rule 26(b)(1), Ala. R. Civ. P.; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2008 (1994). Even then, a litigant in a fraud action must show a substantial need for discovery of records that concern transactions with nonparties, that are older than five years, and that do not directly relate to the litigant's own claim or defense." 960 So. 2d at 643 (emphasis added). See also Ex parte Ocwen Fed. Bank, FSB, supra (trial court did not exceed its discretion in restricting the discovery period to five years); Ex parte Wal-Mart, Inc., 809 So. 2d 818, 822 (Ala. 2001) (the trial court properly narrowed discovery of "customer incident reports and employee accident review forms to Alabama stores and to a five-year period"); Ex parte National Sec. Ins. Co., 773 So. 2d at 465 (a discovery order limited to five years was proper); Ex parte Union Sec. Life Ins. Co., 723 So. 2d at 39 (a discovery order limited to five years and to the borders of Alabama was proper). Although Orkin and some of the cases cited above involved fraud claims, it is well established that greater latitude is allowed for "discovery in a fraud case ... because of the heavy burden of proof imposed on one alleging 1051184 23 fraud." 960 So. 2d at 641. Thus, a fortiori, a temporally unlimited discovery order in a nonfraud case challenging a punitive-damages award, which is subject to the constitutional constraints outlined in BMW, supra, and Campbell, supra, is overly broad in the absence of a showing of a substantial need for the material sought. The relevant claim in this case is intentional interference with contractual or business relations. Request no. 10 seeks production of "[a]ny and all documents ... provided to independent auditors ... regarding any other litigation against Vulcan ... for the past five (5) years." Request no. 22 seeks production of "[c]opies of the complaints in each lawsuit filed [against Vulcan] within the last five years." Request no. 24 seeks production of "all documents, records, correspondence, ... or handwritten materials relating to the knowledge which Vulcan and/or its directors, managers or executive officers may have had during the past five (5) years with regard to ... judgments rendered in the courts of Alabama during the past five (5) years." (Emphasis added.) Interrogatory no. 20 seeks specific information on every lawsuit ever filed "against Vulcan claiming ... wrongful 1051184 24 interference with business or contractual relations, improper restraint of trade, and/or improper price fixing." Vulcan objects to the scope of the requests for information regarding other lawsuits or claims against it. In support of its argument, Vulcan presented the affidavit of William F. Denson III, "Senior Vice President, General Counsel, and Secretary" of Vulcan. He stated that Vulcan has been in operations for 49 years and that its business is international in scope, and he testified in detail regarding the difficulties and attendant costs of attempting to comply with Blizard's discovery requests. In response, Blizard concedes that, to be relevant, evidence of out-of-state conduct must be "similar" to the conduct involved in this case. Blizard's brief, at 13-14. More specifically, he states: "Evidence of other similar acts of Vulcan is relevant to the trial court's analysis of the degree of reprehensibility of its conduct in a post-judgment analysis of the punitive damages awarded by the jury." Id. at 13. However, he makes no attempt to explain how the extra- territorial conduct of Vulcan that is apparently the subject of these discovery inquiries is similar, or closely tailored, to the litigation involved here. Request no. 24, for example, 1051184 25 seeks to discover facts known to all Vulcan's management personnel -- wherever they reside -- regarding every Alabama judgment entered in a five-year period, regardless of the nature of such a judgment. In so doing, request no. 24 goes far beyond the scope of any legitimate inquiry. Request no. 24 is fatally flawed because of the conspicuous absence of similarity to, and nexus with, this litigation. Requests no. 10 and no. 22 are similarly international in scope. Consequently, they are also not closely tailored to this litigation. In addition to being international in scope, interrogatory no. 20 places no temporal restriction on discovery of "transactions with nonparties," Ex parte Orkin, 960 So. 2d at 643, and Blizard does not attempt to demonstrate a "substantial need for discovery of records ... that are older than five years." Id. Interrogatory no. 20, therefore, is impermissibly broad, failing both temporal and nexus requirements. Blizard says "it is inaccurate to suggest that Alabama courts have refused to uphold all instances where a trial court did not impose time and area limitations on discovery requests." Blizard's brief, at 14 (emphasis added). For that proposition, however, he cites only Ex parte Philadelphia Life 1051184 Vulcan's petition also addresses requests no. 25 and no. 4 26, which concern pleadings and/or documents filed by Vulcan. However, in its order denying Vulcan's motion for a protective order, the trial court characterized objections directed at requests no. 25 and no. 26 as moot. It apparently did so on the basis of Vulcan's representation that it would produce the documents sought in those requests but limited geographically to Alabama and temporally to five years. As we understand the court's order, the court accepted Vulcan's representation, and, by doing so, so limited the scope of requests no. 25 and no. 26. Thus, we deem it unnecessary to address Vulcan's arguments as to those discovery points. 26 Insurance Co., 682 So. 2d 392 (Ala. 1996). It is true that in Ex parte Philadelphia Life, a fraud case, this Court refused to impose temporal or geographical restrictions on the plaintiffs' interrogatories and production requests. Philadelphia Life has not been cited by any court. It is obviously inconsistent with our more recent cases, and is hereby overruled. We conclude, therefore, that the trial court exceeded its discretion in compelling production of requests no. 10, no. 22, and no. 24 and interrogatory no. 20. The petition is granted insofar as it relates to those discovery items. 4 C. Discovery of Minutes of Vulcan's Board of Directors Vulcan next contends that the trial court exceeded its discretion in compelling production of "[a]ny and all copies of the Minutes of each meeting of the Vulcan Board of 1051184 27 Directors or Trustees during the past five (5) years." Request no. 19. As this case is postured, we agree. Regarding the contents of these minutes, Denson's affidavit states: "3. In my capacity as Secretary of the corporation, I am responsible for taking and maintaining the corporate minutes of all meetings of the board of Directors of the corporation. ".... "6. Information contained in the Minutes includes material, nonpublic information as defined by the rules and regulations of the Securities and Exchange Commission. This material, nonpublic information does not in any manner concern the plaintiff or this litigation. As such, inadvertent or improper divulgence of this information could be a violation of the federal securities laws and regulations. "7. There has been no reference to or mention of this litigation recorded in the Minutes of the Company during the last five years." (Emphasis added.) "The broad rules of discovery 'should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made 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.' Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)...." Ex parte Wal-Mart Stores, Inc., 682 So. 2d 65, 68 (Ala. 1996) (Hooper, C.J., dissenting) (emphasis added). 1051184 28 Blizard makes the conclusory statement that the minutes of Vulcan's board meetings are relevant to certain Green Oil factors. Blizard's brief, at 20-21. Significantly, however, he ignores the affidavit of Vulcan's secretary stating that those minutes do "not in any manner concern the plaintiff or this litigation" and contain "no reference to or mention of this litigation." In other words, Blizard makes no attempt to explain how the minutes, which do not concern or mention him or his case, might be relevant to a review of the punitive- damages award. That being so, request no. 19 contemplates what is essentially a "fishing expedition" to determine whether the statements in the affidavit are true. That is not the purpose or goal of permissible discovery. The trial court exceeded its discretion, therefore, in ordering Vulcan to produce the material sought by request no. 19, and as to it Vulcan's petition is granted. D. Discovery of Vulcan's E-mails Vulcan contends that the trial court exceeded its discretion in denying its motion for an order protecting against the production of "[a]ny and all ... e-mail or correspondence circulated within Vulcan regarding this case and/or the verdict in this case." Request no. 2. It insists 1051184 29 that the burden of "gathering whatever e-mails exist" will subject it to "extraordinary expense." Petition, at 21. Vulcan also insists that "[a]ny known e-mails pertaining to the issues in the case that were created before the case was filed have already been produced during the merits stage," and it argues that, "[b]y definition, every one of the e-mails now sought by Blizard -- as they were created after the case was filed -- will have been prepared in anticipation of litigation and almost certainly will be protected by the work- product doctrine." Petition, at 20 (emphasis added). It further contends that "the e-mails will have no relevance to the assessment of punitive damages because they all were created after the time of the conduct upon which the punitive damages were assessed." Petition, at 21 (emphasis added). While this petition was pending, we decided Ex parte Cooper Tire & Rubber Co., [Ms. 1050638, October 26, 2007] __ So. 2d ___ (Ala. 2007), which involved arguments by Cooper Tire & Rubber Company ("Cooper"), similar to those made here by Vulcan, "that its burden of production with respect to e- mails [would] entail thousands of hours and [would] cost 1051184 30 hundreds of thousands of dollars." ___ So. 2d at ___. We said: "With respect to Cooper's contentions that the quantity of materials to be produced for discovery ... is simply too vast to be managed without undue time and expense, we believe that the trial court's exercise of its discretion over the discovery process requires some reference to standards designed to address the technology of information that is available, or that can be made available, on electronic media. ... ".... "... In light of [the] showing by Cooper, we believe that it is appropriate for the trial court to consider in more detail Cooper's arguments as to its cost of producing e-mails." ___ So. 2d at ___ (emphasis added). We then acknowledged that, although neither the courts of this state nor the legislature has developed standards for discovery of electronically stored information, the federal court system has addressed such standards. We directed the trial court to consider Cooper's motion for a protective order in light of Fed. R. Civ. P. 26(b)(2)(B) ("Specific Limitations in Electronically Stored Information"), and the factors set forth in Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004). 1051184 31 As we did in Cooper Tire & Rubber, we deny the petition as to the e-mails sought in request no. 2, but with directions for the trial court to reconsider Vulcan's motion for a protective order as to the e-mails sought in request no. 2 in light of the authorities cited and discussed in that case and in light of Vulcan's argument that the e-mails sought in request no. 2 will likely be work product and its contention that the e-mails would not likely lead to relevant information. E. Discovery of Other Quarries Interrogatory no. 24 asks whether "Vulcan [has] ever acquired rights in property which included an existing rock quarry and that another entity was operating (e.g., selling ag lime, producing rock for sale, etc.) in at the time of said acquisition." It then demands that Vulcan "identify all such quarries and provide the name, address, and telephone number of each entity working in that quarry at the time of Vulcan's acquisition." Vulcan responded to interrogatory no. 24 by producing the information relating to "every existing quarry that it [had] acquired in Alabama in the last 15 years," Petition, at 23-24, but, in its motion for a protective order, 1051184 32 Vulcan objected to the production of information on extra- territorial acquisitions and acquisitions beyond 15 years on the grounds that it would be of "negligible benefit" to Blizard, and that "[r]equiring Vulcan to produce information relating to every quarry [to which] it has acquired the rights ... outside the State of Alabama since the date of its corporate inception [would be] unnecessary, unmanageable and unduly burdensome." Vulcan supported the latter contention with Denson's affidavit, which stated, in pertinent part: "10. Following identification of all existing quarry locations, a search of all records relating to acquisition of these locations will be required. In addition to an estimated volume of 1,300 feet of paper at the corporate offices, an unknown volume of records at seven (7) division offices and over two hundred (200) quarry locations in twenty-one (21) states and Mexico will require extensive review time. The majority of the locations will require extensive review and cross-check of records to accurately respond to this request. A conservative estimate of the time required to locate and identify information in response to this request is 2,040 hours at a cost of $125.00 per hour. This time does not include any travel time and costs that will be necessary to execute a diligent search and review." Vulcan also insists that compliance with the interrogatory would "certainly produce an enormous amount of wholly irrelevant information," because, it argues, "information regarding quarries in some other state or country 1051184 33 that were owned by Vulcan 10 or 20 -- much less 50 -- years ago would not be relevant to the punitive damages analysis in this case." Reply brief, at 19. Blizard's only relevant response to this argument consists of a conclusory assertion that the information may yield "admissible evidence regarding the duration of Vulcan's conduct, the existence and frequency of similar past conduct, the degree of awareness of the hazards its conduct caused or is likely to cause, concealment or cover-up of its conduct, and whether the award will deter Vulcan's future conduct." Blizard's brief, at 22. However, as we discussed in Part III.B. of this opinion, such nationwide -- and international -- discovery is "not closely tailored to the nature of the [plaintiff's claims]." Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000). This nexus principle is essential in the context of a punitive-damages review such as is involved here. Likewise, as we noted above, a discovery order exceeding five years is temporally overbroad and improper in the absence of a showing of a substantial need for the materials sought. Clearly, Blizard has not demonstrated such a need for information predating the information of the past 15 years that Vulcan has already produced. For these reasons, the 1051184 34 trial court exceeded its discretion in ordering Vulcan to produce the material sought by interrogatory no. 24. Thus, the petition is granted as it relates to interrogatory no. 24. F. Discovery of Statements Made to Stockholders Request no. 21 demands production of "[a]ny and all ... statements which Vulcan has made to its stockholders within the past five (5) years." (Emphasis added.) Vulcan contends that "there is no justification for such an onerous discovery demand." We agree. Indeed, Blizard's brief entirely omits any reference to this request. Because compelling production of request no. 21 was not a proper exercise of discretion, the petition is granted as to it. G. Discovery of Vulcan's Attorney Fees According to Vulcan, the trial court, in compelling Vulcan to respond to request no. 27 and interrogatory no. 23, erroneously required "Vulcan to produce detailed information concerning its attorneys' fees and other costs in this case." Petition, at 26. Vulcan argues that a defendant's litigation costs are irrelevant to "the cost of the litigation," the fifth factor enunciated in Green Oil, 539 So. 2d at 223. 1051184 35 In Green Oil, this Court directed trial courts to consider "'[a]ll the costs of litigation ... so as to encourage plaintiffs to bring wrongdoers to trial.'" 539 So. 2d at 223 (emphasis added) (quoting Aetna Life Ins. Co. v. Lavoie, 505 So. 2d at 1062 (Houston, J., concurring specially)). Ordinarily, a defendant's litigation costs are, indeed, irrelevant for purposes of "encouraging plaintiffs to bring wrongdoers to trial." This Court's jurisprudence clarifies that this particular Green Oil factor is directed toward the plaintiff's litigation costs. See, e.g., Orkin Exterminating Co. v. Jeter, 832 So. 2d 25, 42 (Ala. 2001) (the litigation-cost factor enunciated in Green Oil requires a court to "consider whether the punitive-damages award was sufficient to reward the plaintiff's counsel for assuming the risk of bringing the lawsuit and to encourage other victims of wrongdoing to come forward." (emphasis added)). Information relating to a defendant's attorney fees may be discoverable in a proper case, such as where a defendant places its litigation costs in issue by challenging the reasonableness of a prevailing plaintiff's request for attorney fees. Murray v. Stuckey's Inc., 153 F.R.D. 151, 152 1051184 36 (N.D. Iowa 1993) (discovery of information relating to defendants' attorney fees was permitted where the defendants "resisted plaintiffs' fee claim both on the basis of the number of hours claimed and the hourly rate applied"); Coalition to Save Our Children v. State Bd. of Educ. of Delaware, 143 F.R.D. 61, 64 (D. Del. 1992) (discovery of information relating to defendant's attorney fees was permitted in response to the defendant's contention that the "plaintiff's hours overlapped and were unreasonable"). From all that appears, however, this is not such a case. There is no allegation that the reasonableness of Blizard's attorney fees is at issue. Thus, the trial court exceeded its discretion in ordering Vulcan to produce the material sought by request no. 27 and interrogatory no. 23, and as to that discovery, Vulcan's petition is granted. H. Supplementation of Vulcan's Preverdict Responses Finally, Vulcan contends that the trial court exceeded its discretion in compelling it to respond to request no. 35: "Please supplement with updated information all your previous responses to requests for production." (Emphasis added.) According to Vulcan, "[t]he discovery permitted in the post- 1051184 37 judgment phase is ... limited and different from the merits phase. [Blizard] has not offered, and cannot offer, any explanation as to why Vulcan should be put to the burden of supplementing all of its responses after the trial has been conducted." We agree. Indeed, Blizard's brief does not mention request no. 35 or seek to justify it. Consequently, we grant Vulcan's petition as to request no. 35. IV. Conclusion In summary, Vulcan's petition is granted and the writ of mandamus issued as to the requests and the interrogatories discussed above, except as to the production of e-mails in request no. 2. In that respect, the petition is denied and the trial court is directed to reconsider Vulcan's motion for a protective order in light of Cooper Tire & Rubber, supra, and the authorities cited therein. PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. See, Lyons, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., concurs in the rationale in part and concurs in the result. Cobb, C.J., concurs in the result. 1051184 Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), 5 and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989). 38 MURDOCK, Justice (concurring in the rationale in part and concurring in the result). Introduction I concur in the rationale of the main opinion except as to the discussion in that opinion of the discoverability and relevance of evidence of Vulcan's financial condition in the context of a Hammond/Green Oil analysis. Even as to that 5 issue, however, I agree with the result reached by the main opinion -- that any information concerning Vulcan's financial condition other than what it already has produced or promised to produce is not properly discoverable. More than enough information (including, for example, ample information concerning Vulcan's income and net worth) to allow the plaintiff to address Vulcan's financial condition in a Hammond/Green Oil hearing already has been made available or promised by Vulcan. The plaintiff's remaining discovery requests in this regard are unduly broad and burdensome. It is on this basis that I believe the result reached by the main opinion can and should rest. 1051184 39 I decline to join the main opinion to the extent it goes further to explain that any information concerning Vulcan's financial condition would necessarily be irrelevant in a Hammond/Green Oil hearing. In Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), the Court established seven factors that, as a matter of state law, a trial court may consider in a postjudgment review of a jury's punitive-damages award. Factor number "4" is "the financial position of the defendant." 539 So. 2d at 223. The analysis in the main opinion is based on the fact that the defendant in this case disavowed any reliance on this particular factor as a basis for a reduction of the punitive- damages award, even though it sought a reduction of that award on the basis of several other factors identified in Green Oil. By disavowing any reliance on its financial condition, the defendant essentially stipulates that its financial condition is not so weak as to warrant a reduction in a punitive-damages award of a given amount. That is altogether different than stipulating that its financial condition is not so strong as to warrant maintaining the award at the level set by the jury -- or at least at a greater level than that to which the trial court, in the absence of any knowledge of a 1051184 40 defendant's financial condition, might be inclined to reduce the award. To hold otherwise, which is the effect of the main opinion, puts the defendant in the self-serving position of stipulating that some reduced award amount being considered by the trial court will still be large enough to serve its purpose. It is the plaintiff, not the defendant, who naturally has the interest in seeing that that is true. Logically, it is only the plaintiff who should be in the position of stipulating that a reduction of a punitive-damages award being considered by the trial court will still leave the award at a high enough level. Analysis Most states do not wait until a postjudgment phase to allow the introduction of evidence of a defendant's financial condition. See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 n. 31 and accompanying text (1981)(citing Restatement (Second) of Torts § 908(2) (1979), and D. Dobbs, Law of Remedies § 3.9, pp. 218-19 (1973), for the proposition that "evidence of a tortfeasor's wealth is traditionally admissible as a measure of the amount of punitive damages that 1051184 The Restatement provision cited by the Supreme Court in 6 City of Newport states that "the character of the defendant's act, the nature and extent of the harm to the plaintiff ... and the wealth of the defendant" may properly be considered "[i]n assessing punitive damages." Restatement (Second) Torts § 908(2) (1979). The treatise relied upon by the Court states that "since the purpose of punitive damages is punishment and deterrence, the sum assessed, if it is to be effective at all, must be a sufficiently large one to have effect. ... For these reasons, courts permit the ... introduc[tion of] evidence showing something of the defendant's financial resources." Dan B. Dobbs, Handbook on the Law of Remedies § 3.9 pp. 218-19 (West 1973). 41 should be awarded"); see also William A. Schroeder and Jerome 6 A. Hoffman, Alabama Evidence § 4:21 (3d ed. 2006) (noting that Alabama is "unlike most jurisdictions" in "not permit[ting] the jury to receive evidence of a defendant's wealth or lack of it 'during the liability phase of the trial for the purpose of proving the amount of punitive damages that should be assessed.'" (citations omitted)). In Alabama, however, we take the position (wisely, it would seem) that because it would impugn the fact-finding process regarding liability, evidence of the defendant's financial worth is inadmissible during the liability phase of the case. See, e.g., Southern Life & Health Ins. Co. v. Whitman, 358 So. 2d 1025, 1026-27 (Ala. 1978). We therefore refrain from any attempt to measure the appropriateness of a 1051184 Cf. Ridout's-Brown Serv., Inc. v. Holloway, 397 So. 2d 7 125, 126 (Ala. 1981) ("recogniz[ing] that, pursuant to [Ala.] Code 1975, § 12-22-71, where the only ground of reversal is the excessiveness of damages, the appellate court has the power to determine the proper amount of recovery ...."). 42 punitive-damages award against the defendant's financial condition until after the jury has rendered its verdict. It is at that juncture, upon appropriate motion by the defendant, that our jurisprudence calls on the trial court "to determine the proper amount of recovery." Green Oil, 539 So. 2d at 222 (emphasis added). 7 Essential to the trial court's determination of the proper amount of the punitive-damages award is a determination that the presumption in favor of the award made by the jury has been rebutted. As the Green Oil Court explained, "the invocation of the trial court's authority under Ala. R. Civ. P. 59(f) to determine the proper amount of recovery and to deny a new trial, subject to filing of a remittitur of the amount in excess of the proper amount, is dependent upon the trial court's holding that the presumption of correctness of the jury verdict has been overcome by a clear showing that the amount of the verdict is excessive." 539 So. 2d at 222 (emphasis added). 1051184 43 If the presumption of correctness of the jury verdict is overcome, however, it then falls to the trial court to decide "the proper amount" of the award. The inquiry that must be made is "[w]hat amount is sufficient to punish [the defendant] and deter it, and others similarly situated, from committing similar acts in the future?" 539 So. 2d at 222. As the Green Oil Court further explained, the award "must not exceed an amount that will accomplish society's goals of punishment and deterrence," but at the same time "'the award ... ought to be large enough to hurt. It ought to sting in order to deter; that is its purpose.'" 539 So. 2d at 222 (quoting Ridout's-Brown Serv., Inc. v. Holloway, 397 So. 2d 125, 127 (Ala. 1981) (Jones, J., concurring specially)). It is for this reason that "[t]he defendant's financial condition is ... a consideration essential to a post-judgment critique of a punitive damages award." 539 So. 2d at 222. I do not see how this Court can say that trial courts are to look to the so-called Green Oil factors to determine the appropriateness of punitive-damages awards, but, because of a self-serving stipulation by the defendant, not allow those same courts to consider the extent to which one or more of those factors support the award, or at least some award 1051184 Green Oil itself referenced the factors of "criminal 8 sanctions" and "other civil actions" as factors that should be taken into account "in mitigation of the punitive damages award." 539 So. 2d at 224. None of the other five factors are so limited. The factor in question is stated merely as follows: "The financial position of the defendant would be relevant." 539 So. 2d at 223. In Bozeman v. Busby, 639 So. 2d 501, 502 (Ala. 1994), this Court held that a trial court may not order an additur of punitive damages. The reference in the text to a "reduced level of damages that might not be enough" is to one that would reflect too large a remittitur, i.e., a remittitur that results in a punitive-damages award that might not be large enough to accomplish the purpose of punitive damages. 44 greater than that which the trial court otherwise would choose. Nor do I believe this Court has ever said this. I find no indication in our cases -- before today's decision -- that, where the task of the trial court is to decide what amount of punitive damages will be "proper," the financial condition of the defendant is not admissible both for the purpose of assessing what level of damages might be too much and for the purpose of assessing what reduced level of damages might not be enough. 8 To lay the premise for its articulation of the seven factors, the Green Oil Court quoted at length from Justice Jones's special concurrence in Ridout's-Brown Service, Inc. v. Holloway: 1051184 45 "'That the law perforce furnishes not only a remedy but also allows substantial punitive damages for such a wrong goes without saying. I suppose what troubles me is the unguided discretion accorded in both the fact finding process and the judicial review that fixes the amount of punitive damages. The current system furnished virtually no yardstick for measuring the amount of the award over against the purpose of the award. We are all in agreement that the award in the instant case ought to be large enough to hurt. It ought to sting in order to deter; this is its purpose. But only in the rarest of cases should it be large enough to destroy; this is not its purpose. "'Which of the two -- merely to hurt or to destroy -- does a $220,000 award accomplish here? I can readily agree that the gravity of the wrong, abundantly supported by the proof of record, justifies the full amount of this award; and, this being the sole cognizable standard, I am constrained to concur in the Per Curiam affirmance. But, still, in my opinion, something is missing; this standard is deficient. To the "gravity of the wrong" element should be added this inquiry: What (i.e., how much) will it take to punish this Defendant? The purpose of this two-fold test is to particularize both the wrongful act and the wrongdoer. Only when both elements -- the gravity of the wrongful act and the amount of damages necessary to punish the particular defendant -- are considered and weighed one against the other, can the award be rationally adjudged to accomplish the ultimate purpose of exemplary damages. [Emphasis [on "this"] in the original.] "'The problem, then, is how to infuse the second of these elements into the equation. The first -- the extent and degree of the wrong -- is supplied in the liability fixing stage of the proceedings. Because it impermissibly impugns the fact finding process regarding liability, however, evidence of the defendant's financial worth is inadmissible. Southern Life & Health Ins. Co. v. Whitman, 358 1051184 46 So. 2d 1025 (Ala. 1978). The reliability of the fact finding process cannot be sacrificed in an unbifurcated proceeding by allowing evidence on the issue of damages which may unfairly influence the fact finder in resolving the issue of liability. "'Thus, short of bifurcation with respect to the issues of liability and damages, the answer is to permit the injection of the second element -- the adequacy vel non of the damages -- in a post-judgment proceeding by way of judicial review. For example, if the Defendant in the instant case were the individual mortician earning $20,000 per year, this fact should be admissible in support of a post-judgment motion on the issue of the validity of the award. The gravity of the wrong may be the same, whether the defendant is a salaried employee or a multimillion dollar corporation, but, in the case of the former, the $220,000 verdict would be far out of proportion to its intended purpose. What it takes to punish the one bears no relationship to what it takes to punish the other. "'What I am saying is that, in the totality of the system, we must preserve the reliability of the fact finding process for adjudging liability and, at the same time, improve the reliability of the damages assessment process in order to fit the punishment (the amount of punitive damages) to the offensive conduct and the offender.' (Emphasis added.)" 539 So. 2d at 222-23 (quoting Ridout's, 397 So. 2d at 127-28 (Jones, J., concurring specially)) (emphasis added, except for emphasis on "this" as indicated and in the last paragraph). As the Green Oil Court and Justice Jones explained, "'[o]nly when both elements -- the gravity of the wrongful act and the amount of damages necessary to punish the particular 1051184 47 defendant -- are considered and weighed one against the other, can the award be rationally adjudged to accomplish the ultimate purpose of exemplary damages.'" 539 So. 2d at 223. Before Green Oil, the process of assessing the appropriate amount of punitive damages involved "unguided discretion." The system was missing an appropriate "'yardstick for measuring the amount of the award over against the purpose of the award.'" 539 So. 2d at 222. That "purpose," as recognized by the Green Oil Court in the immediately following sentence, is an award that is "'large enough to hurt. It ought to sting in order to deter; this is its purpose.'" 539 So. 2d at 222. The problem, as the Court went on to explain, was how to "infuse" into "the equation" the evidence necessary to determine the amount of damages necessary to sufficiently punish the particular defendant in light of the fact that evidence of the defendant's financial condition was not admissible during the fact-finding process. The "answer," according to both Justice Jones and the Green Oil Court, was "'to permit the injection of the second element -- the adequacy vel non of the damages -- in a post-judgment proceeding by way of judicial review.'" 539 So. 2d at 223. 1051184 48 Green Oil thus provided the "yardstick," the absence of which was lamented by Justice Jones. Obviously, a critical section of that "yardstick" is "the financial position of the defendant." Although this Court has held that the trial court may not add to the amount of a jury's award, that does not mean that the yardstick, within the parameters of $0 and the amount awarded by the jury, does not measure in both directions. In other words, the submission of evidence in a Green Oil hearing is not a one-sided affair. The defendant never has had the right to introduce whatever evidence it could as to those particular Green Oil factors it believed would be favorable to it, while the plaintiff is unable to introduce "counter evidence" as to whichever of the Green Oil factors augered in its favor. To say otherwise will now allow the defendant, by stipulating that it does not rely on other Green Oil factors, to limit the trial court to considering evidence of only those Green Oil factors that favor the defendant's position. Until today, it has always been my understanding of the law that the plaintiff, in an effort to persuade the trial court that the presumption in favor of the jury's verdict should not be deemed rebutted -– or, if it is, 1051184 49 that the verdict should not be reduced as much as the defendant urges -- may introduce evidence of any of the Green Oil factors, including any factors the defendant might have chosen to ignore because they hurt its cause. It is my concern that the "something" provided by Green Oil will once again go missing from "the equation" as a result of today's decision. In its place, whenever a defendant unilaterally elects to exclude evidence of its financial condition from a Green Oil hearing, we will now have a "one size fits all" weight against remittitur. It would appear that such an approach is contrary to and would largely defeat the purpose sought to be achieved by Justice Jones and the Green Oil Court. Just how heavy is this weight against remittitur? How is it to be assessed in relation to such other factors as might be presented by the plaintiff against remittitur? Does it outweigh any other factor, or set of factors, that might be presented by the defendant in favor of remittitur? How does it "measure up" against such other factors? We will no longer be able to know these things because a critical section of the "yardstick" will be missing. Nor do I find satisfactory the answer suggested by Chief Justice Cobb to these queries. If her reading of the main 1051184 50 opinion is correct, a trial court must now assign "the most extreme weight to the disclaimed factor." ___ So. 2d at ___ (Cobb, C.J., concurring in the result). But again, how heavy is that? How heavy is the heaviest? If this factor is to be given "the most extreme," or the heaviest, weight possible, does it not necessarily outweigh any other factor that might be presented, either for or against remittitur? Alternatively, if it would be possible for some other factor also to be entitled to "the most extreme" weight in the same case, how would the trial court compare these two factors? If, for example, the nature of the civil sanctions already levied against the defendant was deemed to weigh as heavily as that factor possibly could in favor of remittitur, what should the trial court do? I suggest that the trial court logically would not know what to do. "Something [would be] missing" from the equation it has been instructed to use. Over the last 20 years, substantial questions have been raised regarding Alabama's system for determining punitive damages. The effort to answer these questions has well engaged both this Court and the United States Supreme Court in numerous cases. See, e.g., BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Shiv-Ram, Inc. v. McCaleb, 892 1051184 51 So. 2d 299 (Ala. 2003); Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968 (Ala. 1998); Life Ins. Co. of Georgia v. Johnson, 725 So. 2d 934 (Ala. 1998); Bozeman v. Busby, 639 So. 2d 501 (Ala. 1994); Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989); Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986). The place at which we have arrived after much time and effort encompasses the procedures and factors prescribed by this Court in Green Oil. I believe the Court today unwittingly makes a fundamental alteration to our law in this area. Given the arduousness of the path we have traveled to get to where we are, or at least where we were before today's decision, I believe any significant change to our law in this area should be made expressly and with a full exposition of what is being accomplished and why. I therefore respectfully decline to join in that portion of the main opinion holding in essence that evidence of a defendant's financial condition is neither discoverable by the plaintiff nor admissible for the purpose of supporting the plaintiff's position whenever the defendant unilaterally decides that it will not rely on such evidence to support its position in a Green Oil hearing. 1051184 52 COBB, Chief Justice (concurring in the result). I agree that some of Blizard's discovery requests are broader than is appropriate to elicit material relevant to, or likely to lead to evidence relevant to, the propriety of the jury's punitive-damages award. However, I write specially to clarify, in light of our jurisprudence, the implications of the Court's holding today that "a defendant who has filed a motion for a remittitur of punitive damages may preclude post- trial discovery of its financial information by stipulating that it will not rely on its financial status as a ground for the remittitur." ___ So. 2d at ___. Punitive damages exist to accomplish society's goals of punishing and deterring egregious tortious conduct. See Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala. 1989) (discussing the purpose of punitive damages in the context of reviewing a punitive-damages award for excessiveness). Remittitur exists and the Green Oil factors were established for the benefit of defendants, insofar as the "benefit" in question is the defendant's "right to a fair punishment," Williams v. Williams, 786 So. 2d 477, 483 (Ala. 2000) (citing Wilson v. Dukona Corp., 547 So. 2d 70, 73 (Ala. 1989) (emphasis added)), and not the defendant's interest in 1051184 53 avoiding punishment. Thus, the trial court's ultimate concern in ruling on a motion for a remittitur is one of fairness. Achieving a fair punishment requires the trial court to consider not only the factors outlined in Green Oil that benefit the defendant's interest in obtaining a favorable ruling, but also the factors that weigh in favor of upholding the punitive-damages award rendered by the jury. See, e.g., Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968, 981 (Ala. 1998) (considering factors that favored, as well as factors that "weigh[ed] against," a finding that the punitive damages awarded were excessive, and reducing the award to an amount "sufficient to punish [the defendant] and to deter it from further [similar] conduct ..., without compromising [the defendant's] due process rights"). Today's decision should not be misunderstood as creating a rule that, on a motion for a remittitur, a trial court is to consider only the factors that benefit the defendant, or that the defendant chooses to place in issue. When a defendant disclaims reliance on a Green Oil factor and thereby precludes discovery into that factor, the defendant does more than merely "waive the benefit" of that factor. As explained in the main opinion, "[t]hat disclaimer requires the trial court 1051184 54 to weigh the [disclaimed] factor against a remittitur." ___ So. 2d at ___ (emphasis added). The main opinion does not address how much weight the trial court should assign the disclaimed factor. Far from escaping its obligations to produce requested relevant, non- privileged discovery, a defendant who successfully precludes discovery regarding a Green Oil factor by disclaiming reliance on that factor must undertake a heavy burden. Because the defendant in those circumstances effectively blocks the trial court from evaluating the true extent to which the disclaimed factor militates against a reduction in the award, the trial court should assign the most extreme weight to the disclaimed factor and give full consideration to that great weight in determining whether, and how much, to reduce the punitive- damages award. Otherwise, the main opinion provides the wrongdoing defendant with a means of avoiding a fair imposition of a punitive-damages award by simply "disclaiming" those Green Oil factors that most strongly militate against a remittitur of the punitive-damages award. Such a result is directly contrary to this Court's jurisprudence emphasizing that the purpose of punitive damages is to punish and deter egregious unlawful conduct and that the purpose of a 1051184 55 remittitur is to protect the defendant's inalienable due- process "right to a fair punishment." Williams, 786 So. 2d at 483 (citing Wilson, 547 So. 2d at 73 (emphasis added)); see also, e.g., Green Oil, 539 So. 2d at 222. Although our law requires a trial court to protect a defendant from unfair punishment, our law must never be read to undermine the court's duty to impose a fair punishment.	April 25, 2008
d80b2a8c-4278-4818-9149-1b605854ab44	Ex parte First Tennessee Bank National Association. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: First Tennessee Bank National Association, as successor personal representative of the estate of Edith Landgrebe Russell, deceased v. Ben Russell et al.)	N/A	1061392	Alabama	Alabama Supreme Court	REL: 4/11/08 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, 2007-2008 _________________________ 1061392 _________________________ Ex parte First Tennessee Bank National Association PETITION FOR WRIT OF MANDAMUS (In re: First Tennessee Bank National Association, as successor personal representative of the estate of Edith Landgrebe Russell, deceased v. Ben Russell et al.) (Jefferson Circuit Court, CV-07-585) SEE, Justice. First Tennessee Bank National Association ("First Tennessee") petitions this Court for a writ of mandamus 1061392 The materials before this Court do not indicate who First 1 Tennessee succeeds as personal representative of Mrs. Russell's estate. 2 directing the Jefferson Circuit Court to vacate its May 23, 2007, order transferring this action to the Tallapoosa Circuit Court on the basis of forum non conveniens. We deny the petition. Facts and Procedural History Benjamin C. Russell ("Mr. Russell") died in 1945; he was survived by his wife, Edith Landgrebe Russell ("Mrs. Russell"). Under Mr. Russell's will, which was probated in Tallapoosa County in 1945, Mrs. Russell received nearly all Mr. Russell's estate. The remaining assets, including stocks, securities, and other interests in certain closely held family companies, were devised to the "Benjamin Russell Trust for Edith Landgrebe Russell" ("the trust") for the benefit of Mrs. Russell during her lifetime or until she remarried. Mrs. Russell never remarried, and she died in June 2004. Mrs. Russell's will was probated in Tallapoosa County. First Tennessee is the successor personal representative of Mrs. Russell's estate.1 1061392 Mr. Russell's will provides that 2 "without in any way limiting the generality of the foregoing, but solely in order to define with particularity certain of the powers hereby vested in the Trustees, I further declare that the Trustees shall have and may, without notice to anyone or order of court, exercise, among others, each and all of the powers following, to be broadly construed with respect to the trust estate and each part thereof, viz: ".... "(H) Upon the death of my said wife, to pay her reasonable funeral and burial expenses and the expenses of her last illness and any income or other taxes due and payable within the calender year of her death by her or on her account." Petition at Exhibit A, pp. 8-9. 3 First Tennessee, a Tennessee corporation, brought this action in the Jefferson Circuit Court, seeking a declaration of the rights of Mrs. Russell's estate with regard to the payment of Mrs. Russell's final expenses out of the trust assets. Petition at 2-3. The 16 defendants in this action, 2 including Ben Russell (collectively "Russell"), are the current trustees and the remainder beneficiaries of the trust. Thirteen of the defendants moved the Jefferson Circuit Court 1061392 The relevant portions of Rule 12(b), Ala. R. Civ. P., 3 provide: "Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (3) improper venue, ... (6) failure to state a claim upon which relief can be granted ...." 4 to dismiss the action pursuant to Rule 12(b)(3) and (6), Ala. R. Civ. P., or, alternatively, for a change of venue under § 3 6-3-21.1, Ala. Code 1975, Alabama's forum non conveniens statute. The Jefferson Circuit Court determined that Tallapoosa County had "the greatest connection to the case" and, thus, that, in the "interest of justice," § 6-3-21.1(a), the action was due to be transferred to the Tallapoosa Circuit Court. Petition at Exhibit F, p. 9. First Tennessee petitioned this Court for the writ of mandamus, arguing that the Jefferson Circuit Court exceeded its discretion in transferring the action to the Tallapoosa Circuit Court; First Tennessee asked this Court to stay all proceedings pending this Court's decision on its mandamus petition. On August 15, 2007, this Court ordered answer and 1061392 5 briefs on the mandamus petition and granted First Tennessee's motion for a stay. Issue The question before the Court is whether the Jefferson Circuit Court exceeded its discretion in transferring this case to Tallapoosa County under the interest-of-justice prong of § 6-3-21.1(a), Ala. Code 1975. Standard of Review "Mandamus is the appropriate device by which to challenge a trial court's decision on a motion for a change of venue." Ex parte Fuller, 955 So. 2d 414, 415 (Ala. 2006) (citing Ex parte Sawyer, 892 So. 2d 919 (Ala. 2004)). "Mandamus is an extraordinary remedy and will be granted only when there is '(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.'" Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991)). "Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court 1061392 6 exceeded its discretion." Ex parte Kane, [Ms. 1060528, Feb. 15, 2008] ___ So. 2d ___, ___ (Ala. 2008) (citing Ex parte Fuller, supra; Ex parte Verbena United Methodist Church, 953 So. 2d 395 (Ala. 2006)). Analysis First Tennessee argues that the Jefferson Circuit Court exceeded its discretion when it transferred this action to the Tallapoosa Circuit Court pursuant to the interest-of-justice prong of § 6-3-21.1(a), Ala. Code 1975. The relevant portion of § 6-3-21.1(a), Ala. Code 1975, provides: "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein." "'A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.'" Ex parte Kane, ___ So. 2d at ___ (quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998)). A trial court should not grant a defendant's motion to transfer an action pursuant to § 1061392 7 6-3-21.1, under the first prong of the statute, that is, on the basis that the forum selected by the plaintiff is "inconvenient," unless the defendant's proffered forum is "'"'significantly more convenient' than the forum in which the action is filed, as chosen by the plaintiffs, to justify transfer."'" Ex parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 1994) (quoting Ex parte Johnson, 638 So. 2d 772, 774 (Ala. 1994), quoting in turn Ex parte Townsend, 589 So. 2d 711, 715 (Ala. 1991)). The second prong of the statute, "'"the interest of justice[,]" 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 Kane, ___ So. 2d at ___ (quoting National Sec. Ins. Co., 727 So. 2d at 790). Russell moved the Jefferson Circuit Court to transfer this action, pursuant to § 6-3-21.1, to the Tallapoosa Circuit Court, arguing that Jefferson County is an "inconvenient" forum and that "the interest of justice" requires the transfer. Petition at Exhibit B. Thus, Russell had the burden of demonstrating "either that [Tallapoosa] County is a more convenient forum than [Jefferson] County or that having the case heard in [Tallapoosa] County would more serve the 1061392 8 interest of justice ...." Ex parte Fuller, 955 So. 2d at 416. The Jefferson Circuit Court first determined that there was "no 'substantial inconvenience' shown [by Russell] which would justify an order transferring venue on [the] ground[] that the venue selected by [First Tennessee] is 'inconvenient to the partes.'" Petition at Exhibit F, p. 9. However, the circuit court found that Tallapoosa County had the "greatest connection" with this action and, under the interest-of- justice prong of § 6-3-21.1(a), ordered the action transferred to Tallapoosa County. The Jefferson Circuit Court noted: "This is a trust arising out of an estate of long-standing in Tallapoosa County, Alabama. The will of [Mr.] Russell was probated in Tallapoosa County, as is the estate of his widow and trust beneficiary. The Circuit Court of Tallapoosa County has already taken certain actions with regard to the administration of the said trust, whereas the Circuit Court of Jefferson County has never taken any action with regard to the probate, administration, or operation of any trust or estate involved in this matter. In fact, the only involvement of this forum with this matter, and the only fact which gives this court an interest, is the involvement of three of its residents as defendants by virtue of their having been designated as residual beneficiaries." Petition at Exhibit F, p. 10. First Tennessee contends that the Jefferson Circuit Court exceeded its discretion because, First Tennessee says, 1061392 It does appear that the prominence of the Russell family 4 in Tallapoosa County may have been a factor in First Tennessee's choice of forum. In a letter to the Jefferson Circuit Court that served as First Tennessee's reply to Russell's brief in opposition to the motion for a change of venue, First Tennessee noted: "Of greater significance is another Tallapoosa County case that involved the persons who are the defendants in this case but did not involve this Trust -- a case which was an [adversarial] proceeding among the members of this prominent family. Ben Russell v. Nancy Gwaltney, et al., CV 05-187. When confronted with the adversarial proceeding (predominantly among the beneficiaries of this Trust), the presiding judge found it necessary to recuse himself in the midst of the litigation and bring in another judge who was not from Tallapoosa County. See attached Order. Surely, the same will happen again when the Tallapoosa County Circuit Court again finds the prominent Russell family in its courtroom." Petition at Exhibit E, p. 3. 9 Jefferson County is a neutral forum and a plaintiff's choice of forum is entitled to great deference. First Tennessee argues that "the 'interest of justice' analysis [under § 6-3- 21.1] is primarily linked to 'forum shopping'" and that there is no indication that Jefferson County is not a neutral forum or that First Tennessee has engaged in forum shopping.4 Petition at 13. In support of its position, First Tennessee 1061392 10 quotes from Ex parte Family First Financial Services, Inc., 718 So. 2d 658, 660 (Ala. 1998), in which this Court stated: "We conclude that the Legislature, in adopting § 6-3-21.1, intended to vest in the trial courts, the Court of Civil Appeals, and this Court the power and the duty to transfer a cause when 'the interest of justice' requires a transfer. "'[W]hen the trial judge determines that a plaintiff is guilty of "forum shopping" and that the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems, the statute provides that the trial court "shall" transfer the cause. What has the Supreme Court of the United States said about "forum shopping" ...? That Court has stated that because plaintiffs are allowed a choice of forum by statute, a plaintiff may be "under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947)....'" First Tennessee argues that this case "bears no resemblance to the forum shopping cases which have moved this Court to correct the efforts of plaintiffs to tilt the courtroom floor in their direction." Petition at 14. First Tennessee quotes Ex parte Fuller, 955 So. 2d at 418, in which this Court noted: "The Crains [the plaintiffs], M & M Trucking [a defendant], most of the witnesses, all the evidence in its various forms, and the accident site are all in Lee County. Fuller [a defendant], who resides in 1061392 11 Macon County, works in Lee County. Thus, Fuller and M & M Trucking have established that the interest of justice requires a transfer of this case [from Macon County] to Lee County. They have a clear legal right to the order sought." Although the fact that three of the defendants here reside in Jefferson County would make venue in Jefferson County proper, we cannot conclude that the Jefferson Circuit Court exceeded its discretion when it transferred this action to Tallapoosa County. First Tennessee contends that "the sole basis for Judge Boohaker's decision to transfer this case rests on the presence in Tallapoosa County of [the Trust] ... and the presence there of the estate of Mrs. Russell ...." Petition at 9. It is clear from the Jefferson Circuit Court's order, however, that the court also considered it significant that "[t]he will of [Mr. Russell] was probated in Tallapoosa County," that "the Circuit Court of Tallapoosa County has already taken certain actions with regard to the administration of the said trust," and that "the only involvement of [Jefferson County] with this matter, and the only fact which gives [the Jefferson Circuit Court] an interest is the involvement of three of its residents as defendants by virtue of their having been designated as residual beneficiaries." Petition at Exhibit F, p. 10. 1061392 12 Moreover, nothing in Family First limits a trial court's use of the interest-of-justice prong under § 6-3-21.1, Ala. Code 1975, to instances in which the trial court determines that a plaintiff has engaged in forum shopping. Instead, it appears from our caselaw that 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 plaintiff's forum with the action. See Ex parte Kane, ___ So. 2d at ___ ("'[T]he "interest of justice" require[s] 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.'" (quoting National Sec. Ins. Co., 727 So. 2d at 790)). See also Ex parte Independent Life & Accident Ins. Co., 725 So. 2d 955, 957 (Ala. 1998) ("From what is before this Court, therefore, it appears that this case has no nexus with Lowndes County that would justify burdening that county with the trial of this case."). In this case, Russell moved the Jefferson Circuit Court to transfer the action under § 6-3-21.1 on the basis that the interest of justice warranted the transfer; thus, the court rightly applied the "nexus" or "connection" analysis. 1061392 13 First Tennessee argues that the Jefferson Circuit Court exceeded its discretion because, First Tennessee argues, the court's order "addressed the 'interest of justice' issue in terms of simple arithmetic, by holding 'venue is proper in the County with the greatest connection to the case.'" Petition at 15. Put another way, First Tennessee appears to take issue with the Jefferson Circuit Court's transfer of this action because that court determined that Tallapoosa County had the "greatest connection" to this action, rather than that Jefferson County lacked a connection with this action and that Tallapoosa County had a strong connection to this case. Although it may be true that the Jefferson Circuit Court noted that it "performed [a] nexus analysis and has found venue to be proper in the County with the greatest connection to the case," Petition at Exhibit F, p. 9, it is clear that the court transferred this action "from a county with little, if any, connection to the action, to the county with a strong connection to the action." Ex parte Kane, ___ So. 2d at ___. As the Jefferson Circuit Court noted, Mr. Russell's will, the instrument that created the trust, was probated in Tallapoosa County. Similarly, Mrs. Russell's estate is situated in Tallapoosa County. Further, the trust is 1061392 14 domiciled in Tallapoosa County, Petition at Exhibit D, and, in 1984 and in 2004, the Tallapoosa Circuit Court took certain actions with regard to the trust. Petition at 8. In addition, of the 16 defendants, 7 are residents of Tallapoosa County, including the current trustees of the trust. Of the 9 remaining defendants, 2 reside in Elmore County, 3 in Jefferson County, and the remaining 4 are residents of Mobile County, Alabama; Baldwin County, Alabama; Atlanta, Georgia; and Scottsdale, Arizona. First Tennessee, a foreign corporation, has not provided this Court with any indication of where it conducts business in Alabama. Thus, the only apparent connection between this case and Jefferson County is the presence in Jefferson County of three remainder- beneficiary defendants who collectively own 8% of the trust assets. Petition at Exhibit E. These facts demonstrate that there is little connection between the action and Jefferson County and that there is a strong connection between the action and Tallapoosa County. Finally, First Tennessee argues that the Jefferson Circuit Court's decision "completely abrogated the substantial deference which the court[s] have traditionally given to the 1061392 First Tennessee relies on Ex parte Townsend, 589 So. 2d 5 711 (Ala. 1991), and Ex parte Bloodsaw, 648 So. 2d 553 (Ala. 1994), to support its argument that "something 'greater,' 'stronger,' 'heavier,' and 'more significant' on the deference scale than 'the County with the most connection' is required." Petition at 16. However, both Ex parte Townsend and Ex parte Bloodsaw are inapposite, because in each case this Court was discussing the convenience-of-the-party prong of § 6-3-21.1, Ala. Code 1975. See Ex parte Verbena United Methodist Church, 953 So. 2d 395, 400 n. 3 (Ala. 2006) ("Baker argues on rehearing that in our earlier opinion we 'overlooked' Ex parte Townsend, 589 So. 2d 711 (Ala. 1991), in which this Court, in dicta, noted that to justify a transfer based upon forum non conveniens the transferee forum must be 'significantly more convenient' than the forum in which the action was filed. The dicta in Townsend discussed only the factor of convenience of the parties and witnesses. It did not consider the interest of justice as a separate basis for transfer as we do here in the context of avoiding burdening Montgomery County with the trial of a case that has a much stronger nexus with Chilton County."). See also Ex parte Bloodsaw, 648 So. 2d at 556 ("However, Bloodsaw chose Macon County as the forum for her case; therefore, it was United's burden to prove [for a transfer under the 'convenience of the parties and witnesses' prong of § 6-5-21.1] that Elmore County is 'significantly more convenient' than Macon County."). 15 plaintiff's choice of forum." Petition at 15. However, as we 5 note above, although the Jefferson Circuit Court concluded that Tallapoosa County had the "greatest" connection to the case, it is clear that the court transferred this action from a venue that had little connection to this action to one that has a strong connection. Ex parte Kane, supra. Moreover, once a trial court determines that the convenience of the parties and witnesses or the interest of justice would be best 1061392 16 served by a transfer, § 6-3-21.1, Ala. Code 1975, compels the trial court to transfer the action to the alternative forum. See § 6-3-21.1, Ala. Code 1975 ("With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed ...."); see also Ex parte Sawyer, 892 So. 2d at 923 n. 4 ("Alabama's forum non conveniens statute is compulsory."). Thus, the Jefferson Circuit Court did not exceed its discretion in transferring this case to Tallapoosa County. Conclusion For the foregoing reasons, we conclude that the Jefferson Circuit Court did not exceed its discretion in ordering that the declaratory-judgment action be transferred from the Jefferson Circuit Court to the Tallapoosa Circuit Court. Therefore, we deny First Tennessee's petition for the writ of mandamus. PETITION DENIED. Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur.	April 11, 2008
dd6acf7f-7389-402c-b5ff-e91cb3187bcf	White Sands Group, LLC, Jeff Valentine and Chris Rolison v. PRS II, LLC et al.	N/A	1070050	Alabama	Alabama Supreme Court	Rel: 04/18/08 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, 2007-2008 _________________________ 1070050 _________________________ White Sands Group, L.L.C.; Jeff Valentine; and Chris Rolison v. PRS II, LLC, et al. Appeal from Baldwin Circuit Court (CV-05-923) WOODALL, Justice. This appeal is brought by Jeff Valentine, Chris Rolison, and White Sands Group, L.L.C. ("White Sands") -- a real-estate developer whose members include Valentine and Rolison (hereinafter referred to collectively as "the Group") -- 1070050 2 following the entry of a summary judgment in favor of PRS II, LLC, and others in a quiet-title action commenced by PRS II against White Sands and Valentine. We affirm in part, reverse in part, and remand. I. The Case This action began on August 3, 2005, when PRS II filed a complaint against White Sands and Valentine. The complaint sought a judgment declaring that PRS II owned an undivided fee interest in approximately 96 acres known as "Pilot Town" in Baldwin County, and that White Sands and Valentine had no valid interest in or claim to any portion of the property. In September 2005, White Sands and Rolison filed a five-count counter-complaint against PRS II and numerous additional entities and individuals. At the motions of the counterclaim defendants, the trial court dismissed counts four and five of the counter-complaint and entered a summary judgment against White Sands and Rolison on the remaining counts of the counter-complaint, as well against White Sands and Valentine on PRS II's complaint. This appeal challenges the propriety of the summary judgment, as well as the dismissal of counts four and five. 1070050 3 II. Factual Background Viewed in a light most favorable to the Group, the evidence tends to show the following. The dispute underlying this litigation arose out of the proposed development of Pilot Town and the purported purchase by White Sands of a portion of the property within the Pilot Town development. The property on which Pilot Town was to be developed was owned by Thomas Langan, Jr. (also referred to as "Tommy Langan"), and other members of the Langan family, either individually or through various business entities hereinafter described. By May 2004, the Langans had begun contemplating the platting and subdivision of that property for sale as single-family residences. Indeed, on December 4, 2002, the Baldwin County Planning and Zoning Commission granted "Preliminary Plat Approval" for the development and subdivision of Pilot Town. The Langans' real-estate operations, and the Pilot Town project in particular, involved various business entities owned by one or more of the Langans. One such entity was Langan Development Company, Inc. ("Langan Development"), a corporation wholly owned by Thomas Langan, Jr. Other entities included Bar Pilot Land, L.L.C. ("Bar Pilot"), and Pilots 1070050 4 Pointe Development, L.L.C. ("Pilots Pointe"). These three entities will be referred to collectively herein as "the Langan entities." In May 2004, Valentine and Rolison met with Langan to discuss a possible purchase by White Sands of property within Pilot Town. Subsequently, on May 12, 2004, Valentine, on behalf of White Sands, addressed a letter to "Thomas J. Langan, Jr.," and "Langan Development Company." The letter stated, in pertinent part: "I'm writing to make a formal offer on lots in the Pilot Town subdivision at mile marker 3 off hwy 180 in Fort Morgan. "We are making the offer thru our development company, White Sands Group, L.L.C. in the amount of $85,000 cash on (5) lots 23-27. We are agreeable to making a deposit to show good faith in the project. "We are in contact with potential buyers of some of your waterfront lots as well. We propose a 5% compensation to White Sands Group for any successful purchasers of additional lots in the neighborhood. "This offer is contingent on amenities described and discussed previously. They are inclusive of but not limited to a swimming pool with waterfall, community entertainment area, community access to the bay front with a possible pier, neighborhood to be gated, etc. "The offer is also contingent on successful subdivision of lots and completion of roadways. It was also expressed that environmental, wetlands 1070050 5 delineation, archeological, beach mouse, and all other issues have been addressed which will provide these lots to be buildable thru the normal permitting process. The offer is also subject to our ability to obtain reasonable financing at the completion of the neighborhood. "I look forward to hearing from you promptly. Please call me if you have any questions." (Emphasis added.) The letter was signed by Valentine as the purchaser. Langan "penciled in" some changes in the third paragraph, and struck out the words "with waterfall" in the fourth paragraph. These changes were reflected in a letter addressed to "Thomas J. Langan, Jr.," and "Langan Development Co.," dated May 17, 2004, which stated, in pertinent part: "I'm writing to make a formal offer on lots in the Pilot Town subdivision at mile marker 3 off hwy 180 in Fort Morgan. "We are making the offer thru our development company, White Sands Group, L.L.C. in the amount of $85,000 cash on (5) lots 23-27. We will place a deposit of $2,000.00 per lot until the subdivision is complete and we can proceed with closing. Upon closing, we agree to pull building permits and begin construction on one of the lots within 2 months. Any delays in the permitting process will be in addition to the 2 month projected start. "White Sands Group will receive 5% compensation for purchasers of waterfront lots, in the amount of $210,000.00 or greater. These buyers will be 1070050 6 introduced by us, and this commission option expires on 6/11/2004. "This offer is contingent on amenities described and discussed previously. They are inclusive of but not limited to a swimming pool, community entertainment area, community access to the bay front with a possible pier, neighborhood to be gated, etc. "The offer is also contingent on successful subdivision of lots and completion of roadways. It was also expressed that environmental, wetlands delineation, archeological, beach mouse, and all other issues have been addressed which will provide these lots to be buildable thru the normal permitting process. The offer is also subject to our ability to obtain reasonable financing at the completion of the neighborhood. "I look forward to hearing from you promptly. Please call me if you have any questions." (Emphasis added.) The letter (hereinafter referred to as "the Valentine letter") was signed by Valentine as the purchaser and initialed by Thomas Langan as the seller. On July 8, 2004, Langan accepted an "offer to purchase" Pilot Town ("the Pilot Town contract") from Peter Sterling and Michael Asfour, members of P&M Builders, LLC ("P&M"), an entity based in New York. The contract expressly excluded lots 23-27, as well as several lots reserved by various members of the Langan family. It contemplated the construction on the remainder of the property of "five 1070050 7 condominium structures" and a "full service marina," consisting of at least 275 "boat slips." On July 22, 2004, Sterling and Asfour contracted with Rolison ("the Rolison contract") for Rolison to perform construction services on the facilities to be built under the Pilot Town contract. Sterling and Asfour sought financing through Peter Morris of PRM Realty, Inc. ("PRM"), in Chicago. In August 2004, Morris, Sterling, Asfour, and Langan viewed the property. At that time, they discussed White Sands' interest in Pilot Town. Also at that time, Morris and Sterling expressed an interest in acquiring Pilot Town in its entirety for the construction of condominiums. In that connection, P&M hired Volkert & Associates, Inc. ("Volkert"), "to perform certain professional surveying, planning, environmental, and engineering services for improvements" to Pilot Town. Subsequently, Tommy Langan and Morris began to discuss whether the Valentine letter was an enforceable contract. Morris wanted the purchase of Pilot Town to include the property in its entirety, and he began, in his words, to "put pressure on" the Langans to include in the sale some or all of the lots excluded from the Pilot Town contract. 1070050 8 On October 11, 2004, the Langans sent Valentine a letter, stating, in pertinent part: "Per your conversation the other day with Tommy Langan, I am writing about your option dated 5/[17]/04 to Langan Development Company. Due to [damage inflicted by Hurricane Ivan] we are having to add some additional cost to the lots to cover the damage, interest and fee delays, and clean-up to name just a few items. At this point we also are not able to complete the swimming pool, community entertainment area, community access to bay or the front wall and gates and are not sure when they will be complete. However once the roadways and base utilities are in we will give you the total cost change per lot and at that time you will need to close on the lots in your option letter. Any additional environmental, wetlands delineation, archeological, or other issues will also have to be taken into consideration as to the total lot cost. Also as previously agreed we are adding the pro-rata share per lot the cost of the proposed pier/marina, bulkhead (time frame for construction not yet determined) and sewer and water cost." (Emphasis added.) On October 21, 2004, after receiving this letter, Valentine sent a letter to Mark Langan, stating, in pertinent part: "I'm writing to express that we are still interested in our reserved lots in Pilot Town. I am enclosing our deposits on lots 23 thru 27. I'm sending the agreed upon $2,000.00 per lot (total $10,000). "I understand there will be delays due to the storm, and we will patiently await the completion of the neighborhood. If there is anything we can be of assistance with, please contact me." 1070050 9 (Emphasis added.) Meanwhile, on October 14, 2004, Morris, individually, and on behalf of PRM; Sterling, individually, and on behalf of P&M; and another entity based in New York executed a joint- venture agreement. The joint venture was conducted "under the name and style PRS." The stated purpose of PRS was, among other things, to "acquire, hold, improve, develop, sell, lease, or manage developed or undeveloped properties," and Pilot Town in particular. Eventually, Volkert drew maps and alternative plans of the proposed project. At least one of the maps displayed condominiums on the entire property. During a planning meeting attended by Rolison, Rolison expressed concern to Sterling regarding any plans to place condominiums on the lots White Sands had expressed an interest in. In response, Sterling told Rolison: "[W]e'll take care of you if we go [to condominiums on the whole property]; we're not choosing to go that direction right now." (Emphasis added.) In January 2005, PRS II was formed to assume essentially the same functions and purposes as PRS. PRS II was composed 1070050 According to the Group, "the closing was directly linked 1 to the original [Pilot Town] contract." Group's brief, at 25. 10 of the same entities as PRS, except that Thomas Langan was added as a member. In February 2005, Morris submitted to Tommy Langan a written proposal to purchase "[a]ll lots" at Pilot Town with the "stipulat[ion] that [the] unenforceable contract to [White Sands would] be voided on five of th[o]se lots," and that "no parcels [would] be carved out and sold to other parties." (Emphasis added.) In a letter to Valentine dated February 11, 2005, the Langans returned White Sands' check for the $10,000 deposit, which had never been cashed, stating, in pertinent part: "At this point the company has decided not to pursue the subdivision, for a variety of reasons. If plans change White Sands will be notified." On March 1, 2005, PRS II received a warranty deed for Pilot Town -- which included the excluded lots -- in exchange for approximately $19 million.1 Two days later, on March 3, Valentine filed an affidavit in the Baldwin Probate Court. The affidavit stated, in pertinent part: "2. On behalf of White Sands Group, L.L.C., I negotiated a purchase contract for the sale of certain lands located in Baldwin County, Alabama, 1070050 Considerable confusion exists regarding the precise 2 Langan entity, or entities, that actually owned Pilot Town. Disposition of this appeal, however, does not depend on resolution of this confusion. 11 with Thomas J. Langan, Jr. acting in the line and scope of his authority with BAR PILOT LAND, L.L.C. and PILOT'S [sic] POINTE DEVELOPMENT, L.L.C. [description followed]. ".... "4. The negotiations for the purchase of the real property resulted in the entry into a contract for the sale of Lots 23, 24, 25, 26 and 27 of the property owned by Bar Pilot Land, L.L.C. and being developed by Pilot's Pointe Development, L.L.C. ..."2 Subsequently, Morris sent Sterling an e-mail, stating, in pertinent part: "Tommy [Langan] received a very hostile lawyer letter from Chris [Rolison] and his partner regarding the five lots on which they ([Rolison] and partner) had conditionally entered into an understanding to acquire said lots on a very advantageous basis a little while ago. I have read the documents carefully and am very comfortable with the fact that there were so many conditions which we unilaterally imposed upon Tommy and his family regarding condition of land, subdivision, achievement along with subdivision restrictions, and other items (all which were exclusively in [Rolison] and partner's domain) to accept or walk away from the deal -- none of which had been accomplished by Tommy or his family at the time of, what I consider, a non-binding statement of facts and understanding to try to agree to go forward. "In my opinion, the Langans have total discretion to make the subdivision and to create whatever 1070050 12 conditions they want and, obviously, this would not be considered a one-way option for [Rolison] and his partner to cherry-pick their visions and get in or out. In my mind, the understanding has so much ambiguity in open trading yet to go that it never roles [sic] through level specificity. Therefore, it is not binding and more an expression of intent. Now, all of a sudden since we have closed, mysteriously, this guy and his partner and lawyer surface, acting as if there was a binding contract with all of the facts fixed and no open-ended variables, with demands of a closing and threats to sue. You have repeatedly told Tommy, and several times told me, that you can handle Mr. [Rolison] and his partner and move him into another direction, as it makes no sense for a guy, who turns out to have very little pull with Volkert, very little standing in the community, and has provided no real palpable service or benefit, to somehow potentially hijack a $500 million project, with five misapplied, misdesigned, mismarketed, and misplaced, out of context units, with a tail to wag the proverbial dog of our master planned project. It is demonstrably not in your interest to allow this to happen and you have repeatedly reflected and represented to Tommy and to me that you can control the situation. I think it would be a show of good faith to intervene, prior to an unnecessary lawsuit -- which, in my opinion, this gentleman and his partner will lose -- and move this forward so we don't have this level of contention with a bunch of third parties .... I think this would avoid messy litigation, which, of course, none of us are afraid [of] and will take in stride, but is truly not necessary for anyone's relationship or for the Venture on these deals we do have." (Emphasis added.) In August 2005, when it appeared to Morris that an action by White Sands was imminent, PRS II sued White Sands and 1070050 13 Valentine, seeking a judgment quieting title to Pilot Town in PRS II and declaring that White Sands and Valentine have no legal or equitable interest in the property. The counter- complaint subsequently asserted against PRS II added Rolison as a counterclaim plaintiff and added (1) Langan Development, (2) Pilots Pointe, and (3) Bar Pilot as counterclaim defendants. It also added as counterclaim defendants P&M, Sterling, and Asfour. Finally, the style of the counter- complaint listed "fictitious defendants 11-23" (hereinafter referred to as "the fictitiously named parties"), described as "those individuals and/or entities who conspired with any of the named defendants in the commission of the wrongs alleged herein." More specifically, count one of the counter-complaint asserted a breach-of-contract claim by White Sands against the Langan entities. Count two was asserted by White Sands against PRS II and the Langan entities, seeking specific performance of the contract. Count three alleged that White Sands "had a valid and existing contract and business relation with [the Langan entities]" and asserted that Sterling, Asfour, and PRS II had "separately and/or collectively 1070050 14 intentionally and wrongfully interfered with said business and/or contractual relations." (Emphasis added.) Count four was a breach-of-contract claim asserted by Rolison. He averred that he had "a contract with [Sterling, Asfour, and P&M] ... for the payment of $800,000.00 for the performance of certain services," and that they had breached that contract. (Emphasis added.) Count five was asserted by White Sands against the fictitiously named parties and alleged conspiracy to "intentionally interfere with the contract and business relations of [the Group]." Motions were filed by all the named counterclaim defendants to dismiss the counter-complaint on the ground that the Alabama Rules of Civil Procedure do not authorize the joinder of the new parties or claims or, in the alternative, to sever the counterclaims, pursuant to Ala. R. Civ. P. 21. White Sands and Rolison expressly opposed severance, as well as dismissal, and specifically argued that the "severance position [had] no merit." On January 11, 2006, the trial court dismissed counts four and five of the counter-complaint. On May 18, 2007, PRS II and the Langan entities moved for a partial summary 1070050 15 judgment as to counts one, two, and three of the counter- complaint. On June 27, 2007, Asfour and Sterling filed a motion for a summary judgment as to count three, the only counterclaim that remained against them. That motion stated, in toto: "Come now the counterclaim Defendants, Michael Asfour and Peter Sterling ... by and through undersigned counsel and will make this their motion for summary judgment as to all counts asserted against Asfour and Sterling as there are no genuine issues of material fact a judgment as a matter of law is due to be granted. "In support of their motion, Asfour and Sterling, Counterclaim Defendants, incorporate by reference the Motion for Partial Summary Judgment filed on May 18, 2007, by [PRS II and the Langan entities], as well as all exhibits and documents filed simultaneously therewith, including but not limited to the Narrative Summary of Undisputed Facts; Brief in Support of Motion for Summary Judgment; and Notice of Filing in Support of Partial Summary Judgment." (Emphasis added.) In other words, Sterling and Asfour filed no supporting argument, brief, or narrative summary of undisputed facts, apart from those filed by PRS II and the Langan entities. On August 6, 2007, PRS II moved for a summary judgment on the claims in its complaint against White Sands and Valentine. 1070050 16 On September 12, 2007, the trial court entered a summary judgment in favor of PRS II on the two claims in its complaint and against White Sands and Rolison on the three remaining claims of the counter-complaint. On October 3, 2007, the Group appealed, challenging the adverse summary judgments, as well as the dismissals of counts four and five of the counter- complaint. III. Summary Judgments This appeal presents issues regarding two aspects of the summary judgments. The first concerns title to Pilot Town, which, in turn, implicates the two claims asserted in the PRS II complaint and counts one and two of the counter-complaint. The second concerns the claims of interference with a contractual or business relationship, which were asserted by White Sands in count three of the counter-complaint. A. Title to Pilot Town The Group concedes that the resolution of its breach-of- contract and specific-performance counterclaims, as well as the resolution of the quiet-title and declaratory-judgment claims of PRS II, turns on the validity and enforceability of the Valentine letter. The issue, as framed by the parties, is 1070050 17 whether the Valentine letter constitutes an enforceable contract for the purchase of lots 23-27. In that connection, PRS II and the Langan entities argued in the trial court, and contend again here, that the Valentine letter is not a contract, because, they say, it fails for lack of definiteness. They allude specifically to the various contingencies described in that letter, such as the construction by the sellers of certain specified "amenities," as well as other unspecified amenities. This contingency, they argue, leaves open the total price to be paid for the lots. They also refer to the fact that the purchase "offer [was] contingent on successful subdivision of lots and completion of roadways," and that there is "nothing in the [Valentine letter] that even required the Langans to affirmatively proceed ... with the subdivision." Brief of PRS II and the Langan entities, at 35 n.3 (emphasis added). They characterize the letter as a nonbinding "letter of intent." In response, the Group argues that "the contract for the sale of the lots was absolutely definite and clear," as indicated by the statement: "We are making the offer ... in the amount of $85,000 cash on (5) lots 23-27." The Group's 1070050 18 brief, at 55. The Group contends that the proposals added by Tommy Langan to the offer preceding the Valentine letter constituted a counteroffer, thus evidencing Langan's understanding of the meaning of the amenities contingency. These factors, according to the Group, present at least a jury question as to "the intent of [the] parties to enter into a contract, or concerning mutual assent." Id. at 52. We disagree. "To be enforceable, the [essential] terms of a contract must be sufficiently definite and certain, Brooks v. Hackney, 329 N.C. 166, 170, 404 S.E.2d 854, 857 (1991), and a contract that '"leav[es] material portions open for future agreement is nugatory and void for indefiniteness"' ...." Miller v. Rose, 138 N.C. App. 582, 587-88, 532 S.E.2d 228, 232 (2000) (quoting MCB Ltd. v. McGowan, 86 N.C. App. 607, 609, 359 S.E.2d 50, 51 (1987), quoting in turn Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974)). "A lack of definiteness in an agreement may concern the time of performance, the price to be paid, work to be done, property to be transferred, or miscellaneous stipulations in the agreement." 1 Richard A. Lord, Williston on Contracts § 4:21, at 644 (4th ed. 2007). 1070050 19 "In particular, a reservation in either party of a future unbridled right to determine the nature of the performance ... has often caused a promise to be too indefinite for enforcement." Id. at 644-48 (emphasis added). See also Smith v. Chickamauga Cedar Co., 263 Ala. 245, 248-49, 82 So. 2d 200, 202 (1955) ("'A reservation to either party to a contract of an unlimited right to determine the nature and extent of his performance, renders his obligation too indefinite for legal enforcement.'") (quoting 12 Am. Jur. Contracts § 66). Cf. Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992) (an indefinite term may "render[] a contract void for lack of mutuality" of obligation). "Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain." 17A Am. Jur. 2d Contracts § 183 (2004). "The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." Id. (emphasis added). See also Smith, 263 Ala. at 249, 82 So. 2d at 203. 1070050 20 We may, therefore, state the dispositive question in this case as whether the parties have "so [definitely] expressed their intentions [in the Valentine letter] that the court [can] enforce their agreement?" Beraha, 956 F.2d at 1440-41. The plaintiff bears the burden on this question. State Farm Fire & Cas. Co. v. Williams, 926 So. 2d 1008, 1013 (Ala. 2005); DeVenney v. Hill, 918 So. 2d 106, 116 (Ala. 2005). We answer it in the negative. Indefiniteness infects the Valentine letter in at least two fundamental respects. The first uncertainty is the price ultimately to be paid for the five lots. Although the letter ostensibly offers $85,000 per lot, it expressly leaves open the financial impact of the amenities on the offering price. The offer was made "contingent on" the future construction of unspecified amenities, such as, "but not limited to[,] a swimming pool, community entertainment area, community access to the bay front with a possible pier, neighborhood to be gated, etc." (Emphasis added.) Even were we to assume, as the Group insists we do, that the entire catalog of amenities could properly be ascertained by parol evidence, more difficult questions remain, such as 1070050 21 whether any of the amenities were to be constructed by the prospective buyers as part of White Sands' purchase price, or solely by the sellers, and, if by the sellers, whether the cost of such construction would be reflected in an adjustment of the base offering price of $85,000. The difficulty is illustrated in the October 11, 2004, letter from the Langans to Valentine, which expressly contemplated "some additional cost to the lots" and an adjustment of the "total lot cost," due, in part, to the unexpected damage from Hurricane Ivan in September 2004. Thus, the total price for the lots is effectively left open in the Valentine letter. The second uncertainty presented by the Valentine letter is even more difficult and fundamental. The problem is that no party involved in this transaction has, at any time, unequivocally committed -- in writing or otherwise -- to perform any of its essential terms. White Sands agreed to pay only after the construction of various amenities and after the "successful subdivision of lots and completion of roadways." However, the letter contains no commitment by anyone to build any amenities or roadways. It is undisputed that the Langans never submitted a final subdivision plat to the Baldwin County 1070050 22 Planning and Zoning Commission for approval, but the Valentine letter contains no commitment by the Langans to do so or to proceed at all with plans to subdivide Pilot Town. Because the Valentine letter left essential aspects of the transaction "open for future agreement" and negotiation, Miller, 138 N.C. App. at 588, 532 S.E.2d at 232, and left to the Langans an "unbridled right to determine the nature of [their] performance," it was "too indefinite for enforcement." Williston, supra, at 647-48. The proposals penciled into the initial offer by Tommy Langan, whether or not they are considered a "counteroffer" as the Group contends, did not transform the Valentine letter into an enforceable contract. Even if the proposals were intended to be a counteroffer, they could not have formed the basis for an enforceable contract. This is so because simply proposing modifications to the largely immaterial third paragraph and deleting the words "with waterfall" from the fourth paragraph did nothing to eliminate the indefiniteness that is fatal to the Valentine letter. 17A Am. Jur. 2d Contracts § 183 (2008) ("Even though a manifestation of intention is intended to be understood as an offer, it cannot 1070050 But see Burlington Constr. Co. v. R.C. Equip. & Constr., 3 Inc., 13 Conn. App. 505, 537 A.2d 534 (1988) (question of fact). 23 be accepted so as to form a contract unless the terms of the contract are reasonably certain."). More specifically, they did nothing to resolve issues surrounding the financial impact of the amenities on the offering price and certainly did not amount to a definite commitment by the Langans to proceed with plans to subdivide Pilot Town. We hold, therefore, that the Valentine letter is unenforceable for lack of definiteness. Although there is authority to the contrary, whether a writing fails for indefiniteness is properly a question of law. Beraha, 956 F.2d at 1440; Richter, S.A. v. Bank of America Nat'l Trust & Sav. Ass'n, 939 F.2d 1176, 1196 (5th Cir. 1991) ("whether a contract fails [for indefiniteness] is a question of law"); Armstrong v. Rohm & Haas Co., 349 F. Supp. 2d 71, 78 (D. Mass. 2004) ("Whether an alleged contract is legally enforceable in light of indefinite terms is a question of law for the court."); America's Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App. 1996) ("[T]he issue of whether an agreement fails for indefiniteness is a question of law to be determined by the court.").3 1070050 24 This view is in accord with Alabama law and practice. For example, in Smith v. Chickamauga Cedar Co., supra, this Court affirmed a judgment of nonsuit sustaining a demurrer to the complaint, holding that an agreement by one party to an alleged contract to "'furnish logs at such location for cutting by [the other party] in such quantities as [the first party] deems feasible and economical," 263 Ala. at 247, 82 So. 2d at 201, was "so indefinite and uncertain as to be unenforceable." 263 Ala. at 248, 82 So. 2d at 202. More recently, in Drummond Co. v. Walter Industries, Inc., 962 So. 2d 753 (Ala. 2006), we affirmed a summary judgment, holding that an open-ended clause in an agreement purporting to modify the terms of existing coal leases "'by extending them "to the extent necessary for plaintiffs to mine the strippable coal"'" was unenforceable for lack of definiteness and was "void as a matter of law." 962 So. 2d at 766. Although the Group argues that the indefiniteness issue was "inappropriate for summary judgment," the Group's brief, at 52, the cases it cites, namely, Ex parte W.Y., 605 So. 2d 1175 (Ala. 1992); Wadsworth House Movers, Inc. v. Salvage One Demolition, Inc., 474 So. 2d 686 (Ala. 1985) (alleged oral 1070050 25 agreement); Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So. 2d 885 (1975); and Big Thicket Broad. Co. of Alabama v. Santos, 594 So. 2d 1241 (Ala. Civ. App. 1991) (alleged oral agreement), are distinguishable and unpersuasive. None of those cases involved an issue similar to the one presented here -- whether the parties have made reciprocal commitments of performance sufficiently definite to be judicially enforceable. Although a jury may resolve ambiguities in a contract through parol evidence, Cole, 294 Ala. at 35, 310 So. 2d at 889, it is no part of a jury's role to decide whether language in a letter reputed to be a contract for the purchase of real estate is sufficiently definite for a court to enforce. For these reasons, the trial court did not err in entering a summary judgment on the breach-of-contract and quiet-title claims. That judgment disposed of PRS II's complaint in a manner favorable to PRS II and disposed of counts one, two, and a portion of count three of the counter- complaint in a manner adverse to White Sands and Rolison, effectively resolving all issues regarding title to Pilot Town. 1070050 Sterling, Asfour, and PRS II do not challenge the joinder 4 of the counterclaim defendants to the interference-with- contractual-and-business-relations claim, which is count three of the counter-complaint. 26 B. Interference with Contractual or Business Relations Count three of the counter-complaint was a counterclaim by White Sands against Sterling, Asfour, PRS II, and certain fictitiously named parties, averring that White Sands "had a valid and existing contract and business relationship" with the Langan entities and that Sterling, Asfour, and PRS II knowingly, intentionally, and wrongfully "interfered with said business and/or contractual relations." The trial court's summary judgment disposed of this count. According to PRS II, Sterling, and Asfour, affirmance of the summary judgment as to the breach-of-contract claims asserted in the counter- complaint ipso facto resolves count three of the counter- complaint against White Sands. With regard to the claim for 4 interference with a contractual relationship, we agree. A claim of tortious interference with a contractual relationship presupposes the existence of an enforceable contract. Alexander v. Petroleum Installation Co., 695 So. 2d 30 (Ala. Civ. App. 1996); Birmingham Television Corp. v. DeRamus, 502 So. 2d 761 (Ala. Civ. App. 1986). As the Group 1070050 27 points out, however, there was another claim asserted in count three, namely, interference with a business relationship. It is widely recognized that tortious interference with a contractual relationship is a claim separate and distinct from interference with a business relationship or expectancy. See Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986); see also Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1157, 63 P.3d 937, 952, 131 Cal. Rptr. 2d 29, 48 (2003); Cochran v. Mullinax , 276 Ga. App. 81, 86, 622 S.E.2d 455, 459 (2005) (interference with contract and interference with business relations are two "separate and distinct" torts); Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 268 Mich. App. 83, 89, 706 N.W.2d 843, 848 (2005); Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002). The Group further argues correctly that the absence of a valid contract is not fatal to their claim of tortious interference with a business relationship. See Britt/Paulk Ins. Agency, Inc. v. Vandroff Ins. Agency, Inc., 952 F. Supp. 1575, 1581 (N.D. Ga. 1996) ("Proof of a valid and enforceable contract is not required as an element of a cause of action 1070050 28 for tortious interference with business relations."), aff'd, Britt/Paulk v. Vandroff Ins., 137 F.3d 1356 (11th Cir. 1998); see also IBP, Inc. v. Hady Enters., Inc., 267 F. Supp. 2d 1148, 1164 (N.D. Fla.); Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla. 1985); O'Brien v. State Street Bank & Trust Co., 82 Ill. App. 3d 83, 401 N.E.2d 1356, 37 Ill. Dec. 263 (1980); United Educ. Distribs., LLC v. Educational Testing Serv., 350 S.C. 7, 564 S.E.2d 324 (S.C. Ct. App. 2002) (the protectable business "expectation need not be based on an enforceable contract"). "The two torts are initially distinguished by their primary elements -- one tort deals with the interference with a fixed-term contract that is already in existence; the other tort deals with 'mere expectancies.' The latter element determines which interests along the continuum of business dealings are protected." Orrin K. Ames III, Tortious Interference with Business Relationships: The Changing Contours of this Commercial Tort, 35 Cumb. L. Rev. 317, 330 (2004-2005) (footnote omitted) (emphasis added). "The [summary-judgment] movant has the initial burden of making a prima facie showing that there is no genuine issue of 1070050 29 material fact; if the movant makes that showing, the burden then shifts to the nonmovant to present substantial evidence of each element of the claim challenged by the movant." Harper v. Winston County, 892 So. 2d 346, 349 (Ala. 2004) (emphasis added). However, if the movant does not satisfy his initial burden, "then he is not entitled to judgment. No defense to an insufficient showing is required." Ray v. Midfield Park, Inc., 293 Ala. 609, 612, 308 So. 2d 686, 688 (1975) (emphasis added). "A motion that does not comply with Rule 56(c)[, Ala. R. Civ. P.,] does not require a response in defense from the nonmovant." Horn v. Fadal Machining Ctrs., LLC, 972 So. 2d 63, 70 (Ala. 2007). Simply stated, "'[a] summary judgment is not proper if the movant has not complied with the requirements of Rule 56.'" 972 So. 2d at 70 (quoting Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782 So. 2d 274, 277 (Ala. 2000)). The brief in support of the summary-judgment motion in this case included an argument under the following heading: "PRS II did not wrongfully interfere with a contractual relationship of White Sands." (Emphasis added.) The entire thrust of the subsequent 2½-page analysis was that the absence 1070050 30 of a "valid enforceable contract" barred recovery. The motion also argued that White Sands could not recover because it had named PRS II in the specific-performance claim, stating: "If PRS II is a party to the contract, as alleged, there could be no wrongful interference." Moreover, in this Court, PRS II and the Langan entities attempt to discount the Group's interference-with-a-business- relationship claim, stating: "White Sands attempts to argue that even if there is no contract, there is ... interference with business relations. Such a theory stretches the imagination. The only business relation between Langan Development and White Sands was the [Valentine] Letter. Because the [Valentine] Letter is not a contract, there can be no interference." Appellees' brief, at 37-38 (emphasis added). Nowhere in their motion for a partial summary judgment -- or in their brief to this Court -- do these appellees acknowledge interference with a business relationship or expectancy as a distinct tort. A summary- judgment movant does not discharge his initial burden to challenge the sufficiency of the evidence of a nonmovant's claim by simply ignoring the claim. 1070050 31 For these reasons, the burden never shifted to the Group to present evidence or an argument in support of their interference-with-a-business-relationship claim. Because PRS II and the Langan entities did not satisfy their burden under Rule 56, Ala. R. Civ. P., the trial court erred in entering a judgment in their favor on count three of the counter- complaint to the extent it disposed of the interference-with- a-business-relationship claim against PRS II and the Langan entities. Likewise, to the extent that the summary judgment disposed of the interference-with-a-business-relationship claim against Sterling and Asfour, the trial court also erred. Sterling and Asfour moved for a summary judgment on count three of the counter-complaint. In so doing, however, they merely "incorporat[ed] by reference the Motion for Partial Summary Judgment filed on May 18, 2007, by [PRS II and the Langan entities], ... including but not limited to [their] ... Brief in Support of Motion for Summary Judgment." In other words, Sterling and Asfour confined themselves to the arguments made by PRS II and the Langan entities. Because those arguments were insufficient to shift the burden to White 1070050 32 Sands as to PRS II and the Langan entities, they similarly failed to shift the burden to White Sands to present evidence or arguments in support of their interference-with-a-business- relationship claim against Asfour and Sterling. Thus, the Group correctly argues that the judgment is due to be reversed insofar as it relates to the interference-with-a-business- relationship claim against Asfour and Sterling. IV. The Dismissal of Counts Four and Five The trial court dismissed counts four and five of the counter-complaint based on the counterclaim defendants' arguments that the counter-complaint improperly joined Rolison, Sterling, Asfour, P&M, and the Langan entities, who were not parties to the complaint. A. Count Four -- Rolison's Claim In count four, Rolison, as a new counterclaim plaintiff, averred that he had entered into a contract with Sterling, Asfour, and P&M "for the payment of $800,000.00 for the performance of certain services," and that they had breached that contract. It was the Rolison contract that allegedly contemplated Rolison's construction of facilities called for in the Pilot Town contract. Count four was, therefore, a 1070050 33 breach-of-contract claim against Sterling, Asfour, and P&M, none of whom was a party to the original action. The Group contends that the joinder of the new parties and claims is authorized by Ala. R. Civ. P. 13(h). We disagree. Rule 13(h) states: "Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20." It is well settled that Fed. R. Civ. P. 13(h) "only authorizes the court to join additional persons in order to adjudicate a counterclaim or cross-claim that already is before the court or one that is being asserted at the same time the addition of a nonparty is sought." FDIC v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994). "This means that a counterclaim or cross-claim may not be directed solely against persons who are not already parties to the original action, but must involve at least one existing party." Id. (emphasis added). See also Various Markets, Inc. v. Chase Manhattan Bank, N.A., 908 F. Supp. 459 (E.D. Mich. 1995); 6 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 1435, at 271 (1990) (under Rule 13(h), "a 1070050 The Federal Rules of Civil Procedure were amended on 5 April 30, 2007, to be effective December 1, 2007. Rule 13(h) now reads: "Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim." According to the Advisory Committee Notes, "[t]he language of Rule 13 [was] amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only." 34 counterclaim or cross-claim may not be directed solely against persons who are not already parties to the original action, but must involve at least one existing party"). These interpretations of Fed. R. Civ. P. 13(h) were generated at a time when that rule read exactly as the Alabama version of the rule reads, i.e., the federal rule "provid[ed] that 'persons other than those made parties to the original action may be made parties to a counter-claim or cross-claim in accordance with the provisions of Rule 19 and 20.'" Fed. R. Civ. P. 13(h), quoted in Wright, Miller, & Kane, supra, § 1434, at 263. "Federal cases construing the Federal Rules of 5 Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure." Ex parte BASF Corp., 957 So. 2d 1104, 1107 n.2 (Ala. 2006). 1070050 35 Rule 13(h) does not authorize the joinder of Rolison's breach-of-contract claim against Sterling, Asfour, and P&M, because none of them was a party to the original action and because Rolison does not assert his breach-of-contract claim against any of the original parties, namely, White Sands, Valentine, and PRS II. In other words, Rolison's claim fails because it does not "involve at least one existing party." Bathgate, 27 F.3d at 873 (emphasis added). For the first time on appeal, the Group argues alternatively that "even if the [joinder] was improper ..., the only proper remedy would be to sever the actions, and not to randomly dismiss [the] two counts." Reply brief, at 31 (emphasis added). It is well known that "we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal." Singleton v. State Farm Fire & Cas. Co., 928 So. 2d 280, 285 (Ala. 2005). It is equally well settled "that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. 'A party may not predicate an argument for reversal on "invited error," that is, "error into which he has led or lulled the trial court."'" Mobile Infirmary Med. 1070050 36 Ctr. v. Hodgen, 884 So. 2d 801, 808 (Ala. 2003) (quoting Atkins v. Lee, 603 So. 2d 937, 945 (Ala. 1992), quoting in turn Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So. 2d 591, 595 (1971)). If there was error in dismissing count four, it was invited when White Sands and Rolison responded to the counterclaim defendants' motions to dismiss or, in the alternative, to sever the counterclaims, with the argument that the "severance position [had] no merit." For these reasons, we refuse to reverse the judgment dismissing count four of the counter-complaint. B. Count Five - Conspiracy Claim Against Fictitiously Named Parties Count five of the counter-complaint represents a claim by White Sands against "fictitious counterclaim defendants 11- 23," averring that they "conspired with each other and/or with" other counterclaim defendants, including PRS II, "to intentionally interfere with the contract and business relations of [White Sands]." (Emphasis added.) To be sure, the fictitiously named parties share the interference claim in count three with PRS II, an original party. However, Rule 13(h) authorizes joinder only where the requirements of Rule 19 or Rule 20 are also satisfied. It is 1070050 37 unclear which of these rules the Group regards as a basis for joinder. The Group does not contend that all, or any, of the fictitiously named parties are "persons needed for just adjudication," as required by Rule 19. Nor does the Group attempt to demonstrate how the requirements of Rule 20 are satisfied. More specifically, Rule 20(a) authorizes joinder of all persons "in one action as defendants if there is asserted against them ... any right to relief in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." (Emphasis added.) Proper joinder requires satisfaction of both prongs of Rule 20(a). Ex parte Novartis Pharms. Corp., [Ms. 1060224, June 1, 2007] ___ So. 2d ___ (Ala. 2007). "This Court has previously stated that 'there is no absolute rule for determining what constitutes "a series of transactions or occurrences" [under Rule 20]. Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.'" Novartis, ___ So. 2d at ___ (quoting Ex parte Rudolph, 515 So. 2d 704, 706 (Ala. 1987) 1070050 38 (emphasis added)). See also 7 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 1652, at 396 (3d ed. 2001). However, the Group offers no such analysis. It does not attempt to define the transactional relationship or to identify the common legal or factual questions that, together, would be necessary under Rule 20(a) to sustain the joinder of the fictitiously named parties in count five. Its discussion of count five contains no citation to relevant caselaw and no factual analysis. Indeed, its argument essentially consists of the statement that the dismissal of the count was "nonsensical." Group's brief, at 36. Consequently, the Group's briefs do not contain the legal and factual analysis necessary to comply with Ala. R. App. P. 28(a)(10). Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So. 2d 914, 923 (Ala. 2002); Arrington v. Mathis, 929 So.2d 468, 470 n.2 (Ala. Civ. App. 2005); Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). "This is so, 1070050 39 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."'" Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9 (Ala. 2007) (quoting Butler v. Town of Argo, 871 So. 2d 1, 20 (Ala. 2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994)). Because we do not address the Group's arguments regarding the dismissal of count five, the trial court's judgment of dismissal as to that count is affirmed. V. Conclusion In conclusion, the judgment dismissing counts four and five of the counter-complaint is affirmed. The summary judgment in favor of the Langan entities is affirmed. The summary judgment in favor of PRS II is affirmed as it relates (1) to the complaint, (2) to count two of the counter- complaint, and (3) to the interference-with-contractual- relations claim in count three of the counter-complaint. The summary judgment in favor of Sterling and Asfour is affirmed as it relates to the interference-with-contractual-relations claim in count three of the counter-complaint. However, the 1070050 40 summary judgment in favor of Sterling, Asfour, and PRS II as it relates to the interference-with-a-business-relationship claim in count three of the counter-complaint is reversed, and the case is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Cobb, C.J., and See, Smith, and Parker, JJ., concur.	April 18, 2008
ec377702-3036-4482-bc23-032555407e09	Ex parte Norfolk Southern Railway Company, Norfolk Southern Corporation, and John D. Summers. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Dexter A. Grandison v. Norfolk Southern Railway Company et al.)	N/A	1060374	Alabama	Alabama Supreme Court	REL:4/25/2008 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, 2007-2008 ____________________ 1060374 ____________________ Ex parte Norfolk Southern Railway Company, Norfolk Southern Corporation, and John D. Summers PETITION FOR WRIT OF MANDAMUS (In re: Dexter A. Grandison v. Norfolk Southern Railway Company et al.) (Clarke Circuit Court, CV-06-61) SMITH, Justice. Norfolk Southern Railway Company ("NSRC"), Norfolk Southern Corporation ("Norfolk Southern"), and John D. Summers (collectively "the petitioners") petition for a writ of mandamus directing the trial court to dismiss, pursuant to Ala. Code 1975, § 6-5-440, the claims asserted against them in 1060374 2 the Clarke Circuit Court by codefendants Rolison Trucking Company, LLC ("Rolison Trucking"); Gail Rolison; Ronny Johnson; and Kim Johnson. We deny the petition. Facts and Procedural History In February 2005, a train operated by NSRC and two NSRC employees--Dexter A. Grandison, a conductor, and Summers, a locomotive engineer--collided with a truck at a railroad crossing in Clarke County. Ronny Johnson was driving the truck for his employer, Rolison Trucking. On April 12, 2006, Grandison filed an action in the Clarke Circuit Court seeking damages for injuries he allegedly suffered in the accident (hereinafter "the Clarke County action"). Grandison sought damages from NSRC under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. He also alleged state-law claims seeking damages against Rolison Trucking and Ronny Johnson for negligence and wantonness. Gail Rolison, the sole member of Rolison Trucking and the owner of the truck, was later added as a defendant. On May 9, 2006, NSRC sued Rolison Trucking, Gail Rolison, and Ronny Johnson in the United States District Court for the Southern District of Alabama, Southern Division, seeking 1060374 3 damages for negligence and wantonness. Specifically, NSRC contended that Johnson negligently or wantonly caused the collision and damaged NSRC's train. On May 26, 2006, Johnson, Rolison Trucking, and Gail Rolison all filed separate answers to Grandison's complaint in the Clarke County action. Additionally, they asserted what they called "cross-claims" against NSRC, seeking damages for negligence, wantonness, and for violation of Ala. Code 1975, § 37-2-81. They further alleged "third-party" claims against Summers, NSRC, and Norfolk Southern (NSRC's parent corporation) and asserted counterclaims against Grandison. Also on that date, Kim Johnson, Ronny Johnson's wife, filed both a motion to intervene and a complaint, which sought damages against Grandison, NSRC, Norfolk Southern, and Summers for loss of consortium. The trial court later granted Kim Johnson's motion to intervene. Ronny Johnson, Kim Johnson, Rolison Trucking, and Gail Rolison later amended the pleadings to allege that their claims against Summers, NSRC, and Norfolk Southern had been erroneously characterized as third-party claims and were actually cross-claims under Rule 13(h), Ala. R. Civ. P. 1060374 Summers and Norfolk Southern did not join NSRC's motion 1 to dismiss; instead, they filed a separate motion to dismiss contending that the "third-party" claims filed against them by the Johnsons, Rolison, and Rolison Trucking were improper under Rule 14, Ala. R. Civ. P. 4 Subsequently, NSRC filed a motion in the Clarke County action contending that Ala. Code 1975, § 6-5-440, required the trial court to dismiss the claims filed against it by the Johnsons, Rolison, and Rolison Trucking because the federal court action had been filed before those claims were filed and thus took precedence over the subsequently filed claims in the Clarke County action. NSRC further argued that the claims 1 the Johnsons, Rolison, and Rolison Trucking were attempting to assert as "cross-claims" were actually compulsory counterclaims that must be asserted in the federal court action. In the meantime, Ronny Johnson, Rolison, and Rolison Trucking moved the federal district court to stay the case under the abstention doctrine found in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Under the Colorado River abstention doctrine, a federal court stays an action when there is an ongoing parallel action in a state court. Moorer v. Demopolis Waterworks & Sewer Bd., 374 1060374 5 F.3d 994, 997 (11th Cir. 2004). In determining whether a stay is warranted, the court balances its obligation to exercise jurisdiction over factors counseling against exercising that jurisdiction. See Moorer, 374 F.3d at 997-98. The federal district court, after weighing various factors, found that the potential for excessive and inconsistent piecemeal litigation outweighed the factors in favor of litigating NSRC's federal court action. Thus, the federal district court found that the Colorado River doctrine required that it abstain from proceeding with the case and entered a stay. The Clarke Circuit Court held a hearing on the motion to dismiss and on November 28, 2006, issued an order denying the motion. NSRC, Norfolk Southern, and Summers then petitioned this Court for mandamus relief. Standard of Review A writ of mandamus is appropriate when the petitioner can demonstrate "(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 1060374 6 court." Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001). Discussion The petitioners contend that the "cross-claims" filed by the Johnsons, Rolison, and Rolison Trucking in the Clarke County action must be dismissed pursuant to Ala. Code 1975, § 6-5-440, which generally prohibits a plaintiff from maintaining duplicate actions: "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times." This Code section, by its plain language, forbids a party from prosecuting two actions for the "same cause" and against the "same party." This Court has previously held that an action pending in a federal court falls within the coverage of this Code section: "'The phrase "courts of this state," as used in § 6-5-440, includes all federal courts located in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State.'" 1060374 7 Ex parte University of South Alabama Found., 788 So. 2d 161, 164 (Ala. 2000) (quoting Weaver v. Hood, 577 So. 2d 440, 442 (Ala. 1991) (citations in Weaver omitted in University of South Alabama)). Additionally, a compulsory counterclaim is considered an "action" for purposes of § 6-5-440. Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So. 2d 598, 599 (Ala. 1993). As this Court has noted: "This Court has held that the obligation ... to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a 'plaintiff' in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So. 2d 414 (Ala. 1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993); Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala. 1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause." Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851 (Ala. 1999). See also University of South Alabama Found., 788 So. 2d at 165 (holding that a party in an action pending in a federal court was subject to the counterclaim rule and thus violated § 6-5-440 by commencing another action in a state 1060374 8 court); Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So. 2d 414 (Ala. 1995) (holding that the prosecution in a subsequent action of claims that had been compulsory counterclaims in a previously filed declaratory-judgment action violated § 6-5-440). The petitioners argue that the claims alleged against NSRC by the Johnsons, Rolison, and Rolison Trucking in the Clarke County action "are compulsory counterclaims which should be asserted (if at all) in the federal court lawsuit," which was filed over two weeks before the Johnsons, Rolison, and Rolison Trucking filed their claims in the Clarke County action. Under § 6-5-440, the petitioners argue, the Johnsons, Rolison, and Rolison Trucking can maintain their claims only in the federal action (where those claims asserted in the Clarke County action would be compulsory counterclaims), which was filed first. We disagree. Since this petition was filed, NSRC appealed the federal district court's decision to stay the case to the United States Court of Appeals for the Eleventh Circuit. In an order dated May 22, 2007, the Eleventh Circuit affirmed the decision of the federal district court, Norfolk Southern Railway v. 1060374 9 Rolison Trucking Co., No. 06-15314 (May 22, 2007, 11th Cir. 2007), and NSRC's petition for a rehearing was denied. Thus, the district court's decision to stay the case under the abstention doctrine of Colorado River remains intact. In Terrell v. City of Bessemer, 406 So. 2d 337 (Ala. 1981), this Court recognized an exception to § 6-5-440 that, by analogy, is applicable in this case. It discussed that exception in University of South Alabama Foundation, 788 So. 2d at 165: "In Terrell, this Court recognized a limited exception to the general rule against prosecuting the same cause of action in two different courts, noting that where a single wrongful act gives rise to both a state cause of action and a federal cause of action, the plaintiff may include his state-law claim with his federal claim and request the court to exercise its power of pendent jurisdiction to hear both claims. Terrell, 406 So. 2d at 339-40. The plaintiff in Terrell included his state-law claims with his federal-law claims; however, the federal district court refused to exercise its discretionary power of pendent jurisdiction. This Court concluded that in a situation where the plaintiff has combined state-law claims with federal claims in an action filed in a federal court and the federal court declines to exercise its discretionary power of pendent jurisdiction over the state-law claims, the plaintiff 'should be afforded an opportunity to pursue his alleged common law theories of recovery in state court.' 406 So. 2d at 339." In the instant case, the federal district court exercised its power under Colorado River to stay the action pending in 1060374 The petitioners also allege that, because the claims 2 asserted by the Johnsons, Gail Rolison, and Rolison Trucking against NSRC are due to be dismissed under § 6-5-440, then their claims against Norfolk Southern and Summers are also due to be dismissed. However, because NSRC's § 6-5-440 argument is without merit, this allegation is without merit as well. 10 that court. NSRC attempted, but failed, to have the Eleventh Circuit Court of Appeals dissolve that stay. For all practical purposes, the federal district court has declined to hear NSRC's claims. If this Court were to halt the Clarke County action pursuant to § 6-5-440, then this case would present the absurd result the Terrell exception was crafted to prevent: the respondents would have no forum in which to present their claims. We thus hold that, when a federal court abstains from hearing a case under the Colorado River doctrine, that case is not considered as an action being prosecuted, for purposes of § 6-5-440. Because the petitioners have not demonstrated that § 6-5- 440 is applicable in this case and because an exception to the Code section applies, the petitioners have not demonstrated a clear legal right to relief they seek. Therefore, the 2 petition is denied. PETITION DENIED. Cobb, C.J., and See, Lyons, Woodall, Stuart, Bolin, Parker, and Murdock, JJ., concur.	April 25, 2008
2d3d5d94-8d94-486c-b36f-05ab61859422	Ex parte Safeway Insurance Company of Alabama, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michelle J. Galvin v. Clifford W. Monday, an individual; and Safeway Insurance Company of Alabama, Inc., a corporation)	N/A	1061613	Alabama	Alabama Supreme Court	REL: 02/29/2008 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, 2007-2008 ____________________ 1061613 ____________________ Ex parte Safeway Insurance Company of Alabama, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Michelle J. Galvin v. Clifford W. Monday, an individual; and Safeway Insurance Company of Alabama, Inc., a corporation) (Jefferson Circuit Court, CV-07-900627) STUART, Justice. Safeway Insurance Company of Alabama, Inc., petitions this Court for a writ of mandamus directing Judge J. Scott 1061613 2 Vowell of the Jefferson Circuit Court to vacate his order denying its motion to dismiss Michelle J. Galvin's bad-faith claim against it and to enter an order dismissing that claim without prejudice. We grant the petition and issue the writ. Facts Safeway issued an insurance policy to Galvin that included uninsured-motorist ("UM") coverage; that policy was in effect on March 31, 2006, when Galvin's automobile was struck by an automobile driven by Clifford W. Monday. On April 16, 2007, Galvin filed a complaint, alleging claims of negligence and wantonness against Monday and a claim of bad-faith failure to pay an insurance claim against Safeway and asserting a demand for the payment of UM benefits under the policy. According to Galvin's complaint, Galvin was injured in the accident and Monday, an uninsured motorist at the time of the accident, was driving while intoxicated. Galvin further stated that after she filed a claim for UM benefits with Safeway, Safeway "refused to negotiate in good faith to pay the appropriate proceeds of the [UM] policy to [her] to compensate her for her injuries and damages." Specifically, she averred: 1061613 3 "As the insurance carrier for the Plaintiff, Michelle J. Galvin, the Defendant, Safeway Insurance Company of Alabama, Inc., had a duty to negotiate in good faith with the Plaintiff and to fairly and promptly pay the proceeds of her insurance policy with Safeway to her following a covered event. "The Defendant, Safeway Insurance Company of Alabama, Inc., breached its duty of fair dealing. Instead, the Defendant refused to negotiate in good faith with Mrs. Galvin, needlessly delayed the payment of proceeds which are due her under the uninsured motorist policy, repeatedly engaged in obstructionist tactics to delay the payment of the claim, and otherwise acted in bad faith in its dealings and negotiations with Mrs. Galvin and her representatives." On May 20, 2007, Safeway filed a motion to dismiss pursuant to Rule 12(b)(1), Ala. R. Civ. P., alleging that the trial court lacked subject-matter jurisdiction over the bad- faith claim. Safeway argued that this Court's holding in Pontius v. State Farm Mutual Automobile Insurance Co., 915 So. 2d 557, 565 (Ala. 2005), that "there can be no bad-faith action based on conduct arising before the uninsured motorist's liability is established and damages are fixed ...." required dismissal of the bad-faith claim for lack of subject-matter jurisdiction. Safeway argued that Galvin's bad-faith claim was not ripe for adjudication and that it 1061613 Safeway did not dispute Galvin's assertion in her 1 complaint that Monday, at the time of the accident, was liable or that he was uninsured or underinsured. 4 should be dismissed because the amount of damages had not yet been fixed. Safeway stated: 1 "The amount of [Galvin's] damages against Monday have not been fixed. There is a dispute about the amount of those damages. It will take a trial of the accident claim to fix the damages. Because the amount of damages is not fixed, the claim for bad faith for the failure to pay [uninsured-motorist] benefits is not ripe, the court lacks subject matter jurisdiction of that claim, and it is to be dismissed without prejudice under Pontius." On June 27, 2007, Galvin filed a response, attaching in support of her argument that the bad-faith claim against Safeway should not be dismissed an affidavit of her attorney, James H. Wettermark. Wettermark averred as follows: "This is a clear case of liability. Mrs. Galvin was struck by a drunk driver who apparently had been convicted on multiple previous occasions for drunk driving. She incurred $15,884 in medical bills. "Because the defendant driver was uninsured, on Mrs. Galvin's behalf, I made a claim for uninsured motorist benefits from her uninsured motorist carrier, Safeway Insurance Company of Alabama. "I made an initial settlement demand on Safeway on August 31, 2006. For the next seven months, Safeway refused to negotiate in good faith. Rather, they made an initial offer of $10,000 on October 4, 2006. This offer is less than the medical specials on a case of clear liability. 1061613 5 "I repeatedly requested that Safeway at least engage in good faith negotiations. I was never successful at getting them to make any additional offers. "Throughout the entire time, Mrs. Galvin has not had money with which to pay her medical bills. Many of them remain unpaid to this date. She paid good premiums for uninsured motorist coverage for just this sort of occurrence. Now, her insurance company has simply refused to negotiate with her in [good] faith. "This is not a case where there is a reasonable dispute over a fair settlement. Safeway has yet to make an offer that even equals the medical bills in a case of clear liability. Rather, this is a clear- cut case where Safeway has simply obfuscated, dragged their feet, and otherwise refused to negotiate in good faith with its own insured to timely settle a claim." On July 5, 2007, the trial court denied Safeway's motion to dismiss. Safeway filed a motion for reconsideration. In its motion, Safeway, relying on Pontius, argued that because the amount of damages had not been fixed and Safeway did not have all Galvin's medical records relating to the accident, Safeway could not have engaged in bad faith in failing to negotiate in good faith and that, consequently, the claim was not ripe for adjudication and should be dismissed. In support of its motion for reconsideration, Safeway attached an 1061613 6 affidavit from Richard Mizell, Safeway's assistant claim manager. Mizell averred: "The auto accident occurred on March 31, 2006. The accident involved a minor impact. ... "The insured did not seek medical attention the day of the accident. Three days later she visited her primary care physician who diagnosed her with sprains of the neck, shoulder and wrist and prescribed pain medication. Three days later the insured began treating with a chiropractor and had twenty-six visits to the chiropractor over a two- month period. The insured did not receive evaluation or treatment by a medical doctor during this time. "A June 2006 MRI showed osteophyte formation with no neural compromise and a small herniation at C5-6. The insured then traveled to Georgia for further diagnostic studies. The findings were to continue with conservative treatment and to possibly have an MRI (it appears from that record that the Georgia physician was unaware the insured had an MRI in Birmingham earlier that week). "Ultimately, the insured submitted medical bills of approximately $15,000. Blue Cross, however, paid only $3,929.62 of the bills (Blue Cross sought subrogation of this amount). ... The medical bills themselves did not show the charges which Blue Cross reduced or did not correlate Blue Cross payments with 'write-offs' with specific charges. Therefore, Safeway requested the explanation of benefit forms ('EOB's') from the insured so it could analyze the discrepancy between the bills submitted and the Blue Cross subrogation amount for this accident. The EOB's were important to determine what treatments and injuries were proximately caused by this accident given the low amount of the Blue Cross subrogation. 1061613 7 "This analysis was especially important because plaintiff had many prior, unrelated medical problems. On her pharmacy records submitted to Safeway, plaintiff blacked out several prescription medications she took. The prescription she did not black out showed she was on four different pain medications after the accident. ... "The insured also contended [Monday] had been convicted of DUI [driving under the influence] from this accident. The police report did not show any alcohol use. Safeway could not find a record that [Monday] was convicted of DUI. Therefore, Safeway wrote [Galvin] asking for records showing the DUI conviction, but [Galvin] never furnished this information. "Safeway paid [Galvin's] collision damage benefit and med pay benefits after the accident. On August 31, 2006, [Galvin] demanded that Safeway pay $80,000 or the uninsured motorist policy limits (which were $60,000). On October 4, 2006, Safeway responded with an opening counteroffer of $10,000. [Galvin] never made another offer in response before filing suit. The insured had not complied with Safeway's request for EOB's to help complete analysis of the value of [her] personal injury claim when she filed suit on April 16, 2007. In Safeway's evaluation, the insured has not submitted evidence establishing that she is entitled to recover the $60,000 uninsured motorists limits, and that the extent of the damages to which she is entitled to recover from the uninsured motorist are unknown." On August 2, 2007, the trial court denied Safeway's motion for reconsideration. On August 10, 2007, Safeway filed its petition for a writ of mandamus in this Court, requesting 1061613 8 this Court to order the trial court to dismiss the bad-faith claim against it. Standard of Review "'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). However, '[f]or the writ of mandamus to issue "'[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief.'"' Ex parte Vance, 900 So. 2d 394, 398- 99 (Ala. 2004)." Ex parte Tuscaloosa County Special Tax Bd., 963 So. 2d 610, 611-12 (Ala. 2007). "This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So. 2d 196, 198 (Ala. 1997)." Ex parte Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000). Discussion Safeway contends that it has a clear legal right to the dismissal of Galvin's bad-faith claim against it because, it says, the claim is not ripe for adjudication and, therefore, the trial court lacks subject-matter jurisdiction. According 1061613 "Federal cases construing the Federal Rules of Civil 2 Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure." Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, [Ms. 1060522, Dec. 14, 2007] ___ So. 2d ___, ___ n.3 (Ala. 2007). 9 to Safeway, Galvin's damages are contested and unliquidated and, thus, a bad-faith claim is premature. Safeway presented its challenge to subject-matter jurisdiction in its motion to dismiss, alleging, pursuant to Rule 12(b)(1), Ala. R. Civ. P., that the trial court did not have subject-matter jurisdiction of the bad-faith claim because Galvin's damages were not fixed, and the claim was thus not ripe. The United States District Court for the District of Columbia provided an excellent discussion of the two types of challenges to jurisdiction a defendant can assert by a Rule 12(b)(1), Fed. R. Civ. P., motion, stating: 2 "Once a defendant has moved to dismiss a case pursuant to Rule 12(b)(1), 'the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence.' Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed. 2d 351 (1992)); see also Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 21 (D.D.C. 2003) (Walton, J.) ('Throughout the Court's jurisdictional inquiry, it is plaintiff's burden to establish that the Court has jurisdiction.'). 'The [C]ourt, in turn, has an affirmative obligation to ensure that it is acting 1061613 10 within the scope of its jurisdictional authority.' Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005)(internal quotations omitted). "A court ruling on a Rule 12(b)(1) motion to dismiss 'may consider documents outside the pleadings to assure itself that it has jurisdiction.' Al-Owhali, 279 F. Supp. 2d at 21; see also Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) ('In 12(b)(1) proceedings, it has been long accepted that the judiciary may make appropriate inquiry beyond the pleadings to satisfy itself on [its] authority to entertain the case.' (internal citations and quotation marks omitted)). The level of scrutiny with which the Court examines the allegations in the complaint that support a finding of jurisdiction, however, depends upon whether the motion to dismiss asserts a facial or factual challenge to the court's jurisdiction. See I.T. Consultants v. Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003). "Facial challenges, such as motions to dismiss for lack of standing at the pleading stage, 'attack[] the factual allegations of the complaint that are contained on the face of the complaint.' Al-Owhali, 279 F. Supp. 2d at 20 (internal quotation marks and citation omitted). 'If a defendant mounts a "facial" challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party.' Erby, 424 F. Supp. 2d at 181; see also I.T. Consultants, 351 F.3d at 1188. The court may look beyond the allegations contained in the complaint to decide a facial challenge, 'as long as it still accepts the factual allegations in the complaint as true.' Abu Ali, 387 F. Supp. 2d at 18; see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005)('At the pleading stage .... [w]hile the district court may consider materials outside the pleadings in 1061613 11 deciding whether to grant a motion to dismiss for lack of jurisdiction, the court must still accept all of the factual allegations in the complaint as true.' (internal citations and quotation marks omitted)). "Factual challenges, by contrast, are 'addressed to the underlying facts contained in the complaint.' Al-Owhali, 279 F. Supp. 2d at 20. Where a defendant disputes the factual allegations in the complaint that form the basis for a court's subject matter jurisdiction, 'the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant.' Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). Instead, a court deciding a Rule 12(b)(1) motion asserting a factual challenge 'must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.' Id. In such situations, 'the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties.' Erby, 424 F. Supp. 2d at 181 (internal quotations omitted); see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1976)(holding that a court ruling on a factual challenge to its jurisdiction is not required to accept the plaintiff's factual allegations as true, but rather 'is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case ... and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims')." Lindsey v. United States, 448 F. Supp. 2d 37, 42-43 (D.D.C. 2006). Thus, a Rule 12(b)(1) motion can allege either a facial challenge, in which the court accepts as true the 1061613 The allegations in the Pontiuses' complaint indicated 3 that liability for the accident and the amount of damages, if any, were in dispute. 12 allegations on the face of the complaint, or a factual challenge, which requires consideration of evidence beyond the face of the complaint. In Pontius, this Court provided a well-reasoned analysis of a facial challenge to a trial court's subject-matter jurisdiction over a bad-faith claim. After recognizing that this Court, when reviewing a trial court's ruling on motion to dismiss based on a facial challenge to the trial court's subject-matter jurisdiction, must not afford the trial court's ruling a presumption of correctness and must accept the allegations in the complaint as true, see Newman v. Savas, 878 So. 2d 1147 (Ala. 2003), we considered the allegations in the Pontiuses' complaint and concluded that the complaint on its face did not establish that the trial court had subject-matter jurisdiction over the bad-faith claim. We stated: "State Farm contends that the face of the Pontiuses' amended complaint clearly demonstrates that a legitimate dispute exists concerning liability and damages arising out of the underlying accident. State Farm argues that Alabama law does [3] not recognize a cause of action for breach of contract or bad-faith failure to pay an insurance claim in the context of UIM [underinsured-motorist] 1061613 13 coverage until liability and damages have been fixed. In other words, State Farm argues that there must be a conclusive determination of liability and damages before State Farm, as the plaintiff's liability carrier, can be liable for breach of contract or bad faith, and that there can be no breach-of-contract or bad-faith claim against the UIM carrier arising out of the investigation, evaluation, or processing of the UIM claim before there is a judgment or settlement of the underlying suit. "This Court has held that 'there can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover.' Quick v. State Farm Mut. Auto. Ins. Co., 429 So. 2d 1033, 1035 (Ala. 1983). In LeFevre v. Westberry, 590 So. 2d 154, 159 (Ala. 1991), we stated: "'Uninsured motorist coverage in Alabama is a hybrid in that it blends the features of both first-party and third- party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be "legally entitled" to collect--that is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled. The question arises: when is a carrier of uninsured motorist coverage under a duty to pay its insured's damages? "'There is no universally definitive answer to this question or to the question when an action alleging bad faith may be maintained for the improper handling of an uninsured or underinsured motorist claim; 1061613 14 the answer is, of course, dependent upon the facts of each case. Clearly, there is a covenant of good faith and fair dealing between the insurer and the insured, as with direct insurance, but the insurer and the insured occupy adverse positions until the uninsured motorist's liability is fixed; therefore, there can be no action based on the tort of bad faith based on conduct arising prior to that time, only for subsequent bad faith conduct.' ".... "In the present case, Pontius did not have to obtain a judgment against the Martins before she joined State Farm as a defendant in her claim for UIM benefits. See State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So. 2d 917 (1973). As to her bad-faith claim arising out of her UIM coverage with State Farm, Pontius had to demonstrate that she was 'legally entitled to recover' damages for bad- faith failure to pay under the policy, and she '"must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages."' LeFevre, 590 So. 2d at 157, quoting Quick, 429 So. 2d at 1035. '[W]here a legitimate dispute exists as to liability, whether under primary coverage or uninsured motorist coverage, a tort action for bad faith refusal to pay a contractual claim will not lie.' Bowers v. State Farm Mut. Auto. Ins. Co., 460 So. 2d 1288, 1290 (Ala. 1984). Breach of an insurance contract is an element of a bad-faith- failure-to-pay claim. Ex parte Alfa Mut. Ins. Co., 799 So. 2d 957 (Ala. 2001). 'There can be no breach of an insurance contract providing uninsured- motorist coverage until the insureds prove that they are legally entitled to recover.' Ex parte State Farm Mut. Auto. Ins. Co., 893 So. 2d 1111, 1115 (Ala. 2004). 1061613 15 "We agree with State Farm that Pontius's breach- of-contract and bad-faith claims were not ripe for adjudication. Without a determination of whether liability exists on the part of the underinsured motorist and the extent of the plaintiff's damages, a claim of bad-faith failure to pay or breach of contract is premature. The trial court properly dismissed the claims because the claims were not ripe for adjudication. However, as discussed earlier, State Farm's motion challenges the subject- matter jurisdiction of the court. A dismissal for lack of subject-matter jurisdiction does not operate as an adjudication on the merits. See Ex parte Capstone Dev. Corp., 779 So. 2d 1216 (Ala. 2000)(a dismissal for lack of subject-matter jurisdiction is treated as a dismissal without prejudice to the plaintiff's right to reinstitute the action)." Pontius, 915 So. 2d at 563-64. Thus, because State Farm presented a facial challenge to the trial court's subject- matter jurisdiction and our examination of the allegations made in the Pontiuses' complaint indicated that liability and damages were in dispute, we concluded that the dismissal without prejudice of Pontius's bad-faith claim against State Farm was proper. In this case, Galvin's complaint appears facially sufficient to show that the trial court has subject-matter jurisdiction over Galvin's bad-faith claim against Safeway. She avers that liability for the accident is uncontested and that the damages are undisputed. Safeway, however, in the form of Mizell's affidavit, presented the trial court with 1061613 See Committee Comments on 1973 Adoption, Rule 12, Ala. 4 R. Civ. P. (providing that a trial court may consider affidavits when a motion to dismiss attacks jurisdiction). See Williams v. Skysite Commc'ns Corp., 781 So. 2d 241, 245 (Ala. Civ. App. 2000). Consideration of Mizell's affidavit, even though it was presented on motion for reconsideration of the trial court's denial of Safeway's motion to dismiss, is proper. See Mobile & Gulf R.R. v. Crocker, 455 So. 2d 829 (Ala. 1984). 16 evidentiary material indicating that the damages were not fixed but were contested. Hence, Safeway's motion presented 4 a factual challenge to the trial court's subject-matter jurisdiction. Safeway has established a clear legal right to a writ of mandamus because Safeway presented unrefuted evidence indicating that the damages are in dispute and, in accordance with Pontius, Galvin's bad-faith claim, as a matter of law, is not ripe; consequently, the trial court does not have subject- matter jurisdiction over the claim. Safeway presented evidence to the trial court in the form of an affidavit from Mizell indicating that the damages were not fixed but were in controversy. In the affidavit, Mizell explained that Safeway had been unable to determine from the documentation provided by Galvin "what treatments and injuries were proximately caused by this accident." Galvin did not present any evidence 1061613 Ripeness is defined as "[t]he circumstance existing when 5 a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made" or "[t]he requirement that this circumstance must exist before a court will decide a controversy." Black's Law Dictionary 1353 (8th ed. 2004). 17 refuting Mizell's statement that she had not provided all the documents requested by Safeway or indicating that Safeway had not contested the extent of damages. Therefore, she did not satisfy her burden of establishing factually that her bad- faith claim is ripe and that the trial court has jurisdiction to entertain her bad-faith claim against Safeway. See OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002)("In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists."). Accordingly, Safeway has established a clear legal right to a dismissal without prejudice of Galvin's bad-faith claim because that claim is not ripe for adjudication, and, consequently, the trial court lacks 5 subject-matter jurisdiction. "[T]here can be no bad-faith action based on conduct arising before the uninsured motorist's liability is established and damages are fixed; therefore, 'there can be no action based on the tort of bad faith based on conduct arising prior to that time, only for 1061613 18 subsequent bad faith conduct.'" Pontius, 915 So. 2d at 565 (quoting LeFevre, 590 So. 2d at 159). Conclusion Safeway has established a clear legal right to the dismissal without prejudice of Galvin's bad-faith claim against it. Therefore, we issue the writ directing the trial court to vacate its order denying Safeway's motion to dismiss and to order that Galvin's bad-faith claim against Safeway be dismissed without prejudice. PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin, and Parker, JJ., concur. Murdock, J., concurs in the result. 1061613 Alternatively, where the pleading itself is insufficient, 6 as the main opinion suggests was the case in Pontius v. State Farm Mutual Automobile Insurance Co., 915 So. 2d 557 (Ala. 2005), the remedy could, as appropriate, be a motion under Rule 12(b)(6), Ala. R. Civ. P. (failure to state a claim) or Rule 12(c), Ala. R. Civ. P. (judgment on the pleadings). See note 8, infra. 19 MURDOCK, Justice (concurring in the result). I concur in the result reached by the majority opinion because I agree that, given the state of the record in this action, the plaintiff's bad-faith claim is premature. I am not persuaded, however, that the concept of "ripeness" is the appropriate concept by which to describe the problem with the plaintiff's claim. And I especially am not persuaded that the problem here is of a jurisdictional nature. For all that appears, this is a case in which the plaintiff simply is unable to demonstrate that the wrongful conduct she alleges to have occurred, actually has occurred. Addressing such circumstances is one of the purposes for which summary judgment is made available under Rule 56, Ala. R. Civ. P.6 The concept of "ripeness" is much criticized as a concept of "vague and ill-defined nature and complexity." See, e.g., Edward B. Sears, Lujan v. National Wildlife Federation: Environmental Plaintiffs Are Tripped up on Standing, 24 Conn. 1061613 20 L. Rev. 293, 329 (1991). Nonetheless, the definition of "ripeness" provided by the United States Supreme Court is consistent with the view that that concept is not apposite in this case. That definition suggests that a wrongful "decision," or other wrongful action already has occurred, but that injury is not yet sufficiently "concrete" to make judicial evaluation appropriate. Specifically, the Court has defined ripeness as "a justiciability doctrine designed 'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way ....'" National Park Hospitality Ass'n v. Department of the Interior, 538 U.S. 803, 807 (2003) (emphasis added) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Thus, as I have always understood it, the concept of ripeness was not designed to address circumstances where the would-be defendant has not even committed the bad act upon which a claim against him might be based, but to "determine[] whether the administrative action that has already occurred is appropriate for judicial review." 1061613 I have always understood "ripeness," at least in the 7 justiciability context, as typically focusing upon the "concreteness" of the plaintiff's injuries. As two commentators have put it, the purpose of the doctrine is "to sift out cases that involve speculative injuries that may never cause concrete harm." Sarah Helene Duggin and Mary Beth Collins, "Natural Born" in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 116 (2005) (footnote omitted). "[R]ipeness focuses on whether the plaintiff's alleged injury either actually has occurred or is sufficiently likely to occur that the issues are concretely framed and judicial resolution is not deemed unnecessary." Id. (footnote omitted). 21 Robert C. Power, Help is Sometimes Close at Hand: The Exhaustion Problem and the Ripeness Solution, 1987 U. Ill. L. Rev. 547, 614 (1987) (emphasis added). "Ripeness, thus, evaluates the suitability for review of existing agency action from a judicial viewpoint ...." Id. (emphasis added). If something does not exist, that is, if a tort has not yet occurred, it can be neither "ripe" nor "unripe."7 In the present case, however, the undisputed evidence indicates that there has been no "decision" or other "action" as to which a bad-faith claim could be brought. Based on the specific materials before us, it must be concluded that there has been no bad-faith failure to investigate the plaintiff's policy claim, nor has their been a decision to deny benefits, much less a decision to deny benefits that was made in bad 1061613 22 faith. The insurer, according to the undisputed evidence, is still in the process of conducting a good-faith, reasonable investigation. If we nonetheless are to attach the label of "ripeness," then, at a minimum, we should recognize that we are in fact using that concept to measure the substantive sufficiency of the plaintiff's claim, or at least the substantive sufficiency of the plaintiff's proof at this juncture, that a wrongful act or decision by the insurer already has occurred. I believe we unnecessarily confuse our jurisprudence, and set a precedent that may have unforseen consequences in future cases, to go the further step of holding that this brand of ripeness 1061613 As one commentator has suggested, the ripeness doctrine 8 has in fact been used by federal courts in recent years "to measure the demands of substantive statutory or constitutional causes of action," but "[t]his application of the doctrine does not relate to jurisdictional power at all. Instead, it is an aspect of actionability analysis –- that is, the determination of whether the litigant has stated a claim on which relief can be granted. ... See Fed. Rule Civil Proc. 12(b)(6)." Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153, 162 (1987) (emphasis added) (footnote omitted) (acknowledging that "ripeness decisions are often substantive rulings in another form," but expressing the view that this "use of the doctrine is [not] illegitimate," id. at 169). In the context of a federal Art. III analysis, the same commentator states that it would seem to be "a major mistake, however, to confuse this sort of inquiry with the application of a constitutional barrier to the exercise of judicial power" and concludes that "[i]t is probably a mistake to characterize this method of analysis as jurisdictional at all." Id. at 169-70 (emphasis added). 23 implicates the trial court's jurisdiction. As this Court 8 aptly observed recently: "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). In deciding whether Seymour's claim properly challenges the trial court's subject- matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged 1061613 24 and as to which he has filed his petition for certiorari review. "Under the Alabama Constitution, a circuit court 'shall exercise general jurisdiction in all cases except as may be otherwise provided by law.' Amend. No. 328, § 6.04(b), Ala. Const. 1901 [§ 142, Ala. Const. 1901 (Off. Recomp.)]. ... As a result, the State's prosecution of Seymour ... was within the circuit court's subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case." Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). By the same token, a complaint may suffer from a defect in pleading or proof, but that fact "does not divest the circuit court of the power to [decide] the case." At oral argument in this case, more than one member of this Court had questions regarding the breadth of discovery that might be available if premature claims of bad faith against insurers are allowed to be coupled with actions to establish coverage. I was one of those members, and I am concerned about the answer to those questions. That issue is not before us in this case, however. Moreover, I believe concerns over this issue can be addressed in one or more other ways that are more straightforward jurisprudentially and that do not incorrectly invoke the concepts of ripeness and, especially, subject-matter jurisdiction.	February 29, 2008
8b26e15f-287e-4783-a949-e88bb7059842	State of Alabama, by and through Governor Bob Riley and Attorney ( 325 ) General Troy King v. Lorillard Tobacco Company, Inc., et al.	N/A	1060988	Alabama	Alabama Supreme Court	REL: 3/28/08 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, 2007-2008 ____________________ 1060988, 1060989, and 1060990 ____________________ State of Alabama, by and through Governor Bob Riley and Attorney General Troy King v. Lorillard Tobacco Company, Inc., et al. Appeals from Montgomery Circuit Court (CV-98-2941, CV-98-2940, and CV-96-1508) SEE, Justice. The State of Alabama ("the State") appeals from an order of the Montgomery Circuit Court compelling arbitration and denying the State's motion for a declaratory order in an underlying action involving tobacco-product manufacturers. We 1060988, 1060989, 1060990 R.J. Reynolds Tobacco Company, Inc., and Brown & 1 Williamson Tobacco Corporation merged in 2004. Therefore, the original PMs now consist of Phillip Morris USA, Inc., R.J. Reynolds Tobacco Company, Inc., and Lorillard Tobacco Company, Inc. On November 19, 1998, the circuit court consolidated the 2 three tobacco-related cases from which these appeals are taken. Specifically, State of Alabama et al. v. American Tobacco Co. et al., (CV-98-2940); Blaylock et al. v. American Tobacco Co. et al. (CV-96-1508); and State of Alabama v. Philip Morris Inc., et al. (CV-98-2941). This Court subsequently assigned those actions the following case numbers on appeal: Supreme Court case no. 1060988 (CV-98-2941); case 2 affirm in part, reverse in part, and remand. Facts and Procedural History In 1998, the State and 45 other states, the District of Columbia, Puerto Rico, the Virgin Islands, American Somoa, the Northern Mariana Islands, and Guam (collectively "the settling states") entered into a master settlement agreement ("the agreement") with Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Inc., Lorillard Tobacco Company, Inc., and Brown & Williamson Tobacco Corporation. These four tobacco- product manufacturers are referred to in the agreement as the original participating manufacturers ("original PMs"). The 1 agreement arose out of lawsuits filed by the settling states seeking to recover health-care costs for smoking-related illnesses. Under the terms of the agreement, the settling 2 1060988, 1060989, 1060990 no. 1060989 (CV-98-2940); and case no. 1060990 (CV-96-1508). These appeals have been consolidated for the purposes of writing one opinion. 3 states agreed to dismiss the lawsuits and to release the tobacco-product manufacturers from all future claims. In return, the tobacco-product manufacturers agreed to abide by specific advertising and marketing restrictions and to make annual payments based upon each tobacco-product manufacturer's nationwide cigarette sales. The agreement allowed other tobacco-product manufacturers to join in the agreement and thereby to avoid future litigation. Nearly 40 smaller manufacturers did so. These tobacco-product manufacturers became known as the subsequent participating manufacturers ("subsequent PMs"). The original PMs and the subsequent PMs are collectively referred to as the participating manufacturers ("PMs"). The tobacco-product manufacturers that chose not to enter into the agreement are referred to as the nonparticipating manufacturers. The agreement requires each PM to make an annual lump-sum payment into an escrow account. The balance of that account is then distributed among the settling states based upon their predetermined allocable shares. The payment obligation of 1060988, 1060989, 1060990 The agreement provides that the auditor "shall be a 3 major, nationally recognized, certified public accounting firm jointly selected by agreement of the Original Participating Manufacturers and those Attorneys General of the Settling States who are members of the [National Association of Attorneys General] executive committee." § XI(b). The current auditor is PricewaterhouseCoopers, LLP. 4 each PM is determined by an independent auditor, as defined in the agreement ("the auditor"). The agreement provides that 3 the auditor "shall calculate and determine the amount of all payments owed pursuant to this Agreement, the adjustments, reductions and offsets thereto ..., [and] the allocation of such payments, adjustments, reductions, offsets and carry- forwards ..., and shall perform all other calculations in connection with the foregoing." § XI(a)(1). In determining the payment obligation of each PM, the auditor begins with an annual aggregate base payment obligation enumerated in the agreement for all PMs for each particular year. The auditor then apportions the aggregate base payment among the PMs based upon each PM's national market share of tobacco products. If the auditor determines that the amount of the aggregate base payment is subject to any reductions, adjustments, or offsets listed in the agreement, the payment obligation of each PM is reduced accordingly. 1060988, 1060989, 1060990 5 The nonparticipating-manufacturer adjustment is one of the adjustments included in the agreement. The drafters of the agreement acknowledged that the nonparticipating manufacturers could receive an economic advantage from not being subject to the payment obligations and marketing restrictions in the agreement, and that, as a result, the PMs could suffer a loss in market share to the nonparticipating manufacturers. The nonparticipating-manufacturer adjustment entitles the PMs to an adjustment of the aggregate base payment if the aggregate market share of the PMs during the year for which the payment is being calculated was more than two percentage points below their 1997 market share and if a nationally recognized firm of economic consultants ("the firm") "determines that the disadvantages experienced as a result of the provisions of this Agreement were a significant factor contributing to the Market Share Loss for the year in question." § IX(d)(1)(C). Even if the nonparticipating-manufacturer-adjustment requirements are satisfied and the PMs' payments are therefore due to be reduced, the agreement provides that the allocated payment to a settling state nonetheless may be exempt from 1060988, 1060989, 1060990 The State has enacted such a statute. See § 6-12A-1 et 4 seq., Ala. Code 1975. A qualifying statute must impose payment obligations on the nonparticipating manufacturers, who are not subject to the annual payment obligations in the agreement. Alabama's qualifying statute requires each nonparticipating manufacturer to establish a "qualified escrow fund" to be available to pay any judgment or settlement on any released claim brought against such manufacturer by the State or any releasing party located or residing in the State and to make scheduled deposits into the escrow fund based upon each nonparticipating manufacturer's cigarette sales in the State for the preceding calendar year. See § 6-12A-3(a)(3)b.1. and 2., and d.1., Ala. Code 1975. 6 such reduction "if such Settling State continuously had a Qualifying Statute ... in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due, and diligently enforced the provisions of such statute during such entire calendar year." § IX(d)(2)(B). If a settling state qualifies for this 4 exemption from a reduction in payment, that state's share of the nonparticipating-manufacturer adjustment is reallocated pro rata among the nonexempt states in proportion to the nonexempt states’ allocable shares. The agreement further provides that, "except as provided in subsections IX(d), XI(c), and XVII(d)," the state court that approved the agreement "shall retain exclusive jurisdiction for the purposes of implementing and enforcing 1060988, 1060989, 1060990 7 this Agreement and ... shall be the only court to which disputes under this Agreement ... are presented as to such Settling State." § VII(a). That court for the State is the Montgomery Circuit Court. One of the exceptions to a state court's exclusive jurisdiction under the agreement is the arbitration provision, namely § XI(c), which provides: "Any dispute, controversy, or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX(j) or subsection XI(i)) shall be submitted to binding arbitration before a panel of three neutral arbitrators, each of whom shall be a former Article III federal judge. Each of the two sides to the dispute shall select one arbitrator. The two arbitrators so selected shall select the third arbitrator. The arbitration shall be governed by the United States Federal Arbitration Act." The auditor has refused to apply the nonparticipating- manufacturer adjustment to the PMs' annual payments for 2006. In 2004, while calculating the payment each PM owed for 2003, the auditor determined that the PMs had suffered an adequate market-share loss as compared to their 1997 market share. Thus, the matter was referred to the firm to determine whether the agreement was a significant factor contributing to the 1060988, 1060989, 1060990 8 PMs' market-share loss. In March 2006, the firm determined that the economic obligations and marketing restrictions of the agreement were a significant factor that contributed to the PMs' market-share loss for 2003. The original PMs, therefore, asked the auditor to apply the nonparticipating- manufacturer adjustment to the 2006 payments to the settling states. The auditor declined to do so because the auditor, at the settling states' request, presumed that each settling state had enacted and was diligently enforcing a qualifying statute. In a March 7, 2006, letter to the PMs and the settling states, the auditor specifically noted that "[t]he Independent Auditor is not charged with the responsibility under the Agreement of making a determination regarding this issue ... [and] is not qualified to make the legal determination as to whether any particular Settling State has 'diligently enforced' its Qualifying Statute." The auditor further noted that the auditor would continue to employ the same method in calculating the PMs annual payment amount until this dispute was resolved by the parties or by a trier of fact. The original PMs paid the full amounts calculated by the auditor, without the nonparticipating-manufacturer 1060988, 1060989, 1060990 The agreement is the result of lawsuits originally filed 5 by the State against the tobacco-product manufacturers, which resulted in both sides entering into the agreement. Therefore, the State was not "made a defendant in any court of law or equity" (Art. I, § 14, Ala. Const. 1901), and sovereign immunity is not implicated, even though the original PMs moved to compel the State to arbitrate. 9 adjustment, despite the fact that the original PMs maintained that the auditor should have applied the adjustment. However, R.J. Reynolds Tobacco Company, Inc., and Lorillard Tobacco Company, Inc., placed the sum constituting the nonparticipating-manufacturer adjustment into the "Disputed Payment Account," as provided in §§ XI(d)(7) and (8) of the agreement. On October 30, 2006, the original PMs moved the Montgomery Circuit Court to compel the State to arbitrate the auditor's decision not to apply a nonparticipating- manufacturer adjustment. The subsequent PMs joined that 5 motion. The State opposed the motion to compel arbitration as to the question whether it had diligently enforced its qualifying statute, but it agreed to participate in the national arbitration as to the question whether the auditor should have applied a nonparticipating-manufacturer adjustment to the payments for the 2006 calendar year. The State 1060988, 1060989, 1060990 Section VII(c) provides: 6 "Except as provided in subsections IX(d), XI(c), XVII(d) ... any Settling State or Participating Manufacturer may bring an action in the Court to enforce the terms of this Agreement (or for a declaration construing any such term ('Declaratory Order')) with respect to disputes, alleged violations or alleged breaches within such Settling State." 10 alternatively argued that if the diligent-enforcement question is subject to arbitration, then the arbitration should be a local proceeding involving only the State and the PMs. The State subsequently notified the original PMs that it intended to seek a declaratory order pursuant to § VII(c) of the agreement, interpreting specific provisions of the agreement, 6 including the term "diligent enforcement." The Montgomery Circuit Court held that the plain language of the arbitration clause in the agreement requires the parties to submit to arbitration the question of the State's diligent enforcement of its qualifying statute and that the arbitration proceeding should be national in scale. The Montgomery Circuit Court also denied the State's request for a declaratory order. The State appeals. Standard of Review "'We review the trial court's grant or denial of a motion 1060988, 1060989, 1060990 11 to compel arbitration de novo.'" Paragon Ltd., Inc. v. Boles, [Ms. 1061255, December 21, 2007] ___ So. 2d ___, ___ (Ala. 2007) (quoting Title Max of Birmingham, Inc. v. Edwards, [Ms. 1051140, May 18, 2007] ___ So. 2d ___, ___ (Ala. 2007)). Analysis Both the State and the PMs agree that the agreement contains a valid arbitration clause. They disagree as to the scope of the arbitration clause as it pertains to the question of the State's diligent enforcement of its qualifying statute. Therefore, this Court must determine whether the arbitration clause encompasses the parties' dispute over the State's diligent enforcement of its qualifying statute. A. The Arbitrability of the Diligent-Enforcement Issue It is well established that "'the interpretation of an arbitration agreement within the scope of the [Federal Arbitration Act]' is governed by 'general state-law principles of contract interpretation.'" Orkin Exterminating Co. v. Larkin, 857 So. 2d 97, 103 (Ala. 2003) (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475 (1989)). "'When a court construes a contract, "the clear and plain meaning of the terms of the 1060988, 1060989, 1060990 12 contract are to be given effect, and the parties are presumed to have intended what the terms clearly state."'" H & S Homes, L.L.C. v. Shaner, 940 So. 2d 981, 988 (Ala. 2006) (quoting Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So. 2d 1129, 1133 (Ala. 2003), quoting in turn Strickland v. Rahaim, 549 So. 2d 58, 60 (Ala. 1989)). "'"[I]n applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [Federal Arbitration] Act, due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration."'" Title Max of Birmingham, ___ So. 2d at ___ (quoting Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 745 (Ala. 2000), quoting in turn Volt Info. Sciences, Inc., 489 U.S. at 475-76)). The State argues that the diligent-enforcement question is not subject to arbitration because, it argues, any questions concerning the diligent enforcement of the State's qualifying statute should be decided by the Montgomery Circuit Court, which, under § VII, retains exclusive jurisdiction over the implementation and enforcement of the agreement. The 1060988, 1060989, 1060990 13 State further argues that this Court should hold that the Montgomery Circuit Court should decide the diligent- enforcement question because, it argues, the provision that gives the Montgomery Circuit Court jurisdiction over the implementation and enforcement of the agreement precedes, and is inconsistent with, the arbitration clause. It is well established that "'the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute that he did not agree to submit.'" UBS Fin. Servs., Inc. v. Johnson, 943 So. 2d 118, 121 (Ala. 2006) (quoting Capital Inv. Group, Inc. v. Woodson, 694 So. 2d 1268, 1270 (Ala. 1997)). "The language of the contract entered into by the parties determines whether a particular dispute should be submitted to arbitration under the contract." Capital Inv. Group, 694 So. 2d at 1270 (citing Blount Int'l, Ltd. v. James River-Pennington, Inc., 618 So. 2d 1344 (Ala. 1993)). In construing an arbitration agreement, a court must construe the contract "as a whole; detached words or clauses standing alone are not controlling on the question of interpretation, each being viewed in relation to the agreement as an entity." Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 1060988, 1060989, 1060990 14 808 So. 2d 999, 1012 (Ala. 2001) (quoting Cedars-Sinai Med. Ctr. v. State Board of Equalization, 162 Cal. App. 3d 1182, 1188, 208 Cal. Rptr. 837, 840 (1984)). "Additionally, this Court will interpret the terms of a contract to give 'effect to all terms used.'" Medical Servs., LLC v. GMW & Co., 969 So. 2d 158, 162 (Ala. 2006) (quoting Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So. 2d 722, 725 (Ala. 1995)). The enforcement provision of the agreement, § VII(a)(3), does provide that for the State the Montgomery Circuit Court "shall be the only court to which disputes under this Agreement or the Consent Decree are presented." However, the Montgomery Circuit Court's broad jurisdictional mandate is limited by the preceding clause of § VII(a)(3) ("except as provided in subsection[] ... XI(c)"). Section XI(c) provides for the arbitration of "[a]ny dispute ... arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor." Therefore, the Montgomery Circuit Court retains jurisdiction to determine whether the State diligently enforced its qualifying statute only if that question is not subject to the arbitration provision in the 1060988, 1060989, 1060990 The State's argument that the Montgomery Circuit Court 7 retains jurisdiction over the diligent-enforcement issue because § VII, the enforcement provision, precedes the arbitration provision in § XI(c) is without merit. There is a rule of construction that provides that "if there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed." City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So. 2d 917, 924 (1968). The State, however, does not demonstrate that the enforcement provision and the arbitration provision of the agreement are inconsistent as to whether the Montgomery Circuit Court or a panel of arbitrators will determine the diligent-enforcement question. Instead, the State's argument simply demonstrates that the two provisions are mutually exclusive. Therefore, depending on which clause is found to apply, the agreement exclusively vests in either the Montgomery Circuit Court or a panel of arbitrators the authority to make the diligent-enforcement determination. See Celtic Life Ins. Co. v. McLendon, 814 So. 2d 222, 225 (Ala. 2001) ("[A]s a practical matter, arbitration and litigation of the same subject matter are mutually exclusive."). 15 agreement.7 The agreement, § XI(c), provides that "[a]ny dispute, controversy, or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations...) shall be submitted to binding arbitration ...." The State argues that the dispute over diligent 1060988, 1060989, 1060990 In holding that the arbitration clause compels 8 arbitration of the dispute over diligent enforcement, we note that our decision is in agreement with the overwhelming majority of jurisdictions that have addressed this issue. See, e.g., State v. Philip Morris, Inc., [No. 2844, February 1, 2008] A.2d , (Md. Ct. Spec. App. 2008) ("After giving effect to each clause and construing [the agreement] in its entirety, arbitration is mandatory."); Commonwealth v. Philip Morris, Inc., 448 Mass. 836, 844-45, 864 N.E.2d 505, 512 (2007) ("The language of the settlement agreement arbitration clause thus plainly and unambiguously encompasses the present dispute."); State v. Philip Morris USA, Inc., 155 N.H. 598, 608, 927 A.2d 503, 512 (2007) ("Thus, a dispute over diligent enforcement arises out of a determination by the Independent Auditor whether to apply the [nonparticipating- manufacturer] Adjustment."); State v. Philip Morris, Inc., 8 N.Y.3d 574, 581-82, 869 N.E.2d 636, 640 (2007) ("We therefore conclude that the questions whether New York enacted and diligently enforced a Qualifying Statute and whether it was correctly spared the [nonparticipating-manufacturer] 16 enforcement is not arbitrable because, it says, the arbitration provision is narrow and extends only to a limited range of disputes. However, the PMs contend that the inclusion in the arbitration provision of the "arising out of or relating to" language indicates that "the parties intended to subject to arbitration a broad field of issues having connection with or referring to the Independent Auditor's determinations." Original PMs' brief at 24. We conclude that the clear and unambiguous language of the arbitration provision compels arbitration of the dispute over the State's diligent enforcement of its qualifying statute.8 1060988, 1060989, 1060990 adjustment are arbitrable."); State v. Philip Morris, Inc., 732 N.W.2d 720, 731 (N.D. 2007) ("We conclude the plain and unambiguous language of the settlement agreement requires arbitration of the parties' dispute over application of the diligent enforcement exemption to the non-participating manufacturer adjustment ...."). The only contrary case of which we have been made aware is a Louisiana trial court opinion that is presently on appeal. Foti v. Philip Morris USA, Inc., No. 1998-6473 (La. Dist. Ct. May 31, 2007), appeal docketed, No. CA 0833 (App. 3d Cir.). 17 i. The broad language of the agreement requires arbitration of the diligent-enforcement dispute "'This Court has held [that] where a contract signed by the parties contains a valid arbitration clause that applies to claims "arising out of or relating to" the contract, that clause has a broader application than an arbitration clause that refers only to claims "arising from" the agreement.'" Green Tree Fin. Corp. v. Vintson, 753 So. 2d 497, 505 (Ala. 1999) (quoting Reynolds & Reynolds Co. v. King Autos., Inc., 689 So. 2d 1, 2-3 (Ala. 1996)). "'This Court has repeatedly stated "'that the words "relating to" in the arbitration context are given a broad construction.'"'" Carroll v. W.L. Petrey Wholesale Co., 941 So. 2d 234, 236 (Ala. 2006) (quoting Serra Chevrolet, Inc. v. Hock, 891 So. 2d 844, 847 (Ala. 2004), quoting in turn other cases). For a dispute to relate to the subject matter of the 1060988, 1060989, 1060990 18 arbitration provision, "there must be some legal and logical nexus" between the dispute and the arbitration provision. Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So. 2d 271, 275 (Ala. 1999). In this case, there is a "legal and logical nexus" between the auditor's determination not to apply the nonparticipating-manufacturer adjustment and the dispute over the State's diligent enforcement of its qualifying statute, because diligent enforcement is significant only in determining whether the nonparticipating- manufacturer adjustment applies, and, if so, how the adjustment is allocated among the settling states. See State v. Philip Morris, Inc., [No. 2844, February 1, 2008] ___ A.2d ___, ___ (Md. Ct. Spec. App. 2008) ("The diligent enforcement question ... is an indispensable underlying issue of the overall [nonparticipating-manufacturer] Adjustment and, thus, the determination and calculations are inextricably linked."); State v. Philip Morris, Inc., 8 N.Y.3d 574, 580, 869 N.E.2d 636, 640 (2007) ("By using the expansive words 'any' and 'relating to,' [the agreement] makes explicit that all claims that have a connection with the Independent Auditor's calculations and determinations are arbitrable."). Section 1060988, 1060989, 1060990 19 IX(d)(1) specifies that the PMs shall be entitled to the nonparticipating-manufacturer adjustment if the PMs suffer a sufficient market-share loss and the firm determines that the agreement was a significant factor in that loss. Once those two requirements are satisfied, a settling state can avoid the application of the nonparticipating-manufacturer adjustment only if it demonstrates that it has enacted and diligently enforced a qualifying statute. See Commonwealth v. Philip Morris, Inc., 448 Mass. 836, 847, 864 N.E.2d 502, 513 (2007) ("[B]ecause [the firm] had determined that the [agreement] was a significant factor in the loss of market share ..., the only means by which the auditor could have denied the [nonparticipating-manufacturer] adjustment for that year was by affirmatively finding that there was diligent enforcement by the [settling] States."). In this case, the auditor determined that the settling states were exempt from the nonparticipating-manufacturer adjustment because the auditor presumed that each settling state had enacted and was diligently enforcing a qualifying statute. Thus, there is an unequivocal nexus between the dispute over diligent enforcement and the auditor's determination as to whether the 1060988, 1060989, 1060990 20 nonparticipating-manufacturer adjustment applies. The State insists that the dispute over diligent enforcement does not arise out of or relate to a calculation performed by or a determination made by the auditor because "the question of whether [the State] diligently enforced its [qualifying] statute .... can be determined without any reference whatsoever to any calculation performed by, or any determination made by, the Auditor." State's brief at 32. Although a question about diligent enforcement may be resolved independently of any calculation or determination by the auditor, a dispute over diligent enforcement, which this case is, does relate to those calculations and determinations, because the auditor considers the question of diligent enforcement only, and necessarily, to determine whether the nonparticipating-manufacturer adjustment applies. There are only two references to diligent enforcement in the agreement, and both references relate to the allocation of the nonparticipating-manufacturer adjustment among the settling states. See § IX(d)(2)(B) (providing that the settling states shall be exempt from the nonparticipating-manufacturer adjustment if they enact a qualifying statute or the model 1060988, 1060989, 1060990 21 statute and "diligently enforced the provisions of such statute"); see also State v. Philip Morris USA, Inc., 155 N.H. 598, 608, 927 A.2d 503, 512 (2007) ("While the State has attempted to rephrase this issue as unrelated to the [nonparticipating-manufacturer] Adjustment, the Court finds the argument unavailing. The parties do not point to, and the Court is not aware of, any provisions in [the agreement] other than those regarding the [nonparticipating-manufacturer] Adjustment, where the diligent enforcement of a Qualifying Statute has any relevance."). The State also contends that the dispute over diligent enforcement does not relate to a calculation performed by or a determination made by the auditor because, it says, the agreement does not authorize the auditor to make a diligent- enforcement determination. The State emphasizes that the auditor is a national accounting firm that is neither responsible for nor equipped to handle the responsibility of making the quintessentially legal determination of whether the State had diligently enforced its qualifying statute. Regardless, the contention that the auditor is not authorized to make the determination is contradicted by the plain 1060988, 1060989, 1060990 22 language of the agreement, which provides that the auditor "shall calculate and determine the amount of all payments owed pursuant to this Agreement, the adjustments, reductions and offsets thereto (and all resulting carry-forwards, if any), the allocation of such payments, adjustments, reductions, offsets and carry-forwards among the [PMs] and among the Settling States." § XI(a)(1). The nonparticipating- manufacturer adjustment is one of several adjustments the auditor is directed to "calculate and determine." In deciding whether to apply the nonparticipating-manufacturer adjustment, the auditor must determine if the settling states qualify for the diligent-enforcement exemption. As the Supreme Court of New Hampshire stated, the agreement "not only authorizes the [auditor] to make the initial determination of whether to apply the [nonparticipating-manufacturer] Adjustment to the PMs' annual payments, but it requires the [auditor] to make this determination." State v. Philip Morris USA, Inc., 155 N.H. at 606, 927 A.2d at 510 (emphasis omitted). The State further argues that the dispute over diligent enforcement does not relate to a "calculation" or "determination" by the auditor because, it says, the auditor 1060988, 1060989, 1060990 23 did not actually determine whether the State diligently enforced its qualifying statute. The State maintains that the arbitration provision in the agreement is a mechanism for "review of calculations or determinations made by the [auditor]." State's brief at 35. In support of this argument, the State points out that the auditor presumed that the State diligently enforced its qualifying statute, and a presumption, the State contends, is different from a determination. However, this argument ignores the broad language in the agreement that encompasses disputes over those issues that are decided by the auditor and issues that "arise out of or relate to" calculations performed by or determinations made by the auditor. See Commonwealth v. Philip Morris, Inc., 448 Mass. at 846, 864 N.E.2d at 513 ("Focusing on this language in the arbitration clause ignores, or at least reduces the force of, the preceding phrase, which brings under the clause '[a]ny dispute, controversy, or claim arising out of or relating to' the auditor's calculations or determinations."). As we noted above, the dispute over diligent enforcement relates to the nonparticipating-manufacturer adjustment because the auditor declined to apply the adjustment based on a presumption of the 1060988, 1060989, 1060990 24 State's diligent enforcement of its qualifying statute. See § IX(d)(2)(B) ("A Settling State's Allocated Payment shall not be subject to [a nonparticipating-manufacturer] Adjustment ... if such Settling State continuously had a Qualifying Statute ... in full force and effect ... and diligently enforced the provisions of such statute."). Even if the arbitration provision of the agreement extends only to issues actually decided by the auditor, the dispute over diligent enforcement still would be arbitrable. When the auditor presumed that the settling states had diligently enforced their respective qualifying statutes, the auditor made a determination. State ex rel. Carter v. Philip Morris Tobacco Co., 879 N.E.2d 1212, 1218 (Ind. Ct. App. 2008) ("The decision of the Independent Auditor to employ this presumption [of diligent enforcement of the qualifying statute] constitutes a determination."); Commonwealth v. Philip Morris, Inc., 448 Mass. at 847, 864 N.E.2d at 513 ("Whether the auditor made this determination [of diligent enforcement of the qualifying statute] explicitly, or impliedly, or by employing a presumption makes no difference."); State v. Philip Morris, Inc., 155 N.H. at 606, 1060988, 1060989, 1060990 25 927 A.2d at 510 ("We concur with other appellate courts that have held that the [auditor] did, in fact, make a determination regarding diligent enforcement of Qualifying Statutes."). Once the PMs satisfied the requirements for the nonparticipating-manufacturer adjustment, the settling states could avoid the application of the adjustment only by affirmatively demonstrating diligent enforcement of their qualifying statutes. The fact that the auditor declined to apply the adjustment necessitates the conclusion that the auditor made a determination regarding diligent enforcement. See Commonwealth v. Philip Morris, Inc., 448 Mass. at 847, 864 N.E.2d at 513 (holding that "the only means by which the auditor could have denied the [nonparticipating- manufacturer] adjustment for that year was by affirmatively finding that there was diligent enforcement by the [settling] States. It is therefore logically necessary that the auditor did make a diligent enforcement determination."). Finally, this Court has stated that "'[c]ourts cannot make contracts for parties, but must give such contracts as are made a reasonable construction and enforce them accordingly.'" Lyles v. Pioneer Housing Sys., Inc., 858 So. 2d 1060988, 1060989, 1060990 26 226, 231 (Ala. 2003) (quoting Charles H. McCauley Assocs., Inc. v. Snook, 339 So. 2d 1011, 1015 (Ala. 1976)). The State has agreed to arbitrate the auditor's decision not to apply the nonparticipating-manufacturer adjustment but insists that the question of diligent enforcement should be determined by the Montgomery Circuit Court. However, if the Montgomery Circuit Court decided the diligent-enforcement issue, there would be no reason to arbitrate the auditor's decision not to apply the nonparticipating-manufacturer adjustment. The nonparticipating-manufacturer adjustment and the diligent- enforcement exemption are so inextricably intertwined that resolution of the diligent-enforcement dispute by the Montgomery Circuit Court would render arbitration superfluous. The State's interpretation of the arbitration provision in the agreement leads to an unreasonable result, because it would render meaningless any arbitration as it relates to the nonparticipating-manufacturer adjustment. See Karl Storz Endoscopy-America, Inc., 808 So. 2d at 1013 (holding that the argument that nonmaterial breaches are outside the scope of an arbitration clause was unreasonable because "[w]hether a breach is material is ordinarily a question for the trier of 1060988, 1060989, 1060990 27 fact"). We, therefore, conclude that the arbitration provision in the agreement encompasses the dispute regarding diligent enforcement of the qualifying statute because that dispute relates to the auditor's determination not to apply the nonparticipating-manufacturer adjustment. ii. The plain and unambiguous language of the agreement requires arbitration of the diligent-enforcement dispute This Court's conclusion that the arbitration provision in the agreement encompasses the diligent-enforcement dispute is further reinforced by the parenthetical clause that enumerates a list of arbitrable disputes. Arbitrable disputes are described as "including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX(j) or subsection XI(i)." The use of the phrase "including, without limitation," indicates that the disputes listed are illustrative only and do not constitute an exhaustive list of arbitrable disputes. See In re Mark Anthony Constr., Inc., 886 F.2d 1101, 1106 (9th Cir. 1989) ("In construing a statute, the use of a form of the word 'include' is significant, and 1060988, 1060989, 1060990 28 generally thought to imply that terms listed immediately afterwards are an inexhaustive list of examples, rather than a bounded set of applicable items."). In construing a contract, this Court is guided by the principle that "'[t]he intention of the parties controls ... and the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous.'" Dunes of GP, L.L.C. v. Bradford, 966 So. 2d 924, 928 (Ala. 2007) (quoting Loerch v. National Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala. 1993)). Subsection IX(j), which is included in the list of arbitrable disputes, establishes the calculation method to be employed by the auditor in determining the PMs' annual payment obligations. The sixth clause of § IX(j) specifically states that "the [nonparticipating-manufacturer] Adjustment shall be applied to the results of clause 'Fifth' pursuant to subsections IX(d)(1) and (d)(2)." Subsection IX(d)(1) explains how the auditor shall calculate the nonparticipating- manufacturer adjustment for the original PMs. Subsection IX(d)(2)(A) provides that the "[nonparticipating- manufacturer] Adjustment set forth in subsection (d)(1) shall 1060988, 1060989, 1060990 29 apply to the Allocated Payments of all Settling States," unless a settling state can satisfy the requirements of subsection IX(d)(2)(B), which provides that a settling state's allocated payment will be exempt from the nonparticipating- manufacturer adjustment if the settling state "had a Qualifying Statute ... in full force and effect" and "diligently enforced the provisions of such statute during such entire calendar year." The parenthetical list in the agreement of arbitrable disputes indirectly refers to diligent enforcement as an arbitrable dispute. Thus, applying the plain and unambiguous language of the list of arbitrable disputes contained in the agreement, we conclude that the arbitration provision compels arbitration of the diligent- enforcement issue. iii. The structure of the agreement requires arbitration of the diligent-enforcement dispute This Court is also persuaded by the argument that the unitary-payment structure and the method for allocating the nonparticipating-manufacturer adjustment among the settling states compels arbitration of the diligent-enforcement dispute. The State contends that one national arbitration would be a "logistical nightmare" that "involv[es] forty-seven 1060988, 1060989, 1060990 30 companies and fifty-two States and territories, in which every State defends its own enforcement efforts and points fingers at other States, taking months, if not years, to complete." State's brief at 41. The State also argues that the diligent- enforcement exemption is a state-separate determination and that separate proceedings to determine each State's diligent enforcement of its qualifying statute would not result in inconsistent or conflicting decisions. We disagree. The agreement requires each PM to make one annual payment. After combining the annual payments of all the PMs, the auditor calculates each setting state's share of the funds. In calculating each settling state's share, the auditor must reduce the payment obligation of each PM if the auditor determines that the nonparticipating-manufacturer adjustment applies. If, however, the auditor determines that a settling state diligently enforced its qualifying statute or that a group of settling states diligently enforced their qualifying statutes, the remaining nonexempt settling states will be subject to the reallocation provision in subsection IX(d)(2)(C) of the agreement, which provides that the adjustment that would have applied to the exempt settling 1060988, 1060989, 1060990 31 states shall be reallocated among the nonexempt settling states according to each nonexempt state's allocable share. Because a diligent-enforcement determination as to one settling state will have an adverse impact on the remaining nonexempt settling states, it is essential that disputes regarding diligent enforcement be resolved in a national arbitration proceeding. Individual resolution of diligent- enforcement disputes in 52 separate state courts would involve the application of different standards in determining what activities constitute diligent enforcement and could lead to inconsistent and conflicting determinations on the issue. A national arbitration proceeding will ensure that disputes regarding diligent enforcement are resolved by three neutral arbitrators "'who are guided by one clearly articulated set of rules that apply universally in a process where all parties can fully and effectively participate.'" State v. Philip Morris, Inc., 8 N.Y.3d at 581, 869 N.E.2d at 640 (quoting State v. Philip Morris, Inc., 30 A.D.3d 26, 32-33, 813 N.Y.S.2d 71, 76 (N.Y. App. Div. 2006)). The State also argues that even if the dispute regarding diligent enforcement is an arbitrable issue, the dispute 1060988, 1060989, 1060990 32 should be resolved in a local proceeding that excludes the other settling states. The State maintains that the agreement does not envision a national arbitration proceeding based on language in the arbitration provision stating that "[e]ach of the two sides to the dispute shall select one arbitrator." The State infers from this language that the agreement does not contemplate a national arbitration because the settling states have competing interests as to diligent enforcement. However, as noted previously, we conclude that the agreement requires a national, as opposed to a local, arbitration proceeding. The agreement is an agreement between 52 states and territories and numerous PMs; it provides that the settling states would dismiss all tobacco-related lawsuits and, as consideration for doing so, would receive annual monetary compensation from the PMs. The settling states represent one side to the agreement; the PMs represent the other side. Therefore, the language of the agreement refers to the collective settling states and the collective PMs, each choosing an arbitrator. We also note that conducting 52 separate arbitration proceedings would likely be fraught with the same type of inequitable and inconsistent results that 1060988, 1060989, 1060990 The State contends that the PMs have not provided any 9 evidence demonstrating that the State has failed to diligently enforce its qualifying statute. The State therefore argues that the PMs have not proved that there is a bona fide arbitrable dispute as to this issue. This Court has stated that a party moving to compel arbitration must produce "some evidence" tending to establish its claim. Ryan's Family Steak Houses, Inc. v. Regelin, 735 So. 2d 454, 457 (Ala. 1999). However, in cases involving the application of an arbitration provision, this requirement extends only to the moving party's "initial burden of producing 'some evidence' that a contract calling for arbitration exists and that the underlying transaction involves interstate commerce." Title Max of Birmingham, So. 2d at (citing Polaris Sales, Inc. v. 33 would arise were the individual state courts to resolve this dispute. Independent resolution of diligent-enforcement disputes by local arbitration panels would likely result in the development of "'fifty-two different sets of payment rules'" that would unfairly burden some states and benefit others and result in "'wave after costly wave of new litigation.'" Connecticut v. Philip Morris, Inc., 279 Conn. 785, 800, 905 A.2d 42, 50 (2006) (quoting trial court). We therefore conclude that both the language and the structure of the agreement compel arbitration of the dispute regarding the State's diligent enforcement of its qualifying statute. We further conclude that the structure and purpose of the agreement envision a national, as opposed to a local, arbitration proceeding.9 1060988, 1060989, 1060990 Heritage Imports, Inc., 879 So. 2d 1129, 1132 (Ala. 2003)). The parties agree that the agreement contains a valid arbitration clause, and neither party argues that the agreement does not involve interstate commerce. Therefore, it appears that the PMs have met their initial burden. Moreover, the merits of the issue regarding the State's diligent enforcement of the qualifying statute are not before us. Instead, our review is limited to whether the diligent- enforcement issue falls within the scope of the arbitration provision in the agreement. 34 B. The State's Request for a Declaratory Order The State seeks review of the Montgomery Circuit Court's decision to deny without prejudice the State's request for a declaratory order. The agreement allows any settling state or PM to bring an action in the settling state's respective state court to obtain "a declaration construing any such term [of this agreement] with respect to disputes, alleged violations or alleged breaches within such Settling State." § VII(c)(1). The State gave the required notice that it intended to move for a declaratory order to have the Montgomery Circuit Court construe the term "diligent enforcement" as it is used in the agreement. The State argues here that the Montgomery Circuit Court erred in denying its motion for a declaratory order because, it argues, the motion was not actually filed and there was never any briefing or hearing on the issue. We agree. 1060988, 1060989, 1060990 The PMs point out that the State's intention to obtain 10 a declaratory order construing the term "diligent enforcement" would constitute an improper attempt to have the Montgomery Circuit Court resolve an issue that is the subject of arbitration. See AT&T Techs., Inc. v. Communication Workers of America, 475 U.S. 643, 649 (1986) ("[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims."); Karl Storz Endoscopy-America, Inc., 808 So. 2d at 1013 ("[A] de facto resolution of the merits of [a] claim" "would render entirely illusory the right to a resolution through arbitration."). However, the PMs' argument addresses the merits of the State's motion. Because we have already determined that the Montgomery Circuit Court could not deny a motion that was never filed, we do not reach this argument. 35 This Court has stated that "'"the court can consider only the issues made by the pleadings, and the judgment may not extend beyond such issues nor beyond the scope of the relief demanded."'" Chapman v. Gooden, [Ms. 1051712, June 1, 2007] ___ So. 2d ___, ___ (Ala. 2007) (quoting Central Bank of Alabama, N.A. v. Ambrose, 435 So. 2d 1203, 1206 (Ala. 1983), quoting in turn Sylvan Beach, Inc. v. Koch, 140 F.2d 852, 861- 62 (8th Cir. 1944)). The State had not yet moved for the declaratory order; therefore, we reverse the circuit court's decision denying the State's motion for a declaratory order, and we remand these cases with instructions for the circuit court to vacate the denial of the State's anticipated motion.10 Conclusion 1060988, 1060989, 1060990 36 For the foregoing reasons, we conclude that the Montgomery Circuit Court correctly held that the arbitration provision in the agreement encompasses the dispute regarding diligent enforcement and that that dispute is to be resolved in a national arbitration proceeding. We therefore affirm that portion of the circuit court's judgment. However, because the State has not moved for a declaratory order, we reverse the circuit court's denial of an anticipated motion and remand this case with instructions for the Montgomery Circuit Court to vacate its denial. 1060988 –- AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. 1060989 –- AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. 1060990 –- AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	March 28, 2008
c54d0fe3-220f-4375-b8cf-cbde00498fae	Ex parte State of Alabama. EMERGENCY PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: Haywood Hartley v. State of Alabama)	N/A	1061718	Alabama	Alabama Supreme Court	Hartley's first name appears as both "Hayward" and 1 "Haywood" in the materials before us. REL:3/14/2008 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, 2007-2008 ____________________ 1061718 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF MANDAMUS (In re: Haywood Hartley v. State of Alabama) (Baldwin Circuit Court, CC-07-320; Court of Criminal Appeals, CR-06-1466) PER CURIAM. The State of Alabama petitions for a writ of mandamus directing the trial court to vacate its order requiring Hayward Hartley, an incarcerated defendant, to be transported 1 to the office of a private psychologist for a psychological 1061718 2 evaluation. We grant the petition and issue the writ. Hartley was arrested and subsequently indicted on charges of attempted murder, first-degree robbery, first-degree burglary, and first-degree theft of property. Hartley's bond was set at $1.5 million; he was unable to post bond, and he is currently incarcerated at the Baldwin County Corrections Center. Hartley's family arranged for him to be evaluated by a clinical psychologist, Dr. C. Van Rosen, whose office is located in Daphne. Hartley's counsel thus filed what was styled as an "ex parte" motion with the trial court to have Hartley transported from the Baldwin County Corrections Center to Dr. Van Rosen's office in Daphne for the evaluation. The motion included a letter from Dr. Van Rosen dated May 10, 2007, that stated that the facilities at the Baldwin County Corrections Center were not suited for the evaluation he had to perform on Hartley. The trial court granted Hartley's motion and issued an order directing "Baldwin County Corrections Staff to transport Hayward Hartley to the office of Dr. C. Van Rosen at 9:00 a.m. on the 18th day of May, 2007, ... for the purpose of a mental 1061718 3 and/or psychological evaluation and upon completion of said evaluation to return him to the Baldwin County Corrections Center on the same date." The trial court also indicated by handwriting on the typewritten order that "the corrections officer may leave [Hartley] in the custody of Dr. [Van] Rosen during the exam and return to pick [Hartley] back up." On May 16, 2007, the transportation division of the Baldwin County Corrections Center and the Baldwin County Sheriff's Department contacted the district attorney's office (hereinafter "the State") about the transportation order. According to the State's petition, the sheriff's department was concerned that the transportation of Hartley to and from Dr. Van Rosen's office would jeopardize "the safety of the citizens of Baldwin County." The State, which had been unaware of the ex parte motion or the order allowing Hartley to be transported to Daphne, filed a motion on May 17 requesting the trial court to reconsider its order. The motion stated, in part: "3. The State believes that [Hartley] is an extreme danger to the community. He even threatened to kill the victim at the time he was arrested for Attempted Murder, Robbery 1, Burglary 1 and Theft of Property 1. [Hartley] is under a $1.5 Million bond in this matter. 1061718 4 "4. [Hartley] has already proven to be a flight risk in that he fled to Mobile County and was arrested there on these charges. "5. Because of the great security risk that [Hartley] poses to the community, multiple Deputies will be needed for his transport to Daphne. The State avers that this is an extreme burden to the taxpayers. Also, because of the danger that [Hartley] poses, the Deputies will need to stay with [Hartley], thereby undermining his confidentiality with Doctor Van Rosen. "6. The State adamantly opposes this transport and requests a hearing." The trial court denied the State's motion without a hearing. The State subsequently filed a motion to stay the transportation order, and the trial court conducted a hearing on the motion. At the hearing, the State appeared with two witnesses, Brock Palmer, an investigator with the Orange Beach Police Department, and Chief Deputy Charlie Jones with the Baldwin County Sheriff's Department. According to the State, the witnesses were to testify as to the seriousness of the charges against Hartley and the alleged threat he posed to the community. The trial court, however, did not allow the witnesses to testify, and it denied the State's motion to stay and upheld its previous order. The facts before us do not indicate why the trial court did not allow the State's 1061718 5 witnesses to testify. The State then filed in the Court of Criminal Appeals a petition for a writ of mandamus, presumably seeking the same relief it now seeks from this Court. The Court of Criminal Appeals denied the petition, by an order. Hartley v. State (No. CR-06-1466, August 23, 2007), ___ So. 2d ___ (Ala. Crim. App. 2007) (table). The State then filed the petition for the writ of mandamus now before this Court. The standard governing the availability of a writ of mandamus as a means for reviewing a trial court's exercise of its discretion has been stated as follows: "'"In cases involving the exercise of discretion by an inferior court, [the writ of] mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion, except in a case of abuse."'" Ex parte Flexible Prods. Co., 915 So. 2d 34, 40 (Ala. 2005) (quoting Ex parte Monsanto Co., 794 So. 2d 350, 351-52 (Ala. 2001), quoting in turn Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1030 (Ala. 1989)). Our inquiry thus focuses on whether, in issuing the transportation order, the trial court exceeded its discretion. 1061718 6 The State maintains that Hartley is a dangerous inmate and that he poses a danger to the community when he is not confined in a secure facility. The State also contends that it should have been able to present the testimony of its two witnesses, Chief Deputy Jones and Investigator Palmer. The State argues that the portion of the trial court's order stating that "the corrections officer may leave [Hartley] in the custody of Dr. [Van] Rosen during the exam and return to pick [Hartley] back up" demonstrates the trial court's "obvious lack of understanding as to the danger [Hartley] poses." Because its witnesses were not allowed to testify, the State has submitted to this Court with its petition an affidavit of Chief Deputy Jones and the investigative summary prepared by Investigator Palmer. These materials describe Hartley's allegedly dangerous nature, the security precautions employed regarding Hartley, the nature of the crimes he is alleged to have committed, and the alleged threats he made against the victim. "Generally, most hearings should be held in the open because of the concern that one be given notice and an 1061718 7 opportunity to be heard." Ex parte Moody, 684 So. 2d 114, 120 (Ala. 1996). In this case, the facts before us indicate that the order for transportation was not sealed. The State learned of the order for transportation and challenged it; the trial court scheduled a hearing on the State's challenge but did not allow the State's witnesses to testify. The State's evidentiary submissions to this Court regarding the offense and Hartley's arrest would appear to support the State's arguments that Hartley is violent, that he is an escape risk, and that he poses a threat to the community. Given that the sheriff's department had concerns that potential security risks were not adequately addressed by the trial court in issuing the order, we conclude that the trial court exceeded the scope of its discretion in refusing the State the opportunity to present its witnesses. Therefore, the trial court is directed to hold a hearing on whether Hartley may be safely transported and at that hearing to allow the State to present its evidence. PETITION GRANTED; WRIT ISSUED. See, Lyons, Woodall, Parker, and Murdock, JJ., concur. Stuart, J., concurs specially. Smith and Bolin, JJ., concur in the result. Cobb, C.J., recuses herself. 1061718 8 STUART, Justice (concurring specially). I fully concur with the main opinion. I write specially to emphasize that this Court's decision in Ex parte Moody, 684 So. 2d 114 (Ala. 1996), with regard to the right of a defendant to an ex parte hearing to determine whether the defendant is entitled to expert assistance at public expense is limited to an indigent defendant. The specific issue addressed in Moody was "whether an indigent defendant requesting an expert witness [at public expense] is entitled to an ex parte hearing on that request." 684 So. 2d at 119 (emphasis on "indigent" added). We concluded in Moody that "an indigent criminal defendant is entitled to an ex parte hearing on whether expert assistance is necessary, based on the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution." 984 So. 2d at 120 (emphasis on "indigent" added). An ex parte hearing is necessary in such a case because an indigent defendant may be required to reveal incriminating evidence and/or defense strategy in order to show "a reasonable probability that an expert would aid in his defense and [must show that] a denial of an expert to assist at trial would result in a fundamentally unfair trial." 684 1061718 9 So. 2d at 119 (quoting Dubose v. State, 662 So. 2d 1189, 1192 (Ala. 1995), citing in turn Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987)). Thus, our holding in Moody that a defendant has a right to an ex parte hearing when requesting expert assistance applies only to indigent defendants and to the issue whether it is necessary to provide an expert at public expense for the indigent defendant to have an adequate defense. The concern that incriminating evidence or defense strategy may be revealed at the hearing is not relevant when the hearing concerns security or transportation arrangements and the public's safety is at issue. The materials before us indicate that Hartley is not an indigent defendant and that he was not seeking an expert witness at public expense; therefore, this Court's holding in Moody is not applicable to his case.	March 14, 2008
dd2c30f4-6662-4516-b80b-06e4acabb977	Ex parte State of Alabama Department of Revenue. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: State of Alabama Department of Revenue v. Hoover, Inc.)	N/A	1061766	Alabama	Alabama Supreme Court	REL: 03/21/2008 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, 2007-2008 ____________________ 1061766 ____________________ Ex parte State of Alabama Department of Revenue PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: State of Alabama Department of Revenue v. Hoover, Inc.) (Colbert Circuit Court, CV-04-88; Court of Civil Appeals, 2060142) STUART, Justice. 1061766 2 The State of Alabama Department of Revenue ("the Department") petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals in State Department of Revenue v. Hoover, Inc., [Ms. 2060142, August 31, 2007] ___ So. 2d ___ (Ala. Civ. App. 2007). Specifically, the Department asked this Court to overrule Hoover, Inc. v. State Department of Revenue, 833 So. 2d 32 (Ala. 2002), and Ex parte Hoover, Inc., 956 So. 2d 1149 (Ala. 2006) (hereinafter collectively referred to as "Hoover I"). We granted the writ on this ground. However, after reviewing the briefs of the parties, we determine that we cannot reach the issue necessary to overrule Hoover I. Hoover I involved the same fundamental issue that is the subject of the present case; the only differences are the tax years involved and the amounts of sales taxes assessed by the Department. In the present case, the Court of Civil Appeals held that the doctrine of collateral estoppel barred the relitigation of any issue in a tax case when the controlling facts and applicable legal principles are the same as in the prior litigation. The Department did not challenge this holding in its petition. Instead, the Department asked this 1061766 3 Court to overrule Hoover I. We conclude, based on our review of this case after issuing the writ, that before this Court can entertain the Department's request to overrule Hoover I, a determination must be made as to whether collateral estoppel bars relitigation –- the basis of the decision of the Court of Civil Appeals. The Department did not challenge in its petition the Court of Civil Appeals' application of collateral estoppel in this case; therefore, we did not grant certiorari review on that ground, and we cannot review it. See Rule 39, Ala. R. App. P.; Ex parte Franklin, 502 So. 2d 828, 828 (Ala. 1987)(recognizing that it is well established that this Court can address only those issues that are pleaded in the petition as grounds for certiorari review). Because the Department did not challenge collateral estoppel in its petition and because this ground must be addressed before we can reach the merits of the ground upon which we granted the petition, i.e., whether Hoover I should be overruled, we must quash the writ. WRIT QUASHED. Cobb, C.J., and Lyons, Woodall, Smith, and Bolin, JJ., concur. See, J., concurs specially. Parker and Murdock, JJ., concur in the result. 1061766 4 SEE, Justice (concurring specially). For the reasons stated in the main opinion, I concur to quash the writ of certiorari previously granted. I do not read the main opinion as holding that this Court is without the power to overrule Hoover, Inc. v. State Department of Revenue, 833 So. 2d 32 (Ala. 2002), and Ex parte Hoover, Inc., 956 So. 2d 1149 (Ala. 2006) (collectively referred to as "Hoover I"), without first determining whether the case is barred by collateral estoppel; rather, it holds that it is our policy to restrict review to the issues upon which we granted the petition for the writ of certiorari. Therefore, I concur in the main opinion, but I also agree with the reasoning expressed by Justice Murdock in his special writing that, although we are not required to do so, we should quash the writ in this case. This Court has the authority to issue "such ... remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction." § 12-2-7(3), Ala. Code 1975. This Court has stated that "[o]ur supervisory authority, while broad, is certainly not unlimited; its use is governed by the particular 1061766 In James, the Court quoted the decision of the Supreme 1 Court of the United States in Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 284 (1897), in which that Court stated that "'while the Court of Appeals may have been limited on the second appeal to questions arising upon the amount of damages, no such limitation applies to this court, when, in the exercise of its supervisory jurisdiction, it issues a writ of certiorari to bring up the whole record. Upon such writ the entire case is before us for examination.'" 836 So. 2d at 835- 36 (emphasis omitted). See Ex parte Apicella, 809 So. 2d 865, 868 (Ala. 2001) 2 ("This Court granted certiorari review to consider three issues. The first two of these issues were raised by [the appellant] .... This Court raised the third issue ex mero motu: Whether the statutory provision allowing a trial judge to override a jury's recommendation in a capital case violates Art. I, § 11, of the Alabama Constitution of 1901 ...."); Ex parte State Alcoholic Beverage Control Bd., 654 So. 2d 1149, 1151 (Ala. 1994) ("'However, because of the public policy considerations involved in using minors as decoys in enforcing the laws regulating the sale and purchase of intoxicating liquors in this State, this Court on April 4, 1992, issued the writ ex mero motu in order to review the judgment of the Court 5 circumstances of a case in accordance with our 'clear duty to exercise that power whenever it is made to appear that an inferior court is guilty of usurpation or abuse of jurisdiction.' [Ex parte] Burch, 236 Ala. [662,] 666, 184 So. [694,] 698 [(1938)]." Ex parte James, 836 So. 2d 813, 836 (Ala. 2002). When necessary for reasons of constitutional 1 review and issues of great public importance, this Court has exercised its supervisory authority by issuing the writ of certiorari ex mero motu. However, as with all instances in 2 1061766 of Civil Appeals and to set some general guidelines as to when and under what circumstances minors may be used in undercover operations.'"(quoting Bartlett v. Alabama Alcoholic Beverage Control Bd., 654 So. 2d 1139, 1141 (Ala. 1993))). 6 which this Court issues the writ of certiorari, our exercise of that authority is a matter of judicial discretion and is reserved for special and important cases. See Rule 39(a), Ala. R. App. P. ("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."). The Department chose not to seek review of the Court of Civil Appeals' decision regarding the collateral estoppel issue. It is intrinsic in the nature of the judicial function that we do not range about for matters we wish to review; instead, we generally review only those matters the litigants choose to bring to us. In the case now before us, the Department has asked us to overrule Hoover I. The Department has not asked us to review the collateral estoppel issue upon which the Court of Civil Appeals rendered its decision. Even if we were to overrule Hoover I, therefore, our decision on that issue would not alter the result in this case. Our decision would be hypothetical, a futile act, merely 1061766 This Court has held: 3 "The courts of Alabama are not authorized to render advisory opinions, except in very limited circumstances. See, e.g., Carrell v. Masonite Corp., 775 So. 2d 121, 125 (Ala. 2000) ('Alabama's Declaratory Judgment Act bars trial courts from issuing advisory opinions'); Ala. Code 1975, § 12-2- 10 (authorizing the Supreme Court to issue advisory opinions on 'important constitutional questions' at the request of the Governor or the Legislature)." Baker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 821 So. 2d 158, 164 (Ala. 2001) (emphasis omitted). 7 advisory. "'"[I]t is not within the province of this court 3 to decide abstract or hypothetical questions, which are disconnected from the gravity of actual relief, or from the determination of which no practical result can follow."'" Breaux v. Bailey, 789 So. 2d 204, 207 (Ala. 2000) (quoting Spence v. Baldwin County Sav. & Loan Ass'n, 533 So. 2d 192, 193 (Ala. 1988) (Maddox, J., concurring specially), quoting in turn Caldwell v. Loveless, 17 Ala. App. 381, 382, 85 So. 307, 307 (1920)). For these reasons, I concur with the main opinion's rationale in quashing of the writ. 1061766 8 MURDOCK, Justice (concurring in the result). I do not agree with the reasoning of the main opinion that we would have to make a determination that the doctrine of collateral estoppel does not bar the Department's action before we could proceed to consider the Department's request that we overrule this Court's decision in Ex parte Hoover, Inc., 956 So. 2d 1149 (Ala. 2006). Indeed, the converse would appear to be true, i.e., that we would have to consider and overrule Ex parte Hoover before we could make a decision favoring the Department on the issue of collateral estoppel. See, e.g., Commissioner v. Sunnen, 333 U.S. 591, 600 (1948) (explaining the manner in which the doctrine of collateral estoppel applies in tax cases that, though they involve different tax years, involve "controlling facts and applicable legal rules [that] remain unchanged" (emphasis added)), quoted with approval in State v. Delaney's, Inc., 668 So. 2d 768, 772 (Ala. Civ. App. 1995). I concur in the result, however, because collateral estoppel was one of two grounds upon which the Court of Civil Appeals upheld the trial court's judgment in the present case (the other being that court's holding that Ex parte Hoover itself directly required that result, see State Dep't of 1061766 Although the Department does address the issue of 4 collateral estoppel in its brief, its discussion focuses on the fact that the tax years at issue in the present case are different from the tax years that were at issue in Ex parte Hoover. As alluded to in the parenthetical explanation of Commissioner v. Sunnen, 333 U.S. at 600, in the text, that is not enough in the context of a tax dispute such as this. The Department's brief thus provides no argument or authority that would overcome the bar of collateral estoppel. 9 Revenue v. Hoover, Inc., [Ms. 2060142, August 31, 2007] ___ So. 2d ___, ___ (Ala. Civ. App. 2007)), and yet the Department's petition does not ask us to address that ground.4 Thus, even if we were to agree with the Department that Ex parte Hoover should be overruled in light of the United States Supreme Court's holding in United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority, ___ U.S. ___, 127 S. Ct. 1786 (2007), our doing so would not be enough to yield the Department any relief in this proceeding. Accordingly, while I do not agree that we must quash the writ, I concur in the result of actually doing so.	March 21, 2008
1c52fabe-2839-498d-a90d-14edbe22be0e	Wright Therapy Equipment, LLC, et al. v. Blue Cross and Blue Shield of Alabama	N/A	1061074	Alabama	Alabama Supreme Court	REL: 4/11/08 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, 2007-2008 ____________________ 1061074 ____________________ Wright Therapy Equipment, LLC, et al. v. Blue Cross and Blue Shield of Alabama Appeal from Shelby Circuit Court (CV-04-873) SEE, Justice. Wright Therapy Equipment, LLC ("Wright Therapy"), Sheri NeSmith, Julie Akin, and Universal DME, LLC ("Universal DME"), appeal the trial court's partial summary judgment and trial judgment in favor of Blue Cross and Blue Shield of Alabama 1061074 2 ("Blue Cross"). We hold that the trial court did not err in entering a partial summary judgment in favor of Blue Cross. However, because the trial court exceeded its discretion in denying Akin, NeSmith, and Universal DME a continuance at trial, we reverse the judgment entered following the trial and remand the case for a new trial. Facts and Procedural History Akin and NeSmith were the owners of Wright Therapy, which was engaged in the business of supplying physician-prescribed durable medical equipment ("DME"). Wright Therapy billed Blue Cross according to Blue Cross's DME fee schedule for DME and other supplies Wright Therapy provided to patients insured by Blue Cross. After conducting audits of the major DME businesses in its network, including Wright Therapy, Blue Cross determined that it had been overbilled for DME and that it had paid many of the claims for DME in error. In March 2004, Blue Cross notified Wright Therapy that it had overbilled Blue Cross for DME in the amount of $759,401.62, that Blue Cross had paid those bills in error, and that Blue Cross, as permitted by the DME supplier agreement between Blue Cross and Wright Therapy, would begin withholding further 1061074 3 payments to Wright Therapy until Blue Cross recouped the amount of the payments that had been made in error. In April 2004, Blue Cross and Wright Therapy entered into a written agreement by which Wright Therapy agreed to make monthly payments of $40,000 to Blue Cross for a period of 10 months and to pay the remaining balance in one payment at the end of those 10 months in order to reimburse Blue Cross for the alleged overbilling. In return, Blue Cross agreed not to withhold future payments for services billed by Wright Therapy to Blue Cross. In May 2004, after Wright Therapy had remitted the first of the agreed payments, Blue Cross announced changes to the DME fee schedule for certain items of DME from which Wright Therapy had previously derived a substantial portion of its profits. Faced with diminished cash flow under the new reimbursement schedule, Wright Therapy made no further payments to Blue Cross under the agreement and ceased operations. That same month, NeSmith, Akin, and two former employees of Wright Therapy established Universal DME, LLC, in Georgia, to conduct the same type of DME business that Wright Therapy had conducted. 1061074 4 In July 2004, Blue Cross sued Wright Therapy alleging breach of contract, money paid by mistake, unjust enrichment, conversion, fraud, and conspiracy to commit fraud. Over the next two years, Blue Cross amended its complaint five times to add Akin, NeSmith, and Universal DME as defendants and, among other things, seeking to pierce the corporate veil and to impose successor liability on Universal DME for the claims against Wright Therapy. During this time, the trial court continued the trial five times at the joint request of the parties or the sole request of Blue Cross to allow these amendments and to allow additional discovery. In March 2006, Blue Cross and Wright Therapy each moved for a summary judgment. Blue Cross amended its complaint for the last time in July 2006 and then renewed its previously filed motion for a summary judgment. The trial court held a hearing on that motion on October 4, 2006, at which the court entered a summary judgment against Wright Therapy on the breach-of- contract claim in the amount of $630,196.38. The summary judgment disposed of the claims against Wright Therapy; however, several claims remained pending against Akin, NeSmith, and Universal DME. At the conclusion of the hearing 1061074 5 on the summary-judgment motion, counsel for the remaining defendants moved in open court to withdraw. He simultaneously requested a continuance of the November 6, 2006, trial date to allow Akin, NeSmith, and Universal DME to retain new counsel. The trial court granted counsel's motion to withdraw but denied the motion to continue the trial date, stating that "Ms. NeSmith, Ms. Akin, Wright Therapy, Universal DME, whoever, have adequate time to obtain other counsel." When Blue Cross urged the trial court to push the trial date up even earlier, the trial court denied this request in "fairness" to the defendants. Despite contacting at least two firms, Akin, NeSmith, and Universal DME were unable to obtain counsel willing to represent them with less than one month to prepare for a trial of a complex lawsuit that had been in litigation for over two years. On October 30, 2006, Akin, NeSmith, and Universal DME again moved the trial court for a one-month continuance and supported that motion with affidavits from the attorneys they had contacted stating that it would be a violation of the Alabama Rules of Professional Conduct for the attorneys to agree to represent the defendants without a continuance because they would not be able to 1061074 6 adequately prepare for a trial of this complexity in less than one month's time. Blue Cross opposed the continuance, and the trial court denied the motion. Over the repeated objections of the defendants, the trial court proceeded with a bench trial on November 6, 2006. None of the defendants was represented by counsel. During the bench trial, Akin and NeSmith informed the trial court that they had counsel willing to represent them, but that counsel were unable to attend the trial on that date. They told the trial court that they were uncertain as to how to proceed, how to put on evidence, or how to question witnesses during the trial. The trial proceeded, and the trial court ultimately ruled in favor of Blue Cross, finding Akin and NeSmith personally liable for $182,900 and $198,000, respectively, for the improper transfer and depletion of the assets of Wright Therapy. It also found Universal DME liable as a successor corporation for the full amount of the summary judgment on the breach-of-contract claim previously entered against Wright Therapy. At the end of the trial, the trial court said to the defendants: "You have the right to appeal. In order to do that, you have to buy a transcript and appeal to Montgomery on 1061074 7 the record. I would suggest –- no offense to either of you. You have done a better job than most pro ses I have seen but I would never suggest that anyone is competent to represent themselves." In December 2006, Akin, NeSmith, and Universal DME, then represented by counsel, moved to vacate the partial summary judgment, the judgment entered at trial, and for a new trial. At the hearing on this motion, the trial court noted that mistakes had been made during the litigation process by concluding, "I don't say this to disrespect counsel or prior rulings but I am confident that this matter is heading to Montgomery one way or the other and I will say that I'm not as confident that it won't come back." The trial court denied the defendants' motions after holding a hearing. Wright Therapy, Akin, NeSmith, and Universal DME now appeal. Issues Wright Therapy, Akin, NeSmith, and Universal DME present several issues on appeal. First, they argue that the trial court erred in entering a summary judgment in favor of Blue Cross on the breach-of-contract claim because, they say, a genuine issue of material fact exists as to whether Wright 1061074 Wright Therapy, Akin, NeSmith, and Universal DME also 1 argue that Universal DME, as a corporate entity, was never legally at trial because it was unable to obtain counsel and that all the defendants were denied due process because they were denied a jury trial. However, our reversal of the trial court's order denying the continuance pretermits consideration of the other alleged errors. 8 Therapy executed the April 2004 agreement under economic duress and whether that agreement is otherwise unconscionable. Second, they argue that the trial court exceeded its discretion "by allowing Defendants' previous counsel to withdraw 33 days prior to trial and refusing to grant a trial continuance to allow the Defendants time to retain counsel to represent them at trial." Appellants' brief at 3.1 Standards of Review "On appeal, this Court reviews a summary judgment de novo. Ex parte Essary, [Ms. 1060458, Nov. 2, 2007] ___ So. 2d ___, ___ (Ala. 2007). In doing so, we apply the same standard of review as did the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). '"'Our review is subject to the caveat that we must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.'"' Ex parte CSX Transp.[, Inc.], 938 So. 2d [959] at 962 [(Ala. 2006)] (quoting Payton v. Monsanto Co., 801 So. 2d 829, 833 (Ala. 2001), quoting in turn Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)); Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990). Finally, this Court does not afford any presumption of correctness to the trial court's ruling on questions of law or its conclusion as to the appropriate legal standard to 1061074 9 be applied. Ex parte CSX Transp., 938 So. 2d at 962 (citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997))." DiBiasi v. Joe Wheeler Elec. Membership Corp., [Ms. 1060848, January 11, 2008] ___ So. 2d ___, ___ (Ala. 2008). We review a trial court's denial of a motion for a continuance by asking whether in denying the motion the trial court exceeded its discretion. See Cheminova America Corp. v. Corker, 779 So. 2d 1175, 1183 (Ala. 2000); Copeland v. Samford Univ., 686 So. 2d 190 (Ala. 1996). "A court exceeds its discretion when its ruling is based on an erroneous conclusion of law or when it has acted arbitrarily without employing conscientious judgment, has exceeded the bounds of reason in view of all circumstances, or has so far ignored recognized principles of law or practice as to cause substantial injustice. Hale v. Larry Latham Auctioneers, Inc., 607 So. 2d 154, 155 (Ala. 1992); Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 13 (Ala. 1979)." Edwards v. Allied Home Mortgage Capital Corp., 962 So. 2d 194, 213 (Ala. 2007). "In reviewing ... the denial of a motion for a new trial, we consider the evidence in a light most favorable to the prevailing party, resolving all factual disputes in its favor. Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002); Alabama Great Southern R.R. v. Johnson, 1061074 10 874 So. 2d 517 (Ala. 2003)." Systrends, Inc. v. Group 8760, LLC, 959 So. 2d 1052, 1057 (Ala. 2006). Analysis A. Partial Summary Judgment on Breach-of-Contract Claim Wright Therapy argues that the trial court erred in entering a summary judgment in favor of Blue Cross on Blue Cross's breach-of-contract claim because, it says, a genuine issue of material fact exists as to whether it was fraudulently induced into executing the April 2004 agreement; whether the 2004 agreement was a contract of adhesion, which it was forced to enter into because of economic duress; and whether the 2004 agreement is otherwise unconscionable. Specifically, Wright Therapy argues that had it "been adequately represented at the summary judgment hearing, genuine issues of material fact relating to Blue Cross's fraud in relation to the execution of the letter agreement would have been evident. Furthermore, genuine issues of material fact existed as to the enforceability of the letter agreement in light of the fact that the letter agreement constituted an unconscionable adhesion contract formed under circumstances of economic duress." Appellants' brief at 48-49. Blue Cross argues in response that Wright Therapy's fraud-in-the-inducement argument fails because it can show no misrepresentation, noting that Wright 1061074 11 Therapy "knew when [it] entered the Repayment Agreement that Blue Cross had the right to change the fee schedule, at any time, under the DME Agreement." Blue Cross's brief at 63. Blue Cross also argues that Wright Therapy's arguments of economic duress and unconscionability fail because Blue Cross did not commit a "wrongful act" and because Wright Therapy had reasonable alternatives to signing the agreement. We agree on both counts. First, Wright Therapy alleges that Blue Cross fraudulently induced Wright Therapy to enter into the April 2004 repayment agreement to resolve Blue Cross's claim that Wright Therapy had overbilled it on DME. Specifically, Wright Therapy claims that "Blue Cross forced Wright Therapy to enter into a repayment agreement when Blue Cross knew that it was about to reduce its payments to all DME providers which would make it impossible for Wright Therapy to comply with the repayment agreement." Appellants' brief at 56. Wright Therapy cites this Court's decision in Anderson v. Ashby, 873 So. 2d 168, 182 (Ala. 2003), for the proposition that "[f]raud in the inducement consists of one party's misrepresenting a material fact concerning the subject matter of the underlying 1061074 12 transaction and the other party's relying on the misrepresentation to his, her, or its detriment in executing a document or taking a course of action." However, as Blue Cross notes in its brief to this Court, Akin, when deposed as a principal of Wright Therapy, testified that although Blue Cross never represented that it would pay for DME at the rate it had previously paid, she was "hoping that Blue Cross would revert back to the way that they used to reimburse for specific items under DME." This Court has stated that "fraudulent-inducement claim[s] [are] governed by the 'reasonable-reliance' standard. Under that standard, a person cannot blindly rely on an agent's oral representations to the exclusion of written disclosures in a contract." Harold Allen's Mobile Home Factory Outlet, Inc. v. Early, 776 So. 2d 777, 783-84 (Ala. 2000) (citations omitted). Wright Therapy does not allege that Blue Cross did not have the right to change the fee schedule for DME. Wright Therapy admits that Blue Cross's May 2004 DME fee-schedule changes were applicable to all Blue Cross's DME providers. Appellants' brief at 55. Moreover, aside from mere hope that Blue Cross would continue to pay for 1061074 13 DME at rates that made Wright Therapy an economically viable business, Wright Therapy has offered no reasonable basis for its reliance on the notion that Blue Cross might continue compensating for DME at previous rates while simultaneously demanding that DME providers reimburse Blue Cross for overpayments made at those earlier rates. Appellants' brief at 56. In the absence of a misrepresentation of material fact or reasonable reliance thereon, Wright Therapy failed to present substantial evidence to support its claim of fraudulent inducement sufficient to overcome Blue Cross's summary- judgment motion. Wright Therapy also alleges that summary judgment was improper because, it says, there is a genuine issue of material fact as to whether it executed the 2004 repayment agreement under economic duress. In International Paper Co. v. Whilden, 469 So. 2d 560, 562 (Ala. 1985), this Court stated: "[A] contract may be executed under such circumstances of business necessity or compulsion as to render the contract involuntary and entitle the coerced party to excuse his performance, especially where undue advantage or threat to do an unlawful injury is shown. 25 Am. Jur. 2d Duress and Undue Influence § 6 (1966)." 1061074 14 This Court went on to state that in order to demonstrate a prima facie case of economic duress, a party must show "(1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; (3) the absence of any reasonable alternative to the terms presented by the wrongdoer." International Paper Co., 469 So. 2d at 562. Wright Therapy appears to argue that Blue Cross "wrongfully" withheld further remittances for services billed, thus leaving Wright Therapy in financial distress with no reasonable alternative but to assent to the terms presented by Blue Cross in the 2004 agreement. Wright Therapy's economic-duress argument fails for several reasons. First, Wright Therapy never alleges that Blue Cross lacked the authority under the terms of Blue Cross's DME agreement with its DME providers to withhold remittances in order to recover allegedly overbilled amounts. See Blue Cross's brief at 17. That withholding, therefore, cannot be deemed a wrongful act or threat by Blue Cross, and Wright Therapy has failed to provide substantial evidence to support the first element of a prima facie case of economic duress. Further, Wright Therapy's bare allegation that it was 1061074 15 forced to accept the terms of the 2004 agreement is substantially undermined by the deposition testimony of NeSmith, in which she admits that Wright Therapy rejected earlier terms offered by Blue Cross during negotiations between the parties before signing the 2004 agreement: "Q. Do you remember receiving this proposal? "A. Yes. "Q. And did you accept or reject this proposal? "A. Reject." In light of this testimony, it appears that the 2004 repayment agreement was the result of a good-faith negotiation between the parties in compromise of a disputed debt, rather than an agreement entered into by Wright Therapy under economic duress as Wright Therapy claims. The fact that Blue Cross may have had greater bargaining power than did Wright Therapy or that Wright Therapy may have executed the agreement out of financial necessity does not alone amount to economic duress. See International Paper Co., 469 So. 2d at 563 ("'It is said that economic duress must be based on conduct of the opposite party and not merely on the necessities of the purported victim. The entering into a contract with reluctance or even 1061074 16 dissatisfaction with its terms because of economic necessity does not, of itself, constitute economic duress invalidating the contract. Unless unlawful or unconscionable pressure is applied by the other party to induce the entering into a contract, there is not economic compulsion amounting to duress. Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978).'"). Wright Therapy has not presented substantial evidence to support any of the elements of economic duress. Finally, in regard to the partial summary judgment in favor of Blue Cross on the breach-of-contract claim, Wright Therapy alleges that there is a genuine issue of material fact as to whether the 2004 repayment agreement is unconscionable. Again, however, Wright Therapy fails to establish by substantial evidence the elements of this claim. Wright Therapy argues that "the repayment agreement is unenforceable because it is unconscionable." Appellants' brief at 63. "In Layne v. Garner[, 612 So. 2d 404 (Ala. 1992)], this Court set out four factors it considered important in determining whether a contract was unconscionable: "'In addition to finding that one party was unsophisticated and/or uneducated, a court should ask (1) whether 1061074 17 there was an absence of meaningful choice on one party's part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided, or patently unfair terms in the contract.' "612 So. 2d at 408." Blue Cross Blue Shield of Alabama v. Rigas, 923 So. 2d 1077, 1086 (Ala. 2005). Wright Therapy appears to argue that the 2004 agreement is unconscionable because, it argues, it lacked a "'"meaningful choice about whether and how to enter into the transaction."'" Blue Cross Blue Shield, 923 So. 2d at 1087 (quoting Ex parte Thicklin, 824 So. 2d 723, 731 (Ala. 2002), quoting in turn other authority). This argument is belied, however, by the fact that Wright Therapy negotiated the terms of the 2004 agreement. Moreover, Wright Therapy fails to state or argue that it is unsophisticated or uneducated or that the terms of the 2004 agreement were unreasonably favorable to Blue Cross. Wright Therapy does argue that Blue Cross had unequal bargaining power; however, the record indicates that Blue Cross's bargaining power was not so unequal and oppressive that Wright Therapy was unable to reject Blue Cross's first offer of settlement. Although 1061074 18 Wright Therapy argues that the 2004 agreement was oppressive in light of its diminished cash flow after Blue Cross amended its DME fee schedule, we note that the parties reached an agreement that allowed Wright Therapy to pay back the disputed debt over a period of 10 months with no interest on those amounts. In light of these facts and of this Court's holding in Blue Cross Blue Shield v. Rigas, we conclude that Wright Therapy has failed to produce substantial evidence indicating that the 2004 agreement was unconscionable. Because Wright Therapy has failed to demonstrate any genuine issue of material fact as to its claims of fraudulent inducement, economic duress, or unconscionability, we affirm the trial court's partial summary judgment in favor of Blue Cross on the breach-of-contract claim. B. Denial of Motion for a Continuance to Retain New Counsel Akin, NeSmith, and Universal DME argue that the trial court exceeded its discretion in denying their motion for a continuance to allow them to retain new counsel after it had granted their prior counsel's motion to withdraw only 33 days before trial. "A decision to deny a motion for continuance is within the sound discretion of the trial court. 1061074 19 Kitchens v. Maye, 623 So. 2d 1082 (Ala. 1993); Thomas v. Kellett, 489 So. 2d 554, 555 (Ala. 1986) ('It is well settled that the trial court's denial of a motion for continuance will not be overturned absent palpable or gross abuse of the trial court's discretion.')." Ex parte Medical Assurance Co., 862 So. 2d 645, 649 (Ala. 2003). However, this Court has held: "The right to appear through privately retained counsel in a civil matter is embedded in Article I, § 10, Ala. Constitution, 1901: 'That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.' It is clear that this 'constitutional right to be represented by counsel ... cannot be unduly impinged.' Loreno v. Ross, 222 Ala. 567, 570, 133 So. 251, 253 (1931). A party to a civil action who is not in default is entitled to be represented by counsel during trial. Whaley v. State, 263 Ala. 191, 82 So. 2d 187 (1955). The constitutional right to counsel is a substantial right and, therefore, a denial of that right affirmatively implies injury. State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929)." Ex parte McCain, 804 So. 2d 186, 189 (Ala. 2001). The question before this Court, then, is whether under the facts of this case the trial court exceeded its discretion by denying the defendants' motion for a continuance so as to deprive them of their right to be represented by counsel. The trial court in this case granted continuances to allow Blue Cross to amend its complaint five times over the course of two 1061074 20 years of litigation. Then, only 33 days before trial was scheduled to begin, the trial court granted the motion of Akin, NeSmith and Universal DME's counsel to withdraw but denied the motion, made at that same time, to continue the trial. The record in this case is unusually voluminous, and the issues are relatively complex and fact intensive, dealing with issues of piercing the corporate veil and successor liability. Akin, NeSmith, and Universal DME renewed their motion to continue one week before the trial and supported their motion with affidavits from three attorneys who stated that they could not ethically undertake representation of these defendants at trial with so little time to prepare. Over the repeated objections of Akin and NeSmith at trial that they could not adequately defend themselves pro se, the trial court denied their requests for a continuance. We hold that under the facts of this case the trial court exceeded its discretion by denying the motion for a continuance. Therefore, the order of the trial court denying Akin, NeSmith, and Universal DME's motion for a new trial is reversed, and this case is remanded for a new trial on all claims except the breach-of-contract claim. 1061074 21 Conclusion Because Wright Therapy has failed to produce substantial evidence to support its claims of fraud in the inducement, economic duress, or unconscionability in regard to the 2004 agreement, we affirm the trial court's partial summary judgment in favor of Blue Cross on its breach-of-contract claim against Wright Therapy. However, because the trial court's denial of a continuance unduly impinged Akin, NeSmith, and Universal DME's right to be represented by counsel at trial, we reverse the trial court's judgment as to its denial of their motions for a continuance and for a new trial, and we remand the case for further proceedings. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	April 11, 2008
8ce1e836-7c75-4d69-824c-cdb8a2b9464f	Ex parte Sylvester James Abrams. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Sylvester James Abrams, alias v. State of Alabama)	N/A	1070385	Alabama	Alabama Supreme Court	REL: 05/02/2008 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, 2007-2008 _________________________ 1070385 _________________________ Ex parte Sylvester James Abrams PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Sylvester James Abrams v. State of Alabama) (Montgomery Circuit Court, CC-06-1473; Court of Criminal Appeals, CR-06-1288) LYONS, Justice. 1070385 2 Sylvester James Abrams petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Montgomery Circuit Court's revocation of his probation on the basis that Abrams's sufficiency-of- the-evidence argument had not been preserved for appellate review. We granted certiorari review to consider whether Abrams's argument that the evidence on which his probation was revoked was insufficient to support the revocation is precluded from appellate review. For the reasons discussed below, we reverse the judgment of the Court of Criminal Appeals. I. Facts and Procedural History Sylvester James Abrams pleaded guilty to first-degree sexual abuse. On March 7, 2007, the Montgomery Circuit Court sentenced him, as an habitual offender, to 15 years' imprisonment. The trial court split Abrams's sentence and ordered him to serve three years in prison, with the balance suspended upon the completion of five years' probation and when all other conditions were met. The trial court further stated that the sentence would be a "reverse split," i.e., that the probationary period would be served first. 1070385 3 At the time of the sentencing hearing on the sexual-abuse conviction Abrams was already serving a probationary period for at least one other charge. Two days after the hearing, Abrams's probation officer filed a report declaring Abrams delinquent for: (1) failing to pay court-ordered moneys, (2) failing to avoid injurious habits, and (3) failing to comply with court orders to complete the CAP (Chemical Addiction Program) for drug and alcohol abuse. According to the State, this delinquency report was "filed on two other cases on which Abrams was on probation." State's brief at p. 3 (emphasis added). As a result of the delinquency report, the trial court held a hearing on March 15, 2007, to determine whether Abrams's probation should be revoked. The record reflects the following exchange occurred at the hearing: "THE COURT: ... They charged you with a new violation. They allege you were read and explained the conditions of your probation, that you acknowledged by signing the conditions of probation, that you reported to the probation officer and [were] ordered to report for the month of March 2007. And you began paperwork on the probation. They had a drug test or some sort of test. Is that what it was? You came back positive on the drug test. Is that what it was? "[ABRAMS]: Yes, sir. 1070385 4 "THE COURT: ... [F]ailure to pay all fines, costs, restitution ordered by the Court. Then ... failure to pay court costs, failure to avoid injurious habits, failure to comply with court orders. How does he plead to those charges? "[DEFENSE COUNSEL]: Judge, there are some issues on the court costs. I think he didn't pay after November 2006, however -- "[ABRAMS]: I think my balance is zero. "THE COURT: Go ahead. "[DEFENSE COUNSEL]: He lost his job. He does have the ability to pay at this point. I think the primary thing we would ask the Court is to consider the fact that these are violations of the possession of marijuana in the second degree. [Abrams] was not placed on probation at the time that he admitted to using the marijuana and cocaine. That happened the day before he was sentenced [on the sexual-abuse conviction] in this court. So these are actually violations of the possession of marijuana in the second degree. He was enrolled in CAP. I think he provided paperwork to the probation officer the day he was locked up to prove that he had enrolled in CAP. So we would just ask the Court to take all of that into consideration and reinstate him, allow him to continue with his progress in the CAP program." (Emphasis added.) The trial court then asked the probation officer for his position on Abrams's conduct. The probation officer testified that Abrams came to him on March 6, 2007, the day before the trial court sentenced Abrams on the sexual-abuse conviction, and said that he wanted to sign up for the program for 1070385 5 alcohol abuse but not for drug abuse, because, he said, he did not have a drug problem. The probation officer then asked Abrams to take a drug test. The probation officer testified that Abrams told him that he had "partied" with friends because of his looming sentencing hearing on the sexual-abuse conviction and that he would likely test positive for drug use if he submitted to a drug test. After the hearing, the trial court revoked Abrams's probation, not only on the cases in which Abrams was already serving probation when he was sentenced on the sexual-abuse conviction, but also on the sexual-abuse case in which he had been given probation eight days earlier. Specifically, the trial court stated: "So I am going to revoke your probation, and I am going to revoke it in all these cases, including sexual abuse in the first degree, and sentence you to 15 years in the penitentiary on that case." The trial court thus placed the original 15-year sentence on the sexual-abuse conviction into effect with instructions that Abrams receive the "maximum" treatment for drug and alcohol abuse while he was incarcerated. The trial court's March 15, 2007, revocation order stated that Abrams "was advised of charged violations of probation of: 1070385 6 "1. Failure to pay court-ordered monies. "2. Admitted use of marijuana and cocaine in lieu of drug test. "3. Failure to complete drug/alcohol treatment program. "... Based on his admission of charged violations, the Court finds he has violated conditions of probation by failing to refrain from illegal activity." Abrams then appealed to the Court of Criminal Appeals, arguing that the trial court had erred in revoking his probation on the sexual-abuse conviction because, he said, it erroneously based that revocation on evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction. The Court Criminal Appeals affirmed the judgment of the trial court without an opinion. Abrams v. State (No. CR-06- 1288, Oct. 26, 2007), __ So. 2d __ (Ala. Crim. App. 2007) (table). In an unpublished memorandum that court held: "Where a probationer does not object to the sufficiency of the State's evidence before, during, or after the revocation hearing, this issue is not preserved for review on appeal. Holden v. State, 820 So. 2d 158 (Ala. Crim. App. 2001). In order to preserve the sufficiency of the evidence as an appellate issue, the question must first be raised and ruled upon in the trial court. Reed v. State, 717 So. 2d 862 (Ala. Crim. App. 1997). The record 1070385 7 reflects that after the defense counsel made her argument, the trial court completed the revocation proceeding without responding to or ruling on the counsel's argument. Without a ruling by the trial court, nothing was preserved for appellate review." We granted certiorari review to consider whether Abrams's argument as to the sufficiency of the evidence is precluded from appellate review. 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)). III. Analysis During the probation-revocation hearing, defense counsel argued that the trial court, in determining whether Abrams had violated his probation, should not consider evidence indicating that Abrams had used illegal drugs before he was placed on probation for the sexual-abuse conviction. Abrams refers to this argument as an "objection," although defense counsel did not use the phrase "I object" or the word "objection" in his argument to the trial court. Defense counsel stated "we would ask the Court ... to consider" that 1070385 8 Abrams "was not placed on probation at the time that he admitted to using the marijuana and cocaine." Defense counsel then asked the trial court to "reinstate him." To this Court Abrams argues that the Court of Criminal Appeals erred in holding that his argument as to the insufficiency of the evidence to support the revocation of his probation on the sexual-abuse conviction was not properly preserved for appellate review. Abrams contends that the holding of the Court of Criminal Appeals conflicts with that court's holding in Ryans v. State, 629 So. 2d 799 (Ala. Crim. App. 1993). In Ryans, the appellant argued that the evidence was insufficient to convict him of vehicular homicide. The Court of Criminal Appeals affirmed the judgment of the trial court, holding: "This issue has not been preserved for appellate review because the question of the sufficiency of the evidence was never presented to the trial court. There was no motion for a judgment of acquittal and there was no other motion, objection, or request seeking similar relief." 629 So. 2d at 799 (emphasis added). Abrams argues that under Ryans he properly preserved his argument as to the sufficiency of the evidence because defense counsel presented the issue to the trial court. Abrams further argues that the trial court 1070385 9 implicitly overruled his "objection" by subsequently revoking his probation solely because he admitted, one day before he was placed on probation on the sexual-abuse conviction, that he had used illegal drugs and that the results of any drug test would be positive. The State contends that the Court of Criminal Appeals' finding that Abrams's argument as to the sufficiency of the evidence was precluded from appellate review was correct because Abrams failed to make a specific objection on this ground. The State asserts that the Court of Criminal Appeals properly noted in its unpublished memorandum its holding in Holden v. State, 820 So. 2d 158, 160 (Ala. Crim. App. 2001), that a probationer's argument as to the sufficiency of the evidence was not preserved for review because the probationer "did not object to the sufficiency of the State's evidence before, during, or after the revocation hearing." (Emphasis added.) Accordingly, the State argues that defense counsel's general argument did not preserve the issue of the sufficiency of the evidence in a probation-revocation proceeding as required by Alabama law. The State notes that in McIntosh v. State, 762 So. 2d 388, 390 (Ala. Crim. App. 1999), the Court 1070385 10 of Criminal Appeals held that "the general rules of preservation apply to revocation hearings." The State further argues that the trial court's revocation of Abrams's probation does not constitute an adequate ruling on his sufficiency-of-the-evidence argument to support appellate review. The State asserts that the trial court's revocation of Abrams's probation evidences only that the trial court was reasonably satisfied from the evidence presented that Abrams had violated the terms of his probation. The State does not cite any caselaw to support this argument; rather, it cites Rule 27.6(d)(1), Ala. R. Crim. P., which provides that in order to revoke probation "[t]he judge must be reasonably satisfied from the evidence that a violation of the conditions or regulations of probation or the instructions occurred." "This Court has always looked to substance over form," Southern Sash Sales & Supply Co. v. Wiley, 631 So. 2d 968, 971 (Ala. 1994). To hold that Abrams's argument as to the sufficiency of evidence was not preserved for appellate review because it was not raised as a specific "objection" or because the trial court did not expressly rule on it would be to 1070385 The entire hearing is set forth in just over 10 pages of 1 transcript. 11 elevate of form over substance. In Ryans, the Court of Criminal Appeals countenanced a "request seeking similar relief" as an alternative to a motion for a judgment of acquittal, another motion, or an objection. 629 So. 2d at 799 ("[T]he evidence was never presented to the trial court. There was no motion for a judgment of acquittal and there was no other motion, objection, or request seeking similar relief."). At the outset of the brief probation-revocation hearing1 in the instant case, defense counsel pointed out that the charges related to violations of a previous probation order and that Abrams had not been placed on probation in the sexual-abuse case at the time he admitted using illegal drugs, and he requested that the trial court not consider evidence indicating Abrams's prior drug use so that Abrams's probation in the sexual-abuse case could be reinstated. This argument was clearly made to apprise the trial court of the insufficiency of the evidence to revoke Abrams's probation in the sexual-abuse case and constitutes a request seeking relief similar to that sought by an objection. See Ryans, 629 So. 2d 1070385 12 at 799. This Court has stated: "The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury." Ex parte Parks, 923 So. 2d 330, 333 (Ala. 2005). We are not dealing with a jury case in which a trial court is being asked to take the case from the jury. A probation-revocation hearing is a bench trial and the trial court is the sole fact-finder. Nor, in the instant case, are we dealing with a question concerning the admissibility of a specific item of evidence in a scenario where the judge is left to speculate as to the position of a party and the party's grounds for concern. We further conclude that Abrams's argument as to the sufficiency of the evidence received an adverse ruling from the trial court. The probation officer's delinquency report charged Abrams with: (1) failure to pay court-ordered moneys, (2) failure to avoid injurious habits, and (3) failure to comply with court orders to complete the drug- and alcohol- treatment program. The trial court's order revoked Abrams's probation because "[Abrams] has violated the conditions of 1070385 13 probation by failing to refrain from illegal activity." Because failure to pay court-ordered moneys and failure to comply with a court directive to complete a substance-abuse program do not equate with "failing to refrain from illegal activities," we must conclude that the trial court revoked Abrams's probation solely because it found that Abrams had engaged in the use of illegal drugs. Yet there was no evidence presented to the trial court indicating that Abrams had tested positive for drug use after he was placed on probation for the sexual-abuse conviction. The trial court's revocation of Abrams's probation on the sexual-abuse conviction embraced exclusively the precise evidence that Abrams asked the court not to consider. Although "'it is familiar law that an adverse ruling below is a prerequisite to appellate review,'" Ex parte Borden, [Ms. 1050042, August 17, 2007] __ So. 2d __, __ (Ala. 2007) (quoting CSX Transp., Inc. v. Day, 613 So. 2d 883, 884 (Ala. 1993)), the trial court's revocation of Abrams's probation constitutes an adverse ruling, coming as it did on the heels of Abrams's statement as to the insufficiency of the evidence just a few minutes earlier in the revocation proceeding. 1070385 14 It is obvious that the trial court and the State knew precisely of what Abrams complained and the relief he wanted; it is equally obvious that the trial court, in revoking Abrams's probation on the sexual-abuse conviction, refused Abrams's request that it disregard evidence of conduct that predated his probation in the sexual-abuse case. As previously noted, the State acknowledges that the delinquency report was "filed on two other cases on which Abrams was on probation" and not on the conviction for sexual abuse. This Court in Ex parte Works, 640 So. 2d 1056, 1058 (Ala. 1994), quoted with approval a dissenting opinion in Works v. State, 640 So. 2d 1056, 1056 (Ala. Crim. App. 1993) (Taylor, J., dissenting), that is also applicable to this proceeding: "Defense counsel should not have to direct his opponent's mind to the correct law the way one would thrust a beagle's nose on a rabbit trail." See also Ex parte Purser, 607 So. 2d 301, 302 (Ala. 1992) ("'Specific objection or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court's failure to act constitutes prejudicial error.'" (quoting 1070385 The record indicates that the use of illegal drugs that 2 resulted in the revocation of Abrams's probation occurred either on the night of March 5, i.e., two nights before he appeared in court, or as early as March 4. Although a copy of the results of a drug test is not in 3 the record, according to the probation officer Abrams admitted to drug use when he was asked to take a drug test. Also, at the beginning of the hearing the trial court stated, "You came back positive on a drug test," and Abrams replied, "Yes sir." 15 Lawrence v. State, 409 So. 2d 987, 989 (Ala. Crim. App. 1982))). The State, while acknowledging that "Abrams's criminal acts occurred the night before he appeared before the court and was placed on probation in this case," contends, without 2 citation to authority, that the trial court's revocation of Abrams's probation as to the conviction for sexual abuse can be upheld. State's brief at p. 20. The State reasons that "[Abrams's] inability to comply with the initial requirement of probation -- that he successfully pass a drug screen -- was noncompliance that occurred after the court imposed the probationary split sentence" in the sexual-abuse case. State's brief at p. 20. We decline to view the subsequent 3 generation of a laboratory report by a third party dealing with activity that clearly predated Abrams's sentence of probation on the sexual-abuse conviction as an act 1070385 16 attributable to Abrams occurring after the sentencing that constitutes a violation of his probation as to that conviction. Nothing before us suggests that the trial court's granting of probation on the sexual-abuse conviction was conditioned upon a negative drug test. Indeed, the record reflects that the State knew at the time of sentencing that a drug test, if administered, could come back positive. For the foregoing reasons, we conclude that Abrams's contention that the trial court erred in revoking his probation on the sexual-abuse conviction based on a delinquency report related to his probation on another conviction because, he argues, the trial court erroneously considered evidence indicating that Abrams used illegal drugs before he was placed on probation on the sexual-abuse conviction is not precluded from appellate review. IV. Conclusion The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for further proceedings. 1070385 17 REVERSED AND REMANDED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	May 2, 2008
fa5fe37e-bb98-4c00-af5a-1a3e310206cf	Ex parte Novartis Pharmaceuticals Corporation. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Alabama Medicaid Pharmaceutical Average Wholesale Price Litigation)	N/A	1070310	Alabama	Alabama Supreme Court	REL: 4/18/08 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, 2007-2008 _________________________ 1070310 _________________________ Ex parte Novartis Pharmaceuticals Corporation PETITION FOR WRIT OF MANDAMUS (In re: Alabama Medicaid Pharmaceutical Average Wholesale Price Litigation) _________________________ 1070311 _________________________ Ex parte SmithKline Beecham Corporation d/b/a GlaxoSmithKline PETITION FOR WRIT OF MANDAMUS 2 (In re: Alabama Medicaid Pharmaceutical Average Wholesale Price Litigation) _________________________ 1070312 _________________________ Ex parte AstraZeneca LP and AstraZeneca Pharmaceuticals LP PETITION FOR WRIT OF MANDAMUS (In re: Alabama Medicaid Pharmaceutical Average Wholesale Price Litigation) (Montgomery Circuit Court, CV-05-219) PER CURIAM. Novartis Pharmaceuticals Corporation ("Novartis"), SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("GSK"), and AstraZeneca LP and AstraZeneca Pharmaceuticals LP ("AstraZeneca") petition this Court the for writ of mandamus, asking us to vacate an order of the Montgomery Circuit Court that consolidates for a single trial under Rule 42, Ala. R. Civ. P., 3 of 73 civil fraud cases filed by the State of Alabama against pharmaceutical companies accused of defrauding Alabama's Medicaid program ("Alabama Medicaid"). For the reasons stated below, we dismiss as moot the petition filed by AstraZeneca and deny on the merits the petitions filed by Novartis and GSK. 1070310; 1070311; 1070312 3 Background This is the second time this litigation has been before this Court on petitions for the writ of mandamus. See Ex parte Novartis Pharm. Corp., [Ms. 1060224, June 1, 2007] __ So. 2d ___ (Ala. 2007) ("Novartis I"). This action is part of the Alabama Medicaid Pharmaceutical average wholesale price ("AWP") litigation, in which the State has sued 73 pharmaceutical companies, including AstraZeneca, GSK, and Novartis. According to Novartis, the State alleges that each pharmaceutical company independently "engaged in false, misleading, wanton, unfair, and deceptive acts and practices in the pricing and marketing of their prescription drug products" by reporting false pricing benchmarks and by failing to disclose to Alabama Medicaid the discounts or rebates made available by the pharmaceutical companies to Alabama physicians and pharmacies who dispensed the drugs ("the providers"). Novartis's petition at 2-3. The State asserts that Alabama Medicaid relied on these allegedly false disclosures and deceptive nondisclosures, and that, as a result, Alabama Medicaid compensated the providers more for the prescription drugs than the drugs actually cost the 1070310; 1070311; 1070312 4 providers. Id. Thus, according to the State, these fraudulent practices by the pharmaceutical companies caused the State to overpay for Medicaid prescription drugs. The State alleges that each defendant pharmaceutical company marketed this profit margin or "spread" (the difference between what the providers actually paid for the drugs and the amounts reimbursed to providers by Alabama Medicaid) to the providers to encourage them to use that company's products rather than those of its competitors. See generally Novartis I, __ So. 2d __. Originally, the State brought a single action against all 73 defendant pharmaceutical companies. Many of the defendant pharmaceutical companies moved to sever the claims against them from those of the other defendants; however, the trial court summarily denied the motions to sever. Forty-four defendant pharmaceutical companies filed mandamus petitions in this Court challenging the trial court's ruling on the severance issue; those petitions resulted in the opinion in Novartis I. At issue in Novartis I was whether joinder of all 73 defendants in a single action was improper under Rule 1070310; 1070311; 1070312 Rule 20(a), Ala. R. Civ. P., provides: 1 "(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities." 5 20(a), Ala. R. Civ. P., which permits joinder of multiple 1 defendants in a single action when the two requirements of Rule 20(a) are met. First, "the plaintiff must assert against each defendant a 'right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences,'" and, second, "there will arise in the action 'any question of law or fact common to all defendants.'" Novartis I, __ So. 2d at __ (quoting Rule 20(a), Ala. R. Civ. P.). In Novartis I, this Court found that the joinder of all the defendants was improper because the facts of the case did 1070310; 1070311; 1070312 Rule 42(a), Ala. R. Civ. P., provides: 2 "(a) Consolidation. When actions involving a common question of law or fact are pending before 6 not satisfy the first requirement of permissive joinder. We concluded that the State was not asserting a right to relief against all defendants arising out of the same transaction or occurrence; rather, the State was suing each defendant pharmaceutical company for independently committing logically unrelated, yet "coincidentally similar," fraudulent acts that were not part of a conspiracy or a series of coordinated transactions or occurrences. Novartis I. Because the State's claims against the pharmaceutical companies did not satisfy the first requirement of permissive joinder, this Court did not reach the second requirement; thus, it did not decide in Novartis I whether "any question of law or fact common to all defendants [would] arise in the action." See Ala. R. Civ. P. 20(a). Justice Lyons concurred specially in Novartis I and was joined by Chief Justice Cobb; he noted that the Court's finding of misjoinder in Novartis I did not preclude the prospect of consolidated trials under Rule 42(a), Ala. R. Civ. P. Rule 42(a) vests trial courts with the discretion to 2 1070310; 1070311; 1070312 the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." 7 order a joint trial "of any or all the matters in issue" in "actions involving a common question of law or fact," whether or not the right to relief asserted by the plaintiff against all defendants arises out of the same transaction or occurrence. Ex parte Flexible Prods. Co., 915 So. 2d 34, 43 (2005). Justice Lyons encouraged the trial court to consider, in response to Novartis I, "the extent to which some number of trials less than 73 might be appropriate," ___ So. 2d at ___, but cautioned the trial court against the opaque manner in which it had arrived at an earlier "consolidation" order grouping the defendant pharmaceutical companies into four tracks for trial: "In the proceedings that led to the present petitions, the trial court, as best I can determine, announced that there would be four trials consisting of four tracks of defendants. The trial court then sought the assistance of two special masters, placing them in what appears to be a procrustean bed of four trials. The special masters' report and any bases therein for selecting the parties for the four trials was not made available to the parties. The trial court entered an order based upon the report in which it created four tracks of defendants 1070310; 1070311; 1070312 8 without identifying its rationale for clustering various defendants in the various tracks. "The validity of the prior order of consolidation is not before us because we have found a misjoinder of parties, necessitating our setting aside the trial court's order. I will not speculate on the result that might have been reached had it been necessary to address the order of consolidation. Suffice it to say that, upon remand, a more transparent proceeding not so ostensibly lacking in a principled basis would better serve the ends of justice. For example, if the trial court once again seeks the input of special masters, its announcement of the number of tracks without stating any basis therefor before the masters' participation, its failure to disclose to the parties the recommendation of the masters, and its failure to identify the reasoning upon which any clusters of defendants are created for resolution of this proceeding in any order calling for fewer than 73 trials will substantially increase the State's burden in sustaining its protestations against this Court's micromanagement of the trial court's exercise of discretion should there be a subsequent mandamus proceeding challenging consolidation." Novartis I, __ So. 2d at __ (Lyons, J., concurring specially). After this Court issued its opinion in Novartis I, the trial court ordered a joint trial of AstraZeneca LP and AstraZeneca Pharmaceuticals LP, to begin on February 11, 2008. Astrazeneca did not object to the order scheduling the joint trial of the State's claims against it. Subsequently, the State moved the trial court to consolidate the AstraZeneca trial with 14 similar fraud cases against other defendant 1070310; 1070311; 1070312 9 pharmaceutical companies, including GSK and Novartis. The various defendant pharmaceutical companies opposed the State's consolidation motion, and the trial court conducted a hearing on the motion. After the hearing, the trial court issued a nine-page order that granted the State's motion in part and consolidated the trial of the State's claims against AstraZeneca with the trials of the State's claims against GSK and Novartis. The trial court set the newly consolidated trial for February 11, 2008. State's brief at Exhibit C. The trial court denied the State's consolidation motion as to the remaining 12 pharmaceutical companies the State had sought to join in a single trial. AstraZeneca, GSK, and Novartis (collectively "the pharmaceutical manufacturers") each petitioned this Court for the writ of mandamus directing the trial court to vacate its order consolidating the cases. Although the pharmaceutical manufacturers individually petitioned this Court for the writ of mandamus, we have consolidated the petitions for the purpose of writing one opinion. The pharmaceutical manufacturers also moved this Court for a stay of the trial court's order pending this Court's review of their petitions. 1070310; 1070311; 1070312 AstraZeneca made clear to the trial court that it was not 3 opposing the order scheduling a joint trial of AstraZeneca LP and AstraZeneca Pharmaceuticals LP but that it did oppose a joint trial with additional defendants GSK and Novartis and that AstraZeneca was willing to go to trial on February 11 without those additional defendants. 10 On January 18, 2008, this Court ordered that "the Montgomery Circuit Court's ... order of consolidation[] is stayed pending the disposition of these petitions." While this action has been pending, the State proceeded to trial against AstraZeneca. The jury returned a verdict 3 against AstraZeneca and a judgment was entered on that verdict. However, it appears that the trial court is awaiting a decision from this Court on Novartis's and GSK's petitions before proceeding with the consolidated trial those two defendants. Standard of Review "'"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the r e s p o n d e n t t o p e r f o r m , accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'" 1070310; 1070311; 1070312 11 Novartis I, ___ So. 2d at ___ (quoting Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)). "'"In cases involving the exercise of discretion by an inferior court, [the writ of] mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion, except in a case [where the trial court exceeds its discretion]."'" Ex parte Monsanto Co., 794 So. 2d 350, 351-52 (Ala. 2001) (quoting Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1030 (Ala. 1989), quoting in turn Ex parte Edgar, 543 So. 2d 682, 685 (Ala. 1989)). Issues The pharmaceutical manufacturers first argue that they are entitled to the writ of mandamus because the trial court's order articulates no principled basis for consolidation of the cases for trial and, thus, they argue, the trial court exceeded its discretion in consolidating the cases. They further argue that the trial court exceeded its discretion when it consolidated these cases for trial because, the pharmaceutical manufacturers argue, these cases involve no 1070310; 1070311; 1070312 12 common question of law or fact. Finally, the pharmaceutical manufacturers argue that the trial court exceeded its discretion because, they argue, a consolidated trial would not promote judicial economy, would confuse the jury, and would prejudice each defendant. Analysis I. Mootness "A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights." State ex rel. Eagerton v. Corwin, 359 So. 2d 767, 769 (Ala. 1977). "'The general rule is, if[,] pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed. ... The condition may ... arise from the act of the court a quo, that is to say, from some order or judgment in the case pending the appeal, which is made by the court, which renders the determination of the questions presented by the appeal unnecessary.'" Siegelman v. Alabama Ass'n of Sch. Bds., 819 So. 2d 568, 575 (Ala. 2001) (quoting Caldwell v. Loveless, 17 Ala. App. 381, 382, 85 So. 307, 307-08 (1920) (emphasis omitted)); see also Eagerton, 359 So. 2d at 769 ("[W]hen an event occurs which renders a case moot prior to this court considering the appeal 1070310; 1070311; 1070312 13 it will be dismissed because a decision is not necessary." (citations omitted)). This same principle holds with regard to petitions for the writ of mandamus. See, e.g., Ex parte St. John, 805 So. 2d 684, 686 (Ala. 2001) ("To the extent that the petitioner seeks relief requiring the trial judge to grant the petitioner's motion to proceed in forma pauperis in the trial court ... the petition for writ of mandamus is moot, ... because the trial judge has by now granted the motion."). AstraZeneca sought mandamus relief from the trial court's order consolidating the AstraZeneca trial with the GSK and Novartis trials; however, AstraZeneca no longer faces the prospect of a consolidated trial with GSK and Novartis. After this Court stayed the consolidation order, the trial court proceeded in February 2008 with a trial of the State's claims against AstraZeneca alone, without consolidating that trial with the trials of GSK and Novartis and without awaiting this Court's resolution of these petitions for the writ of mandamus. State's Response to Novartis's Filing of Scheduling Order at 1. Therefore, there is no longer a controversy as to whether AstraZeneca may be required to go to trial with GSK and Novartis. Thus, AstraZeneca's petition is moot. 1070310; 1070311; 1070312 On March 6, 2008, the trial court issued an order stating 4 that if this Court did not rule on the GSK and Novartis petitions by Friday, March 21, 2008, the Montgomery Circuit Court would proceed with separate trials. Specifically, the order indicated that State of Alabama v. Novartis Pharmaceuticals Corp. would be set for trial beginning on April 7, 2008, and State of Alabama v. SmithKline Beecham Corp. would be set for trial beginning on May 12, 2008. On March 21, 2006, this Court issued a "Notice to Parties"; that notice provided: "This Court will not issue a decision in the above-referenced mandamus petitions on March 21, 2008, but anticipates a decision will be issued on or before April 18, 2008. This information is provided to the parties in order to afford the plaintiff, the State of Alabama, if it so desires, the opportunity to apply to the trial court for a continuance of the trial of State of Alabama v. Novartis Pharmaceuticals Corp., scheduled for April 7, 2008. " In apparent response to this Court's notice, the trial court has continued the trial in State of Alabama v. Novartis Pharmaceuticals Corp. 14 GSK's and Novartis's petitions, on the other hand, are not moot. The State's cases against GSK and Novartis remain consolidated for the purposes of trial. Although GSK and Novartis no longer face the prospect of going to trial with AstraZeneca, the consolidation order has not been vacated, and GSK and Novartis still face the prospect of a consolidated trial of the State's claims against them. Thus, the relief 4 they seek is not moot. Cf. St. John, 805 So. 2d at 686-87; Ex 1070310; 1070311; 1070312 Because the petition of each pharmaceutical manufacturer 5 joins and adopts the petitions of the other pharmaceutical manufacturers, we continue to use the term "pharmaceutical manufacturers" in the remainder of the opinion, even though we have determined that AstraZeneca's petition is moot. 15 parte Birmingham News Co., 624 So. 2d 1117, 1123 (Ala. Crim. App. 1993) (holding that, where ongoing proceedings in the trial court had the effect of only partially granting relief sought by petitioner, the petition was not moot). II. The Consolidation Order The pharmaceutical manufacturers argue that Ex parte 5 Duncan Construction Co., 460 So. 2d 852 (Ala. 1984), mandates reversal of a trial court's consolidation or severance order whenever the trial court fails to set forth particular facts or findings in support of its conclusion that consolidation or severance would not result in juror confusion and prejudice. GSK's petition at 4. The pharmaceutical manufacturers further argue that the trial court in this case violated the mandate of Duncan by failing to set forth particular facts or findings as to the potential for juror confusion and prejudice caused by consolidating the cases for trial. We disagree. Duncan involved a petition for the writ of mandamus seeking to set aside a trial court's order under Rule 14, Ala. 1070310; 1070311; 1070312 16 R. Civ. P., severing a third-party claim from a consolidated action. Duncan, 461 So. 2d at 854. Even if Duncan serves as authority in cases involving consolidation under Rule 42, Ala. R. Civ. P., Duncan does not stand for the proposition that this Court will reverse a trial court's order consolidating cases for trial under Rule 42(a) if the trial court's order does not set forth detailed facts in support of its conclusions regarding juror confusion and prejudice. In Duncan, this Court stated: "While the order states that the court 'finds that the case will be unduly complicated and very difficult for the jury to comprehend' if the third-party claims are allowed, nowhere does the court set out particular facts or findings in support of its conclusion, nor does the record support such a conclusion. ... ".... "We find no factual or legal grounds supporting the trial court's conclusions. We are constrained, therefore, to hold that the court's severance of all third-party claims was done in an arbitrary manner and amounts to an abuse of that court's discretion." Duncan, 460 So. 2d at 854 (emphasis added). Thus, in Duncan, the trial court did not state grounds or findings regarding the potential for juror confusion, and this Court considered whether there was support for the trial 1070310; 1070311; 1070312 The pharmaceutical manufacturers also argue that "[t]he 6 order virtually ignores the paramount considerations of confusion and prejudice." Novartis brief at 8. It may be true that Alabama caselaw recognizes that "the right of a party to litigate all claims in one proceeding is secondary to the overriding goal of preventing prejudice to the parties," Fox v. Hollar Co., 576 So. 2d 223, 225 (Ala. 1991); however, neither this caselaw nor Duncan requires the trial court to detail those findings in its order. 17 court's conclusion. After reviewing the materials before it, this Court set aside the trial court's severance order, not because the order failed to set forth particular facts or findings, but because this Court determined that the order lacked an actual basis in law and fact. This conclusion is supported by Ex parte R.B. Etheridge & Associates, Inc., 494 So. 2d 54, 58 (Ala. 1986), in which this Court described its reasoning in Duncan as follows: "After careful review, it seems to us that the Court in Duncan was able to determine from the record no support whatsoever in favor of the trial judge's severance order."6 The pharmaceutical manufacturers also argue that the trial court failed to satisfy the guidelines set forth in Justice Lyons's special concurrence in Novartis I and that in not doing so the trial court exceeded its discretion. In Novartis I, Justice Lyons cautioned the trial court that, if 1070310; 1070311; 1070312 18 it considered consolidation under Rule 42, Ala. R. Civ. P., it should not do so in the manner it had previously done so, when it placed the defendants into "procrustean bed[s]" of trial groups determined by undisclosed reports of special masters, without revealing the rationale behind the groupings and without any principled basis apparent in the trial court's order or in the record. Justice Lyons warned that, if the trial court used the same approach to consolidation under Rule 42(b), then the State's burden would be "greatly increased" should the defendants seek a writ of mandamus. Novartis I, __ So. 2d at ___. In its order, the trial court states: "A review of the pleadings filed in these actions reveals that the State's allegations against each [pharmaceutical manufacturer] present identical claims and legal theories of recovery. Specifically, the State' s second amended complaint asserts the same claims of fraudulent misrepresentation, fraudulent suppression, wantonness, and unjust enrichment against each defendant. In addition, based upon the expert disclosures filed by the State and attached as an exhibit to its motion to consolidate, it appears that the expert testimony which the State anticipates to present at trial will be the same for all defendants, as will the State's model and methodology for proving its alleged damages. ".... 1070310; 1070311; 1070312 19 "Similarly, the answers of the [pharmaceutical manufacturers] to the State's second amended complaint reflect that these defendants have asserted eighteen common factual and legal affirmative defenses to the State's claims, including the following: statute of limitations; repose, laches, estoppel, and waiver; standing; failure to satisfy federal regulatory requirements; federal preemption; political question doctrine; and filed rate doctrine. Given the commonality of the claims and defenses presented in these actions, the Court concludes that separate trials against each of the [pharmaceutical manufacturers] would be largely duplicative and inefficient. ".... "Another significant fact common to all defendants is that each of them participates in the State of Alabama's Medicaid program. Consequently, it is anticipated that, the State's case against all defendants -- regardless of the number of trials -- will necessarily address facts common to all defendants including the operations of the Alabama Medicaid Agency, the structure of the Alabama Medicaid Agency's reimbursement system, and the defendants' participation in and practices and procedures concerning the reimbursement program. Additionally, there are the common facts that each defendant reported its prices for the drugs at issue to certain price reporting services, namely First DataBank ('Blue Book') and Medical Economics, Inc. ('Red Book') and that the Alabama Medicaid Agency allegedly relied on these reported prices to reimburse providers. As such, evidence demonstrating facts common to all defendants will be presented at these trials including evidence as to how the price reporting services operate and the interaction between the Alabama Medicaid Agency and the price reporting services by which the defendants' reported prices are obtained and utilized. 1070310; 1070311; 1070312 20 "Based upon these common questions of fact, it is anticipated that the State will present the same evidence and testimony at each defendant's trial. As previously referenced, the expert disclosures submitted by the State reflect that the State expects to present the same expert testimony from the same expert witnesses to establish liability and to calculate damages at each trial." State's brief at Exhibit C. The parties briefed the issues; the trial court considered the parties' arguments; and the trial court issued an order setting forth its reasoning for ordering a consolidated trial of the State's claims against AstraZeneca, GSK, and Novartis. Moreover, the trial court's order is sufficient for us to review whether the decision to consolidate these cases is supported by a principled basis in law and fact. The trial court's consolidated order is not due to be reversed on the basis that the findings therein are insufficient; thus, the pharmaceutical manufacturers have not demonstrated that they have a clear legal right to the order sought or that the trial court had an imperative duty to perform and refused to do so. Therefore, they are not entitled to the writ of mandamus on this issue. III. Consolidation Under Rule 42(a) 1070310; 1070311; 1070312 21 The pharmaceutical manufacturers argue that the trial court erred when it consolidated these actions trial under Rule 42(a), Ala. R. Civ. P., because, they argue, the actions consolidated involve no common question of law or fact. Alternatively, the pharmaceutical manufacturers argue that the trial court erred when it consolidated these actions because, they argue, a consolidated trial would not promote judicial economy, would confuse the jury, and would prejudice each defendant. We address each argument in turn. A. Common question of law or fact The pharmaceutical manufacturers argue that consolidation of these cases for trial under Rule 42(a), Ala. R. Civ. P., was inappropriate because, they say, there is no common question of law or fact. Novartis's petition at 11. They also argue that this case "share[s] none of the characteristics with those in which this Court has[, in the past,] endorsed consolidation." GSK's petition at 6. Rule 42(a), Ala. R. Civ. P., provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning 1070310; 1070311; 1070312 22 proceedings therein as may tend to avoid unnecessary costs or delay." "We have said that '[c]ircuit judges have broad powers under the Alabama Rules of Civil Procedure ... to order actions consolidated.'" Ex parte Flexible Prods. Co., 915 So. 2d at 39 (quoting State v. Reynolds, 887 So. 2d 848, 854 (Ala. 2004)). "[Rule 42(a)] specifically recognizes the propriety of consolidation, as well as the trial court's discretion to order consolidation as necessary to reduce costs or delay." Owens-Corning Fiberglass Corp. v. James, 646 So. 2d 669, 674 (Ala. 1994). As noted, the trial court's consolidation order states: "A review of the pleadings filed in these actions reveals that the State's allegations against each Consolidated Defendant present identical claims and legal theories of recovery. Specifically, the State's second amended complaint asserts the same claims of fraudulent misrepresentation, fraudulent suppression, wantonness, and unjust enrichment against each defendant. In addition, based upon the expert disclosures filed by the State and attached as an exhibit to its motion to consolidate, it appears that the expert testimony which the State anticipates to present at trial will be the same for all defendants, as will the State's model and methodology for proving its alleged damages." State's brief at Exhibit C. The pharmaceutical manufacturers argue that "[t]he trial court's reliance on allegations in the 1070310; 1070311; 1070312 Rule 42(a) directs us to ask whether there is a common 7 question of law or fact, not whether the consolidated actions are similar or whether there are common "issues." 23 pleadings was misplaced. ... Any 'common' issues are common only inasmuch as they can be described using the same words."7 Novartis's petition at 11. As the trial court notes, the State has alleged "the same claims of fraudulent misrepresentation, fraudulent suppression, wantonness, and unjust enrichment against each defendant." "[T]he mere fact that two cases assert similar [or the same] theories of recovery does not constitute a common question of law so as to warrant consolidation," Flintkote Co. v. Allis-Chalmers Corp. 73 F.R.D. 463, 466 (D.C.N.Y. 1977) (footnote omitted). However, our review of the pleadings reveals that certain elements of the State's first two claims present common questions of law and fact. i. Fraudulent misrepresentation "To establish the elements of fraudulent misrepresentation [the State] ha[s] to show: '(1) that the [pharmaceutical manufacturers'] representation was false, (2) that it concerned a material fact, (3) that [the State] relied on the false representation, and (4) that actual injury 1070310; 1070311; 1070312 24 resulted from that reliance.'" Consolidated Constr. Co. of Alabama v. Metal Bldg. Components, L.P., 961 So. 2d 820, 825 (Ala. 2007) (Bolin, J., concurring specially) (quoting Boswell v. Liberty Nat'l Life Ins. Co., 643 So. 2d 580, 581 (Ala.1994)). The factual basis of the State's fraudulent- misrepresentation claim against the pharmaceutical manufacturers is that they "reported or caused to be reported AWP [average wholesale price], WAC [wholesale acquisition cost], and Direct Price for their products ... for publication and dissemination to state Medicaid agencies such as Alabama Medicaid." State's second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 38. The State asserts that "Alabama Medicaid reasonably relied on the false pricing data in setting prescription drug reimbursement rates and making payment on such rates." State's second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 38. Thus, it appears that in this case there will be a common question of fact as to whether the pricing information published in the third-party publications was material and whether the State, in fact, relied on that information. Although the other elements of the State's claim 1070310; 1070311; 1070312 25 may "produce proof pertaining to individual actors and actions," Novartis's petition at 11, whether the prices submitted to and published in the third-party publications were material and whether the State relied on the third-party publications in calculating the amounts to reimburse the providers appear to be questions common to both GSK and Novartis. ii. Fraudulent suppression "The elements of a fraudulent-suppression claim are '"(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury."'" McIver v. Bondy's Ford, Inc., 963 So. 2d 136, 143 (Ala. Civ. App. 2007) (quoting Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 891 (Ala. 2005), quoting in turn Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61, 63 (Ala. 1996)). The State specifically alleges that the pharmaceutical manufacturers "voluntarily undertook to report or cause to be reported AWP, WAC, and Direct Price for their products ... for publication and dissemination to state Medicaid agencies 1070310; 1070311; 1070312 26 including Alabama Medicaid" and that they "had a duty under the particular circumstances to provide accurate and complete AWP, WAC, and Direct Price information." State's second amended complaint, Appendix, Vol. 1 at Exhibit 1, at 39. In its answer, GSK admits that it "distributes, markets or sells certain prescription drugs that are reimbursed by Alabama Medicaid" and that "from time to time, GSK provided price communications to third party publications which contained 'WACs' [wholesale acquisition costs] or similar list prices for wholesalers for certain of its drugs." GSK's answer, Appendix, Vol. 1 at Exhibit 4, pp. 7 and 19. Similarly, Novartis admits that "it distributes, markets or sells ... prescription drugs that are reimbursed by Alabama Medicaid" and that "from time to time during the relevant period, Novartis provided price lists to third party publications which contained, inter alia, 'AWPs' [average wholesale prices] and 'WACs' [wholesale acquisition costs] for certain of its drugs ...." Novartis's answer, Appendix, Vol. 1 at Exhibit 3, pp. 6 and 12. "[T]he existence of a duty is a question of law to be determined by the trial judge." State Farm Fire & Cas. Co. v. 1070310; 1070311; 1070312 27 Owen, 729 So. 2d 834, 839 (Ala. 1998). Thus, it appears that there is a common question of law as to whether the pharmaceutical manufacturers, in participating in Alabama's Medicaid program and reporting prescription drug prices to the third-party reporting services, had a duty to accurately disclose their prescription drug prices to the third-party publications. Similarly, it appears that common to both actions on this claim is the question whether the State, in fact, acted to its injury with regard to the information provided to the third- party publications. The pharmaceutical manufacturers argue that this case "share[s] none of the characteristics with those in which this Court has[, in the past,] endorsed consolidation." GSK's petition at 6. They argue that this Court has endorsed consolidation "in cases involving a single, identifiable product or event," such as toxic-tort cases or cases arising out of the same transaction and in cases involving "conspiracies and concurrent torts" or that this Court has limited consolidation of trials to "common issues" rather than 1070310; 1070311; 1070312 The pharmaceutical manufacturers also argue that 8 consolidation of these cases is inappropriate given this Court's adoption, in Ex parte Flexible Products, supra, of In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). In Van Waters, the Supreme Court of Texas noted that "'[a] further consideration [in determining whether to consolidate cases] is the maturity of the alleged tort. In In re Bristol-Myers Squibb, [975 S.W.2d 601 (Tex. 1998),] we instructed lower courts to "proceed with extreme caution" when consolidating claims of immature torts. A tort is mature only when "'there has been full and complete discovery, multiple jury verdicts, and a persistent vitality in the plaintiffs' [contentions].'"'" Ex parte Flexible Prods. Co., 915 So. 2d at 45 (quoting Van Waters 145 S.W.3d at 208)(additional citations omitted). The pharmaceutical manufacturers argue that this litigation "is a novel claim in Alabama; it has not been the subject of 'multiple jury verdicts' or shown any 'persistent vitality,' nor has a case involving it ever been 'tried or appealed' in this State." GSK's petition at 13. Thus, the pharmaceutical manufacturers argue, these cases are not "mature" enough for consolidation. However, the pharmaceutical manufacturers's reliance on Van Waters is misplaced. Van Waters, and the authority on which it is premised, is designed "[t]o aid in the determination of whether consolidation is appropriate in a mass tort case alleging exposure in a workplace." Van Waters 145 S.W.3d at 207. Even if the Van Waters consideration is applicable, this case will not be the first AWP case the trial court conducts –- as noted above, the State's case against AstraZeneca has already gone to trial. Moreover the State's claims –- fraudulent misrepresentation, fraudulent suppression, wantonness, and unjust enrichment –- are not novel. 28 consolidating as to "all issues." GSK's petition at 6.8 Nonetheless, Rule 42(a) permits joint trials when the cases share "a common question of law or fact." Ala. R. Civ. P. 42(a). One of either -- law or fact -- will suffice as the basis for invoking the rule. See also 33 Fed. Proc., L. Ed. 1070310; 1070311; 1070312 29 § 77:44 (1995) ("Actions involving the same parties are likely candidates for consolidation, but a common question of law or fact is enough; if a common question exists, courts often consolidate actions despite differences in partes."); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2382 (3d ed. 2008) ("The existence of a common question by itself is enough to permit consolidation under Rule 42(a), [Fed. R. Civ. P.,], even if the claims arise out of independent transactions."). Further, consolidation under Rule 42 does not require that common issues predominate over other issues. See Ex parte Flexible Prods. Co., 915 So. 2d at 42 ("Moreover, we reject the argument presented by the defendants that the propriety of the [case-management order] rests upon a determination of whether any common issues 'predominate' over the other issues in the actions to be consolidated. A weighing of the relative dominance of the particular issues presented by actions to be consolidated (an exercise that would be speculative in actions such as this where the common issues have yet to be framed) is not required by Rule 42."). Therefore, the trial court did not err when it 1070310; 1070311; 1070312 30 found that the existence of a common question of law or fact in these cases forms the premise for consolidating them. B. Prejudice, confusion, and judicial economy The pharmaceutical manufacturers argue, alternatively, that even if these cases present a common question of law or fact, consolidation is inappropriate because, they say, the consolidation will prejudice the parties, confuse the jury, and will waste judicial resources. "[T]he fact that a common question of law exists does not alone justify consolidation in the absence of other factors which would promote 'trial convenience and economy in administration.'" Prudential Ins. Co. of America v. Marine Nat'l Exch. Bank, 55 F.R.D. 436, 437 (E.D. Wis. 1972) (quoting Schacht v. Javits, 53 F.R.D. 321, 324-25 (S.D.N.Y.1971)). "'In determining whether various claims are appropriate for consolidation, "the dominant consideration in every case is whether the trial will be fair and impartial to all parties." Consolidation should be avoided if it would cause "'confusion or prejudice as to render the jury incapable of finding the facts on the basis of the evidence.'" If an injustice will result from consolidated trials, a trial court "has no discretion to deny separate trials."'" 1070310; 1070311; 1070312 31 Ex parte Flexible Prods. Co., 915 So. 2d at 43 (quoting In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 208 (Tex. 2004) (footnotes omitted)). See also Fox v. Hollar Co., 576 So. 2d 223, 225 (Ala. 1991) ("[T]he right of a party to litigate all claims in one proceeding is secondary to the overriding goal of preventing prejudice to the parties."); Bateh v. Brown, 293 Ala. 704, 711, 310 So. 2d 186, 192 (1975) ("[C]onsolidation should not be allowed where it may result in prejudice to one or more of the parties."). The United States Court of Appeals for the Eleventh Circuit has noted that a trial court in exercising its discretion to consolidate actions under Rule 42(a), Fed. R. Civ. P., should determine: "'[W]hether the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the s i n g l e - t r i a l , m u l t i p l e - t r i a l alternatives.'" Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985) (quoting Arnold v. Eastern Air Lines, Inc., 1070310; 1070311; 1070312 32 681 F.2d 186, 193 (4th Cir.1982)). The Eleventh Circuit Court of Appeals in Hendrix also noted that trial courts "must also bear in mind the extent to which the risks of prejudice and confusion that might attend a consolidated trial can be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs' claims (including the defenses thereto) are submitted to the jury for deliberation." Hendrix, 776 F. 2d at 1495. In its order, the trial court concludes its decision to consolidate these cases by stating: "The Court further finds that consolidation of these actions promotes effective case management and avoids needlessly duplicative trials. Consolidation of these actions will conserve judicial resources, alleviate unnecessary delay and expense, reduce the burden on witnesses and the parties, and result in the most efficient and economical disposition of these actions. Moreover, the Court finds that the parties will not suffer prejudice as a result of consolidation of the trials of the Consolidated Defendants as these defendants are members of the 'Track 1' grouping of cases for trial, originally set for trial in November 2007, and for which the discovery deadline has expired. Finally, the logical grouping of the Consolidated Defendants--all of which manufacture, market and sell brand-name drugs and similarly report prices--minimizes the risk of any prejudice or confusion which could potentially result from consolidation." State's petition at Exhibit 3. The pharmaceutical manufacturers argue that the trial court exceeded its 1070310; 1070311; 1070312 33 discretion in ordering a joint trial because "a joint trial of claims against [two] individual manufacturers, each of which, over a 15 year period, sold hundreds of different products that were priced, marketed, and reimbursed in different ways will numb jurors to key distinctions among the defendants, their products, and their marketing practices." Novartis's petition at 18. Specifically, the pharmaceutical manufacturers argue that their cases involve hundreds of drugs and that the State's claims necessitate demonstrating proof regarding intent, falsity, and reliance as to each defendant that will create an inordinately complex evidentiary record. They further argue that "paralyzed by confusion, jurors will, by default, treat all of the disparate evidence as if it were relevant to all of the defendants. The inevitable prejudice will be substantial." Novartis's petition at 18. In support of their argument, the pharmaceutical manufacturers point to statements made by Judge Patti B. Sardis, the Boston-based federal district judge handling the multidistrict aspects of the AWP litigation. The pharmaceutical manufacturers note that Judge Sardis's experience "led her to conclude that the evidentiary records 1070310; 1070311; 1070312 34 in [AWP litigation] are simply too complex and confusing for multi-defendant jury trials." Novartis's petition at 14. Similarly, the pharmaceutical manufacturers point to statements of Circuit Court Judge Richard G. Niess of the Dance County, Wisconsin, who noted: "[I]t is not at all apparent ... that any defendant could have its case fairly considered by the jury if not in a separate trial. Defendants present a compelling argument for insurmountable jury confusion with their proof on differing corporate practices among the defendants, multiple claims against each defendant each consisting of multiple elements and each portending multiple verdict questions both on these claims and defendants' affirmative defenses." Novartis's petition at 17. Finally, the pharmaceutical manufacturers note that "'[t]he very purpose of consolidation is to expedite litigation and save money.'" Novartis's petition at 26 (quoting Teague v. Motes, 57 Ala. App. 609, 613, 330 So. 2d 434, 439 (Ala. Civ. App. 1976)). However, they argue that a consolidated trial does not promote judicial economy because, the pharmaceutical manufacturers say, consolidation will require the trial court and the defense attorneys to spend an inordinate amount of time keeping separate the claims and evidence attributable to the respective defendants and claims. Novartis's petition at 27. 1070310; 1070311; 1070312 35 The pharmaceutical manufacturers further argue that "separate trials also minimize the threat of long-term inefficiencies in the form of appellate reversals and retrials." Novartis's petition at 28. The State, on the other hand, argues that the pharmaceutical manufacturers' argument that the consolidation will result in jury confusion and prejudice is speculative. State's brief at 19. The State further argues that any possible confusion or prejudice "could be avoided or minimized through careful management of the trial –- through evidentiary rulings, jury instructions, motions in limine, [and] special verdict forms," State's brief at 20, and that the trial court is allowed "to shape the order of trial through the provisions of Rule 42(a), Ala. R. Civ. P." State's brief at 23 (citing Ex parte Monsanto Co., 794 So. 2d at 357). Finally, the State argues that Judge Sardis's comments are inapposite to this case because the cases before her involved multidistrict class-action claims involving more than one plaintiff and differing theories of recovery. State's brief at 24. 1070310; 1070311; 1070312 36 In Quintel Corp., N.V. v. Citibank, N.A., 100 F.R.D. 695, 697 (D.C.N.Y. 1983), the federal district court in New York recognized: "This type of danger [jury confusion] exists, of course, in many multidefendant, multicount trials. It is a tenet of the jury system that jurors follow the court's instructions and can apply different standards to several defendants. There is nothing extraordinary about these cases, such as inevitably conflicting findings, that would make the danger of confusion paramount." As the Eleventh Circuit Court of Appeals noted in Hendrix, the Court must keep in mind "the extent to which the risks of prejudice and confusion that might attend a consolidated trial can be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the manner in which the plaintiffs' claims (including the defenses thereto) are submitted to the jury for deliberation." Hendrix, 776 F.2d at 1495. Although this Court recognizes that the facts and evidentiary record in these cases may be complex, we cannot conclude that the trial court exceeded its discretion when it consolidated these cases for trial. With the trial of AstraZeneca already having concluded, the remaining consolidated action has only two defendants, Novartis and GSK, 1070310; 1070311; 1070312 37 and the State has asserted only four claims against each defendant. Under these circumstances, we agree with the State that any prejudice and/or confusion can be avoided or minimized by careful trial management. "For the writ of mandamus to issue '"[t]he right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful."'" Ex parte Vance, 900 So. 2d 394, 398-99 (Ala. 2004) (quoting Goolsby v. Green, 431 So. 2d 955, 958 (Ala. 1983), quoting in turn Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981)). "'This Court does not issue the writ of mandamus based on mere speculation as to the possible occurrence of future events.'" Ex parte Flexible Prods. Co., 915 So. 2d at 41 (quoting Ex parte Vance, 900 So. 2d at 398- 99.). In order to issue the writ of mandamus in this case, we have to conclude that Judge Price has exceeded his discretion; we do not so conclude. Conclusion 1070310; 1070311; 1070312 38 For the foregoing reasons, we deny GSK's and Novartis's petitions for the writ of mandamus and dismiss as moot Astrazeneca's petition for the writ of mandamus. 1070310 -- PETITION DENIED. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., dissents. 1070311 -- PETITION DENIED. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., dissents. 1070312 -- PETITION DISMISSED AS MOOT. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. 1070310; 1070311; 1070312 39 MURDOCK, Justice (concurring in case no. 1070312 and dissenting in cases no. 1070310 and no. 1070311). I agree that the petition for the writ of mandamus filed by AstraZeneca is due to be dismissed as moot because the trial in that case has already occurred. As to the petitions filed by Novartis and GSK, however, because of the factual complexity of the claims and defenses of the parties and the likelihood of substantial confusion on the part of the jury and of prejudice to the defendants as a result of the consolidation, I respectfully dissent.	April 18, 2008
bbb80664-49a2-4c44-93ea-7de3a1f11476	Ex parte Nationwide Mutual Insurance Company. PETITION FOR WRITOF MANDAMUS: CIVIL (In re: Jureda Windham v. Alan Mortgage Corporation; Jerry C. Wedgeworth, individually; and Rodney Holmes, individually)	N/A	1051502	Alabama	Alabama Supreme Court	03/07/08 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, 2007-2008 _________________________ 1051502 _________________________ Ex parte Nationwide Mutual Insurance Company PETITION FOR WRIT OF MANDAMUS (In re: Jureda Windham v. Alan Mortgage Corporation, Jerry C. Wedgeworth, and Rodney Holmes ______________________ Derek Duffy and Laura Duffy v. Alan Mortgage Corporation, Jerry C. Wedgeworth, 1051502 The materials submitted on this petition for the writ of 1 mandamus do not indicate the relationship of the two individuals to Alan Mortgage. We assume they are employees. 2 and Rodney Holmes) (Pickens Circuit Court, CV-04-27 and CV-04-28) BOLIN, Justice. Nationwide Mutual Insurance Company petitions this Court for a writ of mandamus directing the Pickens Circuit Court to vacate its order 1) denying Nationwide's motion for a protective order and 2) ordering Nationwide to produce specified documents. We grant the petition in part and deny in part. Facts and Procedural Background In March 2004, Jureda Windham and Derek Duffy and Laura Duffy filed separate actions against Alan Mortgage Corporation, Jerry C. Wedgeworth, and Rodney Holmes. After 1 retaining counsel to protect its interests, Alan Mortgage notified its insurance carrier, Nationwide, of the actions and requested that Nationwide defend and indemnify it. On May 17, 2004, Ryan Gadapee, a claims adjuster for Nationwide, notified Alan Mortgage via a certified letter that Nationwide had received a copy of the complaints filed by Windham and the 1051502 3 Duffys and "that Nationwide may have the right to raise certain defenses to [Alan Mortgage's] claim for coverage under the Nationwide Mutual Insurance policy." On May 24, 2004, Gadapee sent another letter to Alan Mortgage stating: "It is furthermore Nationwide's understanding that [counsel you have retained to protect your company's interest] has filed an answer ... on your company's behalf. Because you and your company have counsel acting on your behalf, Nationwide will not, at this juncture, be providing a defense on you or your company's behalf until it has concluded its investigation of the submitted claims. Once Nationwide has completed that investigation it will immediately notify you regarding its decision as to your request for a defense and indemnification ...." (Emphasis added.) On May 26, 2004, counsel retained by Alan Mortgage wrote Gadapee asking for the date Nationwide expected to complete its investigation and make a coverage decision. Counsel wrote a second letter, dated June 17, 2004, demanding that Nationwide defend Alan Mortgage in these actions because "Nationwide had been given more than enough time to determine whether it had a duty to defend." On June 29, 2004, Gadapee received a coverage opinion from counsel for Nationwide, Hare, Clement & Duck, P.C. The opinion recommended that Nationwide deny Alan Mortgage's claim 1051502 4 for coverage. On July 2, 2004, Gadapee notified Alan Mortgage that Nationwide would not defend or indemnify Alan Mortgage in the actions. During Gadapee's deposition, the following exchange occurred regarding Nationwide's investigation and decision- making process: "[Counsel for Alan Mortgage]: Okay. So before June 29, 2004, you did not know what [counsel's] coverage opinion would be; correct? "Gadapee: Correct. "[Counsel for Alan Mortgage]: Okay. And before that date you and Nationwide had made a decision not to defend under reservation of rights; correct? "[Counsel for Nationwide]: Objection to the form. "Gadapee: At that time you were protecting the insured's interest and we were completing our coverage investigation. "[Counsel for Alan Mortgage]: And so before that date Nationwide had decided it would not engage counsel to provide a defense; correct? "Gadapee: You were protecting the policyholder's interest at that point, yes. "[Counsel for Alan Mortgage]: Okay. So the answer to my question is yes; correct? "Gadapee: You were the one defending the insured at that point in time, yes. 1051502 5 "[Counsel for Alan Mortgage]: And Nationwide had before that date decided not to provide a defense under reservation of rights; correct? "Gadapee: At that point in time we were not defending under reservation of rights, correct. "[Counsel for Alan Mortgage]: And that was a conscious decision; correct? "Gadapee: We were completing our coverage determination at that time." On July 8, 2004, Alan Mortgage, Wedgeworth, and Holmes (hereinafter collectively referred to as "Alan Mortgage") filed a third-party complaint against Nationwide, alleging breach of an insurance contract and bad faith, seeking both compensatory and punitive damages. Alan Mortgage also requested specific performance of the insurance contract. Nationwide answered. Alan Mortgage filed a second amended complaint. In its answer to the second amended complaint, Nationwide asserted an "advice-of-counsel" defense. Alan Mortgage moved the trial court to strike that affirmative defense as untimely pleaded. On March 23, 2005, the trial court granted Alan Mortgage a partial summary judgment establishing that Nationwide had breached its contract and that it had a duty to defend Alan 1051502 Although Nationwide took exception to several of the 2 factual assertions made by Alan Mortgage in its response, it did not refute this assertion. 6 Mortgage in the actions. Alan Mortgage states in its response to Nationwide's petition that "[d]espite this ruling, Nationwide has still not reimbursed Alan Mortgage for defense costs incurred before Nationwide finally agreed to provide a defense subject to a reservation of rights. Instead, Nationwide agreed only to reimburse a portion of those fees and only if Alan Mortgage dismissed the bad faith claim."2 On September 27, 2005, Alan Mortgage served its "Second Request for Production of Documents" on Nationwide, which included the following requests that Nationwide finds objectionable: "3. All documentation or electronic information regarding the relationship between [Nationwide] and the law firm of Clement, Hare and Duck, P.C. [sic], including, but not limited to, all contracts, agreements, lists of case assignments and requests for coverage opinions, and information regarding the amounts paid in compensation to said law firm during the years 2000, 2001, 2002, 2003 and 2004. "4. All electronic mail or other electronic communications between [Nationwide] and its counsel of record in this case regarding the insurance coverage issues and the dispute made the basis of this lawsuit." Alan Mortgage also moved the court to award attorney fees pursuant to the Alabama Litigation Accountability Act, § 12- 1051502 On January 23, 2006, Nationwide petitioned this Court for 3 a writ of mandamus in each of the underlying actions directing the Pickens Circuit Court to allow Nationwide to plead and establish an advice-of-counsel affirmative defense. On 7 19-270 et seq., Ala. Code 1975. According to Alan Mortgage's motion, Nationwide "interposed defenses without substantial justification in that they were groundless in fact and in law." (Nationwide's reply brief, exhibit 5.) On October 3, 2005, the trial court ordered Nationwide to produce the requested discovery within 30 days. On November 4, 2005, Nationwide requested a 30–day extension within which to file its response to the discovery requests. The trial court granted its motion. On December 7, 2005, Nationwide responded, objecting to the production of the requested documents, claiming the requests were not limited in time or scope, were irrelevant or immaterial, were not likely to lead to relevant or material evidence, violated the attorney-client and work-product privileges, and were overly broad, vague, ambiguous, and unduly burdensome. On December 20, 2005, the trial court struck Nationwide's advice-of-counsel defense because Nationwide had not shown good cause or any justification for its failure to plead the affirmative defense earlier. On January 20, 2006, Alan 3 1051502 September 15, 2006, without an opinion, this Court denied Nationwide's petition for a writ of mandamus. Ex parte Nationwide Mut. Ins. Co., [1050517 and 1050519, September 15, 2006] ___ So. 2d ___ (Ala. 2006)(table). 8 Mortgage moved to compel production of the requested documents, and Nationwide objected. On January 26, 2006, the trial court ordered Nationwide to respond within 21 days. On February 10, 2006, Nationwide moved for a protective order. After conducting a hearing, the trial court gave Nationwide leave to file a brief with regard to why Nationwide should not have to comply with the discovery requests. On June 19, 2006, the trial court denied Nationwide's motion for a protective order and directed Nationwide to produce the requested documents within 30 days. Its order denying the motion was entered on June 20, 2006. On July 18, 2006, Nationwide petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying Nationwide's motion for a protective order and ordering Nationwide to produce the documents. Standard of Review "In Ex parte Norfolk Southern Ry., 897 So. 2d 290 (Ala. 2004), this Court delineated the limited circumstances under which review of a discovery order is available by a petition for a writ of mandamus and the standard for that review in light 1051502 9 of Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003): "'"Mandamus is an extraordinary remedy and will be granted 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644-45 (Ala. 2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So. 2d 1135, 1138 (Ala. 1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue 1051502 10 so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case –- that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992)."' "897 So. 2d at 291-92 (quoting Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136-37 (Ala. 2003))." Ex parte Orkin, Inc., 960 So. 2d 635, 638 (Ala. 2006). Discussion Before considering the substantive issues raised by Nationwide, we must address Alan Mortgage's motion to dismiss this petition. According to Alan Mortgage, Nationwide's petition is untimely because, it says, Nationwide did not file the petition within a reasonable time, see Rule 21(a)(3), Ala. R. App. P. ("The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or a lower appellate court shall be the same as the time for taking an appeal [42 days from the entry of judgment]."). Alan Mortgage states: 1051502 11 "Nationwide goes to great lengths in its Petition to portray that it is seeking mandamus relief relating to the June 19, 2006 order denying its Motion for Protective Order and not the January 26 order granting Alan Mortgage's Motion to Compel. However, a review of Nationwide's Petition makes one thing certain –- it is really nothing more than an attempt to get a 'third' bite at the apple on Alan Mortgage's Motion to Compel –- and is therefore directed not to the June 19 order denying the Motion for Protective Order (which motion ... is nothing more that Nationwide's rehashing of the arguments in its brief in opposition to the motion to compel), but to the January 26, 2006 order granting the motion to compel." (Alan Mortgage's motion to dismiss at p. 3.) In Ex parte Reynolds Metals Co., 710 So. 2d 897 (Ala. 1998), an employee sued his employer. The trial court granted the employee's motion to compel certain discovery and ordered that the discovery be produced within 21 days of the order. Before the 21-day period expired, the employer filed a petition for a writ of mandamus, arguing that the discovery order was overly broad and unduly burdensome. This Court held that the employer's failure to seek a protective order from the trial court rendered its petition for the writ of mandamus premature. Requiring the party allegedly burdened by discovery to request a protective order from the trial court before seeking mandamus relief with this Court allows the trial court 1051502 12 an opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error. In the present case, the trial court entered its order compelling discovery on January 26, 2006. On February 10, 2006, Nationwide moved for a protective order on the grounds that the discovery sought was irrelevant and not discoverable in an action alleging breach of contract or bad faith. On June 20, 2006, the trial court entered its order denying Nationwide's motion for a protective order. On July 18, 2006, within 42 days of the entry of the trial court's order denying the protective order, Nationwide petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying Nationwide's motion for a protective order. Nationwide's filing a motion for a protective order allowed the trial court the opportunity to address its alleged error before Nationwide sought relief in this Court. Ex parte Orkin, Inc., supra, is dispositive of the timeliness issue, even though it was released after Nationwide petitioned this Court for review. In Ex parte Orkin, the pest-control company filed a petition for a writ of mandamus, 1051502 13 seeking an order directing the trial court to vacate certain portions of discovery orders in an action against the company alleging breach of contract, negligence, and fraud. This Court held that the presumptively reasonable time for filing a petition for a writ of mandamus began to run on the date the trial court entered the order denying the pest-control company's motion for a protective order. Thus, Nationwide's petition is timely and Alan Mortgage's motion to dismiss the petition is denied. We now address the substantive issues presented in Nationwide's petition. With regard to Alan Mortgage's discovery request no. 3 –- seeking "[a]ll documentation and electronic information regarding the relationship between [Nationwide]" and its counsel -- Nationwide contends that the trial court exceeded the scope of its discretion in ordering production of all documentation or electronic information regarding that relationship. According to Nationwide, the documents are irrelevant and immaterial to the asserted causes of action and the production of the documents constitutes harassment, imposing a burden "far out of proportion to any benefit" that Alan Mortgage may obtain –- the exceptional 1051502 14 circumstance (b) provided in Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003) ("a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party"). Nationwide further maintains that because its advice-of-counsel defense has been stricken, the documents sought in request no. 3, i.e., "contracts, agreements, lists of case assignments and requests for coverage opinions, and information regarding the amounts paid in compensation" to Nationwide's counsel, cannot be relevant. Therefore, Nationwide reasons, none of the requested documents relate to factors that must be proven to support Alan Mortgage's claims, and it should not be required to produce the documents. Alan Mortgage contends that the nature of its bad-faith claim and of its motion for attorney fees establishes that the documents sought in discovery request no. 3 are relevant and material. According to Alan Mortgage, Nationwide engaged in continuous acts of bad faith by "seeking 'post-mortem' (post- decision) coverage opinions from legal counsel with whom it 1051502 15 has a close, ongoing financial relationship in order to cover its tracks, and using its legal counsel to litigate its insured into submission." (Alan Mortgage's response at p. 11.) Alan Mortgage further argues that the requested documents will support its theory that Nationwide persistently "asserts a clearly inapplicable exclusion (the professional services exclusion), and ... baseless 'advice of counsel' defense despite the fact that its own claims adjuster, Ryan Gadapee, has admitted that Nationwide made the decision not to defend before it received its legal counsel's coverage opinion." Nationwide has not satisfied its burden with regard to discovery request no. 3 to warrant review of the trial court's discovery order pursuant to an extraordinary writ. In Ex parte Ocwen Federal Bank, we held that this Court would review a discovery order only under exceptional circumstances. The materials before us on this petition for the writ of mandamus establish that Nationwide has not met its burden of demonstrating that the requested discovery is "patently irrelevant," as required to come within the only possibly applicable exceptional circumstance of Ex parte Ocwen Federal Bank, and that the production of the discovery is far out of 1051502 16 proportion to the benefit received by Alan Mortgage. Although it appears that the requested discovery may not be relevant and admissible at trial, we cannot conclude that the documents are "patently irrelevant" and, consequently, not discoverable. Such a determination of relevance and admissibility is proper for review on appeal, not by an extraordinary writ. Additionally, Nationwide's argument that the production of the requested documents will be arduous because it would take an employee six months to find the documents is unpersuasive. Nationwide has not demonstrated that the requested discovery is not easily accessible through its counsel of record and, therefore, readily available upon Nationwide's request that counsel produce the documents. Therefore, Nationwide has not established that the burden of producing the documents regarding its relationship with counsel is difficult, is "far out of proportion to any benefit that may obtain to" Alan Mortgage, or warrants the issuance of an extraordinary writ to prevent discovery. With regard to Alan Mortgage's discovery request no. 4 for "[a]ll electronic mail or other electronic communication between [Nationwide] and its counsel of record in this case 1051502 17 regarding the insurance coverage issues and the dispute made the basis of this lawsuit," Nationwide states that it has provided Alan Mortgage with all communications between Nationwide and its counsel that occurred before Nationwide made its decision to deny coverage, including its no-coverage opinion letter. Nationwide maintains that any communications between Nationwide and its counsel that occurred after Nationwide denied coverage are patently irrelevant to the cause of action and are protected from disclosure by the attorney-client privilege and the work-product doctrine –- exceptional circumstance (a) in Ex parte Ocwen Federal Bank, 872 So. 2d at 813, i.e., "a privilege is disregarded." Rule 502(b), Ala. R. Evid., incorporates into the Rules of Evidence the attorney-client privilege, stating, in pertinent part: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client's attorney or a representative of the attorney ...." This Court has stated: "'"Whether a communication is privileged is a question of fact to be determined by the trial court 1051502 18 from the evidence presented...."' Exxon Corp. v. Department of Conservation & Natural Res., 859 So. 2d 1096, 1103 (Ala. 2002)(quoting Ex parte DCH Reg'l Med. Ctr., 683 So. 2d 409, 412 (Ala. 1996)). The burden is on the party asserting the attorney-client privilege to establish the existence of an attorney- client relationship as well as other facts demonstrating the claim of privileged information. Ex parte DCH Reg'l Med. Ctr., 683 So. 2d at 412." Lynch v. Hamrick, 968 So. 2d 11, 14 (Ala. 2007). "The question whether a party has implicitly waived the attorney- client privilege 'turns on whether the actual content of the attorney-client communication has been placed in issue [in such a way] that the information is actually required for the truthful resolution of the issues raised in the controversy.' See Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d [156], 160 [(R.I. 2000)]." Ex parte State Farm Fire & Cas. Co., 794 So. 2d 368, 376 (Ala. 2001). With regard to the discovery of work product, this Court has stated: "Rule 26(b)(1), Ala. R. Civ. P., states the general rule of discovery -- that a party may obtain discovery of all matters, not privileged, that are 'reasonably calculated to lead to the discovery of admissible evidence.' An exception (itself subject to certain exceptions) to the general rule protects from a party's discovery documents prepared by the opposing party or by or for the opposing party's representative in anticipation of litigation. The protection of this exception extends in any event to 1051502 19 'the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Rule 26(b)(3). 'Under Rule 26(b)(3), the party objecting to discovery bears the burden of establishing the elements of the work-product exception.' Ex parte Garrick, 642 So. 2d 951 (Ala. 1994). '"[T]he test should be whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."' Sims v. Knollwood Park Hosp., 511 So. 2d 154, 157 (quoting Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)). 'The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an "in house" report as work product.' Sims, 511 So. 2d at 158 (quoting Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)). 'An evidentiary showing by the objecting party is not required until the parties are "at issue as to whether the document sought was, in fact, prepared in anticipation of litigation."' Ex parte State Farm Automobile Ins. Co., 761 So. 2d 1000, 1002-1003 (Ala. 2000)(quoting Ex parte Garrick, 642 So. 2d at 953). A motion to compel filed by the party requesting discovery puts the parties at issue. Id." Ex parte Cummings, 776 So. 2d 771, 774 (Ala. 2000). "The work product doctrine is distinguished from the attorney-client privilege in that the latter applies only to communications between client and counsel. The work-product doctrine is broader in that it affords protection to all documents and tangible items prepared by or for the attorney of the party from whom discovery is sought 'as long as they were prepared in anticipation of litigation or preparation for trial.' C. Lyons, Alabama Rules of Civil Procedure Annotated, § 26.6 (2d ed. 1986) ...." 1051502 20 Ex parte Great American Surplus Lines Ins. Co., 540 So. 2d 1357, 1360 (Ala. 1989). In this case, Alan Mortgage is entitled to discover the communications and documents created before Nationwide denied coverage on July 2, 2004; communications and documents created after that date are protected by the attorney-client privilege and by the work-product doctrine, because they were conducted or prepared in anticipation of litigation. Nationwide denied coverage on July 2, 2004; Alan Mortgage filed its third-party complaint against Nationwide on July 8, 2004. Therefore, any communications between Nationwide and its counsel or any documents prepared after the date coverage was denied –- July 2, 2004 -- are privileged and not discoverable. Moreover, Nationwide's assertion of the advice-of-counsel defense and its production of privileged documents supporting that defense did not waive the attorney-client privilege as to communications between Nationwide and its counsel occurring after Nationwide denied coverage, because those communications were not placed at issue by the assertion of the defense. See Ex parte Great American Surplus Lines Ins. Co. (holding that an insurer's response that it relied on the advice of counsel 1051502 21 in making its decision to deny coverage was insufficient to evidence an intent to waive the attorney-client privilege). The only discoverable documents were created before or on the date that coverage was denied, and nothing before us indicates that Nationwide has not complied with this portion of the discovery order; therefore, Nationwide has established that the trial court exceeded the scope of its discretion by ordering production of "[a]ll electronic mail or other electronic communications between [Nationwide] and its counsel of record in this case." Nationwide has satisfied its burden for issuance of an extraordinary writ in this regard. Conclusion Nationwide has not established a clear legal right to a protective order regarding the production of documents in response to discovery request no. 3 –- documents concerning the relationship between Nationwide and its counsel. Nationwide, however, has established a clear legal right to a protective order with regard to the production of privileged communications and work-product documents created after it denied coverage -– materials sought by discovery request no. 4. Therefore, we grant the petition for the writ of 1051502 22 mandamus with regard to discovery request no. 4 and direct the trial court to vacate the portion of its order compelling production by Nationwide of privileged communications and documents created on or after July 2, 2004, and to order those communications and documents protected from discovery. MOTION TO DISMISS PETITION DENIED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. See, Lyons, Stuart, Smith, and Parker, JJ., concur. Cobb, C.J., and Woodall, J., concur in the result. Murdock, J., concurs in the result in part and dissents in part. 1051502 Further, the main opinion cites Ex parte Great American 4 Surplus Lines Insurance Co., 540 So. 2d 1357 (Ala. 1989), for the proposition that "an insurer's response that it relied on the advice of counsel in making its decision to deny coverage [is] insufficient to evidence an intent to waive the attorney- client privilege." __ So. 2d at __. 23 MURDOCK, Justice (concurring in the result in part and dissenting in part). With respect to discovery request #4, the main opinion quotes Ex parte State Farm & Casualty Co., 794 So. 2d 368, 376 (Ala. 2001), for the following principle: "'The question whether a party has implicitly waived the attorney-client privilege "turns on whether the actual content of the attorney-client communication has been placed in issue [in such a way] that the information is actually required for the truthful resolution of the issues raised in the controversy." See Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d [156], 160 [(R.I. 2000)].'" __ So. 2d at __. In the present case, as the main opinion also notes, Nationwide's asserted affirmative defense of "advice of counsel" has been stricken and therefore is no longer in issue. I therefore am unwilling to agree with the 4 statement in the main opinion that "[i]n this case, Alan Mortgage is entitled to discover the communications and documents created before Nationwide denied coverage ...." __ So. 2d at __. 1051502 24 In addition, I am unwilling to join in the quoted statement because, in this case, those documents that fall within the discovery request and that were created before the denial of coverage by Nationwide already have been produced. The result reached by the main opinion is to grant Nationwide's request for a writ of mandamus directing the trial court to vacate the portion of its order compelling production by Nationwide of privileged communications and documents created on or after the date of the denial of coverage, and to order those communications and documents protected from discovery. I concur in that result. I do not find the view expressed in the main opinion as to the discoverability of communications and documents created before the denial of coverage to be necessary to reach that result. Respectfully, however, I am compelled to dissent as to the main opinion's disposition of the petition as it relates to discovery request #3. Discovery request #3 seeks "[a]ll documentation or electronic information regarding the relationship between [Nationwide] and the law firm of Clement, Hare and Duck, P.C.[sic], including but not limited to, all contracts, agreements, lists of case assignments and requests 1051502 25 for coverage opinions, and information regarding the amounts paid in compensation to said law firm" throughout a period of five years beginning with the year 2000 and ending with the calendar year in which the events at issue in this particular lawsuit occurred. __ So. 2d at __. As noted, the defense of "advice of counsel" is not in issue in this case. In my view, discovery request #3 squarely falls within both exception (a) and exception (b) identified in Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).	March 7, 2008
bfd0f3ef-b83a-4ddc-b891-8fe5cde734b6	R.W. Cole et al. v. Bob Riley, Governor of the State of Alabama, et al. (Appeal from Montgomery Circuit Court: CV-05-1244). Application Overruled. No Opinion.	N/A	1050662	Alabama	Alabama Supreme Court	Rel 03/07/2008 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, 2007-2008 _________________________ 1050662 _________________________ R.W. Cole et al. v. Bob Riley, Governor of the State of Alabama, et al. Appeal from Montgomery Circuit Court (CV-05-1244) On Application for Rehearing COBB, Chief Justice. APPLICATION OVERRULED. See, Lyons, Woodall, and Smith, JJ., concur. Stuart, Bolin, Parker, and Murdock, JJ., dissent. 1050662 2 PARKER, Justice (dissenting). Language is not merely mechanical names for objects and actions. Language is a way of thinking, feeling, and expressing. When one translates a passage from one language to another, it is often difficult and sometimes impossible to capture the full force or meaning of the original passage. People may become fluent in a second language, but they are moved in a special way when they hear a song or passage of literature in the language of their childhood. The United States Supreme Court recognized the importance of language in Meyer v. Nebraska, 262 U.S. 390 (1923). In 1919, the Nebraska Legislature enacted a statute that forbade teaching children in any language except English in any private, denominational, parochial, or public school, until a child had completed the eighth grade. The Nebraska Supreme Court upheld the law as constitutional. Meyer v. State, 107 Neb. 657, 187 N.W. 100 (1922). The United States Supreme Court reversed the judgment of the Nebraska Supreme Court, but it recognized the important public policy that the new law served. The United States Supreme Court quoted from the opinion of the Nebraska Supreme Court: 1050662 3 "'The salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state. Pohl v. State, 102 Ohio St. 474, 132 N.E. 20 [(1921)]; State v. Bartels, 191 Iowa 1060, 181 N.W. 508 [(1921)].'" The United States Supreme Court reversed the judgment of the Nebraska Supreme Court and held the statute unconstitutional as applied to parents who sent their children to a Lutheran school at which they learned the German language. But the Court recognized the public policy the statute served: "The desire of the Legislature to foster a homogeneous people with American ideals prepared 1050662 4 readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to the plaintiff in error." Meyer, 262 U.S. at 402. The Court also stated: "Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution –- a desirable end cannot be promoted by prohibited means." 262 U.S. at 401. I completely agree with the United States Supreme Court that the Nebraska statute interfered with the right of parents to control the education of their children. But I also agree that it would be "highly advantageous" if our entire population understood the English language as the common tongue. Unlike the Nebraska statute, Amendment No. 509 to the Alabama Constitution (now codified as § 36.01, Ala. Const. 1901 (Off. Recomp.)), as the plaintiffs construe it, conflicts with no constitutional right. It does not prohibit anyone from learning a foreign language or teaching a foreign language to his or her children. It does not prohibit anyone 1050662 5 from speaking a foreign language, in private or in public. As construed by the plaintiffs, it requires only that driver's license examinations be administered solely in English. Nowhere in their pleadings do the defendants allege that the plaintiffs' construction of Amendment No. 509 conflicts with any federal or state constitutional right. John Jay, later to become the first Chief Justice of the United States Supreme Court, wrote in Federalist No. 2: "Providence has been pleased to give this one connected country to one united people –- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence." The Federalist No. 2, at 7 (John Jay) (Bicentennial ed. 1987). I am emphatically not opposed to learning foreign languages. Thanks to a Rotary International Fellowship, I was the first foreign student admitted to the University of Sao Paulo School of Law, in Sao Paulo, Brazil. I did not expect my professors and fellow students to learn English in order to communicate with me; I became fluent in Portuguese so I could 1050662 6 communicate with them. And I was greatly enriched by the experience. America itself has been enriched by those who have come from other countries. However, a common language not only facilitates clear and effective communication; it also helps to foster a common vision for the nation. I therefore stand by my dissenting vote on original submission in this case.	March 7, 2008
967a482f-3e41-466e-97df-39e0ce5711a6	Ex parte St. Vincent's Hospital. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Kyle Wadley and Wendy Wadley v. St. Vincent's Hospital et al.)	N/A	1061653	Alabama	Alabama Supreme Court	REL: 03/21/08 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, 2007-2008 _________________________ 1061653 _________________________ Ex parte St. Vincent's Hospital PETITION FOR WRIT OF MANDAMUS (In re: Kyle Wadley and Wendy Wadley v. St. Vincent's Hospital et al.) (Jefferson Circuit Court, CV-04-1257) On Application for Rehearing LYONS, Justice. This Court's opinion of February 1, 2008, is withdrawn, and the following is substituted therefor. 1061653 2 St. Vincent's Hospital petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying St. Vincent's motion for a protective order seeking relief from an order requiring it to answer certain interrogatories and to produce a variety of records, including the identifying information and the medical and billing records of 19 nonparties -- the parents and guardians of fetuses that were stored in St. Vincent's morgue with Kyle and Wendy Wadley's fetus. We grant the petition in part, deny it in part, and issue the writ. I. Factual Background On December 13, 2000, Kyle Wadley and Wendy Wadley, who was pregnant, visited Dr. Timothy L. Stone for a routine prenatal examination. During this examination, Dr. Stone informed the Wadleys that the fetus Wendy was carrying ("the fetus") had expired at about 15 weeks' gestation. On December 15, 2000, Dr. Stone admitted Wendy to St. Vincent's Hospital for delivery of the deceased fetus. After the delivery, the Wadleys told Dr. Stone (1) that they did not want an autopsy or any pathological testing performed on the fetus and (2) that they wanted the fetus to 1061653 From the materials before us on this petition for the 1 writ of mandamus it is unclear whether the nurse's notes were written in Wendy's medical records or in the medical records related to the fetus. 3 be cremated. A nurse witnessed these conversations and noted the Wadleys' wishes in the medical records. Wendy alleges 1 that before her discharge from St. Vincent's on December 16, 2000, she asked a nurse when the cremation of the fetus would occur. Wendy alleges that the nurse told her that the fetus would be cremated within a few days at the University of Alabama at Birmingham ("UAB") hospital because St. Vincent's did not have a crematorium. St. Vincent's asserts that the Wadleys did not request the ashes of the fetus because, it says, the Wadleys knew that the fetus's ashes would be mixed with the ashes of other fetuses. St. Vincent's policies and procedures require that all fetuses less than 20 weeks' gestation be directed through the hospital's pathology department, which is staffed by Cunningham Pathology, LLC, regardless of whether pathological testing is to occur on the fetuses. The policies and procedures further require that a nurse complete (1) a pathology ticket and (2) a release-to-pathology form that requires the signature of the parents of the fetus. Dr. Stone 1061653 4 testified that he completed a pathology ticket for the fetus because he believed the ticket was needed to identify the fetus for its transport to UAB. The Wadleys state that they never signed a release-to-pathology form for the fetus. On December 19, 2000, Dr. Richard Lozano, a pathologist and an employee of Cunningham Pathology, LLC, performed postmortem testing on the fetus. The fetal remains were then taken from the pathology department to the morgue at St. Vincent's. In January 2001, Cunningham Pathology sent Wendy a bill for $645. The Wadleys telephoned Cunningham Pathology to inquire about the bill because, they say, they believed that Cunningham Pathology had sent the bill mistakenly. The Wadleys testified that, when they heard no more concerning the bill they believed that Cunningham Pathology had corrected what they thought to be a billing error. A collection agency engaged by Cunningham Pathology later demanded payment from the Wadleys. The Wadleys state that in an attempt to ascertain the basis for the pathology charges, they telephoned Cunningham Pathology in March 2003 and were told that the bill was for pathological testing performed on Wendy's placenta per hospital policy. In May 2003, Wendy retrieved her medical 1061653 5 records from St. Vincent's, which included a pathology report describing tests performed on the fetus. II. Procedural History On February 26, 2004, the Wadleys sued St. Vincent's, Cunningham Pathology, Sharp & Stone Obstetric/Gynecology, P.C., Dr. Stone, and Dr. Lozano in the Jefferson Circuit Court. The Wadleys asserted claims of misrepresentation, fraud, suppression, negligence, wantonness, recklessness, the tort of outrage, breach of contract, "tortious interference of a dead body," wrongful handling of a dead body, trespass, and intentional infliction of emotional distress. They sought compensatory, punitive, and all other damages to which they may be entitled, including damages for mental anguish and emotional distress. The Wadleys amended their complaint on four occasions. Relevant to this case, in the third amended complaint, the Wadleys dismissed their claims that St. Vincent's and Dr. Stone had fraudulently misrepresented that no testing would be performed on the fetus. On July 2, 2004, the Wadleys served St. Vincent's with a request for production of documents. Request for production no. 29 sought "copies of any and all pathology or morgue log 1061653 6 books or sign-in records (however designated) for the month of December 2000." St. Vincent's objected to this request on the grounds that it sought irrelevant and immaterial information, which it says was not reasonably calculated to lead to the discovery of admissible evidence, and that it sought the protected health information of nonparties. However, St. Vincent's later produced a morgue report with the names of the patients redacted and a cremation record that indicates that St. Vincent's cremated the fetus with 19 other fetuses. The names of the parents of the 19 other fetuses are redacted from the cremation record. St. Vincent's asserts that the cremation record indicates that it cremated 20 fetuses -- including the fetus -- on June 3, 2002. Yet the Wadleys note that in what appears to be a listing of the birth dates of the 20 fetuses cremated, one date is August 3, 2002. The Wadleys allege that until St. Vincent's informed them on August 31, 2004, that it cremated the fetus on June 3, 2002, they believed that UAB had cremated the fetus within a few days of the delivery on December 15, 2000, as a St. Vincent's nurse had allegedly represented to them. Before the cremation on June 3, 2002, St. Vincent's stored the fetus in 1061653 7 its morgue with other fetuses. The Wadleys allege that St. Vincent's stored the 20 fetuses cremated on June 3, 2002, in one "picnic cooler" in its "freezer." The record indicates that St. Vincent's uses an on-site incinerator to cremate fetal remains because it does not have a crematorium. St. Vincent's states that because the incinerator is used daily for disposing of medical waste, it cannot reasonably shut down and clean the incinerator to cremate one fetus. Thus, St. Vincent's asserts that the cremations of fetuses occur at the hospital only when a sufficient number of fetuses accumulate in the morgue to justify shutting down and cleaning the incinerator to prepare for the cremations. After the Wadleys learned about St. Vincent's handling of the fetus, they amended their complaint to add Count XI, entitled, "Pattern and Practice - fraud and suppression counts," which states: "6. The Plaintiffs hereby adopt and reallege, as if set out in full herein, each and every one of the above paragraphs and their prior Complaints. "7. All of the Defendants' conduct described herein and in all prior Complaints was in line with their pattern and practice of committing the fraud and suppression claimed in this action. Such fraud 1061653 8 and suppression is more specifically set forth and adopted herein by separate fraud and suppression counts in Plaintiffs' Complaints. Each of those fraud and suppression counts in the Complaints hereby adopts and sets forth therein this Pattern and Practice Count. "8. Additionally, St. Vincent's promised to timely have [the fetus] cremated, but did not. Rather, in accordance with its pattern and practice, St. Vincent's held [the fetus] in its morgue freezer for about one-and-one-half-years before allegedly cremating [the fetus]. "9. St. Vincent's had a pattern and practice of not timely cremating babies and holding them in its freezer for unreasonable periods of time as evidenced by St. Vincent's holding at least nineteen (19) other babies in its freezer for up to two (2) years before allegedly cremating them as promised to their parents or custodians. "10. Upon learning of the Defendants' conduct, the Wadleys first suffered and continue to suffer severe emotional distress and mental anguish as a proximate result of the Defendants' conduct as described herein." (Emphasis added.) The Wadleys later served St. Vincent's with several consolidated requests for discovery. In relevant part, the request served on November 17, 2004, and entitled "Plaintiff's Second Consolidated Discovery Requests to St. Vincent's Hospital" states: "1. Please list the name, mailing address, social security number, date of delivery, and date 1061653 The trial court issued a ruling that the Alabama Medical 2 Liability Act did not apply to this case. 9 of expiration of each and every fetus or baby that was to be cremated and was held by St. Vincent's in its freezer(s) for a period of more than seven days from January 1, 1999 through December 31, 2003. "2. Please provide the name, mailing address, and telephone number of each and every parent or guardian of the babies or fetuses discussed in interrogatory 1, above." Another request served on March 20, 2007, and entitled, "Plaintiffs' Consolidated Discovery Requests to St. Vincent's Hospital Post AMLA [Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-541 et seq., Ala. Code 1975,] Ruling," in 2 relevant part, states: "1. Please produce complete and unredacted copies of the medical and billing records of those nineteen babies, and their mothers' records, that were held in St. Vincent's Hospital's freezer with [the fetus] and then cremated with him during the summer of 2002 (the 'Nineteen babies'). "2. Please produce copies of the medical and billing records of the Nineteen Babies, and their mothers' records. For this request, but only if St. Vincent's Hospital refuses to fully respond to Interrogatory 1, above, please redact identifying information (names, mailing addresses, telephone numbers, and social security numbers only) thereby protecting the identities of the Nineteen Babies and their parents or guardians. If you have properly produced complete and unredacted documents in response to Interrogatory 1, above, you may disregard this request. 1061653 10 "3. At any time, were any of the parents or guardians of the Nineteen Babies told that their baby's body would be or was held for a period of time longer than 10 days before being cremated? If so, for each of the Nineteen Babies, please state in detail: "(a) List by name and mailing address and date of communication, the complete substance of the communications with each parent or guardian; and "(b) The full name, mailing address, telephone number, and title of all persons or entities that communicated with any of the parents or guardians of the Nineteen Babies relating to this subject. "4. At any time, were any of the parents or guardians of the Nineteen Babies told that their baby's body would be or was held in St. Vincent's Hospital's morgue's freezer for more than 10 days and up to two years before being cremated? If so, for each of the Nineteen Babies, please state in detail: "(a) List by name, mailing address and date of communication, the complete substance of the communications with each parent or guardian; and "(b) The full name, mailing address, telephone number, and title of all persons or entities that communicated with any of the parents or guardians of the Nineteen Babies relating to this subject. "5. Please produce all correspondence, notes, reports, photographs, investigation records, audio or video recordings, incident reports, and all other items or documents reflecting any communications or agreements with the Nineteen Babies' parents or 1061653 Request for production no. 29 requested "copies of any 3 and all pathology or morgue log books or sign-in records (however designated) for the month of December 2000." 11 guardians related in any way to the testing, cremation, or handling of their babies' bodies, including related billing and collection efforts. "6. Please produce all correspondence, notes, reports, photographs, investigation records, audio or video recordings, incident reports, and all other items or documents reflecting any communications or agreements with the Nineteen Babies' parents or guardians after their mothers were discharged from St. Vincent's Hospital through the present. "7. For each and every one of the Nineteen Babies that St. Vincent's did not advise the babies' parents or guardians that there would be or was a delay in cremation (more than 10 days from death/delivery), please state each and every reason why St. Vincent's Hospital chose not to notify those parents and guardians of that information. "8. For each and every one of the Nineteen Babies that St. Vincent's did not advise the babies' parents or guardians that their baby would be or was held in St. Vincent's Hospital's morgue's freezer for up to two years, please state each and every reason why St. Vincent's Hospital chose not to notify those parents and guardians of that information." (Emphasis in original.) St. Vincent's objected to the interrogatories and requests for production. On June 29, 2007, the trial court compelled responses to (1) the Wadleys' request for production no. 29 served on July 2, 2004, (2) interrogatories 1 and 2 of 3 1061653 The trial court's order describes these interrogatories 4 as having been served on December 22, 2004; the correct date is November 17, 2004, and the responses, claiming that the information is privileged and immaterial and irrelevant to this cause, were served on December 22, 2004. See note 4, ante. 5 12 the Wadleys' consolidated discovery request served on November 17, 2004, and (3) requests 1 through 8 of the Wadleys' 4 consolidated discovery request served on March 20, 2007. The trial court's order states: "This Court is very concerned about the privacy interests of the parents of those 19 children, and has struggled mightily on this issue. Given that the [Alabama Medical Liability Act] does not apply here, given that the plaintiffs have alleged that there existed a pattern or practice of fraudulent conduct, given that the evidence at issue appears pertinent to that claim, and given our liberal spirit of discovery, this Court must nevertheless conclude that the plaintiffs are entitled to the evidence sought." On July 18, 2007, St. Vincent's moved the trial court "to enter an order protecting from discovery the protected health information of non-parties requested by plaintiffs' request for production #29 (dated July 2, 2004), interrogatories #1-2 (dated December 22, 2004), and requests #1-8 in plaintiffs' [5] consolidated discovery requests (dated March 22, 2007)." On 1061653 13 July 30, 2007, the trial court denied the motion. On August 23, 2007, St. Vincent's filed this petition. III. Standard of Review "Mandamus is an extraordinary remedy and will be granted 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 Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644-45 (Ala. 2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So. 2d 1135, 1138 (Ala. 1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case –- that is, one in which an appeal 1061653 14 is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992)." Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136-37 (Ala. 2003). This case does not fall squarely within any one of the four examples of cases discussed by this Court in Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), in which review by appeal would be inadequate. As this Court stated in Ex parte Crawford Broadcasting Co., 904 So. 2d 221, 224 (Ala. 2004), however, the list of examples in Ocwen Federal Bank is not exhaustive. This case presents a situation in which a discovery order compels the production of information that implicates privacy considerations analogous to an evidentiary privilege. Therefore, review by appeal after final judgment would be ineffective in this case, and mandamus review is appropriate. Pursuant to Rule 21(a)(1)(E), Ala. R. App. P., St. Vincent's, as the petitioner, has the burden of providing this Court with "[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." St. Vincent's failed to include in the materials submitted with its petition for the 1061653 It is unclear from the materials before us on this 6 petition for the writ of mandamus whether any of the fetuses related to this request lived long enough to be issued a Social Security number. 15 writ of mandamus a copy of its answer to the Wadleys' complaint, as last amended. We review the trial court's order on the assumption that St. Vincent's has denied all material allegations of the Wadleys' complaint, as last amended, and has demanded strict proof thereof. IV. Analysis We must determine whether the trial court exceeded its discretion by denying St. Vincent's motion for a protective order regarding the records and the responses to interrogatories the Wadleys sought, which include (1) the logbooks for St. Vincent's morgue and department of pathology without redaction of identifying information, (2) the names, addresses, Social Security numbers, dates of delivery, and 6 dates of death of all the fetuses that were to be cremated and that were stored in St. Vincent's morgue for more than seven days from January 1, 1999, through December 31, 2003, (3) the names, addresses, and telephone numbers of the parents and guardians of the fetuses that were to be cremated and that were stored in St. Vincent's morgue for more than seven days 1061653 16 from January 1, 1999, through December 31, 2003, (4) the medical and billing records of the 19 other fetuses cremated on June 3, 2002, in compliance with the March 20, 2007, request, and (5) the medical records of the mothers of the 19 other fetuses in compliance with the March 20, 2007, request. The Alabama Rules of Civil Procedure allow broad and liberal discovery. Ex parte O'Neal, 713 So. 2d 956, 959 (Ala. 1998). Rule 26(b)(1), Ala. R. Civ. P., allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action" and, if the information sought may not be admissible at trial, which is "reasonably calculated to lead to the discovery of admissible evidence." When fraud is alleged, Alabama law is well settled that "the plaintiff is accorded a considerably wider latitude in the discovery process so that he will be able to meet the heavy burden of proof placed on him." Ex parte Clarke, 582 So. 2d 1064, 1068 (Ala. 1991); see also Pugh v. Southern Life & Health Ins. Co., 544 So. 2d 143, 145 (Ala. 1988) ("[W]here fraud is alleged, we allow a wider latitude in the discovery of evidence."). Specific to the issue in this case, this Court has recognized that, "[i]n 1061653 St. Vincent's also contends that production of the 7 information is prohibited because § 6-5-551, Ala. Code 1975, prohibits parties from conducting discovery regarding any other act or omission. However, § 6-5-551 is a part of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-541 17 fraud cases, where intent, knowledge and scienter constitute essential elements of the offense, evidence of similar frauds and misrepresentations [is] commonly admissible." Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 671 (Ala. 1981). A. Whether the Health Information and Records of the Nonparties Are Privileged St. Vincent's argues that it has a clear legal right to the writ of mandamus because, it argues, the interrogatories and requests for production of records seek confidential and personal health information of nonparties, which, it argues, is privileged and should be protected. St. Vincent's relies on this Court's recognition in Ex parte Mack, 461 So. 2d 799, 801 (Ala. 1984), that "patients enjoy a right to privacy and confidentiality with regard to disclosures made within the doctor-patient relationship." See also Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1974). St. Vincent's also asserts that requiring responses to the interrogatories and requests for production constitutes an intrusion into a nonparty's constitutionally protected "zone of privacy." 7 1061653 et seq., Ala. Code 1975 ("the AMLA"), and the trial court has ruled that the AMLA does not apply to this case. St. Vincent's does not challenge the trial court's determination as to the AMLA in this proceeding. An earlier attempt to obtain interlocutory review by permissive appeal of the trial court's order holding that the AMLA is not applicable in this case was denied by this Court. See Ex parte St. Vincent's Hosp. (No. 1051597, September 22, 2006). 18 In Mack, a personal-injury action arising from the defendants' allegedly negligent performance of an abortion at a clinic, the plaintiff petitioned this Court for a writ of mandamus directing the trial court to compel answers to interrogatories requesting the name and address of each person who had received an abortion at the clinic on the same date as the plaintiff or who was present during the pre-abortion counseling the plaintiff participated in at the clinic. 461 So. 2d at 800. This Court recognized a patient's right to privacy as to medical information and denied the petition. 461 So. 2d at 801. It concluded that the trial court did not exceed its discretion by determining that rights to privacy and confidentiality of the clinic's patients were "paramount to any gain that might be achieved by the disclosure of the information sought by the petitioner." 461 So. 2d at 801. In light of Mack, St. Vincent's argues that it has a duty to keep its patients' personal-health information confidential 1061653 19 and that it would be subject to potential liability based on the breach of this duty if it produces the information sought by the Wadleys. St. Vincent's also notes that the Wadleys seek entire medical records, and it argues that "no good can be advanced by wrongfully breaching [the nonparties'] right to privacy" in this case. Petition at p. 18. Therefore, St. Vincent's contends, this Court should protect nonparty health information as it did in Mack. To distinguish Mack from the present case, the Wadleys note first that Mack was a negligence case and that it did not involve fraud, suppression, pattern and practice, or punitive damages. The Wadleys then argue that this Court's decision in Mack in fact supports the trial court's order because in Mack this Court recognized that a doctor's duty not to reveal confidences arising from the relationship between a doctor and patient is subject to exception where the interests of the public intervene. 461 So. 2d at 801. In Mack, this Court recognized that a doctor's duty not to make extrajudicial disclosures of information acquired in the course of the doctor-patient relationship "is not absolute, but subject to certain exceptions where the supervening interests of society 1061653 20 or the private interests of the patient intervene." 461 So. 2d at 801 (citing Horne, 291 Ala. 701, 287 So. 2d 824). The Wadleys contend that society has a profound interest in ensuring that hospitals and doctors act both morally and professionally. The Wadleys specifically argue that "the public has an interest in being protected from the wrongful treatment" of fetuses and in being informed of any such wrongful treatment. Accordingly, the Wadleys assert that the discovery they are requesting falls within the societal- interest exception to the general rule that confidential health information of nonparties is protected from discovery. To determine whether governmental or societal interests justify an intrusion into the right to medical privacy, this Court has weighed the factors established by the United States Court of Appeals for the Third Circuit in United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir. 1980). Middlebrooks v. State Bd. of Health, 710 So. 2d 891, 892 (Ala. 1998). These factors are: "'[T]he type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for 1061653 "It is not ground for objection that the information 8 sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 21 access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.'" 710 So. 2d at 892 (quoting Westinghouse Elec. Corp., 638 F.2d at 578). B. Information Independent of the Disposition of the Fetuses We pretermit consideration of privacy factors as to the requests for production of records and interrogatories to the extent they seek information independent of the disposition of the fetuses. The information in the records of the 19 other fetuses and of their parents and guardians concerning matters such as problems with the pregnancy, the mother's health, and the circumstances resulting in the death of the fetus is neither relevant to the Wadleys' allegations nor reasonably calculated to lead to the discovery of admissible evidence. See Rule 26(b)(1), Ala. R. Civ. P. Such evidence has no 8 bearing on the allegations of the Wadleys' complaint dealing only with disposition of the remains of the fetus. The trial court therefore exceeded its discretion in denying St. 1061653 Order of June 29, 2007. 9 22 Vincent's motion for a protective order as to information independent of the disposition of the fetuses. C. Information Regarding the Disposition of the 19 Other Fetuses The trial court, as previously noted, acknowledged that it was "very concerned about the privacy interests of the parents of those 19 children, and has struggled mightily on this issue." Such is also the case with this Court. In 9 balancing the Westinghouse factors, we recognize that the logbooks of the morgue and the department of pathology and the medical and billing records of the 19 other fetuses and their parents and guardians concerning the disposition of the 19 other fetuses after delivery contain extremely sensitive medical information. We also recognize that because of the extremely sensitive nature of the requested information, the "potential for harm in any subsequent nonconsensual disclosure" of the information is great. Westinghouse Elec. Corp., 638 F.2d at 578. However, we must balance this factor, "the type of record requested," and "the information [the record] does or might contain" with the other Westinghouse 1061653 23 factors, while also considering the general discoverability of the information under Rule 26, Ala. R. Civ. P. Id. We first note that the unique and egregious nature of the assertions of fraud in this case create a "recognizable public interest militating toward access" because the actions that form the basis of the assertions are so offensive to the morals and dignity of society. Westinghouse Elec. Corp., 638 F.2d at 578. That there is such a public interest is further bolstered by the fact that the rights of privacy the hospital seeks to protect on behalf of the patients, namely, to keep from the patients knowledge of how their fetuses were treated, involve no risk of a chilling effect on a patient's willingness to communicate his or her wishes for the disposition of a fetus to a physician. Thus, the Westinghouse factor of whether an "injury from disclosure to the relationship in which the record was generated" will occur does not weigh in favor of protecting the requested information. Id. We must also consider the Wadleys' "degree of need for access" to information regarding the disposition of the 19 other fetuses after delivery in light of the Wadleys' fraud 1061653 The trial court noted in its June 29, 2007, order that 10 St. Vincent's acknowledged the potential relevance of this evidence in the context of punitive damages on the issue of reprehensibility. 24 and fraudulent-suppression allegations. Westinghouse Elec. 10 Corp., 638 F.2d at 578. As noted above, the Wadleys' fraud and suppression counts allege that St. Vincent's had a pattern and practice of not timely cremating such fetuses and holding them in its morgue for unreasonable periods, contrary to alleged representations as to the timing of such activity. The Wadleys contend that the discovery requests are proper because, they say, the requests are carefully tailored to their fraud and suppression claims. The Wadleys assert that the communications and agreements between St. Vincent's and the parents and guardians of the 19 other fetuses relating to testing and cremation issues is critically necessary to their case and likely to lead to the discovery of admissible evidence. The Wadleys specifically contend that whether St. Vincent's told the parents and guardians of the 19 other fetuses that the fetuses would be stored in the morgue for months and possibly years before they were cremated is relevant to their fraud and fraudulent-suppression claims. 1061653 25 St. Vincent's contends that the responses to the requests for production and the answers to the interrogatories "cannot possibly support" the Wadleys' fraud claims because, it says, there is no evidence indicating (1) that anyone with authority to bind St. Vincent's made any representations to the Wadleys or (2) that the Wadleys relied on any representations made by a party to the case in deciding to request cremation of the fetus. Reply brief at p. 11. St. Vincent's further contends that the Wadleys failed to allege that St. Vincent's did anything to convince or to persuade them to leave the fetus's remains for cremation. Thus, St. Vincent's argues that the information at issue is patently irrelevant to this case. However, at this stage of the proceeding, where we have before us only the allegations of the complaint, St. Vincent's has no clear legal right to a determination that the trial court exceeded its discretion in allowing discovery, thereby cutting off a plaintiff's right to discovery based on a defendant's contentions as to the absence of evidence. We also note that St. Vincent's argues that "[t]he non-party medical records which St. Vincent's has been ordered to produce likely contain little or no detailed information 1061653 26 regarding any conversations between the healthcare providers and the non-parties concerning the disposition of their fetal remains." Reply brief at p. 4 (emphasis added). However, St. Vincent's assertion that the compelled discovery is unlikely to provide relevant information is not dispositive of the Wadleys' right to discover the information. Discovery matters are within a trial court's sound discretion, and this Court will grant a petition for a writ of mandamus curtailing a discovery order only if the trial court clearly exceeded its discretion in issuing the order. Ex parte Ocwen Fed. Bank, 872 So. 2d at 813. We conclude that the information contained in the logbooks of the morgue and pathology department and records of the 19 other fetuses and their parents and guardians regarding the disposition of the fetuses after delivery falls within an exception to a patient's right to confidentiality because of the supervening societal interest, recognized in Mack, in knowledge of a hospital's practices regarding the disposition of fetuses after delivery and the availability of avenues of discovery in a fraud case based on such activities. In light of the discretion granted to a trial court regarding discovery 1061653 27 matters and the wide latitude allowed for discovery when fraud is alleged, we further conclude that the trial court did not exceed its discretion in denying St. Vincent's motion for a protective order regarding the logbooks and records, to the extent that those records relate to the disposition of the 19 other fetuses, because those records may assist the Wadleys in proving their fraud and fraudulent-suppression claims. Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala. 1981) ("Evidence of similar misrepresentations made to others by the defendant is admissible in a fraud action. ... Therefore, the information sought ... could very easily lead to admissible evidence."). We thus conclude that the trial court did not exceed its discretion in denying St. Vincent's motion for a protective order that would have precluded production of records and responses to interrogatories, which include (1) the logbooks for St. Vincent's morgue and department of pathology without redaction of identifying information, (2) the names, addresses, Social Security numbers, dates of delivery, and dates of death of all the fetuses that were to be cremated and were stored in St. Vincent's morgue for more than seven days 1061653 28 from January 1, 1999, through December 31, 2003, (3) the names, addresses, and telephone numbers of the parents and guardians of the fetuses that were to be cremated and that were stored in St. Vincent's morgue for more than seven days from January 1, 1999, through December 31, 2003, (4) the medical and billing records of the 19 other fetuses to the extent the records concern the disposition of the fetuses, and (5) the medical records of the mothers of the 19 other fetuses to the extent the records concern the disposition of the fetuses. We invite the trial court to consider using a neutral intermediary, such as the trial court itself, a court official, or other appropriate person, to notify, to the extent practicable, the persons named in the records of the pendency of this action, of the order of the trial court compelling disclosure, and of the action of this Court, preliminary to producing these records for the Wadleys. The Court makes this suggestion solely for the humane purpose of giving the persons named in the records an opportunity to be apprised of the extremely sensitive facts underlying the litigation and the fact of the impending production of the 1061653 29 records before those persons are contacted by the Wadleys in pursuit of further discovery. V. Conclusion We grant the petition in part and deny it in part. We direct the trial court to vacate its order of July 30, 2007, insofar as it denied a protective order providing relief from responding to requests for production and interrogatories related to information concerning the mothers' pregnancies and the death of the fetuses to the extent that this information does not deal with disposition of the remains of the fetuses. In all other respects, we deny the petition. APPLICATION OVERRULED; OPINION OF FEBRUARY 1, 2008, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., concurs in the result.	March 21, 2008
4ba9700b-3d6a-42f4-b058-9aeda9252515	Ex parte Aurora Mercedes Soto. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Aurora Mercedes Soto v. State of Alabama) (Franklin Circuit Court: CC05-299; Criminal Appeals : CR-06-0460). Writ Denied. No Opinion.	N/A	1070118	Alabama	Alabama Supreme Court	REL:04/11/08 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, 2007-2008 _________________________ 1070118 _________________________ Ex parte Aurora Mercedes Soto PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Aurora Mercedes Soto v. State of Alabama) (Franklin Circuit Court, CC-05-299; Court of Criminal Appeals, CR-06-0460) BOLIN, Justice. WRIT DENIED. NO OPINION. 1070118 2 See, Lyons, Woodall, Stuart, Smith, and Parker, JJ., concur. Cobb, C.J., and Murdock, J., concur specially. 1070118 3 COBB, Chief Justice (concurring specially). I agree with the majority that Aurora Mercedes Soto's petition for the writ of certiorari is due to be denied. Soto's bare allegation that she "would ... argue that the record in [her] case does not support a guilty finding on the charge of making a terrorist threat" fails to state or support any of the grounds for issuing the writ set forth in Rule 39(a)(1), Ala. R. App. P. Moreover, Soto did not address in her petition the finding by the Court of Criminal Appeals, in its unpublished memorandum, that she failed to preserve her constitutional challenge to Ala. Code 1975, § 13A-10-15. See Rice v. English, 835 So. 2d 157, 166 (Ala. 2002) (noting that, in the state courts in Alabama, "[t]he 'plain-error' rule, which dispenses with the necessity for error preservation, is confined to death-penalty cases"); D.W.L. v. State, 821 So. 2d 246, 248 (Ala. Crim. App. 2001) ("'Even constitutional issues must first be correctly raised in the trial court before they will be considered on appeal.'" (quoting Hansen v. State, 598 So.2d 1, 2 (Ala. Crim. App. 1991))). Soto's generic, nonspecific, and conclusory comment in the trial court was not sufficient to preserve her constitutional arguments for 1070118 4 appeal. Cole v. State, 721 So. 2d 255, 260 (Ala. Crim. App. 1998) (holding that a motion to dismiss containing "general and nonspecific grounds" and "a general conclusory statement" challenging the constitutionality of a criminal statute was insufficient to support appellate review because "'[t]he trial court should not be made to cast about for reasons why a statute might be unconstitutional'" (quoting Perry v. State, 568 So. 2d 339, 340 (Ala. Crim. App. 1990))). However, I write specially to note fundamental concerns with the application and interpretation of Ala. Code 1975, § 13A-10-15(a)(1)b raised by Soto's petition. Underlying Soto's petition is a challenge to the Court of Criminal Appeals' holding in its unpublished memorandum that the evidence supports a verdict that Soto made a terrorist threat because a rational fact-finder could find that Soto's actions constituted threats and that those threats disrupted school activities. Although this holding expresses the currently prevailing interpretation of Ala. Code 1975, § 13A-10- 15(a)(1)b in our courts, I fundamentally disagree with this holding for two reasons. First, the manner in which the Court of Criminal Appeals' unpublished memorandum interprets the 1070118 5 statute does not give effect to legislative intent as expressed by the plain wording of the statute. Second, the analysis used to reach this holding fails to apply an objective standard so as to limit the statute to punishing only that speech that may be appropriately regulated under the constitution. I. The prevailing interpretation of Ala. Code 1975, § 13A- 10-15(a)(1)b does not comport with the legislature's intent as expressed by the plain wording of the statute. "The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself." Volkswagen of America, Inc. v. Dillard, 579 So. 2d 1301, 1305 (Ala. 1991). "Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect." Ex parte Holladay, 466 So. 2d 956, 960 (Ala. 1985) (citing Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So. 2d 534 (Ala. 1983)). 1070118 6 However, if the statute is ambiguous or uncertain, a need for judicial construction arises. "[L]egislative intent ... may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained." Holladay, 466 So. 2d at 960 (citing Shelton v. Wright, 439 So. 2d 55 (Ala. 1983)). Further, in determining how to properly construe a statute to effect its legislative intent, "the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another." Volkswagen, 579 So. 2d at 1305. Additional rules of construction apply when the statute being construed is a criminal statute. Alabama Code 1975, § 13A-1-6, provides that "[a]ll provisions of [the Alabama Criminal Code] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in Section 13A-1-3," one of which is "[t]o give fair warning of the nature of the conduct proscribed." § 13A-1-3(2). As the Court of Criminal Appeals has accurately stated: "'"'[A]mbiguous criminal statutes must be narrowly interpreted, in favor of the accused.' United States 1070118 7 v. Herring, 933 F.2d 932, 937 (11th Cir. 1991)[, vacated on rehearing, 977 F.2d 1435 (11th Cir. 1992)]. '[I]t is well established that criminal statutes should not be "extended by construction."' Ex parte Evers, 434 So. 2d 813, 817 (Ala. 1983). '"[C]riminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed."' United States v. Bridges, 493 F.2d 918, 922 (5th Cir. 1974)." Carroll [v. State], supra, 599 So. 2d [1253] at 1264 [(Ala. Crim. App. 1992)].'" Grace v. State, 899 So. 2d 302, 308 (Ala. Crim. App. 2004) (quoting State v. Brooks, 701 So. 2d 56, 57-58 (Ala. Crim. App. 1996)). I believe § 13A-10-15(a)(1)b must be construed in accordance with the above authorities. I have grave concerns regarding whether the Court of Criminal Appeals' interpretation of § 13A-10-15(a)(1)b reflects the legislative intent in enacting the statute, in light of the above authorities. The statute reads as follows: "(a) A person commits the crime of making a terrorist threat when he or she threatens by any means to commit any crime of violence or to damage any property by doing any of the following: "(1) Intentionally or recklessly: ".... 1070118 Based on the facts set forth in the petition and in the 1 Court of Criminal Appeals' unpublished memorandum, it does not appear that any of the evidence adduced at trial supports a finding that Soto made any threat with the requisite intent to retaliate against one of the persons described in subsection (a)(2) of the statute. Subsection (a)(2) makes no grammatical sense unless it is read in conjunction with subsection (a)(1). However, Soto did not raise this point as grounds for either her appeal or her petition, and there is no indication that she raised it in the trial court, either. Therefore, I do not address the implications of subsection (a)(2) in this special concurrence. 8 "b. Causing the disruption of school activities. ".... "(2) With the intent to retaliate against any person who:[1] "a. Attends a judicial or administrative proceeding as a witness or party or produces records, documents, or other objects in a judicial proceeding. "b. Provides to a law enforcement officer, adult or juvenile probation officer, prosecuting attorney, or judge any information relating to the commission or possible commission of an offense under the laws of this state, of the United States, or a violation of conditions of bail, pretrial release, probation, or parole." The Court of Criminal Appeals, however, has approached the statute as though it reads: 1070118 9 "A person commits the crime of making a terrorist threat when he or she makes a threat by any means to commit any crime of violence or to damage any property, which intentionally or recklessly causes the disruption of school activities." See, e.g., P.J.B. v. State, [Ms. CR-05-1026, Feb. 1, 2008] __ So. 2d __, __ (Ala. Crim. App. 2008) (holding, in a case involving a student who, while riding a school bus, threatened to damage private property that had "no connection to the school," that a person commits the crime of making a terrorist threat when the making of a threat intentionally or recklessly significantly disrupts school activities). Soto's indictment takes a similar approach; that indictment reads, in pertinent part, as follows: "Aurora M. Soto ... threatened to commit a crime of violence, to-wit: threatened that if anything ever happened to her daughter at school she would go crazy and blow everybody up and/or that she was going to Mexico to hire a Bruha (witch) to put a spell on Mrs. Pounders (a teacher) and if that didn't work she would take care of Mrs. Pounders herself and or other threatening acts, which intentionally or recklessly caused the disruption of school activities in violation of Section 13A-10-15, of the Code of Alabama, against the peace and dignity of the State of Alabama." (Emphasis added.) Section 13A-10-15(a)(1)b, as actually worded, criminalizes only threats to commit a crime of violence by 1070118 10 intentionally or recklessly disrupting school activities or threats to damage property by intentionally or recklessly disrupting school activities. Thus, under the statute, a threat to blow up the school on the first day of fall semester would be a "terrorist threat," even if the threat was made during summer vacation and the danger of the student's carrying out the threat was averted by authorities before school activities were actually disrupted. Thus construed, § 13A-10-15(a)(1)b puts persons on notice that a threat to commit a crime of violence or to destroy property by disrupting school activities is a terrorist threat that is punishable by law. A reasonable person would expect that such a threat would be taken seriously by school officials and that it would result in significant disruption of the education process, the activation of law enforcement and emergency-response teams, and the disruption of the lives, peace, and security of students, parents, and educators. Further, in the light of recent tragedies in our nation in which students have made and then carried out such threats, a reasonable person should expect that making such a threat would be punishable by law. 1070118 11 I voice my concerns about the prevailing interpretation and application of § 13A-10-15(a)(1)b because incorrectly applying the statute vastly broadens the scope of the statute beyond what the legislature could have reasonably intended by the clear language of the statute and also makes the statute absurd and unpredictable in its application. The prevailing view, and the view reflected in decisions of the Court of Criminal Appeals, is that § 13A-10-15(a)(1)b criminalizes any threat to commit a crime of violence or to destroy property if the threat intentionally or recklessly causes a disruption of school activities. Thus, for example, a student's statement of his intent to ride around on Halloween night smashing pumpkins is a "terrorist threat" under this interpretation if the making of the threat recklessly causes a teacher to miss an important class to address the threat, or if the same student significantly disrupts a school assembly by taking over the podium to voice the smashing-pumpkin threat, but it is not a terrorist threat if school officials never find out about or react to the threat. The current interpretation by the courts, however, is not what the plain language of the statute says. Further, under 1070118 12 this interpretation, the statute does not sufficiently put a person on notice that what he or she is about to say constitutes a crime, because the commission of the offense of making a terrorist threat in a school environment depends on the actual effect of the statement, such as whether and to what extent school officials react (or overreact) to a statement that has nothing to do with threatening to intentionally or recklessly disrupt school activities. II. The prevailing interpretation of Ala. Code 1975, § 13A- 10-15(a)(1)b, fails to satisfy due-process requirements and to apply the statute to prohibit only constitutionally unprotected speech. Statutes punishing spoken words are subject to even more rigorous rules of construction than are other criminal statutes. Such statutes are valid if written or construed so as not to unconstitutionally infringe on the right to free speech. Even if the clear wording of an otherwise valid statute punishes constitutionally protected speech, we are bound to interpret that statute narrowly and to apply it in a manner that does not infringe on First Amendment rights. As this Court stated in Frolik v. State, 392 So. 2d 846, 847 (Ala. 1981): 1070118 13 "State statutes designed to punish spoken words can be upheld if, as authoritatively construed by the state courts, they are narrowly limited in their application to speech that is not protected under the First and Fourteenth Amendments. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). See generally, Annot., 39 L. Ed. 2d 925 (1975)." Much of the speech the legislature intended § 13A-10- 15(a)(1)b to prohibit is not protected by the First Amendment and is appropriately punishable. "[T]he First Amendment ... permits a State to ban a 'true threat.' Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam) (internal quotation marks omitted); accord, R.A.V. v. City of St. Paul, [505 U.S. 377] at 388[(1992)] ('[T]hreats of violence are outside the First Amendment'); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774 (1994); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 373 (1997). "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 ('political hyberbole' is not a true threat); R.A.V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.' Ibid." Virginia v. Black, 538 U.S. 343, 359-60 (2003) (emphasis added). 1070118 14 The United States Court of Appeals for the Eleventh Circuit has defined a "threat" as follows: "A communication is a threat when 'in its context [it] would "have a reasonable tendency to create apprehension that its originator will act according to its tenor."' In other words, the inquiry is whether there was 'sufficient evidence to prove beyond a reasonable doubt that the defendant intentionally made the statement under such circumstances that a reasonable person would construe them as a serious expression of an intention to inflict bodily harm....' Thus, the offending remarks must be measured by an objective standard. ... "The fact-finder must look at the context in which the communication was made to determine if the communication would cause a reasonable person to construe it as a serious intention to inflict bodily harm." United States v. Alaboud, 347 F.3d 1293, 1296-97 (11th Cir. 2003) (citations and footnote omitted); cf. Mitchell v. State, 887 So. 2d 1017, 1020 (Ala. Crim. App. 2004) (Cobb, J., dissenting) (noting that Ala. Code 1975, § 13A-11-8(a)(2), "defines a threat as a communication, verbal or nonverbal, 'made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety'"). Under an objective standard, the reactions of others to a statement are relevant to the jury's determination of whether a reasonable person would have 1070118 15 construed the statement as a serious intention to inflict bodily harm. Alaboud, 347 F.3d at 1298. An objective standard ensures against punishing citizens for protected utterances that, taken in context, cannot reasonably be interpreted as a "true threat." Cf. Watts v. United States, 394 U.S. 705 (1969). Further, because an objective standard does not make the crime dependent on whether another person reacts unreasonably to a statement that, in context, was not intended to be a threat, such a standard comports with due process and with the principles of construction set forth in Ala. Code 1975, § 13A-1-6 and -3(2), supra, by ensuring that persons can reasonably predict whether the speech they are about to utter constitutes a crime. As currently interpreted and applied, § 13A-10-15(a)(1)b criminalizes any threat to commit a crime of violence or to destroy property if the threat causes a "disruption" of school activities. This interpretation makes the commission of the crime entirely contingent on the subjective reaction (or overreaction) of school administrators, not on whether a reasonable person would construe a statement, taken in the context in which it was spoken, as a serious expression of an 1070118 16 intention to inflict bodily harm or to destroy property. When subjectively construed, the statute includes within its compass protected speech and does not comport with due process because it criminalizes statements the speaker could not reasonably have predicted would have disrupted school activities. I recognize that there are instances when speech that does not constitute a "true threat" may properly be punished under § 13A-10-15(a)(1)b. For example, under some circumstances, speech proscribed by the plain language of the statute amounts to words that, even if intended as a prank by an objective standard, incite immediate panic in the same way as does the act of falsely shouting "fire" in a crowded theater. See Schenck v. United States, 249 U.S. at 52 ("[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." (citations omitted)). I believe that applying § 13A-10-15(a)(1)b to punish such speech does not violate due process or the First Amendment. 1070118 17 I am additionally concerned about the constitutionality of the statute because of several ambiguities inherent in the language chosen by those who drafted it. Those concerns, however, must wait for another day. III. Conclusion. Although I agree that Soto's petition is due to be denied on procedural grounds, were it otherwise I could not conclude that the prevailing interpretation of Ala. Code 1975, § 13A- 10-15(a)(1)b, would constitute a ground for denying the writ in this case. 1070118 18 MURDOCK, Justice (concurring specially). Structurally, syntactically, and grammatically, § 13A-10-15(a), Ala. Code 1975, is nonsensical. Because the petition before us falls short of providing this Court with grounds upon which to issue a writ of certiorari, however, I concur in denying the writ.	April 11, 2008
aa5a9a8f-08a3-4aae-8bae-0ea2c1f99419	Ex parte Alabama State Bar. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Alabama State Bar v. Stuart Craig Dubose) (ASB No. 05-137	N/A	1061743	Alabama	Alabama Supreme Court	REL:03/14/08 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, 2007-2008 _________________________ 1061743 _________________________ Ex parte Alabama State Bar PETITION FOR WRIT OF MANDAMUS (In re: Alabama State Bar v. Stuart Craig Dubose) Appeal from the Board of Disciplinary Appeals of the Alabama State Bar (No. 07-02) BOLIN, Justice. 1061743 2 The Alabama State Bar ("the State Bar") petitions this Court for a writ of mandamus directing the Board of Disciplinary Appeals of the Alabama State Bar ("the Board of Appeals") to enter an order reversing its decision finding that the Disciplinary Board of the Alabama State Bar ("the Disciplinary Board") was divested of its jurisdiction to discipline Stuart Craig Dubose after Dubose assumed the bench as an incumbent circuit court judge for the First Judicial Circuit. In April 2003 Cheryl Weaver asked Dubose, then a practicing attorney, to prepare and draft a will for Joseph J. Sullivan. Sullivan, an elderly widower, lived in Washington County and had no immediate family living nearby. Weaver had been Sullivan's caretaker for more than a decade, and when Sullivan became ill he eventually moved in with Weaver, who continued to care for him. Weaver informed Dubose that Sullivan was dying and that he wanted to leave his entire estate to her. Sullivan's estate was substantial; it consisted of various bank accounts, stocks in various companies, and real property. Dubose drafted a will naming Weaver as the executor and sole beneficiary of Sullivan's estate. According 1061743 3 to Dubose, Weaver also told him that she wanted him to be named in the will as the attorney for the estate. Dubose included in the will provisions naming himself as the successor personal representative as well as the attorney for the estate. Dubose stated that he explained to Weaver the proper procedure to effectuate the due execution of the will by Sullivan. He also prepared a certificate to be signed by Sullivan's physician stating that Sullivan was competent and directed Weaver to have it signed. Dubose did not meet with or speak to Sullivan regarding the will or its provisions before preparing the will. Sullivan signed the will on April 11, 2003; he died on April 29, 2003. On May 6, 2003, Weaver and Dubose, apparently in anticipation of an action by Sullivan's heirs contesting the will, entered into a contingency contract whereby Dubose was employed to represent both Sullivan's estate and Weaver. Sullivan's estate and Weaver agreed to pay Dubose 33% from the proceeds of any settlement obtained before the filing of a will contest and 40% from the proceeds of any settlement obtained after the filing of any will contest. The agreement 1061743 4 also provided that Sullivan's estate and Weaver would pay the cost of any investigation that might be required. On August 15, 2003, Sullivan's heirs filed an action contesting his will. Dubose discovered during his representation of the estate and Weaver in the will contest that the notary public who notarized the physician's signature was not actually present when Sullivan's physician signed the certificate declaring that Sullivan was competent. Dubose deleted the notary's signature from the certificate because he believed that if it was discovered that the notary did not actually witness the physician signing the certificate it would "blow the whole case out of the water." However, Dubose subsequently deposed Sullivan's physician and verified that the physician had signed the certificate and that Sullivan was indeed competent at that time. The parties to the will contest ultimately settled the action, and the case was dismissed on February 14, 2005. On February 14, 2005, Weaver moved the court to appoint Dubose as a coexecutor of the estate. Weaver and Dubose also petitioned the court for the admission to probate of Sullivan's will and for letters testamentary. The court 1061743 At some point that is not entirely clear from the record 1 before this Court, the matter of Sullivan's estate was transferred from the Washington Circuit Court to the Mobile Circuit Court. 5 granted the letters testamentary to Weaver and Dubose on that same date. A dispute subsequently arose between Weaver and Dubose as to the fee due Dubose under the contingency contract. Dubose contended that he was entitled to 40% of the portion of the estate Sullivan received as part of the settlement, which was valued at approximately $2.5 million, including stock and land. Weaver contended that the stock and land were not to be included in calculating Dubose's fee and that he was entitled to only 40% of the cash assets of her portion of the estate. On February 18, 2005, Dubose filed a claim against Weaver and the estate, seeking a fee for his services as personal representative and attorney for the estate. Despite having 1 filed a claim against Weaver and the estate, Dubose continued to represent Weaver and to serve as coexecutor of the estate. Dubose's claim was eventually settled by the parties, and the trial court, on October 2, 2006, entered an order naming Dubose as the sole executor of Sullivan's estate and awarding him fees for his service as personal representative and as 1061743 6 attorney for the estate in the amounts of $127,630 and $969,992, respectively. The trial court granted letters testamentary to Dubose on that same date. Before Dubose and Weaver settled Dubose's claim, an anonymous complaint was filed with the State Bar on May 10, 2005, alleging that Dubose had violated the Alabama Rules of Professional Conduct during his representation of Weaver and Sullivan's estate. On September 19, 2006, Dubose waived the filing of formal charges and entered a guilty plea to violating Rules 1.1, 1.4(b), 1.7(b), 1.8(c), 8.4(a), and 8.4(g), Alabama Rules of Professional Conduct. On October 4, 2006, the State Bar's Disciplinary Commission accepted Dubose's guilty plea and entered an order suspending him from the practice of law for 45 days. On October 19, 2006, this Court entered an order denying the Disciplinary Commission's request to suspend Dubose from the practice of law for 45 days, concluding that the requested discipline was insufficient. The next day, the State Bar filed formal charges against Dubose alleging violations of Rules 1.1, 1.4(b), 1.5(a), 1.7(a), 1.7(b), 1.8(c), 3.4(a), 3.4(b), 8.4(a), 1061743 7 8.4(c), 8.4(d), and 8.4(g), Alabama Rules of Professional Conduct. In November 2006, Dubose was elected circuit judge for the First Judicial Circuit. He was sworn into office on December 22, 2006, and officially assumed the office of circuit judge on January 15, 2007. On February 8, 2007, Dubose moved the Disciplinary Board for a summary judgment on the complaint against him arguing, among other things, that the State Bar was divested of its jurisdiction to discipline him once he became an incumbent circuit judge. On February 13, 2007, the State Bar filed a response to Dubose's motion for a summary judgment, arguing that it retained jurisdiction over Dubose for alleged violations of the Rules of Professional Conduct occurring while he was engaged in the private practice of law before he assumed the office of circuit judge. On February 22, 2007, a panel of the Disciplinary Board entered an order denying Dubose's motion for a summary judgment. On March 1, 2007, Dubose moved the Disciplinary Board to reconsider its denial of his summary-judgment motion. Following a hearing, the Disciplinary Board, on March 13, 2007, entered an order finding that the State Bar did have 1061743 8 jurisdiction over Dubose to proceed with disciplinary proceedings for the alleged violations of the Rules of Professional Conduct occurring before Dubose assumed the office of circuit judge. The Disciplinary Board certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On March 19, 2007, Dubose appealed the decision of the Disciplinary Board to the Board of Appeals. The Board of Appeals issued a show-cause order on July 25, 2007, noting that an order denying a motion for a summary judgment is inherently "non-final" and cannot be made final by Rule 54(b) certification. See Continental Cas. Co. v. Southtrust Bank, N.A., 933 So. 2d 337 (Ala. 2006). The Board of Appeals further concluded that it had the discretion to treat the appeal as a petition for a writ of mandamus. F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So. 2d 366 (Ala. 2006), and directed Dubose to answer why his appeal should not be treated as a petition for a writ of mandamus. After receiving responses from the parties, the Board of Appeals, on August 31, 2007, entered an order granting Dubose's petition for the writ of mandamus and finding that the Disciplinary Board did not have jurisdiction to continue 1061743 9 the disciplinary proceedings against Dubose once he became an incumbent circuit court judge. The Board of Appeals ordered that all disciplinary proceedings against Dubose be stayed until such time as he is no longer serving as judge. This petition followed. Standard of Review This Court has stated: "'[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Horton, 711 So. 2d 979, 983 (Ala. 1998). 'Subject to certain narrow exceptions ..., 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 (Ala. 2002) (citing Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000)). One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdiction, Ex parte Sekeres, 646 So. 2d 640 (Ala. 1994), Ex parte Paul Maclean Land Servs., 613 So. 2d 1284 (Ala. 1993), and Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880 (Ala. 1983)." Ex parte Alloy Wheels Int'l, Ltd., 882 So. 2d 819, 821-22 (Ala. 2003). "Questions of law are reviewed de novo." Ex parte Terry, 957 So. 2d 455, 457 (Ala. 2006). Therefore, a petition for a writ of mandamus is the proper vehicle by which 1061743 10 to review the State Bar's claim that the Board of Appeals erred in determining that it was divested of its jurisdiction to discipline Dubose once he assumed office as an incumbent circuit judge, and our review will be de novo. Discussion The issue whether the Disciplinary Board has jurisdiction to discipline an incumbent judge for an alleged violation of the Rules of Professional Conduct while the incumbent judge was engaged in the private practice of law presents a question of first impression. The State Bar acknowledges that Rule 1(a)(2), Ala. R. Disc. P., divests it of the jurisdiction to discipline an incumbent judge for misconduct occurring while the judge is in office. Rule 1(a)(2) provides: "Incumbent Judges. Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama State Bar." Indeed, the discipline of an incumbent judge for conduct occurring while in office is provided for by Art. VI, §§ 156 and 157, Ala. Const. of 1901. See also Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So. 2d 404 (1968) (holding that the State Bar cannot discipline a judge 1061743 11 during the term in which the judge is holding office for misconduct performed in a judicial capacity and that a judge can be disciplined only according to the exclusive method provided for in the constitution). Leaving the discipline of judges to the procedures prescribed in the constitution is of "fundamental soundness, and is essential to the maintenance of an independent judiciary." In re Alonzo, 284 Ala. 183, 188, 223 So. 2d 585, 590 (1969). However, the State Bar contends that it retains jurisdiction over all disciplinary matters involving any member of the State Bar for violations of the Alabama Rules of Professional Conduct that were committed while the member was engaged in the practice of law. See generally Rule 1(a)(1), Ala. R. Disc. P. It is a compelling argument, especially where, as here, the violations, the institution of disciplinary procedures, and a guilty plea by Dubose all occurred prior to Dubose's taking office as a member of the judiciary. Implicit in the State Bar's argument is the fact that even though Dubose may hold judicial office, he nevertheless remains on the roll of attorneys and must be a member of the bar in order to hold judicial office. See In re 1061743 Section 146, Ala. Const. of 1901 (Off. Recomp.), provides 2 that "[j]udges of the supreme court, courts of appeals, circuit court, and district court shall be licensed to practice law in this state ...." 12 Alonzo, 284 Ala. at 189, 223 So. 2d at 592 ("When one is admitted to the bar of this state and licensed to practice law by this court, he remains enrolled as an attorney from that time on unless his right to practice is destroyed by a judgment of suspension or disbarment. True, during the time an attorney may hold certain judicial offices, his right to practice is suspended. He yet remains on the roll of attorneys of this court, and must be a member of the bar to be qualified to hold certain judicial offices."). Specifically, 2 the State Bar argues that its jurisdiction over Dubose attached on October 20, 2006, with the filing by the State Bar of formal charges alleging violations of the Rules of Professional Conduct while Dubose was engaged in the private practice of law and that it was not subsequently divested of that jurisdiction when he assumed the office of circuit judge. Reluctantly, we disagree. In In re Alonzo, supra, Alonzo had been elected to the office of circuit judge at the November 1966 general election. After being elected judge but before being sworn into office, 1061743 13 Alonzo devised a scheme to extort money from a particular party that would be appearing in his court. Once on the bench, Alonzo forced the extortion by entering unfavorable judgments against the party being extorted. Alonzo's scheme was discovered, and the State Bar brought disciplinary action against him. However, before the State Bar took disciplinary action against Alonzo, a judgment of impeachment was rendered against him, and he was removed from office. This Court considered the issue whether the State Bar could proceed with disciplinary action against Alonzo. In holding that the State Bar could proceed with disciplinary action against Alonzo, the Court noted that the important constitutional issue of maintaining an independent judiciary was not an impediment to the State Bar's bringing disciplinary action against Alonzo because he had been impeached and removed from office. In re Alonzo, supra. Further, this Court stated: "Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed 1061743 14 from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct." 284 Ala. at 190, 223 So. 2d at 592. This Court's holding in Alonzo is embodied in Rule 1(a)(3), Ala. R. Disc. P., which, we conclude, controls the the present situation. Rule 1(a)(3) provides: "Former Judges. Former judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline." (Emphasis added.) It is clear from the plain and unambiguous language of Rule 1(a)(3), Ala. R. Disc. P., that the State Bar does not currently have the jurisdiction to discipline Dubose so long as he is serving as an incumbent judge; however, at such time when Dubose becomes a "former judge" and is no longer serving in a judicial capacity, the State Bar would then regain jurisdiction to discipline Dubose for those acts of misconduct that occurred before he became a judge. Therefore, Dubose is entitled to have the disciplinary 1061743 15 proceedings initiated against him by the State Bar stayed until such time as he is no longer serving in his capacity as circuit judge. Because the State Bar has failed to establish a clear legal right to the relief sought, we deny the petition for the writ of mandamus. PETITION DENIED. See, Woodall, Stuart, and Parker, JJ., concur. Cobb, C.J., and Lyons, Smith, and Murdock, JJ., dissent. 1061743 16 LYONS, Justice (dissenting). I respectfully dissent. Sections 156 and 157 of the Alabama Constitution of 1901 create the Judicial Inquiry Commission and the Court of the Judiciary, respectively, and prescribe the procedures for hearing complaints involving charges that a judge has violated any of the Canons of Judicial Ethics, has been guilty of misconduct in office, has failed to perform his or her duties, or has become physically or mentally unable to perform his or her duties. All of these charges relate to conduct occurring while holding judicial office. Section 158 of the Alabama Constitution of 1901 recognizes the applicability to all appellate court judges and justices of provisions for impeachment found at § 173, in addition to the authority of the Court of the Judiciary. The grounds for impeachment as set forth in § 173 consist of "willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith ...." 1061743 17 All of these charges relate to conduct occurring while holding office. Nowhere in the Alabama Constitution is there any provision describing the sections dealing with removal of a judge from office for conduct occurring while holding office as exclusive of any other proceedings that could lead to removal from office based on a judge's conduct before taking office. See Sullivan v. State ex rel. Attorney General of Alabama, 472 So. 2d 970, 973 (Ala. 1985) ("Neither of these Amendments [creating the Judicial Inquiry Commission and the Court of the Judiciary] indicate they vest exclusive jurisdiction in these bodies to remove sitting judges from office."). Judge Dubose relies upon Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So. 2d 404 (1968), as authority for the proposition that the State Bar can take no action that could indirectly lead to his removal from office. Judge Dubose quotes the following from Moore where, after the Moore Court restated the rule that once a judge is inducted into an office he was competent to hold when elected, he can 1061743 The Rules Governing Conduct of Attorneys in Alabama were 3 superseded by the Code of Professional Responsibility on October 1, 1974, which in turn was superseded by the Rules of Professional Conduct on January 1, 1991. 18 be ousted or removed only in the manner prescribed by the Constitution, the Court stated: "This, in substance, means that there can be no collateral approach to ousting a judge, for such prerogative is reserved to the State by the Constitution. In effect, the action of the [State] Bar amounts to an attempt to remove a judge by indirection rather than by constitutional means." 282 Ala. at 565, 213 So. 2d at 407. The next sentence puts the previous observation in proper context. The Moore Court stated: "Here, the acts complained of were not by a judge in his alleged capacity as a lawyer, but were judicial actions. Erroneous or reprehensible as they may be, the conduct complained of was not conduct unbecoming an attorney at law enumerated by Rule 36, Section A of the Rules Governing Conduct of Attorneys in Alabama." 3 282 Ala. at 567, 213 So. 2d at 407 (emphasis added). Because Moore did not relate to conduct prior to taking judicial office and because the Constitution nowhere proscribes any proceedings against an incumbent judge for conduct prior to taking office that could result in his or her removal from office, it is inappropriate to limit the jurisdiction of the 1061743 19 State Bar over incumbent judges in disregard of this crucial distinction. The Board of Appeals relied upon Rule 1(a)(2), Alabama Rules of Disciplinary Procedure, which states: "Incumbent Judges. Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama State Bar." This rule should not be read as restricting the jurisdiction of the State Bar in a manner inconsistent with the Alabama Constitution and beyond the context of Moore, which address the conduct of judges after assuming office. Treating the rule as preventing the State Bar from disciplining a judge for conduct that occurred before taking office gives the judge an unwarranted immunity. I agree with the sound analysis of the Supreme Court of Missouri in In re Mills, 539 S.W.2d 447, 449-50 (Mo. 1976), where, after acknowledging contrary authority and rejecting it as unpersuasive, the court stated: "Here, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. 1061743 20 Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline even though it result directly in cancellation of his license and, thereby, lead indirectly to his removal from office. He may not take refuge in a judicial office from discipline for prior misconduct, the effect of which would be removal of one of his qualifications for occupying the refuge. To permit the use of a judicial office as such a sanctuary would be a travesty upon justice." (Emphasis added.) The main opinion relies upon Rule 1(a)(3), Alabama Rules of Disciplinary Procedure, which provides: "Former Judges. Former judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline." This rule dealing with former judges, a circumstance not here presented, merely codifies the holding of this Court in In re Alonzo, 284 Ala. 183, 223 So. 2d 585 (1969), in which we rejected a former judge's plea of immunity from State Bar disciplinary proceedings. In Alonzo, we observed: 1061743 21 "When one is admitted to the bar of this state and licensed to practice law by this court, he remains enrolled as an attorney from that time on unless his right to practice is destroyed by a judgment of suspension or disbarment. True, during the time an attorney may hold certain judicial offices, his right to practice is suspended. He yet remains on the roll of attorneys of this court, and must be a member of the bar to be qualified to hold certain judicial offices." 284 Ala. at 189, 223 So. 2d at 592. Rejecting the plea of immunity, the Alonzo Court held: "Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct." 284 Ala. at 190, 223 So. 2d at 592. The main opinion expands Rule 1(a)(3) beyond its field of applicability and, in so doing, ignores the crucial distinction between conduct occurring before a lawyer enters upon judicial office, over which the Bar has authority, and conduct occurring after the 1061743 22 lawyer becomes a judge, over which the Bar has no jurisdiction. A majority of this Court disagrees with my interpretation of the State Bar's authority, and I urge the immediate amendment of Rule 1 of the Alabama Rules of Disciplinary Procedure to protect the public from judges who were unethical lawyers and relieve this Court of further embarrassment from the absurd consequences of its own rules. Cobb, C.J., and Smith and Murdock, JJ., concur. 1061743 23 MURDOCK, Justice (dissenting). I join Justice Lyons's dissenting opinion. I would add the following: The fact that it is the State Bar that would enforce the Rules of Professional Conduct and possibly perform the disciplinary act of removing Dubose from the roll of licensed attorneys for misconduct committed by him while he was an attorney and before he took judicial office does not mean that Dubose would be removed from his judicial office in a manner contrary to the Alabama Constitution. To say that the State Bar may remove Dubose from the roll of licensed attorneys is not to say that it can take the further step of acting upon that development and ousting Dubose from judicial office. Clearly, the authority to do so lies elsewhere. Authority and responsibility for addressing violations of the Rules of Professional Conduct by attorneys while engaged in the practice of law, however, is in the State Bar. The Judicial Inquiry Commission and the Court of the Judiciary have no such authority. I am confident that this Court, in promulgating the Rules of Professional Conduct and the Rules of Disciplinary Procedure, did not intend for an attorney to 1061743 24 be able to postpone or even avoid altogether any real consequence for his violation of the former because he succeeds in being appointed or elected to a judgeship in the interval between his commission of an offense and disciplinary action by the State Bar. Cf. Ex parte Berryhill, 801 So. 2d 7, 10 (Ala. 2001)("'In deciding between alternative meanings ..., we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, one that advances the legislative purpose in adopting the legislation, that is "workable and fair," and that is consistent with related statutory provisions.' John Deere Co. v. Gamble, 523 So. 2d 95, 100 (Ala. 1988) (citations omitted)."); Karrh v. Board of Control of Employees' Ret. Sys. of Alabama , 679 So. 2d 669, 671 (Ala. 1996)(to similar effect); League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974) ("Where there is doubt as to the legislative intent in a statute, weight will be given to the practical effect which a proposed construction will have." (citations omitted)).	March 14, 2008
4380ec66-ca8b-47ea-b889-b7f2bab14d28	Manford Welch and Ann Welch v. Wachovia Bank, NA	N/A	1041765	Alabama	Alabama Supreme Court	Rel: 04/25/2008 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, 2007-2008 ____________________ 1041765 ____________________ Manford Welch and Ann Welch v. Wachovia Bank, N.A. Appeal from Houston Circuit Court (CV-03-368) PARKER, Justice. Manford Welch and his wife, Ann Welch, appeal from a judgment against them in the amount of $152,691.63 plus costs in the underlying contract action, into which they were joined after a summary judgment had been entered against the original 1041765 The name of the corporation is variously presented in the 1 briefs as Barry's Foodmarts, Inc., Barry's Food Mart, Inc., and Barry's Foodmart, Inc. The original complaint was filed against "Barry's Foodmarts, Inc."; that is the name used for the corporation in this opinion. 2 defendants. They also challenge the denial of their motion for a change of venue and the dismissal of their counterclaim alleging fraud. We affirm. Background The trial court provided a summary of the action in its July 8, 2005, order entering judgment against the Welches: "The matter before the Court is SouthTrust Bank's complaint to collect monies owed under a promissory note in default. This matter was heard ore tenus.... "On October 1, 1993 SouthTrust Bank (now Wachovia Bank) loaned Barry's Foodmart[s], Inc.,[1] Barry Langham, Sr. and Sherry Langham $300,000.00 for the purpose of owning and operating a grocery store. Summary Judgment was taken against these three Defendants August 21, 2003 for $148,263.88 plus cost of court. Plaintiff Bank amended the complaint adding [the Welches] as Defendants on a guaranty note signed by them October 1, 1993. "The defendants (Welches) argue that there was fraud in the inducement or an innocent misrepresentation. Manford Welch testified that he did not know the extent of what he was signing and thought that only a $10,000.00 certificate of deposit was at risk. However, neither Defendant bothered to turn the document over and read it in its entirety. In fact, Barry Langham, the son-in- law, presented the guaranty agreement to the Welches 1041765 The action was initiated by SouthTrust Bank of Dothan, 2 which, through a series of mergers, is now Wachovia Bank, N.A. 3 for their signatures. No representations were made by the bank, nor did the bank ever have any contact with the Welches. Subsequently, the Defendants Barry's Foodmart[s], Inc., and the Langhams executed a document titled change in terms of agreement on May 15, 2002 which extended the maturity date to May 15, 2007. The principal amount owed at that time was $129,358.30. Barry's Foodmart[s] and the Langhams subsequently defaulted on the note. The balance due as of July 6, 2005 was $152,691.63 and increases $28.20 every subsequent day thereafter. "The Welches have a duty to read the document and to inquire as to its contents. They cannot derive benefit from its execution and avoid the risks when their family defaults on the note. In this regard see First National Bank of Mobile v. Horner, 494 So. 2d 419 (Ala. 1986), and Boland v. Fort Rucker National Bank, 599 So. 2d 595 (Ala. 1992). "Based on the foregoing it is Ordered, Adjudged and Decreed that judgment be entered in favor of SouthTrust Bank/Wachovia Bank and against [the Welches] in the amount of $152,691.63 plus cost of court." The loan was a Small Business Administration loan that Barry Langham solicited for Barry's Foodmarts, Inc., from SouthTrust Bank of Dothan (now Wachovia Bank, N.A.). The loan 2 request was approved on July 8, 1993, but Paul Gressman of SouthTrust told Barry Langham that the bank needed additional collateral up front. Welches' brief at 6. Barry Langham and 1041765 4 his wife, Sherry Langham, went to Sherry's parents, the Welches, who agreed to assign their $10,000 certificate of deposit held with the First Alabama Bank (now Regions Bank) as security for the loan. They assigned the account on September 23, 1993, and First Alabama issued an irrevocable letter of credit in favor of SouthTrust for the account of "Barry's Food Mart, Inc.," on the same day. On or about October 1, 1993, the Langhams met with Gressman at a Hardee's fast-food restaurant in Dothan after regular banking hours. What follows is Wachovia's version of what transpired at that meeting and thereafter to result in the execution of the guaranty: "At that time, Mr. Gressman handed Mr. Langham the Guaranty and said, 'Sign this and I've got all the information from Regions -- from First Alabama about the [certificate of deposit], just get them to sign it and I'll fill it out, and that will be it.' Mr. Gressman further stated, '[the Guaranty] was for their records for the [certificate of deposit], you know, for the [Small Business Administration] or whatever....' Mr. Langham took the Guaranty to the Welches' home where he told the Welches what Mr. Gressman had said about the Guaranty. Then, he laid the Guaranty down with the signature line up, and said, '[T]hat man from that Small Business said all you've got to do is sign, and you ain't got to look at nothing.' Mr. Langham further told the Welches, '[M]y bank needs this signed for their files, just stating that you've have signed the [certificate of deposit] over.' The Welches executed the Guaranty." 1041765 5 Wachovia's brief at 3 (citations to the record omitted). The guaranty agreement is printed on both sides and required execution on the reverse. The Welches assert that "Gressman had only filled in SouthTrust Bank of Dothan for 'Lender' and Barry's Foodmart[s], Inc. as 'Debtor.' The rest of the document was blank. ... The principal amount of the loan and the interest rate were not written in the document." Welches' brief at 8. On May 15, 2002, the Langhams and Wachovia executed a document titled "Change in Terms Agreement" extending the term of the loan and changing the variable interest rate to a fixed rate. The Langhams defaulted on the loan, and Wachovia Bank, on May 1, 2003, sued for the balance due. Wachovia moved for a summary judgment, and the court set a hearing for August 11, 2003. When only Wachovia appeared for the hearing, the court entered an order stating that Wachovia's summary-judgment motion was due to be granted and directing Wachovia to submit a draft summary-judgment order within 10 days. The same day, Wachovia submitted a motion to amend the complaint to join the Welches as defendants. The trial court granted the motion on August 19, 2003, and on August 21, 2003, the trial court 1041765 6 entered a summary judgment in favor of Wachovia and against Barry's Foodmarts, Inc., Barry Langham, and Sherry Langham. Wachovia amended the complaint to join the Welches on August 20, 2003, and moved the court on September 29, 2003, for authority to serve the Welches by certified mail. On October 31, 2003, Barry Langham's attorney filed a notice with the trial court stating that Barry Langham and Barry's Foodmarts, Inc., had filed a petition in bankruptcy under Chapter 7 of the Bankruptcy Code. The Welches, on November 17, 2003, filed a motion either to transfer the case from the Houston Circuit Court to the Baldwin Circuit Court or to dismiss the case without prejudice for lack of venue. They argued that the complaint arises out of contract and cited § 6-3-2(a)(2), Ala. Code 1975, which provides that "[a]ll actions on contracts ... must be commenced in the county in which the defendant or one of the defendants resides." Because all the individual defendants named in the complaint are residents of Baldwin County and because Barry's Foodmarts, Inc., does business only in Escambia and Baldwin Counties, venue in Houston County, they argued, was improper. Wachovia responded, arguing that the Langhams and Barry's 1041765 7 Foodmarts, Inc., had waived the issue of venue by answering the complaint and not raising the defense of improper venue. It cited Rule 82(c), Ala. R. Civ. P., which provides: "Whenever an action has been commenced in a proper county, additional claims and parties may be joined ... as ancillary thereto, without regard to whether that county would be a proper venue for an independent action of such claims against such parties." Wachovia argued that because venue in Houston County was proper as to the original defendants, it is proper as to the Welches. The trial court held a hearing on January 5, 2004, on the venue issue and at the end of the hearing ordered the parties to submit additional authority regarding the issue within 14 days. In response, the Welches argued that under the principle enunciated in Ex parte Central of Georgia Railway, 243 Ala. 508, 513, 10 So. 2d 746, 750 (1942), the right to a change of venue is individual to each defendant, and one defendant may not waive the right on behalf of another. They further argued that Rule 82(c), Ala. R. Civ. P., is not applicable here because the rule presumes that the action was commenced in a proper county, and the action here was commenced in a county where venue was improper because no defendant was a resident. 1041765 8 Because the county in which the action was commenced was not a "proper county," they argue, the waiver of any claim by the original defendants that venue was improper does not constitute a waiver of the issue by the Welches. Wachovia, in its brief in the trial court supporting venue in Houston County, stated that it could find no law that was on point and that, therefore, this case presented a question of first impression. It relied on the Committee Comments on 1973 Adoption to Rule 82(c), which state: "These rules provide for a more liberal joinder of claims and of parties than has hitherto been possible in Alabama. ... The correct principle seems to be that once venue is properly laid, other claims and parties may be joined as ancillary to the original action regardless of venue requirements." Wachovia went on to state: "Barry's Foodmart[s] and its guarantors [the Welches] brought themselves to Houston County to borrow money from SouthTrust of Dothan [now Wachovia], even though SouthTrust branches were located in Mobile and Baldwin Counties. Houston County was the place the contract was entered into, the place where all paperwork was executed and processed, and the place of the loan. [They] found it convenient to borrow money from a Dothan bank, but now they fail to find it convenient to return for a suit on their failure to make payment on their obligations. 1041765 9 "Houston County has significant interests in this case, and the case should be retained in this county based on Houston County's interest, judicial efficiency, and analogous application of Rule 82(c)." On June 16, 2004, the trial court issued its order denying the Welches' motion for a change of venue. The order stated, in part: "Defendants (Welches) argue that venue was improper as to all Defendants, including themselves. However, Defendant Corporation and Defendant Langhams waived venue and answered Plaintiff's complaint. [The Welches] make a good argument that venue is personal to them and they would not be affected by the Langham's waiver of venue. Nonetheless, it would be a more prudent use of judicial resources if the case remained in Houston County. This Court addressed the underlying case, which by necessity, would remain in Houston County. The [Welches] could conceivably be allowed to transfer the case to Baldwin County, Alabama. This action would unnecessarily bifurcate the case and could allow for inconsistent judgments. After all, the Defendants came to Houston County, Alabama, to seek and execute the loan made the basis of the lawsuit. The comment to [Ala. R. Civ. P.] Rule 82(c) states: 'These joinder provisions will be greatly restricted if venue must be proper as to every claim and every party which is joined, and authorization of liberalized joinder having been contemplated by the enabling act, such restriction is not considered to have been intended by the legislature. The correct principle seems to be that once venue is properly laid, other claims and parties may be joined as ancillary to the original action regardless of venue requirements. "Accordingly, it is therefore ORDERED, ADJUDGED and DECREED that [the Welches'] motion to transfer 1041765 10 venue is hereby denied." On July 29, 2004, the trial court entered a default judgment against the Welches, which it set aside on August 9, 2004, because the Welches had been provided no hearing. The Welches answered the complaint on August 3, 2004, denying all claims and asserting affirmative defenses of failure of consideration, fraud in the inducement, and unclean hands. Wachovia filed a motion for a summary judgment on August 13, 2004. On November 12, 2004, the Welches filed a response, creating, they claimed, a genuine issue of material fact that would preclude a summary judgment. They asserted that the guaranty instrument they executed "demonstrates separate handwriting which the Welches contend did not exist when they signed the document" and that Wachovia is not a holder in due course of the guaranty instrument under Ala. Code 1975, § 7-3- 302, because that statute mandates that the instrument not bear "apparent evidence of forgery or alteration." They also asserted that the May 15, 2002, refinancing resulted in a new loan, that the Welches' guaranty of the 1993 loan no longer existed after that refinancing, and that they were unaware that the instrument they signed was a guaranty for $300,000, so that there was no requisite meeting of the minds to form a 1041765 11 valid contract. On December 20, 2004, trial court denied Wachovia's motion for a summary judgment. Following a bench trial on July 7, 2005, the trial court entered a judgment against the Welches in the amount of $152,691.63, plus court costs, on July 8, 2005. The Welches appeal from this judgment, challenging the denial of their motion to change venue and the dismissal of their counterclaims alleging fraud. Legal Analysis Denial of motion for a change of venue "'The burden of proving that venue is improper in the county in which a suit is brought is upon the party making such a claim. Ingram v. Omelet Shoppe, Inc., 388 So. 2d 190 (Ala. 1980); Medical Service Administration v. Dickerson, 362 So. 2d 906 (Ala. 1978); Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441 (1960)....' "Ex parte Nelson, 448 So. 2d 339, 340 (Ala. 1984). See also Unum Life Ins. Co. of America v. Wright, 897 So. 2d 1059 (Ala. 2004), and Ex parte Pratt, 815 So. 2d 532 (Ala. 2001). Our standard of review for a challenge to the trial court's denial of a motion for a change of venue is whether the trial court exceeded its discretion in denying the motion. Ex parte Perfection Siding, Inc., 882 So. 2d 307 (Ala. 2003)." Ex parte Flexible Prods. Co., 915 So. 2d 34, 51 (Ala. 2005). The Welches and the Langhams were residents of Baldwin 1041765 12 County during all times related to the transaction underlying this action. Barry's Foodmarts, Inc., conducted business only in Escambia County and Baldwin County. The Welches argued in their motion for a change of venue and the supporting brief that § 6-3-2(a)(2), Ala. Code 1975, requires that if an individual defendant is a resident of Alabama, all actions on contracts must be commenced in the county in which he or she resides. Because the instant action is a contract action, they argue, Houston County was not a proper venue for commencing the action. By its terms, rule 82(b), Ala. R. Civ. P., reinforces the statute by applying only when there is an inconsistency in the statutes for venue in actions against individuals at law and actions in equity. The Welches do not dispute that the Langhams waived the defense of improper venue by answering the complaint in the Houston Circuit Court, but they argue that the right to be sued in their county of residence is a personal right that may not be waived by another defendant. Section 6-3-2(a), Ala. Code 1975, provides that, as to actions against individuals, "[a]ll actions on contracts, except as may otherwise be provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the 1041765 13 state a permanent residence." This Court has addressed this issue before, stating: "This right of transfer is the individual right of each defendant. When the right of transfer is invoked by motion of one or more defendants, who have not waived such right, the duty is upon the court to grant it regardless of the attitude of other defendants." Ex parte Central of Georgia Ry., 243 Ala. 508, 513, 10 So. 2d 746, 750 (1942). The Welches argue, therefore, that the filing of the action against the Langhams in Houston County became proper only because the Langhams (the individual defendants) and Barry's Foodmarts, Inc. (the corporate defendant), waived the affirmative defense of improper venue when they answered the complaint in Houston County. It follows, the Welches argue, that their joinder into the action under Rule 82(c), Ala. R. Civ. P., can be proper only if venue was initially proper in Houston County. Because venue in Houston County was not proper, they argue, their joinder is improper, and a transfer of the case to their county of residence should have been ordered. "Whenever an action has been commenced in a proper county, additional claims and parties may be joined ... as ancillary thereto, without regard to whether that county would 1041765 14 be a proper venue for an independent action ... against such parties." Rule 82(c), Ala. R. Civ. P. (emphasis added). "'When ruling on a motion to transfer venue, the trial court must determine whether venue was proper at the time the action was filed.' Ex parte Canady, 563 So. 2d 1024, 1025 (Ala. 1990)." Ex parte Ambrose, 813 So. 2d 806, 810 (Ala. 2001) (emphasis added). Although the Welches presented an argument that venue was not proper in Houston County, the trial court correctly denied the motion for a change of venue, even though it did not enunciate proper reasoning for the denial. The dispositive factor in this case lies in the provisions of § 6-3-7(a)(1), Ala. Code 1975: "All civil actions against corporations may be brought in ... the county in which a substantial part of the events or omissions giving rise to the claim occurred ...." Barry's Foodmarts, Inc., the corporate defendant, executed the loan contract in Houston County. The party to the contract was Barry's Foodmarts, Inc., and the Langhams signed as its corporate officers. Wachovia sued Barry's Foodmarts, Inc., on the loan contract and the Langhams on their separate commercial guaranties of Barry's Foodmarts' loan. Venue in Houston County was proper on that basis, not solely because 1041765 15 the Langhams waived the affirmative defense. Because venue was proper in Houston County in the original action, the joinder of the Welches in the Houston County action was proper under Rule 82(c). Although this argument was not made on appeal, an appellate court "will affirm the ruling of the trial court if it is right for any reason, even one not presented to or considered by the trial judge." Premiere Chevrolet, Inc. v. Headrick, 748 So. 2d 891, 893 (Ala. 1999). Inasmuch as the denial of the Welches' motion for a change of venue is supported by law, we hold that the trial court was within its discretion in denying the Welches' motion for a change of venue. Dismissal of fraud counterclaims The Welches signed the guaranty at the request of their son-in-law, Barry Langham, who testified that he took the form Wachovia required as additional security to the Welches' residence for their signatures, that he placed it before them facedown with the with the side of the form containing the signature line facing up, and that the Welches signed it. The Welches ask this Court to determine "whether the trial court erred in refusing to accept the uncontroverted testimony presented by the Welches regarding fraud, whether 1041765 16 innocent, reckless or willful, in the execution of the [Small Business Administration] Guaranty." Welches' brief at 22. We reiterate, in part, the trial court's judgment against the Welches: "The defendants (Welches) argue that there was fraud in the inducement or an innocent misrepresentation. Manford Welch testified that he did not know the extent of what he was signing and thought that only a $10,000.00 certificate of deposit was at risk. However, neither Defendant bothered to turn the document over and read it in its entirety. In fact, Barry Langham, the son-in- law, presented the guaranty agreement to the Welches for their signatures. No representations were made by the bank, nor did the bank ever have contact with the Welches. ... "The Welches have a duty to read the document and to inquire as to its contents. They cannot derive benefit from its execution and avoid the risks when their family defaults on the note. In this regard see First National Bank of Mobile v. Homer, 494 So. 2d 419 (Ala. 1986), and Boland v. Fort Rucker National Bank, 599 So. 2d 595 (Ala. 1992)." We agree with the holding of the trial court as presented in its judgment. The Welches did not reasonably rely on a misstatement of fact by Wachovia. Williams v. Bank of Oxford, 523 So. 2d 367 (Ala. 1988); Zickler v. Shultz, 603 So. 2d 916, 918 (Ala. 1992). If the Welches were indeed defrauded, the perpetrator of the fraud was not Wachovia. Conclusion 1041765 17 Because venue as to the Welches was proper in Houston County and because the Welches' fraud counterclaims against Wachovia are without merit, the judgment of the trial court is affirmed. AFFIRMED. Cobb, C.J., and See and Smith, JJ., concur. Woodall, J., concurs in the result.	April 25, 2008
01708ccf-7e8c-4acb-8a2c-ddc1d3c719a0	Vee Evelyn Carlton and Kathryn Mae Hutchinson v. Amanda Webb Hollon and George Alexander Hollon	N/A	1070823	Alabama	Alabama Supreme Court	REL: 08/29/2008 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, 2008 ____________________ 1070823 ____________________ Vee Evelyn Carlton and Kathryn Mae Hutchinson v. Amanda Webb Hollon and George Alexander Hollon Appeal from Autauga Circuit Court (CV-07-900064) STUART, Justice. Vee Evelyn Carlton and Kathryn Mae Hutchinson own real property adjacent to real property owned by Amanda Webb Hollon and George Alexander Hollon. Carlton and Hutchinson sued the Hollons and the previous owners of the property, Lewis F. Webb 1070823 2 and Alice C. Webb, alleging that alterations made to the Hollons' property caused damage and continues to cause damage to their property. Carlton and Hutchinson alleged claims of negligence, private nuisance, trespass, and interference with the natural flow of water. They requested damages and asked the court "to issue a preliminary injunction requiring the defendants to comply with all [Alabama Department of Environmental Management] rules, regulations, and other requirements" and to issue a permanent injunction "requiring defendants to remove all obstructions and otherwise restore the normal drainage of water and further restraining defendants from obstructing such drainage in the future." The Autauga Circuit Court entered a summary judgment for the Hollons on all claims; it certified that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Carlton and Hutchinson appeal. We reverse and remand. Facts and Procedural History The evidence tends to show that when the Webbs owned the subject property, they removed timber and made changes to the surface of the property near the property line dividing the Webbs' property and Carlton and Hutchinson's property. The 1070823 3 removal of the timber and the other alterations to the property, according to Carlton and Hutchinson, resulted in an alteration of the natural pattern of water drainage from the Webbs' property onto to their property, along with an increase in the flow of silt and other discharge onto their property. Evidence was submitted that tends to show that the removal of timber and the other surface alterations may not have been performed in compliance with the rules and regulations of the Alabama Department of Environmental Management. In July 2005, the Webbs deeded their property to the Hollons. In deposition, the Hollons testified that since they have owned the property, they have not cut any timber, altered the surface features of their property, or pushed any soil, rock, or other field material into any tributary on their property. They also denied diverting drainage waters, silt, or any other discharge from their property to any other property. They stated that they have not in any way disturbed the property that was deeded to them by the Webbs. In July 2007, Carlton and Hutchinson sued the Webbs and the Hollons. The Hollons moved for a summary judgment, stating: 1070823 4 "[Carlton and Hutchinson] have filed a complaint accusing all 'Defendants' of various misdeeds resulting in damage to their property. In fact, the Hollon Defendants did nothing to alter the parcel of real estate deeded to them by the Webbs. In this case, the Hollon Defendants are guilty of nothing other than owning and living on this parcel of property. "The evidence in this case is undisputed that the Hollons have no reason to be in the case. They are blameless and are due summary judgment." In support of their motion, the Hollons attached an affidavit from Lewis F. Webb, who averred: "2. Amanda Webb Hollon is my daughter. George Alexander Hollon is my son-in-law. On July 22, 2005, my wife Alice and I deeded a parcel of real estate to them. The real property we deeded to them joins the real property owned by me and my wife and appears to be the land referred to in the complaint filed by plaintiffs. ... "3. Any removal of timber and changes made to the surface features of this real property were made before my wife and I deeded this parcel to my daughter and son-in-law. No timber has been cut off this parcel and no alteration to the surface features of this parcel have been made since my daughter and son-in-law have owned this property." George Hollon also submitted an affidavit, averring: "2. My father-in-law, Lewis F. Webb, and my mother-in-law, Alice C. Webb, deeded a parcel of real estate to my wife and me on or about July 22, 2005. Since that date, my wife and I have not cut any timber off this parcel of real estate and have not altered any surface features of this parcel of 1070823 5 real estate. Any changes were made prior to our acquiring this real estate. "3. Neither my wife nor I have pushed soil, rock or any other field material into any tributary on the property we own. Neither my wife nor I have diverted drainage waters, silt or any other discharge from our property to any other property. In short, the parcel of real estate owned by my wife and I has not been disturbed since it was deeded to us." Carlton and Hutchinson filed a motion in opposition to the Hollons' motion for a summary judgment. In their motion, they argued, among other arguments, that the Hollons are aware of the existence of problems on the Hollons' property with respect to drainage and erosion and that they have not remedied the problems. In support of their motion, they submitted an affidavit from Vee Carlton stating that the unnatural erosion on her property caused by conditions on the Hollons' property is a continuous problem. She averred: "2. I am the co-owner of certain real property that adjoins that parcel of land owned by Defendants Amanda Webb Hollon and George Alexander Hollon. ... "3. The property owned by me continues to suffer from unnatural erosion problems caused by the flow of silt and other materials from the property owned by [the Hollons]. "4. I personally walked along the perimeter of my land this past weekend following last week's rain, and discovered that the ruts on [the Hollons'] 1070823 Carlton's affidavit was executed on February 4, 2008. 1 6 land are now deeper than they ever have been due to silt and other discharge that is coming from higher elevations on the Hollons' property. "5. It does not appear to me as though anyone has done anything to remedy the unnatural surface feature defects that are present on that real property owned by [the Hollons]. "6. The injury to my land continues to worsen and can only be remedied by active efforts on the part of [the Hollons] insofar as foreign materials enter my property from their property."1 Additionally, Carlton and Hutchinson submitted excerpts from the depositions of both of the Hollons in which they admitted that they were aware of drainage problems originating on their property and admitted that they had not taken any action to remedy those problems. After reviewing the submitted pleadings, depositions, and affidavits, the circuit court entered a summary judgment for the Hollons. Standard of Review "'The standard by which this Court will review a motion for summary judgment is well established: "'"The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact 1070823 7 and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present 'substantial evidence' creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); § 12-21-12(d)[,] Ala. Code 1975. 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 Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). "'"In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we 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)."' "Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999))." Baugus v. City of Florence, [Ms. 1061151, November 9, 2007] ___ So. 2d ___, ___ (Ala. 2007). Analysis Carlton and Hutchinson contend that the trial court erred in entering a summary judgment for the Hollons because, they 1070823 8 say, the Hollons, as owners of the subject property, are liable for not remedying the conditions on the subject property that are causing injury to their property. The Hollons argued in their motion for a summary judgment that they had not committed any of the alleged alterations to the subject property that form the basis of Carlton and Hutchinson's claims of negligence, private nuisance, trespass, and interference with the natural flow of water and the request for injunctive relief. In support of their summary- judgment motion, they presented evidence to the trial court indicating that they had not altered the subject property since the property was conveyed to them and that any alterations to the property were made before the property was conveyed to them. In Sloss Sheffield Steel & Iron Co. v. Nance, 216 Ala. 237, 113 So. 50 (1927), this Court held that a landowner may be held liable for failing to correct a condition on the landowner's property that was created by the previous landowner when that condition causes injury to an adjacent landowner's property, and the current landowner has had a reasonable time to correct the condition. 1070823 9 Here, Carlton and Hutchinson have presented substantial evidence to overcome the summary judgment. Carlton's affidavit and the admissions of the Hollons present substantial evidence creating a question for the jury to resolve as to whether the Hollons, by failing to remedy the conditions on their property, have injured the property of Carlton and Hutchinson and are liable for that damage. Therefore, the summary judgment for the Hollons is reversed. Conclusion The trial court's judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. Cobb, C.J., and See, Woodall, Smith, Bolin, Parker, and Murdock, JJ., concur. Lyons, J., concurs in the result.	August 29, 2008
c40a1b07-ac28-440a-ab8d-29206a217feb	Ex parte Antonia M. Hall and Carolyn Ann Lewis Hall. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. Antonia M. Hall and In re: State of Alabama v. Carolyn A. Lewis Hall) (Montgomery Circuit Court: CC06-1647; CC06-1648; Criminal Appeals : CR-06-0813; CR-06-0814). Writ Denied. No Opinion.	N/A	1070419	Alabama	Alabama Supreme Court	REL: 03/14/08 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, 2007-2008 _________________________ 1070419 _________________________ Ex parte Antonia M. Hall and Carolyn Ann Lewis Hall PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. Antonia M. Hall and In re: State of Alabama v. Carolyn A. Hall) (Montgomery Circuit Court, CC-06-1647 and CC-06-1648; Court of Criminal Appeals, CR-06-0813 and CR-06-0814) 1070419 2 LYONS, Justice. WRIT DENIED. NO OPINION. See, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Cobb, C.J., and Murdock, J., dissent. 1070419 3 COBB, Chief Justice (dissenting). I respectfully dissent from the denial of the petition for the writ of certiorari. The petitioners, Antonia M. Hall and Carolyn A. Hall, seek review of the Court of Criminal Appeals' decision under Rul 39(a)(1)(D), Ala. R. App. P., on the basis that the decision of the Court of Criminal Appeals conflicts with prior decisions. I do not believe that this petition could properly be denied on the rationale that the petition is procedurally insufficient because the Halls supposedly failed to present in sufficient detail the portions of the Court of Criminal Appeals' opinion as to which they assert the conflict exists. Any procedural failure on this point is remedied by the fact that the conflict of the Court of Criminal Appeals' opinion with Brady v. Maryland, 373 U.S. 83 (1963), is readily ascertainable, and the facts in the Court of Criminal Appeals' opinion, which is attached to the Halls' petition, are sufficient in themselves to support this Court's review. Further, I cannot conclude that the petition has no probability of merit. This petition shows that the prosecution engaged in serious violations of Brady and of the 1070419 4 trial court's discovery orders, which resulted in the trial court's dismissing the charges of burglary, theft, and fraudulent use of a credit card against the Halls. The State appealed the dismissal of the charges, and the Court of Criminal Appeals reversed the trial court's judgment. State v. Hall, [Ms. CR-06-0813, Sept. 28, 2007] ___ So. 2d ____ (Ala. Crim. App. 2007). The facts underlying the Brady violation and the violation of the trial court's discovery orders, as summarized by the Court of Criminal Appeals, are as follows: "Antonia Hall was indicted for third-degree burglary, a violation of § 13A-7-7, Ala. Code 1975, and first-degree theft, a violation of § 13A-8-3, Ala. Code 1975, for the theft of credit and debit cards, a television set, a laptop computer, and jewelry. Carolyn Hall was indicted for fraudulent use of a credit card, a violation of § 13A-9-14(b), Ala. Code 1975, for using one of the credit cards that her husband, Antonia, allegedly stole. "The record in both cases indicates the following. At the outset of the investigation in this matter, the Halls' attorney, Russell Duraski, discussed with law-enforcement officials the existence of a videotape that had been recorded at Calhoun Foods, the grocery store where Carolyn Hall was alleged to have used a stolen credit card. Duraski said he asked whether he could watch the videotape with investigators to determine whether the Halls were the people seen on the videotape using certain credit cards. The investigators told 1070419 5 him they would 'get with the prosecutors' and then let him view the tape with them. "The Halls' position was that they were not involved in the theft and use of the credit cards, and they are 'absolutely adamant' that they were not the people seen in the videotape. "Duraski was never given the opportunity to view the videotape, and the Halls were arrested. On October 13, 2006, the day the Halls' preliminary hearing was to be held, Duraski had a conversation with a deputy district attorney and law-enforcement officials during which it was agreed that the Halls would waive the preliminary hearing in exchange for production of discovery, including the videotape at issue. Duraski said he was told that he would have the videotape 'in a few days.' At that time, a police officer told Duraski he had the videotape. "The videotape was never produced, despite Duraski's repeated requests. Also, Duraski said he had been made aware that there was another videotape recorded at a business in Auburn. That tape also was not produced. The Halls filed a motion to compel discovery. At their arraignment on November 30, 2006, they again requested the videotape and made an oral motion to the trial court to supplement their written motion. On December 3, 2006, the trial court granted their motion to compel and ordered the prosecution to produce all discovery, including the videotape recorded at Calhoun Foods, on or before the close of business on December 8, 2006. "In mid-January 2007, Duraski said he was told that the Calhoun Foods videotape had been 'accidentally destroyed' and that it no longer existed. Duraski was provided with a photograph in lieu of the tape, but, he said, he was unable to make out anything about the person in the photograph. 1070419 6 "The trial court asked for an explanation from the State as to why it either had not provided the Calhoun Foods videotape to Duraski or why it continued to promise him the tape if it had been destroyed. In ruling that the indictments against the Halls were being dismissed, the trial court said, 'We went for months and months saying we're going to get you a tape when there wasn't one to get.' "The court continued its explanation for the dismissal of the indictments, saying: "'[T]hat is bad conduct on the part of the State, and we cannot just continue to make false representations like that. I mean, that is inappropriate. And Mr. Duraski's whole case, as I understand it from him, was whether or not these folks could be identified on the tape. In other words, if they were on the tape and you can identify them, then, fine, that speaks for itself. But even if you couldn't identify them, that didn't mean the case was going away. That just would tell Mr. Duraski, hey, I've got something good to argue at trial; you can't tell that's my folks. But the tape was very instrumental in his defense.' "The trial court then reiterated that it was dismissing the indictments because the State's conduct was improper, saying, '[Y]ou cannot continue for months and make representations that are not true. I mean, that is totally improper." State v. Hall, ___ So. 2d at ____ (references to record omitted). The law invests a trial court with the discretion to impose sanctions for violating discovery orders in criminal 1070419 ¹"This Court has for several years been using the phrase 'exceeded its discretion' rather than the phase 'abused its discretion.' The word 'abused' has a negative connotation this Court does not believe is useful in describing the judicial acts of our trial court judges, thus prompting us to use the word 'exceeded.' The standard of review remains the same. State v. Isbell, [Ms. 1061115, Nov. 30, 2007] ___ So. 2d ____, ____ n.3 (Ala. 2007). 7 cases by entering enter "such ... order[s] as the court deems just under the circumstances." Rule 16.5, Ala. R. Crim. P. Thus, the sanctions imposed must be reviewed to see if the trial court exceeded that discretion in imposing the sanctions. See, e.g., Jennings v. State, 965 So. 2d 1112, 1114 (Ala. Crim. App. 2006). Likewise, the sanctions imposed for a Brady violation are reviewed to see if the trial court exceeded its discretion. State v. Moore, 969 So. 2d 169, 181- 82 (Ala. Crim. App. 2006) (recognizing that, for a Brady violation, dismissal is an available sanction pursuant to the supervisory powers granted trial courts under Rule 16.5, Ala. R. Crim. P.); cf., e.g., United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002). "'When applying the abuse of discretion standard, a reviewing court is not free to merely [1] substitute its judgment for that of the trial court.'" Ex parte Anonymous, 803 So. 2d 542, 557 (Ala. 2001) (Lyons, J. concurring specially)(quoting In re Jane Doe 01-01, 141 Ohio 1070419 8 App. 3d 20, 23, 749 N.E.2d 807, 809 (2001) (citations omitted)). I agree with the Court of Criminal Appeals' statement in this case that, in fashioning a discovery sanction in a criminal case, the trial court must weigh "'the right of the accused to be given a fair trial'" against "'the societal interest in punishing one whose guilt is clear after he has obtained such a trial.'" ____ So. 2d at ____ (quoting United States v. Tateo, 377 U.S. 463, 466 (1964)). I further agree that dismissal of an indictment is "'"an extreme sanction that should be used with caution, and only when a lesser sanction would not achieve the desired result."'" ____ So. 2d at ____ (quoting State v. Moore, 969 So. 2d 169, 183 (Ala. Crim. App. 2006), quoting in turn State v. Carpenter, 899 So. 2d 1176, 1182 (Fla. Dist. Ct. App. 2005)). Thus, dismissal is the appropriate sanction when, in the exercise of its discretion, the trial court determines that, even with less severe sanctions and curative measures, a defendant, as a result of the prosecution's discovery violation, cannot be afforded a fair trial. The trial court here found that the government had engaged in "bad conduct," 1070419 9 that the Halls' "whole case" relied on the tape allegedly destroyed by the government, and that the tape was "very instrumental in [their] defense." In other words, by allegedly destroying the videotape, the prosecution destroyed the Halls' "whole defense." Even the Court of Criminal Appeals recognized that "it is difficult, if not impossible, for the Halls to refute the government's claims as to what was on the videotape if the videotape no longer exists." Hall, ____ So. 2d at ____. On this record, a reasonable probability exists that the Court of Criminal Appeals erred by replacing the trial court's judgment with its own in concluding that the Halls could get a fair trial with the imposition of lesser sanctions than dismissal after the destruction of the Halls' "whole defense." The Court of Criminal Appeals held that dismissal is an appropriate sanction for a Brady violation or a violation of a discovery order when the discovery violation is willful and irreparably prejudices the defense. A reasonable probability exists that the Court of Criminal Appeals erred in applying this holding here. The Court of Criminal Appeals found that the Halls were "no doubt prejudiced" by the absence of the 1070419 10 tape. The Court of Criminal Appeals then stated that it is "less clear" whether the government's misconduct was willful. Nevertheless, the Court of Criminal Appeals' opinion goes on to state convincingly why the law- enforcement officials' version of how the tape was "accidentally" destroyed while still in the possession of the grocery store is unbelievable. I note further that not one, but two tapes, were not produced, and that the second tape was not recorded at the same store as the first. This fact further highlights the absurdity of the government's tale that an "accident" at the grocery store prevented law enforcement from turning the evidence over to the defense. The Court of Criminal Appeals itself makes a convincing case that the tape must have been in the possession of law enforcement, that law enforcement promised to produce the tape, that law enforcement knew that the court had ordered production of the tape, and that law enforcement was nevertheless responsible for the disappearance or destruction of the tape. Therefore, on the record before us, a reasonable probability exists that the discovery violation was indeed willful; that the trial court did not exceed its discretion in dismissing the indictments; and that the Court of Criminal 1070419 11 Appeals erred in substituting its judgment for that of the trial court. In addition, I find merit in the Halls' statement that the Court of Criminal Appeals "suggests that a less extreme sanction should have been employed, then offers no appropriate less extreme sanction." (Halls' brief at ¶3.) The Court of Criminal Appeals apparently concludes that imposing the "sanction" of allowing the Halls to cross-examine prosecution witnesses and to elicit evidence regarding the unexplained loss of the tape "provides a better balance" between the Halls' right to a fair trial and "society's right to seek justice." As the Court of Criminal Appeals noted, society's right to seek justice is its right to "'punish[] one whose guilt is clear after'" a fair trial. Hall, ___ So. 2d at ____ (quoting United States v. Tateo, 377 U.S. at 466). The Halls' petition demonstrates a reasonable probability that the Court of Criminal Appeals erred in holding that the "sanction" of allowing the defense to cross-examine prosecution witnesses and to elicit evidence concerning the missing videotapes while inviting the prosecution to provide testimony about the supposed contents of the missing videotapes is sufficient to 1070419 12 permit a fair trial in this case. That is, the petition demonstrates that the Court of Criminal Appeals erred in substituting its judgment for that of the trial court, on the facts presented here and without any compelling legal authority. Further, I do not believe that this petition could properly be denied on the rationale that the status of the tape as exculpatory is speculative. I do not see how that rationale could be supported without a full review of the record in light of the fact that the videotape has been destroyed--at this point, it is at least equally speculative that the tape is inculpatory, i.e., that it does not show individuals other than the Halls. Under the circumstances, the Halls' inability to prove what is on the videotape should not work to the Halls' prejudice, given that the Halls are seeking review of the government's "bad conduct" in failing to make the tape available in the first place and then in destroying or failing to safeguard the tape. For these reasons, I believe this Court should issue the writ and fully review the issues raised in the Halls' petition.	March 14, 2008
ecfd2c0c-1364-4df9-8e79-81fbc18b2ad6	Ex parte Earnest Stokes. PETITION FOR WRIT OF HABEAS CORPUS (In re: State of Alabama vs. Earnest Stokes)	N/A	1070054	Alabama	Alabama Supreme Court	Rel: 03/07/08 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, 2007-2008 _________________________ 1070054 _________________________ Ex parte Earnest Stokes PETITION FOR WRIT OF HABEAS CORPUS (In re: State of Alabama v. Earnest Stokes) (Bibb Circuit Court, CC-07-007) WOODALL, Justice. Earnest Stokes filed this petition for a writ of habeas corpus challenging the Bibb Circuit Court's order of May 23, 2007, increasing the amount of Stokes's appearance bond and 1070054 2 imposing additional conditions upon his release. We grant the petition in part and deny it in part. On September 20, 2005, Syble Stokes was shot and killed. On March 31, 2006, Earnest Stokes ("Stokes"), Syble's husband, was arrested and charged, under § 13A-6-2(a)(1), Ala. Code 1975, with her murder. The district court of Bibb County initially set the amount of Stokes's appearance bond at $2,000,000. With the State's consent, the district court reduced the amount of the bond to $1,000,000. Stokes filed a motion to further reduce that bond, and the district court held a hearing on April 18, 2006, after which it entered the following order: "This cause coming before this court April 18, 2006, for a hearing on [Stokes's] motion to reduce bond, and after testimony taken ore tenus, it is ORDERED: "[Stokes] shall be released from Bibb County Jail upon completion of each of the following: "1. A secured appearance bond executed by [Stokes] and sufficient additional personal or corporate sureties to total SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00), and execution of a valid homestead waiver by all individuals and spouses of any individuals pledging any homestead. Execution by any single corporate surety will increase the amount of security pledged by $20,000.00. 1070054 3 "2. [Stokes] shall surrender to this Court any currently valid license allowing him to operate an aircraft. "3. This court will review all bonds and will determine the sufficiency thereof. "4. In addition to the above, all mandatory conditions of release on bond apply. Specifically, "a. [Stokes] must appear to answer and to submit to the orders and process of the court having jurisdiction of the case. "b. [Stokes] must refrain from committing any criminal offense. "c. [Stokes] shall not depart from the state of Alabama without leave of court. "d. [Stokes] must promptly notify the court of any change of address. "The provisions of this release order may be revoked or modified by the court for cause. This release order and any appearance bond executed in compliance with it will continue in force and effect until dismiss[al], acquittal or conviction of [Stokes] of the charges, unless sooner revoked or modified by the court. Upon report of a violation of any one of the above conditions, a warrant for [Stokes's] arrest will be issued, both in this case and for the additional charge of failure to appear." A secured appearance bond was executed in the amount of $750,000; the district court determined that the bond was sufficient, and Stokes was released from the Bibb County jail. 1070054 4 On February 15, 2007, Stokes was indicted for the murder of his wife. On that same date, the Bibb Circuit Court set Stokes's bail at $750,000, the amount previously set by the district court. Thus, upon his indictment, Stokes was not taken into custody. In March 2007, two of the persons who had pledged their real property to secure Stokes's appearance bond were allowed to withdraw as sureties, and Stokes was rearrested. See § 15- 13-117, Ala. Code 1975 ("The sureties of bail may, at any time before a conditional forfeiture is entered against them, exonerate themselves by surrendering the defendant to the jail ...."). See also Rule 7.6(c), Ala. R. Crim. P. ("At any time, a surety may surrender to the sheriff a defendant released, and the sheriff shall certify such surrender to the court."). On March 28, 2007, the State filed a motion seeking the revocation of Stokes's bond and requesting that the circuit court hold a hearing to review the sufficiency of the bond. On April 26, 2007, the Bibb Circuit Court held a hearing as requested by the State. The only witnesses were the two persons who had been allowed to withdraw as sureties on 1070054 Neither witness offered any testimony regarding whether 1 Stokes was likely to fail to appear in court. 5 Stokes's appearance bond. On May 23, 2007, the Bibb Circuit 1 Court entered the following order, increasing the amount of the appearance bond and imposing additional conditions upon Stokes's release: "The Court having considered the nature of the offense, the probability of conviction, and the likely sentence in this matter, finds these factors to be relevant to the risk of non-appearance. The Court also considered the weapon used in the commission of the crime, together with other relevant facts in this case. "Upon consideration of the above, it is ORDERED, ADJUDGED AND DECREED as follows, viz: "1. That Bond in this matter be established at ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($1,250,000.00); "2. That the Sheriff of Bibb County, Alabama, shall determine the sufficiency of any property located in this state and offered as security by any surety; "3. Upon release, [Stokes's] location shall be monitored by an electronic device attached to [Stokes's] body which shall be worn at all times. This monitoring device shall be provided at the expense of [Stokes] by a company approved by this Court; "4. [Stokes] shall upon release, deposit with the Circuit Clerk of Bibb County, Alabama, any Passport or Visa or any license issued for the operation of any aircraft, either 1070054 6 owned by [Stokes] or in which [Stokes] has any ownership interest; "5. [Stokes] shall be restricted in his travels, and shall be prohibited from leaving Bibb County, Alabama, without the written approval of the Court, except to travel across the county line for work; "6. [Stokes] is ORDERED to provide to the Circuit Clerk of Bibb County, Alabama, a work schedule verifying employment and hours of work; "7. [Stokes] shall be confined to his residence from 8:00 p.m. each night until 5:30 a.m. the following day; "8. [Stokes] shall report one time per week to the Bibb County Probation Office, and shall submit to random drug and alcohol screening." Stokes filed a motion for reconsideration of the May 23 order, which the circuit court denied. Stokes sought review of the circuit court's May 23, 2007, order by filing a petition for the writ of habeas corpus in the Court of Criminal Appeals. On September 19, 2007, the Court of Criminal Appeals denied the petition, without an opinion. Ex parte Stokes (No. CR-06-1731), ___ So. 2d ___ (Ala. Crim. App. 2007)(table). On October 3, 2007, Stokes sought de novo review of the decision of the Court of Criminal 1070054 7 Appeals by filing his petition for the writ of habeas corpus in this Court. See Rule 21(e)(1), Ala. R. App. P. Stokes seeks an order from this Court directing the circuit court to vacate its May 23, 2007, order increasing the amount of Stokes's appearance bond and imposing additional conditions on his release. According to the State, that order was the proper result of a review required by § 15-13-26, Ala. Code 1975. However, as we will explain, § 15-13-26 did not authorize the circuit court to increase the amount of the appearance bond or to impose additional conditions upon Stokes's release. Sections 15-13-20 through -26, Ala. Code 1975, deal with "the undertaking of bail" by a defendant and the defendant's sureties. In this context, the "undertaking of bail" is the bail bond itself. See Black's Law Dictionary 1562 (8th ed. 2004)(defining "undertaking," in relevant part, as "[a] bail bond"). Specifically, § 15-13-26 provides that "[t]he court before which any defendant is bound to appear may require him to enter into a new undertaking [of bail] when it appears to the court that the original undertaking [of bail] was insufficient when entered into or has since become 1070054 8 insufficient from any cause whatever." When two of the persons who had pledged their real property to secure Stokes's appearance bond were allowed to withdraw as sureties, the secured appearance bond, "the undertaking of bail," became insufficient. Consequently, Stokes was rearrested. Under § 15-13-26, it is clear, as Stokes admits, that the circuit court was entitled to condition his release upon a new, and sufficient, bail bond by Stokes and adequate sureties. However, the terms of § 15-13-26 do not contemplate an increase of the amount previously prescribed by the court or the imposition of additional conditions of release. See also § 15-13-119, Ala. Code 1975 (upon the exoneration of sureties, "[i]f there is no warrant of arrest pending for the defendant's arrest, then the original approving officer may discharge the defendant on his or her giving new bail in the same amount")(emphasis added); Rule 7.6(c)(after surrender of the defendant by a surety, "[t]he defendant may then obtain other sureties under the same conditions of release")(emphasis added). Consequently, we grant Stokes's petition in part, and direct the circuit court to vacate its order of May 23, 2007. 1070054 9 Although Stokes earlier posted a secured appearance bond in the amount of $750,000, he now contends that "the $750,000 is, in itself, excessive." Petition for writ of habeas corpus, at 2. Consequently, he seeks an order from this Court directing the circuit court "to set [his] bond within the statutory and common-law guidelines." Id. However, we pretermit discussion of the merits of this claim and deny the relief Stokes seeks. A petition for a writ of habeas corpus is the proper vehicle by which to challenge the setting of allegedly excessive bail. Ex parte Colbert, 717 So. 2d 868, 870 (Ala. Crim. App. 1998). However, such a petition must be filed within a reasonable time. See Rule 21(a)(3) and (c), Ala. R. App. P. As Stokes admits, he did not object to the bond amount of $750,000 until after his bond was increased to $1,250,000. His claim that the $750,000 bond amount is excessive comes too late, and we will not consider it. PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED. Cobb, C.J., and See, Lyons, Smith, Bolin, Parker, and Murdock, JJ., concur. Stuart, J., concurs in the result. 1070054 10 STUART, Justice (concurring in the result). A trial court is authorized to review the conditions of a defendant's release upon a showing of good cause, and I am concerned that the majority opinion may be interpreted as holding that the trial court was not authorized to review the conditions of Stokes's release. Although I agree with the majority that § 15-13-26, Ala. Code 1975, does not authorize a review of the conditions of release, the factors resulting in an insufficiency of the bond, as contemplated in § 15-13- 26, may provide good cause for modifying the conditions of the defendant's release. The trial court's authority to review the conditions of Stokes's release has its basis in Rule 7.4(b) and 7.5(b), Ala. R. Crim. P. Rule 7.4(b), Ala. R. Crim. P., provides: "If the defendant is in custody, the judge or magistrate may, for good cause shown, either on its own initiative or on application of either party, modify the conditions of release, after first giving the parties an adequate opportunity to respond to the proposed modification." Rule 7.5(b), Ala. R. Crim. P., provides: "(b) Hearing; Review of Conditions; Revocation of Release. If, after a hearing on the matters set forth in the motion [of the prosecutor seeking a revocation of release], the court finds that the defendant released has not complied with or has 1070054 11 violated the conditions of release, or that material misrepresentations or omissions of fact were made in securing the defendant's release, the court may modify the conditions or revoke the release." In his habeas petition, Stokes states: "On March 14, 2007, Robert and Sherry Vick, who had pledged their real property on April 18, 2006, to secure [Stokes's] bond, decided that they no longer wanted to act as a surety and secure [his] bond with their property. Their withdrawal from [Stokes's] bond resulted in his re-arrest that same day." The procedural facts of this case satisfy Rule 7.4(b), and the trial court had the authority to conduct a hearing to review the conditions of Stokes's release. Stokes, by his own admission, was "rearrested" because the Vicks withdrew as sureties; therefore, he was "in custody" for purposes of Rule 7.4(b). The State moved to revoke Stokes's bail, arguing that a material change in the status of Stokes's release had occurred. The trial court could, under Rule 7.4(b), consider the State's motion and conduct a hearing to determine whether good cause warranted amending the conditions of Stokes's release. In its motion to revoke Stokes's release, the State maintained: "The indictment of [Stokes] by the Bibb County Grand Jury represents a material change in the status of this matter. Said Grand Jury found 1070054 12 probable cause that [Stokes] shot Syble Stokes in the back of the head with a .22 caliber rifle while she was sleeping, and that [Stokes] fabricated evidence of an attack on his person by an unknown assailant which rendered him unconscious to the murder. "[Stokes] presents [a] substantial flight risk in light of his recent indictment and erosion of family support. [Stokes] is a trained and accomplished airplane pilot. [Stokes's] current bond amount is insufficient to ensure his presence for trial in light of the recent changes in circumstances. "§ 15-13-26, Code of Alabama, (1975) states: '[t]he court before which any defendant is bound to appear may require him to enter into a new undertaking when it appears to the court that the original undertaking was insufficient when entered into or has since become insufficient from any cause whatever.' (Emphasis added.) The fact that family members have removed property from [Stokes's] bond requires a hearing to review the sufficiency of said bond." The State, however, did not develop evidence at the hearing to support a finding that Stokes "ha[d] not complied with or ha[d] violated the conditions of release, or that material misrepresentations or omissions of fact [had been] made in securing the defendant's release." Rule 7.5(b), Ala. R. Crim. P. Evidence at the hearing included testimony from two of the exonerated sureties and the transcript of the preliminary hearing at which Stokes was ordered bound over to the grand jury. After considering the evidence, the trial 1070054 13 court made the following findings of fact in support of its order to amend the conditions of Stokes's release: "a. Testimony presented at the preliminary hearing suggested that Stokes shot and killed his wife of thirty-five years with a .22 rifle while she was sleeping in their bedroom because he feared she would take all of his money and possessions in a divorce. "b. Stokes attempted to hide his criminal act by staging a home invasion. He told police that he had been beaten unconscious with a brick by an intruder; however, the injuries he received from this alleged 'vicious' beating were minor. He also lied to police, denying he had bought .22 gauge ammunition two days before his wife's murder. "c. Evidence suggests that Stokes further attempted to hinder the investigation by burning his computer and destroying tangible evidence of the affair he was allegedly having with [C.B.]. Furthermore, Stokes instructed [C.B.] to lie to police about their relationship and warned her that no one would believe her if she did reveal their relationship. "d. Testimony at the preliminary hearing also indicates that Stokes admitted he killed his wife to [C.B.] and [another individual]. "e. If convicted, Stokes, a fifty-five-year-old man, is facing a potential life sentence." While each of these factual findings support the setting of bail in an amount outside the range recommended by the bail schedule to ensure Stokes's appearance for trial and to discourage him from attempting to further intimidate State's witnesses, destroy evidence, or hinder the investigation of 1070054 14 this case, these findings do not satisfy the requirements for amending the conditions of release as required by Rule 7.5(b), Ala. R. Crim. P. –- they do not indicate that Stokes violated a condition of his release or that material misrepresentations or omissions of fact were made in securing his release. Thus, the State did not satisfy its burden, and I conclude that Stokes is entitled to habeas relief for this reason and not, as the majority concludes, because § 15-13-26, Ala. Code 1975, does not authorize amending the conditions of his release. Additionally, the majority cites § 15-13-119, Ala. Code 1975, in support of its conclusion that new bail set for Stokes upon exoneration of the sureties had to remain in the same amount as the original bail. Section 15-13-119 provides: "If there is no warrant of arrest pending for the defendant's arrest, then the original approving officer may discharge the defendant on his or her giving new bail in the same amount." "[T]he word 'may' denotes a permissive act, as opposed to a mandatory act." Ex parte James, 836 So. 2d 813, 831 (Ala. 2002)(Houston, J., concurring specially). Therefore, § 15-13- 119 does not require, as the majority seems to conclude, that 1070054 15 the approving officer discharge the defendant on his giving new bail in the same amount as the original bail.	March 7, 2008
fd153fe8-5355-496a-a080-e7bed1655edc	Ex parte Jarrod Taylor. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jarrod Taylor v. State of Death Alabama)	N/A	1051315	Alabama	Alabama Supreme Court	REL:01/18/08 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, 2007-2008 _________________________ 1051315 _________________________ Ex parte Jarrod Taylor PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jarrod Taylor v. State of Alabama) (Mobile Circuit Court, CC-98-1328.60; Court of Criminal Appeals, CR-05-0066) BOLIN, Justice. We granted certiorari review to determine whether the Court of Criminal Appeals properly dismissed Jarrod Taylor's 1051315 2 appeal from the denial of his Rule 32, Ala. R. Crim. P., petition attacking his capital-murder conviction and death sentence, because the notice of appeal was signed by a foreign attorney who purportedly had not been admitted to practice law in Alabama under the rules of the Alabama State Bar governing admission of foreign attorneys pro hac vice. Taylor v. State (No. CR-05-0066, May 10, 2006), ___ So. 2d ___ (Ala. Crim. Appl 2006)(table). Taylor was indicted on four counts of capital murder. Count one charged Taylor with intentionally causing the deaths of Sherry Gaston, Bruce Gaston, and Steve Dyas, pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975. Counts two, three, and four charged Taylor with the capital offense of the murder of each of the three victims during the course of a robbery, see § 13A-5-40(a)(2). The jury found Taylor guilty of all four counts of capital murder. The jury recommended, by a vote of 7 - 5, that Taylor be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced Taylor to death. The Court of Criminal Appeals affirmed the conviction and the sentence of death. Taylor v. State, 808 1051315 3 So. 2d 1148 (Ala. Crim. App. 2000). This Court granted Taylor's petition for certiorari review and subsequently affirmed the judgment of the Court of Criminal Appeals. Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001). The United States Supreme Court denied Taylor's petition for a writ of certiorari. Taylor v. Alabama, 534 U.S. 1086 (2002). On July 31, 2002, Al Pennington, an Alabama attorney, timely filed a petition pursuant to Rule 32, Ala. R. Crim. P., challenging certain aspects of Taylor's conviction and sentence. According to the case-action summary, on August 30, 2002, Pennington submitted to the Alabama State Bar and to the Mobile Circuit Court applications for admission to the Alabama State Bar pro hac vice on behalf of New York attorneys Andrew Tauber, Monica J. Stamm, John D. Totorella, Jennifer R. Sandman, and Theodore V. Wells. The case-action summary indicates that on September 9, 2002, the clerk of the circuit court entered the following notation: "Admission to practice under Rule VII of the rules governing admission to the Alabama State Bar - Granted." On November 4, 2002, the State moved to dismiss certain claims in Taylor's Rule 32 petition. 1051315 4 At a hearing regarding Taylor's Rule 32 petition on February 28, 2003, the following exchange occurred between the trial judge and Andrew Tauber, one of the New York attorneys: "THE COURT: Okay. The in forma pauperis declaration, the Court is –- will show it's granted and a free transcript is ordered of these proceedings. "MR. TAUBER: Thank you very much, Your Honor. And I must confess now, my ignorance of Alabama procedure, I don't know whether we need to formally move to be appointed together, in conjunction with, or separately from Mr. Pennington as counsel, I'm just throwing myself on the Court with my ignorance. "THE COURT: Well, it's my understanding that -- I mean, when you was -- the pro hac vice was previously approved by this Court, you are co- counsel with Mr. Pennington. "MR. TAUBER: Okay. Very good. I just want to make sure we dot every 'i.' "THE COURT: Now, grant[ed], I know Mr. Pennington is not present and requested to be excused, but I don't think, and the State can correct me if I'm wrong, I don't think I can relieve Mr. Pennington from the case, because we must still have a licensed attorney from the State of Alabama. "MR. TAUBER: I'm not asking that he be relieved, I just wanted to make sure that we are in good standing with this Court. "THE COURT: Yes, sir. Yes, sir. All the paperwork has been filed with the Alabama State Bar and -- so we are procedurally in correct order as it relates to your representation of the defendant in these proceedings." 1051315 5 On May 5, 2003, Taylor filed an amended Rule 32 petition. On October 23, 2003, the circuit court granted the State's motion for dismissal of certain claims in Taylor's Rule 32 petition. The other claims in Taylor's Rule 32 petition remained pending. On February 2, 2004, the State filed a motion stating that two of Taylor's claims should not have been dismissed based on the recently released case of Ex parte Gardner, 898 So. 2d 690 (Ala. 2004). On February 11, 2004, the trial court held a hearing and set aside its previous order dismissing the two claims based on Gardner and allowed discovery on those two claims. On July 28, 2005, the State submitted to the trial court a proposed order stating that the court's order of partial dismissal entered on October 23, 2003, completely disposed of Taylor's Rule 32 petition. On August 1, 2005, the trial court signed the State's proposed order. On September 9, 2005, Taylor timely filed a notice of appeal with the trial court. The notice of appeal was signed by New York attorney Theodore Wells and on behalf of Alabama attorney Al Pennington. The notice was sent to the Court of Criminal Appeals. 1051315 The Court of Criminal Appeals' clerk's office contacted 1 the Alabama State Bar regarding Attorney Wells's pro hac vice status. An appellate court, however, may not rely on facts outside the record. "'"[The record] is the sole, conclusive, and unimpeachable evidence of the proceedings in the lower court. If incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on the hearing in the appellate court. Accordingly, the record cannot be impeached, changed, altered, or varied on appeal by an ex parte unauthorized certificate of the trial judge or of the clerk, nor by statements of the briefs of counsel nor by affidavits or other evidence or matters dehors the 6 On January 4, 2006, the Court of Criminal Appeals entered the following order: "After [Taylor v. State of Alabama] was docketed, the circuit clerk filed an amended transmittal of the notice of appeal wherein Attorney Theodore V. Wells, Jr., was added as counsel for the appellant. Because Attorney Wells is not an attorney with a general license to practice law in the State of Alabama, he was asked to furnish the clerk of this Court proof of his admission by the trial court to appear pro hac vice and to certify whether or not that admission had been rescinded. Although Attorney Wells's response was initially accepted as adequate, a question has now arisen as to whether or not Attorney Wells has ever been admitted to practice before the trial court pro hac vice in compliance with Rule VII of the Rules Governing Admission to the Alabama State Bar. Additionally, this Court has conferred with the Alabama State Bar and was informed that there is no order on file granting an application by Attorney Wells for admission pro hac vice.[1] 1051315 record."'" Liberty Nat'l Life Ins. Co. v. Patterson, 278 Ala. 43, 48, 175 So. 2d 737, 741 (1965)(opinion on rehearing)(quoting Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 528-29, 113 So. 587, 587 (1927)); see also Ex parte Jett, [Ms. 1060281, July 20, 2007] So. 2d (Ala. 2007)(See, J., concurring specially). Both Taylor and the State filed proposed orders with 2 Judge Herman Y. Thomas. On March 23, 2006, Judge Thomas signed the proposed order submitted by the State finding that Attorney Wells had not been admitted pro hac vice to represent Taylor. 7 "Upon consideration of the above, the Court of Criminal Appeals orders that Theodore V. Wells, Jr., shall be removed as counsel of record for the appellant in the above cause until this Court receives proof of his admission by the trial court pursuant to Rule VII or until proper application is made to this Court pursuant to that rule and he is subsequently admitted by this Court." On January 5, 2006, the State moved the Court of Criminal Appeals to dismiss Taylor's appeal on the ground that Attorney Wells was not admitted pro hac vice in the Mobile Circuit Court. The Court of Criminal Appeals remanded the case to the trial court for clarification as to whether Attorney Wells had been granted pro hac vice status. The Court of Criminal 2 Appeals' order provides, in pertinent part: "The State has moved that we dismiss this appeal because the notice of appeal was signed by an attorney who had not been admitted to practice law 1051315 8 in Alabama. Because of discrepancies in the record we remanded this case to the circuit court for that court to clarify whether attorney Theodore Wells, an attorney licensed in the State of New York, had been granted pro hac vice status to practice law in the State of Alabama. The circuit court has filed its return with this Court. "The circuit court's order on remand states: "'On August 1, 2005, this Court entered its final order summarily dismissing Petitioner Jarrod Taylor's corrected first amended Rule 32 petition. On September 9, 2005, Jarrod Taylor, through Foreign Attorney Theodore V. Wells, Jr., filed his notice of appeal. "'On March 9, 2006, the Alabama Court of Criminal Appeals entered an order remanding Taylor's case to this Court with instructions "to clarify whether Wells's request for pro hac vice status was granted and, if so, when it was granted. Due return should be filed within 45 days from the date of this order." This Court now enters this order on remand to comply with the appellate court's directive. "'Upon thorough consideration and review of the record and the pleadings that have been filed by Petitioner Taylor and State of Alabama, this Court finds that it did not admit Foreign Attorney Theodore V. Wells, Jr., to represent Jarrod Taylor pro hac vice in this matter. So to answer the Alabama Court of Criminal Appeals' question, Foreign Attorney Theodore V. Wells, Jr., was not admitted pro hac vice to represent Jarrod Taylor during his Rule 32 proceedings in this Court.' 1051315 9 "(Emphasis added.) Both parties have filed responses to the circuit court's order on remand. "In this case, the notice of appeal was signed by one individual, Theodore Wells, an attorney who had not been granted pro hac vice status –- an attorney who was not ... admitted to practice law in the State of Alabama. The Alabama Supreme Court in Black v. Baptist Medical Center, 575 So. 2d 1087, 1089 (Ala. 1991), held that any documents filed by a foreign attorney who has not been granted pro hac vice status are a nullity. Accordingly, the notice of appeal filed in this case is a legal nullity. Because no effective notice of appeal was filed, this case is due to be dismissed. Rule 4, Ala. R. App. P. "Taylor's remedy, if any, is to file a petition for postconviction relief pursuant to Rule 32.1(f), Ala. R. Crim. P., as amended effective June 1, 2005, seeking an out-of-time appeal from the denial of his Rule 32 petition. "It is hereby ordered that this appeal is due to be, and is hereby, dismissed." Taylor filed a petition for a writ of certiorari with this Court. Analysis Rule 3(a), Ala. R. App. P., provides that a notice of appeal shall be filed within the time allowed by Rule 4, Ala. R. App. P. Rule 3(c) sets the form and content of a notice of appeal. The notice of appeal, filed within the time period prescribed by Rule 4, "shall specify the party or parties 1051315 10 taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." Rule 3(c), Ala. R. App. P. Rule 3 is intended to provide a uniform and simplified method for taking an appeal and to ensure that effective notice of appeal is given. The opposing party should be notified that an appeal has been taken from a specific judgment in a particular case. The only jurisdictional requirement for an appeal is the timely filing of a notice of appeal. Edmondson v. Blakey, 341 So. 2d 481 (Ala. 1976). "Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional." Committee Comments to Rule 3, Ala. R. App. P. "The spirit of the [Alabama Rules of Appellate Procedure] is recognized and restated to insure the just, speedy and inexpensive determination of every appellate proceeding on its merits. The only jurisdictional requirement rule in the entire rules is the timely filing of the notice of appeal. Nothing in the rules is designed to catch the unwary on technicalities. Jones v. Chaney & James Constr. Co., [399 F.2d 84 (5th Cir. 1968)]. A simple statement indicating what judgments the appellant appeals from is all that is required." Edmondson, 341 So. 2d at 484. 1051315 11 Rules 3(e), Ala. R. App. P., provides that each notice of appeal be accompanied by a docketing statement. The docketing statements are Form 24 (an appeal to the Supreme Court), Form 25 (an appeal to the Court of Civil Appeals), or Form 26 (an appeal to the Court of Criminal Appeals), appended to the Alabama Rules of Appellate Procedure. Although no signature is required on the notice of appeal under Rule 3(c), a signature is required on the docketing statement, as set out in Rule 3(e). Rule 3(e) goes on to provide that if the notice of appeal is not accompanied by a docketing statement, "the clerk shall accept the notice of appeal and shall inform the person filing it of the requirements of this rule, and the appellant, or, if the appellant is represented by counsel, then the appellant's attorney, shall promptly file a properly completed docketing statement. The clerk of the trial court, when serving the notice of appeal as specified in this rule, shall attach thereto a copy of the docketing statement, if available. If, on the date the notice of appeal is served, the docketing statement is not available, it shall be served on those persons on whom the notice of appeal was served as soon as it becomes available. For the failure to comply with the requirements of this rule, the appellate court in which the appeal is pending may make such orders as are just, including an order staying the proceedings until the docketing statement is filed or, after proper notice, an order dismissing the appeal; and, in lieu of any orders or, in addition to any orders, the court may treat the failure to comply with the requirement of this rule as contempt of court." 1051315 12 As stated above, there is no requirement under Rule 3, Ala. R. App. P., that the notice of appeal contain a signature. However, Rule 25A, Ala. R. App. P., provides: "Every brief, motion, or other paper presented to an appellate court for filing must be signed by at least one attorney of record or, in a case in which a party is proceeding pro se, by the party. The brief, motion, or other paper must include the signer's address and telephone number. Unless a rule or statute provides otherwise, a brief, motion, or other paper need not be verified or accompanied by an affidavit. "The court shall strike an unsigned brief, motion, or other paper unless the omission is promptly corrected after it is called to the attention of the attorney or party filing it. The signature requirement is to be interpreted broadly, and the attorney of record may designate another attorney to sign the brief, motion, or other paper for him or her. When a party is represented by more than one counsel and counsel reside in different locations, it is not necessary to incur the expense of sending the brief, motion, or other paper from one person to another for multiple signatures. If a brief, motion, or other paper is filed electronically, an electronic signature is an original signature under this rule." (Emphasis added.) In the present case, Taylor's notice of appeal specifies that Taylor is appealing; it designates the trial court's August 1, 2005, order as the order appealed from; and it names the Court of Criminal Appeals as the court to which the appeal 1051315 13 is taken. The only defect complained of by the State and relied upon by the Court of Criminal Appeals in dismissing Taylor's appeal is that the notice of appeal was signed by a foreign attorney who allegedly had not been admitted to practice in Alabama pro hac vice. Before 2006, Rule VII of the Rules Governing Admission to the Alabama State Bar required an out-of-state attorney wishing to appear pro hac vice in a court in the State of Alabama to file a verified application for admission to practice in the court where the action was pending and to serve a copy of that application with a filing fee in the amount of $100 on the Alabama State Bar. Rule VII(D). Once a copy of the application and the filing fee were submitted to the State Bar, the Bar prepared a statement and submitted that statement to the court in which the case was pending. Rule VII(D). No pro hac vice application was granted before the statement from the State Bar had been filed with the court. Once this statement was received, the court held a hearing on the application and issued an order granting or denying the application. Rule VII(D). 1051315 14 Effective September 19, 2006, this Court amended Rule VII regarding pro hac vice admissions of pro bono counsel in cases involving indigent criminal defendants. The 2006 amendments omitted certain requirements for pro hac vice admissions of pro bono counsel in an effort to facilitate the provision of defense services to indigent defendants by foreign attorneys. Committee Comments to Rule VII. Rule VII(D) now provides that applications by pro bono counsel no longer need be accompanied by a filing fee and must be filed no later than the first occasion on which the pro bono counsel files any pleading or paper with the court or otherwise personally appears. A hearing is no longer required for applicants acting as pro bono counsel, and no statement from the State Bar is required for pro bono applicants, although a copy of the verified application must still be filed with the State Bar. It appears that the trial court's record in the present case supports Taylor's contention that the trial court had granted Wells's pro hac vice application. The case-action summary indicates that Wells was admitted pro hac vice in 2002, and the trial court's statements at the hearing on February 28, 2003, indicate that Wells and several members of 1051315 15 his firm had been so admitted. Although the Court of Criminal Appeals relied upon a 2006 statement prepared by the State and signed by the trial court, this statement appears to be incorrect. Also, the Court of Criminal Appeals' statement that the Alabama State Bar has no order on file granting an application by Wells for admission pro hac vice conflicts with the trial court's own docket sheet, because the trial court cannot grant pro hac vice status until it receives a statement from the Alabama State Bar. Certainly, the State would have objected in 2002 had the trial court failed to receive a statement as then required under Rule VII(D) and the trial court had nonetheless granted Wells's pro hac vice application. Even if we assume that Wells was not properly admitted to practice pro hac vice in Taylor's case, our caselaw indicates that a notice of appeal, even if technically deficient, is valid if "the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice." Edmondson, 341 So. 2d at 483. The defect on Taylor's notice –- a signature of an attorney purportedly not admitted to practice in Alabama –- is not grounds for dismissal because 1051315 We likewise find no original-signature requirement in the 3 Alabama Rules of Criminal Procedure for a notice of appeal. 16 a signature is not a jurisdictional requirement for a notice of appeal. In Dunning v. New England Life Insurance Co., 890 So. 2d 92 (Ala. 2003), this Court addressed the issue whether a timely filed copy of an original notice of appeal was acceptable even though the notice had been transmitted by a facsimile machine. We stated that the only jurisdictional requirement for a notice of appeal is that the notice be timely filed and that absent a showing that the alleged defect in the notice of appeal prejudiced the adverse party, an appeal will not be dismissed on the basis of the defect. We also stated that neither the Alabama Rules of Appellate Procedure nor the Alabama Rules of Civil Procedure require that a notice of appeal bear an original signature and held that the timely filed copy of the original notice of appeal was acceptable under the Alabama Rules of Appellate Procedure.3 Relying on Dunning, supra, this Court in Ex parte Barrows, 892 So. 2d 914 (Ala. 2004), held that the filing in 1051315 17 the circuit court of the complaint previously filed in the probate court with the word "probate" marked out and the word "circuit" inserted in its place in the style and the filing of the circuit court cover sheet constituted an adequate notice of appeal from the probate court to the circuit court. In Ex parte Soule, 892 So. 2d 879 (Ala. 2004), the Court of Criminal Appeals summarily dismissed an appeal from a Rule 32, Ala. R. Crim. P., petition. In the circuit court, the Rule 32 petitioner filed a cover letter, which was in his own handwriting and signed and dated, along with a notice-of- appeal form from the circuit court. The notice-of-appeal form was not signed by the petitioner but was completed in the petitioner's own handwriting. We reversed the judgment of the Court of Criminal Appeals dismissing the appeal, stating: "This Court has stated that 'even where the notice of appeal fails to comply with Rule 3(c),' Ala. R. App. P., appeal can still lie if 'the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice.' Edmondson v. Blakey, 341 So. 2d 481, 483 (Ala. 1976). The documents [the petitioner] filed are sufficient to invoke appellate jurisdiction under Rule 3. The Court of Criminal Appeals could reasonably infer from [the petitioner's] request to the clerk in the cover letter to 'please file this notice of appeal of Rule 32 to the Alabama Court of Criminal Appeals' [the petitioner's] intent to appeal. That court could also ascertain from the 1051315 18 information the petitioner included on the notice- of-appeal form and the cover letter the judgment [the petitioner] was appealing, the date of the judgment, the date of the filing, and the date of [the petitioner's] conviction." 892 So. 2d at 881. In McLin v. State, 840 So. 2d 937 (Ala. Crim. App. 2002), the defendant sought postconviction relief from his first- degree-burglary conviction. The trial court denied the petition. The defendant appealed, and the Court of Criminal Appeals dismissed the appeal without an opinion, on the grounds that the defendant had failed to perfect his appeal because the defendant filed only the docketing statement and neither he nor his counsel had signed that form. However, the Court of Criminal Appeals granted McLin's application for rehearing, holding that the notice of appeal was sufficient. On rehearing, the Court of Criminal Appeals issued an opinion, in which it stated: "There is no express requirement in the Alabama Rules of Appellate Procedure that a notice of appeal filed in a criminal case be signed by the appealing party or by his or her counsel. Certainly Rules 3(a)(2) and 3(c) contain no such requirement. Both the rules and the caselaw interpreting the rules 2 indicate that the only jurisdictional prerequisite to an appeal to this Court is the timely filing of the notice of appeal, and both state and federal caselaw suggest that appellate rules should be 1051315 19 liberally construed so as not to 'catch the unwary on technicalities.' Edmondson [v. Blakey], 341 So. 2d [481,] 483 [(Ala. 1976)]. Based on the plain language of Rule 3(c) and the caselaw cited above, we hold that a notice of appeal does not have to be signed by an appellant or by his or her attorney. Jurisdiction vests with this Court when a notice of appeal that substantially complies with the requirements of Rule 3(c), Ala. R. App. P., is timely filed. _______________ " Rule 2(a) provides that '[a]n appeal shall be 2 dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court' (emphasis added), but Rule 2(a)(2) provides that dismissal is discretionary with the appellate court if an appellant fails to timely file a brief, takes a frivolous appeal, fails to prosecute the appeal, or fails to comply substantially with the rules. The discretionary language of Rule 2(a)(2), as opposed to the mandatory language and specific reference to jurisdiction in Rule 2(a)(1), suggests that any defect in a notice of appeal, other than its timeliness, is not jurisdictional." 840 So. 2d at 941-42. Our caselaw concerning defects in notices of appeal is consistent with the caselaw of the United States Supreme Court. In Becker v. Montgomery, 532 U.S. 757 (2001), the United States Supreme Court addressed the question whether "'when a party files a timely notice of appeal in district court, ... the failure to sign the notice of appeal require[s] the court of appeals to dismiss the appeal.'" 532 U.S. at 1051315 20 760. Becker, an inmate proceeding pro se, had timely filed his notice of appeal, on which he had typewritten, but not signed, his name. The United States Court of Appeals for the Sixth Circuit dismissed Becker's appeal on the ground that Becker's failure to sign his notice of appeal was jurisdictional "and therefore not curable outside the time allowed to file the notice." 532 U.S. at 760. The Supreme Court held that Rule 11, Fed. R. Civ. P., requires a signature on the notice of appeal. However, the failure to sign a timely filed notice of appeal was curable. "[I]mperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court." 532 U.S. at 767. Rule 3, Fed. R. App. P., is similar to Rule 3, Ala. R. App. P. In addressing the Federal Rules of Appellate Procedure, Federal Practice and Procedure notes that "[t]he signature and address of the appellant's attorney should [be included], but failure to sign the notice should not defeat the appeal." Charles Alan Wright et al., Federal Practice and Procedure § 3949.4 (3d ed. 1999). "The great hallmark of Rule 3, both in its language as amended over the years and in the 1051315 21 construction the courts have put upon it, is liberality. The rulemakers and the judges have wanted to be sure that a possibly meritorious appeal is not denied its day in court because the appellant -- or more often the appellant's lawyer -- has left some i undotted or some t uncrossed." Wright et al., § 3949.6. In the present case, any purported defect in having Wells sign the notice of appeal is not grounds for the dismissal of Taylor's appeal. Taylor's notice of appeal notifies the appellate court of the appeal and notifies opposing counsel that he is taking an appeal. Rule 25A, Ala. R. App. P., provides that an unsigned brief, motion, or other paper presented to an appellate court for filing can be corrected. Furthermore, the State has not shown any prejudice caused by Wells's signature on the notice of appeal. The State did not even object to Wells's pro hac vice representation of Taylor until 2005, even though Wells began representing Taylor in 2002. The Court of Criminal Appeals relies solely on Black v. Baptist Medical Center, 575 So. 2d 1087 (Ala. 1991), in dismissing Taylor's appeal. In Black, an out-of-state 1051315 22 attorney, who was neither licensed to practice law in the State of Alabama nor admitted pro hac vice, filed a complaint against a hospital on behalf of a patient. The trial court concluded that the complaint was untimely filed, and this Court agreed. Although the attorney did submit, along with the complaint, a motion to appear pro hac vice, that motion was not accompanied by a letter of introduction and recommendation to the circuit court from a member of the Board of Commissioners of the Alabama State Bar. Nor did a member of the board personally introduce and recommend the attorney to the court. Therefore, the motion did not comply with the requirements of Rule VII. Approximately two months after the statute of limitations had run, an attorney who was licensed to practice law in Alabama filed a notice of appearance on the patient's behalf. However, this Court held that this did not cure the ineffective filing by the out-of-state attorney. Black is distinguishable from the present case because Black involved a complaint, and, pursuant to Rule 11, Ala. R. Civ. P., a complaint must be signed by at least one of the party's attorneys of record, and the attorney's signature means that the attorney has read the complaint, that to the 1051315 We note that although Rule 25A, Ala. R. App. P., provides 4 a remedy when a paper filed with an appellate court is not signed, this is in contrast to Rule 11, Ala. R. Civ. P., which provides that if a complaint is not signed or is signed with an intent to defeat the rule, the complaint may be stricken as though the complaint had never been served. 23 best of his or her knowledge there are good grounds to support it, and that it is not interposed for delay. As stated 4 above, the only jurisdictional requirement of a notice of appeal is its timely filing. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken. Taylor's notice of appeal meets these requirements; the only purported defect is that it is signed by Wells, who purportedly was not admitted to practice pro hac vice. We are mindful that the rules governing authorization to practice law are very important, as are the Alabama Rules of Appellate Procedure, which provide that the rules "shall be construed so as to ensure the just, speedy, and inexpensive determination of every appellate proceeding on its merits." Rule 1, Ala. R. App. P. To dismiss Taylor's appeal based on the peculiar facts in this case would be to elevate form over substance. 1051315 24 Conclusion The Court of Criminal Appeals erred in dismissing Taylor's appeal on the ground that Wells, who signed the notice of appeal, had not been granted pro hac vice status. Accordingly, its judgment is reversed, and the cause is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	January 18, 2008
d725487b-4188-4d49-b5ed-c6dc72671ef6	Ex parte Thomas W. Singleton. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: D & E Investments, L.L.C., d/b/a Kiva Dunes v. Thomas W. Singleton)	N/A	1061730	Alabama	Alabama Supreme Court	REL: 07/25/2008 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, 2008 _________________________ 1061730 _________________________ Ex parte Thomas W. Singleton PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: D&E Investments, L.L.C., d/b/a Kiva Dunes v. Thomas W. Singleton) (Mobile Circuit Court, CV-04-2688; Court of Civil Appeals, 2051014) LYONS, Justice. 1061730 2 D&E Investments, L.L.C., d/b/a Kiva Dunes ("Kiva Dunes"), appealed to the Court of Civil Appeals from a judgment of the trial court awarding permanent-total-disability benefits to Thomas W. Singleton pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975. The Court of Civil Appeals concluded that Kiva Dunes did not receive proper notice of Singleton's alleged work-related injury, and it reversed the judgment and remanded the case. D&E Invs., L.L.C. v. Singleton, [Ms. 2051014, August 24, 2007] ___ So. 2d ___ (Ala. Civ. App. 2007). Singleton petitioned this Court for a writ of certiorari, alleging that the Court of Civil Appeals' decision conflicts with prior decisions of this Court and the Court of Civil Appeals condemning reversal of a trial court's judgment in a workers' compensation case if the trial court's findings are supported by substantial evidence. We reverse and remand. I. Factual Background and Procedural History The Court of Civil Appeals stated the case as follows: "Singleton sued his employer, Kiva Dunes, seeking to recover workers' compensation benefits. Singleton's complaint alleged that he had injured his back in a workplace accident on November 8, 2003. Following a trial, the trial court entered a judgment finding that Singleton had provided proper 1061730 3 notice of his alleged work-related injury and awarding Singleton permanent-total-disability benefits. In its judgment, the trial court made the following pertinent factual findings: "'2. [Singleton] worked as an owner/operator of one or more convenience stores between 1986 and December of 2000. Following his selling his convenience stores in 2000, he next worked for ... Kiva Dunes, from October 30, 2002[,] until the time of his date of injury on November 8, 2003. "'3. While employed at Kiva Dunes, [Singleton] worked as a golf cart attendant. He testified that his job duties included the cleaning and preparation of the golf carts for use by the members of the Kiva Dunes golf club. This also included preparation of [the golf carts] after [each use] for the next person's use, including emptying out any trash from the golf carts .... [Singleton] also testified that at the end of each day after cleaning all of the golf carts and preparing them for the next day's use, it was part of his specified duties to take all the trash that had been emptied into a 55-gallon trash can, bring that over to a nearby [D]umpster-type trash container, and to empty that 55-gallon can into the trash bin. It was while he was in the performance of his duties emptying that 55-gallon trash can on the evening of November 8, 2003[,] that [Singleton] testified that he hurt his back. "'4. ... [Singleton] further testified that he came back to work the following day[, November 9, 2003,] and worked his regular shift. 1061730 4 "'5. ... [Singleton] testified that he telephoned the office [on November 10, 2003,] to talk to his supervisor, Mark Stillings .... "'6. [Singleton] specifically testified that he told Mr. Stillings that he would not be able to come to work the following Friday, November 14, 2003, which was his next scheduled day to work. In particular, [Singleton] testified that he informed Mr. Stillings that the reason he would not be able to come to work that following Friday was that he had injured his back lifting the trash can. "'7. Mark Stillings also testified at trial. It is the court's interpretation of his testimony that, although he does not recall [Singleton's] reporting to him that [Singleton] stated that he injured his back emptying the garbage can, neither was [Stillings] able to specifically deny that [Singleton] had told him that. In short, it appeared more that Mr. Stillings'[s] testimony was simply that he did not remember that he had been told by Mr. Singleton of the injury while emptying the trash. ... "'.... "'9. Mark Stillings testified at trial that he was fully aware that one of the specific duties which [Singleton] was required to perform at Kiva Dunes was the emptying of the 55-gallon trash container at the end of the day. The court hereby finds that when [Singleton] reported to Mr. Stillings that he had hurt his back while emptying the trash can, this constituted sufficient notice to [Kiva Dunes] that this 1061730 5 was an injury which occurred within the line and scope of his employment. Under the authority of Russell Coal Company v. Williams, 550 So. 2d 1007 (Ala. Civ. App. 1989), the court finds that this constituted notice which was sufficient as to "put a reasonable man on inquiry that the injury is work-related." "'.... "'17. ... "'.... "'(b) [Singleton] provided adequate notice to his supervisor, Mr. Mark Stillings, on the morning of November 10, 2003[,] when he reported to Mr. Stillings that he injured his back while emptying the trash can.' "Singleton's deposition testimony, taken on August 23, 2004, was admitted into evidence at trial. In his deposition testimony, Singleton testified that he told his supervisor, Mark Stillings, on November 10, 2003, that he had injured his back while 'emptying the trash can.' The record on appeal also contains a transcript of an April 16, 2004, conversation between Singleton and Kiva Dunes' workers' compensation insurance adjuster. In that conversation, Singleton stated that he had told Stillings on November 10, 2003, that he had injured his back while 'emptying the trash can.' At trial, however, Singleton testified that he had told Stillings on November 10 that he had injured his back while 'emptying the trash can at work Saturday night.' "Singleton did not return to work at Kiva Dunes following his telephone conversation with Stillings on November 10, 2003. Singleton subsequently 1061730 6 received treatment for his back injury through his employer-provided health insurer. The record indicates that Singleton made an initial claim for workers' compensation benefits on April 1, 2004." ___ So. 2d at ___. The Court of Civil Appeals concluded "that Kiva Dunes was not given proper notice of Singleton's alleged work-related injury within the 90-day period prescribed by § 25-5-78, Ala. Code 1975," and it reversed the trial court's judgment awarding Singleton workers' compensation benefits. ___ So. 2d at ___. II. Standard of Review "'On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996). The Court of Civil Appeals, in turn, is bound by Ala. Code 1975, § 25-5-[81](e), which provides that legal issues are to be reviewed de novo and requires that the judgment of the trial court be affirmed if its factual findings are supported by substantial evidence." Ex parte Fort James Operating Co., 895 So. 2d 294, 296 (Ala. 2004). III. Analysis Singleton argues that the trial court's conclusion that he provided adequate notice of a work-related injury to his 1061730 7 supervisor was a factual finding that should not be disturbed on appeal and that, by reviewing that finding, the Court of Civil Appeals substituted its judgment for that of the trial court. Kiva Dunes argues that the only factual determination the trial court had to make was exactly what information Singleton reported to his supervisor. Kiva Dunes then argues that whether that information constituted sufficient notice under the Workers' Compensation Act is a purely legal issue. In his special concurrence to the Court of Civil Appeals' opinion, Judge Moore discussed the trial court's resolution of the conflicting testimony offered by Singleton: "At trial, the parties disputed the exact wording [Singleton] used to notify [Kiva Dunes] of his back injury. On direct examination, [Singleton] testified that during a telephone conversation with his supervisor on the Monday morning following his injury, [Singleton] told the supervisor that he had injured his back while 'emptying the trash can at work Saturday night.' [Kiva Dunes] objected to that testimony on the ground that it conflicted with [Singleton's] pretrial statement to a workers' compensation insurance claims adjuster and [Singleton's] deposition testimony, in which [Singleton] had consistently stated that he merely said he had hurt his back 'emptying the trash can.' The trial court overruled that objection, but it indicated that it would consider the inconsistency when weighing the evidence and determining the content of the telephone conversation. After reviewing all the evidence, the trial court made a specific determination that [Singleton] had merely 1061730 8 stated in the telephone conversation that he had injured his back 'while emptying the trash can.'" D&E Investments, ___ So. 2d at ___ (Moore, J., concurring specially). Singleton does not challenge the trial court's factual determination, favorable to Kiva Dunes, that Singleton told his supervisor only that he had hurt his back "emptying the trash can." Therefore, the issue presented by this case is whether the notice Singleton provided was sufficient. In Ex parte Brown & Root, Inc., 726 So. 2d 601, 602 (Ala. 1998), this Court noted that § 25-5-78, Ala. Code 1975, "requires that an employer be given written notice of a job-related injury so that the employer can 'make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims.'" (Quoting Russell Coal Co. v. Williams, 550 So. 2d 1007, 1012 (Ala. Civ. App. 1989).) The Court then recognized that "written notice is not required if the employer had actual knowledge that the employee was injured in the scope of his or her employment." 726 So. 2d at 602. Continuing, the Court stated: "The employer must have actual knowledge that the employee's injury was connected to the employee's work activities. [Wal-Mart Stores, Inc. v. Elliott, 650 So. 2d 906, 908 (Ala. Civ. App. 1994).] 'The fact that an employer is aware that an employee 1061730 9 [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.' Russell [Coal Co. v. Williams], 550 So. 2d [1007,] 1012 [(Ala. Civ. App. 1989)]." 726 So. 2d at 602. Kiva Dunes insists that the notice provision of the Workers' Compensation Act, § 25-5-78, requires more information than Singleton provided in order for the notice to be considered legally sufficient. Citing James v. Hornady Truck Lines, Inc., 601 So. 2d 1059, 1060 (Ala. Civ. App. 1992), Kiva Dunes argues that "[e]ven as liberally construed, the [Workers' Compensation] Act still requires that the notice given by an employee to the employer (either in writing or verbally) state that: (1) an injury occurred in the course of his employment; (2) at a specified time; and (3) at a specified place." Brief of Kiva Dunes at 20. Kiva Dunes maintains, because Singleton's notice was insufficient as a matter of law, that it had no actual knowledge of his injury, that he did not provide notice that his injury was work related, and that it had no duty to investigate his alleged injury report. We do not find support for Kiva Dunes' argument in James, in which the Court of Civil Appeals stated 1061730 10 that the notice requirements argued by Kiva Dunes applied to written notice. The Court of Civil Appeals continued: "Written notice is not required where it is shown that the employer had actual notice of the injury. International Paper Co. [v. Murray, 490 So. 2d 1228 (Ala. Civ. App.), remanded on other grounds, 490 So. 2d 1230 (Ala. 1984)]. Oral notice is sufficient to give the employer actual notice. International Paper Co. The employer must also be notified that the employee was injured while in the scope of his employment. International Paper Co. 'If, however, the employer has some information connecting work activity with an injury, it may be put on reasonable notice to investigate further.' Russell Coal Co. v. Williams, 550 So. 2d 1007 (Ala. Civ. App. 1989)." 601 So. 2d at 1061. In this proceeding the Court of Civil Appeals correctly embraced the definition of "actual knowledge" in Russell Coal Co., in which the court defined "actual knowledge" as "'"knowledge of such information as would put a reasonable man on inquiry. ... Mere knowledge of disability following a traumatic injury is not sufficient, for the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the disability is work-related."'" D&E Investments, ___ So. 2d at ___ (quoting Russell Coal Co., 550 So. 2d at 1012, quoting in turn Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916 (1970)). Nevertheless, even though Mark Stillings, Singleton's immediate supervisor, 1061730 11 testified that he was aware that one of Singleton's specific duties was to empty all the trash from the golf carts into a large 55-gallon trash can and then to empty that can into a Dumpster at the end of each day, and even though Singleton telephoned Stillings at his home and told Stillings that he had hurt his back "emptying the trash can," the Court of Civil Appeals concluded that that statement was insufficient to put Stillings on notice that the injury to Singleton's back was job related. Specifically, the Court of Civil Appeals stated: "Although Stillings knew that Singleton's work duties included emptying a trash can, there was nothing in Singleton's statement that he had 'injured his back while emptying the trash can' identifying the 'trash can' referred to in the statement as the one at Kiva Dunes." ___ So. 2d at ___. The Court of Civil Appeals relied on Premdor Corp. v. Jones, 880 So. 2d 1148 (Ala. Civ. App. 2003), in which that court reversed a judgment of the trial court holding that the employer had received adequate notice of an employee's work- related injury. In Premdor, the court first described the employer's challenge to the weight of the evidence indicating that the injury was work related as based on the following: 1061730 12 "Only two doctors ... gave any indication that Jones had told them the injury occurred at work; evidence from the other nine medical-care providers either did not indicate how the injury occurred, indicated that Jones had said she did not know how the injury occurred, or indicated that Jones had recounted that the injury occurred at home when she was mowing the lawn. Jones's own testimony also seems to indicate that the first time she felt back pain of a significant nature was when she was mowing her mother's lawn on Saturday May 6, 2000." 880 So. 2d at 1153. The Premdor court then declined to address the weight-of-the-evidence issue on the basis of the merit to the alternative argument that the employer did not receive adequate notice of the alleged injury within the time required by law because the employee stated to the plant manager only the following: "I have hurt my back." 880 So. 2d at 1154. In other words, the employee in Premdor did not give the employer any information as to the cause of her injury that the employer could reasonably associate with the performance of her duties at work. In this case, certain facts are undisputed, the most significant being the commonality of knowledge as between Singleton and his supervisor that Singleton's job required him to empty a 55-gallon trash can at the conclusion of each workday and that Singleton telephoned the supervisor from home 1061730 13 on a Monday after working the previous Saturday to say that he had hurt his back "while emptying the trash can." (Emphasis added.) Compare Premdor, in which the employee merely stated: "I have hurt my back." The trial court here concluded that such information--Singleton's telling Stillings that Singleton had injured his back "while emptying the trash can"--would put a reasonable person on inquiry that the injury was work related. Although there was a conflict in the evidence as to whether Singleton had added the phrase "at work" when he testified at trial, the trial court's finding, based on ore tenus evidence, as to the content of the conversation that formed the basis of its conclusion favorable to Singleton on the sufficiency-of-the-notice issue did not include the phrase "at work." The Court of Civil Appeals found this information insufficient as a matter of law to put a reasonable person on inquiry that the injury was work related and therefore reversed the trial court's judgment. If the facts are undisputed, and yet from the same facts reasonable persons could draw different conclusions as to the sufficiency-of-the-notice issue, then we will not substitute our judgment for that of the trial court. See, e.g., 1061730 14 Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1021 (Ala. 1990) ("Only when the facts are such that all reasonable men must reach the same conclusion can contributory negligence be found as a matter of law."); see also Rast Constr., Inc. v. Peters, 689 So. 2d 781, 786 (Ala. 1996) (Kennedy, J., dissenting) ("Only if all reasonable persons would reach the same conclusion would [the status of an employee] be a question of law. Quillen v. Quillen, 388 So. 2d 985 (Ala. 1980)."). Here the trial court's finding as to the sufficiency of Singleton's notice is, at the least, one that a reasonable person could make. Therefore, we reverse the judgment of the Court of Civil Appeals. To be sure, it is possible that the injury could have been sustained while Singleton was emptying a trash can at home, but the supervisor's knowledge that Singleton's duties included lifting a 55-gallon trash can supports the trial court's conclusion that the information available to Stillings should have provoked the inquiry of a reasonable supervisor as to whether Singleton meant a trash can at his house or the trash can at work. Singleton's reference to "the" trash can, not "a" trash can or "my" trash can, should have raised a 1061730 15 question in Stillings's mind as to whether Singleton was referring to the only trash can with which they were both familiar, the 55-gallon trash can, instead of a trash can at Singleton's house with which there is no evidence that Stillings was familiar. The trial court found that the information provided by Singleton, under the circumstances of this case, should have provoked inquiry by Stillings that would have established the job-related status of Singleton's injury. We therefore do not have a record consistent only with an employer's awareness that an employee merely has pain or suffers from a medical problem, as was the case in Premdor. If that were the case, that awareness would not, by itself, suffice to provoke such inquiry. Russell Coal Co., 550 So. 2d at 1012. Under the circumstances of this case, however, a reasonable supervisor, if he or she had any question as to whether "the trash can" referred to any trash can other than the one to be emptied as part of Singleton's job duties, should have made the inquiry of Singleton as to which trash can, thereby removing all doubt. The record in this case provides the necessary support for the trial court's finding that Singleton's telephone call 1061730 16 to his supervisor, in which he stated that he had injured his back "while emptying the trash can," coupled with the supervisor's knowledge that one of Singleton's duties was to empty the 55-gallon trash can at the end of the day, constituted adequate notice that would "put a reasonable person on inquiry" as to whether the injury was work related. The Court of Civil Appeals erred in reversing the trial court's judgment on the basis of the Court of Civil Appeals' conclusion that Singleton did not give adequate notice to Kiva Dunes of his work-related injury. IV. Conclusion We reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion. REVERSED AND REMANDED. Cobb, C.J., and Woodall, Stuart, Smith, Parker, and Murdock, JJ., concur. See and Bolin, JJ., dissent. 1061730 17 BOLIN, Justice (dissenting). I respectfully dissent. I agree with that portion of Judge Moore's special concurrence (joined by Judge Thomas), in D&E Investments, L.L.C. v. Singleton, [Ms. 2051014, August 24, 2007] ___ So.2d ___, ___ (Ala. Civ. App. 2007), where he writes, concerning oral notice of and an employer's knowledge of the work-related nature of an employee's injury, as follows: "After [Beatrice Foods Co. v.] Clemons, [54 Ala. App. 150, 306 So. 2d 18 (1975),] oral notice by an employee to an employer has been treated as being synonymous with 'knowledge' if it sufficiently imparts to the employer information indicating that the employee received an injury in the course of his employment, thus enabling the employer to investigate further to determine the specifics of the injury and to protect its interests. See, e.g., Ex parte Slimp, 660 So.2d 994 (Ala. 1995). "After finding that [Singleton] had merely stated that he had hurt his back while 'emptying the trash can,' the trial court concluded that that information, when coupled with [Stillings's] knowledge that [Singleton] regularly emptied a large trash can at the end of his shift, was sufficient to place a duty on [Kiva Dunes] to investigate further to determine if, in fact, [Singleton] was reporting a work-related injury. In reaching that conclusion, the trial court misapplied the law. Oral notice is not sufficient if it merely relates that the employee is in pain or has a medical problem, see, e.g., Premdor Corp. v. Jones, 880 So. 2d 1148 (Ala. Civ. App. 2003); Fort James Operating Co. v. Crump, 947 So. 2d 1053, 1067-68 (Ala. Civ. App. 2005), or 1061730 18 if the employee reports an injury that could just as easily be non-work related. See Thomas v. Gold Kist, Inc., 628 So. 2d 864 (Ala. Civ. App. 1993). Rather, in oral-notice cases, like other 'knowledge' cases, the employee has the burden of notifying the employer that his injury is work related. Williams, supra. The employer's duty to investigate relates only to the details of the accident after the employee has provided the employer with information that the injury is work related. The employer has no duty to make the threshold determination of whether the employee is reporting a work-related injury. "By requiring [Kiva Dunes] to question [Singleton] further to determine if [Singleton] was, in fact, reporting that he had injured himself emptying the trash can at work as opposed to emptying his own trash can at home, the trial court erroneously relieved [Singleton] of his primary duty to notify [Kiva Dunes] that his injury was work related and placed the burden on [Kiva Dunes] to establish, through investigation, whether the injury was work related. Following the reasoning of the trial court's judgment, any time an employee reports an injury that could be work related, which is practically any type of orthopedic or neurological injury, the employer would have a duty to interrogate the employee to determine if, in fact, the employee is referring to an occupational injury." Singleton began working at D&E Investments, L.L.C., d/b/a Kiva Dunes, as a golf-cart attendant on October 30, 2002. Before working for Kiva Dunes, Singleton owned and operated 5 convenience stores and eventually had up to 27 employees before he retired from that business in January 2001. 1061730 19 Singleton testified at trial that he injured his lower back on Saturday, November 8, 2003, while emptying a 55-gallon trash can at Kiva Dunes golf course. Singleton worked the rest of that day, as well as the next day, Sunday, November 9, 2003, and never reported his injury to anyone. As part of his usual work schedule Singleton was off on Monday, November 10, 2003, through Thursday, November 13, 2003. Singleton testified in his August 23, 2004, deposition that when he "got up on the 10th [of November, 2003], [his] back was really bothering [him] a lot" so he telephoned his supervisor, Mark Stillings, from home and "told Mark that [he] couldn't work. That coming Friday was [his] scheduled day .... And [he] call[ed] him to tell him that [he] wasn't going to work that Friday because [he] had hurt [his] back." During that telephone call from his house, Singleton stated: "I told him I hurt my back and he asked me how, and I told him emptying the trash can." Singleton's deposition was admitted into evidence at trial and the statement as to how he injured his back was identical to Singleton's statement provided on April 16, 2004, before this action was filed. In that statement, Singleton said: "That Monday Morning, with [sic] the Monday of the 10th, when I woke up that morning it was hurting 1061730 20 down the front of my leg. So, I waited until about 8:30 you know to make sure that Mr. Stillings would be at work at that time and I called him at that time and told him that I had hurt my back emptying the trash can and that I was going to see my doctor as soon as I could and I definitely would not be at work my next scheduled day, which was Friday. He said okay, let me know how it's going." The transcript of this statement was also admitted into evidence at trial. At trial, however, Singleton attempted to change his story, and he testified that he told Stillings that he had hurt his back "emptying the trash can at work Saturday night." Singleton acknowledged the discrepancy with his previous testimony, and he admitted that he had twice before testified that he told Stillings that he had simply hurt his back "emptying the trash can." On this disputed factual issue as to what Singleton actually said to Stillings, the trial court found that Singleton had stated merely that he had hurt his back "emptying the trash can." The trial court's finding reflects that the trial court did not accept Singleton's trial testimony that he told Stillings he was injured "at work" or "on Saturday night." This factual determination is not at issue. Singleton ultimately testified at trial as follows: 1061730 21 "I would think [Kiva Dunes] would know that's what I meant. ".... "I thought they knew what I was talking about." Kiva Dunes did not, however, understand Singleton to be complaining of an on-the-job injury. Stillings testified at trial that Singleton said nothing during this conversation to indicate that his back problem was work related in any way: "Q. If [Singleton] would have said I hurt my back Saturday afternoon emptying the trash can at Kiva Dunes, would you remember that? "A. I would remember that. "Q. And if he would have said that, what would you have done? "A. I would have immediately treated it as a workers' compensation claim and filed a first report of injury. ".... "Q. Do you remember Mr. Singleton saying anything to you during the course of that conversation to indicate that this was a work-related claim in any way? "A. No, sir. ".... "Q. And is what you've been telling us here basically your general recollection of kind of the 1061730 22 theme of the conversation for lack of a better term; is that a fair statement? "A. My remembrance of the phone call was that the problem he was having was somewhat general in nature, his back was bothering him. There was nothing that I can remember in that conversation that led me to believe that it was incident specific or work related in any shape or form. "Q. That's kind of a conclusory statement that you're drawing saying that looking back now at that conversation there was nothing in it that triggered you to think this was a comp. claim and we're treating it as such, right? "A. That's correct. "Q. You knew what Mr. Singleton's job duties were and what his responsibilities were in the performance of his job, correct? "A. Yes, sir. "Q. And you knew that emptying the trash can at the end of the day after he cleaned out the golf carts and got them ready for the next day's use was one of his responsibilities? "A. Yes, sir. "Q. If he had told you that I injured my back emptying the trash can, is that not something that you understood his job which would have triggered you to think, you know, let me ask you a few more questions and see if this is something that happened at work? "A. There was nothing that I remember him telling me that would have led me to believe that it was work-related in any way." 1061730 23 Stillings testified further that in the context of Singleton's telephone call to Stillings on November 10, 2003, he simply could not have connected Singleton's statement that he had hurt his back "emptying the trash can" with a work- related accident: "A. With that statement being made, I don't think that I could have put the two together. The fact that 'I've hurt my back emptying the trash can,' he was calling me from home, I could not have tied those two together. "Q. So that would not have prompted you to ask any more questions that had been stated? "A. No, sir." After the November 10, 2003, telephone conversation, Singleton sought medical treatment from a doctor he had chosen. Singleton filed a claim for his treatment with his private health insurance, and his private health insurer paid for his medical treatment, with Singleton personally paying a co-payment for each visit to his doctor. While Singleton was off work because of his injury, he periodically telephoned Stillings to provide him with updates and progress reports of his treatment. During those calls over several months, Singleton never requested that Kiva Dunes pay for his medical treatment or that it provide any workers' 1061730 24 compensation payments or benefits. Singleton testified: "I didn't ask them. I thought that was their ball game to do that." On March 31, 2004, the human resources department of Kiva Dunes informed Singleton of his option under its Family Medical Leave Policy to apply for Kiva Dunes' Consolidated Omnibus Budget Reconciliation Act (hereinafter "COBRA") health-insurance plan in order to continue his private health insurance. Singleton came to Kiva Dunes' office and completed a COBRA application on March 31, 2004, but again failed to tell anyone at Kiva Dunes that his back injury was work related. Singleton stated: "Q. And up until, I guess April of 2004, you hadn't made any claim or said anything to anyone at Kiva Dunes about receiving benefits under workers' comp.; is that right? "A. Right. "Q. And can you tell me why you didn't seek those benefits? "A. I had reported the injury to them and I thought it would be their responsibility to take care of it." Although Singleton had indeed reported that he had been injured, he never reported that the injury occurred at work. 1061730 25 On April 1, 2004, the very next day after Singleton completed the COBRA application, Kiva Dunes first learned of Singleton's claim for workers' compensation benefits through a telephone call from his attorney. Kiva Dunes completed a "First Report of Injury" that same day. In its August 18, 2006, order the trial court found as follows, in pertinent part, with regard to whether Singleton had provided Kiva Dunes with notice that he had suffered a work-related injury: "5. The following day, Monday, November 10, 2003, [Singleton] testified that he telephoned the office at about 8:30 to 9:00 in the morning to talk to his supervisor, Mark Stillings, who was the director of golf at Kiva Dunes golf course. "6. [Singleton] specifically testified that he told Mr. Stillings that he would not be able to come to work the following Friday, November 14, 2003, which was his next scheduled day to work. In particular, [Singleton] testified that he informed Mr. Stillings that the reason he would not be able to come to work that following Friday was that he had injured his back lifting the trash can. The trial court, however, did not find that Kiva Dunes had "actual knowledge" of the alleged workplace injury. Instead, the trial court concluded that Singleton's statement that he had hurt his back "emptying the trash can" was "sufficient 1061730 26 notice" of an injury in the line and scope of his employment and/or sufficient notice to "put a reasonable man on inquiry": "9. Mark Stillings testified at trial that he was fully aware that one of the specific duties which [Singleton] was required to perform at Kiva Dunes was the emptying of the 55-gallon trash container at the end of the day. The Court hereby finds that when [Singleton] reported to Mr. Stillings that he had hurt his back while emptying the trash can, this constituted sufficient notice to [Kiva Dunes] that this was an injury which occurred within the line and scope of his employment. Under the authority of Russell Coal Company v. Williams, 550 So. 2d 1007 (Ala. Civ. App. 1989), the court finds that this constituted notice which was sufficient as to 'put a reasonable man on inquiry that the injury [was] work-related.'" (Emphasis added.) The trial court then determined that "[Singleton] provided, and [Kiva Dunes] received, sufficient notice of that injury on November 10, 2003, when [Singleton] reported to his supervisor, Mr. Mark Stillings, that he had injured his back while emptying the trash can." On appeal, the Court of Civil Appeals, however, reversed the judgment of the trial court and held that Singleton's statement "emptying the trash can" did not constitute legally sufficient notice: "Singleton's statement ... did not indicate that the alleged injury was work related. Given the trial court's specific determination of the content of Singleton's statement, that statement did not 1061730 27 provide notice of a connection between Singleton's back injury and his employment. Although Stillings knew that Singleton's work duties included emptying a trash can, there was nothing in Singleton's statement that he had 'injured his back while emptying the trash can' identifying the 'trash can' referred to in the statement at the one at Kiva Dunes." D&E Investments, L.L.C., ___ So. 2d at . In reversing the trial court's judgment, the Court of Civil Appeals relied on Premdor Corp. v. Jones, 880 So. 2d 1148 (Ala. Civ. App. 2003), stating: "In Premdor ... this court reversed a trial court's judgment awarding an employee workers' compensation benefits because, this court concluded, the employee had not given her employer proper notice of her injury. In that case, the employee, Renelda Jones, worked as a buggy loader for her employer, Premdor Corporation. 880 So. 2d at 1149. As a buggy loader, Jones loaded pieces of wood used in the manufacturing of doors into carts and pushed the carts to another work station. Id. Jones argued that she had given Premdor oral notice of her alleged work-related injury within 90 days of its occurrence. Id. at 1154. This court stated: "'Jones testified that she first informed Premdor of her injury when, approximately an hour after she had allegedly sustained the injury, she informed plant manager Larry Cagle that her back was hurting. Responding to questions from her attorney, Jones testified that she told Cagle: "I just said, on the day of the injury, I told him, I said, 'I did something to my back,' I said, 'because it hurts,' and he said, 'well, you know, because everyone complains 1061730 28 about such things.' I thought it would go away." Jones again related the substance of the conversation when questioned by Premdor's attorney: "Well, I was hurting and kind of sweating, and he asked me kind of what was wrong, and I said, 'Well, I did something to my back because I'm hurting,' and that was the end of the conversation." Jones also testified that on ... the day after she had returned to work following the initial injury, she informed her supervisor Kenny Price that she had injured her back. Specifically, Jones testified: "I said, 'Kenny, I have hurt my back.' ... I left and told him I had to get something done." "'While Jones's statements to Cagle, and later to Price, informed the Premdor agents that Jones had injured her back, those statements did not advise whether the injury occurred while Jones was performing her work duties. "The fact that an employer is aware that an employee has pain or [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge." Russell Coal Co. [v. Williams], 550 So. 2d [1007] at 1012 [(Ala. Civ. App. 1989)]. The employer must be notified that the employee was injured in the course of her employment. E.g., Ex parte Brown & Root, Inc., 726 So. 2d 601 [(Ala. 1998)]; Russell Coal Co., 550 So. 2d 1007; Bethea v. Bruno's, Inc., 741 So. 2d [1090] at 1092 [(Ala. Civ. App. 1999)]. By failing to inform Premdor that she injured her back while at work, Jones failed to comply with the notice requirement of the Workers' Compensation Act.' "880 So. 2d at 1154-55. 1061730 29 "In this case, the trial court found that Singleton had told his supervisor Stillings in a telephone conversation that he had 'injured his back while emptying the trash can.' The trial court found that, because Stillings knew that Singleton's work duties included emptying a 55-gallon trash can, Singleton's statement to Stillings provided proper notice of Singleton's injury. However, Singleton's statement, like Jones's statement in Premdor, did not indicate that the alleged injury was work related. Given the trial court's specific determination of the content of Singleton's statement, that statement did not provide notice of a connection between Singleton's back injury and his employment. Although Stillings knew that Singleton's work duties included emptying a trash can, there was nothing in Singleton's statement that he had 'injured his back while emptying the trash can' identifying the 'trash can' referred to in the statement as the one at Kiva Dunes." D&E Investments, __ So. 2d at __. Although notice may be deemed sufficient if the employer has such knowledge as would put a reasonable man on inquiry that the injury is work related, the employer, nevertheless, must have some knowledge connecting the injury to work-related activities. Ex parte Brown & Root, Inc., 726 So. 2d 601, 602 (Ala. 1998); Ex parte Slimp, 660 So. 2d 994 (Ala. 1995). Singleton is correct in that findings of fact in a workers' compensation case based on ore tenus evidence are presumed correct on appeal and that the trial court is in the best position to determine the credibility of the evidence. 1061730 30 Tallassee Super Foods v. Hepburn, 819 So. 2d 63 (Ala. Civ. App. 2001). However, in this case there is no evidence indicating that Singleton's supervisor had actual knowledge connecting Singleton's injury to work-related activities. As shown above, Singleton was an employee at Kiva Dunes for less than 13 months when he was injured. Before this employment, he had owned and operated 5 convenience stores and had 27 employees. He was injured on the evening of November 8, 2003, a Saturday night, and at that time he gave no notice to his employer. He worked the next day, a Sunday, and still gave no notice of his injury to his employer. He telephoned the following day on Monday from his home, on a day that was not a workday for him, and stated that he had hurt his back emptying the trash can. Although his supervisor knew that one of his duties at work was to empty a trash can, it is also reasonable to assume that he had a trash can or cans at his house, as do most people. It is also reasonable to assume that he occasionally emptied his trash cans at his house, as do most people. The trial court found that all Singleton told his employer, other than that he would not be able to be at work on his next scheduled workday four days later, was that he had 1061730 31 hurt his back emptying the trash can. Though Singleton was a former employer himself, he neither mentioned nor requested compensation benefits, which would certainly have put Kiva Dunes on notice that the injury was work related. He used his health-insurance coverage to cover his medical expenses, even paying his own co-payment, rather than requesting that Kiva Dunes workers' compensation carrier pay these charges. A request to Kiva Dunes to pay his medical expenses would certainly have put Kiva Dunes on notice. During the numerous conversations he had with his supervisor while off work from his injury, Singleton never mentioned the trash can again, never referred to having been injured while at work, and never inquired about any workers' compensation benefits of any kind or character. Other than the "trash can" conversation of November 10, 2003, no other communication, oral or written, ever alluded to or mentioned any work-related nature of his injury to his employer for the next four and one-half months, until the day after Singleton completed a COBRA application when his counsel telephoned Kiva Dunes. The employee has the burden of proving that the employer had notice or knowledge of the alleged work-related injury. 1061730 32 Wal-Mart Stores, Inc. v. Elliott, 650 So. 2d 906, 908 (Ala. Civ. App. 1994). In this proceeding, especially given the trial court's finding on the disputed evidence as to what Singleton stated to his employer on the only occasion, among numerous opportunities, that he gave a reason for his back pain, the employer was not given sufficient knowledge to connect the injury to any work-related activities. See, J., concurs.	July 25, 2008
1cd7bfb2-2c32-4df1-935e-57747636ff9a	Ex parte Napoleon Folks and Brooksie Folks. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Napoleon Folks and Brooksie Folks v. Tuscaloosa County Credit Union)	N/A	1070481	Alabama	Alabama Supreme Court	02/15/2008 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, 2007-2008 _________________________ 1070481 _________________________ Ex parte Napoleon Folks and Brooksie Folks PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Napoleon Folks and Brooksie Folks v. Tuscaloosa County Credit Union) (Tuscaloosa Circuit Court, CV-05-1097; Court of Civil Appeals, 2060557) LYONS, Justice. The petition for the writ of certiorari is denied. 1070481 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. Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur.	February 15, 2008
d3dba2f3-7bc9-403f-8757-9bc60b420add	Ex parte Alabama Department of Transportation. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Jones Brothers, Inc.; Travelers Casualty and Surety Company of America; and Louana Construction Corporation v. Alabama Department of Transportation)	N/A	1070288	Alabama	Alabama Supreme Court	REL:3/07/2008 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, 2007-2008 ____________________ 1070288 ____________________ Ex parte Alabama Department of Transportation PETITION FOR WRIT OF MANDAMUS (In re: Jones Brothers, Inc.; Travelers Casualty and Surety Company of America; and Louana Construction Corporation v. Alabama Department of Transportation) (Montgomery Circuit Court, CV-06-2434) SMITH, Justice. The Alabama Department of Transportation ("ALDOT") petitions this Court for a writ of mandamus directing the trial court to dismiss the underlying action on the basis of State immunity. We grant the petition and issue the writ. 1070288 2 Facts and Procedural History In October 2000, Jones Brothers, Inc. ("JBI"), entered into a contract with ALDOT to perform construction on a "flyover bridge" in Hoover ("the contract"). JBI subcontracted with Louana Construction Corporation ("Louana") to perform certain electrical and lighting work required under the contract. ALDOT eventually rejected some of the work performed by JBI and Louana and, pursuant to the contract, assessed liquidated damages against JBI. According to the petition, ALDOT and JBI entered into a claims-review process specified by the contract. As a result of the claims-review process, a "claims committee" recommended that JBI recover some of the liquidated damages. However, JBI subsequently sued ALDOT, Louana, and Louana's surety, Travelers Casualty and Surety Company of America ("Travelers"), in federal court. JBI, Louana, and Travelers ultimately entered into a settlement agreement, and the federal court action was apparently dismissed. JBI, Louana, and Travelers (collectively "the plaintiffs") then filed the present action against ALDOT in 1070288 The complaint at one point was amended to alter the ad 1 damnum clause. 3 the Montgomery Circuit Court, seeking contribution, indemnity, and damages for breach of contract. ALDOT filed motions to dismiss, arguing, among other things, that the action was barred by Ala. Const. 1901, § 14. ALDOT renewed its motions to dismiss on September 21, 2007. The renewed motion stated, in part: "8. On July 20, 2007, the Alabama Supreme Court ruled in Ex parte Alabama Department of Transportation, No. 1060078, ___ So. 2d ___ (Ala. July 20, 2007) that a complaint naming the Alabama Department of Transportation is improperly filed and does not vest the trial court with subject matter jurisdiction. ... The result is that the complaint is due to be dismissed and the Court may not take any other action other than 'to exercise its power to dismiss the action ....' "9. Identical to the complaint filed in Ex parte Alabama Dep't of Transp., the complaint filed in the present action seeks to 'effect an action against the State in violation of § 14, Ala. Const. 1901.' See id. Consequently, neither Plaintiffs' Complaint nor Plaintiffs' Amended Complaint[ ] has vested the 1 trial court with any subject matter jurisdiction and the present action must be dismissed. See id. "10. The July 20, 2007 decision was confirmed in an August 10, 2007 ruling from the Alabama Supreme Court, Ex parte Alabama Dep't of Transp., No. 1051661, ___ So. 2d ___ (Ala. Aug. 10, 2007), in which an identical holding was issued.... "11. Based on this caselaw, ALDOT renews its 1070288 According to ALDOT, the complaint was not subsequently 2 amended. Generally, when the trial court lacks subject-matter jurisdiction, it has no power to take any action other than to dismiss the complaint. See Ex parte Alabama Dep't of Transp., [Ms. 1060078, July 20, 2007] ___ So. 2d ___, ___ (Ala. 2007), Ex parte Blankenship, 893 So. 2d 303, 306-07 (Ala. 2004). Because the plaintiffs did not attempt to amend the complaint, we will not review the issue whether the trial court had jurisdiction to enter the order. 4 previous Motions to Dismiss, and again asks this Court to dismiss Plaintiffs' Complaint and Amended Complaint, as there is no basis for subject matter jurisdiction of these Complaints." The trial court denied the motions on October 24, 2007, and purported to order the plaintiffs to amend the complaint and to name proper parties within 10 days. ALDOT petitioned 2 this Court for mandamus relief, and we ordered an answer and briefs. 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 Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001). "[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity." Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000). 1070288 5 Discussion "Section 14, Ala. Const. 1901, provides '[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.' This section affords the State and its agencies an 'absolute' immunity from suit in any court. Ex parte Mobile County Dep't of Human Res., 815 So. 2d 527, 530 (Ala. 2001) (stating that Ala. Const. 1901, § 14, confers on the State of Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa County, 796 So. 2d 1100, 1103 (Ala. 2000) ('Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state....'). Indeed, this Court has described § 14 as an 'almost invincible' 'wall' of immunity. Alabama State Docks v. Saxon, 631 So. 2d 943, 946 (Ala. 1994). This 'wall of immunity' is 'nearly impregnable,' Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002), and bars 'almost every conceivable type of suit.' Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So. 2d 281, 283 (1971). Moreover, if an action is an action against the State within the meaning of § 14, such a case 'presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.' Patterson, 835 So. 2d at 142-43." Haley v. Barbour County, 885 So. 2d 783, 788 (Ala. 2004) (emphasis added). ALDOT, as a State agency, is absolutely immune from suit. Ex parte Alabama Dep't of Transp., [Ms. 1051661, August 10, 2007] ___ So. 2d ___, ___ (Ala. 2007) ("ALDOT is a State agency ... and, therefore, is absolutely immune from suit."). Generally, "any exceptions to that immunity extend only to 1070288 6 suits naming the proper State official in his or her representative capacity." Ex parte Alabama Dep't of Transp., [Ms. 1060078, July 20, 2007] ___ So. 2d ___, ___ (Ala. 2007) (emphasis added). In the instant case, ALDOT is the only named defendant; no State official has been named by the plaintiffs as a party in this case. There is no argument advanced that § 14 does not apply. Because § 14 deprives the trial court of jurisdiction to entertain this action against ALDOT, the action is due to be dismissed. See Alabama Dep't of Transp. v. Harbert Int'l, Inc., [Ms. 1050271, March 7, 2008] ___ So. 2d ___, ___ (Ala. 2008) (dismissing ALDOT as a party for lack of jurisdiction based on State immunity). Conclusion ALDOT is entitled to State immunity in the underlying action; therefore, we grant the petition for the writ of mandamus and direct the trial court to dismiss the plaintiffs' complaint. PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and See, Woodall, and Parker, JJ., concur.	March 7, 2008
2c4e4055-4cf0-4f94-a050-30823ab3b5f6	Veronica D. Giles v. Brookwood Health Services, Inc., et al.	N/A	1060883	Alabama	Alabama Supreme Court	rel: 06/27/2008 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, 2007-2008 _________________________ 1060883 _________________________ Veronica D. Giles v. Brookwood Health Services, Inc., et al. Appeal from Jefferson Circuit Court (CV-03-7119) COBB, Chief Justice. Veronica D. Giles seeks the reversal of a summary judgment entered by the Jefferson Circuit Court on her claims alleging medical malpractice, failure to obtain informed consent, and spoliation of evidence against Brookwood Health 1060883 Dr. Anthony DeSalvo, Giles's medical expert, testified 1 that the term "andexum" refers to the fallopian tube and ovary. 2 Services, Inc. ("Brookwood"), the entity that operates Brookwood Medical Center, Dr. Jon Adcock, Dr. C. Paul Perry, and OB-GYN South, P.C. ("OB-GYN South"). We affirm. Facts A. Giles's medical history, the surgical procedure, and the subsequent medical treatment In July 2001 Giles visited Advocate South Suburban Hospital in Chicago, Illinois, where an ultrasound was performed on her pelvis. The following note is contained in that ultrasound report: "There is a mild solid enlargement of the left adnexal area measuring 4.5 cm and probably due to a hemorrhagic cyst, endometrioma, or malignancy. Gynecological consult recommended. ... The right adnexum is not remarkable." [1] On August 28, 2001, Giles was seen by Dr. Adcock, a gynecologist with OB-GYN South. At Dr. Adcock's office Giles underwent another ultrasound. The second ultrasound report states that the "[u]ltrasound revealed left ovarian complex mass. ... Right ovary is normal." Dr. Adcock's notes regarding Giles's August 28, 2001, visit state that Giles 1060883 The record does not indicate whether the "O.R. Journal" 2 is a document from the records of Brookwood, OB-GYN South, or some other entity. The record also does not indicate the identity of the person who submitted the August 28, 2001, request to schedule an operating room for a left oophorectomy for Giles. The record does not include Dr. Emig's first name. 3 3 "presented to [Dr. Adcock] with pain in her ovaries. An ultrasound revealed an ovarian mass. She is status-post hysterectomy.... She states that she feels a yanking feeling that comes and goes. It is increasing [in] frequency. She has felt it twice in the last two weeks. The left side is greater than the right." At the conclusion of the notes for the August 28 visit, Dr. Adcock wrote that his "assessment" was "[l]eft ovarian complex mass that is persistent and recurrent with pain." He described his "plan" as follows: "We will proceed with diagnostic laparoscopy and probable left oophorectomy." The procedure was scheduled; an "O.R. Journal" note in the record indicates that a request was made on August 28, 2001, to schedule an operating room at Brookwood Medical Center for a "left oophorectomy" for Giles. However, Giles's 2 insurance company would not agree to pay for the procedure, and the procedure did not go forward as originally scheduled. On October 3, 2001, Giles consulted another doctor, Dr. Emig, who practiced at a different clinic than Dr. Adcock. 3 1060883 4 Dr. Emig's notes from Giles's October 3 visit to Dr. Emig's office state: "The patient had an [ultrasound] today to reevaluate her left adnexa. [Ultrasound] revealed a persistent complex left ovarian cyst.... Her records from Dr. Adcock in Brookwood were reviewed and this cyst is consistent with measurements of a complex left ovarian cyst obtained in his office in August of 2001. The patient reported that she was essentially pain-free at the time she saw me on September 21st, but since then has had some intermittent pain on her left side. ... We plan to schedule an operative lap with possible left ovarian cystectomy in November." On October 31, 2001, Giles returned to Dr. Adcock for another appointment. On this date, she had another ultrasound, which indicated that the left ovarian mass had increased slightly in size since the August 28, 2001, ultrasound. The October 31, 2001, ultrasound report indicated "0" adnexal masses on the right side. At 5:32 p.m. on November 6, 2001, Dr. Adcock dictated the following notes: "Veronica [Giles] is a 45 year-old married female, para 2-0-0-2 who came to me in August noting to have a complex ovarian cyst. She is status post hysterectomy in the past. She denies any significant complaints other than some mild pain in that area. An ultrasound in August revealed a complex cyst measuring 3.2 x 2.6 x 2.9 and follow-up two months later revealed a slightly enlarged ovarian cyst with continued complexity. She was unable to proceed with surgery at the time of evaluation due to the fact 1060883 5 that her insurance would not pay. She has no other GYN complaints.... "PAST SURGICAL HISTORY: Cesarean section X2 and hysterectomy in 1995. "PHYSICAL EXAMINATION: .... Tender in the left adnexa -- greater than right.... "ULTRASOUND: Revealed the above noted complex ovarian cyst. "IMPRESSION: 1. Complex ovarian cyst that is persistent. "PLAN 1. laparoscopic bilateral salpingo-oophorectomy on 11/7/01." "Pre-admit" orders sent to Brookwood from Dr. Adcock's office requested a permit for "L[eft] oophorectomy" and listed "complex ovarian mass" as the diagnosis. However, the words "L[eft] oophorectomy" on those orders were crossed out and underneath them were written the words "Right oophorectomy B.G." Bonnie Green, a Brookwood nurse, stated in her deposition that she was the person who revised the order. Nurse Green stated that she believed she changed the order at Dr. Adcock's direction after she consulted him in an effort to resolve the fact that the order for a "left oophorectomy" differed from Dr. Adcock's November 6, 2001, notes indicating a planned "laparoscopic bilateral salpingo-oophorectomy." 1060883 6 However, under oath, Dr. Adcock denied that he told Nurse Green to change the pre-admit orders from "L[eft] oophorectomy" to "Right oophorectomy" or that he knew anything about how or why the pre-admit orders were changed. A Brookwood "pre-anaesthetic interview" form indicates that, on November 6, 2007, a nurse interviewed Giles in preparation for a "L[ef]t oophorectomy." On November 7, 2001, Giles went to Brookwood Medical Center for the surgery. At 8:50 a.m. on November 7, 2001, Giles signed a "Consent for Surgery and/or Anesthetics or Special Diagnostic or Therapeutic Procedures," which included the following language: "Your doctor has recommended the following operation or procedure: Laparoscopic Right Oophorectomy. By signing this form you authorize and consent to this operation or procedure. You also agree and consent to the administration of such anaesthesia, monitoring, venous, and arterial access as your doctor(s) deem necessary for the operation or procedure. The operation or procedures will be performed by your doctor(s) Adcock and with assistants he/she selects. ... Any different or further procedures, which in the opinion of your doctor may be indicated due to any emergency, may be performed on you. During the course of the procedure, unforseen conditions may be revealed that necessitate the extension of the original procedure(s) than those explained to you by your doctor [sic]. By signing this form, you, therefore, authorize and request that your doctor, his/her 1060883 7 assistants or his/her associates perform such surgical or other procedures as are necessary and desirable in the exercise of his/her or their professional judgement and do hereby grant authority to your doctors to treat all conditions which may require treatment although such condition may not be discovered until after the operation or procedure is commenced." According to Dr. Adcock's deposition testimony, on the morning of the operation, he discussed with Giles the scope of the operation and the risks involved and the possibility that he would remove either or both ovaries during the operation. Giles testified in her deposition that she did not recall the substance of her conversations with Dr. Adcock that morning. By 9:04 a.m. on November 7, 2001, Giles was in the operating room undergoing the operation. Dr. Perry, another gynecologist with OB-GYN South, assisted Dr. Adcock with the surgery. The surgery was videotaped. The surgery was completed by 12:00 p.m. on November 7, 2001. A handwritten "Post Operative Note" by Dr. Adcock dated November 7, 2001, at 12:00 p.m. states that Dr. Adcock's "Pre- Op diagnosis" was "R[ight] complex ovarian cyst," and that his "Post Op Diagnoses" were the "SAME" and, in addition, "severe adhesive disease." The postoperative note listed "bowel laceration" as a complication resulting from the procedure. 1060883 8 Giles's husband later signed a sworn affidavit in which he recounted the events related to Giles's treatment and surgery as follows: "My name is Edward Giles and I am the husband of Veronica Giles. This affidavit is given based on my personal knowledge of the event that took place prior to and after her admission to Brookwood Hospital for surgery on November 7, 2001. I accompanied [m]y wife to Defendant, [Brookwood], on November 7, 2001. I went into the prep room with her for one day surgery. I talked with two ladies who were dressed in hospital nursing and/or anesthesia attire. I told them to tell the doctor that the left ovary was to be removed because the male anesthesiologist person talking to my wife indicated that the right ovary was to be removed. I told them to take good care of my wife and they assured me they would. "Two and one half (2 ½) hours later, a nurse notified me in the waiting area that there was [a] phone call for me. The nurse on the phone notified me that the doctor wanted to inform me that it may take a little longer to finish because my wife has a lot of scar tissue, and to please be patient and don't worry. "One and one half (1 ½) hours later, Dr. Adcock came to the lobby of the waiting room and advised me that the procedure went okay, but scar tissue gave him a bit of a problem, and that her bowel has a small abrasion -- nothing serious or to worry about. I asked the doctor, 'Did you make sure you took out the left ovary on the left side[?'] He said, 'No, I took out the ovary on the right side[.'] He asked me 'are you sure, because I remember the right side'; he said he []would check and get back to me. "One (1) hour later. Dr. Adcock returned to the lobby waiting room and stated that I was absolutely 1060883 9 right, that it was the left side that should have been removed. 'I am so sorry Mr. Giles, could you please come into this room so I may speak with you[.'] We went into a small area, a private room that was located near the lobby waiting area. Dr. Adcock stated[,] 'I am truly sorry, I am so sorry.' He stated that he was thinking of our talks in the office and he took for granted that it was the right when he saw all of the scar tissue, that the right was the correct ovary to take out, and your wife pointed to the right side just before the surgery. I advised Dr. Adcock that she was in a nervous and/or sedated state of mind, and that I asked the nurses to tell you to check your records before beginning surgery, because the male anesthesiologist that was in the room indicated that you were scheduled to remove the right. I asked Dr. Adcock, how could that be right that the right ovary was removed? He stated that he just took it for granted that the right ovary was the correct one. Dr. Adcock advised me that he forgot to look at the charts or his notes before starting the surgery. He stated that he remembered after I mentioned the left ovary, he stated again, 'Mr. Giles, I am so sorry ... we can always go back after maybe four to six weeks to get the correct one, I did see some growth on the right ovary that we took out.['] "I asked him to please help to get my wife well so we could go home; he stated that he would like to keep her overnight for observation, because of the scar tissue. I said okay. Dr. Adcock said that he had a taping of the procedure and that he would give it to me. He did give it to me. He stated that he would tell my wife of the mistake about the ovary when she was in her room. My wife was moved to room 324 on November 7th. "On that evening of November 7th, Dr. Adcock came to our room and sat on the bed and told my wife that he took out the wrong ovary and how very sorry he was. He advised her that down the road, we could 1060883 10 go back for the correct ovary (left) in maybe four to six weeks, depending on how she felt about it later. He told her that he and Dr. Perry performed the surgery and that Dr. Perry would be up to the room later to see her. "The next day, November 8th, Dr. Adcock had the head doctor stop in to see us. I do not recall his name. Dr. Adcock also at that time asked for the tape back so that the chief administrator could look at it. He stated that he would return it. I gave him the tape he had previously given me which I had not had an opportunity to view. Dr. Adcock later returned a tape to me and in viewing the tape of two to three minutes of video and after that there appears to be twenty to thirty minutes edited or erased and then a thirty (30) to forty-five (45) second closing. The tape appears to have been changed. "Dr. Perry did come to see my wife. He never mentioned anything about the fact that the incorrect ovary was removed during the surgery ... that he and Dr. Adcock performed. He kept his conversation focused on her condition and when she might be able to go home. Dr. Adcock mentioned that he has to go out of town and would be leaving on Friday, November 9th, and that Dr. Perry would stop by and keep [a] check on my wife for him. My wife was released from the hospital on November 9th. At the time of my wife's release, she was running a fever. Dr. Perry advised us that unless it got above 104 degrees to not worry. She later develop[ed] peritonitis and required three surgeries to correct a perforation of the bowel which Dr. Adcock said occurred and they had taken care of by sewing it up." During Dr. Adcock's deposition, Dr. Adcock confirmed many of the details set out in Mr. Giles's affidavit, but he denied 1060883 11 that he had told Mr. Giles that he had removed the wrong ovary or that he had apologized for removing the wrong ovary. Around 5:00 p.m. on November 7, Dr. Adcock made the following note: "P[atien]t alert & awake. Discussed the surgery -– pre op diagnosis was a Left ovarian mass but the surgery that took place was a Right S&O. Extensive adhesions discussed and inability to even visualize the left adnexa. P[atien]t's husband is aware of this, and was present for conversation." Dr. Adcock dictated further notes at 5:31 p.m. on November 7 as follows: "PREOPERATIVE DIAGNOSIS: LEFT COMPLEX OVARIAN MASS "POSTOPERATIVE DIAGNOSIS: SAME PLUS EXTENSIVE PELVIC AND ABDOMINAL ADHESION DISEASE AND RIGHT OVARIAN MASS "OPERATION: LAPAROSCOPIC RIGHT SALPINGO-OOPHORECTOMY EXTENSIVE ADHESIOLYSIS CYSTOSCOPY.... "COMPLICATIONS: Inability to remove left adnexa ".... "FINDINGS: Extensive bowel to abdomen adhesions as well as bladder to abdominal wall adhesions. Left tube and ovary completely covered by adhesions. Right tube and ovary somewhat freer but still adherent to the midline and lateral wall as well as abdominal wall. Cystoscopy findings revealed bilaterally functioning ureters. 1060883 12 "INDICATIONS: 45 year old married black female status post hysterectomy in the past with persistent complex left ovarian cyst that was essentially stable in size. Recommended operative removal. Patient was counseled regarding the risks and benefits of the procedure including bowel, bladder injury, infection and bleeding. She desired to proceed. "OPERATIVE PROCEDURE: The patient was taken to the operating Room where general anesthesia was obtained without difficulty. She was then prepped and draped in the normal sterile fashion. ... A left upper quadrant incision was used due to the previous incisions. ... We were then able to only visualize right lateral, extreme lateral and left extreme lateral abdominal walls. ... We were unable to visualize the left adnexa at all due to adhesions. The right adnexa was visualized and there appeared to be a right ovarian enlargement and probable mass. We proceeded with very careful sharp dissection, coagulating as we went, noting to be away from bowel and bladder. ... We were careful not to leave any ovarian capsule on the right side. We ... were able to ... complete the right salpingo-oophorectomy. ... We did oversew one area near the bowel that was abraded. ... The patient tolerated the procedure well and was sent to the Recovery Room in satisfactory condition. She will stay 23 hour observation due to the extensive adhesiolysis. The patient's husband was informed of the above findings and that we failed to remove the previously noted diseased ovary but did remove the other ovary. He voiced understanding." On November 8, 2001, Dr. Donald R. Simmons of Cunningham Pathology, P.C., signed a "Surgical Pathology Report" regarding Giles's right ovary and fallopian tube. The report states: 1060883 13 "FINAL DIAGNOSIS: Fallopian tube and ovary, right: -No pathologic abnormality. ... "GROSS DESCRIPTION: Received labeled 'right ovary and tube' is a somewhat fragmented apparent tubo-ovarian complex in which the tissue overall measures 5 x 3 x 2.5 cm. Cut section demonstrates no gross abnormalities. ... "MICROSCOPIC DESCRIPTION: Sections of fallopian tube and ovary demonstrate normal physiologic structures with no evidence of neoplasia. There is a cyst with old hemorrhage and no residual lining epithelium. No diagnostic endometriosis is identified." On November 9, 2001, Dr. Perry dictated the following "Discharge Summary," which Dr. Adcock signed: "Patient underwent right S&O with extensive adhesiolysis, had postoperative ileus and this has resolved over the course of 48 hours of hospitalization. She will be discharged on [certain medications]. The patient will return to see Dr. Adcock in two weeks." On November 13, 2001, Giles returned to Dr. Adcock complaining of severe pain, and she was dehydrated. On November 14, Giles was admitted to Brookwood Medical Center where it was discovered that her bowel had a perforation and that she had contracted peritonitis. Giles underwent several extensive surgeries and hospitalizations to treat the peritonitis. 1060883 14 B. Testimony of Dr. Anthony DeSalvo, Giles's medical expert In answering questions during his deposition, Giles's medical expert, Dr. Anthony DeSalvo, described the nature of Giles's operation as follows: "Q: And [Dr. Adcock] wrote 'diagnostic laparoscopy and probable left oophorectomy'? "A: Yes, sir. "Q: Is that a guarantee that he is going to remove the left ovary? "A: No. "Q: Why not? "A: Because if he can't see it, if he looks at it and it's perfectly normal, if he doesn't think it's causing her symptoms. "Q: By definition, based on what we've talked about before, diagnostic laparoscopy means he is going to put the laparoscope in and look and see if he can find explanations for her pain, correct? "A: Yes. "Q: He might find one explanation, he might find two, he might find more, couldn't he? "A: Yes. "Q: All right. And 'probable left oophorectomy,' is he saying to the patient, 'Probably we'll remove your left ovary based on what I see going in, but I can't guarantee it?' "A: I think that's a fair statement." 1060883 15 Dr. DeSalvo further made clear in his deposition that, in his opinion, Dr. Adcock would have met the standard of care if, during the surgery, he attempted to remove the left ovary, decided not to remove that ovary due to the risks posed by the severe adhesions, and, in the process of the surgery, removed the right ovary after observing what appeared to be a cyst on that ovary. For example, Dr. DeSalvo testified as follows: "Q: ... You've reviewed the operative note, haven't you? "A: Yes. "Q: Does the operative note describe a fairly difficult operative area? "A: Yes. "Q: Was the -- were the physicians able to see the left ovary? "A: No. "Q: Was that because of the scar tissue? "A: Yes. "Q If there is a lot of scar tissue and you can't see the left ovary, does that pose risks to going to get it? "A: Yes. "Q: The greater the limitation of visibility by scar tissue is it the greater the risk of injuring a bowel or some other organ? 1060883 16 "A: Correct. "Q: Okay. Did you see they were able to visualize the right adnexa? "A: Yes. ".... "Q: All right. And when the doctors saw the right adnexa, there appeared to be a right ovarian enlargement and probable mass? "A: Yes. "Q: And would it be reasonable, knowing she had right-sided pain, knowing she had adhesions, seeing a right ovarian enlargement and probable mass, to remove it, given the discussions he had had with the patient? "A: Yes. "Q: And, in fact, that's what [Dr. Adcock] did? "A: Yes. ".... "Q: ... Now one option, as I understand a doctor would have in this situation is, once he got in and saw the adhesions, would be just to quit, correct? "A: Yes. Yes. "Q: Of course, if he does that, he doesn't address the pain on either side, does he? "A: Correct. 1060883 17 "Q: All right. And another option would be to continue laparoscopically and try to get to that left ovary, wouldn't it? "A: Yes. "Q: And, of course, you've already said there would be increased risk to the patient if you did that. If a doctor did that and injured organs in the face of these heavy adhesions, could he fall below the standard of care? "A: You know, this is where judgment is important. You know, if -- if he feels comfortable in doing it, I'm not going to fault somebody for -- you know, for doing it. But if he feels that it's not appropriate, then, you can't fault him for saying it's not appropriate. ".... "Q: And if the decision was made that we don't think it's safe for this patient to go get the left ovary, that would be reasonable on their part, wouldn't it? "A: Yes. "Q: Okay: Now, once the right ovary was removed, we've already talked about the fact that there was documented [in the surgical pathology report] that there was a corpus luteum cyst, an old hemorrhagic cyst [on the right ovary], correct? "A: Yes. Yes. "Q: The mass, in hindsight, that [Dr. Adcock] probably saw, do you think that was scar tissue and ovary and tube or what? "A: I don't know. 1060883 18 "Q: Okay. Would the doctors who did the operation be in the best position to speak to that? "A: Yeah. Yes. "Q: I mean, the fact that the pathology report doesn't show some big mass isn't inconsistent with what they saw clinically during the operation, is it? "A: Correct." However, testifying elsewhere in his deposition, Dr. DeSalvo expressed his opinion that Dr. Adcock breached the standard of care because, according to Dr. DeSalvo, Dr. Adcock entered the operating room intending to remove the right ovary, not the left one. According to Dr. DeSalvo, Dr. Adcock entered the operating room with the mistaken belief that the right ovary was the ovary that had been previously diagnosed with a cyst based on the ultrasound images. Dr. DeSalvo took the position that, if Dr. Adcock had realized that the left ovary was the ovary diagnosed with a cyst, Dr. Adcock would have removed neither ovary, both ovaries, or only the left ovary, but would not have removed only the right ovary. In this regard, Dr. DeSalvo testified: "[Dr. DeSalvo]: Okay, let's make some assumptions. Let's assume that one ovary needs to come out and let's assume that it's the left ovary because that's the thing we've imaged fifty 1060883 19 times. ... So, if you're going to get one of them, you've got to get the left, okay? Because that's the one that images abnormal, okay? "So, if you can happen to also get to the right side, then, you get the right side. So ... [Dr. Adcock] never had any intention of getting the left. ... And that is supported by his preoperative diagnosis being right complex ovarian cyst and it's also supported by the fact that the consent had to be changed. ... In that consent, it doesn't say 'bilateral', but it's okay to take out the right, absolutely. But if you're going to get one, get the [left]. "Q: Why didn't he get the left? ".... "A. Because he couldn't see it. But if you're going to get one, get the ... left ovary. ".... "So ... in my mind, you guys are all focusing on the right ovary. It's a distraction. It's a very simple process. Left ovary, left ovary, left ovary, left ovary. Telephone call, right ovary, and then [Dr. Adcock] writes right ovary. Where did it go from left to right? There was a discrepancy in communication. That's where the error was made. ... The error was that [Dr. Adcock] thought the cyst was on the ... right side and that's ... the whole crux of the case." At a later point in his deposition, Dr. DeSalvo testified similarly: "[Dr. DeSalvo:] ... [W]hen you review a case, you have to try to understand what was going on and how it was going on. At [the conclusion of the 1060883 20 operation] before anything else happened except finished [sic] the operation, [Dr. Adcock] sits down writing some stuff down, he writes preoperative diagnosis was right complex ovarian cyst. That tells me, in his mind, that what brought this patient into this room was a right complex ovarian cyst. And that would explain why he operated on the right side only. "Had -– had he known that it was a complex ovarian cyst on the left and that was the one that really needed to come out -– you know, now this is, you know, Sunday quarterback, Monday morning quarterback –- I'm the king of mixed metaphors -– you know, what would he have done then? And again, that's why I think the range of the standard of care is that he would have proceeded on the left side, he would have stopped or he would have opened her, that the reality is, is that the main thing that got her in the operating room wasn't the right ovary, it was the left." When a defense attorney asked Dr. DeSalvo to explain Dr. Adcock's postoperative note made later in the evening on the date of the operation stating that Dr. Adcock attempted to access the left adnexa but was unable to do so because of the severe adhesions on that ovary, Dr. Desalvo stated that he felt Dr. Adcock made that note because "at that time he realizes, because he has checked his records or whatever, that, okay, I should have taken the left out." The defense attorney then questioned Dr. DeSalvo as follows: "Q: Now, what are you basing that on? "A: I'm basing that on -- 1060883 21 "Q: Are you basing that on what these lawyers have told you? "A: Discussions with –- everything. "Q: Well, you told me before that what's important is what's in the record. Now, where are you getting this evidence? "A: How else -– there's no evidence. "Q. Where are you getting this evidence? "A. How else can I explain the difference in [Dr. Adcock's] preoperative diagnosis that's handwritten twice that says right side and, then, his dictation at 5:00 p.m. that says left side? "Q. He had the consent and the authority to remove either or both [ovaries], didn't he? "A. He had the consent and the authority to do just that, yes. "Q: Okay, thank you. Now -- "A: But it doesn't make sense as to why he didn't remove the left. "Q: Well -- "A: The preoperative diagnosis was left ovarian cyst. "Q: Yes. "A: He says it on the dictation. "Q: All right, assume -- 1060883 22 "A: So, why do you proceed with a difficult operation, cherry picking the one that's easy and never getting the one that's hard? "Q: Assume for me that he went in expecting a left complex ovarian cyst and he couldn't get to it, first of all. "A: Wonderful, then stop. We'll open her up. "Q: You've already testified it would be reasonable, if he saw an explanation on the right side, to go remove the right one, wouldn't you? "A: Preoperative diagnosis is -- "Q: No. No. Answer my question. Are you changing your testimony from what you said awhile ago? "A: The preoperative diagnosis was left ovarian cyst. ... Then, why is it written here right side? Why is it written here right side? "Q: And I -- I'm not answering questions today. "A: Okay. That's the question to me. That's the whole case. That's it. "Q: You said the focus -- it's a misplaced focus on the right side. Did you know that that's why they -- the claim in the lawsuit is that he shouldn't have removed the right? Have you ever been told that? "A: No. "Q: Is this the -- you mean to tell me we are five years out from this operation almost and the first time you've ever been told is me suggest[ing] it to you that they're claiming he committed malpractice by removing the right? You didn't know that? 1060883 23 "A: No. ".... "Q: Dr. DeSalvo, during this operation, once he saw he couldn't get to the left, was it an emergency to get the left ovary out that day? "A: No. "Q: Okay. Would it be reasonable to plan to come back and get it at a later time? "A: Yes. "Q: If he had written postoperatively, instead of right ovarian mass, left ovarian mass, you wouldn't be criticizing him, would you? "A: No. "Q: We wouldn't -- you wouldn't be sitting here today, would you? "A: No." Elsewhere in his deposition, Dr. DeSalvo characterized the surgery as a "wrong-site surgery," but he did not explain why he characterized the surgery as a "wrong-site surgery." Finally, with regard to the infliction of the injury to Giles's bowel, Dr. DeSalvo testified: "Q: You do not express any criticism of the doctors in this case by virtue of the fact that there was a bowel injury, do you? "A: No, sir. 1060883 24 "Q: That's an inherent and accepted risk of the procedure? "A: In this particular case, yes." Dr. DeSalvo further testified regarding the cause of the bowel injury: "Q: All right. Now I know you said it doesn't matter and I know you're not critical, but do you have any opinion of how the bowel was injured? "A: I don't think we -- I think the best answer is we don't know. "Q: Okay. "A: I think Dr. Adcock's explanation is reasonable, but it's not really germane, because I'm not -- "Q: Okay. "A: It wasn't a deviation. "Q: It doesn't matter whether it was a laceration or an abrasion, does it? "A: This is when we talked earlier about -- I'm not going to be critical about iatrogenic injuries. Because in this particular case, this was -- unavoidable." However, Dr. DeSalvo also testified that the infliction of the injury to Giles's bowel represented a deviation from the standard of care because, he said, the injury occurred while Dr. Adcock was "trying to get out the right [ovary] 1060883 25 because it was the left that he should have been trying to get out." Dr. DeSalvo further testified that the right lower bowel could have been injured on the right side if Dr. Adcock had done a left-side surgery. Regarding post-surgery treatment of the bowel injury, Dr. DeSalvo testified that, based on his review of Giles's medical records, at the time Giles was discharged from the hospital "there was no evidence of a bowel perforation at that time." Dr. DeSalvo opined that, on November 13, 2001, when Giles returned to Dr. Adcock dehydrated and in pain, Dr. Adcock should have sent her to the hospital that same day for tests to investigate whether complications from a bowel injury were causing her problems. Dr. DeSalvo then testified: "Q: ... You understand that, [Giles], in fact, was admitted [to the hospital] the next day [November 14, 2001]? "A: Yes. "Q: Can we agree that, if she had been admitted on the 13th, as opposed to the 14th, her outcome would have been the same. "[Giles's attorney]: We object to that. I think it's speculative. "A: I don't know that I can testify to that. 1060883 26 "Q: Well, you can't testify, then, that admitting her on the 13th would have changed her outcome, can you? "A: I think that, as a gynecologist, I can testify to the standard of care for the management of postoperative gynecologic surgery. "Q: And I'm asking about causation? "A: And that's where I'm, you know, I don't pretend to be a general surgeon. "Q: Okay. And fair enough, because that'll save me a bunch of questions. You're not going to testify on causation in this case, then, are you? "A: You know, would it have made a difference for day five or day six, you know, the 13th or the 14th? No. I don't have the knowledge to testify to that." 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 1060883 27 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)."'" Gooden v. City of Talladega, 966 So. 2d 232, 235 (Ala. 2007) (quoting Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006)). Analysis A. Giles's malpractice claims against Dr. Perry We first consider whether a genuine issue of material fact exists as to Giles's malpractice claims against Dr. Perry and whether Dr. Perry is entitled to judgment as a matter of law on those claims. To prevail on her medical-malpractice claim against Dr. Perry, Giles must prove, among other things, that Dr. Perry violated the duty to "'exercise such reasonable care, diligence, and skill as physicians ... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case.'" Pruitt v. Zeiger, 590 So. 2d 236, 237 (Ala. 1991) (quoting Ala. Code 1975, § 6-5-484(a)). Furthermore, under the circumstances of this case, Giles must establish the standard 1060883 In Pruitt, this Court noted the usual rule that the 4 plaintiff in a medical-malpractice action must prove the standard of care and the physician's breach of the standard of care by expert testimony and that an exception to the usual rule exists when "the breach of the standard of care is obvious to the average layperson." Pruitt, 590 So. 2d at 238. This exception is not applicable to the treatment provided by Dr. Perry or the other defendants in this case. 28 of care applicable to Dr. Perry and Dr. Perry's breach thereof through expert testimony. See 590 So. 2d at 237-38. However, 4 Giles submitted no expert testimony indicating that Dr. Perry was in any way negligent with regard to her medical care and treatment. Giles's medical expert, Dr. Anthony DeSalvo, acknowledged during his deposition he was "in no way expressing any criticisms of Dr. Perry in this case." Therefore, no genuine issue of material fact exists as to Giles's malpractice claims against Dr. Perry, and Dr. Perry is entitled to judgment as a matter of law on those claims. We affirm the trial court's judgment in favor of Dr. Perry with regard to Giles's malpractice claims against him. B. Giles's malpractice claims against Dr. Adcock We next consider whether the summary judgment was appropriate with regard to Giles's malpractice claims against Dr. Adcock. To prevail on a medical-malpractice claim, a plaintiff must prove "'1) the appropriate standard of care, 2) 1060883 29 the doctor's deviation from that standard, and 3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff.'" Pruitt, 590 So. 2d at 238 (quoting Bradford v. McGee, 534 So 2d 1076, 1079 (Ala. 1988)). With exceptions not applicable in this case, the plaintiff "must ... establish the defendant physician's negligence through expert testimony as to the standard of care and the proper medical treatment." 590 So. 2d at 237-38. The plaintiff must also "prove by expert testimony that the physician breached the standard of care and by the breach proximately caused the plaintiff's injury." University of Alabama Health Servs. Found. v. Bush, 638 So. 2d 794, 798 (Ala. 1994). Dr. Adcock carried his burden, as the movant for summary judgment, to establish that no genuine issue of material fact existed and that he was entitled to judgment as a matter of law on Giles's medical-malpractice claims. Specifically, Dr. Adcock submitted his own affidavit setting forth his qualifications as an expert in the field of gynecology, his familiarity with the standard of care and with Giles's case, his opinion that his treatment of Giles met the standard of 1060883 30 care, and his opinion that "nothing [he] did or failed to do in any way caused or contributed to the injuries alleged in [Giles's] Complaint." Therefore, the burden then shifted to Giles to produce substantial evidence demonstrating the existence of a genuine issue of material fact. See Gooden v. City of Talladega, 966 So. 2d 232, 235 (Ala. 2007) (quoting Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006)). The malpractice claims against Dr. Adcock as alleged in Giles's complaint center around three basic theories: first, that in failing to abandon the laparoscopic surgery altogether or to perform an open laparotomy for removal of the left ovary after discovering severe adhesions obscuring the left adnexum Dr. Adcock did not meet the standard of care; second, that Dr. Adcock negligently injured Giles's bowel during the surgery; and, third, that Dr. Adcock failed to treat the bowel injury properly. Giles's medical expert opined that Dr. Adcock breached the standard of care in that he performed the surgery while under the mistaken belief that the right ovary, not the left, was the ovary that had been diagnosed with a cyst before the surgery. According to Giles's expert, Dr. Adcock violated the standard of care by 1060883 31 removing the right ovary only but would have met the standard of care had he removed the left ovary only, both ovaries, or neither ovary. Giles points to Dr. Simmons's surgical pathology report, particularly Dr. Simmons's observation of "no gross abnormalities" on the cut section of the right ovary and his diagnosis of "[n]o pathologic abnormality" as evidence indicating that the right ovary was normal and should not have been removed during the surgery. However, Giles presented no expert testimony to the effect that one could infer from Dr. Simmons's surgical pathology report that Dr Adcock's action in removing the right ovary was below the standard of care. Rather, Giles's medical expert, Dr. DeSalvo, confirmed that the findings in the pathology report were not inconsistent with Dr. Adcock's observations of an abnormality in the operating room that led him to remove Giles's right ovary. Dr. DeSalvo also testified that, given Giles's medical history and complaints and the observations of the physicians in the operating room, removing the right ovary was a reasonable action. Thus, the fact that no pathologic abnormality was ultimately found on the right ovary when the ovary was 1060883 32 examined in the laboratory does not, on this record, constitute substantial evidence indicating that Dr. Adcock's actions in removing the right ovary during the operation fell below the standard of care. Further, the testimony of Giles's medical expert is not sufficient to satisfy Giles's burden of producing substantial evidence demonstrating the existence of a genuine issue of material fact as to her medical-malpractice claims against Dr. Adcock. 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 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). 1060883 33 Similarly, in Malone v. Dougherty, 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. "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."). Viewed as a whole, Dr. DeSalvo's testimony does not create a reasonable inference that Dr. Adcock violated the standard of care or performed a "wrong-site surgery" when, after 1060883 34 discovering severe adhesions obscuring the left adnexum, he did not abandon the laparoscopic surgery altogether or perform an open laparotomy to remove the left ovary. Dr. Adcock's testimony and postoperative notes indicate that he did not remove the left ovary because he found extensive adhesions that prevented him from adequately visualizing the left adnexum. There was not substantial evidence contradicting Dr. Adcock's evidence that he investigated removing the left ovary but decided not to proceed with removing that ovary because of the adhesions. Dr. DeSalvo testified in deposition that deciding not to proceed with removing the left ovary after discovering the extent of the adhesions on the left adnexum would fall within the standard of care. Further, Dr. DeSalvo testified that proceeding with the laparoscopy, checking the right ovary for abnormalities, and removing the right ovary after discovering what appeared to be a cyst on the right ovary would also have been within the standard of care, given Dr. Adcock's observations when he looked at the right ovary during the surgical procedure. Thus, in light of his testimony as a whole, the portions of Dr. DeSalvo's testimony cited by Giles, including his conclusory statements that Dr. 1060883 35 Adcock performed a "wrong-site surgery," do not constitute substantial evidence indicating that Dr. Adcock in fact operated on the "wrong site" when he removed the right ovary or that his actions in not abandoning the surgery altogether or converting the procedure to an open laparotomy after viewing the extent of the adhesions on the left ovary fell below the applicable standard of care. Further, Dr. DeSalvo's opinion that Dr. Adcock violated the standard of care by performing the surgery under the mistaken belief that the right ovary, not the left, was the ovary that had been diagnosed before the surgery with a cyst also does not amount to substantial evidence of malpractice when viewed in light of Dr. DeSalvo's testimony as a whole. According to Dr. DeSalvo, Dr. Adcock would not have removed only the right ovary had he realized it was the left ovary that had previously been diagnosed as abnormal. As Dr. DeSalvo testified: "Had -- had [Dr. Adcock] known that it was a complex ovarian cyst on the left and that was the one that really needed to come out -- you know, now this is, you know, Sunday quarterback, Monday morning quarterback -- I'm the king of mixed metaphors -- you know, what would he have done then? And again, that's why I think the range of the standard of care is that he would have proceeded on the left side, he 1060883 36 would have stopped or he would have opened her, that the reality is, is that the main thing that got her in the operating room wasn't the right ovary, it was the left." Assuming for the sake of argument that Dr. DeSalvo correctly described Dr. Adcock's belief during the surgery as to which ovary had previously been diagnosed as having a cyst, Dr. DeSalvo's testimony, taken as a whole, does not constitute substantial evidence that any belief by Dr. Adcock that the previously diagnosed cyst was located on the right ovary rather than the left caused him to remove the "wrong" ovary in this case or to otherwise negligently perform the surgery. See University of Alabama Health Servs. Found. v. Bush, 638 So. 2d at 798 (noting that a plaintiff in a medical- malpractice case must prove through expert testimony that the defendant physician's breach of the standard of care proximately caused the plaintiff's injury). The uncontradicted evidence establishes that, regardless of which ovary he believed had been previously diagnosed as having a cyst, Dr. Adcock investigated removing both ovaries during the procedure, decided not to remove the left ovary because of the risks and difficulties posed by the severe adhesions surrounding that ovary, and removed the right ovary after the 1060883 37 laparoscopy revealed what appeared to be a cyst on that ovary. Dr. DeSalvo opined that each of these three actions met the applicable standard of care. Thus, although Dr. DeSalvo testified that Dr. Adcock had breached the standard of care by entering the operating room under a mistaken belief as to which ovary had previously been diagnosed with a cyst, neither Dr. DeSalvo's testimony as a whole nor any part of it when viewed against the whole supports the theory that Dr. Adcock's belief as to which ovary was previously diagnosed with a cyst proximately caused any injury to Giles in this particular case. See Bush, 638 So. 2d at 798; see also Malone, 453 So. 2d at 723-24; Downey v. Mobile Infirmary Med. Ctr., 662 So. 2d 1152, 1154 (Ala. 1995) ("This Court has consistently held that the testimony of an expert witness in a medical malpractice case must be viewed as a whole, and that a portion of it should not be viewed abstractly, independently, or separately from the balance of the expert's testimony."); Pruitt, 590 So. 2d at 239 (quoting Hines, 477 So. 2d at 304-05); Pendarvis v. Pennington, 521 So. 2d at 970; Hines, 477 So. 2d at 304. Additionally, when Mr. Giles's affidavit is viewed, as it must be, in the light most favorable to Giles, Dr. Adcock's 1060883 38 apologies to Mr. Giles do not constitute expert testimony that he injured Giles by breaching the standard of care. "'The expert testimony which establishes plaintiff's prima facie case may be that of defendant, and extrajudicial admissions of defendant have the same legal competency as direct expert testimony to establish the critical averments of the complaint, provided the statement constitutes an admission of negligence of lack of the skill ordinarily required for the performance of the work undertaken; an extrajudicial statement amounting to no more than an admission of bona fide mistake of judgment or untoward result of treatment is not alone sufficient to permit the inference of breach of duty. ...'" Pappa v. Bonner, 268 Ala. 185, 191, 105 So. 2d 87, 92 (1958) (quoting 70 C.J.S. Physicians and Surgeons § 62, pp. 1008- 09). When every reasonable factual inference is taken in Giles's favor, Dr. Adcock's apologies, at most, amount to an admission that he operated on Giles while he was under the impression that the right ovary, rather than the left, was the ovary that had been previously diagnosed with a cyst. Further, Dr. Adcock's apologies indicate that he would have performed the surgery differently had he realized during the surgery that the left ovary was the ovary previously diagnosed with a cyst. However, Dr. Adcock's apologies, as recounted in Mr. Giles's affidavit, do not contradict the evidence 1060883 39 indicating that Dr. Adcock investigated removing both ovaries, decided not to proceed with removing the left ovary after evaluating the risks and difficulties of removing that ovary, and removed the right ovary after discovering what appeared to be a cyst on that ovary. Dr. Adcock's apologies also do not contradict his testimony and the testimony of Giles's expert that each of these three actions fell within the standard of care. In light of the testimony from Giles's expert as well as from Dr. Adcock that each element of the surgery as actually performed met the standard of care, it cannot be said that Dr. Adcock's apologies qualify as "'an admission of negligence of lack of the skill ordinarily required for the performance of the work undertaken'" rather than "'no more than an admission of bona fide mistake of judgment or untoward result of treatment.'" Pappa, 268 Ala. at 191, 105 So. 2d at 92. Therefore, Mr. Giles's account of Dr. Adcock's apologies does not provide substantial evidence creating a genuine issue of material fact with regard to Giles's claims that Dr. Adcock committed malpractice -- that is, that he negligently caused injury to Mrs. Giles -- by removing the right ovary and not removing the left or by entering the operating room under the 1060883 40 mistaken belief that the right ovary, not the left, had previously been diagnosed with a cyst. As to the injury to Giles's bowel, Dr. DeSalvo testified that the infliction of the injury was "unavoidable" and "wasn't a deviation" from the standard of care. Dr. DeSalvo later testified, after a break and upon questioning by Giles's attorney, that the bowel injury represented a deviation from the standard of care in that the injury occurred while Dr. Adcock was "trying to get out the right [ovary] because it was the left that he should have been trying to get out." However, as explained above, Dr. DeSalvo's testimony as a whole does not provide substantial evidence indicating that Dr. Adcock breached the standard of care by removing the right ovary. Rather, Dr. DeSalvo affirmatively testified multiple times that investigating and ultimately removing the right ovary during the surgery fell within the standard of care. Taken as a whole, therefore, Dr. DeSalvo's testimony cannot reasonably be interpreted as providing substantial evidence that Dr. Adcock injured Giles's bowel as a result of breaching the standard of care. 1060883 41 Dr. DeSalvo's testimony also fails to create a genuine issue as to whether Dr. Adcock breached the standard of care or injured Giles by failing to timely or adequately treat Giles's bowel injury. Although Dr. DeSalvo criticized Dr. Adcock for waiting until November 14, 2001, to readmit Giles to the hospital for treatment of the bowel injury, Dr. DeSalvo further testified that he was not qualified to say whether waiting until November 14 to admit Giles to the hospital made any difference in Giles's case. Taken as a whole, with every reasonable inference drawn in favor of Giles, Dr. DeSalvo's testimony does not constitute substantial evidence that Dr. Adcock's treatment of Giles's bowel complications fell below the standard of care or caused Giles any further injury. Bush, 638 So. 2d at 798 (stating that the plaintiff in a medical-malpractice action must prove by expert testimony that, by breaching the standard of care, "the physician ... proximately caused the plaintiff's injury"). For these reasons, Giles has not carried her burden to rebut Dr. Adcock's prima facie showing that no genuine issue of material fact exists. Dr. Adcock was entitled to judgment as a matter of law on Giles's malpractice claims, and the 1060883 42 trial court correctly entered a summary judgment on those claims against him. C. Medical-negligence claims against Brookwood Giles's medical-negligence claims against Brookwood are based on allegations that various acts or omissions of Brookwood or its agents caused Dr. Adcock to perform a "wrong- site" surgery when he removed only her right ovary. As explained above, however, Giles failed to produce substantial evidence creating a genuine issue of material fact as to whether the removal of her right ovary was, in fact, a "wrong- site surgery" rather than the proper exercise of Dr. Adcock's professional judgment falling within the standard of care governing the operation. Therefore, Giles has also failed to produce evidence creating a genuine issue of material fact as to her medical-negligence claims against Brookwood. D. Failure-to-obtain-informed-consent claims "The elements of a cause of action against a physician for failure to obtain informed consent are: (1) the physician's failure to inform the plaintiff of all material risks associated with the procedure, and (2) a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician." 1060883 43 Phelps v. Dempsey, 656 So. 2d 377, 380 (Ala. 1995) (citing Fain v. Smith, 479 So. 2d 1150 (Ala. 1985); Fore v. Brown, 544 So. 2d 955 (Ala. 1989)). The test for determining whether the physician has disclosed all the material risks to a patient is "a professional one, i.e., whether the physicians had disclosed all the risks which a medical doctor practicing in the same field and in the same community would have disclosed. Expert testimony is required to establish what the practice is in the general community." Fain, 479 So. 2d at 1152. Dr. Adcock established a prima facie case that no genuine issue of material fact existed as to the first element of Giles's failure-to-obtain-informed-consent claim and that he was entitled to judgment as a matter of law on that claim. According to Dr. Adcock's testimony and medical notes, he had certain conversations with Giles regarding the intended scope and potential risks of the operation, including the possibility that either or both ovaries would be removed. Dr. DeSalvo testified that the conversations described by Dr. Adcock's testimony and his contemporaneous notes would have met the standard for informing Giles that he might remove 1060883 44 either ovary, or both, and the risks and long-term effects of doing so. Therefore, the burden then shifted to Giles to put forth evidence creating a genuine issue of material fact as to whether Dr. Adcock failed to inform her of all material risks associated with the procedure. Giles did not meet this burden. She submitted no evidence that the conversations Dr. Adcock described did not occur. At most, she provides evidence indicating that she does not recall whether Dr. Adcock had those conversations with her. Giles's inability to recall those conversations does not constitute substantial evidence that the conversations did not occur, only that she cannot remember whether they occurred or what Dr. Adcock discussed with her. Therefore, no genuine issue of material fact exists, and Dr. Adcock is entitled to judgment as a matter of law on Giles's failure-to-obtain- informed-consent claim. Giles's failure-to-obtain-informed-consent claims against the remaining defendants fail as well, because there is no genuine issue of material fact as to whether she was informed of the material risks associated with the procedure, and Giles 1060883 45 has produced no evidence, legal authority, or argument to suggest that the other defendants breached a duty to provide her with information beyond that provided by Dr. Adcock or to obtain her consent. E. Spoliation-of-evidence claims On appeal, Giles makes no argument and cites no authority in support of her claims against the defendants alleging spoliation of evidence; thus, she has abandoned any challenge to the summary judgment on those claims, and we affirm the trial court's summary judgment on those claims. Butler v. Town of Argo, 871 So. 2d 1, 20 (Ala. 2003)("'[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party ....'" (quoting Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994)); cf. Chunn v. Whisenant, 877 So. 2d 595, 598 n.2 (Ala. 2003); Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251, 253 (Ala. 1985) ("While we attempt to avoid dismissing appeals or affirming judgments on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant's claim when the appellant fails to articulate that claim and presents no authorities in support of that claim."). 1060883 46 F. Giles's claims against OB-GYN South OB-GYN South did not move for a summary judgment. The trial court, however, entered a summary judgment for OB-GYN South because Giles's claims against OB-GYN South were derivative of her claims against Dr. Adcock and Dr. Perry and because the trial court concluded that Dr. Adcock and Dr. Perry were entitled to a summary judgment on all claims against them. Regarding the summary judgment for OB-GYN South, Giles presents the following argument: "The summary ... judgment in favor of Dr. Adcock and hence OB[-]GYN South should be reversed .... OB[-] GYN South had not filed a [summary-judgment] motion and on this ground alone [the summary-judgment in favor of OB-GYN South] might be subjected to reversal but as the [trial] court aptly noted the action against [OB-GYN South] is a derivative of the claim[s] against Dr. Adcock and [Dr.] Perry hence the Summary Judgment in [OB-GYN South's] favor should be reversed." This Court has previously held that "a trial court should not sua sponte enter a summary judgment in favor of a party who has not filed a motion seeking such a judgment without affording 'an opportunity to present evidence in opposition to it.'" Alpine Assoc. Indus. Servs. v. Smitherman, 897 So. 2d 391, 395 (Ala. 2004) (quoting Moore v. Prudential Residential 1060883 47 Servs. Ltd. P'ship, 849 So. 2d 914, 927 (Ala. 2002)). This is because "'[o]ne purpose of the procedural rights to notice and hearing under Rule 56(c)[, Ala.R.Civ.P.,] is to allow the nonmoving party the opportunity to discover and to present evidence opposing the motion for summary judgment.'" Moore, 849 So. 2d at 927 (quoting Van Knight v. Smoker, 778 So. 2d 801, 805 (Ala. 2000)). We have reversed summary judgments when neither party had filed a summary-judgment motion and also when the losing party had no notice that a summary judgment could be forthcoming and no opportunity to present evidence in opposition to the summary judgment. See, e.g., Moore, 849 So. 2d at 927 ("Because Rule 56 requires, at the least, that the nonmoving party be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it, the trial court violates the rights of the nonmoving party if it enters a summary judgment on its own, without any motion having been filed by a party."). "'Rule 56 "is not prefaced upon whether or not the opposing party may successfully defend against summary judgment, [but] it does require that the opportunity to defend be given"'" (quoting Van Knight, 778 So. 2d at 806, quoting in 1060883 48 turn Tharp v. Union State Bank, 364 So. 2d 335, 338 (Ala. Civ App. 1978)), although the right to notice of a potential summary judgment may be waived. See id. Giles does not argue that the summary judgment in favor of OB-GYN South was improper because she had no notice or opportunity to present evidence in opposition to such a judgment. Giles's statement that the summary judgment "might" be reversed because OB-GYN South did not file a motion is not sufficient to state or support an argument that Giles had no opportunity to oppose the summary judgment for OB-GYN South. Giles concedes that the trial court "aptly noted" that her claims against OB-GYN South are derivative of her claims against Dr. Adcock and Dr. Perry. Because her claims against OB-GYN South are premised solely on the principle of respondeat superior, Giles's claims against OB-GYN South require proof of the same elements as her claims against Dr. Adcock and Dr. Perry and are premised on the same facts. Cf., e.g., United Steelworkers of Am. AFL-CIO-CLC v. O'Neal, 437 So. 2d 101, 103 (Ala. 1983). ("In a joint action in tort for misfeasance or malfeasance against an agent and his principal, where respondeat superior is the sole basis of recovery, a 1060883 49 verdict in favor of the agent works an automatic acquittal of the principal so that a verdict against him must be set aside."). Giles presented briefs, arguments, and evidence to the trial court in opposition to the summary-judgment motions of Dr. Adcock and Dr. Perry. Under the circumstances of this case, Giles had sufficient notice and opportunity to fully present all legal arguments and all relevant evidence in opposition to the summary judgment the trial court ultimately entered in favor of OB-GYN South on the ground that Dr. Adcock and Dr. Perry were entitled to summary judgment. Cf. Bibbs v. MedCenter Inns of Alabama, Inc., 669 So. 2d 143, 144 & n.1 (Ala. 1995). Giles contests the summary judgment in favor of OB-GYN South by arguing that Dr. Adcock and Dr. Perry are not entitled to a summary judgment; therefore, she argues, OB-GYN South is not entitled to a summary judgment. Because we hold that Dr. Adcock and Dr. Perry are entitled to a summary judgment on all claims against them, we reject Giles's contention that OB-GYN South is not entitled to a summary 1060883 50 judgment on the ground that, according to Giles, Dr. Adcock and Dr. Perry are not entitled to summary judgment. Accordingly, we affirm the summary judgment in favor of OB-GYN South. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose."(footnote omitted)); Burton v. City of Belle Glade, 178 F.3d 1175, 1203-04 (11th Cir. 1999) ("A [trial] court possesses the power to enter summary judgment sua sponte provided the losing party 'was on notice that she had to come forward with all of her evidence.'" (quoting Celotex, 477 U.S. at 326)); Ex parte Novartis Pharms. Corp., 975 So. 2d 297, 300 n.2 (Ala. 2007) ("Federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure." (citing Borders v. City of Huntsville, 875 So. 2d 1168, 1176 n. 2 (Ala. 2003)); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)("The major concern in 1060883 51 cases in which the court wants to enter summary judgment without a Rule 56 motion by either party is not really one of power. ... Rather, the question raised ... is whether the party against whom the judgment will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment should not be granted. ... If the court provides this opportunity, however, there seems to be no reason for preventing the court from acting on its own. To conclude otherwise would result in unnecessary trials and would be inconsistent with the objective of Rule 56 of expediting the disposition of cases." (footnotes omitted)); see also Rule 56, Ala. R. Civ. P., Committee Comments on 1973 Adoption ("'Summary judgment ... is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial[;] it is to carefully test this out[] in advance of trial by inquiring and determining whether such evidence exists.'" (quoting Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)). 1060883 52 Conclusion No genuine issue of material fact exists, and the defendants are entitled to a judgment as a matter of law on Giles's claims against them. Therefore, we affirm the summary judgment. AFFIRMED. See, Woodall, Smith, and Parker, JJ., concur.	June 27, 2008
8f90bd5b-cc58-4588-b8ee-b2e783b8c7d1	Union Planters Bank, N.A. v. The People of the State of New York (Certified Question from the Eleventh Circuit Court of Appeals: No. 05-11207; U.S. District Court for the Southern District of Ala. No. 04-196 CV-BH)). Question	N/A	1050562	Alabama	Alabama Supreme Court	REL:02/01/08 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, 2007-2008 _________________________ 1050562 _________________________ Union Planters Bank, N.A. v. People of the State of New York Certified Questions from the United States Court of Appeals for the Eleventh Circuit (No. 05-11207) PER CURIAM. Pursuant to Rule 18, Ala. R. App. P., the following questions have been certified to this Court by the United States Court of Appeals for the Eleventh Circuit: 1050562 2 "1. Does the proper construction of Ala. Code [1975,] § 15-13-152 and § 15-13-156 permit the holder of the bail bond to file the affidavit before forfeiture of the bond; and if so, does that filing create an enforceable lien at that time? If yes, does that filing mean that the filer would take precedence in a foreclosure over the liens of subsequent filers such as Union Planters? "2. If New York is precluded from taking precedence pursuant to the resolution of the preceding question, did the affidavit nevertheless create an equitable mortgage; and if so, would New York take precedence over the liens of subsequent filers such as Union Planters? "3. If New York does not take precedence pursuant to the resolution of either of the two preceding questions, can it nevertheless take precedence because Union Planters' agent had actual knowledge of the affidavit?" Facts and Procedural History The Eleventh Circuit Court of Appeals set out the facts as follows: "In July 1999, Serag Khodir issued a mortgage to Union Planters Bank in the amount of $480,000, covering a property in Baldwin County, Alabama. Almost two years later, Khodir and his business partner, Salem Hady, were indicted in New York. The New York trial court set an appearance bond at $300,000 in favor of New York as security for Mr. Hady's appearance. Khodir executed a property bail bond for that amount in favor of New York, and on December 7, 2001, New York placed of record in the Baldwin County Probate Office a bond executed by Khodir in order to create a lien on the property to secure the bond. Khodir then decided to refinance his 1999 mortgage, which he had paid down to 1050562 3 $154,000. the new mortgage was for $350,000, and represented a refinancing of the $154,000 plus $196,000. It was recorded on February 12, 2002, and the first mortgage was recorded as cancelled on March 19, 2002. During the title search, the title company found the Khodir affidavit regarding the bail bond and deemed it unimportant. "On June 20, 2003, a judge of the New York State Supreme Court executed an order forfeiting bail, which was filed with the City Clerk of New York County. On September 9, 2003, Union Planters initiated a foreclosure sale and sold the property for $470,000. The amount due on the mortgage was $358,709.25. New York domesticated the bond forfeiture as a judgment in Alabama on May 10, 2004. "Union Planters brought suit to determine priority among the three lienholders. After New York 1 removed the action to federal court, the parties moved for summary judgment. The district court granted Union Planters' motion, relying heavily on an opinion issued by the Alabama Attorney General. This opinion addressed the issue of whether or not a property bail bond is invalidated if the property is sold. The opinion held that it was not. However, the opinion also indicated that the bail bond statutes apparently intended to create a lien only after the final forfeiture is entered. The district court held that Union Planters' mortgage was first in line, construing the statutes as permitting the filing and creation of a lien only after the forfeiture, and that took place after the second mortgage was entered. ____________________ " On February 26, 2002, a mortgage in the amount 1 of $95,000 was recorded from Khodir to Beggs & Lane, LLP. However, it has been subordinated to New York's claim and so was not at issue below or on appeal. Also not at issue in this case is the $154,000 1050562 4 amount of Union Planters' original mortgage, which was refinanced in connection with its subsequent mortgage. The parties agree that Union Planters' $154,000 amount has the first priority; they contest only the balance of Union Planters' mortgage which was advanced after the recording of New York's bail bond." Union Planters Bank, N.A. v. New York, 436 F.3d 1305, 1306-07 (11th Cir. 2006). Discussion The United States District Court for the Southern District of Alabama concluded that Alabama law is controlling as to the issue of when New York's interest in the property attached and that under § 15-13-152 and § 15-13-156, Ala. Code 1975, part of the Alabama Bail Reform Act, a pledge of property to secure a bail bond does not become an enforceable lien on the real property until final forfeiture is entered by the trial court following the defendant's failure to appear. The United States Court of Appeals for the Eleventh Circuit, pursuant to Rule 18, Ala. R. App. P., certified three questions to this Court "because there are no cases interpreting the Alabama statutes governing the property bail bonds and when they become liens, and because [the Eleventh 1050562 5 Circuit Court of Appeals did] not find clear guidance in the statutes themselves." Rule 18(a), Ala. R. App. P., provides: "When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are not clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified questions the Supreme Court of this State, by written opinion, may answer." The threshold issue in the present case is whether Alabama law is determinative of the conflict between Union Planters and the people of the State of New York ("New York"). The first question posed by the Eleventh Circuit Court of Appeals concerns the Alabama Bail Reform Act, § 15-13-100 et seq., Ala. Code 1975. Section 15-13-101(1) defines an appearance bond as "an undertaking to pay the clerk of the circuit, district, or municipal court, for the use of the State of Alabama or the municipality, a specified sum of money upon the failure of a person released to comply with its conditions." "'[B]ail' is the release of a person who has been arrested and is being held in the custody of the State of Alabama or one of its subdivisions for the commission of a 1050562 6 criminal offense." § 15-13-102. Section 15-13-107(a) provides that "[j]udges of any court within the State of Alabama may accept, take, and approve bail within the jurisdiction of their respective courts." The provisions of the Alabama Bail Reform Act address bail bonds created by the courts of Alabama. When real property is pledged as bail to secure an appearance in Alabama, the Alabama Bail Reform Act would be determinative of when an enforceable lien is created. However, the Alabama Bail Reform Act does not apply to foreign jurisdictions. It does not apply to a property bond to pay a New York court to secure an appearance in a New York court. Accordingly, an answer to the question posed in the first certified question –- "Does the proper construction of Ala. Code [1975,] § 15-13-152 and § 15-13-156 permit the holder of the bail bond to file the affidavit before forfeiture of the bond; and if so, does that filing create an enforceable lien a that time? If yes, does that filing mean that the filer would take precedence in a foreclosure over the liens of subsequent filers such as Union Planters?" -- would not be determinative of whether an enforceable lien had been created by New York's recording of the affidavit in the Baldwin County 1050562 7 Probate Court. Therefore, we decline to answer the first certified question. In question two, the Eleventh Circuit Court of Appeals asked if statutory requirements for a lien were not met under the Alabama Bail Reform Act, then did the recordation of the affidavit in the Baldwin County Probate Court nevertheless create an equitable mortgage in favor of New York. A familiar principle in equity is that where it is clearly shown that the parties to a transaction intended to give a security for a debt or obligation upon real property, but for some reason there is a failure to carry out such intention in the contract, a court, in an appropriate proceeding, will declare an equitable mortgage or lien to exist and will enforce the same to satisfy the debt or obligation. Edwards v. Scruggs, 155 Ala. 568, 46 So. 850 (1908). "[W]hen a mortgage is invalid due to a technical defect, equity will give effect to the intent of the parties according to the substance of the transaction." Central Bank of the South v. Dinsmore, 475 So. 2d 842, 846 (Ala. 1985). The elements of an equitable mortgage are: "[T]he mortgagor [must] have a mortgageable interest in the property sought to be charged as security; 1050562 8 that there be clear proof of the sum which it was to secure; that there be a definite debt, obligation or liability to be secured, due from the mortgagor to the mortgagee; and the intent of the parties to create a mortgage, lien or charge on the property [must be] sufficiently described or identified to secure an obligation." Murphy v. Carrigan, 270 Ala. 87, 91, 116 So. 2d 568, 571 (1959). We declined to answer the question whether New York had created a legal mortgage under the Alabama Bail Reform Act, and we must now decline to answer whether an equitable mortgage has been created. Although the Alabama Bail Reform Act does not apply to the affidavit filed by New York in the Baldwin County Probate Court, other recording statutes in Alabama may be applicable to the question whether the affidavit created an enforceable lien that has precedence over subsequent liens. Equity will not lie when there is an adequate remedy at law. McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14 (Ala. 1986). The parties have not presented any argument in their briefs as to whether the affidavit filed by New York is an otherwise valid lien under any provision of Alabama real-property law other than the Alabama Bail Reform Act, and, consequently, whether equitable 1050562 9 relief would be available should there be a technical defect in the creation of such an alternate lien that prevented enforcement when it is clearly shown that the parties to the transaction intended to give security for a debt or obligation upon real property, but for some reason there was a failure to carry out their intention in the contract. Accordingly, we decline to answer the question whether an equitable mortgage has been created. The third and final question certified by the federal appeals court -- "If New York does not take precedence pursuant to the resolution of either of the two preceding questions, can it nevertheless take precedence because Union Planters' agent had actual knowledge of the affidavit?" –- would not be determinative of whether an enforceable lien had been created by New York's recording of the affidavit in light of our reasons for declining to answer the previous questions. Accordingly, we decline to answer question three. QUESTIONS DECLINED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. 1050562 Although Justice Lyons was not present at oral argument, 1 he has reviewed the video recording of the oral argument. 10 Lyons, J., concurs in part and concurs in the result.1 1050562 11 LYONS, Justice (concurring in part and concurring in the result). I concur fully in the main opinion's analysis of why this Court should decline to answer question one because that question does not require a determination of the effect of Alabama law. I concur in the result as to this Court's determination that it should decline to answer question two as that question presupposes no other basis exists for a statutory lien. Absent a finding by the United States Court of Appeals for the Eleventh Circuit that it has deemed any analysis of other bases for a statutory lien irrelevant by reason of waiver in the proceedings before it, we should not answer a potentially hypothetical question dealing with the applicability of principles governing equitable mortgages. I likewise concur in the result as to this Court's determination that it should decline to answer question three, which also invites this Court to address a potentially hypothetical question dealing with the effect of actual knowledge on the part of Union Planters' agent.	February 1, 2008
699e5196-d53f-41e4-87bc-53301d885898	Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Terry Harris v. State of Alabama)	N/A	1061198	Alabama	Alabama Supreme Court	REL: 7/11/08 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, 2008 _________________________ 1061198 _________________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Terry Harris v. State of Alabama) (Montgomery Circuit Court, CC-04-1289; Court of Criminal Appeals, CR-04-1617) SEE, Justice. The State petitioned this Court for the writ of certiorari after the Court of Criminal Appeals reversed the 1061198 2 judgment of the trial court and remanded the cause for a new trial. Harris v. State, [Ms. CR-04-1617, March 23, 2007] ___ So. 2d ___ (Ala. Crim. App. 2007). The Court of Criminal Appeals reversed the judgment on the ground that Terry Harris, a criminal defendant, had been denied his constitutional right to be represented by counsel at critical stages of the trial proceedings because Harris did not expressly or impliedly waive his right to counsel and the trial court did not advise Harris of the dangers and disadvantages of self- representation. We granted certiorari review to determine whether the decision of the Court of Criminal Appeals conflicts with its decision in Coughlin v. State, 842 So. 2d 30 (Ala. Crim. App. 2002). We hold that it does, and we reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion. Facts and Procedural History In January 2000, Harris contacted the Alabama Securities Commission to discuss the creation of an investment firm known as Networker 2000, of which Harris would be the president, chief executive officer, and a 60% owner. According to 1061198 Section 8-6-3(a), Ala. Code 1975, provides: 1 "(a) It is unlawful for any person to transact business in this state as a dealer or agent for securities unless he is registered under this article. It is unlawful for any dealer or issuer to employ an agent unless the agent is registered." Section 8-6-3(b), Ala. Code 1975, provides: "(b) It is unlawful for any person to transact business in this state as an investment adviser or as an investment adviser representative unless: "(1) He is so registered under this 3 Harris, fee-paying members of an investment program created by Networker 2000 would be eligible to participate in an investment club called Infinity 2000. Harris was told that before he could proceed with the program he would have to register as an investment-adviser representative. Harris did not register; instead, he modified his business plan to create a system of indirect compensation whereby individuals who paid Networker 2000 a monthly fee of $35 and who recruited three other paying members would be eligible to participate in the Wealth Builders International Program. In March 2004, a Montgomery County grand jury indicted Harris for securities-registration violations under §§ 8-6- 3(a), -3(b), and -4, Ala. Code 1975. 1 1061198 article; "(2) His only clients in this state are investment companies as defined in the Investment Company Act of 1940, other investment advisers, broker-dealers, banks, trust companies, savings and loan associations, insurance companies, employee benefit plans with assets of not less than $1,000,000, and governmental agencies or instrumentalities, whether acting for themselves or as trustees with investment control, or other institutional investors as are designated by rule or order of the commission; or "(3) He has no place of business in this state and during any period of 12 consecutive months does not direct business communications in this state in any manner to more than five clients, other than those specified in subdivision (2), whether or not he or any of the persons to whom the communications are directed is then present in this state." Section 8-6-4, Ala. Code 1975, provides: "It is unlawful for any person to offer or sell any security in this state unless: "(1) It is registered under this article; "(2) The security is exempt from registration under Section 8-6-10; or 4 1061198 "(3) The transaction is exempt under Section 8-6-11." 5 Harris retained J.L. Chestnut and Philip Henry Pitts as counsel. On joint motion of the parties, the trial court agreed to continue the trial and set the trial date for October 25, 2004. The court subsequently moved the trial date to January 24, 2005. On January 6, 2005, Chestnut moved for a continuance because he and Pitts had not had an opportunity to review 19 boxes of discovery material that had been recently disclosed by the State. However, the trial court did not rule on the motion for a continuance because Chestnut and Pitts were able to review the materials disclosed by the State. Chestnut and Pitts prepared to meet with Harris on January 19, 2005, to discuss Harris's case. However, before that meeting, Harris terminated the services of both attorneys. The trial court was not notified of these developments until the morning of the trial, at which time Harris told the court that he had fired his attorneys because they were not experienced in securities law. Harris also indicated that he had retained a new attorney who was familiar with securities litigation, but 1061198 6 Harris's new attorney did not file an appearance. The trial judge expressed his belief that the events involving Harris's attorneys were a dilatory tactic and informed Harris that he had waived his right to counsel by his conduct. The trial judge further informed Harris that he would not grant a continuance because the issues to be tried were "very simple," and, according to the trial judge, Harris had been granted adequate time to retain counsel who Harris believed was competent to handle his case. The trial judge notified Harris that he could proceed with Chestnut and Pitts as counsel or he could represent himself with the assistance of advisory counsel. Although Harris indicated that he did not want to represent himself, he opted to do so with Chestnut acting as advisory counsel. Although the trial judge did not explicitly advise Harris of the dangers and disadvantages of proceeding without the assistance of counsel, when Harris indicated that he did not understand what a jury panel is, the trial judge used that as an example of why Harris required the assistance 1061198 Harris and the trial judge had the following exchange: 2 "[The Court]: Now, y'all hadn't had a chance to look at the panels though. "[Mr. Harris]: I don't even understand what a panel is, Your Honor. "[The Court]: Well, I mean, that's why, you know, if you had to have brain surgery and they told you you had to –- you know, you need to close off the carotid artery or something like that, you know, and you didn't know what it was then, you know, just mess yourself up. See, so that's why you need experts, legal experts." 7 of counsel during his trial. Before closing arguments, the 2 State and Harris agreed to enter into a plea agreement; the State agreed to dismiss some counts of the indictment, and Harris agreed to plead guilty to count 5, operating as an unregistered investment-adviser representative in violation of § 8-6-3(b), Ala. Code 1975. Harris subsequently filed a pro se motion to vacate his guilty plea, asserting that he did not knowingly, intelligently, and voluntarily enter into the plea agreement. Harris hired new counsel to file a motion to continue the sentencing hearing. The trial court granted Harris's motion to continue the sentencing proceedings. Harris terminated the services of his then retained counsel and obtained yet new 1061198 8 counsel. Harris's new counsel moved the trial court a second time to continue the sentencing proceedings. The trial court denied that motion and found that Harris's guilty plea had been knowingly, intelligently, and voluntarily entered. The Court of Criminal Appeals reversed Harris's conviction, holding that Harris had been denied his constitutional right to be represented by counsel at critical stages of the trial proceedings because Harris did not expressly or impliedly waive his right to counsel and the trial court did not advise Harris of the dangers and disadvantages of self-representation. Harris v. State, So. 2d at . The State petitioned this Court for certiorari review, and we granted the petition to determine whether the Court of Criminal Appeals' decision conflicts with that court's decision in Coughlin v. State, 842 So. 2d 30 (Ala. Crim. App. 2002). Analysis In Faretta v. California, 422 U.S. 806, 819 (1975), the Supreme Court of the United States held that the Sixth Amendment to the Constitution of the United States, which grants a criminal defendant the right to be represented by 1061198 9 counsel, encompasses a defendant's right to represent himself or herself in a criminal proceeding. The Court stated that "[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." 422 U.S. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A criminal defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). This Court has recognized that "'while a waiver hearing expressly addressing the disadvantage of a pro se defense is much to be preferred, it is not absolutely necessary. The ultimate test is not the trial court's express advice but rather the defendant's understanding.'" Tomlin v. State, 601 So. 2d 124, 128 (Ala. 1991) (quoting Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir. 1986)). "'Whether a defendant who chooses to represent himself has knowingly, 1061198 In Tomlin, this Court discussed six factors a court 3 should weigh in determining whether, under the totality of the circumstances, a defendant has knowingly, intelligently, and voluntarily waived his or her right to counsel. This Court listed the following six factors: "'(1) [W]hether the colloquy between the court and the defendant consisted merely of pro forma answers to pro forma questions, United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir.), cert. denied, 436 U.S. 919, 98 S. Ct. 2267, 56 L.Ed.2d 760 (1978); (2) whether the defendant understood that he would be required to comply with the rules of procedure at trial, Faretta [v. California, 422 U.S.] at 835-36, 95 S. Ct. at 2541-42; Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 1979); (3) whether the defendant had had previous involvement in criminal trials, United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); (4) whether the defendant had knowledge of possible defenses that he might raise, Maynard, supra; (5) whether the defendant was represented by counsel before trial, Hafen, supra; and (6) whether "stand-by counsel" was appointed to assist the defendant with his pro se defense, see Faretta, supra, at 834 n.6, 95 S. Ct. at 2540 n.6; Hance v. Zant, 969 F.2d 940, 950 n.6 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), overruled on other grounds, Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985).'" 601 So. 2d at 129 (quoting Tomlin v. State, 601 So. 2d 120, 124 (Ala. Crim. App. 1989)). 10 intelligently, and voluntarily waived his right to counsel can be indicated by the record or by the totality of the circumstances surrounding the waiver.'" Baker v. State, 933 3 1061198 Rule 6.1(b), Ala. R. Crim. P., provides, in relevant 4 part: "If a nonindigent defendant appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the cause shall proceed." 11 So. 2d 406, 409 (Ala. Crim. App. 2005) (quoting Coughlin, 842 So. 2d at 35, citing Johnson, 304 U.S. at 464). "In each case the court needs to look to the particular facts and circumstances involved, 'including the background, experience, and conduct of the accused.'" Tomlin, 601 So. 2d at 128-29 (quoting Johnson, 304 U.S. at 464). The State argues that the Court of Criminal Appeals' holding that Harris did not knowingly and intelligently waive his right to the assistance of counsel and that he had not been advised about the dangers and disadvantages of self- representation conflicts with that court's prior decision in Coughlin. In Coughlin, the Court of Criminal Appeals held that Coughlin, a nonindigent defendant, had impliedly waived his right to counsel under Rule 6.1(b), Ala. R. Crim. P.,4 because he appeared at trial without counsel after having been afforded six months to retain counsel. The Court of Criminal Appeals stated in Coughlin that "it is the nonindigent defendant's act of appearing at any proceeding without 1061198 12 counsel, after having been given a reasonable time to retain counsel, that serves as a waiver of his right to counsel 'on the record.'" 842 So. 2d at 34 (quoting Rule 6.1(b), Ala. R. Crim. P.) (emphasis omitted). The Court of Criminal Appeals explained in Coughlin that in such a situation the court will determine whether a nonindigent defendant knowingly and intelligently waives his or her right to counsel by "consider[ing] the totality of the circumstances surrounding the nonindigent defendant's waiver of the right to counsel and his choice to represent himself, including the background, experience, and conduct of the accused." 842 So. 2d at 35. Because the Court of Criminal Appeals analyzes a nonindigent defendant's implied waiver of the right to counsel by reviewing the totality of the circumstances surrounding the waiver, a trial court's "fail[ure] to abide by the letter of Rule 6.1(b) and Faretta [v. California, 422 U.S. 806 (1975),] does not necessarily result in the defendant's being deprived of counsel and, thus, the trial court's being jurisdictionally barred from rendering a judgment." Couglin, 842 So. 2d at 35. The State argues that Harris impliedly waived his right 1061198 13 to counsel under Rule 6.1(b), Ala. R. Crim. P., because Harris, a nonindigent defendant, appeared at trial without counsel after having been afforded a reasonable opportunity to retain counsel. The State argues that the Court of Criminal Appeals' decision in Harris's case conflicts with Coughlin because the Court of Criminal Appeals "accepted Harris's representations that he required new counsel at face value and then proceeded to require the trial court to adhere to the letter of Faretta and Rule 6.1." State's brief at 10. The State maintains that the Court of Criminal Appeals should have applied the totality-of-the-circumstances test to determine whether Harris, a nonindigent defendant, knowingly and intelligently waived his right to counsel by appearing at trial without counsel after having been afforded a reasonable opportunity to retain counsel. In this case, Harris had ample opportunity to retain counsel he believed was competent to handle his case. However, over six months after Harris had retained Chestnut and Pitts and a week before Harris's trial was scheduled to begin, Harris terminated the services of his attorneys and appeared at trial without counsel. Under the express language 1061198 To read Rule 6.1(b), Ala. R. Crim. P., to mean that 5 Harris was not afforded a reasonable time within which to retain counsel simply because he had terminated the services of his counsel only a week before he appeared at trial would allow a defendant to avoid trial by firing counsel on the eve of trial and appearing at trial unrepresented. The trial court would have to grant a continuance to allow the defendant to obtain new counsel. "[The] freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administration of justice." United States v. Terry, 449 F.2d 727, 728 (5th Cir. 1971) (citing Bowman v. United States, 409 F.2d 225, 226 (5th Cir. 1969)). The good-faith need of a criminal defendant to change counsel is adequately protected by the full procedure set out in Coughlin. 14 of Rule 6.1(b), Ala. R. Crim. P., Harris, "a nonindigent defendant [who] appear[ed] without counsel at any proceeding after having been given a reasonable time to retain counsel," thereby waived his right to counsel.5 The determination that a nonindigent defendant has waived his or her right to counsel by appearing at a proceeding without counsel after having been afforded a reasonable opportunity to retain counsel is, we note, only the first step in the analysis. In order to effectively waive his or her Sixth Amendment right to counsel, a defendant must "'knowingly and intelligently' forgo" that right. Faretta, 422 U.S. at 835. The Court of Criminal Appeals in Coughlin held that a court is to evaluate whether a defendant's waiver is knowing, 1061198 15 intelligent, and voluntary by analyzing "the totality of the circumstances surrounding the defendant's waiver of the right to counsel and his choice to represent himself, including the background, experience, and conduct of the accused." Coughlin, 842 So. 2d at 35. Thus, if a nonindigent defendant appears at trial without counsel because the attorney the defendant had promptly retained months before the trial untimely dies on the eve of trial, that defendant's implied waiver of the right to counsel under Rule 6.1(b) is examined to determine whether it is knowing, intelligent, and voluntarily. Under Coughlin, that question is addressed by applying the totality-of-the- circumstances test to the defendant's implied waiver. In the case of the attorney's untimely death, there clearly is not an effective waiver, because, at a minimum, the accused can show that his appearance without counsel was not voluntary. Whether Harris's implied waiver of his right to counsel was knowing, intelligent, and voluntary requires an inquiry into the totality of the circumstances surrounding the waiver. The Court of Criminal Appeals, however, did not follow the procedure it established in Coughlin and apply the totality- of-the-circumstances test to determine whether Harris 1061198 Compare Monte v. State, 690 So. 2d 517, 519 (Ala. Crim. 6 App. 1996) (holding that a nonindigent defendant impliedly waived his right to counsel because he "'failed to show why he did not retain counsel'" after nearly a year had elapsed); Johnston v. City of Irondale, 671 So. 2d 777 (Ala. Crim. App. 1995) (holding that a nonindigent defendant impliedly waived his right to counsel when the defendant appeared at trial without counsel after the trial court twice postponed the proceedings); Siniard v. State, 491 So. 2d 1062 (Ala. Crim. App. 1986) (holding that a nonindigent defendant impliedly waived his right to counsel by failing to retain counsel after eight months and appearing at trial without counsel), with Cobble v. State, 710 So. 2d 539 (Ala. Crim. App. 1998) (holding that there was no implied waiver of counsel when an indigent defendant fired his attorney and requested the appointment of new counsel and that request was denied); Stanley v. State, 703 So. 2d 1027 (Ala. Crim. App. 1997) (same); Leslie v. State, 703 So. 2d 1029 (Ala. Crim. App. 1997) (holding that there was no waiver of counsel when an indigent defendant twice terminated his appointed counsel, was given the option of retaining another attorney or proceeding pro se, failed to obtain another attorney, and objected to proceeding pro se); Warren v. City of Enterprise, 641 So. 2d 1312, 1315-16 (Ala. Crim. App. 1994) (holding that an indigent defendant did not impliedly waive her right to counsel because 16 knowingly, intelligently, and voluntarily waived his right to counsel. The Court of Criminal Appeals, in deciding that Harris did not impliedly waive his right to counsel, instead relied heavily on caselaw in which that court held that criminal defendants who, unlike Harris, were indigent, did not waive the right to counsel when those defendants terminated the representation of their appointed counsel before trial and explicitly stated that they did not wish to proceed pro se.6 1061198 there was no evidence indicating that the defendant "'forfeited' her right to counsel by failing to obtain counsel despite the repeated advice of the court to do so."). 17 The State argues that the Court of Criminal Appeals, in relying on caselaw involving indigent defendants, "blurred the distinction between nonindigent and indigent defendants. In so doing, the court applied the more stringent standard (which automatically called for a Faretta [v. California, 422 U.S. 806 (1975),] colloquy), rather than examining the totality of the circumstances called for by Coughlin." State's brief at 16. We agree. Rule 6.1(b), Ala. R. Crim. P., draws a clear distinction between nonindigent and indigent defendants and establishes more stringent waiver-of-counsel requirements to the latter class of defendants: "If a nonindigent defendant appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the cause shall proceed. If an indigent defendant who has refused appointed counsel in order to obtain private counsel appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the court shall appoint counsel unless the indigent defendant waives his right under this rule. If the indigent defendant continues to refuse appointed counsel, the cause shall proceed." Although a nonindigent defendant may waive his or her right to 1061198 18 counsel by appearing at a proceeding after having been afforded a reasonable opportunity to retain counsel, the same action on the part of an indigent defendant who has refused appointed counsel does not constitute an implied waiver. See Ardis v. State, 792 So. 2d 436, 440 (Ala. Crim. App. 2001) (holding that there was no implied waiver when "[t]he record does not show that [the defendant], whom the trial court determined was indigent, was either repeatedly urged by the trial court to retain counsel or that he discharged his counsel in the middle of the trial after explicit warnings from the trial court"). In this case, the Court of Criminal Appeals relied on caselaw that analyzed the waiver-of-counsel requirements for indigent defendants under Rule 6.1(b), Ala. R. Crim. P. The Court of Criminal Appeals held that Harris did not impliedly waive his right to counsel because "the record does not establish that Harris appeared for trial without counsel after he was repeatedly urged by the trial court to retain counsel." Harris, ___ So. 2d at ___. The Court of Criminal Appeals did not address the distinction in Rule 6.1(b), Ala. R. Crim. P., between nonindigent and indigent defendants, thus affording 1061198 This Court in Tomlin gave no indication that it intended 7 the list of six factors to be exhaustive. Rather, this Court cited those six factors because the Court of Criminal Appeals "relied upon" those particular factors in determining whether there had been a knowing, intelligent, and voluntary waiver of counsel. Tomlin, 601 So. 2d at 129. The Court of Criminal Appeals in Tomlin looked to the factors set out in the decision of the United States Court of Appeals for the Eleventh Circuit in Fitzpatrick, supra, but the Fitzpatrick 19 Harris, a nonindigent defendant, the protections Rule 6.1(b) affords only indigent defendants. We conclude that Harris's act of appearing without counsel at his trial after having been afforded a reasonable opportunity to retain counsel constituted an implied waiver of his right to counsel. The Court of Criminal Appeals should, therefore, have looked to the totality of the circumstances to determine whether Harris knowingly, intelligently, and voluntarily waived his right to counsel. On remand, therefore, the Court of Criminal Appeals should determine whether, under the totality of the circumstances, Harris knowingly, intelligently, and voluntarily waived his right to counsel by terminating the services of his attorneys a week before trial and appearing at trial unrepresented. Such a review will include consideration of the six Tomlin factors, insofar as they are appropriate, as well as whether 7 1061198 court discussed several other factors in addition to the six factors cited by the Court of Criminal Appeals and subsequently referred to by this Court in Tomlin. 20 "the defendant was attempting to delay or manipulate the proceedings," Fitzpatrick, 800 F.2d at 1067, and whether the trial judge had warned Harris about the potential consequences of appearing at trial unrepresented. See Harding v. Davis, 878 F.2d 1341, 1344 n.2 (11th Cir. 1989) (stating that the defendant did not effectively waive his right to counsel because "the trial court made no effort to warn [the defendant] of the consequences of his action"). If the Court of Criminal Appeals does not have before it a sufficient record to make a determination whether, given the totality of the circumstances, Harris's waiver was knowing, intelligent, and voluntary, then it should remand the case to the trial court to create a record sufficient for appellate review. Conclusion We conclude that the decision of the Court of Criminal Appeals conflicts with Coughlin because Harris was a non- indigent defendant who impliedly waived his right to counsel; we further conclude that the Court of Criminal Appeals should have applied a totality-of-the-circumstances test to determine 1061198 21 whether Harris's waiver of his right to counsel was knowing, intelligent, and voluntary. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur. Murdock, J., dissents. Cobb, C.J., recuses herself. 1061198 22 MURDOCK, Justice (dissenting). I respectfully dissent for two reasons. First, I find the manner in which we now articulate Sixth Amendment right-to- counsel issues confusing, sufficiently so that it could impact the results in some cases. Second, although the Court of Criminal Appeals did not articulate the issues in the now required manner, I read its opinion as already deciding (and reaching the correct conclusions as to) the necessary Sixth Amendment issues. As to the former concern, if a criminal defendant has good reason for having discharged his counsel and for not having done so until the eve of trial, I do not see how this can be referred to as a "waiver" of the right to counsel. A criminal defendant forced to choose between going to trial with counsel whom he has good cause to discharge on the eve of trial or with no counsel at all, and who chooses no counsel, has not "waived" the right to counsel in the formal, voluntary sense presented in foundational cases such as Faretta v. California, 422 U.S. 806 (1975), which focus simply on whether voluntary waivers are made "knowingly and intelligently." I find it confusing for us to speak of an "implied waiver" under such 1061198 23 circumstances, but then add that we must proceed to separately consider whether that "waiver" was "voluntary." By the same token, I find it confusing to declare that a defendant has run afoul of Rule 6.1, Ala. R. Crim. P., and thus "waived" his right to counsel when he appears at trial without retained counsel under circumstances of the nature presented in this case, but then suggest that we will proceed to consider separately whether his decision to do so was made in good faith and whether he was afforded a "reasonable time" within which to retain replacement counsel. More substantively, but against the backdrop of these concerns, I note my agreement with that portion of the opinion of the Court of Criminal Appeals that speaks of the lack of evidence of an "implied waiver." I read the Court's statements in this regard, including the passages emphasized below, to mean that the "reasonable time" requirement of Rule 6.1 was not satisfied under the circumstances presented here and that, concomitantly, there was no evidence of a "waiver" in a normal, voluntary sense: "Harris repeatedly informed the court that he did not want to appear pro se and that he wanted his newly retained counsel to represent him. Furthermore, just as we found in Cobble [v. State, 710 So. 2d 539 (Ala. 1061198 24 Crim. App. 1998)], the record does not establish that Harris appeared for trial without counsel after he was repeatedly urged by the trial court to retain counsel. To the contrary, the record before us reflects that, as soon as Harris learned that defense counsel had filed for a continuance stating that they were not prepared for trial, and as soon as he had concluded that they did not adequately understand the nature of the case against him, he terminated their services and retained another attorney. The trial had not been continued previously due to any delay tactics on Harris's part; in fact, the record reflects that the case had been continued, but only on motions of the State or joint motions from both parties, because of, in part, the extensive discovery in the case. The only defense motion seeking a continuance was the one filed by Chestnut and Pitts approximately two weeks before trial, in which they alleged they had not had time to review the evidence or to prepare for trial. The facts on the record before us permit no finding of an implied waiver of counsel caused by any failure on Harris's part to retain counsel after having been given a reasonable time to do so. Rule 6.1(b), Ala. R. Crim. P. Rather, it appears that upon learning that his retained attorneys were not prepared and upon concluding that they did not understand the case, Harris acted promptly to retain the services of another attorney, who certainly would have been entitled to obtain the voluminous evidence and to prepare his client's case for trial. Therefore, we find that the State of Alabama failed to sustain its burden of proving that Harris had impliedly waived his constitutional right to counsel." Harris v. State, [Ms. CR-04-1617, March 23, 2007] ___ So. 2d ___, ___ (Ala. Crim. App. 2007) (emphasis added; footnote 1061198 Throughout its opinion, the Court of Criminal Appeals 8 indicates its awareness of the fact that the defendant was not indigent. Contrary to the main opinion, I do not believe that the Court of Criminal Appeals drew more (particularly in the way of constitutional principles) from cases involving indigent defendants than it properly could, and did, synthesize in formulating its conclusions as to the constitutional rights of a nonindigent defendant. 25 omitted).8 In Coughlin v. State, 842 So. 2d 30 (Ala. Crim. App. 2002), the Court of Criminal Appeals noted that the criminal defendant did not contest the voluntariness of his self- representation and, after reviewing the circumstances presented, concluded that the defendant did voluntarily waive his right to counsel. 842 So. 2d at 35-37. As is apparent from a comparison of the facts in Coughlin and the facts in the present case as outlined in the opinion of the Court of Criminal Appeals, the facts of the present case are materially different than those in Coughlin. Based on the facts here, the Court of Criminal Appeals correctly determined that the record in the present case is not sufficient to support the conclusion that Harris voluntarily waived his right to counsel. Even if that distinction from Coughlin were removed, i.e., 1061198 Although Harris had fired his attorneys several days 9 before trial, at least one of those attorneys was in the courtroom with him and was still available to serve as his counsel at trial, at Harris's election and/or the trial court's direction. 26 if we could say that Harris voluntarily waived his right to counsel, the Court of Criminal Appeals already has made the further findings Coughlin requires as to whether that waiver was sufficiently knowing and intelligent to pass constitutional muster. The Court of Criminal Appeals discusses the requirement that a criminal defendant be adequately advised of his need for counsel and the risks of self-representation in a situation where the defendant discharges his attorneys on the eve of trial for the purpose of delaying the trial. If that is what Harris did, then he was in a real sense voluntarily choosing to discharge his counsel and to proceed without them. The point made by the Court of Criminal Appeals in the final portion of its opinion is that, before allowing Harris to finalize this choice,9 Harris should have been fully informed of the risks associated with that choice. Thus the Court of Criminal Appeals conclusion that "even if we agreed with the trial court that Harris 1061198 27 was deliberately attempting to delay the trial by making unwarranted accusations regarding defense counsel, we would still be compelled to reverse the conviction here because the trial court made no effort to advise Harris of the pitfalls associated with self-representation. See, e.g., Williams v. State, 958 So. 2d 911, 913 (Ala. Crim. App. 2006) ('Even if we were to hold that the appellant impliedly waived his right to counsel when he fired his attorney during a recess in the proceedings, the record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation ....')." Harris v. State, ___ So. 2d at ___. In Coughlin, the Court acknowledged the requirement imposed by Faretta v. California that, as a general rule, criminal defendants be expressly advised of the dangers of self-representation, but concluded that the particular facts of that case allowed it to conclude that Coughlin’s waiver was knowing and intelligent even without the benefit of an express Faretta warning. The record in the present case is in this respect also materially different from the record in Coughlin; there is no basis in that record for the Court of Criminal Appeals to have reached the conclusion, as it did in Coughlin, that the "knowing and intelligent" requirement was met without the benefit of a Faretta warning. Thus, I believe the Court of Criminal Appeals already has decided the "knowing and 1061198 28 intelligent" issues contemplated by Coughlin and that it has reached proper conclusions given the record before it. Because I find the reasoning and the result reached by the Court of Criminal Appeals appropriate, and to be consistent with Coughlin, I see no need for a remand. I would affirm the judgment of the Court of Criminal Appeals.	July 11, 2008
a8c3a824-fb0e-4c4b-a9ba-e00682183640	Ex parte Brian J. Kane and State Farm Mutual Automobile Insurance Company. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Eva Marie Odom v. Brian J. Kane and State Farm Mutual Automobile Insurance Company)	N/A	1060528	Alabama	Alabama Supreme Court	REL:2/15/2008 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, 2007-2008 ____________________ 1060528 ____________________ Ex parte Brian J. Kane and State Farm Mutual Automobile Insurance Company PETITION FOR WRIT OF MANDAMUS (In re: Eva Marie Odom v. Brian J. Kane and State Farm Mutual Automobile Insurance Company) (Clay Circuit Court, CV-06-30) SMITH, Justice. State Farm Mutual Automobile Insurance Company ("State Farm") and Brian J. Kane (collectively "the petitioners"), the defendants in a personal-injury action pending in the Clay 1060528 2 Circuit Court, petition this Court for a writ of mandamus directing the trial court to transfer the action to the Lee Circuit Court. We grant the petition and issue the writ. Facts and Procedural History This action results from an automobile accident that occurred in Lee County in December 2005. Eva Marie Odom was a passenger in an automobile driven by Kane. Kane's automobile struck another automobile driven by Fupo Lee, in which Lai Lee was a passenger. Two officers with the Auburn Police Department, Jason Jenkins and Willie Brown, investigated the accident. Odom subsequently sued Kane and his insurer, State Farm, in the Clay Circuit Court, alleging that she had suffered injuries as a result of the accident. She sought damages for negligence and "gross negligence and/or wantonness," as well as underinsured-motorist benefits under Kane's automobile insurance policy issued by State Farm. The petitioners each filed a motion to transfer the action to Lee County pursuant to, among other grounds, the doctrine of forum non conveniens. See Ala. Code 1975, § 6-3- 21.1. Kane's motion included several evidentiary exhibits and 1060528 In addition to filing its own motion, State Farm joined 1 and adopted Kane's motion for a change of venue. 3 was later supplemented with an additional exhibit. Odom 1 filed no response to the motions for a change of venue. The trial court denied the motions, and the petitioners timely filed this petition for the writ of mandamus. Standard of Review "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus." Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998). A writ of mandamus is appropriate when the petitioner can demonstrate "(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 Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001). Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion. Ex parte Fuller, 955 So. 2d 414 (Ala. 2006); Ex parte Verbena United Methodist Church, 953 1060528 4 So. 2d 395 (Ala. 2006). Our review is limited to only those facts that were before the trial court. Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala. 2002). Discussion The petitioners contend that they have a clear legal right under Ala. Code 1975, § 6-3-21.1, to have the case transferred to Lee County. Section 6-3-21.1(a), which provides when an action may be transferred under the doctrine of forum non conveniens, states: "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. ..." "A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice." National Sec. Ins. Co., 727 So. 2d at 789. In their motions for a change of venue, the petitioners argued that both the convenience of the parties and witnesses and the interest of justice required a transfer of the case to 1060528 5 Lee County. Kane submitted an affidavit in which he testified that the accident occurred in Lee County, that he was a resident of Lee County, that the Lee Circuit Court is closer to his residence than is the Clay Circuit Court, that if he were called to testify, the Lee Circuit Court would be substantially more convenient, and that traveling to the Clay Circuit Court for the trial of the action would be a significant burden on him. The petitioners also submitted affidavits of Fupo Lee and Lai Lee, the occupants of the other vehicle; two eyewitnesses to the accident, Michael Dillehay and James J. Motley; and one of the investigating officers, Jason Jenkins, who all testified that they lived in Lee County, that if they were called to testify, the Lee Circuit Court would be substantially more convenient to them, and that traveling to the Clay Circuit Court for the trial would be a significant burden to them. Additionally, Kane submitted evidence to the trial court indicating that Fupo Lee and Lai Lee had sued the petitioners in the Lee Circuit Court, seeking damages for injuries allegedly resulting from the accident. 1060528 6 Odom submitted nothing in opposition to the motions for a change in venue. The complaint reveals that Odom resides in Clay County and that State Farm conducts business there. In response to the mandamus petition, Odom filed an affidavit with this Court in which she testifies that Lee County would be an inconvenient forum for her to travel to and that, to the best of her "knowledge and belief," Kane now lives in North Carolina. However, this affidavit, executed after Kane's reply brief was filed in this case, was not presented to the trial court. We thus do not consider it. See Pike Fabrication, supra, and Verbena United Methodist Church, 953 So. 2d at 399 (refusing to consider an affidavit submitted in opposition to a mandamus petition because the affidavit was not before the trial court when it rendered the decision under review). "The purpose of the doctrine of forum non conveniens is to 'prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.'" Ex parte Perfection Siding, Inc., 882 So. 2d 307, 312 (Ala. 2003) (quoting Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952, 956 1060528 7 (Ala. 1995)). We note that "litigation should be handled in the forum where the injury occurred" and that "one of the fundamental purposes of the doctrine of forum non conveniens is to spare witnesses the unnecessary inconvenience associated with testifying in a distant forum." Ex parte Sawyer, 892 So. 2d 898, 904 (Ala. 2004). Finally, "the 'interest of justice' require[s] 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." National Sec. Ins. Co., 727 So. 2d at 790. "The burden of proof under this doctrine is on the defendant to prove to the satisfaction of the trial court that the defendant's inconvenience and expense of defending the action in the venue selected by the plaintiff are such that the plaintiff's right to choose the forum is overcome. Stated differently, the transferee forum must be significantly more convenient than the forum in which the action is filed by the plaintiff, to justify transfer." New England Mut. Life Ins. Co., 663 So. 2d at 956. In New England Mutual Life Insurance Co., the defendants petitioned this Court contending that the action pending in Barbour County was due to be transferred to Montgomery County on the basis of forum non conveniens. Specifically, although the plaintiff resided in Barbour County, none of the events 1060528 8 giving rise to the action took place there; the alleged wrongful act involved Montgomery County entities; and all the witnesses, except the plaintiff, resided in Montgomery County. "Most significantly," we noted, several related actions involving the same alleged wrongful act were pending in Montgomery County and some, if not all, of the witnesses in those cases would testify in the case the defendants sought to have transferred: "All of these witnesses would be forced to travel from Montgomery County to Barbour County for a trial in the plaintiff's case, which this Court finds to be both burdensome and unnecessarily expensive." 663 So. 2d at 956. We thus held that the trial court exceeded its discretion in denying the motion to transfer. In the instant case, all the witnesses and parties identified so far, except the plaintiff, reside in Lee County; all testified that the Lee Circuit Court would be substantially more convenient for them than the Clay Circuit Court; and all testified that traveling to the Clay Circuit Court would be a significant burden. The alleged acts, omissions, and injuries in this case occurred in Lee County, and there is a related action involving the same incident and 1060528 9 the same witnesses pending there. The only connection with this case and Clay County, however, is that Odom resides there and that State Farm does business there. We conclude that Lee County is a "significantly more convenient" forum than is Clay County and that both the convenience of the parties and witnesses and the interest of justice require a transfer of this action to Lee County. Sawyer, supra, National Sec. Ins. Co., supra, New England Mut. Life Ins. Co., supra. Conclusion The trial court is directed to vacate its order denying the motion to transfer and to transfer the action to the Lee Circuit Court. PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and See, Woodall, and Parker, JJ., concur.	February 15, 2008
4b53495f-53aa-4d11-b562-20f8de23a250	Benjamin Russell Wood, Jr. v. Alfred Q. Booth et al.	N/A	1060953	Alabama	Alabama Supreme Court	Beth Chapman now holds the office Nancy Worley held when 1 Wood filed this action. Rule 25(d)(1), Ala. R. Civ. P., provides: REL: 02/22/2008 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, 2007-2008 ____________________ 1060953 ____________________ Benjamin Russell Wood, Jr. v. Alfred Q. Booth et al. Appeal from Montgomery Circuit Court (CV-06-2817) PER CURIAM. Benjamin Russell Wood, Jr., appeals from a judgment of the Montgomery Circuit Court dismissing Wood's action against Alfred Q. Booth, in his official capacity as probate judge of Autauga County, and Nancy Worley, in her official capacity as secretary of state of Alabama. We affirm. 1 1060953 "When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution." See also Rule 43(b), Ala. R. App. P. The original complaint did not name Barron, Bedford, 2 Little, or Sanders as parties to the action. Wood later amended his complaint to name Barron, Bedford, Little, and Sanders as defendants. 2 Facts and Procedural History On October 13, 2006, Wood, a registered voter and a resident of Autauga County, sued Judge Booth and the secretary of state in the Autauga Circuit Court. Wood sought the revocation of the certificates of nomination that had been issued after the primary election to four candidates for the state senate--Lowell Barron, Roger Bedford, Zeb Little, and Hank Sanders. Barron, Bedford, Little, and Sanders had not 2 been opposed in their respective districts in the June 6, 2006, primary election, and the secretary of state had certified those candidates on August 31, 2006, as the nominees of the Democratic Party for the office of state senator in 1060953 Act No. 2006-570, Ala. Acts 2006, which took effect on 3 January 1, 2007, reorganized and amended Title 17, Ala. Code 1975. Unless otherwise noted, all citations in this opinion are to the prior version of Title 17, which was in effect at the time the present action was filed. In the revised Title 17, the FCPA is codified at § 17-5-1 et seq., Ala. Code 1975. The revised Title 17 is found in Volume 13A of the Code of Alabama 1975; that volume includes a "Disposition Table" indicating the disposition of sections from Title 17 before the enactment of Act No. 2006-570. Section 17-22A-4 (currently § 17-5-4)of the FCPA requires 4 a candidate for office to file a statement with the secretary 3 their respective districts. Wood also sought to have those candidates' names removed from the ballot for the November 7, 2006, general election. Wood's complaint sought a declaratory judgment, an injunction, a writ of mandamus, and a writ of quo warranto. The complaint alleged that Barron, Bedford, Little, and Sanders had failed to file certain reports required to be filed by the Fair Campaign Practices Act ("the FCPA"), formerly § 17-22A-1 et seq., Ala. Code 1975 (currently codified at § 17-5-1 et seq., Ala. Code 1975). Specifically, 3 the complaint alleged that, before the June 6, 2006, primary, Barron, Bedford, Little, and Sanders had not filed the reports described in former § 17-22A-8 (currently § 17-5-8) of the FCPA. 4 1060953 of state or judge of probate, as provided in § 17-22A-9 (currently § 17-5-9), showing, among other things, the names of the individuals serving as the principal campaign committee for the candidate. Wood alleged that before the primary Barron, Bedford, Little, and Sanders had failed to comply with former § 17-22A-8(a) (currently § 17-5-8), which then provided: "The treasurer of each principal campaign committee or other political committee shall file with the Secretary of State or judge of probate, as designated in Section 17-22A-9, reports of contributions and expenditures at the following times in any year in which an election is held: "(1) Forty-five days before and between 10 and five days before the date of any election for which a political committee receives contributions or makes expenditures with a view toward influencing such election's result; "(2) Provided, however, that a report shall not be required except between five and 10 days before a run-off election." 4 Judge Booth and the secretary of state filed an answer to the complaint on October 25, 2006. Among other things, the answer asserted that Wood's action was an untimely election contest and that the trial court did not have jurisdiction to hear Wood's claims. On October 30, 2006, the Alabama Democratic Party; its chairman, Joe Turnham, acting in his individual and official 1060953 The next day, two additional voters moved to intervene. 5 Wood filed materials in opposition to the intervenors' 6 motion to intervene and motion for a change of venue. After the Autauga Circuit Court granted the motion to intervene, Wood filed a motion to vacate that order; the Autauga Circuit 5 capacities; and two voters moved to intervene in the action.5 The intervenors also filed a motion to dismiss, asserting, among other things, that the trial court did not have subject- matter jurisdiction and that Wood had failed to join indispensable parties; a motion to transfer the case to the Montgomery Circuit Court; and a cross-claim and third-party complaint that named various probate judges, the secretary of state, and Republican senatorial nominees Jabo Waggoner, Harri Anne Smith, Del Marsh, and Steve French. The intervenors' complaint alleged that Waggoner, Smith, Marsh, and French also had failed to file pre-primary reports under the FCPA. The intervenors requested that, in the event the trial court granted the relief Wood requested, the trial court also grant similar relief to the intervenors against Waggoner, Smith, Marsh, and French. The Autauga Circuit Court granted the intervenors' motion to intervene and later granted the intervenors' motion to transfer the case to the Montgomery Circuit Court. In the 6 1060953 Court's order transferring the case reserved for the Montgomery Circuit Court the issue whether the order allowing intervention should be vacated. 6 Montgomery Circuit Court, the intervenors filed an amended cross-claim and third-party complaint alleging that 26 additional Republican candidates for various offices had violated the FCPA, but the intervenors did not attempt to add those candidates as parties to the action. On January 9, 2007, the intervenors filed additional materials in support of their pending motion to dismiss. The intervenors asserted that Senators Barron, Bedford, Little, and Sanders had been elected at the November 7, 2006, election, that they had taken the oath of office and had received certificates of election, and that, under Art. IV, § 46 and § 51, Ala. Const. 1901, the trial court did not have jurisdiction to hear the action. On March 15, 2007, after the parties had filed several additional pleadings, the Montgomery Circuit Court entered an order dismissing the action on the basis that the court did not have jurisdiction. Specifically, the order asserted that the court did not have jurisdiction under Art. IV, § 46 and § 51, Ala. Const. 1901. Wood filed a timely notice of appeal, 1060953 The cross-appeal, case no. 1061019, was stayed by order 7 of this Court pending resolution of this appeal (case no. 1060953). 7 and the intervenors filed a cross-appeal.7 Standard of Review "'[B]ecause 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)." Ex parte Forrester, 914 So. 2d 855, 858 (Ala. 2005). Discussion This appeal presents issues similar to those we addressed in Roper v. Rhodes, [Ms. 1060331, January 11, 2008] ___ So. 2d ___ (Ala. 2008), in which we considered whether the Crenshaw Circuit Court had jurisdiction in an action filed by William Roper and Cynthia Roper just before the November 7, 2006, general election seeking to have a candidate's name removed from the ballot. William was a candidate in the June 6, 2006, primary election to select the Democratic Party's nominee for the Crenshaw County Board of Education, district 1. William 1060953 Like Wood's complaint, the Ropers' action sought four 8 remedies: a declaratory judgment, an injunction, a writ of mandamus, and a writ of quo warranto. ___ So. 2d at ___. 8 and Ronald A. Rhodes participated in a runoff election on July 18, 2006, that resulted in a tie vote. William lost to Rhodes in a "domino draw" conducted by the Crenshaw County Democratic Party, and on August 14, 2006, Rhodes was certified as the Democratic nominee. ___ So. 2d at ___. On October 30, 2006, the Ropers filed an action in the Crenshaw Circuit Court against the probate judge of Crenshaw County and the secretary of state. Like Wood's requests for the revocation of the certificates of nomination issued to the senatorial candidates and for the removal of their names from the ballot for the general election, the Ropers sought the revocation of the certificate of nomination issued to Rhodes and the removal of his name from the general-election ballot.8 Additionally, the Ropers' action was based on alleged violations of the FCPA by Rhodes before the primary and runoff elections. ___ So. 2d at ___. Similar to Wood's allegations regarding the senatorial candidates in the present case, the Ropers claimed that Rhodes had violated § 17-22A-8 (currently § 17-5-8) of the FCPA, and 1060953 9 the Ropers asserted that the circuit court had jurisdiction to enforce § 17-22A-21 (currently § 17-5-18) of the FCPA, which requires, under certain circumstances, the revocation of a certificate of election or nomination issued to a candidate who has not complied with the FCPA. After discussing the FCPA, various provisions of Title 17, Ala. Code 1975, and cases interpreting both, we held that the trial court did not have jurisdiction to hear the Ropers' claims. ___ So. 2d at ___. Our holding was based first on the conclusion that, to the degree it sought to obtain relief based on alleged violations of the FCPA that occurred before the primary and runoff elections, the Ropers were claiming that Rhodes was ineligible to participate in those elections, and, therefore, that the Ropers' action was an attempt to contest those elections. ___ So. 2d at ___. We then noted that § 17-15-6 (currently § 17-16-44), Ala. Code 1975, "prohibits a court from exercising jurisdiction over any proceeding seeking to "'ascertain[] the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby 1060953 10 the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void.' "(Emphasis added.) See also Etheridge v. State ex rel. Olson, 730 So. 2d 1179, 1182 (Ala. 1999) ('We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so. The Legislature has made this abundantly clear. See § 17-15-6.' (emphasis added))." Roper, ___ So. 2d at ___. We then stated: "Under Harvey [v. City of Oneonta, 715 So. 2d 779 (Ala. 1998)], and Davis [v. Reynolds, 592 So. 2d 546 (Ala. 1991)], to the extent the Ropers alleged that Rhodes violated the FCPA before the primary and runoff elections, the Ropers were contesting those elections on the basis that Rhodes was allegedly ineligible to be a candidate in those elections. A procedure for contesting primary and runoff elections is set forth in §§ 17-16-70 to -89 [currently §§ 17-13-70 to -89], Ala. Code 1975, and § 17-16-71(2) includes the ineligibility of a candidate as a ground for contesting a primary or runoff election. However, the Ropers did not follow the procedure outlined in §§ 17-16-70 to -89, Ala. Code 1975, and the Ropers have not cited another statutory provision that authorized their action to the extent it contested the primary and runoff elections on the basis that Rhodes was allegedly ineligible to be a candidate in those elections. Consequently, the trial court did not have jurisdiction to hear the Ropers' claims alleging FCPA violations that occurred before the primary and runoff elections. See also Dunning v. Reynolds, 570 So. 2d 668 (Ala. 1990); Ex parte Skidmore, 277 Ala. 1060953 11 221, 168 So. 2d 483 (1964)." ___ So. 2d at ___. Finally, we held in Roper that, because the Ropers had not pursued an election contest in compliance with Title 17, the trial court did not have jurisdiction to hear any claims regarding an alleged violation of the FCPA before the general election. ___ So. 2d at ___. As noted, like the Ropers' claim against Rhodes in Roper, Wood alleges that Barron, Bedford, Little, and Sanders failed to file reports that Wood contends they were required to file under the FCPA before the primary election. Roper held that to the extent the Ropers sought to disqualify Rhodes from participating as a candidate in the general election because of violations of the FCPA that allegedly occurred before the primary and runoff elections, the Ropers' claim against Rhodes was an untimely attempt to contest those elections. However, Wood's claims regarding alleged violations of the FCPA are presented in a different factual context than were the claims in Roper. Roper involved an untimely attempt to contest the nomination of a candidate for office who was opposed in the primary election; in the present case, the candidates who are alleged to have violated the FCPA were 1060953 See § 17-13-5(c) (formerly § 17-16-11(c)), Ala. Code 9 1975, which states, in pertinent part: "If a legally qualified candidate for nomination to an office is unopposed when the last date for filing declarations of candidacy has passed, his or her name shall not appear on the ballots to be used in the primary election, and he or she shall be the nominee of the party with which he or she has qualified for the office." See also Roper, ___ So. 2d at ___ n.11 (Bolin, J., concurring specially), in which Justice Bolin explains: "Of the three types of elections, only general elections permit write-in candidates. See §§ 17-6- 27 and 17-7-21(b)(8) (formerly §§ 17-8-5 and 17-24- 3(b)(8)) for general elections and § 11-46-25(g) and (h) for mayor-council elections. Therefore, only in general elections are unopposed candidates required to have their names printed on election ballots and stand for election, because a write-in candidate could conceivably win the election by receiving more votes than did a party nominee or independent candidate whose name appears on the ballot. However, because there is no statutory provision for write-in voting in either municipal or primary elections, a candidate who is the only person who qualifies for mayor or a council position in a municipal election, or a candidate who is the sole qualifier for any elected position in a partisan primary election, is the automatic winner of the respective office or nomination and is not listed as a candidate on the ballot in the election." 12 unopposed in the primaries in their respective senatorial districts. Consequently, the names of Barron, Bedford, Little, and Sanders did not appear on the ballots in the primary election. Therefore, unlike the Ropers, who could 9 1060953 (Emphasis added.) Certain provisions of §§ 17-16-70 to -89 suggest that 10 the procedures for contesting a primary election also apply to a nominee selected through an uncontested primary. See, e.g., § 17-16-71(2) (currently § 17-13-71(2)), Ala. Code 1975, which provides that the "nomination by a party for office, other than a county office," may be contested "[w]hen a person whose nomination is contested was not eligible to the office sought at the time of the declaration of nomination" (emphasis added). However, other provisions suggest that the procedures are available only to contest a nominee selected through a primary election. See, e.g., § 17-16-78(a) (currently § 17- 13-78(a)), Ala. Code 1975, which then stated: "Any elector of a party desiring to contest the nomination by his party of any candidate declared the nominee for any office shall make a statement setting forth specifically: "(1) The name of the party contesting and that he was a qualified elector when the primary was held and he participated therein; "(2) The nomination which said election was held to fill; "(3) The time of holding the election ...." (Emphasis added.) 13 have used the procedure outlined in former §§ 17-16-70 to -89 (currently §§ 17-13-70 to -89), Ala. Code 1975, for contesting a primary election, it is not clear that Wood could have filed a statutory election contest of the primary. If he could 10 have availed himself of those statutory provisions following 1060953 14 the primary, then under § 17-15-6 (currently § 17-16-44), as construed in Roper, the trial court would have had no jurisdiction over Wood's claims that were filed on October 13, well after the primary and the issuance of the certificates of nomination to Barron, Bedford, Little, and Sanders. However, if Wood could not have used those procedures, then his case arguably is distinguishable from Roper. In any event, it is not necessary for us to decide whether Wood could have presented his claims through the statutory procedure for contesting a primary election, because as this case is presented to us, we cannot resolve it in a manner that will afford relief to Wood. In Bell v. Eagerton, 908 So. 2d 204, 205 (Ala. 2002), this Court noted that "'[i]t is not the province of this Court to resolve an issue unless a proper resolution would afford a party some relief'" (emphasis omitted) (quoting Kirby v. City of Anniston, 720 So. 2d 887, 889 (Ala. 1998)). Bell involved an appeal from a judgment of the Montgomery Circuit Court disqualifying Fred Bell as a candidate for Lowndes County district court judge. Following the primary election, the Reform Party certified Bell on June 29, 2000, as its candidate 1060953 15 for Lowndes County district court judge, and the secretary of state certified Bell as the Reform Party candidate on August 11, 2000. However, on August 21, 2000, Nancy Lamar Eagerton filed an action in the Montgomery Circuit Court seeking to prevent Bell's name from appearing on the general-election ballot on the basis that Bell did not meet the 12-month residency requirement of § 12-74-64, Ala. Code 1975. 908 So. 2d at 204. After a trial, the Montgomery Circuit Court issued a judgment on October 13, 2000, declaring that Bell did not meet the residency requirement of § 12-74-64 and that he was therefore not qualified for office. On October 18, 2000, Bell filed a notice of appeal to this Court and moved the trial court for a stay of its October 13 judgment. 908 So. 2d at 204. On October 19, the trial court denied the motion for a stay, and Bell moved this Court to stay the trial court's judgment. 908 So. 2d at 204-05. However, on October 31, this Court denied the motion for a stay. 908 So. 2d at 205. The general election occurred on November 7, 2000, and Bell's name did not appear on the ballot. Bell did not attempt to enjoin the election "or the certification and the 1060953 16 installation of the victorious candidate as the Lowndes County district court judge." 908 So. 2d at 205. Bell also did not "contest the election pursuant to § 17-15-22 [currently § 17- 16-49], § 17-15-27 [currently § 17-16-54], § 17-15-28 [currently § 17-16-55], and § 17-15-32 [currently § 17-16-59], Ala. Code 1975." 908 So. 2d at 205. Bell asked this Court "to reverse the judgment of the trial court and to order a new election for the office of Lowndes County district court judge." 908 So. 2d at 205. However, Eagerton argued that the appeal was moot. She cited former § 17-15-6 (currently § 17-16-44), Ala. Code 1975, "for the proposition that Bell's failure to contest the election deprive[d] this Court of jurisdiction to nullify the election." 908 So. 2d at 205. Eagerton argued "that the occurrence of the election itself and the certification and installation of Terri Bozeman as Lowndes County district court judge pursuant to that unchallenged election render[ed] impossible the relief sought by Bell on appeal." 908 So. 2d at 205. In agreeing with Eagerton, this Court stated: "'A court does not have the jurisdiction to interfere in an election 1060953 We recognized this exception to the jurisdictional 11 limitation stated in former § 17-15-6 (currently § 17-16-44) in King v. Campbell, [Ms. 1060804, November 30, 2007] ___ So. 2d ___, ___ (Ala. 2007) (quoting Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925)). Unlike King, which involved a claim that the election was void because the challenged office filled at that election was unconstitutional, the present case involves a claim that, because of alleged violations of the FCPA, a particular candidate was ineligible as a candidate for an otherwise valid office. Moreover, Wood does not argue that the Dennis exception applies in the present case. 17 result, unless a statute authorizes it to do so. Ala. Code 1975, § 17-15-6, divests courts of such jurisdiction. ... "'".... "... However, this Court identified an exception to § 17-15-6 in City of Adamsville [v. City of Birmingham, 495 So. 2d 642 (Ala. 1986)]: "'This Court has held that these provisions [in § 17-15-6], which formerly appeared in the 1940 Code as Tit. 17, § 235, do not prevent the enjoining of an election. Dennis v. Prather, 212 Ala. [11] 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So. 2d 475 (1947). "'Furthermore, "'"In Dennis v. Prather, 212 Ala. 449, 103 So. 59, 62, this court, commenting upon the argument that if the election to be held is void it could be tested by other proceedings and there was no occasion for injunctive relief, said: 1060953 18 "'"'We think this is not an adequate remedy. It means the useless incurring of all the expense, loss of time, and inconvenience of holding the election, and the confusion and uncertainty which would follow such conditions. ... "'"'All the expense and inconvenience to the voters and taxpayers of the county would be useless. It seems a plain duty to so determine beforehand. T h e r i g h t s a n d interests of the electorate are better promoted by a decision in advance, advising the commissioners of their want of power, and restraining them from proceeding with a meaningless and useless election.' "'"Like reasoning was employed in City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816 [(1919)]; and the case of Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703 [(1908)], likewise sustains this view. See also Petree v. McMurray, 210 Ala. 639, 98 So. 782 [(1923)]." 1060953 19 "'Birmingham Gas Co., supra, 250 Ala. at 140, 33 So. 2d at 477.' "495 So.2d at 645." Bell, 908 So. 2d at 206-07. The Court then stated: "[B]ecause Bell did not seek and obtain an injunction to stop the November 7, 2000, election for Lowndes County district court judge, and because Bell did not contest the election of Terri Bozeman to that office, this Court cannot nullify her election or order a new election. § 17-15-6, § 17-15-22, § 17-15-27, § 17-15-32, City of Talladega [v. Pettus, 602 So. 2d 357 (Ala. 1992)], and City of Adamsville, supra. Accordingly, Bell's appeal is moot and must be dismissed. Kirby [v. City of Anniston, 720 So. 2d 887, 889 (Ala. 1998)], supra." 908 So. 2d at 207. In the present case, Wood sought to enjoin the general election. However, once the election occurred Wood did not file an election contest. Among other things, the appellees contend that Wood's failure to file an election contest deprives the judiciary of jurisdiction over Wood's claims. Wood contends that he was not required to file an election contest. Instead, he contends that he "can obtain the statutory relief described in [former § 17-22A-21 (currently § 17-5-18), Ala. Code 1975]. The revocation of the certificates of election issued to Barron, Sanders, Bedford, and Little on December 29, 2006, is mandatory pursuant to the statute. The revocation of the certificates of election may shift the debate on the status of 1060953 Act No. 2006-570, Ala. Acts 2006, amended and renumbered 12 § 17-22A-21; the amended version of § 17-22A-21 is codified at § 17-5-18. Section 17-5-18 is essentially the same as former § 17-22A-21; the only change in the current version is that the legislature has replaced the word "county" in the second sentence with the word "local." See generally Etheridge v. State ex rel. Olson, 730 So. 2d 1179 (Ala. 1999), in which this Court construed former § 17-22A-21 and stated: "After carefully reexamining [City of Talladega v.] Pettus[, 602 So. 2d 357 (Ala. 1992),] and [Ex parte] Krages, [689 So. 2d 799 (Ala. 1997),] we conclude that Pettus interpreted § 17-22A-21 in the only way that it could be interpreted without violating the separation-of-powers doctrine and judicially legislating. As was noted in Pettus, § 20 the offending state senators to the legislative branch. See Alabama Constitution Article IV Sections 46, 51, 54, 60." (Wood's brief, p. 21.) We disagree with Wood's assertion that he was not required to file an election contest following the general election. The statutory provision Wood is seeking to enforce is former § 17-22A-21 (currently § 17-5-18), Ala. Code 1975, which then stated: "A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by [the FCPA]. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked."12 1060953 17-22A-2(7), part of the 'Definitions' section of the FCPA, provides this definition: "'LOCAL OFFICE. Any office under the constitution and laws of the state, except circuit, district or legislative offices, filled by election of the registered voters of a single county or municipality, or by the voters of a division contained within a county or municipality.' "The second sentence of § 17-22A-21 states: "'A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked.' "(Emphasis added.) Section 17-22A-21 is not ambiguous. It means what it says, and the term 'local office' is specifically defined in the definitions section of the FCPA. The word 'county,' instead of the defined term 'local office,' is used in the second sentence of § 17-22A-21. ... "Therefore, consistent with the rationale of the lead opinion in Pettus, we hold that a certificate of election to a municipal office is not subject to revocation for failure of the person elected to comply with the FCPA and, therefore, that the trial court had no jurisdiction to revoke the certificate of election issued to Ms. Etheridge. "We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so. The Legislature has made this abundantly clear. See § 17-15-6. We strongly urge the Legislature to reexamine § 17-22A-21. If 21 1060953 in enacting that provision the Legislature meant for the term 'county office' to mean 'local office,' it can, and should, amend § 17-22A-21 by substituting the word 'local' for the word 'county' in the second sentence." 730 So. 2d at 1182 (emphasis added). 22 Although § 17-22A-21 provides the basis for the substantive remedy Wood seeks--that is, the revocation of the certificates of election issued to Barron, Bedford, Little, and Sanders on December 29, 2006, after the general election-- it does not provide the procedure for obtaining that remedy; instead, that procedure is stated in those sections of Title 17 governing the contest of a general election. See Roper, ___ So. 2d at ___ (quoting Harvey v. City of Oneonta, 715 So. 2d 779, 780-81 (Ala. 1998)), and ___ So. 2d at ___ (Bolin, J., concurring specially) ("[A]n election contest provides the 'where' and 'when' remedy to pursue a failure-to-file transgression of § 17-5-18 [formerly § 17-22A-21] of the FCPA"). By not filing a statutory election contest after the general election, Wood chose not to use the procedure provided by the legislature for a party seeking to obtain, under § 17- 22A-21, the revocation of a certificate of election issued after the general election. 1060953 23 Thus, Barron, Bedford, Little, and Sanders have taken office through a general election for which no election contest has been filed. Consequently, if this Court or the trial court were to grant the relief requested by Wood--the revocation of the certificates of nomination issued to the senatorial candidates after the primary--it would undoubtedly call into question the validity of the certificates of election issued to those candidates after the general election, and such a result would exceed the jurisdiction of the courts of this State. § 17-15-6. In other words, once the general election occurred and the time for Wood to file a contest of the general election under former §§ 17-15-22 to - 26 (currently §§ 17-16-49 to -53), Ala. Code 1975, expired, the trial court lost any jurisdiction it had over Wood's claims seeking revocation of the certificates of nomination issued after the primary. In addition to Wood's failure to file a election contest after the general election, the appellees cite Art. IV, § 46 and § 51, Ala. Const. 1901, and this Court's decisions in Nunn v. Baker, 518 So. 2d 711 (Ala. 1987), and Buskey v. Amos, 294 Ala. 1, 310 So. 2d 468 (Ala. 1975), in support of their 1060953 24 contention that this Court has no jurisdiction over Wood's claims. Section 51 gives the senate the authority to "judge" the "qualifications" of its members, and this Court has held that where § 51 applies, the judiciary has no jurisdiction to "judge" the qualifications of members of the legislature. See, e.g., Nunn, supra, and Buskey, supra. The appellees argue that the requirements of the FCPA are "qualifications" as that term is used in § 51. Because Barron, Bedford, Little, and Sanders are now members of the senate, the appellees contend that § 51 deprives the judiciary of jurisdiction over Wood's claims alleging violations of the FCPA. Therefore, according to the appellees, the legislature has exclusive jurisdiction over Wood's claims. Under the appellees' contention that § 51 deprives the courts of jurisdiction over Wood's claims alleging violations of the FCPA, Wood's failure to pursue a contest in the legislature within the framework of §§ 17-16-49 to -53 (formerly §§ 17-15-22 to -26), Ala. Code 1975, is fatal to his claim for judicial relief. But even if we rejected the appellees' contentions regarding § 51, Wood's failure to file a timely election contest is also fatal because of the 1060953 The attorney general has issued an opinion stating that 13 a candidate who is unopposed in the primary election must nevertheless file the reports required by § 17-22A-8(a) before that primary or else face the penalty provision of former § 17-22A-21 (currently § 17-5-18). See Op. Att'y Gen. No. 2006- 142 (Sept. 7, 2006). However, an earlier opinion of the attorney general concluded that a candidate who is unopposed in the primary election does not have to file those reports 25 limitation on the jurisdiction of the courts in § 17-16-44 (formerly § 17-15-6), Ala. Code 1975. Therefore, because of our disinclination to decide constitutional questions unless such a decision is necessary to the result, we affirm the trial court's dismissal of the action, but we express no preference for the competing rationales that lead to the same result. See Hollis v. City of Brighton, 950 So. 2d 300, 308- 09 (Ala. 2006) ("'[T]his Court will affirm a judgment for any reason supported by the record that satisfies the requirements of due process.'" (quoting Smith v. Mark Dodge, Inc., 934 So. 2d 375, 380 (Ala. 2006))). Moreover, because this Court could not afford relief to Wood under either rationale, we express no opinion as to the validity of Wood's claim that the penalty of § 17-22A-21 may be enforced against a candidate who is unopposed in a primary and who does not file the reports that former § 17-22A-8(a) (currently § 17-5-8(a)) requires to be filed before the primary.13 1060953 before the primary. See Op. Att'y Gen. No. 90-224 (April 19, 1990). See also Water Works & Sewer Bd. of Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 866 n.5 (Ala. 2004) ("'While an opinion of the attorney general is not binding, it can constitute persuasive authority.'") (quoting Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So. 2d 1344, 1346 (Ala. 1997)). 26 Conclusion The judgment of the trial court dismissing Wood's action is affirmed. AFFIRMED. Cobb, C.J., and See, Lyons, Stuart, and Parker, JJ., concur. Smith, J., concurs specially. Woodall and Bolin, JJ., concur in the result. Murdock, J., dissents. 1060953 Section 46 provides: 14 "(a) Senators and representatives shall be elected by the qualified electors on the first Tuesday after the first Monday in November ... and in every fourth year thereafter. The terms of office of the senators and representatives shall commence on the day after the general election at which they are elected, and expire on the day after the general election held in the fourth year after their election, except as otherwise provided in this Constitution. ..." Section 51 provides: "Each house shall choose its own officers and shall judge of the election, returns, and qualifications of its members." 27 SMITH, Justice (concurring specially). The main opinion declines to address the appellees' argument that Art. IV, § 51, Ala. Const. 1901, deprives this Court of jurisdiction over this appeal. I write separately to discuss certain aspects of the appellees' argument regarding § 51, as well as to discuss the relationship of § 51 with Art. IV, § 47, Ala. Const. 1901, and the separation-of-powers provisions of the Alabama Constitution. As the main opinion notes, the appellees contend that the legislature has exclusive jurisdiction over Wood's claims. In support of that position, the appellees cite Art. IV, § 46 and § 51, Ala. Const. 1901, and this Court's decisions in Nunn 14 1060953 28 v. Baker, 518 So. 2d 711 (Ala. 1987), and Buskey v. Amos, 294 Ala. 1, 310 So. 2d 468 (1975). In Nunn, a Democratic party candidate for the Alabama House of Representatives "challenged her party's jurisdiction to certify her opponent rather than her, as its nominee" following the primary election that occurred in June 1986. 518 So. 2d at 713. This Court held that it had no jurisdiction because "[h]er opponent was elected and sworn into office well before this case was submitted to [this Court]." 518 So. 2d at 713. Nunn relied on this Court's decision in Buskey. "In Buskey v. Amos, 294 Ala. 1, 310 So. 2d 468 (1975), this Court held that it had lost jurisdiction over an election contest based on a challenge to the residency qualifications of a candidate for the state senate. In Buskey, the challenged candidate had been certified as his party's nominee; his name had been placed on the general election ballot; he had been elected to the state senate by the people of his district; he had been certified by the Secretary of State as having been elected to the senate; and he had taken the oath for the office of state senator, all before the challenge was submitted to this Court. The Court held that it had no jurisdiction over the question of the challenged candidate's residency qualifications after he had taken office, because such questions were constitutionally committed to the state legislature: "'It is uncontradicted that [the 1060953 29 candidate] was certified on November 13, 1974, by [the] Secretary of State, to have been elected to the State Senate in the general election of November 5, 1974, and that [the candidate] took the oath of office as Senator from District 33 on November 11, 1974, and presently occupies that seat in the State Senate. Article 4, Section 46, Alabama Constitution of 1901, provides that "The terms of office of the senators and representatives shall commence on the day after the general election at which they are elected ...." "'Article 4, Section 51, Alabama Constitution of 1901, provides, in reference to the legislature of this state, "Each house shall choose its own officers and shall judge of the election, returns, and qualifications of its members." "'This court considered the application of Article 4, Section 51, of our state constitution in In re Opinion of the Justices, 254 Ala. 160, 47 So. 2d 586 (1950), wherein it was stated: "'"The Constitutions of most, if not all, of the states contain provisions similar to those quoted above from Section 51 of the Constitution of this state. And it is well settled that such a provision vests the legislature with sole and exclusive power in this regard, and deprives the courts of jurisdiction of those matters." "'In view of this constitutional provision this court is compelled to hold that it lost jurisdiction of this appeal when the 1060953 Senators Barron, Bedford, Little, and Sanders have been 15 recognized by the state senate as elected members, have participated as state senators, and have voted as state senators since that time. Specifically, the appellees argue: 16 "Pursuant to § 51 of the Constitution of Alabama of 1901, only the Alabama State Senate shall judge the election, returns, and qualifications of its members including Senators Barron, Bedford, Little and Sanders. This case and the issues and questions presented are constitutionally committed to the State Senate. Section 51 of the Alabama 30 appellee became a member of the State Senate.' "Buskey v. Amos, 294 Ala. 1, 2, 310 So. 2d 468, 468-69 (1975)." Nunn, 518 So. 2d at 712-13. In the present case, it is undisputed that Lowell Barron, Roger Bedford, Zeb Little, and Hank Sanders--the four candidates whose certificates of nomination Wood sought to have revoked--were administered the oath of office as state senators on November 8, 2006, and were issued certificates of election by the secretary of state on December 29, 2006.15 This appeal was not submitted to this Court until March 28, 2007. Consequently, the appellees contend that, under Art. IV, § 51, Ala. Const. 1901, this Court has no jurisdiction over this appeal.16 1060953 Constitution vests the State Senate with the sole and exclusive power in regard to this case and the issues and questions presented. The judicial system and this Honorable Court lost jurisdiction when the Senators became members of the Alabama State Senate. See Buskey ... and Nunn ...." (Appellees' motion to dismiss appeal, p. 2.) 31 Wood contends, however, that whether a current member of the legislature has complied with the Fair Campaign Practices Act ("the FCPA") is not a question that Art. IV, § 51, Ala. Const. 1901, commits to the legislature; therefore, he argues, § 51 does not prevent this Court from hearing this appeal. To support that argument, Wood relies primarily on the decision of this Court in State ex rel. James v. Reed, 364 So. 2d 303 (Ala. 1978), and the decision of the United States Supreme Court in Powell v. McCormack, 395 U.S. 486 (1969). In James, a statutory quo warranto action was brought "challenging the qualifications of Thomas Reed to hold office as a member of the Alabama House of Representatives." 364 So. 2d at 304-05. Reed, who had been elected in the general election of 1974, was convicted on July 22, 1977, of attempted bribery, a misdemeanor. 364 So. 2d at 305. James, who filed the quo warranto action against Reed, contended that Reed's conviction for attempted bribery made him ineligible for 1060953 Article IV, § 60, Ala. Const. 1901, provides: "No 17 person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this State." Article IV, § 53, Ala. Const. 1901, provides: 18 "Each house shall have power to determine the rules of its proceedings and to punish its members and other persons, for contempt or disorderly behavior in its presence; to enforce obedience to its processes; to protect its members against violence, or offers of bribes or corrupt solicitation; and with the concurrence of two-thirds of the house, to expel a member, but not a second time for the same offense; and the two houses shall have all the powers necessary for the legislature of a free state." 32 office under Art. IV, § 60, Ala. Const. 1901. 364 So. 2d 17 at 305. Reed contended, however, that the issue of his eligibility for office was a nonjusticiable political question because, he argued, Art. IV, § 51 and § 53, Ala. Const., 18 "constitute a textually demonstrable constitutional commitment of the issue to the Legislature." 364 So. 2d at 305-06 (footnote omitted). The trial court agreed with Reed and entered a summary judgment in Reed's favor, but this Court reversed and held that § 60 "is a specific constitutional limitation on legislative authority, and judicial enforcement of its mandate 1060953 33 does not derogate the principle of separation of powers." 364 So. 2d at 306. In Powell, the United States Supreme Court examined the claim of Adam Clayton Powell, Jr. Powell was elected in November 1966 to serve in the 90th Congress as the representative for the 18th Congressional District of New York, but, "pursuant to a House resolution, he was not permitted to take his seat." 395 U.S. at 489. Although a House committee found that Powell met the three "standing qualifications" of age, residency, and citizenship stated in U.S. Const. art. I, § 2, for members of the House of Representatives, the House nonetheless voted to "exclude" Powell from membership in the House, and Powell therefore was unable to take his seat as a representative. 395 U.S. at 492- 93. Powell ultimately sought a declaratory judgment stating that the refusal of the House to seat him as a member was unconstitutional, but the United States District Court for the District of Columbia dismissed his action for lack of subject- matter jurisdiction, a judgment the United States Court of Appeals for the District of Columbia Circuit "affirmed on 1060953 Rather than suggesting that this appeal presents a 19 nonjusticiable political question, the appellees argue that this Court does not have subject-matter jurisdiction over the appeal. In Powell, the United States Supreme Court discussed the difference between whether an issue is justiciable and whether a court has jurisdiction over the subject matter of a particular issue: "As we pointed out in Baker v. Carr, 369 U.S. 186, 198 (1962), there is a significant difference between determining whether a federal court has 34 somewhat different grounds." 395 U.S. at 494. However, the United States Supreme Court reversed the judgment of the Court of Appeals. 395 U.S. at 550. Among other things, the United States Supreme Court construed U.S. Const. art. I, § 5, which provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Similar to the arguments of the appellees in the present case regarding Art. IV, § 51, Ala. Const. 1901, the respondents in Powell argued that the question presented was a nonjusticiable political question because, they contended, U.S. Const. art. I, § 5, is a "'textually demonstrable constitutional commitment' to the House of the 'adjudicatory power' to determine Powell's qualifications" and "that the House, and the House alone, has power to determine who is qualified to be a member." 395 19 1060953 'jurisdiction of the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is 'justiciable.' The District Court determined that 'to decide this case on the merits ... would constitute a clear violation of the doctrine of separation of powers' and then dismissed the complaint 'for want of jurisdiction of the subject matter.' ... However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is 'justiciable.' We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. ... "In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the cause does not 'arise under' the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a 'case or controversy' within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute." 395 U.S. at 512-13 (footnote omitted). The respondents in Powell contended that U.S. Const. art. I, § 5, was an explicit grant of "judicial power" to Congress to "judge" the qualifications of its members, and the respondents therefore argued that the Court did not have subject-matter jurisdiction over Powell's claim. 395 U.S. at 513-14. The Court disagreed, however. It first noted that U.S. Const. art. III, § 1, provides that the "'judicial Power ... shall be vested in one supreme Court, and in such inferior Courts as the Congress may ... establish'" and that U.S. Const. art. III, § 2, "mandates that the 'judicial Power shall extend to all Cases ... arising under this Constitution.'" 395 U.S. at 514. Citing Bell v. Hood, 327 U.S. 678, 685 (1946), for the proposition that "a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution ... 35 1060953 [is] given one construction and will be defeated if [it is] given another,'" the Court concluded that Powell's claim "clearly is one 'arising under' the Constitution as the Court has interpreted that phrase." 395 U.S. at 514 (footnote omitted). Textual differences between the United States Constitution and the Alabama Constitution arguably would justify a different conclusion in the present case regarding whether Art. IV, §§ 46 and 51, Ala. Const. 1901, limits this Court's subject-matter jurisdiction or merely renders the question nonjusticiable. Most significantly, unlike the United States Constitution, in which the doctrine of separation of powers is implied, Alabama's Constitution expressly provides for the separation of powers. Art. III, §§ 42-43, Ala. Const. 1901. In addition, as far as I am aware, the Alabama Constitution does not include a provision comparable to U.S. Const. art. III, § 2, which "mandates that the 'judicial Power shall extend to all Cases ... arising under this Constitution." Compare U.S. Const. art. III, § 2 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."), with Art. VI, § 139, Ala. Const. 1901 (Off. Recomp.), which provides: "Except as otherwise provided by this Constitution, the judicial power of the state shall be vested exclusively in a unified judicial system which shall consist of a supreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district court, a probate court and such municipal courts as may be provided by law." (Emphasis added.) Despite those differences, however, I think that the discussion in Powell of the justiciability of examining the power of the legislative branch to judge the qualifications of 36 1060953 its members is instructive. 37 U.S. at 519 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). The Court disagreed, however, ultimately concluding that the House did not have the power to exclude an elected representative on a "qualification" not stated in the Constitution. 395 U.S. at 548, 550. The Court explained: "In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution. "If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are 'inextricable 1060953 Those three requirements are that a member must have 20 attained the age of 25 years, must have been a citizen of the United States for 7 years, and must be an inhabitant of the state from which he or she is elected. U.S. Const. art. I, § 2. 38 from the case at bar.' ... ".... "In order to determine the scope of any 'textual commitment' under Art. I, § 5, we necessarily must determine the meaning of the phrase to 'be the Judge of the Qualifications of its own Members.' ... Our examination of the relevant historical materials leads us to the conclusion that ... the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U.S. at 520-22 (footnotes omitted). Accordingly, the Court held "that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution." 395 U.S. at 550. In other words, the three specific requirements stated in U.S. Const. art. I, § 2, for membership in the House20 "impart to the word 'qualifications' in Art. I, § 5, 'a precise limited nature.' ... Thus, the House's argument that its power to judge the qualifications of its own members is a textually demonstrable commitment of unreviewable authority is 'defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership.'" 1060953 39 Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So. 2d 204, 216 (Ala. 2005) (quoting Nixon v. United States, 506 U.S. 224, 237 (1993) (discussing Powell)). Like U.S. Const. art. I, § 2 and § 3, the Alabama Constitution of 1901 includes detailed qualifications for members of the legislature. Those qualifications are stated in Art. IV, § 47, Ala. Const. 1901: "Sec. 47. Qualifications of senators and representatives. "Senators shall be at least twenty-five years of age, and representatives twenty-one years of age at the time of their election. They shall have been citizens and residents of this state for three years and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken; and they shall reside in their respective counties or districts during their terms of office." Reading § 47 along with § 51 leads to two related questions. The first question is whether the qualifications stated in § 47 are the minimum qualifications or the exclusive qualifications for membership in the legislature. The second question is whether the legislature's power under § 51 to judge the qualifications of its members extends only to those qualifications listed in § 47 or whether the legislature has 1060953 Section 47 could have been drafted to clearly state that 21 the qualifications listed therein are exclusive. For example, with regard to the qualifications for being a state senator, § 47 could have stated: "Every person who is at least twenty-five years of age; who has been a citizen and resident of this state for three years and a resident of his respective county or district for one year next before his election, if such county or district shall have been so long established, but if not, then of the county or district from which the same shall have been taken; who resides in his respective 40 the power to judge additional qualifications. As to the first question, if § 47 provides the exclusive qualifications for membership in the legislature, then the legislature may not create additional qualifications, whether by legislation or otherwise. However, if § 47 provides only the minimum qualifications for membership in the legislature, then the legislature presumably is free to create additional qualifications. The text of § 47 alone does not expressly answer the question. It does not, for example, expressly state that the listed qualifications are the only qualifications for membership in the legislature or that the legislature is prohibited from creating additional qualifications for office through legislation. The relevant inquiry, therefore, is 21 1060953 county or district during his term of office; and who is not otherwise ineligible under another provision of this Constitution shall be eligible to be a senator." See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 867-68 (1995) (Thomas, J., dissenting) (making a similar argument regarding the qualifications for membership in Congress set forth in U.S. Const. art. I). The Court offered the following description of the term 22 "Qualifications Clauses": "'In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from "any Office of honor, Trust or Profit under the United States"; Art. I, § 6, cl. 2, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"; and § 3 of the 14th Amendment disqualifies any person "who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in 41 whether the inclusion of detailed qualifications in § 47 implicitly prohibits the legislature from adding to those qualifications. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the United States Supreme Court stated that Powell established that the qualifications stated in the "Qualifications Clauses" of the United States Constitution 22 1060953 insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a "qualification" within the meaning of Art. I, § 5, than those set forth in Art. I, § 2.' Powell v. McCormack, 395 U.S. 486, 520, n. 41 (1969). "In Powell, we saw no need to resolve the question whether those additional provisions constitute 'qualifications,' because 'both sides agree that Powell was not ineligible under any of these provisions.' Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution." 514 U.S. at 787 n.2. At issue in Thornton was "an amendment to the Arkansas 23 State Constitution that prohibit[ed] the name of an otherwise- eligible candidate for Congress from appearing on the general election ballot if that candidate ha[d] already served three terms in the House of Representatives or two terms in the Senate." 514 U.S. at 783. In a 5-4 decision, the United States Supreme Court held that the amendment was unconstitutional. 514 U.S. at 837-38. Specifically, the Court held: 42 are the exclusive qualifications for membership in Congress, and therefore held that neither Congress nor the states have the authority to impose additional qualifications for membership in Congress. 514 U.S. at 827, 837-38. As part 23 1060953 "[T]he available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution." 514 U.S. at 827. 43 of the justification for its conclusion that Congress may not add to the qualifications stated in the Constitution, the Court relied on the maxim expressio unius est exclusio alterius. The Court noted: "The text of the Qualifications Clauses also supports the result we reached in Powell. John Dickinson of Delaware observed that the enumeration of a few qualifications 'would by implication tie up the hands of the Legislature from supplying omissions.' [2 Records of the Federal Convention of 1787 123 (Max Farrand ed., 1911)]. Justice Story made the same point: "'It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others.' 1 J. Story, Commentaries on the Constitution of the United States § 625 (3d ed. 1858) (hereinafter Story). See also [C. Warren, The Making of the Constitution 1060953 44 421 (1947)] ('As the Constitution ... expressly set forth the qualifications of age, citizenship, and residence, and as the Convention refused to grant to Congress power to establish qualifications in general, the maxim expressio unius exclusio alterius would seem to apply'). "As Dickinson's comment demonstrates, the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses; they adopted that wording nonetheless." 514 U.S. at 793 n.9. Thus, the Thornton Court concluded that the enumeration in the Constitution of qualifications for members of Congress implicitly prohibited Congress from supplementing those qualifications. Although the Alabama Constitution of 1901, like the Federal Constitution for membership in Congress, enumerates qualifications for membership in the legislature, there is a significant difference between the nature of the powers of the Alabama Legislature and those of Congress. Congress may exercise only those powers enumerated to it by the Federal Constitution, along with those implied powers that are "necessary and proper" to carry out its enumerated powers. See U.S. Const. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States 1060953 45 ...." (emphasis added)); U.S. Const. art. I, § 8 (enumerating several powers of Congress and providing that "Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...."); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). See also Thornton, 514 U.S. at 875 (Thomas, J., dissenting) ("The reason for Congress' incapacity [to create additional qualifications] is not that the Qualifications Clauses deprive Congress of the authority to set qualifications, but rather that nothing in the Constitution grants Congress this power. In the absence of such a grant, Congress may not act. But deciding whether the Constitution denies the qualification-setting power to the States and the people of the States requires a fundamentally different legal analysis."). By contrast, the Alabama Constitution of 1901 "'confers on the legislature plenary power to legislate except as restricted by the Constitution, State or federal.'" Schoenvogel v. Venator Group Retail, Inc., 895 So. 2d 225, 232 (Ala. 2004) (emphasis added) (quoting Ex parte Foshee, 246 Ala. 604, 606, 21 So. 2d 827, 829 (1945), citing in turn Art. 1060953 46 IV, § 44, Ala. Const. 1901; Sisk v. Cargile, 138 Ala. 164, 172, 35 So. 114 (1903)). See also Art. IV, § 44, Ala. Const. 1901 ("The legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives." (emphasis added)); City of Daphne v. City of Spanish Fort, 853 So. 2d 933, 941 (Ala. 2003); Ex parte Apicella, 809 So. 2d 865, 873 n.9 (Ala. 2001); Broadway v. State, 257 Ala. 414, 417, 60 So. 2d 701, 703 (1952); Ex parte Foshee, 246 Ala. at 606, 21 So. 2d at 829. This Court has applied the expressio unius maxim in interpreting provisions of the Alabama Constitution. See, e.g., Griggs v. Bennett, 710 So. 2d 411, 413-14 (Ala. 1998) (construing § 6.14 of Amend. No. 328 (now codified at § 153), Ala. Const. 1901, which provides for the filling of vacancies in judicial office); Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 565, 213 So. 2d 404, 406 (1968) (applying the expressio unius maxim to hold that the specific listing in the Constitution of Alabama of 1901 of departments to try impeachments implied the exclusion of departments that were not listed). However, because the power of the Alabama Legislature is plenary, I am not convinced that the expressio unius maxim should operate to 1060953 Courts have reached conflicting results when confronted 24 with whether to apply the expressio unius maxim to limit the legislature's power under state constitutions. See, e.g., Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957), which states: "In construing our State Constitution there are also certain fundamental principles which must be recognized and given effect. Unlike the Federal Constitution, the State Constitution is a limitation, not a grant, of power. We look to the State Constitution, not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not forbidden by the state or federal constitutions, it must be held valid. "This fundamental concept of the State Constitution is generally accepted throughout the United States, and is not questioned in these proceedings. It has always been the guiding principle of constitutional construction in this state. ... "There flows from this fundamental concept, as a matter of logic in its application, the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution." 78 Idaho at 578, 306 P.2d at 1086 (footnote omitted). But compare, e.g., Reale v. Board of Real Estate Appraisers, 880 P.2d 1205, 1206-11 (Colo. 1994) (applying the expressio unius maxim and concluding that certain qualifications stated in the Colorado constitution were exclusive rather than minimum qualifications), with dissent in Reale, 880 P.2d at 1213 (Erickson, J., dissenting) ("The majority finds an implied 47 limit the legislature's power to add to the qualifications stated in the Alabama Constitution of 1901. Therefore, 24 1060953 limitation upon the General Assembly's power based upon the doctrine of 'expressio unius est exclusio alterius' (the inclusion of one thing is the exclusion of another). The analysis based upon the doctrine is flawed. The doctrine of 'expressio unius est exclusio alterius' is inapt when the constitution limits, rather than grants, power. When a constitution grants authority, no more than what is specifically enumerated is granted." (footnote omitted)). 48 despite similarities in the qualifications listed in U.S. Const. art. I, § 2 and § 3, and those listed in Art. IV, § 47, Ala. Const. 1901, I am not persuaded that § 47 establishes exclusive qualifications, which the legislature may not supplement. More significantly, this Court has clearly held that where the Alabama Constitution of 1901 does not set forth detailed qualifications for office, the legislature may supplement the general qualifications stated in the constitution. In Finklea v. Farish, 160 Ala. 230, 236, 49 So. 366, 368 (1909), this Court held that changes in the Alabama Constitution of 1901 from earlier constitutions "evinced a purpose to change the policy of the state ... to leave the general qualifications for office--other than those enumerated in section 60--to the discretion and determination of the Legislature." More recently, in State ex rel. Graddick v. 1060953 49 Rampey, 407 So. 2d 823, 825 (Ala. 1981), this Court recognized that "it was made clear in Finklea v. Farish, 160 Ala. 230, 49 So. 366 (1909), that the legislature has full authority to impose qualifications for public office in addition to those required by the Constitution." See also State ex rel. Brassell v. Teasley, 194 Ala. 574, 69 So. 723, 725 (1915). Finklea involved a contest of an election for the office of tax assessor of Monroe County; at issue was § 1467 of the Code of 1907, which disqualified from holding office those individuals who were not qualified electors. 160 Ala. at 233, 49 So. at 367. The election contest in Finklea alleged that the victorious candidate had not complied with the provisions of Art. VIII, § 178, Ala. Const. 1901 (since repealed), which required the payment of a poll tax in order to be a qualified elector. Consequently, the election contest alleged that the candidate was not qualified for the office of tax assessor by virtue of § 1467 of the Code of 1907. In that context the Court held that the legislature had the power to create additional qualifications other than the general qualifications stated in the Constitution. The Finklea Court noted that "[t]here are no detailed 1060953 50 qualifications [in the Constitution] in respect to the office of tax assessor," which was in contrast to the "[d]etailed qualifications ... stated in respect to the offices of Senators and Representatives, judges, executive officers of the state, sheriffs, and solicitors. Const. 1901, §§ 47, 116, 117, 132, 138, 154, 167." 160 Ala. at 234, 49 So. at 367. The present case, however, involves a challenge to candidates for the office of state senator, an office for which the Constitution includes specific qualifications in Art. IV, § 47. Thus, an argument could be made that even though the legislature may create additional qualifications for offices that do not have specific constitutional qualifications (such as tax assessor), the legislature may not create additional qualifications for those offices the detailed qualifications for which are set forth in the Constitution (such as state senator). Finklea did not decide that question. See Finklea, 160 Ala. at 234, 49 So. at 367 ("There are no detailed qualifications in respect to the office of tax assessor. It would not therefore impede the progress of the argument of the case in hand should it be conceded that, where the Constitution itself prescribes in 1060953 51 detail the qualifications for office, the Legislature may not add to or diminish them."). However, State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418 (1932), involved the legislature's authority to add to the qualifications for the office of sheriff--an office Finklea recognized as having specific qualifications outlined in the Constitution. Finklea, 160 Ala. at 234, 49 So. at 367 ("The Constitution contains a number of sections defining and stating qualifications for office. Detailed qualifications are stated in respect to the offices of Senators and Representatives, judges, executive officers of the state, sheriffs, and solicitors."). See also Art. V, § 138, Ala. Const. 1901. Moore held that the legislature has the authority to create additional qualifications for offices for which the Constitution already includes specific qualifications. Moore, 225 Ala. at 126, 142 So. at 419. In Moore, Herbert Moore was elected sheriff of Colbert County, but before his term began he was convicted of conspiracy to violate the federal prohibition law and was sentenced to imprisonment in the federal penitentiary. 225 Ala. at 125, 142 So. at 419. While Moore appealed his 1060953 Section 2699 provided: 25 "When any person, holding any office or place under the authority of this state, is sentenced by any court of the United States, of this state, or any state, to imprisonment in the penitentiary, or hard labor for the county, his office or place is vacated from the time of the sentence; and if the judgment is reversed, he must be restored; but if pardoned, he must not." 52 conviction, the Governor declared the office of sheriff of Colbert County vacant in accordance with § 2699, Ala. Code 1923, which provided that a state office is vacated at the time of an incumbent's being sentenced to imprisonment. The 25 Governor then appointed J.H. Blake to fill the vacancy. 225 Ala. 124, 142 So. at 419. Moore brought a quo warranto action against Blake. Moore argued that § 2699 was unconstitutional because, he contended, the legislature did not have the authority to create additional grounds or procedures for removal of a sheriff other than through impeachment as provided in Art. VII, §§ 173 and 174, Ala. Const. 1901. 225 Ala. 124, 142 So. at 419. However, in Stone v. State ex rel. Freeland, 213 Ala. 130, 104 So. 894 (1925), this Court had upheld a predecessor statute to § 2699 (which was identical in wording to § 2699) against a challenge that it violated the impeachment provisions of the 1060953 53 Constitution; specifically, the Court in Stone held that the statute was merely an efficient means of enforcing Art. III, § 60, Ala. Const. 1901, which prohibited from holding office any person who had been convicted of an "infamous crime." Therefore, the Court held that impeachment was not necessary in the case of a officer who had been convicted of an "infamous crime." Stone, 213 Ala. at 131, 104 So. at 894-95. The sheriff in Moore argued that Stone was distinguishable because, he contended, his conviction was not for an "infamous crime" as that term was used in § 60. This Court in Moore, however, refused to decide whether the sheriff's conviction was indeed for an "infamous crime." The Court made the following observations regarding Art. IV, § 60, Ala. Const. 1901, and the ability of the legislature to create additional qualifications for office: "[Section 60] has the force of positive law declaring a fixed policy that persons therein named are ineligible to hold office in Alabama. The peace and dignity of the state as dependent upon the character and morale of her public officials is the thought behind it. "The Legislature has no power, unless elsewhere provided in the Constitution, to make convicted felons of the class named eligible to office. To that extent section 60 is a limitation on legislative power. 1060953 54 "But it is no limitation upon the power of the Legislature to prescribe further qualifications for office, to declare who shall be eligible to hold office in Alabama. This is an inherent legislative power. Finklea v. Farish, 160 Ala. 230, 49 So. 366. "The case of Stone, County Treasurer, v. State ex rel. Freeland, [213 Ala. 130, 104 So. 894 (1925)], does not limit the application of Code, § 2699, to convictions of the class named in section 60 of the Constitution. That case declares the statute in keeping with the policy expressed in section 60 of the Constitution. "Impeachment proceedings are for the removal of public officers for malfeasance while lawfully holding the office upon grounds prescribed by section 173 of the Constitution. Due process of law is essential to impeachment. "But the vice of appellant's position is in confusing causes for removal by impeachment with ineligibility to hold the office. ".... "Section 2699 goes to the question of eligibility. We do not question the power of the Legislature to declare a public officer convicted by due process of law and sentenced to imprisonment ineligible to further hold the office, and to declare the office vacant unless and until the judgment of conviction is reversed and the sentence to imprisonment vacated." Moore, 225 Ala. at 126, 142 So. at 419-20 (emphasis added). Thus, Moore establishes that the legislature may add to the qualifications for office even where the Constitution sets 1060953 To borrow a metaphor sometimes used in reference to the 26 greater protection of individual liberties that may be available under state constitutions than is available under the Federal Constitution, the qualifications for office outlined in the Constitution are, in my view, a "floor" that the legislature may elect to go above but not below. See Cooper v. California, 386 U.S. 58, 62 (1967) ("Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so."); see also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) ("[T]he State [may] exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution."). However, any additional qualifications the legislature creates through legislation must comply with other constitutional provisions, including those providing for the separation of powers. 55 forth detailed qualifications for office; in other words, the detailed qualifications set forth in the Constitution are minimum qualifications, which the legislature may supplement though legislation. Of course, that legislation must not 26 conflict with other provisions of the Constitution. Thus, the legislature may not, for example, enact legislation providing that senators may be only 24 years of age or may reside in this state for only 23 months, because such legislation would contradict the specific qualifications stated in Art. IV, § 47, Ala. Const. 1901. Nor may the legislature, as stated in Moore, enact legislation "mak[ing] convicted felons of the class named [in Art. IV, § 60, Ala. Const. 1901,] eligible to 1060953 Similarly, the parties do not dispute that the 27 requirements of the FCPA are "qualifications" for office in a general sense. Instead, the parties dispute whether Art. IV, § 51, gives the legislature exclusive jurisdiction to "judge" whether a member of the legislature has complied with the requirements of the FCPA. 56 office." Moore, 225 Ala. at 126, 142 So. at 419. With that said, no one in the present case challenges the legislature's authority to create the additional qualifications imposed by the FCPA. Instead, the appellees 27 argue that the judiciary has no jurisdiction to hear this appeal because they contend the requirements of the FCPA are "qualifications" as that term is used in Art. IV, § 51, Ala. Const. 1901. The appellees' argument in that regard presents the second question noted above: Does the legislature's power under § 51 to judge the qualifications of its members extend only to those qualifications listed in § 47, or does the legislature also have the power to judge additional qualifications? In James, this Court declined to answer that question: "[Powell] held that the power of the United States House of Representatives under Art. I, § 5 to judge the qualifications of its members was limited to consideration of constitutional qualifications. 1060953 Section 53 states that each house of the legislature has 28 the power to "expel" a member "with the concurrence of two- thirds of the house." The power to "expel" is different from the power to "exclude" that the House purported to exercise in Powell, because an individual may not be expelled from membership until he has first been admitted as a member. The House "excluded" Powell--i.e., it refused to seat him--and therefore its vote to exclude him could not be construed as a vote to "expel" him. Powell, 395 U.S. at 507 n.27 ("Powell was 'excluded' from the 90th Congress, i.e., he was not administered the oath of office and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an 'expulsion.'"). The respondents in Powell argued that the House could expel a member by a two-thirds vote for any reason, but, because it concluded the House had "excluded" rather than "expelled" Powell, the Court declined to address that question. 395 U.S. at 507 & n.27 ("[W]e express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated."). Under the Alabama Constitution, the legislature's power to expel appears to be more limited than the power stated in U.S. Const. art. I, § 5, because Art. IV, § 53, Ala. Const. 1901, provides that a member may not be expelled "a second time for the same offense." 57 Our decision in the case at bar does not require us to so interpret § 51 of the Alabama Constitution and we reserve judgment on that issue." James, 364 So. 2d at 307 n.2. However, James held that "the legislative power under [Art. IV, §§ 51 and 53, Ala. Const. 28 1901,] does not operate to the exclusion of the positive force of § 60, a specific constitutional limitation upon the ability 1060953 The dissent asserts that it is logically inconsistent to 29 conclude that the legislature's power under § 51 to judge the qualifications of its members is limited to those qualifications set forth in § 47, while at the same time concluding that the legislature can "add to the specific qualifications set out in § 47." ___ So. 2d at ___. The dissent argues that if both of those statements are true, the legislature is no longer the sole judge of the qualifications of its members. However, I see a logical distinction--which I think the Alabama Constitution establishes--between the legislature's having the power to act as the sole judge of only those qualifications stated in § 47 and the legislature's having the more expansive power of acting as the sole judge of a member's compliance with additional qualifications that the legislature has created through legislation or otherwise. James, supra, makes it clear that the legislature is not the sole judge of the qualifications stated in Art. IV, § 60, Ala. Const. 1901. Therefore, § 60 is a clear limitation on the ability of the legislature to judge the qualifications of its members. Furthermore, as I explain in the main text of 58 of any person to hold public office in this State." 364 So. 2d at 307. Section 60, as noted, prohibits any person "convicted of embezzlement of the public money, bribery, perjury, or other infamous crime" from serving in the legislature or "holding any office of trust or profit in this State." Therefore, even though § 60 imposes "qualifications" for office, James makes it clear that the power to "judge" given the legislature by § 51 does not include the power to determine whether a member of the legislature meets the "qualifications" stated in § 60.29 1060953 this writing, infra, I read § 51 as conferring a specific judicial power--the power to "judge"--on the legislature, and I think § 47 limits the judicial power that § 51 confers on the legislature. Contrary to the view expressed in the dissent, however, I am not persuaded that § 47 limits the legislature's ability to create additional qualifications through legislation. In that regard, I think the Alabama Constitution differs from the Federal Constitution. Even so, I read the separation-of- powers provisions of the Alabama Constitution as preventing the legislature from acting as the sole judge of whatever additional qualifications it creates. 59 As to whether the legislature may judge statutory qualifications (such as a member's compliance with the FCPA), I think § 47 sets forth those qualifications that the legislature has the sole power to judge under § 51; consequently, I do not think § 51 gives the legislature the ability to also judge whatever additional qualifications the legislature decides to create through additional legislation (such as the requirements of the FCPA in the present case). If indeed the legislature's power to judge qualifications under § 51 extends only to those qualifications stated in § 47, the position advocated by the appellees conflicts with the separation-of-powers provisions of our own state constitution. The power to "judge" is unquestionably a judicial power, which, under Art. III, §§ 42 and 43, Ala. Const. 1901, the 1060953 Buskey, supra, is consistent with this view, because it 30 involved an election contest challenging a state senator's compliance with residency qualifications. 294 Ala. at 2, 310 So. 2d at 468-69. The basis of the underlying action in Nunn, 60 legislature may not exercise unless specifically authorized to do so by a provision in the Constitution. Section 42 provides: "The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Section 43 provides: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them ... to the end that it may be a government of laws and not of men." (Emphasis added.) In that regard, § 51 is a specific example of the Constitution permitting the legislative department to exercise a judicial power. Thus, § 51 takes what is normally a judicial power--the power of "judging"--and authorizes the legislature to exercise that power for the limited purpose of judging the "qualifications" of its members. In my view, 30 1060953 supra, is not clearly stated in the limited factual background provided in the Nunn opinion, which notes only that a Democratic party candidate for the Alabama House of Representatives "challenged her party's jurisdiction to certify her opponent rather than her, as its nominee." 518 So. 2d at 713. 61 this Court, when the question is properly before it, should be careful not to read that power--i.e., the power of the legislature under § 51 to judge the qualifications of its members--more expansively than the Constitution requires. If this Court held that § 51 precludes the judiciary from exercising jurisdiction in a case challenging compliance by a candidate for, or a member of, the legislature with statutory qualifications, I think § 47 would be deprived of its proper field of operation. Such a decision would hold, in essence, that the legislature has the unreviewable power to create qualifications for its members through legislation and then judge whether a member meets those statutory qualifications. The appellees in the present case have not offered any evidence or argument that persuades me to think that § 51 grants that judicial power to the legislature. Relevant in this regard is the discussion of the United States Supreme Court in Powell of several historical materials including English and colonial precedents, the debates 1060953 The Court explained: 31 "While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as '"the tools of despotism and corruption."' Wilkes and others who were involved with the publication in which the attack appeared were arrested. Prior to Wilkes' trial, the House of Commons expelled him for publishing 'a false, scandalous, and seditious 62 surrounding the United States Constitutional Convention, and Congressional practice following ratification of the United States Constitution. 395 U.S. at 522-48. Those materials, the Court concluded, overwhelmingly supported its holding that the power of Congress to judge the qualifications of its members extends only to the three standing qualifications stated in U.S. Const. art. I, § 2. I think those same materials suggest that the power of the Alabama Legislature to judge the qualifications of its members includes the power to judge only those "standing" qualifications stated in § 47 of the Alabama Constitution of 1901. For example, the Powell Court discussed instances of exclusion by the English Parliament in the 18th century, including the case of John Wilkes, who was expelled or excluded several times by the House of Commons. 395 U.S. at 31 1060953 libel.' Wilkes then fled to France and was subsequently sentenced to exile. "Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament declared him ineligible for membership and ordered that he be 'expelled this House.' Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him.54 "Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were 'subversive of the rights of the whole body of electors of this kingdom.' "______________ " The issue before the Commons was clear: Could 54 the Commons 'put in any disqualification, that is not put in by the law of the land.' The affirmative answer was somewhat less than resounding. After Wilkes' third re-election, the motion to seat his opponent carried 197 to 143." 395 U.S. at 527-28 (footnotes and citations omitted). 63 527-31. The Court concluded: "By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally 1060953 64 repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century--the John Wilkes case. ... ".... "With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were 'not occasional but fixed.' ... Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled, it appears that the House of Commons also repudiated any 'control over the eligibility of candidates, except in the administration of the laws which define their (standing) qualifications.'" 395 U.S. at 527-29 (footnotes and citations omitted) (emphasis added). Ultimately, the Court stated, "Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes and his pursuit of the right to be seated in Parliament became a cause célèbre for the colonists. '[T]he cry of "Wilkes and Liberty" echoed loudly across the Atlantic Ocean ....' ... It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory." 1060953 65 395 U.S. at 530-31 (footnote omitted). The Powell Court then examined materials surrounding the drafting of the Constitution and its ratification. The matter of qualifications was a subject of much debate at the Convention. Although the delegates to the Convention unanimously adopted the three standing requirements of age, citizenship, and residency, they rejected a proposal that would have authorized the legislative branch to establish property qualifications for members. 395 U.S. at 533. In speaking against the latter proposal, James Madison "stat[ed] that the proposal would vest "'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. ... It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction.' "Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, 1060953 66 but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. "In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the 'indisputable right [of the people] to return whom they thought proper' to the legislature." 395 U.S. at 533-35 (footnotes omitted). The Powell Court also concluded that materials from the debates over ratification supported the view that Congress could not exclude a member based upon a qualification not set forth in the Constitution. For example, the Court cited "Hamilton's reply to the antifederalist charge that the new Constitution favored the wealthy and well-born: "'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms on part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.) 1060953 67 "Madison had expressed similar views in an earlier essay, and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue." 395 U.S. at 539-40 (footnotes omitted). In interpreting § 51 of our own Constitution, I see no reason not to conclude that § 47 enumerates the qualifications that § 51 gives the legislature the power to judge; therefore, although the legislature may create additional qualifications for its members through legislation, § 51 does not (1) give the legislature the power to judge those additional, statutory qualifications, or (2) exclude the judiciary from judging those statutory qualifications. In my view, this interpretation is consistent with the text and structure of our Constitution, prior decisions of this Court applying § 51, and the decision of the United States Supreme Court in Powell. A contrary interpretation--one that would allow the legislature the unreviewable authority to judge the qualifications it establishes through legislation--would deny § 47 its proper field of operation. Of course, this appeal does not properly present the issue of the extent of the power of the legislature under § 51 to judge the qualifications of its members; therefore, I think 1060953 68 the Court correctly refuses to address the question. Even so, because of its importance and because the parties to this appeal have extensively briefed it, I offer these thoughts regarding the issue. 1060953 69 MURDOCK, Justice (dissenting). I. This Case For the reasons explained in my special writing in Roper v. Rhodes, [Ms. 1060331, Jan. 11, 2008] ___ So. 2d ___, ___ (Ala. 2008)(Murdock, J., dissenting), I disagree with the conclusion in the main opinion that Wood's failure to pursue an election contest pursuant to §§ 17-15-22 through -26 (currently §§ 17-16-49 through -53), Ala. Code 1975, is fatal to his effort to seek judicial relief for the appellees' alleged violation of the reporting requirements of the Fair Campaign Practices Act. As I said in Roper, the restrictions imposed on the issuance of a certificate of election under § 17-22A-21 (currently § 17-5-18), Ala. Code 1975, do not in my view go to a candidate's "eligibility" for holding office within the meaning of § 17-15-1(2) (currently § 17-16-40(2)), Ala. Code 1975. __ So. 2d at __ (Murdock, J., dissenting)(relying, among other authority, on this Court's decision in Beatty v. Hartwell, 217 Ala. 239, 115 So. 164 (1927)). Further, I conclude that the "qualifications of its members" of which the senate is to be the sole judge pursuant to Art. IV, § 51, Ala. Const. 1901, 1060953 70 is a reference only to those "qualifications" prescribed four sections earlier in Art. IV, § 47. (In this regard, my view coincides with the view expressed by Justice Smith in her special writing. ___ So. 2d at ___ (Smith, J., concurring specially). Nonetheless, as in Roper, I believe the practical outcome achieved in this case by the trial court's judgment and the affirmance of that judgment by the main opinion is a just one for the reason that the relief sought by Wood should be barred by the doctrine of laches. As a technical matter, however, as in Roper, my views require me to dissent, rather than concur in the result, because they lead to the conclusion that the trial court should have entered a judgment on the merits in favor of the appellees rather than dismissing Wood's action for lack of jurisdiction. II. Whether the Legislature May Add "Qualifications" to Those Prescribed in § 47, Ala. Const. 1901 As Justice Smith notes in her special writing, we are not asked in this case to decide the above question. Nonetheless, Justice Smith takes the opportunity to address this issue; accordingly, I will do the same. As to this 1060953 71 issue, I am not inclined to the same conclusion as is Justice Smith. First, logically, I find the fact that the house and senate each is to be the sole judge of "the qualifications" of its members (except for those qualifications set forth in § 60, Ala. Const. 1901), coupled with the conclusion that "the qualifications" of which the house and senate are to be the sole judge are limited to those qualifications set out in § 47 of the Constitution, is inconsistent with the assertion that the legislature can add to the specific qualifications set out in § 47. If it can do so, it would no longer be the sole judge of "the qualifications" of its members. Moreover, I find the authorities cited in Justice Smith's writing to be extremely supportive of the conclusion that the legislature is not constitutionally empowered to add to the specific qualifications prescribed for the members of the house and senate in § 47. The United States Supreme Court stated in Powell v. McCormack, 395 U.S. 486, 529 (1969), that "it appears that the House of Commons also repudiated any 'control over the eligibility of candidates, 1060953 The Powell Court continued by noting that 32 "Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications." 395 U.S. at 534. The Court concluded that "on th[e] critical day [of Madison's speech] the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the 'indisputable right [of the people] to return whom they thought proper' to the legislature." 395 U.S. at 535 (footnote omitted). Elsewhere the Powell Court quoted Alexander Hamilton's conclusion that "[t]he qualifications of the persons who may choose or be chosen, as has been remarked upon other 72 except in the administration of the laws which define their (standing) qualifications.'" The Powell Court quoted James Madison as stating that a proposal to allow the legislative branch to establish property qualifications for its members would vest "'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution." 395 U.S. at 533-34 (emphasis added). I find the warning and the force of reasoning in Mr. Madison's concise statement compelling, and more than sufficient to support the proposition I assert herein.32 1060953 occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.'" 395 U.S. at 539 (emphasis in Powell; quoting The Federalist Papers 371 (Mentor ed. 1961)). 73 Set out below, however, are responses to some of the additional authorities and thoughts offered by Justice Smith in her special writing. The first such authority upon which I will comment is the United States Supreme Court's relatively recent decision in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). In it, the Court held that neither Congress nor the states have the authority to impose additional qualifications for membership in Congress beyond those imposed by the United States Constitution. 514 U.S. at 827, 837-38. The Thornton Court explained: "In sum, the available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, revealed the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution." 514 U.S. at 827. I also note that Justice Smith cites Finklea v. Farish, 160 Ala. 230, 49 So. 366 (1909), and a few other Alabama cases in support of her position. In general, those Alabama 1060953 74 cases are based, directly or indirectly, on the Court's decision in Finklea. Acknowledging that which distinguishes the issue in Finklea v. Farish from the issue in this case, the Finklea Court noted that the office in question was the office of tax assessor and then explained: "The Constitution contains a number of sections defining and stating qualifications for office. Detailed qualifications are stated in respect to the offices of Senators and Representatives, judges, executive officers of the state, sheriffs, and solicitors. Const. 1901, §§ 47, 116, 117, 132, 138, 154, 167. There are no detailed qualifications in respect to the office of tax assessor. It would not therefore impede the progress of the argument of the case in hand should it be conceded that, where the Constitution itself prescribes in detail the qualifications for office, the Legislature may not add to or diminish them." 160 Ala. at 234, 49 So. at 367 (emphasis added). The Court then went on to reason that, unlike the constitutional qualifications prescribed for senators and representatives, the only constitutional qualifications affecting tax assessors are those general qualifications that affect all officers of the state (such as those in § 60 referencing conviction for infamous crimes and in Art. XVII, § 280, Ala. Const. 1901, prohibiting the holding of two offices of 1060953 75 profit at once). The prescription of such general qualifications, the court concluded, did not preempt the legislature from making its own decision as to what detailed qualifications ought to exist for the office of tax assessor. Finklea, 160 Ala. at 236, 49 So. at 368. Similarly, the case of State ex rel. Graddick v. Rampey, 407 So. 2d 823 (Ala. 1981), was concerned with the qualifications for the office of mayor, not one of the offices for which the Alabama Constitution provides detailed qualifications. It relied upon Finklea to address whether § 60, Ala. Const. 1901, prohibited the legislature from enacting additional restrictions on holding that office that related to criminal convictions. Justice Smith's special writing relies significantly on State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418 (1932). I note first, however, that Moore relied upon the Court's earlier decision in Finklea. It cited no authority other than Finklea for the following statement: "But it is no limitation upon the power of the Legislature to prescribe further qualifications for office, to declare who shall be eligible to hold office in Alabama. This is an inherent 1060953 76 legislative power. Finklea, 160 Ala. 230, 49 So. 366." Moore, 225 Ala. at 126, 142 So. at 419. Moore appears, therefore, to rely upon Finklea for the proposition that the legislature generally has the "inherent legislative power" to "prescribe further qualifications for office." To that extent, Moore misreads, and expands the holding in, Finklea, which was explicitly limited to consideration of state offices for which the Constitution does not provide detailed qualifications. In actuality, however, I do not believe Moore can be or should be read so broadly in light of two additional considerations. The first is that Moore was focused on whether § 60 of the Constitution implied a limitation on the authority of the legislature to prescribe further qualifications for office related to the absence of criminal convictions. Even more significantly, Moore was concerned with the authority of the legislature to prescribe additional qualifications for the office of sheriff. Despite Finklea's earlier lumping of the office of sheriff with several other constitutional offices for which the Constitution does provide detailed qualifications, 160 Ala. 1060953 Nor do I find the other cases cited in Justice Smith's 33 special writing to provide any precedent or reasoning that is in any relevant manner inconsistent with the conclusion I have reached on the issue at hand. See Stone v. State ex rel. Freeland, 213 Ala. 130, 104 So. 894 (1925) (to the same effect as Moore); State ex rel. Brassell v. Teasley, 194 Ala. 574, 579, 69 So. 723, 725 (1915) (applying Finklea to a case involving a city commissioner). 77 at 234, 49 So. at 367, Art. V, § 138, Ala. Const. 1901, provides no such detailed qualifications for the office of sheriff. It provides only that a sheriff is to be "elected in each county by the qualified electors thereof."33 Finally, I note that Justice Smith argues that there is a difference in the federal and Alabama constitutions in relation to the enumerated powers of the United States Congress, see United States Constitution, Art. I, § 8, as compared to the more plenary legislative power of the Alabama Legislature. Whatever force that difference might have added to the position urged by Justice Smith if we were considering this matter during the earlier years of this nation, it is far less so in light of the breadth of congressional power recognized by the United States Supreme Court during the past century. Moreover, the reasoning of the Court in Powell and Thornton did not depend upon the fact that Congress's powers are specifically enumerated in 1060953 As Justice Smith notes, part of the United States 34 Supreme Court's justification for its conclusion that Congress may not add to the qualifications stated in the United States Constitution is the application of the maxim expressio unius est exclusio alterius to Art. I, § 2. See Thornton, 514 U.S. at 793, n.9. Although the Court in Thornton did note the enumerated nature of the rights of the federal government under Article I, it did so for the purpose of contradistinguishing the nature of those federal rights from the rights reserved to the states in the context of explaining that states are not permitted to add to the qualifications of members of Congress as prescribed in the Federal Constitution. See 514 U.S. at 847. 78 Art. I, § 8. Instead, the Court's reasoning focused on an analysis of the very provision of the United States Constitution, Art. I. § 2, that finds its analog in § 47 of the Alabama Constitution. As the Supreme Court explained 34 in Thornton: "Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome [in Powell]. ... Only two Terms ago, we confirmed this understanding of Powell in Nixon v. United States, 506 U.S. 224 (1993). After noting that the three qualifications for membership in Art. I, § 2, are of 'a precise, limited nature' and 'unalterable by the legislature' we explained: "'Our conclusion in Powell was based o n t h e f i x e d m e a n i n g o f "[q]ualifications" set forth in Article I, § 2. The claim by the House that its power to "be the Judge of the Elections, Returns and Qualifications of its own Members" was a textual commitment of unreviewable authority was defeated by 1060953 79 the existence of this separate provision specifying the only qualifications which might be imposed for House membership.' Id. at 237." Thornton, 514 U.S. at 796 (footnote omitted)(some emphasis added). Moreover, the warnings by Mr. Madison and other Framers of danger to our republican and constitutional form of government, as embraced by the United States Supreme Court in these cases, easily transcend the stated difference in the two constitutions.	February 22, 2008
972e604d-bf5a-486e-ad88-48a5a70df931	Atheal Pierce v. American General Finance, Inc.	N/A	1060060	Alabama	Alabama Supreme Court	REL: 03/28/2008 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, 2007-2008 ____________________ 1060060 ____________________ Atheal Pierce v. American General Finance, Inc. Appeal from Montgomery Circuit Court (CV-05-3197) MURDOCK, Justice. Atheal Pierce appeals from a judgment entered by the Montgomery Circuit Court in favor of American General Finance, Inc. ("American General"). Because we conclude that the 1060060 2 circuit court was without jurisdiction to enter the judgment, we dismiss the appeal. I. Facts and Procedural History In March 1998, American General loaned money to Pierce, for which it took a mortgage in a parcel of property he owned. In February 1999, American General loaned money to Pierce a second time, for which it took a mortgage in a separate parcel of property he owned. Pierce ultimately defaulted on both loans, as a result of which American General foreclosed on the mortgages. On April 26, 2005, before the foreclosure sale of the two parcels, Pierce filed a voluntary bankruptcy petition under Chapter 13 of the United States Bankruptcy Code. The bankruptcy court dismissed his case on September 15, 2005. Pierce appealed the dismissal of his bankruptcy case to the United States District Court for the Middle District of Alabama. On October 31, 2005, the foreclosure sale of Pierce's property was held. American General purchased both parcels of property at that sale and demanded that Pierce deliver possession of the property to it. Pierce failed to do so, and, on December 19, 2005, American General filed an ejectment 1060060 3 action against Pierce. On December 28, 2005, the federal district court dismissed Pierce's appeal of his bankruptcy case as untimely filed. On January 23, 2006, Pierce filed a motion to dismiss or to stay American General's action against him, alleging that his bankruptcy case was still pending. The circuit court entered an order on January 27, 2006, stating that American General's action would be dismissed without prejudice unless American General obtained leave from the bankruptcy court within 60 days to further prosecute its claims. On February 9, 2006, American General filed a motion to remove the case from the circuit court's administrative docket and to set it for trial. In its motion, it recounted the history of Pierce's bankruptcy case, pointing out that the bankruptcy case had been dismissed. On February 13, 2006, the circuit court set American General's action for a bench trial on May 31, 2006. On March 26, 2006, the circuit court signed the following order: "[Pierce] filed a suggestion of bankruptcy in this case. An Order was issued that this action would be dismissed, without prejudice, unless within sixty (60) days [American General] obtained from the 1060060 There is no explanation in the record for the delay in 1 the filing or entry of the judgment. 4 Bankruptcy Court and filed in this Court leave to further prosecute this claim. No leave to further prosecute has been filed. "Wherefore, it is hereby ORDERED that this cause is DISMISSED WITHOUT PREJUDICE." (Capitalization in original.) The record reflects that this order was filed in the clerk's office on April 25, 2006, and was entered into the State Judicial Information System on May 2, 2006.1 Despite the judgment dismissing American General's action, the circuit court, on July 18, 2006, entered an order setting the case for a bench trial on August 29, 2006. There is no order in the record setting aside the circuit court's judgment of dismissal. On August 29, 2006, Pierce filed a motion in which he appeared to request that the court stay all proceedings in the case. The circuit court denied Pierce's motion on the following day, with no explanation, by stamping "denied" on the face of the motion. Pierce did not appear for the scheduled bench trial. On August 31, 2006, the circuit court purportedly entered a 1060060 The judgment makes no mention of the property that was 2 the subject of the mortgage executed in 1999, and the circuit court offers no explanation for the omission. 5 judgment in favor of American General. It found that American General was entitled to immediate possession of Pierce's property that had been subject to the mortgage executed in 1998, and it ordered the Montgomery County Sheriff to assist American General in obtaining possession of that property.2 The purported judgment also included a monetary award to American General in the amount of $6,825 for the rental value of the property while Pierce wrongfully occupied it and for attorney fees American General incurred in bringing the action. Finally, the purported judgment declared that Pierce had forfeited his statutory right of redemption. Pierce appeals. II. Standard of Review The issue on appeal is whether the circuit court had jurisdiction to proceed in the matter after dismissing the case without prejudice. We review such a question de novo. Solomon v. Liberty Nat'l Life Ins. Co., 953 So. 2d 1211, 1218 (Ala. 2006) ("We review de novo whether the trial court had subject-matter jurisdiction."). 1060060 American General notes that "the court put the case back 3 on the active docket" on May 3, 2006. The case-action summary from the Alabama Judicial Data Center does include the following entry: "5/3/2006 CASE ASSIGNED STATUS OF: ACTIVE" However, there is no basis for determining that the trial judge, as opposed to the court clerk, caused this entry to be made. In any event, the record is devoid of a properly rendered order of the circuit court setting aside the 6 III. Analysis Pierce contends that the circuit court's purported judgment of August 31, 2006, is void because, before the court entered that judgment, it had previously entered a judgment dismissing the case and therefore, he argues, it was without jurisdiction to proceed in the matter. We agree. Rule 59(e), Ala. R. Civ. P., provides that a court, on the motion of a party, can alter, amend, or vacate a judgment if the Rule 59(e) motion is filed within 30 days of the entry of the judgment. No such motion appears in the record. Rule 59 likewise allows a trial court to alter, amend, or vacate its judgment sua sponte within 30 days of the entry of the judgment, see Ennis v. Kittle, 770 So. 2d 1090, 1091 n.1 (Ala. Civ. App. 1999); however, no such order appears in the record. Indeed, the next order in the record following the 3 1060060 dismissal without prejudice or causing, in any way, the case to be placed on a particular docket following its dismissal without prejudice. 7 order of dismissal set the case for a bench trial on August 29, 2006, and it was not entered until July 18, 2006, well beyond the time period for the circuit court to act sua sponte to alter, amend, or vacate its judgment of dismissal under Rule 59. In the absence of a Rule 59 motion, "'a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment.'" Burgoon v. Burgoon, 846 So. 2d 1096, 1097 (Ala. Civ. App. 2002) (quoting Henderson v. Koveleski, 717 So. 2d 803, 806 (Ala. Civ. App. 1998)). American General states that no bankruptcy case was pending when the circuit court entered its January 27, 2006, order requiring American General to obtain leave from the bankruptcy court to proceed with the case. Thus, it argues, the circuit court's subsequent dismissal of the case was a "mistake" subject to correction under Rule 60(a), Ala. R. Civ. P. Rule 60(a) provides: 1060060 8 "Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ." The Committee Comments on 1973 Adoption of Rule 60(a) explain that the rule "deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus, the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced." In Ex parte Brown, 963 So. 2d 604 (Ala. 2007), this Court quoted the following "instructive discussion of the scope of a trial court's authority to correct a clerical mistake" under Rule 60(a) from the Court of Civil Appeals' decision in Higgins v. Higgins, 952 So. 2d 1144 (Ala. Civ. App. 2006): "'"The object of a Rule 60(a)[, Ala. R. Civ. P.,] motion or a judgment nunc pro tunc is to make the judgment or the record speak the truth. Under Rule 60(a) a correction may be made by the trial court at any time. 1060060 9 "'"The trial court's authority to enter a Rule 60(a) order or a judgment nunc pro tunc is not unbridled. It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b)[, Ala. R. Civ. P.]" "'McGiboney v. McGiboney, 679 So. 2d 1066, 1068 (Ala. Civ. App. 1995) (citations omitted). "'Chief Justice Torbert explained the proper application of Rule 60(a) in his special concurrence in Ex parte Continental Oil Co., 370 So. 2d 953, 955-56 (Ala. 1979): "'"Although there is no precise delineation in the cases construing Rule 60(a) of the [Alabama Rules of Civil Procedure] or its federal counterpart as to what constitutes a 'clerical mistake or error arising from oversight or omission,' generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, 1060060 10 alteration, or omission of any papers and documents -- a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F. Supp. 605 (E.D.N.Y. 1967). In this respect it has been stated that: "'"'Rule 60(a) is concerned primarily with mistakes which do not really attack the party's fundamental right to the judgment at the time it was entered. It permits the correction of irregularities which becloud but do not impugn it. To that end 60(a) permits, inter a l i a , r e a s o n a b l e additions to the record. In contrast, Rule 60(b) is concerned with changing a final judgment, etc. In such a case the moving party u n d e r s t a n d a b l y shoulders a much heavier burden.' "'"United States v. Stuart, 392 F.2d 60, 62 (3rd Cir. 1968). Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 59(e) or 60(b). 'Thus a 1060060 11 motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.' Wright & Miller & Kane, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated: "'"'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.' "'"Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900). 1060060 12 "'"Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court's initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So. 2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So. 2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So. 2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So. 2d 291 (1951)."'" 963 So. 2d at 607-08 (emphasis added) (quoting Higgins, 952 So. 2d at 1147-48). Even if we were to assume that the circuit court's orders following its dismissal of the case constituted an invocation of Rule 60(a), despite the absence of any order referencing that rule, any error in the entry of the judgment dismissing the case was not the kind of mistake "associated with mistakes 1060060 13 in transcription, alteration, or omission of any papers and documents" that can be corrected pursuant to Rule 60(a). For this Court to hold otherwise would allow Rule 60(a) to be used "to supply non-action by the court" in the place of its action and to make its judgment "say something other than what was originally announced." This is not the function of Rule 60(a). Because the circuit court entered a judgment dismissing this case and that judgment was never set aside, the circuit court was without jurisdiction to hold a trial and then to enter a second judgment. As a result, the judgment it purported to enter in favor of American General on August 31, 2006, is void. See Boykin v. Law, 946 So. 2d 838, 844 (Ala. 2006). "'[S]ince a void judgment will not support an appeal, it follows that the appeal is due to be dismissed.'" Greene v. Town of Cedar Bluff, 965 So. 2d 773, 779 (Ala. 2007) (quoting Underwood v. State, 439 So. 2d 125, 128 (Ala. 1983)). IV. Conclusion Based on the foregoing, we hold that the circuit court's purported judgment of August 31, 2006, is void and is due to 1060060 14 be vacated. Because the circuit court's judgment is void, the appeal is dismissed. APPEAL DISMISSED. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur.	March 28, 2008
3ce87193-8031-4e65-a2f4-d4058f7ec7e3	Ex parte Roshell Flowers d/b/a Roshell's Caf and Deli. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Kimberly R. Sanders, individually and as the personal representative of the estate of Marilyn Ruth Smith Lancaster v. Roshell H. Flowers, individually and d/b/a Roshell's Caf and Deli, a corporation et al.)	N/A	1061201	Alabama	Alabama Supreme Court	REL: 3/28/08 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, 2007-2008 _________________________ 1061201 _________________________ Ex parte Roshell H. Flowers, individually and d/b/a Roshell's Café and Deli PETITION FOR WRIT OF MANDAMUS (In re: Kimberly R. Sanders, individually and as personal representative of the estate of Marilyn Ruth Smith Lancaster v. Roshell H. Flowers, individually and d/b/a Roshell's Café and Deli, a corporation; et al.) (Mobile Circuit Court, CV-06-2179) SEE, Justice. 1061201 2 Roshell H. Flowers, individually and doing business as Roshell's Café and Deli (collectively "Flowers"), petitions this Court for the writ of mandamus directing the Mobile Circuit Court to vacate its order compelling Flowers to produce certain statements taken by Flowers's insurance carrier, which Flowers asserts are protected by the work- product privilege. We grant the petition and issue the writ. Factual Background and Procedural History Kimberly R. Sanders alleges that as she and her mother, Marilyn Ruth Smith Lancaster, were leaving Flowers's restaurant, "a deluge of water from the defective roof of the restaurant" poured down on Lancaster, knocking her down and causing her to break both her legs. It is further alleged that Lancaster was subsequently confined to a hospital and that she eventually died as a result of her injuries. Sanders, as personal representative of Lancaster's estate, sued Flowers, alleging that Flowers had negligently and wantonly operated, maintained, managed, controlled, and/or failed to maintain the premises of the restaurant. During the course of discovery, Sanders requested that Flowers produce the statements of Roshell Flowers and 1061201 3 witnesses Mack Flowers, Jr., and Donna Flowers that were taken by Flowers's insurance carrier regarding the accident. Flowers did not respond to the request, and Sanders moved the trial court to compel Flowers to produce the statements. Flowers opposed the motion to compel, claiming that the statements were taken in anticipation of litigation and that they were therefore protected as work product. In support of her opposition to Sanders's motion to compel, Flowers presented an affidavit from her insurance adjuster, Barbara Barrett. Barrett stated in her affidavit that Flowers forwarded to her a letter from Lancaster's attorney, written while Lancaster was still alive, that read: "This is to advise that I represent Marilyn Lancaster on an action or cause of action which she may have arising out of an accident on April 6, 2005, at your restaurant, when she suffered severe injuries for which she was hospitalized and is still being treated. "I would request that if you have liability insurance to cover you in this matter that you turn my letter over to them so that they can contact me regarding some possible resolution to this claim. "If you do not have liability insurance, I would appreciate you contacting me so that we can discuss this matter." 1061201 4 Petition, Exhibit 5. Barrett stated that she thereafter initiated an investigation, which she believed was in anticipation of litigation. Barrett stated that she anticipated that there would be litigation because "[b]ased on [her] experience and training as a claims agent, when a fatality or severe injury occurs in a premises liability action and the claimant has retained counsel, there is likely to be litigation regarding the accident." Petition, Exhibit 5. As part of her investigation she interviewed and took statements from Roshell Flowers, Mack Flowers, Jr., and Donna Flowers. The trial court apparently found that the statements Barrett took from Roshell Flowers, Mack Flowers, Jr., and Donna Flowers were not taken in anticipation of litigation, and it granted Sanders's motion to compel. Flowers then petitioned this Court for the writ of mandamus and an immediate stay of all proceedings. We stayed the proceedings pending the disposition of Flowers's petition for the writ of mandamus. Sanders moved this Court to rescind its order staying all proceedings, and we issued a new order staying only the trial court's order compelling Flowers to produce the 1061201 5 statements. We now issue the writ of mandamus directing the trial court to vacate its order compelling Flowers to produce the statements. Standard of Review "A petition for the writ of mandamus is the proper means for obtaining review of the question 'whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders.'" Ex parte Water Works & Sewer Bd. of Birmingham, 723 So. 2d 41, 42 (Ala. 1998) (quoting Ex parte Compass Bank, 686 So. 2d 1135, 1137 (Ala. 1996)). "Mandamus is an extraordinary remedy and will be granted only when there is '(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.'" Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991)). However, regarding the issuance of a writ of mandamus in a discovery matter, this Court has stated: "Discovery matters are within the trial court's sound discretion, and this Court will not reverse a 1061201 6 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 prove the existence of each of these conditions." Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). "Generally, an appeal of a discovery order is an adequate remedy"; therefore, "[t]his Court will not issue the writ of mandamus where the petitioner has '"full and adequate relief"' by appeal." Ocwen Fed. Bank, 872 So. 2d at 813 (quoting State v. Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526 (1972), quoting in turn State v. Williams, 69 Ala. 311, 316 (1881)). "In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, ... when a privilege is disregarded." Ocwen Fed. Bank, 872 So. 2d at 813. Further, "'"[u]nder Rule 26(b)(3), [Ala. R. Civ. P.,] the party objecting to discovery bears the burden of establishing the elements of the work-product exception."'" Ex parte Meadowbrook Ins. Group, Inc., [Ms. 1061592, Dec. 21, 2007] ___ 1061201 Rule 26(b)(3) provides, in part: 1 "(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule [concerning expert witnesses], a party may obtain discovery of documents and tangible things otherwise 7 So. 2d ___, ___ (Ala. 2007) (quoting Ex parte Cummings, 776 So. 2d 771, 774 (Ala. 2000), quoting in turn Ex parte Garrick, 642 So. 2d 951, 952-53 (Ala. 1994)). Analysis Flowers argues that the statements that are the subject of the discovery order were taken by Flowers's insurance carrier in anticipation of litigation and that they therefore qualify as work product. Sanders argues, on the other hand, that the trial court did not exceed its discretion in ordering Flowers to produce the statements, because, she says, the trial court did not find Barrett's affidavit to be credible and, therefore, Flowers did not meet her burden of proving that the statements are work product. Documents and tangible things otherwise discoverable, which are prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, are protected as work product and are not ordinarily discoverable. See Rule 26(b)(3), Ala. R. Civ. P.1 1061201 discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney ...) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." The dissenting opinion notes that "[t]he importance of 2 the information sought is evident in the fact that the information could show inconsistent statements concerning the accident and how it occurred." It is certainly possible, as the dissent speculates, that a statement (or any other documentary evidence) that qualifies as work product under Rule 26(b)(3) would be useful to opposing counsel for impeachment or other purposes; however, notably, the possibility of usefulness to opposing counsel is not a factor in the initial determination of whether a statement qualifies as work product. See Ex parte Meadowbrook, ___ So. 2d at ___ (identifying the elements of the work-product exception to the 8 Ex parte Meadowbrook, identifies the elements of the work- product exception to the general discovery rule as follows: "'(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000)).2 1061201 general discovery rule as "'that (1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.'" (quoting Johnson v. Gmeinder, 191 F.R.D. at 643)). 9 This Court recognized in Ex parte Norfolk Southern Railway, 897 So. 2d 290, 295 (Ala. 2004), that a "recorded statement ... taken by the claims agent ... can be treated as protected work product, assuming other applicable [work- product] criteria ... are satisfied." It appears undisputed that the statements made to Flowers's insurance carrier are "documents" that were "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." Rule 26(b)(3), Ala. R. Civ. P. Therefore, the question is whether the statements of Roshell Flowers, Donna Flowers, and Mack Flowers, Jr., taken by Flowers's insurance carrier were, in fact, taken in anticipation of litigation. See Ex parte Nationwide Mut. Fire Ins. Co., 898 So. 2d 720, 723 (Ala. 2004) ("A recorded statement taken from a witness by a claims adjuster can be treated as protected work product, assuming the insurer claiming the privilege can show that the statement was taken in anticipation of litigation."). Flowers argues that 1061201 10 Barrett's affidavit is sufficient to show that the statements were taken in anticipation of litigation. We agree. In Ex parte Norfolk Southern Railway, a claims agent testified by affidavit that, at the time he took the recorded statement of a railroad employee regarding a grade-crossing accident, "he had investigated the accident made the basis of the action, that at the time he was investigating the accident he knew that a death had occurred as a result of the accident, and that he expected that a wrongful-death claim would be asserted ...." 897 So. 2d at 291. The claims agent attested in his affidavit that he anticipated that litigation would result because, "based upon his experience and training as a claims agent, when a fatality or a serious injury occurs in a grade-crossing accident, there is likely to be litigation regarding the accident." 897 So. 2d at 295. This Court concluded that the statement of the railroad employee was work product, holding that a recorded statement taken by a claims agent is work product where "[t]he claims agent testifie[s] that, based upon his experience and training as a claims agent, when a fatality or a serious injury occurs in a grade crossing accident, there is likely to be litigation regarding 1061201 11 the accident." 897 So. 2d at 295. There is no indication that an attorney or claimant had yet contacted the railroad in Ex parte Norfolk Southern Railway; it appears that the claims agent's anticipation of litigation was based on his knowledge of the accident and the fact that a fatality had occurred. 897 So. 2d at 291. Similarly, in Ex parte Nationwide Mutual Fire Insurance Co., we addressed a statement made by an insured driver to his claims adjuster, after the claims adjuster was made aware, by the injured party's insurance agent, that the automobile accident being investigated resulted in only $300 worth of bumper damage to the other vehicle, but caused a knee injury requiring surgery to the occupant of the other vehicle. 898 So. 2d at 723. Nationwide's claims adjuster testified that he took the statement of the insured in anticipation of litigation and based his conclusion "upon information indicating to him that [the insured] was free from liability, that [the other] vehicle had sustained little damage, and that [the occupant of that other vehicle] had allegedly sustained a serious knee injury." 898 So. 2d at 723. We concluded that "Nationwide made an adequate showing that the statement of its 1061201 12 insured was taken in anticipation of litigation" and that "'[f]rom the nature of the case, ... [Nationwide's adjuster] could have reasonably concluded that its insured would be sued.'" Id. (quoting Ex parte State Farm Mut. Auto. Ins. Co., 386 So. 2d 1133, 1136 (Ala. 1980)). As in Ex parte Norfolk Southern Railway, it appears that the Nationwide agent's anticipation of litigation was premised on his conversation with the injured party's insurance agent, his knowledge of the accident, and the nature of the injuries. Ex parte Nationwide, 898 So. 2d at 723. In the present case, Flowers argues that the circumstances of this case are like those in Ex parte Norfolk Southern Railway. Petition at 12. Barrett, after receiving a letter written by Lancaster's attorney, took the three statements. She testified in her affidavit that, "based on [her] experience and training as a claims agent, when a fatality or severe injury occurs in a premises liability action and the claimant has retained counsel, there is likely to be litigation regarding the accident." 1061201 Sanders also makes the following argument: 3 "Under Rule 613(a)[, Ala. R. Evid.], before the Plaintiff can examine the witness concerning a prior inconsistent statement, the statement if in writing, must be shown to the opposing counsel. ... [Sanders] would respectfully submit that in order to show that either Donna Flowers or Mack Flowers, Jr. made a prior statement or a prior inconsistent statement concerning this accident, the statements must be shown at least to the opposing counsel." Sanders's answer brief at 19. Rule 613(a), Ala. R. Evid., provides: "(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel." Sanders provides no insight into the applicability or relevance of Rule 613(a) to the discovery of the statements in question, as contrasted with their use if and when they are discovered. In fact, it appears that this rule applies only to Sanders's potential use of those statements at trial, if Sanders actually has them, if they actually contain impeachment material, and if Sanders chooses to use the statements against these witnesses at trial. See Rule 613(a), Ala. R. Evid. This conclusion is supported by the Author's Statement of the Rule regarding Rule 613(a) in Charles M. Gamble, Gamble's Alabama Rules of Evidence (1995), which states that, "[h]enceforth the cross-examining party may ask about a prior statement without first showing it to the witness or apprising the witness of its contents. The statement, however, must be shown or its contents disclosed to 13 Sanders disagrees. She argues that Barrett's affidavit is defective. 3 1061201 opposing counsel upon request." (Footnotes omitted.) Rule 613(a) applies only to the use of the statements at trial, not to the discovery of the statements. 14 Sanders takes issue with Barrett's affidavit. Sanders asserts that Barrett's affidavit wholly fails to mention the statement of a third witness, Paul Conger. Sanders, in her original request for production, asked Flowers for "[c]opies of any and all statements taken by the insurance company or its adjuster which insures these defendants in this litigation, said statements being taken from Mack Flowers, Jr., Roshell Flowers, and Donna Flowers." Sanders's brief, Exhibit B. Similarly, in her motion to produce, Sanders moved the trial court "to order [Flowers] to produce copies of the statements or recordings of the statements taken by her insurance carrier of Mack Flowers, Jr., Donna Flowers and Roshell Flowers ...." Sanders's brief, Exhibit D. It is apparent that Flowers requested only statements the insurance carrier took from Mack Flowers, Jr., Roshell Flowers, and Donna Flowers. There is no evidence indicating that Sanders ever requested Paul Conger's statement; therefore, Sanders's argument that Barrett's failure in her affidavit to address 1061201 15 Paul Conger's statement in some way affects her credibility is without merit. The trial judge has filed an answer to the petition for the writ of mandamus. He contends that Barrett's amended affidavit conflicts with Roshell Flowers's deposition testimony. Although Barrett originally stated that she had a statement made by Roshell Flowers, Barrett later amended her affidavit to reflect that she "could find no evidence of a recorded statement by Roshell Flowers." Petition, Exhibit 6. Sanders and the trial judge, in his answer, assert that this statement conflicts with the following deposition testimony by Roshell Flowers: "Q: [By Mr. Bedsole, Sanders's attorney]: You don't recall anyone taking a statement from you? "A: Oh yes, I recall that. ".... "Q: Were these statements [of Mack Flowers, Jr., Donna Flowers, and yours] signed? "A: I don't remember writing anything. You mean writing down what happened? "Q: Did you write down what happened? "A: No, sir. 1061201 16 "Q: Was it recorded with any type of recording device? "A: Not that I'm aware of. "Q: Did someone else write down what you told them and did you sign it? "A: Not that I'm aware of. "Q: Do you remember signing any type of statement? "A: No sir." Sanders's brief, Exhibit D. From this exchange, it appears that Roshell Flowers discussed the incident involving Lancaster with her insurance carrier. She does not testify that she gave a recorded statement to her insurance carrier. Therefore, Barrett's statement that she could find no such recorded statement does not conflict with Roshell Flowers's deposition testimony. Moreover, the trial judge's concern in his answer with the inconsistency between Barrett's original affidavit, in which Barrett stated that she had a statement given by Roshell Flowers, and her amended affidavit, in which she stated that she found no evidence of a recorded statement by Roshell Flowers, is fully explained by the deposition testimony. 1061201 17 We agree with Flowers that Ex parte Norfolk Southern Railway and Ex parte Nationwide Mutual Fire Insurance Co. are persuasive. As noted above, Barrett testified in her affidavit that "based on [her] experience and training as a claims agent, when a fatality or severe injury occurs in a premises liability action and the claimant has retained counsel, there is likely to be litigation regarding the accident." Petition, Exhibit 5. We are mindful that just "[b]ecause a claims agent may state conclusively that [her] investigation was conducted in 'anticipation of litigation' will not necessarily make it so." Ex parte State Farm, 386 So. 2d at 1136-37. However, in light of our decisions in Ex parte Norfolk Southern Railway and Ex parte Nationwide Mutual Fire Insurance Co., Barrett's statements, predicated on her experience and information regarding Lancaster's claim, are sufficient to establish that the statements were taken in anticipation of litigation. We find particularly compelling the facts that, at the time the statements were taken, Barrett was aware that Lancaster had retained counsel, that Lancaster's counsel had stated that he represented Lancaster "on an action or cause of action which she may have" against 1061201 18 Flowers, that Barrett was aware of the nature of the accident (premises liability), and that Lancaster's attorney had characterized Lancaster's injuries as "severe," noting that Lancaster's injuries were severe enough to warrant hospitalization and ongoing medical treatment. Furthermore, it appears that in a letter to Lancaster's attorney, dated the day before the statements were taken, Barrett notes a conversation between her and Lancaster's attorney, referencing the fact that Lancaster was still in "rehab," nearly four months after the accident. Petition, Exhibit 5. "From the nature of the case, ...[Barrett] could have reasonably concluded that its insured would be sued." Ex parte State Farm, 386 So. 2d at 1136. Sanders argues, and the trial judge in his answer agrees, that Flowers's insurance carrier, in fact, took the statements in the ordinary course of business. She argues that when Barrett took the statements, the only document Barrett had regarding the incident was the letter from Lancaster's attorney, and, she argues, this was an insufficient basis on which Barrett could have anticipated litigation. The trial judge states in his answer to the petition: 1061201 19 "Although the Affidavits state in several places that Mrs. Barrett took these statements ... in anticipation of litigation, I feel that this is a self-serving statement with no foundation. Based on my experience on the bench and my practice as a member of the Bar, I know that when insurance companies receive a letter notifying them of an accident, they begin an investigation by taking statements as a matter of policy and part of their routine business in investigating the claim. It is not done in anticipation of litigation but simply to find out what witnesses, including its insured, know about the accident and the injuries in the accident. I did not accept Mrs. Barrett's assertions that she could anticipate litigation after receiving one letter from the Plaintiff's attorney and without any information from her insured or witnesses that the accident happened, how it happened and the extent of the injuries to the Plaintiff. "I did not accept the conclusion stated in Mrs. Barrett's affidavits that any time she gets a letter from an attorney who states that there are severe injuries and before she has any other information concerning liability or the injuries that any statements that she takes were made in anticipation of litigation." Judge McDermott's answer at 4-5. To similar effect, Sanders argues that at the time the statements were taken "Barrett would have no basis for reasoning that there was going to be litigation simply based on a letter from [Lancaster's] counsel." Sanders's brief at 15. First, we agree with Flowers that this Court may not consider the trial judge's experiences as evidence, because 1061201 20 the judge was not a witness, and those experiences are, therefore, outside the record. See Ex parte Baker, 459 So. 2d 873, 876 (Ala. 1984) ("In determining whether the trial court [exceeded] its discretion, this [C]ourt is bound by the record and cannot consider a statement or evidence in brief that was not before the trial court. Wilson v. Crosby Lumber Co., 386 So. 2d 1173 (Ala. Civ. App. 1980); King v. Smith, 288 Ala. 215, 259 So. 2d 244 (1972). On review by mandamus, we must look only at those facts before the trial court. See Ex parte Harrington Mfg. Co., 414 So. 2d 74 (Ala. 1982)."). Further, it is not necessary that statements be made solely in anticipation of litigation to be treated as privileged work product. In Ex parte Alabama Department of Youth Services, 927 So. 2d 805, 808 (Ala. 2005), this Court held that "[t]he question as to whether the investigative reports are work-product when there are several motivating causes, other than anticipated litigation, for preparing them turns on whether it was reasonable ... to assume, in light of circumstances, that litigation could be expected." See also Ex parte State Farm, 386 So. 2d at 1136 ("From the nature of the case, a death claim, State Farm's agent could have 1061201 21 reasonably concluded that its insured would be sued. This was not the type of fender-bender case where a settlement with the insured would likely occur without a lawsuit."). In the case before us, Barrett was aware that Lancaster allegedly suffered severe injuries on Flowers's premises and that she was represented by counsel "on an action or cause of action which she may have" against Flowers. As we noted previously, according to our decisions in Ex parte Norfolk Southern Railway and Ex parte Nationwide Mutual Fire Insurance Co., this knowledge was sufficient to establish that Barrett could have reasonably foreseen that her insured would be sued. Conclusion We conclude that the statements made to Barrett by Donna Flowers and Mack Flowers, Jr., were taken by Flowers's insurance carrier in anticipation of litigation; thus, the trial court exceeded its discretion when it ordered Flowers to produce the statements. Therefore, we issue the writ directing the trial court to vacate its order compelling Flowers to produce the statements. PETITION GRANTED; WRIT ISSUED. 1061201 22 Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. Cobb, C.J., dissents. 1061201 23 COBB, Chief Justice (dissenting). I respectfully dissent. An examination of the material submitted with this petition makes plain that the trial court thoroughly and thoughtfully considered the evidence as to whether the statements given by Roshell Flowers, Mack Flowers, Jr., and Donna Flowers (owners of the premises where the injury occurred and witnesses to the accident) were, indeed, taken in anticipation of litigation and concluded that they were not. It should be noted that the depositions of Roshell Flowers, Mack Flowers, Jr., and Donna Flowers had already been taken by Kimberly R. Sanders's counsel when the request to produce these statements was made. Two affidavits were produced by the insurance agent, Barbara Barrett, to support the refusal, under the work-product privilege, to produce the statements. In its response to the arguments in this petition, the trial judge filed an answer discussing these affidavits, which reads as follows: "In my examination of the Affidavits of Barbara Barrett, the claims adjustor, I noticed in the first Affidavit that she stated she had taken statements from Roshell Flowers, Mack Flowers, Jr. and Donna Flowers on August 12, 2005, but in the Amended Affidavit, she stated that she did not have a recorded statement from Roshell Flowers, but only 1061201 24 from Mack Flowers, Jr. and Donna Flowers. In fact the Affidavits conflict with the extracts of the deposition of Roshell Flowers, in that she stated that she did give a statement to the insurance company. "From her Affidavits it would appear that the only document that Barbara Barrett had in her possession when she obtained the statements of Mack Flowers, Jr. and Donna Flowers on August 12, 2005 was a letter from the Plaintiff's attorney dated May 24, 2005, addressed to Roshell's Café and Deli, advising that his client had suffered injuries arising out of an accident which occurred at Roshell's on April 6, 2005. At this time there was no fatality involved and she had no information about the accident and no other information about the injuries, including hospital bills or medical information. In fact there is no information in the Affidavit as to when Mrs. Barrett received the letter from the Plaintiff's attorney dated May 24, 2005 addressed to her insured, since her first letter to the Plaintiff's attorney is dated August 11, 2005. "Although the Affidavits state in several places that Mrs. Barrett took these statements on August 12, 2005, in anticipation of litigation, I feel that this is a self-serving statement with no foundation. Based on my experience on the bench and my practice as a member of the Bar, I know that when insurance companies receive a letter notifying them of an accident, they begin an investigation by taking statements as a matter of policy and part of their routine business in investigating the claim. It is not done in anticipation of litigation but simply to find out what witnesses, including its insured, know about the accident and the injuries in the accident. I did not accept Mrs. Barrett's assertions that she could anticipate litigation after receiving one letter from the Plaintiff's attorney and without any 1061201 25 information from her insured or witnesses that the accident happened, how it happened and the extent of the injuries to the Plaintiff. "I did not accept the conclusion stated in Mrs. Barrett's affidavits that any time she gets a letter from an attorney who states that there are severe injuries and before she has any other information concerning liability or the injuries that any statements that she takes were made in anticipation of litigation. Without any of this additional information she would not even have known whether she was going to deny or admit the claim. This is apparent in her correspondence dated August 11, 2005 in which she requested medical information from the Plaintiff's attorney. She is merely gathering information on which to deny or admit the claim as a part of her investigation and not in anticipation of litigation." Judge McDermott's answer at 3-5. The above-quoted answer exemplifies the thoughtful exercise of the trial court's discretion for the purpose of determining whether the statements constituted protected trial-preparation materials under Rule 26(b)(3), Ala. R. Civ. P. The importance of the information sought is evident in the fact that the information could show inconsistent statements concerning the accident and how it occurred. Rule 613(a), Ala. R. Evid., provides that "[i]n examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown or disclosed 1061201 26 to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel." I conclude that, in determining that Flowers had not met her burden of showing that the statements in question were made in anticipation of litigation, the trial court was properly exercising its discretion in ordering Flowers to produce the statements. The constraints of the caselaw noted by the majority, see, e.g., Ex parte Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1136 (Ala. 2003); Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991), are simply ignored in favor of an analysis in which the majority substitutes its discretion for that of the trial court in weighing the evidence as to whether the statements constitute materials prepared in anticipation of litigation. In the past, this Court has wisely declined to establish a new interlocutory appellate process based on second-guessing the trial court's management of discovery based on the principle that, "[i]n light of the trial court's broad discretion concerning matters of discovery, we defer to the trial court's perception of the facts and procedural posture of the parties ...." Ex parte Alapati, 826 So. 2d 1061201 27 792, 798 n. 2 (Ala. 2002)(discussing appellate review of the trial court's protective orders in matters of discovery). Because I cannot approve of abandoning this principle, I respectfully dissent.	March 28, 2008
7aa3acb1-2ac1-4cd2-84be-c99c8189a251	American Homes and Land Corporation, Inc. v. C.A. Murren & Sons Company, Inc.	N/A	1061657	Alabama	Alabama Supreme Court	Rel 03/07/2008 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, 2007-2008 _________________________ 1061657, 1061662, 1061664, 1061665, 1061666 _________________________ American Homes and Land Corporation, Inc. v. C.A. Murren & Sons Company, Inc. Appeals from Shelby Circuit Court (CV-05-904, CV-06-392, CV-06-393, CV-06-394, CV-06-395) COBB, Chief Justice. American Homes and Land Corporation, Inc. ("American Homes"), the plaintiff in four actions alleging, against C.A. Murren & Sons Company, Inc. ("Murren"), negligence and seeking indemnity (CV-06-392, CV-06-393, CV-06-394, and CV-06-395) and 1061657, 1061662, 1061664, 1061665, 1061666 2 the cross-complainant in an action alleging similar claims against Murren (CV-05-904), filed five separate appeals from summary judgments entered in favor of Murren, a defendant and a third-party defendant. We consolidated the five appeals for the purpose of writing opinion. We affirm. I. Factual Background and Procedural History American Homes purchased from Forest Lakes, L.L.C., several lots in the Forest Lakes subdivision located in Shelby County. American Homes constructed residential houses on those lots and then sold the houses. Murren performed site preparation of the lots before American Homes purchased the lots. One of the houses constructed by American Homes and subsequently sold to an individual was on lot 55 in Forest Lakes. The purchaser of the house on lot 55 notified American Homes of problems with the house, including cracked and separated drywall, cracked concrete, separating ceramic floor tile, cracked brick veneer, baseboard and wood trim that had separated from the wall, and doors that would not properly close. The purchaser sued American Homes over the defects in the house, and American Homes apparently repurchased the house from the individual. 1061657, 1061662, 1061664, 1061665, 1061666 3 American Homes then sued several entities involved in the development of Forest Lakes, including Murren, based on the defects in the house constructed on lot 55. American Homes and Murren resolved American Homes' claims out of court and on August 23, 2005, executed a mutual release and settlement agreement ("the release"). The release contained the following pertinent provisions: "KNOW ALL BY THESE PRESENTS: "That American Homes and Land Corporation, Inc. (hereinafter 'the Undersigned') ... does hereby, for and on behalf of the Undersigned, the wards, heirs, assigns, executors, successors and administrators of the Undersigned, and each of them, release, acquit and forever discharge C.A. Murren & Sons Company, Inc. (hereinafter 'Defendant') and all officers, agents, employees, servants, subsidiaries, affiliated companies, parent companies, insurers and insurance companies, dealers, divisions, successors and representatives of Defendant and their heirs, successors and assigns, together with any and all other persons, firms, corporations, associations or partnerships, whether herein named or referred to or not, who, together with Defendant, their insurers, and/or any of the other aforementioned persons (hereinafter the 'Released Parties'), may be liable to the Undersigned, the wards, heirs, assigns, executors, successors and administrators of him, from any and all claims, actions, causes of action, demands, rights, damages, punitive damages, costs, loss of services, loss of companionship, interest, expenses and compensation which the Undersigned may have had, may now have, may claim to have, or may hereafter have or claim to have in any way growing out of any act or omission or commission of Defendant, their insurers, and/or any of the other 1061657, 1061662, 1061664, 1061665, 1061666 4 persons hereinbefore described, at any time in the past down to the date of this Full and Complete General Release, Indemnification Agreement, and Settlement Agreement (hereinafter 'General Release'). It is expressly agreed, intended and understood by the parties hereto that this General Release is to be constituted as a full and complete settlement, accord, and satisfaction of any and all claims that the Undersigned may have, may have had, or may claim in the future to have against Defendant and/or any of the other persons or entities described hereinabove. "It is further understood and agreed that the consideration referred to herein is in full settlement, accord and satisfaction of any and all claims, and claims of [American Homes] which were asserted or could have been asserted in the lawsuit currently pending in the Circuit Court of Shelby County, Alabama, designated as American Homes & Land Corporation, Inc. v. C.A. Murren & Sons Company, Inc., et al., bearing Civil Action File Number CV- 03-1037. "Without in any way limiting the generality of the foregoing, the consideration referred to herein is in full settlement, accord and satisfaction of any and all injuries, damages, punitive damages, costs, loss of services, loss of consortium, loss of companionship, interest, expenses and compensation of every kind sustained or which may be hereafter accrued or sustained by the Undersigned, or the wards, heirs, assigns executors, successors and administrators of the Undersigned, on account of or growing out of the matters and things described in the Complaint filed in the aforementioned lawsuit. It is expressly agreed, intended, and understood that this General Release shall apply to unknown and unanticipated claims, actions, causes of action, demands, rights, damages, punitive damages, costs, loss of services, loss of consortium, attorney's fees, expenses and compensation of any kind 1061657, 1061662, 1061664, 1061665, 1061666 5 whatsoever resulting from said incident, as well as to those now known or disclosed. "Without in any way limiting the generality of the foregoing, it is further expressly agreed, intended and understood that the consideration referred to herein and paid hereunder is received in full settlement, accord and satisfaction of any and all claims which have been asserted or which could have been asserted against Defendant and/or against any of the other persons described hereinabove, by the Undersigned. ".... "It is understood and agreed that this Release is the compromise of potential, doubtful, and disputed claims; that the consideration referred to herein and paid hereunder is not and shall not be construed to be an admission of liability on the part of any of the parties released hereunder and that said parties deny liability therefore [sic]; and that the consideration paid hereunder is paid and received to compromise and settle disputed claims. "The Undersigned hereby declares and represents that the damages and losses allegedly sustained by the Undersigned are, or may be, uncertain and, in making this General Release, it is understood and agreed that the Undersigned relies wholly upon his own individual judgment and belief as to the nature, extent, effect, and duration of said damages and losses and liability therefor. This General Release is made without reliance upon and statement or representation of any of the parties released hereunder or his representative. ".... "The Undersigned further declares and represents that no promise, inducements, or agreements not herein expressed have been made to the Undersigned; 1061657, 1061662, 1061664, 1061665, 1061666 6 that the Undersigned is competent to execute this document; that the Undersigned has read this document, understands its content, and executed it voluntarily; and that this General Release contains the entire agreement of the parties hereto. "It is further expressly stipulated and agreed that the terms of this Full and Complete Receipt, General Release, Settlement and Indemnity Agreement shall be governed in all respects by the laws of the State of Alabama. "The Undersigned hereby acknowledges his voluntary execution of this release and receipt of a copy hereof." (Emphasis added.) Six days after the release was executed, on August 29, 2005, the purchaser of a house constructed by American Homes on lot 56 in Forest Lakes sued American Homes, asserting that there were defects in the house, including foundation cracking and settlement, for which American homes was liable. American Home, in turn, on March 23, 2006, filed a third-party complaint against Forest Lakes, L.L.C., Geo Engineering, Inc., and Murren, three of the entities involved in the development of Forest Lakes. American Homes alleged that Murren negligently performed its site-preparation work on lot 56 and sought indemnification from Murren for the homeowner's claims. On the same day American Homes filed four separate actions 1061657, 1061662, 1061664, 1061665, 1061666 7 against the same entities asserting similar claims involving lots 43, 53, 58, and 154. Murren moved for a summary judgment in each of the actions, alleging that American Homes' claims against it were precluded by the release executed in conjunction with the settlement of the claims relating to lot 55. The trial court entered summary judgments in favor of Murren and certified those judgments as final pursuant to Rule 54(b), Ala. R. Civ. P. American Homes filed a consolidated motion to alter, amend, or vacate the judgments pursuant to Rule 59(e), Ala. R. Civ. P., in which it argued for the first time that the release should be reformed in accordance with § 8-1-2, Ala. Code 1975. The trial court denied American Homes' motion. American Homes appeals. II. Standard of Review "The standard by which this Court will review a motion for summary judgment is well established: "'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts 1061657, 1061662, 1061664, 1061665, 1061666 8 to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); § 12-21-12(d)[,] Ala. Code 1975. 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 Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). "'In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Futhrie, Inc., 564 So. 2d 412 (Ala. 1990).'" Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)). III. Analysis American Homes argues that the release executed by American Homes and Murren in settlement of the claims relating to lot 55 was limited in scope to the claims relating to lot 55. Alternatively, American Homes argues that the express references in the release to lot 55 create an ambiguity in the release that precluded the summary judgments in favor of 1061657, 1061662, 1061664, 1061665, 1061666 9 Murren. Murren argues that the release clearly and unambiguously releases it from all claims American Homes may have against it and is not limited to the claims relating to lot 55. Previously, this Court has stated: "The threshold question--whether a release is ambiguous--is a question of law to be decided by the Court, see, Baker v. Blue Circle, Inc., 585 So. 2d 868 (Ala. 1991). If the Court finds the release to be unambiguous, then the construction and legal effect of the release are questions of law, which, under appropriate circumstances, may be decided on a motion for summary judgment. See, Baker v. Blue Circle, Inc., supra. However, if the Court determines that the terms of the document are ambiguous in any respect, then the true meaning of the document becomes a question for the factfinder. See, e.g., McDonald v. U.S. Die Casting & Development Co., 585 So. 2d 853 (Ala. 1991). "The mere fact that the parties argue different constructions of the document does not force the conclusion that the disputed language is ambiguous, see, Englund's Flying Service, Inc. v. Mobile Airport Authority, 536 So. 2d 1371 (Ala. 1988). Rather, a document is unambiguous if only one reasonable meaning emerges, see Reeves Cedarhurst Development Corp. v. First Amfed Corp., 607 So. 2d 184 (Ala. 1992). ... [T]he written instrument must be construed in its entirety--single provisions or sentences are not to be disassociated from others referring to the same subject matter. See, e.g., Englund's Flying Service, Inc., supra. "Thus, absent fraud, a release, supported by valuable consideration and unambiguous in meaning, will be given effect according to the intention of the parties from what appears in the four corners of 1061657, 1061662, 1061664, 1061665, 1061666 10 the document itself; and parol evidence is not admissible to impeach or vary its terms." Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So. 2d 314, 316-17 (Ala. 1993). American Homes argues that the language of the release clearly indicates that the intent of the parties was to release Murren from liability only as to the claims and damages asserted in the action involving lot 55. In support of its argument, American Homes notes the following language in the release: "It is further understood and agreed that the consideration referred to herein is in full settlement, accord and satisfaction of any and all claims, and claims of [American Homes] which were asserted or could have been asserted in the lawsuit currently pending in the Circuit Court of Shelby County, Alabama, designated as American Homes & Land Corporation, Inc. v. C.A. Murren & Sons Company, Inc., et al., bearing Civil Action File Number CV- 03-1037. "Without in any way limiting the generality of the foregoing, the consideration referred to herein is in full settlement, accord and satisfaction of any and all injuries, damages ... sustained or which may be hereafter accrued or sustained by the Undersigned ... on account of or growing out of the matters and things described in the Complaint filed in the aforementioned lawsuit." American Homes also notes the use in the release of such phrases as "the aforementioned lawsuit"; "said incident"; "the 1061657, 1061662, 1061664, 1061665, 1061666 11 claims, actions, causes of action, demands, or rights referred to herein"; "the consideration paid hereinunder is paid to received to compromise and settled disputed claims"; and "the aforementioned incident." When the release is construed in its entirety, however, these phrases do not negate the generality of the release. The release explicitly states: "That American Homes ... does hereby ... release, acquit and forever discharge [Murren] ... from any and all claims, actions, causes of action, demands, rights, damages, punitive damages, costs, loss of services, loss of companionship, interest, expenses and compensation which [American Homes] may have had, may now have, may claim to have, or may hereafter have or claim to have in any way growing out of any act or omission or commission of [Murren] ... at any time in the past down to the date of this Full and Complete General Release, Indemnification Agreement, and Settlement Agreement (hereinafter 'General Release'). It is expressly agreed, intended and understood by the parties hereto that this General Release is to be constituted as a full and complete settlement, accord, and satisfaction of any and all claims that [American Homes] may have, may have had, or may claim in the future to have against [Murren] and/or any of the other persons or entities described hereinabove." The release twice memorializes that the consideration therefor is in full settlement of all claims actually brought in the action involving lot 55 or claims that American Homes could have brought against Murren. Both clauses are prefaced with the language "[w]ithout in any way limiting the generality of 1061657, 1061662, 1061664, 1061665, 1061666 12 the foregoing," i.e., the general release clause. Thus, when the release is considered as a whole, it unambiguously releases Murren from all claims that American Homes may have had against Murren at the time the release was executed. Since American Homes' claims against Murren were expressly waived by the release, the trial court did not err in entering the summary judgments in favor of Murren. Because we conclude that the release is unambiguous, we pretermit consideration of American Homes' argument regarding parol evidence. American Homes further argues that, if this Court determines that its claims against Murren involving lots 43, 53, 56, 58, and 154 are included in and waived by the release the release should be reformed so that the release is limited to those claims relating to lot 55. In support of its argument, American Homes notes that both the president of American Homes and the attorney representing American Homes at the time the release was executed testified by affidavit that they read the release to release Murren only from the claims asserted in the action involving lot 55 and that they did not intend to release Murren from any claims that might arise regarding other property located in Forest Lakes. 1061657, 1061662, 1061664, 1061665, 1061666 13 "In Alabama, reformation of contracts is governed by § 8-1-2, Ala. Code 1975; that Code section provides: "'When, through fraud, a mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third persons in good faith and for value.' "This Court has stated that '[t]he terms of the statute [§ 8-1-2] are plain and unambiguous and give the equity court power to reform or revise a written contract only when the requirements of the statute have been met.' American Liberty Ins. Co. of Birmingham v. Leonard, 270 Ala. 17, 21, 115 So. 2d 470, 473 (1959). Moreover, it is the burden of the party seeking reformation to establish by clear and convincing evidence that those requirements have been met. Clemons v. Mallett, 445 So. 2d 276, 279 (Ala. 1984)." Goodwyn, Mills & Cawood, Inc. v. Markel Ins. Co., 911 So. 2d 1044, 1047-48 (Ala. 2004). American Homes has failed to meet its burden with respect to showing that a question of material fact exists as to whether the requirements set forth in § 8-1-2 for reformation of a contract have been met. Specifically, American Homes fails to establish that a factual question exists as to 1061657, 1061662, 1061664, 1061665, 1061666 14 whether it made a mistake of which Murren knew or suspected. The release, signed by American Homes' president, specifically states "that the Undersigned has read this document, understands its content, and executed it voluntarily." This Court has long held that "a person who signs a contract document is on notice of the terms therein and is bound thereby, even if he or she fails to read the document." Safeway Ins. Co. of Alabama, Inc. v. Taylor, 758 So. 2d 523, 525 (Ala. 1999). By executing the release, American Homes represented to Murren that it agreed with the terms of the release. Absent some fraud by Murren, it could not have known or suspected that American Homes did not understand the terms of the release it was executing. Thus, reformation of the release is not warranted. III. Conclusion Because the trial court correctly determined that the release executed by American Homes in settlement of a previous action explicitly waived American Homes' present claims against Murren and because the reformation of the release is 1061657, 1061662, 1061664, 1061665, 1061666 15 not warranted, we affirm the summary judgments in Murren's favor. 1061657 -- AFFIRMED. 1061662 -- AFFIRMED. 1061664 -- AFFIRMED. 1061665 -- AFFIRMED. 1061666 -- AFFIRMED. See, Lyons, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. Woodall, J., dissents.	March 7, 2008
d6a6a7ce-acf6-476f-927b-ff53eb62dbf3	Shane Jenks and Kelly Jenks v. Mark E. Harris and Mark Harris ( 287 ) Homes, L.L.C.	N/A	1050686	Alabama	Alabama Supreme Court	REL:3/14/2008 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, 2007-2008 _________________________ 1050686 _________________________ Shane Jenks and Kelly Jenks v. Mark E. Harris and Mark Harris Homes, L.L.C. _________________________ 1050687 _________________________ Shane Jenks and Kelly Jenks v. Mark E. Harris and Mark Harris Homes, L.L.C. Appeals from Madison Circuit Court (CV-01-1948 and CV-04-1143) SMITH, Justice. Shane Jenks and Kelly Jenks, parties in two cases pending in the trial court that were consolidated, appeal from the 1050686; 1050687 2 order of the trial court vacating an arbitration award in their favor and against Mark Harris and Mark Harris Homes, L.L.C. ("Harris Homes"). The circuit court clerk entered the trial court's order in each of the two cases. The Jenkses, therefore, filed two appeals, one in each case. We affirm in part, reverse in part, and render a judgment in favor of the Jenkses. Facts and Procedural History In September 1998, the Jenkses entered into a contract with Richard Dukes Homes, LLC ("Dukes Homes"), for the construction of a house ("the contract"). The contract contained the following arbitration provision: "[Dukes Homes] and the [Jenkses] acknowledge that this Agreement necessarily involves interstate commerce by virtue of the materials and components contained in the Dwelling and each of the undersigned hereby agrees to arbitrate any and all disputes arising under or related to this Agreement and to be bound by the decision of the arbitrator which shall be conducted pursuant to the Construction Industry Rules of the American Arbitration Association." In 1999, Dukes Homes entered into an agreement with Madison Residential Developers, Inc. ("MRD"), pursuant to which MRD agreed to complete construction of the Jenkses' house. Shortly after MRD entered into the agreement with 1050686; 1050687 3 Dukes Homes, Mark Harris, an employee of MRD, met with the Jenkses. He purportedly explained to the Jenkses that MRD was completing the house for Dukes Homes and discussed certain matters relating to the construction project. Apparently, Dukes Homes and MRD stopped work on the house before it was completed. The Jenkses hired another contractor to complete the construction on the house. Subsequently, portions of the work on the house performed by subcontractors hired by MRD, including the exterior brick and some flooring, had to be completely replaced. In September 2001, the Jenkses filed a complaint naming as defendants Dukes Homes; Richard Dukes, Dukes Homes' "chief manager"; and "Mark Harris d/b/a Madison Residential" (case no. CV-01-1948). The complaint alleged that the house contained numerous construction defects, that the work was not completed in a workmanlike manner, that the defendants failed to comply with certain plans and specifications the Jenkses had provided, and that the defendants failed to hire competent subcontractors. Additionally, the complaint alleged that the defendants made numerous intentional and negligent misrepresentations. As a result, the Jenkses claimed, they incurred additional costs in completing construction of the 1050686; 1050687 4 house. Harris filed an answer to the Jenkses' complaint. Dukes Homes and Richard Dukes filed a motion to compel the Jenkses to arbitrate their claims pursuant to the arbitration provision in the contract. The trial court granted the motion to compel arbitration on April 18, 2002. The Jenkses subsequently filed a demand for arbitration with the American Arbitration Association ("AAA") against Dukes Homes, Richard Dukes, Mark Harris, and Harris Homes. Harris sent a letter to the AAA indicating that he personally was not involved in the construction of the Jenkses' house and that MRD was not subject to the arbitration clause in the contract because it was not a party to the contract. The arbitration subsequently took place, and Mark Harris participated in the proceedings, apparently without the benefit of counsel. On April 28, 2004, the arbitrator rendered an award in favor of the Jenkses and against Dukes Homes and Richard Dukes in the amount of $60,000, and against Mark Harris and Harris Homes in the amount of $60,000. Subsequently, Harris and Harris Homes initiated an action in the trial court seeking to have the trial court set aside and vacate the arbitration award (case no. CV-04-1143). 1050686; 1050687 5 Harris and Harris Homes alleged numerous grounds for setting aside the award. This action was subsequently consolidated with case CV-01-1948. On July 8, 2004, the trial court held a hearing on Harris and Harris Homes' request to set aside the arbitration award. Harris testified at the hearing. He stated that he worked for, and was a part owner of, MRD, that he kept the books for MRD and supervised some of its jobs, that William Boyanton was the day-to-day supervisor of the construction of the Jenkses' house for MRD, that Harris spent a total of two hours on the Jenkses' house, and that payments by the Jenkses were made out to MRD and not to him individually. Harris thus alleged that he never individually contracted or agreed to be personally involved or to have personal liability in the construction of the Jenkses' house, and that if any entity had any responsibility for the allegedly defective construction, it would be MRD. At the conclusion of the hearing, the trial court granted the motion to set aside the arbitration award against Harris and Harris Homes. Subsequently, the Jenkses, Dukes Homes, and Richard Dukes filed a stipulation, agreeing that Dukes Homes and Dukes be dismissed from case no. CV-01-1948. In an order dated October 1050686; 1050687 6 18, 2004, the trial court dismissed Dukes Homes and Dukes, and they are no longer parties in these cases. The Jenkses and Harris later stipulated that Harris Homes should not have been a party to the arbitration because Harris Homes did not exist at the time material to this case. Therefore, the Jenkses make no argument regarding that portion of the trial court's order vacating the award against Harris Homes. The Jenkses then filed two separate appeals to this Court (case nos. 1031771 and 1031815). On October 28, 2005, we dismissed the Jenkses appeals, without an opinion. In dismissing the appeals, we issued an order stating: "On May 10, 2004, Mark Harris and Mark Harris Homes, LLC, filed with the clerk of the Madison Circuit Court a copy of the arbitration award issued by the American Arbitration Association on April 28, 2004, in an arbitration demand by Shane and Kelly Jenks and an application and motion to vacate the arbitration award. Mark Harris and Mark Harris Homes, LLC, stated in their application that they were invoking the trial court's jurisdiction to vacate the arbitration award under § 6-6-15, Ala. Code 1975, which provides: "'Either party may appeal from an award under this division. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending or, if no 1050686; 1050687 7 action is pending, then in the office of the clerk or register of the circuit court of the county where the award is made. The notice of appeal, together with a copy of the award, signed by the arbitrators or a majority of them, shall be delivered with the file of papers or with the submission, as the case may be, to the court to which the award is returnable; and the clerk or register shall enter the award as the judgement of the court. Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in Section 6-6-14, the judgment shall become final and an appeal shall lie as in other cases. ...' "On July 8, 2004, the trial court issued an order purporting to set aside the arbitration award. However, under § 6-6-15, Ala. Code 1975, before the trial court could review the award, the circuit court clerk was required to 'enter the award as the judgement of the court.' Our review of the record reveals that the circuit court clerk did not enter the arbitration award as the trial court's preliminary judgment. "We recognize that the procedure for obtaining jurisdiction to review an arbitration award under § 6-6-15, Ala. Code 1975, is far from clear. Thus, in 1 the absence of a clear procedure for treating challenges to an arbitration award brought under § 6-6-15, Ala. Code 1975, and in light of the confusing nature of the statutory language, we deem it appropriate to issue an interim curative order in this case. "In the present posture of their appeals, Shane and Kelly Jenks ask this Court to review the trial court's July 8, 2004, order setting aside the arbitration award. However, because the circuit 2 clerk had not entered the arbitration award as the judgment of the court, the trial court's order 1050686; 1050687 8 vacating that arbitration award is void. '[W]here a judgment appealed from is void for want of jurisdiction, we have no alternative but to dismiss the appeal.' City of Huntsville v. Miller, 271 Ala. 687, 689, 127 So. 2d 606, 608 (1961). "IT IS THEREFORE ORDERED THAT, upon receipt of this order, the trial court shall instruct the Circuit Court Clerk of Madison County to enter the arbitration award as the judgment of the court. "'Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in Section 6-6-14, the judgment shall become final and an appeal shall lie as in other cases.' "Thus, if the trial court fails to act within the 10-day period allowed by § 6-6-15, Ala. Code 1975, the arbitration award will become the trial court's final judgment, which Mark Harris and Mark Harris Homes, LLC, shall be entitled to appeal. If, 3 however, the trial court sets aside the arbitration award within the 10-day period, Shane and Kelly Jenks shall be entitled to appeal the trial court's order setting aside the arbitration award. IT IS FURTHER ORDERED that these appeals are dismissed. ________________ " This Court has asked its standing committees 1 on the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure to draft rules clarifying the appropriate procedures under § 6-6-15, Ala. Code 1975. " Shane and Kelly Jenks initially sued Mark 2 Harris on September 7, 2001 (case no. CV-01-1948). The trial court stayed the Jenkses' action during the arbitration proceedings. After the arbitration award was handed down, Mark Harris and Mark Harris Homes, LLC, filed an application and motion to vacate the arbitration award. It was entered on the trial court's docket sheet as a separate legal 1050686; 1050687 9 action (case no. CV-04-1143). The circuit court clerk entered the trial court's order vacating the arbitration award as the judgment of the trial court in each of those cases. The Jenkses, therefore, filed two appeals, one in each case. " For timing purposes, Harris's application and 3 motion to vacate the arbitration award filed on May 10, 2004, shall be treated as the notice of appeal required by § 6-6-15, Ala. Code 1975." On November 3, 2005, Harris filed in the trial court in both cases a motion entitled "Emergency Motion to Vacate Arbitration Award" ("the emergency motion"). The motion stated that it was an "emergency request" because under Ala. Code 1975, § 6-6-15, the trial court had only 10 days from the date the arbitration award was entered to vacate the award. In an order dated November 21, 2005, the circuit clerk was ordered to enter the arbitrator's award as a judgment of the trial court. This was done on November 22. In an order dated November 23, 2005, the trial court granted Harris's motion to vacate the April 28, 2004, arbitration award. The Jenkses filed a postjudgment motion, which was denied. They again filed two appeals to this Court, one in each action. Discussion As a threshold issue, Harris contends that the Jenkses' 1050686; 1050687 10 appeal from the order vacating the arbitration award is an appeal from a nonfinal judgment because, Harris says, case no. CV-01-1948 remains pending. See Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004) ("A nonfinal judgment will not support an appeal.") However, Ala. Code 1975, § 6-6-15, states that when an arbitration award is set aside by the trial court, "such action shall be a final judgement from which an appeal shall lie as in other cases." Therefore, the trial court's order setting aside the arbitration award is a final judgment from which an appeal may lie. In the emergency motion, Harris argued, among other things, that he could not have been compelled to arbitrate the claims against him in this case. The emergency motion states: "The arbitration award is void because the arbitrator exceeded his power in entering an award against an individual who was wrongfully compelled to arbitrate as a nonsignatory to the contract containing the arbitration clause. ..." Although there are numerous exceptions, the general rule is that "the right to arbitrate is contractual[;] ... therefore, a party may not be compelled to arbitrate a dispute, unless it has agreed to do so." ECS, Inc. v. Goff Group, Inc., 880 So. 2d 1050686; 1050687 11 1140, 1145 (Ala. 2003). Harris argues that because he was not a signatory to the contract, he could not be compelled to arbitrate under its arbitration provision. Thus, he contends, the arbitrator erred in entering an award against him. The Jenkses, on the other hand, argue that Harris should have appealed from the trial court's order granting the motion to compel arbitration of the claims against him. Harris's failure to appeal from that order, the Jenkses maintain, waived any argument that the arbitration provision did not apply to him. We agree. "A direct appeal is the proper procedure by which to seek review of a trial court's order granting or denying a motion to compel arbitration." Conseco Fin. Corp.-Alabama v. Salter, 846 So. 2d 1077, 1080 (Ala. 2002). See also Rule 4(d), Ala. R. App. P. Harris argues, however, that he could not have appealed from the trial court's order compelling arbitration: "[A]t the time Harris and the other parties were compelled to arbitration, there was no right to appeal such a decision. On April 28, 2002, Circuit Court Judge Laura Hamilton, in case number CV- 01-1948, compelled the case to arbitration. For some reason, the Jenks[es] argue that Harris' failure to file an interlocutory appeal of the order compelling the case to arbitration under Rule 4(d) of the Alabama Rules of Appellate Procedure prevents Harris from arguing that he was not subject to the arbitration agreement. ... However, the case was 1050686; 1050687 See Court Comment to Amendment to Rule 4(a)(1) and 1 Adoption of Rule 4(d) Effective October 1, 2001; Ex parte Southern United Fire Ins. Co., 843 So. 2d 151, 155 n.3 (Ala. 2002) ("This Court adopted Rule 4(d), Ala. R. App. P., effective October 1, 2001, to provide that orders granting or denying motions to compel arbitration are reviewable by direct 12 compelled to arbitration before the October 1, 2002, effective date of the amendment to Rule 4(d), Ala. R. App. P., that allows an appeal of an order granting or denying a motion to compel arbitration. So, contrary to Jenks[es]' argument, Harris could not, in fact, appeal the decision compelling the case to arbitration. Jenks[es]' argument is misplaced, [and] not supported by Alabama law." Harris's brief at 47-48. It is true that before this Court adopted of Rule 4(d), Ala. R. App. P., a party who was compelled to arbitration was not required to appeal such an order: "Before the adoption of Rule 4(d) ..., an order granting a motion to compel arbitration was considered an interlocutory order reviewable only by a petition for a writ of mandamus. Bowater, Inc. v. Zager, 901 So. 2d 658 (Ala. 2004). When mandamus relief was not sought, however, the order granting arbitration did not thereby become 'final,' but remained interlocutory in character, subject to review, if desired, as a part of any appeal taken upon final disposition of the case." Wessex House of Jacksonville, Inc. v. Kelley, 908 So. 2d 226, 228-29 (Ala. 2005). However, Rule 4(d)--which became effective October 1, 2001, and not October 1, 2002, as Harris suggests --altered 1 1050686; 1050687 appeal."). In the emergency motion, Harris alleged other grounds 2 challenging the arbitrator's award. These grounds are not argued on appeal. Harris does contend in his brief on appeal that the arbitration award was due to be set aside because it was "arbitrary and capricious." However, we have previously 13 this principle: "[Rule 4(d), Ala. R. App. P.,] now evenhandedly states that both an order granting and an order denying a motion to compel arbitration are 'appealable as a matter of right' within 42 days from date of the entry of the order. The 'finality' of the order is thus assured, because failure to take an appeal from it within the 42-day time period forecloses later appellate review." Bowater Inc. v. Zager, 901 So. 2d 658, 664 (Ala. 2004) (emphasis added). The decision to compel Harris to arbitrate was the decision of the trial court, not the arbitrator. Thus, Harris's failure to appeal the trial court's decision within 42 days bars his attempt to challenge it once arbitration has been completed. Harris's emergency motion and his brief on appeal indicate that he challenged the arbitration award on the ground that the arbitrator manifestly disregarded the law. See Birmingham News Co. v. Horn, 901 So. 2d 27, 50 (Ala. 2004) (recognizing "manifest disregard of the law" as a ground available for review of an arbitration award). Specifically, 2 1050686; 1050687 declined to recognize such a ground: "The [Birmingham News Company], in addition to asserting that the arbitrators exceeded their powers and acted in 'manifest disregard of the law,' claims that each award fails to 'derive its essence from the underlying contract,' was 'arbitrary and capricious,' and was 'completely irrational.' ... We decline the News's invitation to adopt any of these other grounds of review. We deem these grounds too vague for application in the context of arbitration awards where the arbitrators have neither exceeded their powers nor manifestly disregarded the law." Birmingham News, 901 So. 2d at 52-53. Contrary to Harris's assertions that he was "nothing 3 other than a laborer ... rather than a president or administrator," Harris's own testimony at the July 8, 2004, hearing showed that he owned 25% of the stock in MRD and was one of only two stockholders; that he was involved in some of the business decisions of the company, specifically, both he and the other shareholder were in charge MRD's "day-to-day operation"; that he was a superintendent of some of the 14 Harris argues that the arbitrator erroneously held Harris liable for the acts of his employer, MRD, and erred in holding him liable even though he allegedly had nothing to do with the construction of the Jenkses' house. Harris claims that he was "nothing other than a laborer ... rather than a president or administrator" and that he was not even the supervisor of the project. Harris's brief at 35. Harris claims that he never "stepped out of his duties" with MRD and that he never personally contracted with the Jenkses.3 1050686; 1050687 corporation's jobs; that he kept the books for the corporation; and that he was involved in "commission[ing]" the subcontractors used to perform work on the Jenkses' house. 15 "On motions to confirm or to vacate an award, it is not the function of courts to agree or disagree with the reasoning of the arbitrators. Courts are only to ascertain whether there exists one of the specific grounds for vacation of an award. A court cannot set aside the arbitration award just because it disagrees with it; a policy allowing it to do so would undermine the federal policy of encouraging the settlement of disputes by arbitration." Maxus, Inc. v. Sciacca, 598 So. 2d 1376, 1380 (Ala. 1992), overruled on other grounds, as recognized in Terminix Int'l Co. v. Jackson, 628 So. 2d 357 (Ala. 1993) (citations omitted). Additionally, "'"courts are generally prohibited from vacating an arbitration award on the basis of errors of law or interpretation."'" McKee v. Hendrix, 816 So. 2d 30, 35 (Ala. Civ. App. 2001) (quoting J.A. Jones Constr. Co. v. Flakt, Inc., 731 F. Supp. 1061, 1064 (N.D. Ga. 1990), quoting in turn O.R. Sec., Inc. v. Professional Planning Assocs., Inc., 857 F.2d 742, 746 (11th Cir. 1988)). Judicial review under the "manifest disregard of the law" ground "is severely limited and ... the party challenging an award on this ground bears a heavy burden." Birmingham News, 901 So. 2d at 50. Furthermore, 1050686; 1050687 16 "a party seeking to vacate an arbitration award on the basis of manifest disregard of the law must establish that '(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.'" Birmingham News, 901 So. 2d at 52 (quoting Halligan v. Piper Jaffray, Inc., 148 F.3d 197, 202 (2d Cir. 1998)) (footnote omitted). The Jenkses claim that they alleged fraud and misrepresentation claims against Harris individually, and that those claims were submitted to the arbitrator. Specifically, the Jenkses contend that Harris misrepresented facts regarding the employment of subcontractors and the supervision of those subcontractors. The Jenkses' complaint in arbitration further alleged that Harris willfully or recklessly misrepresented these facts to the Jenkses. Moreover, at the July 8, 2004, hearing, Harris admitted that testimony at the arbitration proceeding indicated that he had told the Jenkses that he would employ qualified subcontractors but that the work by the subcontractors had been poor. Specifically, Harris testified that he "was involved with the commission of the subcontractor." Additionally, the following exchange took place: 1050686; 1050687 17 "[Jenkses' counsel:] And you were in arbitration of this case and you heard a licensed architect and a licensed home-building inspector say the work was well below par in the State of Alabama, were you not? "[Harris:] I heard that testimony. ".... "Q. And that in his professional opinion as a licensed architect, [the house] would need to be torn down? "A. The brick, yes. "Q. And the cost of repair of that brick would be in the neighborhood of a hundred to a hundred and fifty thousand dollars? "A. Yes, he did testify to that. "Q. And you heard a licensed home inspector in the State of Alabama give the same type of testimony, did you not? "A. I did. "Q. Okay. And yet you had told the Jenkses that you would employ and use your efforts to get qualified [subcontractors] who could do quality work in this area, did you not? "A. I did, but the Jenkses were given the choice between brick subcontractors." The Jenkses' fraud and misrepresentation claims as a basis for holding Harris individually liable was specifically discussed at the hearing: "MR. MORRIS [the Jenkses' counsel]: If I sue a 1050686; 1050687 18 truck driver, who is working for a company, Judge, I can sue the company and the truck driver. That is the basis of this suit here. I sued the corporation, the man doing the work for the corporation individually because he didn't do his job. "MR. CONCHIN [[Harris's counsel]: You have no tort claims. "MR. MORRIS: Yes, sir, I do. "MR. CONCHIN: You need to read your complaint again. We've got a breach of contract. "MR. MORRIS: There is an intentional misrepresentation in this claim, Judge. "MR. CONCHIN: Where -- ".... "THE COURT: Well, ... there is a breach of contract, breach of warranty." "MR. CONCHIN: That's it. "THE COURT: Negligent breach of contract and misrepresentation count. "MR. MORRIS: Judge, here is the amended claim for arbitration, which has a fraud, misrepresentation count, Count Number Four, in it which was arbitrated. "THE COURT: All right. Make that an exhibit." The Jenkses' fraud and misrepresentation claims against Harris individually were not addressed by Harris in either the emergency motion or the brief in support of that motion, and they are not addressed by Harris on appeal. The Jenkses 1050686; 1050687 19 contend that those claims were submitted to the arbitrator, that the arbitrator considered them, and that the arbitrator could have found Harris individually liable under them. We agree. For all that appears, this issue was presented to the arbitrator and can form a legal basis for an arbitration award against Harris individually. Because the Jenkses presented claims against Harris individually alleging tortious conduct on his part, we cannot conclude that Harris met the "heavy burden" of establishing that the arbitrator manifestly disregarded the law in finding Harris personally liable. Therefore, we reverse the trial court's order vacating the arbitration award against Harris and render a judgment in favor of the Jenkses. Conclusion The portion of the trial court's order vacating the arbitration award against Harris Homes is affirmed, the portion vacating the award against Harris is reversed, and, to that extent, we render a judgment in favor of the Jenkses. 1050686--AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED. 1050687--AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED. Cobb, C.J., and See, Woodall, and Parker, JJ., concur.	March 14, 2008
26db5517-ce4d-4fd7-9620-f1c4a316dbaf	Ex parte Chester Elton Berry et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: The Estate of Vera H. Berry, Deceased)	N/A	1070182	Alabama	Alabama Supreme Court	REL: 6/13/08 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, 2007-2008 ____________________ 1070182 ____________________ Ex parte Chester Elton Berry et al. PETITION FOR WRIT OF MANDAMUS (In re: Estate of Vera H. Berry, deceased) (Cullman Circuit Court, CV-06-433) SEE, Justice. Chester Elton Berry, Robert Berry, Donald Berry, Henry Berry, William Berry, Karen Berry Davis, and Randy Berry (collectively "the Berrys") petition this Court for the writ of mandamus directing Cullman Circuit Court Judge Don L. Hardeman to grant the Berrys' motion for the dismissal of the 1070182 2 administration of the estate of Vera H. Berry, which had been removed from the Cullman County Probate Court. We grant the petition and issue the writ. Facts and Procedural History The facts relevant to the disposition of this mandamus petition are undisputed. On August 16, 2006, Haskel R. Berry, as executor, filed in the Cullman County Probate Court a petition to probate the will of Vera H. Berry. Haskel is the son of Vera H. Berry, and her will designates him as the first named executor of the estate. The probate court scheduled a hearing for September 22, 2006, to determine whether to probate the will. On September 1, 2006, the Berrys, who are also Vera H. Berry's children and Haskel's siblings, petitioned for the removal of the administration of the estate from the probate court to the Cullman Circuit Court. On September 12, Judge Hardeman granted the Berrys' petition and removed this action from the probate court to the Cullman Circuit Court. The Berrys subsequently moved the circuit court to appoint Chester Elton Berry the executor and personal 1070182 Vera H. Berry's will designates Chester Elton Berry as 1 the alternative executor of her estate in the event that Haskel is unable, is unwilling, or ceases to act as the executor of the estate. 3 representative of the estate. The circuit court denied that 1 motion. The Berrys then moved the circuit court to dismiss the administration of the estate, arguing that the circuit court did not have jurisdiction to enter the order removing the administration of the estate from the probate court to the circuit court. The circuit court denied the Berrys' motion to dismiss the administration of the estate. The Berrys moved the circuit court to alter, amend, or vacate its denial of the motion to dismiss, and the circuit court denied that motion. On October 19, 2007, the Berrys petitioned the Court of Civil Appeals for mandamus relief. The petition was transferred to this Court because the Court of Civil Appeals did not have subject-matter jurisdiction over the action. 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."'" 1070182 Section 12-11-41, Ala. Code 1975, provides: 2 "The administration of any estate may be removed 4 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)). "[T]he question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus." Ex parte Johnson, 715 So. 2d 783, 785 (Ala. 1998). "Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo." Ex parte Terry, 957 So. 2d 455, 457 (Ala. 2006). A claim that a circuit court lacked subject-matter jurisdiction to rule on a removal petition is a question of law. Ex parte Terry, 957 So. 2d at 457. Analysis The Berrys argue that the administration of the estate had not yet begun in the probate court and that a circuit court cannot assume jurisdiction over the administration of an estate that has not yet begun. In Ex parte Smith, 619 So. 2d 1374, 1375-76 (Ala. 1993), this Court recognized that under § 12-11-41, Ala. Code 1975, a "circuit court cannot assume 2 1070182 from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court." Section 12-13-1, Ala. Code 1975, provides, in pertinent 3 part: "(a) The probate court shall have original and general jurisdiction as to all matters mentioned in this section .... "(b) The probate court shall have original and general jurisdiction over the following matters: "(1) The probate of wills. "(2) The granting of letters testamentary and of administration and the repeal or revocation of the same. "(3) All controversies in relation to the right of executorship or 5 jurisdiction over the administration of an estate when the administration has not yet begun." In Ex parte Smith, this Court further recognized that under § 12-13-1, Ala. Code 1975, a circuit court is not empowered to "initiate the 3 1070182 administration. "...." 6 administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court." 619 So. 2d at 1376. Therefore, in order to determine whether the Berrys are entitled to the mandamus relief they seek, we must determine whether the probate court had initiated the administration of the estate before the Berrys filed the petition for removal. This Court stated in Ex parte Smith that "the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court." 619 So. 2d at 1376. We determined that mandamus relief was appropriate in Ex parte Smith because "the probate court had taken no action whatever on Smith's petition; therefore, the administration of [the] estate did not begin and [the] petition for removal was premature." 619 So. 2d at 1376. The Berrys contend that, in this case, the removal of the 1070182 7 administration of the estate from the probate court to the circuit court was similarly premature because "[they] filed the Petition for the Removal of the Administration of the Estate of Vera H. Berry prior to the Probate Court's beginning the administration of the Estate by issuing letters testamentary or appointing anyone as the executor or personal representative of the Estate." Berrys' petition at 6. Therefore, the Berrys argue, Ex parte Smith is controlling and they are entitled to mandamus relief. Haskel argues, however, that Ex parte Smith is distinguishable from this case because, he says, the probate court in this case had acted upon the petition and had initiated the administration of the estate by scheduling a hearing to determine whether to probate the will. Although Haskel does point out a difference between this case and Ex parte Smith, we are not persuaded that that difference legally distinguishes Ex parte Smith. As we noted, this Court in Ex parte Smith held that removal of the will proceeding from the probate court to the circuit court was premature because the probate court had not initiated the administration of the estate by acting on the petition. Specifically, this Court highlighted the fact that 1070182 8 the will proceeding was removed to the circuit court "[b]efore the probate court had made any rulings" on the matter regarding the probate of the will or the administration of the estate. Ex parte Smith, 619 So. 2d at 1375. In this case, the probate court scheduled a hearing to consider Haskel's petition to probate the will; however, it took no action. See Ex parte Coffee County Dep't of Human Res., 771 So. 2d 485 (Ala. Civ. App. 1996) (holding that the appointment of a guardian ad litem and the scheduling of a hearing to appoint a conservator did not warrant removing the conservatorship proceeding from the probate court to the circuit court). Because the scheduling of a hearing, without further action, does not indicate that the probate court began the administration of the estate, we conclude that the Berrys have demonstrated a clear legal right to the relief sought. See Ex parte Monsanto Co., supra. Haskel argues that the Berrys are not entitled to mandamus relief because, he argues, they have another adequate remedy in that they could appeal the circuit court's order removing the administration of the estate from the probate court to the circuit court. In support of his argument, 1070182 9 Haskel cites Ex parte Terry, in which this Court stated that the administrator of the estate was not entitled to mandamus relief because "the administrator may appeal the order of the circuit court." 957 So. 2d at 459. In Ex parte Terry, the circuit court had a duty to grant the removal petition, but it did not do so. In the case before us today, on the other hand, the circuit court did not improperly deny the removal petition; instead, it improperly granted it in a case where the probate court had not yet begun the administration of the estate. The present case reaches this Court in a fundamentally different posture than did Ex parte Terry. In this case, because the circuit court granted the removal petition, and not as in Ex parte Terry effectively denied it, the case remains pending in the circuit court. The Ex parte Terry opinion supported its statement that "the administrator may appeal the order of the circuit court" with a citation to Ex parte Kelly, 243 Ala. 184, 8 So. 2d 855 (1942), and the statement in that case that "'[t]he effect of the decree appealed from -- remanding the administration of the estate to the probate court -- was to put this branch of the case out of 1070182 The administrator had moved the circuit court to vacate 4 its original order denying the petition to remove the case from the probate court. The circuit court was holding that motion in abeyance during this Court's review of the administrator's mandamus petition and the quoted statement was made in contemplation of a denial of that pending motion after this Court's decision on the mandamus petition. Ex parte Terry, 957 So. 2d at 459. 10 the circuit court, and was such final decree as will support the appeal.'" Ex parte Terry, 957 So. 2d at 459 (quoting Ex parte Kelly, 243 Ala. at 187, 8 So. 2d at 857). In contrast to the circumstances contemplated in Ex parte Terry, there is 4 here no "final decree [such] as will support [an] appeal"; therefore, a petition for the writ of mandamus is appropriate. See Smith v. Smith, 248 Ala. 49, 52-53, 26 So. 2d 553, 573 (1946) ("The case comes here by appeal with alternate petition for writ of mandamus to be directed to the circuit judge to vacate and annul the order of removal [from the probate court]. The order is not appealable so the appeal will be dismissed. Mandamus, however, is the proper remedy ...." (citing Ex parte Chapman, 225 Ala. 168, 171, 142 So. 540, 543 (1932) ("Inasmuch as the petitioner ... could not appeal from the said order of the circuit judge [transferring the guardianship from the probate court to the circuit court], her 1070182 11 only proper remedy was and is by mandamus."))). Therefore, we are not persuaded by Haskel's argument that the Berrys have an adequate alternative remedy in an appeal. Haskel finally argues that the Berrys have "waived any objection to jurisdiction of the Circuit Court by their participation and should be estopped from now denying jurisdiction simply due to receiving an unfavorable ruling." Haskel's response at 10. Haskel's argument that the Berrys' participation in the proceedings in the circuit court works a waiver of any challenge by the Berrys to the circuit court's exercise of jurisdiction appears to confuse the jurisdictional discussion in Ex parte Smith. In stating in Ex parte Smith that "[t]he circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet begun," 619 So. 2d at 1375-76, this Court was referring to subject-matter jurisdiction. "Subject matter jurisdiction concerns a court's power to decide certain types of cases." Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). Our decision in Ex parte Smith relied on § 12-13-1, Ala. Code 1975, which grants probate courts "original and general jurisdiction" over all matters 1070182 12 enumerated in that statute, including the probate of wills and disputes over the right of executorship and administration. "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." Ex parte Smith, 438 So. 2d 766, 768 (Ala. 1983) (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So. 2d 606, 608 (1958)). Therefore, we reject Haskel's argument that the Berrys have waived any objection to the circuit court's exercise of jurisdiction over this case. Conclusion We hold that the circuit court lacked jurisdiction over the administration of the estate. The Berrys have demonstrated (1) that they have a clear legal right to an order directing the circuit court to dismiss the administration of the estate, (2) that the circuit court should have granted their motion to dismiss and did not, (3) that they do not have another adequate remedy, and (4) that jurisdiction in this Court is proper. Ex parte Monsanto Co., supra. Therefore, we grant the Berrys' petition and issue the writ of mandamus directing the circuit court to dismiss the 1070182 Because we grant the petition and issue the writ of 5 mandamus, we do not reach the Berrys' argument that they are entitled to mandamus relief directing the circuit court to appoint Chester Elton Berry as the executor and personal representative of the estate. 13 administration of the estate. 5 PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	June 13, 2008
e50bbd8b-7106-46a6-84d6-fe07c53b1ef4	Hilb, Rogal & Hamilton Company et al. v. Werner Beiersdoerfer (Appeal from Jefferson Circuit Court: CV-01-1091). Application Overruled; Opinion of December 14, 2007, Modified [By Substitution of Pages 20 and 21].	N/A	1060522	Alabama	Alabama Supreme Court	REL: 12/14/2007 02/22/2008 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 OCTOBER TERM, 2007-2008 _________________________ 1060522 _________________________ Hilb, Rogal & Hamilton Company et al. v. Werner Beiersdoerfer Appeal from Jefferson Circuit Court (CV-01-1091) LYONS, Justice. Hilb, Rogal & Hamilton Company ("HRH"), Hilb, Rogal & Hamilton of Alabama, Inc. ("HRH Alabama"), and BDF-Meadows, Inc. ("BMI") (collectively referred to as "the HRH corporations"), appeal from the trial court's order denying 1060522 2 their postjudgment motion in an action filed against them by Werner Beiersdoerfer. We reverse and remand. I. Factual Background and Procedural History This is the second time this case has been before this Court. In the previous appeal, we affirmed the judgment in part, reversed it in part, and remanded the cause for further proceedings. Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196 (Ala. 2006) ("Beiersdoerfer I"). In Beiersdoerfer I, we stated the pertinent facts as follows: "Substantive Facts ".... "On January 1, 1998, Beiersdoerfer, the sole shareholder of Beiersdoerfer-Meadows, Inc. ('BMI'), an insurance agency, sold all of the stock in BMI to HRH for $700,000 and executed a written stock- purchase agreement. In addition, Beiersdoerfer agreed to work for HRH for two years and executed a written employment agreement. In both the stock- purchase agreement and the employment agreement, Beiersdoerfer agreed that he would not compete with HRH for a specified period of time. As an employee of HRH, Beiersdoerfer continued to manage the accounts of BMI and to supervise subordinates. "In June 2000, Beiersdoerfer told Richard Simmons III, regional director of HRH, that Beiersdoerfer wanted to terminate his employment with HRH. Beiersdoerfer offered to repurchase BMI from HRH. Simmons told Beiersdoerfer that Simmons would have to discuss Beiersdoerfer's offer to purchase BMI with Mel Vaughn, the chief operating 1060522 3 officer of HRH, because Simmons did not have authority to accept or to reject such an offer on behalf of HRH. Vaughn rejected Beiersdoerfer's offer. "After Vaughn rejected Beiersdoerfer's offer to repurchase BMI, Beiersdoerfer and Simmons began discussing the possibility of Beiersdoerfer's continuing to manage the accounts of BMI for HRH as an independent broker instead of as an employee. Beiersdoerfer asked Simmons whether he had the authority to agree to such an arrangement without seeking approval from the home office of HRH in Richmond, Virginia. Simmons responded 'that he had the authority and the decision could be made locally and no Richmond.' (At trial, however, Vaughn testified that Simmons did not have such authority.) "Thereafter, Beiersdoerfer and Simmons met in mid-November 2000 ('the mid-November meeting'). Simmons asked Beiersdoerfer to go over his proposal to manage the accounts of BMI as an independent broker. Beiersdoerfer stated that he proposed to resign as an employee of HRH, to manage the accounts of BMI as an independent broker, and to split the commissions generated by those accounts with HRH. Simmons suggested that HRH should receive 60% of the commissions and Beiersdoerfer should receive 40%. Beiersdoerfer agreed and stated that he would pay all of his expenses out of his share of the commissions. Beiersdoerfer further stated that the arrangement would continue until HRH received an amount equal to the $700,000 it had paid Beiersdoerfer for the stock in BMI less any profits already received by HRH from the operation of BMI ('the monetary goal'). Finally, Beiersdoerfer stated that, under his proposal, any new business referred by HRH to BMI would remain with HRH when the arrangement ended and any new business generated by Beiersdoerfer or referred by outside brokers would go with him when the arrangement ended. At the end of this discussion, Simmons said: 'I 1060522 4 understand and I agree.' Simmons then told Beiersdoerfer that he was leaving at the end of the year to take another position, and he asked Beiersdoerfer to explain the arrangement to David Hobbs, the president of HRH Alabama. After the mid- November meeting, Beiersdoerfer made informal arrangements to sublease office space in another building where he planned to manage the BMI accounts as an independent broker; he arranged for a moving company; and he moved his office. "On November 21, 2000, Beiersdoerfer, Simmons, and Hobbs met to discuss Beiersdoerfer's managing the BMI accounts for HRH as an independent broker ('the November 21 meeting'). Beiersdoerfer recited the terms he and Simmons had discussed at the mid- November meeting. Hobbs complained that two BMI agents, Kevin Tangney and Heidi Parker, who is Beiersdoerfer's daughter, were planning to leave BMI without having signed covenants not to compete with HRH. Hobbs said that he could cause trouble for Parker and Tangney even though they had not signed a covenant not to compete. Beiersdoerfer said he would continue to manage the BMI accounts until HRH received $75,000 more than the monetary goal if Hobbs would refrain from causing trouble for Parker and Tangney. Hobbs stated: 'I agree.' Hobbs then told Beiersdoerfer that, because they were going to implement the independent-broker arrangement, Beiersdoerfer should take BMI's files to his office. Although Hobbs said that he wanted Simmons to reduce the terms of the agreement between Beiersdoerfer and HRH to writing, neither he nor Simmons indicated that the assent of HRH to the agreement was contingent on its being reduced to writing. Beiersdoerfer testified at trial that no details of the agreement remained unresolved at the end of the November 21 meeting. Simmons admitted at trial that neither he nor Hobbs told Beiersdoerfer at the November 21 meeting that any details of their agreement remained unresolved. 1060522 5 "The next day, Beiersdoerfer moved BMI's files from the offices of HRH to his new office. While he was at HRH's offices, he saw Simmons, who stated, 'I was glad that we were able to reach an agreement.' On December 1, Beiersdoerfer executed a sublease on his new office. "After the mid-November meeting and the November 21 meeting, Simmons instructed the comptroller of HRH to pay Beiersdoerfer 40% of the revenue of BMI as a commission after December 31. The comptroller then prepared a budget for the next year showing Beiersdoerfer as receiving 40% of the revenue of BMI as a commission. "On November 27 and 28, 2000, Simmons and Hobbs met with Vaughn at the home office of HRH in Richmond ('the November 27 and 28 meetings'). Vaughn said that 'there should be a one-year consulting agreement [with Beiersdoerfer] with a non-piracy agreement upon termination and that it should have a 30-day termination clause and that it was--should only be needed for 90- to [180] days.' Vaughn's plan was that Wayne Bowling, an HRH employee, would become familiar with the BMI accounts during this 90- to [180]-day period and the consulting agreement would then be terminated. No one told Beiersdoerfer about Vaughn's instructions at the November 27 and 28 meetings. "When Beiersdoerfer returned to his office after the New Year's Day holiday, he found an unsigned faxed letter from Hobbs dated December 29. The letter stated: "'The purpose of this letter is to outline the terms of our agreement: "'1. Werner Beiersdoerfer will retire from HRH effective January 1, 2000 [sic]. At that time he will become an independent broker, serving the accounts assigned to 1060522 6 him. See attached list. We agree that the long-term objective is to orderly transfer these accounts to an HRH producer. "'2. All Fees & Commissions will be paid to HRH. HRH will then pay Mr. Beiersdoerfer 40% of the commissions and fees generated by these assigned accounts. "'3. The files on these accounts will remain with Mr. Beiersdoerfer, but will be returned at any time to HRH at their request. "'4. HRH will not extend errors and omissions coverage to Mr. Beiersdoerfer. "'5. Mr. Beiersdoerfer agrees that at no time in the future will he work in collusion with his daughter, Heidi Parker, to solicit these assigned accounts. "'6. If at any time in the future, either Werner Beiersdoerfer or HRH becomes dissatisfied with this arrangement, either party can cancel this agreement with 30 days notice. At that time, Mr. Beiersdoerfer agrees to never contact or solicit these assigned accounts.' "On January 2, Beiersdoerfer telephoned Simmons and left a message on his answering machine. The message stated that Hobbs's December 29 letter was satisfactory except for the statement in paragraph 4 that HRH would not provide Beiersdoerfer with errors-and-omissions coverage and the statement in paragraph 6 that Beiersdoerfer would 'never contact' clients of BMI. Simmons acknowledged that he received the message and that he conveyed the information to Hobbs. That same day, Hobbs signed a payroll authorization form listing Beiersdoerfer's 1060522 7 date of termination as an employee of HRH as December 31, 2000. "On January 3, Hobbs showed Vaughn a copy of Hobbs's December 29 letter. Vaughn became angry and asked Hobbs if he understood that the letter amended the employment and stock-purchase agreements. Vaughn instructed Hobbs to 'get out' of the agreement with Beiersdoerfer. Hobbs and Fred Renneker, the chief executive officer of HRH Alabama, went to Beiersdoerfer's office on January 8. Hobbs gave Beiersdoerfer a letter signed by Hobbs and dated January 5. In pertinent part, the letter stated: "'I have made the decision to terminate your employment as of February 9, 2001. Since we have not finalized our arrangement (earlier faxed to you), that proposed offer is retracted as well.' "After giving Beiersdoerfer this letter, Hobbs said, 'Mel [Vaughn] didn't like the agreement.' Beiersdoerfer responded that they had an agreement. Renneker then said that the agreement had not been reduced to writing and signed. Beiersdoerfer responded that oral agreements were binding in Alabama, that he intended to abide by the oral agreement they had reached, and that he expected HRH to abide by it as well. "A few days after this meeting, Beiersdoerfer's wife received a letter from HRH informing her of her right, under COBRA, to continue her health insurance coverage under the group plan for up to 18 months after the termination of Beiersdoerfer's employment on December 31, 2000. Later in January, HRH generated a payroll authorization form to reinstate Beiersdoerfer's pay and benefits as an employee through February 9, 2001. "Procedural Facts 1060522 8 "Alleging that Beiersdoerfer had violated the covenants not to compete in the stock-purchase and employment agreements, the HRH [corporations] sued him, alleging breach of contract, breach of fiduciary duty, and tortious interference with business relationships. Beiersdoerfer counterclaimed, alleging breach of contract, misrepresentation, suppression, defamation, defamation per se, conspiracy, and invasion of privacy. "As the factual basis of his breach-of-contract claim, Beiersdoerfer alleged that Beiersdoerfer and HRH had formed an oral contract at the mid-November and November 21 meetings and that HRH had breached that oral contract. As part of the factual basis of his misrepresentation claim, Beiersdoerfer alleged that, after September 2000 and before the mid- November meeting, Simmons had misrepresented to Beiersdoerfer '[t]hat Simmons possessed the authority to enter a contract on behalf of [HRH] regarding Beiersdoerfer's management of accounts' and '[t]hat the agreement regarding Beiersdoerfer's management of accounts could be made "locally," and did not require the "approval of Richmond."' In addition, Beiersdoerfer alleged that Simmons and Hobbs, at the November 21 meeting, had misrepresented the intent of HRH 'to be bound by the terms and conditions agreed upon,' 'to perform the terms and conditions for a time period sufficient to achieve the monetary goal agreed upon,' and 'to reduce the terms and conditions to writing.' As the factual basis of his suppression claim, Beiersdoerfer alleged that, between November 2000 and January 8, 2001, Simmons and Hobbs had suppressed the fact '[t]hat Simmons did not possess the authority to enter a contract on behalf of [HRH] regarding Beiersdoerfer's management of accounts'; the fact '[t]hat the agreement regarding Beiersdoerfer's management of accounts could not be handled 'locally'; the fact that such an agreement 'did require the "approval of Richmond"'; the fact 1060522 9 'that [HRH] did not intend to honor the terms and conditions agreed upon'; the fact 'that [HRH] formed an intent to repudiate the agreement reached within 90 to 180 days'; the fact 'that Mel Vaughn had instructed them that the most he could live with was a one-year consulting agreement terminable on 30- day's notice with a non-piracy clause, and that he expected that it would only be needed for 90 to 180 days'; and the fact 'that [HRH] had no intention of allowing the parties to perform as agreed upon.' "The HRH [corporations] moved for a summary judgment on Beiersdoerfer's counterclaims. However, the trial court denied the summary-judgment motion, and the case proceeded to trial. The HRH [corporations], on the one hand, and Beiersdoerfer, on the other, moved for a JML [judgment as a matter of law] at the close of all the evidence. As grounds for a JML on Beiersdoerfer's breach-of- contract claim, the HRH [corporations] asserted that Beiersdoerfer had not introduced substantial evidence tending to prove that the parties had mutually assented to all of the terms of the putative oral contract and substantial evidence tending to prove that the putative oral contract specified how it had modified the stock-purchase and employment agreements. As grounds for a JML on Beiersdoerfer's misrepresentation claim, the HRH [corporations] asserted that Beiersdoerfer had not introduced substantial evidence indicating that Simmons's representation was false, that Beiersdoerfer had relied upon Simmons's representation, and that Beiersdoerfer was damaged by relying upon Simmons's representation. As the ground for a JML on Beiersdoerfer's suppression claim, the HRH [corporations] asserted that Beiersdoerfer had not introduced substantial evidence indicating that the HRH [corporations] had suppressed any facts. "The trial court entered a JML in favor of the HRH [corporations] on all of Beiersdoerfer's claims 1060522 10 except his breach-of-contract, misrepresentation, and suppression claims. The trial court entered a JML in favor of Beiersdoerfer on all of the claims of the HRH [corporations] except their breach-of- contract claim. The trial court then charged the jury on the HRH [corporations'] breach-of-contract claim and Beiersdoerfer's breach-of-contract, misrepresentation, and suppression claims. The trial court did not instruct the jury that it could not return a verdict for Beiersdoerfer on both his breach-of-contract claim and his misrepresentation claim. The verdict form the trial court gave the jury to be used if the jury found in favor of Beiersdoerfer allowed the jury to return a verdict for Beiersdoerfer both '[f]or breach of contract' and '[f]or fraud' without requiring the jury to specify whether a verdict for Beiersdoerfer '[f]or fraud' was a verdict on the misrepresentation claim only, a verdict on the suppression claim only, or a verdict on both of those claims. "Immediately after the trial court charged the jury and before the jury retired to consider its verdict, counsel for the HRH [corporations], outside the presence of the jury, stated on the record: "'It seems to me that Mr. Beiersdoerfer should–-and I admit I have not researched–-but he should elect between his remedies, fraud and breach of contract, since they're based upon the same facts. And there's the potential for the jury, if they rule his way on both of those claims, to award double damages. But I admit to you I have not researched that as of yet.' "The trial court did not give the jury any additional instructions in response to this statement. Thereafter, the jury returned a verdict in favor of Beiersdoerfer on the HRH [corporations'] breach-of-contract claim and in favor of Beiersdoerfer on his claims against the HRH 1060522 11 [corporations]. Using the verdict form provided by the trial court, the jury awarded Beiersdoerfer $250,000 '[f]or breach of contract' and $1,000,000 '[f]or fraud.' The trial court entered judgment on the jury verdict. "The HRH [corporations] renewed their motion for a JML and moved, in the alternative, for a new trial or a remittitur. As one of the grounds of their motion for a new trial, the HRH [corporations] asserted that the jury verdict was inconsistent because it awarded Beiersdoerfer damages for both breach of contract and fraud, claims that presupposed inconsistent facts. Although the trial court denied the HRH [corporations'] motion for a JML, it awarded them a new trial on the ground that the verdict returned by the jury was inconsistent. The trial court reasoned: "'Beiersdoerfer contended before the jury that a valid contract existed which was breached by HRH and he was entitled to damages as a result of this breach. At the same time Beiersdoerfer contended before the jury that the contract was invalid because Simmons fraudulently represented to [Beiersdoerfer] that [Simmons] had the authority to enter into the contract without the approval of the home office in Richmond, Virginia, when in fact he did not have such authority and he was entitled to d a m a g e s f o r t h e f r a u d u l e n t misrepresentation. These theories of recovery are factually inconsistent and a general verdict allowing recovery under both theories is self-contradictory. It is well settled under Alabama law that a plaintiff may present alternative, inconsistent, and mutually exclusive claims to the jury. King v. Cooper Green Hospital, 591 So. 2d 464 (Ala. 1991). However, a plaintiff may recover under only 1060522 12 one of those claims. United States Fidelity & Guaranty Company v. McKinnon, 356 So. 2d 600 (Ala. 1978). No instruction was given to the jury in that regard, and the jury in fact awarded damages for both breach of contract and fraud.' "The trial court acknowledged that a portion of Beiersdoerfer's suppression claim did not presuppose the invalidity of the putative oral contract. However, the trial court reasoned: "'The verdict on the fraud claims was in the form of a general verdict and did not distinguish between the fraudulent misrepresentation and the fraudulent suppression claims. The Court therefore cannot determine from the verdict whether the jury award [for fraud] was based upon the fraud claim of misrepresentation, which would be inconsistent with the breach of contract award and would be improper, or was based upon the fraud claim of suppression, which would perhaps be permissible. Therefore, the verdict rendered herein is inconsistent, and the judgment entered pursuant to said verdict must be set aside.'" 953 So. 2d at 1199-1204 (footnote omitted). Beiersdoerfer appealed from the judgment granting the HRH corporations' motion for a new trial; the HRH corporations cross-appealed from the judgment denying their motion for a judgment as a matter of law ("JML"). We affirmed the trial court's judgment denying the HRH corporations' motion for a JML as to Beiersdoerfer's breach- 1060522 13 of-contract, misrepresentation, and fraudulent-suppression claims, concluding that Beiersdoerfer introduced sufficient evidence to allow those claims to be submitted to the jury. We dismissed the HRH corporations' cross-appeal insofar as it challenged the trial court's denial of a JML as to Beiersdoerfer's promissory-fraud claim because that challenge was moot. We reversed the judgment granting the motion for a new trial. We noted that the HRH corporations did not request a jury instruction that Beiersdoerfer could recover damages on only one of his claims--breach of contract or fraud--but not both, and that they did not object to the jury instructions after the trial court gave them. We held that the trial court exceeded its discretion in ordering a new trial in the absence of a timely objection to the jury charges as given. On remand, the trial court held a status conference, at which the HRH corporations sought a ruling on the motion for a remittitur they had filed in 2002 after the trial had concluded. At the judge's request, the parties filed briefs addressing the issue whether the trial court had jurisdiction to hear the motion for a remittitur. On November 17, 2006, the trial court entered an order vacating its order of July 1060522 14 19, 2002, granting the HRH corporations' motion for a new trial; reinstating the judgment of April 3, 2002, entered on the jury verdict; and vacating its order staying execution on the judgment. That order did not address the motion for a remittitur. On November 27, 2006, the HRH corporations filed a motion requesting a ruling on their 2002 motion for a remittitur and also filed a new motion for a remittitur based on the same grounds as the 2002 motion, i.e., that the damages award for mental anguish was excessive and that they were entitled to a setoff for a percentage of the sales commissions that had been paid to Beiersdoerfer pursuant to the contract that was the basis of this action. At a hearing in December 2006, both parties argued the jurisdictional issue; the HRH corporations also argued the merits of their motion for a remittitur. On December 19, the trial court entered the following order: "This cause was heard on a Request filed by the Plaintiff/Counter-Defendant, Hilb, Rogal & Hamilton Company ('HRH') for Ruling Or, In The Alternative, Renewed Post-Judgment Motions. Counsel for all parties were present. In February 2001, HRH commenced this action by filing a request for injunction and other relief against the Defendant/Counter-Plaintiff, Werner Beiersdoerfer ('Beiersdoerfer'). Thereafter Beiersdoerfer filed a counterclaim seeking damages for breach of 1060522 15 contract and fraud. On March 11, 2002, a jury returned a verdict against HRH on Beiersdoerfer's counterclaim and awarded compensatory damages in the amount of $250,000.00 for breach of contract and $1,000,000.00 for fraud for a total compensatory damage[s] award of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00). The jury also found for Beiersdoerfer on the claims of HRH. "HRH filed post-judgment motions including a motion for judgment as a matter of law, a new trial and remittitur. After hearing these motions the Court entered an Order on July 19, 2002, granting HRH's Motion for New Trial but did not rule on any of the remaining motions, including the Motion for Remittitur. Beiersdoerfer appealed this Order and HRH filed a Cross-Appeal. On September 22, 2006, some four years later, the Supreme Court reversed this Court's Order of July 19, 2002, and remanded the case for further proceedings consistent with the Supreme Court's decision. "On October 24, 2006, the Court held a Status Conference with the parties to consider such actions as may be appropriate consistent with the Supreme Court's Order. Upon consideration of the arguments and briefs of counsel this Court entered an Order on November 17, 2006, which vacated the Court's July 19, 2002, Order granting HRH a new trial and reinstated the jury verdict and order of the Court entered on April 3, 2002. "HRH now requests the Court to consider and issue a ruling on its Motion for Remittitur. Beiersdoerfer argues that this Court does not have jurisdiction to consider and/or grant remittitur because these motions were overruled as a matter of law pursuant to Rule 59.1[, Ala. R. Civ. P.]. Under Rule 59(g)[, Ala. R. Civ. P.,] all such motions remain pending until ruled upon by the Court subject to the provisions of Rule 59.1. Beiersdoerfer argues that since the Court did not rule on HRH's 1060522 16 Motion for Remittitur within ninety (90) days, it constitutes a denial of such motion. HRH argues that since the Court granted the Motion for New Trial, the Motion for Remittitur was rendered moot. In support for that argument HRH cites Alfa Mutual Fire Insurance Co. v. Patton, 742 So. 2d 1228[, 1234] (Ala. Civ. App. 1997) which referenced, in passing upon other matters, the statement that 'the trial court[']s grant of a new trial made the issue of remittitur moot.' It appears to the Court that neither party here raised or argued this issue in their appeal to the Supreme Court nor did the Supreme Court address this issue. In any event, both parties agree that any action this Court enters now will be appealed for further review to the Supreme Court. Therefore, based upon the plain language of Rule 59(g) and Rule 59.1 the Court is of the opinion that Beiersdoerfer is correct and that this Court lacks jurisdiction to consider and/or grant a remittitur at this time. "At the hearing on this motion the Court allowed HRH to present its argument on the issue of remittitur in the event that this Court agreed with the argument of HRH that the Motion for Remittitur was still viable and should be considered by the Court. While the Court finds that it lacks jurisdiction to consider or grant a remittitur, it would observe that it would likely not grant HRH's motion. HRH argues that the jury verdict of $1,000,000.00 as compensatory damages on Beiersdoerfer's fraud claim was basically compensation for mental anguish and that Beiersdoerfer failed to offer sufficient evidence to sustain the verdict and therefore the jury abused its discretion. First, a jury verdict is presumed correct. Secondly, the Court recalls some of the testimony in this case, particularly the testimony of Mel Vaughn, CEO of HRH to the effect that he would only approve a one-year consulting agreement with Beiersdoerfer with a non-piracy clause and a 30-day notice provision allowing either party to 1060522 17 cancel the agreement and further the agreement would probably only be in place for approximately 90-180 days or until such time that the book of business could be transferred to another agent. This statement was made to his local officers, but not to Beiersdoerfer. Beiersdoerfer relied upon these representations and opened an office. In addition, the Court recalls the testimony of Beiersdoerfer and observed his apparent distress as to the effect the conduct of HRH had on both him and his family. Based upon the evidence in this case the Court would find that there was sufficient evidence to sustain the verdict by the jury and that the jury did not abuse its discretion. "However, since the Court has found that it lacks jurisdiction to consider [HRH's] Motion for Remittitur the pending motion by [HRH] is OVERRULED." The HRH corporations appealed from the order denying their postjudgment motion for a remittitur. II. Analysis The HRH corporations contend that the trial court erred in concluding that it did not have jurisdiction to rule on their motion for a remittitur. They also contend that they did not waive any argument as to a remittitur even though they did not raise any such argument in that regard in their earlier cross-appeal. A. Whether the Trial Court Had Jurisdiction to Consider the Motion for a Remittitur 1060522 18 The trial court agreed with Beiersdoerfer's argument that the postjudgment motion for a remittitur filed by the HRH corporations after the trial concluded in 2002 was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., after it had remained pending for 90 days, and, therefore, that the trial court no longer had jurisdiction to rule on the motion on remand. The HRH corporations argue that once the trial court granted their motion for a new trial, their motion for a remittitur became moot and, therefore, could not have been a pending motion denied by operation of law after 90 days. They also argue that the Alabama Rules of Civil Procedure did not give them a right to have the trial court rule on their motion for a remittitur after it granted their motion for a new trial and that, because the trial court granted their motion for a new trial, they were not obligated to raise in their cross- appeal their arguments regarding remittitur, i.e., that the mental-anguish-damages award was excessive and that they were entitled to a setoff for a percentage of certain sales commissions paid to Beiersdoerfer. Beiersdoerfer argues that the trial court had no authority to rule on the HRH 1060522 19 corporations' motion for a remittitur on remand because, he argues, all postjudgment motions not ruled on by the trial court were denied by operation of law after 90 days; he further argues that the HRH corporations waived any argument as to a remittitur because they had a right to, but did not, raise any such argument in that regard in their cross-appeal. Rule 59.1 states: "No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period." The trial court entered its order granting the HRH corporations' motion for a new trial on the 87th day after they filed their postjudgment motions in 2002. The effect of that order was to vacate the judgment entered on the jury verdict awarding damages to Beiersdoerfer. At that point, having attained the new trial sought in the postjudgment motion, all other relief requested in the alternative by the 1060522 [substituted p. 20] HRH corporations became moot, including their motion for a remittitur. Because the order granting the motion for a new trial rendered the motion for a remittitur moot, it therefore was no longer pending and was not subject to Rule 59.1. See Security Mut. Fin. Corp. v. Harris, 288 Ala. 369, 373, 261 So. 2d 43, 47 (1972) ("Since a new trial must be had, the question of the excessiveness of damages awarded in this case is now moot."). See also Alfa Mut. Fire Ins. Co. v. Payton, 742 So. 2d 1228, 1234 (Ala. Civ. App. 1997), rev'd on other grounds, 742 So. 2d 1237 (Ala. 1999) ("The trial court's grant of a new trial made the issue of remittitur moot."). When we reversed that aspect of the trial court's judgment granting the HRH corporations' motion for a new trial in Beiersdoerfer I and remanded the case to the trial court for further proceedings, our mandate contemplated the reinstatement of the judgment entered on the jury verdict. At that point, the case stood exactly as it did after the trial concluded in 2002, when the trial court initially entered a judgment on the jury verdict. The trial court entered a new judgment on the jury verdict on November 17, 2006. Any postjudgment motions that had been filed after the entry of 1060522 Beiersdoerfer also argues that because the trial court 1 did not have jurisdiction to rule on the HRH corporations' remittitur motion, the order denying that motion was not an appealable order. Because we hold that the trial court had jurisdiction to rule on the remittitur motion, the trial court's order was appealable. [substituted p. 21] the first judgment in 2002, as well as any additional postjudgment motions that were timely filed after the entry of the judgment on November 17, 2006, were then ripe for consideration by the trial court. In other words, the HRH corporations' motion for a remittitur filed in 2002 that had been mooted by the order granting their motion for a new trial became ripe for consideration by the trial court after the entry of the 2006 judgment, as did the motion for a remittitur filed by the HRH corporations on November 27, 2006. The trial court erred in concluding that it did not have jurisdiction to consider the motion for a remittitur. It therefore erred as 1 a matter of law in denying the HRH corporations' motion for a remittitur on that basis. B. Whether the Cross-Appeal in Beiersdoerfer I Should Have Addressed the Motion for a Remittitur When the trial court entered the order granting the HRH corporations' motion for a new trial in 2002, it implicitly 1060522 Although this Court's opinion in Beiersdoerfer I stated 2 that the trial court denied the HRH corporations' postjudgment motion for a JML, upon further review of the orders of the trial court entered in 2002, we do not find any order explicitly denying a motion for a JML after the jury returned its verdict. Nevertheless, we conclude that the trial court implicitly denied the postverdict motion for a JML when it granted the HRH corporations' motion for a new trial. The order granting a new trial is inconsistent with the view that the motion for a JML was meritorious. A different effect resulted concerning the motion for a remittitur, which was rendered moot by implication when the order granting a new trial was entered. 22 denied their postjudgment motion for a JML. When the verdict 2 winner, Beiersdoerfer, appealed, the verdict losers, the HRH corporations, clearly were obligated to challenge in a cross- appeal the trial court's order rejecting their postjudgment motion for a JML, and they did so. Beiersdoerfer insists that the HRH corporations also should have raised in their cross- appeal their arguments as to the merits of a remittitur and that, because they did not, they have waived their right to raise those arguments now. The HRH corporations argue that they did not have a right to a ruling in 2002 on their motion for a remittitur and that they were under no obligation to present their arguments in support of a remittitur in their cross-appeal in Beiersdoerfer I. 1060522 23 Rule 50(c)(1), Ala. R. Civ. P., requires a trial court to rule on a party's motion for a new trial if the court grants the party's postjudgment motion for a JML: "If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial." Thus, if the trial court grants the motion for a postjudgment JML, then the moving party has a right to a ruling from the trial court on its alternative motion for a new trial. Ex parte Handley, 494 So. 2d 24, 24-25 (Ala. 1986). The moving party must raise on appeal the issue of the trial court's failure to rule on the motion for a new trial under such circumstances, or that issue is waived. The converse is not true when the trial court denies a party's motion for a postjudgment JML. In that instance, the party has no right conferred upon it to require a ruling from the trial court on alternative grounds asserted for postjudgment relief pursuant to Rule 59, Ala. R. Civ. P. Rule 50(d), Ala. R. Civ. P., states only that "[i]f the motion for a judgment as a matter of law is denied, the party who prevailed on the motion may, 1060522 24 as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment." Here, the trial court denied the HRH corporations' motion for a postjudgment JML but granted their motion for a new trial. The trial court did not rule on their motion for a remittitur; indeed, there was no need for such a ruling because the trial court had already granted the HRH corporations the greater relief of a new trial. Beiersdoerfer appealed from that aspect of the order granting the new trial; the HRH corporations cross-appealed from that aspect of the order denying their motion for a JML, a judgment that, if granted, would have ended the case. We do not fault the HRH corporations for not arguing in their cross-appeal that they were entitled to a remittitur in a setting where they had already been granted a new trial. Although we find no authority from this Court concerning the precise issue presented here--whether a party who does not argue on appeal all grounds presented in support of a Rule 59, Ala. R. Civ. P., postjudgment motion that was granted on one ground waives those alternative grounds if they are not 1060522 Federal cases construing the Federal Rules of Civil 3 Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after the Federal Rules of Civil Procedure. Borders v. City of Huntsville, 875 So. 2d 1168, 1176 n.2 (Ala. 2003). 25 asserted on appeal--we find support in federal decisions for our conclusion that the alternative grounds are not waived.3 In Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1060-62 (5th Cir. 1981), the United States Court of Appeals for the Fifth Circuit held that a party that obtained a ruling in the trial court on one ground asserted in a postjudgment motion pursuant to Rule 59, Fed. R. Civ. P., and the only ground argued on appeal, had not waived its right to have the trial court address the alternative ground asserted in its postjudgment motion when the case was remanded. "Upon receipt of the mandate from the appeal court, a judgment was entered for the defendant upon the verdict for the jury in the second trial. The plaintiffs then reurged the second ground of their motion for a new trial as to the jury verdict of January, 1977. ... ".... "The 'law of the case' doctrine, a restriction self-imposed by the courts on themselves in the interests of judicial efficiency, generally operates to preclude a reexamination of issues decided on appeal, either by the district court on remand or by the appellate court itself upon a subsequent appeal. 'As a general rule if the issues were decided, 1060522 26 either expressly or by necessary implication, those determinations of law will be binding on remand and on a subsequent appeal.' ... "On the other hand, unlike common law res judicata, the law of the case established by a prior appeal does not extend to preclude consideration of issues not presented or decided on the prior appeal. The law of the case doctrine 'does not include all questions which were present in a case and which might have been decided but were not.' ... ".... "The Plaintiffs have not had their day in court as to this second ground, upon which the present order for a new trial is based. The law of the case doctrine did not operate to prevent the district court from considering it, a meritorious issue never previously passed upon by it and never submitted to or decided by the appellate court on the previous appeal." 644 F.2d at 1061-62 (citations and footnotes omitted). Conway did not involve a ruling on a postjudgment motion for a JML pursuant to Rule 50, but because it involved alternative rulings on a motion pursuant to Rule 59, we consider it applicable to the facts presented by this case. In Arenson v. Southern University Law Center, 43 F.3d 194 (5th Cir. 1995), the Fifth Circuit distinguished Conway and held that a party whose motion for a JML is granted must raise its alternative Rule 59 motion for a new trial both in the trial court and on appeal. 1060522 27 "Conway is distinguishable. In Conway, the court specifically noted that the district court failed to rule on the alternative ground '[t]hrough no fault of the [movants].' 644 F.2d at 1062. Rule 50(c)(1) commands, as noted, that a new trial motion shall be ruled upon at the same time as the [renewed] motion for [a judgment as a matter of law]. The Rule had been complied with in Conway, even though the court did not reach all grounds asserted by the party who sought a new trial. Here, by contrast, the Rule, whose purpose is to benefit the party attacking a verdict, was not complied with. Further, in Conway, the question addressed by this court was whether the plaintiffs, having won their new trial, waived the alternative ground for seeking new trial by failing to cross-appeal. This is a question of federal appellate practice, resolved by the general rule that a party need not raise in this court on cross-appeal alternative grounds to support a favorable judgment. But in this case, the principal error was committed in the trial court by its failure to comply with the clear command of Rule 50(c)(1), and by the defendants' omitting to so inform the court. Consequently, the question here is which party bears the burden of assuring compliance with the rule in the trial court. We hold ... that it is the party whose motion invoked Rule 50(c) in the trial court." 43 F.3d at 197. We conclude that the HRH corporations were not obliged to raise in their cross-appeal in Beiersdoerfer I the issues in their alternative motion for a remittitur that were mooted by the trial court's order granting their motion for a new trial. III. Conclusion 1060522 28 The trial court had jurisdiction to consider the HRH corporations' motion for a remittitur upon our remand of the case in Beiersdoerfer I. The motion for a remittitur was not denied in 2002 by operation of law pursuant to Rule 59.1, and the HRH corporations did not waive their right to argue the issues addressed in the motion for a remittitur even though they did not raise those issues in their cross-appeal in Beiersdoerfer I. We therefore reverse the order denying the motion for a remittitur and remand the case to the trial court for it to consider both grounds asserted in the motion for a remittitur: whether the damages awarded for mental anguish were excessive, and whether the HRH corporations are due a setoff for a percentage of the commissions earned by Beiersdoerfer pursuant to the contract the jury found to be in existence and enforceable. The HRH corporations urge us to address the issues relative to remittitur ourselves, rather than to remand the case to the trial court for its consideration. Beiersdoerfer maintains that if we conclude that the trial court had jurisdiction to rule on the remittitur motion, then the trial court should have the opportunity to rule on the merits of the 1060522 29 issues before they are considered by an appellate court. The HRH corporations rely on Gray Brown-Service Mortuary, Inc. v. Lloyd, 729 So. 2d 280, 287 (Ala. 1999), in which Justice See, concurring in the result, stated: "[A]lthough I would generally remand a case to have the trial court remedy a failure to specifically allocate a general verdict into compensatory- and punitive-damages awards, the trial court's specific conclusions in reviewing the question of excessiveness of the award, and the egregious facts of this particular case, obviate the necessity for remand." The facts in Gray Brown-Service Mortuary, in which a funeral home flagrantly mishandled a burial and subsequent interment, were such that Justice See concluded that they supported a compensatory-damages award equal to the amount of the jury verdict, regardless of whether the jury had awarded any punitive damages. The facts in this case are not so apparent as to justify our addressing the remittitur issues before the trial court has had an opportunity to do so. In fact- intensive issues such as those presented in this proceeding, the trial court is best suited to make an initial detailed examination, which it has not yet done. 1060522 30 REVERSED AND REMANDED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, and Parker, JJ., concur.	February 22, 2008
2ff69499-c3c1-4f2c-8161-d8897c5e560b	Ex parte Earl R. Cleghorn. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Tina M. Bledsoe v. Earl R. Cleghorn)	N/A	1061014	Alabama	Alabama Supreme Court	REL: 2/8/08 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, 2007-2008 _________________________ 1061014 _________________________ Ex parte Earl R. Cleghorn PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Tina M. Bledsoe v. Earl R. Cleghorn) (Covington Circuit Court, DR-00-277.02; Court of Civil Appeals, 2050153) SEE, Justice. Earl R. Cleghorn petitioned this Court for the writ of certiorari after the Court of Civil Appeals reversed the 1061014 2 decision of the trial court, which had modified a previous custody order and awarded Cleghorn custody of Cleghorn and Tina M. Bledsoe's minor daughter. We granted certiorari review to determine whether the Court of Civil Appeals' decision conflicts with our decision in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), and to decide whether we should overrule portions of our decisions in Ex parte Martin, 961 So. 2d 83 (Ala. 2006), and Ex parte Peppers, 703 So. 2d 299 (Ala. 1997), because those cases ostensibly impose an additional requirement on the McLendon standard for the modification of a custody order. We reverse and remand. Facts and Procedural History Bledsoe and Cleghorn were divorced on October 11, 2001. The divorce judgment awarded Bledsoe custody of Bledsoe and Cleghorn's minor daughter, who was adopted; the judgment allowed Cleghorn scheduled visitation with the child. Bledsoe married her current husband, Steven Bledsoe ("the stepfather"), approximately three months after Bledsoe and Cleghorn were divorced. Shortly after Bledsoe married the stepfather, problems arose when Cleghorn would pick up the child for scheduled visitations. Cleghorn alleges that 1061014 3 Bledsoe and the stepfather would force Cleghorn, who is paraplegic, to get out of his truck and go to Bledsoe's vehicle to get the child. These problems led the trial court to order, among other things, that the visitation exchanges take place in the parking lot of the Evergreen Police Department, that Bledsoe shall take the child to and from Cleghorn's vehicle, and that the parties not harass one another. In spite of the court order, problems persisted, and the parties returned to court. Cleghorn testified that Bledsoe and the stepfather were trying to cut him off from his daughter or to force him out of his daughter's life. He alleges that Bledsoe and the stepfather tried to intimidate him and that the stepfather threatened him. Cleghorn also alleges that Bledsoe and the stepfather would try to demean him in front of the child and would spank the child for talking to him on the telephone. He testified that the stepfather hit him when he was waiting for the child in his truck during one of the visitation exchanges. Cleghorn also alleges that Bledsoe did not keep the child clean and that she refused to give Cleghorn information concerning the child's 1061014 4 grades in school and activities or ceremonies in which the child was involved. Also, according to Cleghorn, Bledsoe and the stepfather told the child to call Cleghorn by his first name and to call the stepfather "Daddy." Bledsoe disputes most of Cleghorn's allegations. She admits that she violated a court order by telling the child, when Cleghorn was not present, that she was adopted. She also admits that at the child's kindergarten graduation, when the child had a poem and a rose to give to each of her parents, Bledsoe took both and would not let the child give a poem and a rose to Cleghorn until after the ceremony when Cleghorn had returned to his truck. Bledsoe also admits that she did not let Cleghorn kiss the child on the mouth, but she insists that this was for health reasons and that no one kisses the child on the mouth in her presence. Cleghorn argues that there was evidence before the trial court indicating that Cleghorn's schedule was better for taking care of the child. Bledsoe's work schedule requires that the child be dropped off at school 45 minutes before school starts and then taken to the stepfather's restaurant for a few hours each day after school. Cleghorn's schedule 1061014 5 would allow him to drop the child off closer to the time school actually starts and to pick her up at the end of her school day. Cleghorn also argues that when the child is with him, she is taught to respect her mother and stepfather but that when she is with Bledsoe and the stepfather, the child is not encouraged to respect Cleghorn. In fact, Cleghorn argues, there was ample evidence from which the trial court could determine that Bledsoe and the stepfather actively set out to harm Cleghorn's relationship with the child, thereby subjecting her to emotional abuse and acting in a manner that is dangerous and harmful to the child's well-being. The trial court entered a judgment awarding custody to Cleghorn. Bledsoe appealed, and the Court of Civil Appeals reversed the trial court's judgment, stating that the evidence before the trial court "did not reveal a material change affecting the welfare of the child, focus on how a change in custody would materially benefit the child, or demonstrate an overwhelming and obvious need for a change in custody." Bledsoe v. Cleghorn, [Ms. 2050153, March 30, 2007] ___ So. 2d ___, ___ (Ala. Civ. App. 2007). Cleghorn then petitioned this Court for certiorari review, and we granted the petition to 1061014 6 determine whether the Court of Civil Appeals' decision conflicts with our decision in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984), and whether we should overrule the portions of our decisions in Ex parte Martin, 961 So. 2d 83 (Ala. 2006), and Ex parte Peppers, 703 So. 2d 299 (Ala. 1997), that appear to imply that the party seeking modification of a custody order must demonstrate an obvious and overwhelming need for the change, which appears to be an additional element to the standard established in Ex parte McLendon for the modification of a custody award. Standard of Review "When this Court reviews a trial court's child- custody determination that was based upon evidence presented ore tenus, we presume that the trial court's decision is correct: '"A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...."'" Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001) (quoting Ex parte Perkins, 646 So. 2d 46, 47 (Ala. 1994), quoting in turn Phillips v. Phillips, 622 So. 2d 410, 412 (Ala. Civ. App. 1993)). "This Court reviews questions of law de novo." Alabama State Bar v. Caffey, 938 So. 2d 942, 945 (Ala. 2006) 1061014 Rule 28(a)(3), Ala. R. App. P., provides that a 1 petitioner's brief shall contain "[a] statement of jurisdiction including (i) the basis for the jurisdiction of the court to which the appeal is taken (with citations to the applicable statutory provisions and stating relevant facts establishing jurisdiction), and (ii) the filing dates establishing the timeliness of the appeal." Rule 28(a)(8), Ala. R. App. P., provides that a 2 petitioner's brief shall contain "[a] concise statement of the standard of review applicable to each issue." 7 (quoting Tipler v. Alabama State Bar, 866 So. 2d 1126, 1137 (Ala. 2003)). Analysis I We first address whether we should dismiss Cleghorn's petition for the writ of certiorari for failure to comply with Rule 28(a)(3) and (a)(8), Ala. R. App. P., because his brief 1 2 does not include the statement of jurisdiction or a standard of review. Turning first to Bledsoe's argument that Cleghorn fails to supply a statement of jurisdiction, we conclude that this argument is without merit because Rule 28(a)(3), Ala. R. App. P., has eliminated the obligation to include a statement of jurisdiction in briefs "in cases on certiorari review." Cleghorn's brief, however, does not contain a standard of review. Cleghorn admits in his reply brief "that the 1061014 8 conclusory statement of the standard of review was inadvertently omitted" from his brief. Cleghorn's reply brief at 10. Nevertheless, Cleghorn contends that the omission from his brief of the standard of review is not a "fatal deficiency" because, he says, the applicable standard of review was incorporated in the argument section of his brief and Bledsoe therefore was not prejudiced by the omission of the standard of review at the beginning of his brief. Our review of Cleghorn's brief reveals that he is partially correct that the standard of review is incorporated into the argument section of his brief. The argument section states the correct standard of review when evidence is presented ore tenus in a child-custody dispute; however, he makes no mention of the standard of review this Court should apply when the question presented is a pure question of law. Cleghorn's brief, thus, does not comply with Rule 28(a)(8), Ala. R. App. P., and we must decide whether this noncompliance alone warrants the dismissal of his petition. When we have dismissed an action for noncompliance with Rule 28, Ala. R. App. P., we have done so because of the party's failure to support his argument with citations to 1061014 9 caselaw, statutes, or the relevant portions of the record. See Ex parte Borden, [Ms. 1050042, August 17, 2007] ___ So. 2d ___, ___ (Ala. 2007) (a party fails to comply with Rule 28(a), Ala. R. App. P., when "there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions"); Jacobs v. Jacobs, 583 So. 2d 1337, 1338 (Ala. 1991) ("Appellants who fail to comply with A[la]. R. App. P. 28(a) place themselves in a perilous position. While we attempt to avoid dismissing appeals ... on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant's claim when the appellant fails to articulate that claim and presents no authorities in support of that claim."); and Shows v. Freedlander, Inc., 523 So. 2d 376, 376 (Ala. 1988) (granting motion to dismiss because the appellant "substantially failed to comply with Rule 28(a), Ala. R. App. P."). In certain circumstances, Alabama courts have analyzed the merits of a claim despite a party's noncompliance with Rule 28(a), Ala. R. App. P. Kirksey v. Roberts, 613 So. 2d 352, 353 (Ala. 1993) (when "we are able to adequately discern 1061014 10 the issue [the appellant] presents, in spite of his failure to present authorities in support of his claim, we will not affirm merely because of a technicality"); Cloud v. Cloud, 833 So. 2d 649, 650 (Ala. Civ. App. 2002) (concluding that dismissal was not warranted when the party did not "substantially fail[] to comply with the requirements of Rule 28, [Ala. R. App. P.]"). With the exception of Cleghorn's omission of a standard of review, his brief complies with the requirements of Rule 28(a), Ala. R. App. P. The issues on appeal are clearly discernible, the argument section of Cleghorn's brief contains numerous citations to legal authority to support his arguments, and his brief cites the portions of the record he relies upon. Therefore, we will exercise our discretion and consider his petition. Dubose v. Dubose, 964 So. 2d 42, 46 n.5 (Ala. Civ. App. 2007) ("[T]his court may choose to affirm a case on the basis of Rule 28[, Ala. R. App. P.,] when an appellant's brief fails to comply with the rule, but this court is by no means required to do so." (emphasis omitted) (citing Kirksey, 613 So. 2d at 353)). II We next address the substantive issue -- whether the 1061014 Ex parte Snider, 929 So. 2d 447, 450 (Ala. 2005) (the 3 party seeking a change in custody "must show that the change of custody will materially promote the child's welfare"); Ex parte J.M.F., 730 So. 2d 1190, 1194 (Ala. 1998) ("It is, of course, well established that a noncustodial parent seeking a change of custody must show not only that he or she is fit to have custody, but that the change would materially promote the child's best interests. This requires a showing that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child." (citations omitted)); Ex parte Johnson, 673 So. 2d 410, 413 (Ala. 1994) ("[A]n existing custody 11 decision of the Court of Civil Appeals, which reversed the trial court's judgment awarding Cleghorn custody of the child, conflicts with Ex parte McLendon. In Ex parte McLendon, we held that the trial court cannot order a change of custody "'unless [the parent] can show that a change of the custody will materially promote [the] child's welfare.'" 455 So. 2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 308 So. 2d 444, 445 (1947)). We noted in Ex parte McLendon that "[i]t is important that [the parent] show that the child's interests are promoted by the change, i.e., that [the parent seeking the change in custody] produce evidence to overcome the 'inherently disruptive effect caused by uprooting the child.'" 455 So. 2d at 866. Since Ex parte McLendon, we have repeatedly affirmed that standard as the one that should govern in deciding whether a change in custody is warranted.3 1061014 arrangement will be modified only if the modification materially promotes the best interests and welfare of the child."); and Ex parte P.G.B., 600 So. 2d 259, 261 (Ala. 1992) ("The father bore the burden of proving that the change of custody 'materially promoted the welfare and best interest of [the child]' in a manner sufficient to more than offset the effects caused by removing [the child] from his mother."). 12 Cleghorn argues that the Court of Civil Appeals' decision here conflicts with Ex parte McLendon because, he says, the Court of Civil Appeals did not adhere to the McLendon standard in reaching its decision; instead, he says, it applied a different standard, one that required him to demonstrate an "overwhelming necessity" for the change in custody. Cleghorn argues that the overwhelming-necessity requirement is inconsistent with the McLendon standard because "[t]o require that a parent seeking a change in custody after a prior custody award provide proof of an overwhelming necessity for the change is too great a burden, one almost impossible to meet." Cleghorn's brief at 21. Bledsoe contends that the Court of Civil Appeals' decision does not conflict with Ex parte McLendon because "the court of civil appeals expressly stated that, applying the Ex parte McLendon standard only, the trial court's change in custody did not comply with that standard." Bledsoe's brief at 1061014 13 15. Bledsoe maintains that the Court of Civil Appeals applied the McLendon and the overwhelming-necessity standards separately and concluded that Cleghorn did not satisfy the overwhelming-necessity standard only after it had already determined that he had failed to demonstrate that the change in custody materially promoted the child's welfare and thus had not satisfied the McLendon standard. After reviewing the Court of Civil Appeals' decision, we agree with Cleghorn that the Court of Civil Appeals deviated from the strict McLendon standard. The Court of Civil Appeals' opinion states that "the McLendon burden [is] a heavy burden" and "'that the evidence in support of a modification of custody "must be so substantial as to disclose an obvious and overwhelming necessity for a change."'" Bledsoe, ___ So. 2d at ___ (quoting Ex parte Martin, 961 So. 2d at 87). This statement combines the McLendon standard and the overwhelming- necessity standard. In fact, the Court of Civil Appeals explicitly stated that the overwhelming-necessity standard is one that a party seeking a custody modification must satisfy "[i]n addition" to the McLendon standard. ___ So. 2d at ___ ("In addition [to the McLendon standard], a noncustodial 1061014 The Court of Civil Appeals stated that the evidence 4 provided by Cleghorn "did not reveal a material change affecting the welfare of the child, focus on how a change in custody would materially benefit the child, or demonstrate an overwhelming and obvious need for a change in custody." ___ So. 2d at ___. In light, however, of the conflating of the McLendon standard and the overwhelming-necessity standard, it is far from clear that the Court of Civil Appeals meant by this statement that, notwithstanding the fact that it was combining the standards, the Court of Civil Appeals had, in fact, applied them separately. 14 parent must prove an obvious and overwhelming necessity for the change of custody."). By requiring Cleghorn to prove an overwhelming necessity for a modification of custody, the Court of Civil Appeals imposed a burden beyond the standard established by Ex parte McLendon.4 The Court of Civil Appeals relied on our recent decision in Ex parte Martin, supra. In Ex parte Martin, we referred to the overwhelming-necessity standard, stating: "Subsequent cases have made the burden of the noncustodial parent even heavier. Rich v. Rich, 887 So. 2d 289 (Ala.Civ.App. 2004), applied the McLendon burden to temporary changes of custody as well as permanent changes. Sexton v. Lambert, 611 So. 2d 385 (Ala.Civ.App. 1992), noted that the McLendon burden is 'a very heavy burden.' 611 So. 2d at 387. Klapal v. Brannon, 610 So. 2d 1167 (Ala.Civ.App. 1992), also described the McLendon burden as a 'heavy burden' and added that the evidence in support of a modification of custody 'must be so substantial as to disclose an obvious and overwhelming necessity for a change.'" 1061014 15 961 So. 2d at 88. We also referred to the overwhelming- necessity standard in Ex parte Peppers, 703 So. 2d 299 (Ala. 1997): "The courts of Alabama have emphasized that a change of custody from one parent to another is not a decision to be made lightly; on the contrary, it may be made only where the evidence discloses an obvious and overwhelming necessity for change. Glover v. Singleton, 598 So. 2d 995 (Ala.Civ.App. 1992)." 703 So. 2d at 302 (emphasis omitted). Cleghorn invites this Court to overrule those portions of Ex parte Martin and Ex parte Peppers that can be read to imply that a party seeking a change in custody must show, in addition to showing that a change in custody comports with the McLendon standard, an overwhelming necessity for the change. Our decision in Ex parte McLendon provides that a party seeking a change in custody must show that the change "will materially promote [the] child's welfare." 455 So. 2d at 865. The McLendon standard is a "rule of repose," meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So. 2d at 865. It is founded on the longstanding principle that "[i]t is the 1061014 The McLendon standard 5 "'is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.'" Ex parte McLendon, 455 So. 2d at 865-66 (quoting Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ. App. 1976)). 16 court's duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child." Ex parte Fann, 810 So. 2d 631, 638 (Ala. 2001). See also McCartney v. McCartney, [Ms. 2041048, July 27, 2007] ___ So. 2d ___, ___ (Ala. Civ. App. 2007) ("'The controlling consideration in child-custody matters is always the best interests of the child.'" (quoting Patrick v. Williams, 952 So. 2d 1131, 1140 (Ala. Civ. App. 2006))). The burden imposed by the McLendon standard is typically a heavy one, recognizing the importance of stability, but the overwhelming-necessity 5 1061014 In his special writing in Smith v. Smith, 865 So. 2d 6 1207, 1211 (Ala. Civ. App. 2003) (Murdock, J., concurring specially), Justice Murdock, then serving as a judge on the Court of Civil Appeals, discussed how the overwhelming- necessity standard began in the Court of Civil Appeals "merely as the appellate-review standard that must be met to overcome the 'ore tenus presumption' in favor of a trial court's judgment where the evidence is presented orally." Justice Murdock further explained that in Braswell v. Braswell, 460 So. 2d 1339 (Ala. Civ. App. 1984), the Court of Civil Appeals "for the first time incorrectly treated the overwhelming- necessity standard as a substantive legal standard, incorrectly characterized it as synonymous with the Ex parte McLendon standard, and laid the foundation for its misuse in future cases as an extra-Ex parte McLendon gloss on the Ex parte McLendon standard." Smith, 865 So. 2d at 1213 n.1. 17 requirement places a nearly insurmountable burden on the party seeking a modification of custody, and in doing so, elevates stability above the best interests of the child. 6 We reaffirm the McLendon standard as the standard to be applied when a party seeks a modification of custody, and we hold that the decision of the Court of Civil Appeals here conflicts with Ex parte McLendon. Moreover, insofar as they suggest that a party seeking a modification of a custody order must prove an overwhelming necessity for the change in custody, we hereby overrule Ex parte Martin and Ex parte Peppers. Conclusion We reverse the judgment of the Court of Civil Appeals and 1061014 18 remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 8, 2008
ce10b2d1-2b05-4dfc-be6a-df8419cbfbf5	First Properties, L.L.C. v. JPMorgan Chase Bank, National Association	N/A	1060902	Alabama	Alabama Supreme Court	REL: 01/11/2008 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, 2007-2008 ____________________ 1060902 ____________________ First Properties, L.L.C. v. JPMorgan Chase Bank, National Association Appeal from Jefferson Circuit Court (CV-05-3284) SMITH, Justice. First Properties, L.L.C., appeals from a final judgment entered against it in an action filed by JPMorgan Chase Bank, National Association. We affirm. 1060902 2 Factual and Procedural Background On October 19, 1998, the Jefferson County fire district of Forestdale conducted a foreclosure sale on property located at 933 Heflin Avenue East in Birmingham. At the time of the sale, Ruthia Cullen Dumas held duly recorded title to the property. Apparently, the dues assessed by the fire district for fire-protection services were delinquent, and to satisfy the delinquency the fire district sold the property in accordance with the procedure outlined under "The Municipal Public Improvement Act," § 11-48-1 et seq., Ala. Code 1975. See generally Special Assets, L.L.C. v. Chase Home Fin., L.L.C., [Ms. 1060083, Dec. 21, 2007] ___ So. 2d ___, ___ (Ala. 2007) (discussing the local amendment authorizing the creation of fire districts in Jefferson County and the assessment of dues for fire-protection services by those fire districts); see also § 12 of Act No. 79, Ala. Acts 1966 (Special Session), as amended by Act No. 500, Ala. Acts 1978, which states that a service charge levied for fire districts in Jefferson County is "a personal obligation of the owner of the property served by the system," and creates a "lien against said property in favor of the district, which lien shall be enforceable by sale 1060902 3 thereof in the same manner in which the foreclosure of a municipal assessment for public improvements is authorized." With a bid of $603.45, the fire district was the highest bidder at the sale. The business manager of the fire district executed a deed purporting to convey the property from the fire district, as grantor, to the fire district, as grantee. The fire district then recorded the deed in the Jefferson County Probate Office on October 28, 1998. The deed was not listed in the grantor/grantee index, did not refer to Dumas as the owner of record, and contained what the trial court determined was an inadequate description of the property. On November 9, 1999, Dumas secured a loan of $67,550 by executing a mortgage on the property in favor of First Franklin Financial Corporation. First Franklin recorded that mortgage in the Jefferson County Probate Office on January 13, 2000. On July 31, 2004, First Franklin assigned the mortgage to JPMorgan, and that mortgage was recorded on June 14, 2005. On December 18, 2004, the fire district executed a quitclaim deed to the property to First Properties, in consideration of $2,851.25. The quitclaim deed listed Dumas as the owner of record before the foreclosure sale held on 1060902 4 October 19, 1998. On December 23, 2004, First Properties recorded the quitclaim deed in the Jefferson County Probate Office. On June 8, 2005, JPMorgan filed an action seeking a judgment declaring that it was a bona fide holder for value of the property without notice of the foreclosure sale by the fire district. JPMorgan claimed that it was entitled to status as a bona fide holder for value because, it alleged, the foreclosure deed to the fire district and the quitclaim deed from the fire district to First Properties were outside the chain of title and therefore did not serve as constructive notice to JPMorgan of the claimed interests of the fire district and First Properties. JPMorgan later amended its complaint to, among other things, request that the court enter an order quieting title in favor of JPMorgan. JPMorgan and First Properties each filed motions for a summary judgment. On March 29, 2006, the trial court entered an order granting the summary-judgment motion of First Properties and denying the summary-judgment motion of JPMorgan. However, JPMorgan filed a motion under Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment. The 1060902 5 trial court granted that motion on June 8, 2006, and set aside its order of March 29, 2006. The court found that there were genuine issues of fact that prevented a summary judgment in favor of First Properties, and it set the matter for a trial on the merits. Before the date set for a trial, JPMorgan and First Properties filed a "joint stipulation" waiving their right to a trial on the merits and submitting the case for a final decision based on the evidentiary submissions accompanying the parties' summary-judgment materials. The parties also stipulated to the following additional facts: (1) First Franklin's mortgage of the property was recorded in the Jefferson County Probate Office; (2) JPMorgan held the mortgage to the property by virtue of First Franklin's assignment of that mortgage to JPMorgan; and (3) at the time of the fire-dues foreclosure sale, the fire district did not send a warning to redeem to First Franklin or JPMorgan. On November 29, 2006, the trial court entered a final order that included the following holdings: "1. JPMorgan is a bona fide encumbrancer of the property, for value, without notice of the foreclosure deed under which First Properties 1060902 6 claims. As a result, the foreclosure sale and deed are ineffective as against JPMorgan. "2. Alternatively, JPMorgan was entitled to actual notice of the fire dues foreclosure sale and expiration of the redemption period. JPMorgan, having received no such notice, was consequently deprived of its rights in the subject property without notice in violation of due process of law. Accordingly, the foreclosure deed is ineffective as against JPMorgan. "3. Alternatively, the legal description contained in the foreclosure sale notice and deed were defective, thus rendering the foreclosure sale and foreclosure deed invalid. "4. Alternatively, JPMorgan is entitled to redeem the property within three months from the date this order becomes final and, alternatively, for so long as its mortgagor, Mrs. Dumas, holds possession of the property." The trial court later denied a subsequent Rule 59(e) motion filed by First Properties, and First Properties filed a timely notice of appeal. Discussion First Properties argues that the trial court erred in finding that JPMorgan is a "bona fide encumbrancer" for value. "'A bona fide purchaser is one who (1) purchases legal title, (2) in good faith, (3) for adequate consideration, (4) without notice of any claim of interest in the property by any other party. First National Bank of Birmingham v. Culberson, 342 So. 2d 347, 350 (Ala. 1977). Notice sufficient to preclude a bona fide purchase may be actual or constructive 1060902 More specifically, First Properties contends that 1 JPMorgan was "put on constructive notice of anything of record in the probate court no matter how difficult to find those documents may be." (First Properties' brief, p. 29.) 7 or may consist of knowledge of facts which would cause a reasonable person to make an inquiry which would reveal the interest of a third party. Hill v. Taylor, 285 Ala. 612, 614, 235 So. 2d 647, 649 (1970).'" Wallace v. Frontier Bank, N.A., 903 So. 2d 792, 797 (Ala. 2004) (quoting Rolling "R" Constr., Inc. v. Dodd, 477 So. 2d 330, 331-32 (Ala. 1985)). First Properties does not dispute that JPMorgan meets the first three requirements, i.e., that JPMorgan purchased legal title in good faith for adequate consideration. First Properties contends, however, that JPMorgan did not purchase the property without notice of the fire district's and First Properties' claims to the property. As noted, the fire district recorded the foreclosure-sale deed on October 28, 1998, before Dumas executed a mortgage on the property in favor of First Franklin. First Properties argues that First Franklin, which subsequently assigned the mortgage to JPMorgan, "was on constructive notice of all documents of record in the probate court," and, therefore, that JPMorgan had constructive notice of the foreclosure-sale deed. (First Properties' brief, p. 16.) We disagree. 1 1060902 JPMorgan, in addition to citing legal authority that contradicts First Properties' argument in that regard, explains the impracticality of First Properties' position: "First Properties argues that all documents recorded in a probate court impart constructive notice to any buyer. Under that logic, a buyer would be required to inspect all recorded documents in searching title to property. The average number of documents recorded daily in Jefferson County is posted at the Probate Court each day, and is thus open to judicial notice. Considering both divisions, Birmingham and Bessemer, the daily number is just under 1,000, amounting to approximately 260,000 per year. A 20-year search, therefore, would require review of 5,200,000 documents. The implications of First Properties' argument do not end there. It must be considered that such a search would include a duty to look [not only] for any instrument out of the record owner, but also for any document of any nature containing the legal description of the property. Recognizing that the legal description at issue in this case does not close, First Properties would subject a title searcher to the duty of inspecting 5,200,000 documents and tracing millions of miles of calls in legal descriptions, handicapped by the even more severe burden of being subject to notice imparted by incomplete legal descriptions." (JPMorgan's brief, pp. 14-15.) 8 Although the fire district recorded the foreclosure-sale deed in the Jefferson County Probate Office on October 28, 1998, that deed does not list the record owner (Dumas). Thus, when the foreclosure-sale deed was indexed in the probate records the fire district was listed as both the grantor and 1060902 See Robin Paul Malloy & Mark Klapow, Attorney Malpractice 2 for Failure to Require Fee Owner's Title Insurance in a Residential Real Estate Transaction, 74 St. John's L. Rev. 407, 432 (2000): "A major pitfall in most recording systems involves the so-called wild deed. A wild deed is an instrument of conveyance that is literally recorded, but cannot be found by using the recordation index. Because it cannot be found, the wild deed poses a significant problem for searchers." (Footnote omitted.) 9 the grantee, and the undisputed evidence before the trial court showed that a search of the grantor-grantee index in the Jefferson County Probate Office would not have uncovered the foreclosure-sale deed. Consequently, the foreclosure-sale deed is a "wild deed," outside the chain of title, and the 2 fact that it was recorded did not impart constructive notice to First Franklin or to JPMorgan. As explained in Wallace, 903 So. 2d at 797: "'A purchaser is chargeable with notice of what appears on the face of the instruments in his or her chain of title. Ball v. Vogtner, 362 So. 2d 894, 897 (Ala. 1978); Union Oil Co. v. Colglazier, 360 So. 2d 965, 969-70 (Ala. 1978). However, an instrument outside a purchaser's chain of title does not give constructive notice.'" (quoting Dodd, 477 So. 2d at 332) (emphasis added). Accord Brannan v. 1060902 10 Marshall, 184 Ala. 375, 377, 63 So. 1007, 1007 (1913), which states: "It is well settled by numerous decisions in this state that the registration of a conveyance executed by one who is a stranger to the title as it is shown by the records--that is, by a grantor who does not appear in the chain of recorded conveyances, or other title records, as one who has acquired an interest in the land in question--is not constructive notice to a subsequent purchaser in the regular chain of title. Fenno v. Sayre, 3 Ala. 458 [(1842)]; Gimon v. Davis, 36 Ala. 589 [(1860)]; Scotch Lumber Co. v. Sage, 132 Ala. 598, 32 South. 607, 90 Am. St. Rep. 932 [(1902)]; Tenn. C., I. & R. Co. v. Gardner, 131 Ala. 599, 32 South. 622 [(1902)]." Accordingly, First Properties' argument that the foreclosure- sale deed provided constructive notice to JPMorgan is without merit. First Properties also contends, however, that JPMorgan knew of, or reasonably should have known of, facts that would have put it on "inquiry notice"--i.e., "facts which would cause a reasonable person to make an inquiry which would reveal the interest" of the fire district through which First Properties claims title to the property. Wallace, 903 So. 2d at 797. To support that contention, First Properties relies on the title commitment that Stewart Title Guaranty Company, which issued a title-insurance policy to First Franklin for 1060902 11 the property, provided to First Franklin at the time of the execution of the November 9, 1999, mortgage. First Properties alleges that the title commitment from Stewart Title "disclosed to First Franklin that the property was in a fire district and subject to fire dues." (First Properties' brief, p. 8.) However, the only portion of the title commitment that First Properties cites is a sentence that reads: "The following requirements must be met and completed to the satisfaction of [Stewart Title] before its policy of title insurance will be issued: ... 4. Proof that there are no unpaid due and payable, improvement assessments and/or fire dues against subject property." The handwritten word "affidavit" appears above item "4" quoted above, which, according to the parties, indicates that either Stewart Title or its agent, Birmingham Title Services Corporation, accepted an affidavit from Dumas as satisfactory proof that there were no unpaid fire dues. First Properties implies that it was unreasonable for Stewart Title and Birmingham Title to rely on an affidavit as proof that there were no unpaid fire dues on the property, and, without citing any authority to support the proposition, First Properties suggests that Stewart Title and 1060902 As JPMorgan points out, First Properties does not cite 3 any evidence in the record that suggests that contacting the fire district would have disclosed that the property had been sold for unpaid fire dues. JPMorgan explains that because the fire district sold the property in 1998 to satisfy the unpaid fire dues, a call by First Franklin in 1999 might have revealed only that there currently were no unpaid fire dues, not that the property had been sold previously to satisfy unpaid fire dues. 12 Birmingham Title should have inquired to determine what fire district the property was located in and whether there were any unpaid fire dues.3 Other than noting that the undisputed evidence in the record shows that the foreclosure-sale deed was outside the chain of title and therefore that a search of the Jefferson County Probate records at the time of the 1999 mortgage would not have located the foreclosure-sale deed, we express no opinion regarding whether the title insurer had an obligation to inquire further as to whether there were any fire dues on the property that remained unpaid. Even if First Properties were correct in its claim that Stewart Title and Birmingham Title had knowledge of facts that should have caused them to inquire further regarding the existence of any unpaid fire dues, First Properties has not offered any evidence suggesting that First Franklin (and, by extension, JPMorgan) should be 1060902 13 charged with that same knowledge. In Wallace, supra, J. Steve Wallace and Lucy S. Wallace recovered a $60,000 judgment against Robert P. Sholund, Inc. ("RPS"). 903 So. 2d at 793. Soon after the judgment was entered, RPS conveyed several properties to Robert P. Sholund and Patricia Sholund, and the Sholunds recorded the deeds to those properties. Four days after the deeds were recorded, the Wallaces recorded a certificate of judgment against RPS. Some time later, the Sholunds executed a deed to one of the properties to Nicholas Lee and Tammy Lee. The Lees then executed a mortgage on the property in favor of Frontier Bank, N.A., and both the deed from the Sholunds to the Lees and the mortgage from the Lees to Frontier were recorded. 903 So. 2d at 793-94. The Wallaces subsequently brought an action seeking to set aside the deed from RPS to the Sholunds and to declare that both the deed from the Sholunds to the Lees and the Lees' mortgage to Frontier were subject to the voiding of the earlier deed. 903 So. 2d at 793. The Wallaces alleged that the Lees were not bona fide purchasers for value without notice because, the Wallaces contended, the Lees' title 1060902 14 insurer "had, or should have had, knowledge of the [Wallaces'] recorded judgment and the mid-December cluster of conveyances from RPS to the Sholunds, and that [the title insurer's] knowledge is imputed to the Lees and Frontier." 903 So. 2d at 799. The underlying premise of the Wallaces' argument was that the title insurer (and its agent) were "'acting as the title examining agents for the Lees and Frontier.'" 903 So. 2d at 799 (quoting the Wallaces' brief). In rejecting the Wallaces' position, this Court noted that the Wallaces had not offered any evidence suggesting an agency relationship between the title insurer and the Lees and Frontier: "[A]gency may not be presumed; the party asserting it has the burden of adducing sufficient evidence to prove its existence. Kennedy v. Western Sizzlin Corp., 857 So. 2d 71, 77 (Ala. 2003). There is a distinction between an abstract of title and title insurance. When a title insurance company is engaged by a party merely to issue a title insurance policy, without the additional duty of preparing and delivering an abstract of title, and when the party procuring the insurance neither retains nor exercises any supervision or control over the manner in which the title insurance company determines the status of title, the title insurance company functions as an independent contractor and not as the agent of the party. Under such a relationship, notice to, or knowledge obtained by, the title insurance company does not constitute actual or constructive notice or knowledge to the party 1060902 15 retaining the title insurance company. Rice v. Taylor, 220 Cal. 629, 32 P.2d 381 (1934); Colegrove v. Behrle, 63 N.J. Super. 356, 164 A.2d 620 (1960); Soper v. Knaflich, 26 Wash. App. 678, 613 P.2d 1209 (1980); Focus Inv. Assocs., Inc. v. American Title Ins. Co., 797 F. Supp. 109 (D.R.I. 1992); and Huntington v. Mila, Inc., 119 Nev. 355, 75 P.3d 354 (2003). "The only fact the Wallaces point to in support of their argument that Lawyers Title acted as 'the title examining agent for the Lees and Frontier' is that the Lees paid the premiums for the title insurance as a part of the closing costs. That fact is in no way indicative of an agency relationship between the Lees and Lawyers Title; rather, it is indicative of a transaction between an insured and an independent-contractor insurer. "Accordingly, because there is no evidence in the record indicating that Lawyers Title knew or should have known of the Wallaces' judgment against RPS on January 13, 2003, when the Lees closed their purchase on lot 30 from the Sholunds, and because there is no evidence indicating that Lawyers Title was acting as the Lees' agent in issuing the title insurance policies in question, there is no support for the Wallaces' contention that notice or knowledge of the Wallaces' judgment against RPS should be imputed to the Lees. Such notice or knowledge as Lawyers Title, the Lees, or Frontier obtained after the closing is irrelevant to the issue whether the Lees were bona fide purchasers for value or whether Frontier was a bona fide mortgagee for value at the time of the January 13, 2003, closing." 903 So. 2d at 801-02. In the present case, the trial court's order of final judgment states: "The record in this case contains no 1060902 16 allegation or proof that the title company in this case was the agent of First Franklin." First Properties does not explain how that ruling of the trial court was erroneous. Instead, to support its contention that Birmingham Title was acting as the agent of First Franklin, First Properties cites an affidavit from the president of Birmingham Title. That affidavit indicates that Birmingham Title "researches and prepares title insurance binders and policies as agent for Stewart Title" and that Birmingham Title "performed a title search and prepared a title commitment" relating to the Dumas property. The affidavit indicates only that the "title commitment was prepared for the benefit of First Franklin." Thus, the affidavit does not indicate that the transaction between First Franklin and Stewart Title was anything other than a "transaction between an insured and an independent-contractor insurer." See Wallace, 903 So. 2d at 802. Consequently, First Properties has not offered evidence of an agency relationship between Stewart Title or Birmingham Title and First Franklin or JPMorgan, and any alleged notice that the title insurer had is not imputed to First Franklin or JPMorgan. 1060902 17 First Properties has not demonstrated that the trial court erred in holding that JPMorgan was a bona fide holder for value without notice of the foreclosure-sale deed. Accordingly, the trial court's judgment is due to be affirmed. Conclusion The judgment of the trial court is affirmed. AFFIRMED. Cobb, C.J., and See, Woodall, and Parker, JJ., concur.	January 11, 2008
40ef4e26-4d3d-4557-8912-920e0c4d23d3	McCutchen Company v. Media General, Inc., d/b/a WKRG TV-5, etal.	N/A	1060211	Alabama	Alabama Supreme Court	REL: 1/25/08 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, 2007-2008 ____________________ 1060211 ____________________ The McCutchen Company, Inc. v. Media General, Inc., d/b/a WKRG TV-5, et al. Appeal from Mobile Circuit Court (CV-04-1090) SEE, Justice. The McCutchen Company, Inc., appeals from a summary judgment entered in favor of Media General, Inc., d/b/a WKRG TV-5, Media General Operations, Inc., d/b/a WKRG, and Sue Cosgrove (collectively "WKRG"). The McCutchen Company sued 1060211 The billboard advertisements aired after the stock-report 1 segment on channel 5 during the 6 a.m. and 6 p.m. news broadcasts and included audio or visual promotional spots that identified The McCutchen Company as a sponsor of the stock- report broadcast. 2 WKRG, alleging fraud, and WKRG counterclaimed, alleging breach of contract. The trial court entered a summary judgment in favor of WKRG on The McCutchen Company's fraud claim and on the breach-of-contract counterclaim. We affirm. Facts and Procedural History In 2003, The McCutchen Company, a small investment company located in Mobile, began negotiations with WKRG TV-5, a local television station that broadcasts in the Mobile area, to purchase an advertising package. The McCutchen Company was founded by Jerry McCutchen, who is also its president and sole shareholder. McCutchen and his wife, Debbie, acting on behalf of The McCutchen Company, met several times with the local sales manager for WKRG, Sue Cosgrove, and its account representative, Rhonda Pullen. Cosgrove and Pullen proposed three different advertising packages to the McCutchens. The McCutchens expressed interest in an advertising package that included several advertising spots, morning and evening billboard advertisements, and a five-minute segment following 1 1060211 3 the 9 a.m. to 10 a.m. news broadcast, in which Mr. McCutchen would give investment advice. During one of the meetings with Cosgrove and Pullen, McCutchen asked Cosgrove how many new customers The McCutchen Company could expect as a result of the television advertising campaign. McCutchen alleges that Cosgrove responded that he could expect "at least fifty" new clients per month. McCutchen stated in his deposition that he believed Cosgrove's estimate was a "reasonable expectation" and that he thought Cosgrove believed the statement when she made it. WKRG denies that Cosgrove told McCutchen that The McCutchen Company could expect at least 50 new clients per month as a result of advertising on channel 5. Cosgrove testified in her deposition that she told McCutchen that he could "expect as many as 50 leads a month if he continued to work and stay with the contract." Cosgrove further stated that she told McCutchen that she based her estimate on the results other WKRG clients had experienced using similar advertising packages. Cosgrove admitted in her deposition that the statement that one could expect at least 50 new clients per month could induce an individual into entering into an 1060211 The contract also required The McCutchen Company "to pay 2 all costs of collection including attorney's fees and court cost[s] if collected by law or through an outside collection agency" if The McCutchen Company defaulted on any payments due under the contract. 4 advertising contract. Warren Fihr, WKRG's general sales manager, admitted in his deposition that he could not think of any reason to tell an advertising customer that he or she could expect at least 50 new clients per month other than to induce the customer into entering a promotional agreement. McCutchen signed a two-year noncancellable advertising contract. The contract provides that The McCutchen Company was required to purchase a minimum of $30,000 in advertising in 2003 and to increase by at least 10 percent the amount of advertising services it purchased in 2004. The McCutchen 2 Company agreed to purchase $31,400 of advertising for 2003 and $44,100 for 2004. McCutchen testified that The McCutchen Company did not obtain any new customers during the first four months of the advertising campaign. In January 2004, The McCutchen Company gave WKRG two weeks' notice of its intention to cancel the advertising contract, which the parties acknowledge is the industry standard for canceling an advertising contract. WKRG 1060211 5 then notified The McCutchen Company that the advertising contract between The McCutchen Company and WKRG was an annual contract that was not governed by the industry standard of two weeks' notice, and that, therefore, WKRG expected The McCutchen Company to abide by the terms of the contract. The McCutchen Company then sued WKRG, claiming that Cosgrove's alleged statement that The McCutchen Company could expect at least 50 new customers per month fraudulently induced it to enter into the advertising contract. WKRG counterclaimed, alleging that The McCutchen Company had breached the advertising contract. WKRG moved for a summary judgment on both The McCutchen Company's fraud claim and WKRG's breach-of-contract counterclaim. The trial court entered a summary judgment in favor of WKRG on both claims. The McCutchen Company appeals. Standard of Review "We review the trial court's grant or denial of a summary judgment motion de novo." Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006) (citing Bockman v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006)). A summary judgment is proper if there is no genuine issue of material fact and the 1060211 6 moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present "substantial evidence" of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999). 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); see also § 12-21-12(d), Ala. Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So. 2d 435, 436 (Ala. 1993). "The trial court's ruling on a question of law carries no presumption of correctness, and this Court reviews de novo the trial court's conclusion as to the appropriate legal standard to be applied." Dunlap v. Regions Fin. Corp., [Ms. 1060384, October 5, 2007] ___ So. 2d ___, ___ (Ala. 2007) (citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997)). 1060211 7 Analysis The McCutchen Company maintains that the summary judgment on its fraud claim and on WKRG's breach-of-contract counterclaim was not warranted because, it says, The McCutchen Company presented substantial evidence demonstrating that there are genuine issues of material fact as to both claims. A. Fraud Claim The McCutchen Company argues that the trial court erred in entering a summary judgment in favor of WKRG on The McCutchen Company's fraud claim. "'The elements of fraud are: (1) a misrepresentation of a material fact, (2) made willfully to deceive, recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by the plaintiff under the circumstances, and (4) that caused damage as a proximate consequence.'" Allstate Ins. Co. v. Eskridge, 823 So. 2d 1254, 1258 (Ala. 2001) (quoting Brushwitz v. Ezell, 757 So. 2d 423, 429 (Ala. 2000)). Viewing the evidence, as we must, in the light most favorable to The McCutchen Company, we assume that Cosgrove represented to The McCutchen Company that it could expect to obtain at least 50 new customers per month as a result of the advertising campaign. The McCutchen Company 1060211 8 contends that this was "a misrepresentation of a material fact." The McCutchen Company further contends that it reasonably relied on Cosgrove's statement and that it suffered damage because The McCutchen Company spent a substantial amount of money paying for advertising services that generated no new customer accounts. WKRG argues that it was entitled to a summary judgment on The McCutchen Company's fraud claim because the statement The McCutchen Company alleges Cosgrove made was nothing more than her opinion or a prediction of future events and was not "a misrepresentation of a material fact." WKRG further argues that The McCutchen Company's fraud claim fails because The McCutchen Company did not show that Cosgrove intended to deceive The McCutchen Company at the time she allegedly made the statement and The McCutchen Company did not show that it reasonably relied on the statement. This Court has stated that "[a] mere statement of opinion or prediction as to events to occur in the future is not a statement of a 'material fact' upon which individuals have the right to rely and, therefore, it will not support a fraud claim." Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 877 1060211 9 (Ala. 1994). "Where the representation of an opinion is involved, a person must prove not only that there was an intent to deceive, but also that his reliance was reasonable." Reynolds v. Mitchell, 529 So. 2d 227, 231 (Ala. 1988) (citing Bedwell Lumber, Inc. v. T & T Corp., 386 So. 2d 413 (Ala. 1980)). We agree with WKRG that Cosgrove's statement was not a misrepresentation of a material fact but was a statement of opinion or a prediction of future events. When asked by McCutchen how many new customers he could expect as a result of the advertising campaign, Cosgrove responded, according to The McCutchen Company, by telling McCutchen that he could expect at least 50 new customers per month. Cosgrove's statement has every appearance of an opinion or a prediction of future events. See Crowne Invs., 638 So. 2d at 877 ("'Ordinarily a prediction as to events to occur in the future is to be regarded as a statement of opinion only, on which the adverse party has no right to rely.'" (quoting Lawson v. Cagle, 504 So. 2d 226, 227 (Ala. 1987))); Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256, 259 (Ala. 1991) (statement that the purchaser's car "would perform in 1060211 10 accordance with his expectations" amounted "to nothing more than 'puffery' or predictions concerning the anticipated performance of the Mercury Sable line of automobiles"); and D.H. Holmes Dep't Store v. Feil, 472 So. 2d 1001, 1003 (Ala. 1985) ("The alleged representation that defendants would effect a permanent removal of plaintiffs' facial hair" was not a material fact because it "related to a future event."). The McCutchen Company argues that even if the statement was a statement of opinion or a prediction of future events, it can still recover for fraud because, it says, Cosgrove intended to deceive The McCutchen Company and The McCutchen Company reasonably relied on that statement because the McCutchens perceived Cosgrove to be an expert in the advertising field. The McCutchen Company argues that Cosgrove's testimony that the statement attributed to her could induce an individual into entering into a contract and Warren Fihr's testimony that he could think of no reason for making such a statement other than to induce a customer into entering into an advertising contract demonstrate that Cosgrove acted with an intent to deceive The McCutchen Company. However, WKRG contends, and we agree, that these 1060211 11 statements alone are not substantial evidence that Cosgrove had an intent to deceive. First, McCutchen admitted that he thought Cosgrove believed the statement when she made it. This concession contradicts the argument that Cosgrove intended to deceive the McCutchens. Vance v. Huff, 568 So. 2d 745, 750 (Ala. 1990) (business associate failed to show present intent to deceive when he "testified during his deposition that he believed that Huff was 'sincere' when he made these alleged promises, but decided at a later date not to honor them"); Beaulieu v. Wynfrey Hotel, Ltd., 718 So. 2d 83, 85 (Ala. Civ. App. 1998) (employee did not present substantial evidence that employer intended to deceive employee when employee testified that "he believed that [his supervisor] was not lying when he made the statements" that employee's wage increase was awaiting approval"). Second, the two pieces of evidence that The McCutchen Company argues constitute substantial evidence of Cosgrove's intent to deceive do not demonstrate that Cosgrove in fact had the present intent to deceive the McCutchens when she allegedly made the statement. The admission by Fihr that he 1060211 12 could think of no other reason to make such a statement except to induce a customer into entering into an advertising contract does not indicate what Cosgrove's motivation was or whether she believed the statement to be true or false. Fihr's statement shows only what it says -- that he could not think of any reason to make such a statement except to induce someone to enter into a contract. Goodyear Tire & Rubber Co. v. Washington, 719 So. 2d 774, 776 (Ala. 1998) (party alleging fraud did not provide substantial evidence of Tire Pro's intent to deceive when the evidence did "not include direct documentary evidence, or direct testimony, indicating that Tire Pro's manager ... intended not to fulfill the promises made to Washington"); Crowne Invs., 638 So. 2d at 877 (summary judgment was proper when "the plaintiffs offered no evidence that Bryant intended to deceive Crowne and Monroeville as to [insurance company's] future performance" even though Bryant told Crowne and Monroeville that "the insurance was a 'guaranteed issue'"). Although Cosgrove admitted that the statement that an individual could expect at least 50 new clients per month could induce a customer into entering into an advertising 1060211 13 contract, her statement proves only that she believes that such a statement could be an inducement. It does not demonstrate that Cosgrove thought the statement was untrue or that she had a present intent to deceive when she made the statement. Speculation is insufficient to prove that a party had a present intent to deceive. Moncrief v. Donohoe, 892 So. 2d 379, 383 (Ala. Civ. App. 2003) (evidence did not constitute substantial evidence of present intent to deceive because the "evidence is speculative as to her intent at the time the alleged promise, if any, was made"). Therefore, we conclude that the trial court properly entered a summary judgment in favor of WKRG because The McCutchen Company has not provided substantial evidence that Cosgrove intended to deceive the McCutchens. B. Breach-of-Contract Counterclaim The McCutchen Company argues that the trial court erred in entering a summary judgment for WKRG on its breach-of- contract counterclaim because the industry standard associated with advertising contracts allows a party to cancel an advertising contract with two weeks' notice. WKRG contends that industry standards do not apply to The McCutchen 1060211 14 Company's advertising contract because that contract specifies that it is an annual contract and that it is noncancellable. WKRG argues that a court should not use industry standards to construe a contract when the contract is not ambiguous. "'A plaintiff can establish a breach-of-contract claim by showing "(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant's nonperformance, and (4) damages."'" Winkleblack v. Murphy, 811 So. 2d 521, 529 (Ala. 2001) (quoting State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 303 (Ala. 1999), quoting in turn Southern Med. Health Sys., Inc. v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995) (emphasis omitted)). The parties do not dispute that The McCutchen Company and WKRG executed a valid advertising contract or that WKRG performed under the contract. The dispute is whether, as The McCutchen Company argues, it had the right to cancel the contract by giving WKRG two weeks' notice. We conclude that The McCutchen Company failed to support its argument that the advertising contract was governed by the industry standard for cancellation notice because it fails to cite the record or any legal authority in support of its 1060211 15 argument. "'Where an appellant fails to cite an authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.'" Henderson v. Alabama A & M Univ., 483 So. 2d 392, 392 (Ala. 1986) (quoting Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala. Civ. App. 1984)). Moreover, The McCutchen Company's argument that the two-week cancellation standard applies to this contract appears to be without merit because this Court has stated that "'evidence of custom is admissible only to explain an ambiguous contract or to add to it an element not in contravention of its terms; but such evidence is never admissible to contradict the plain unambiguous covenants and agreements expressed in the contract itself.'" Mall Gift Cards, Inc. v. Wood, 288 Ala. 355, 358, 261 So. 2d 31, 34 (1972) (quoting Miller v. Gray, 136 Tex. 196, 200, 149 S.W.2d 582, 583 (1941)). The advertising contract at issue in this case clearly specifies that it is a noncancellable annual contract, and industry standards do not apply to alter these unambiguous terms. The summary judgment entered in favor of WKRG on the breach-of-contract counterclaim, therefore, was proper. The McCutchen Company argues finally that the trial court 1060211 16 erred in awarding WKRG $48,300 in damages because, it argues, WKRG had a duty to mitigate its damages; therefore, it argues, WKRG was entitled only to damages for the advertising services it did not sell to other parties after The McCutchen Company canceled its contract. The McCutchen Company points out that WKRG was able to sell all the promotional spots and the five- minute segment after the 9 a.m. to 10 a.m. news broadcast but was unable to sell the billboard advertisements that appeared during the 6 a.m. and 6 p.m. news broadcasts. This is a facially persuasive argument; however, The McCutchen Company's brief contains no citation to any relevant legal authority to support its contention that WKRG had a duty in these circumstances to mitigate its damages from the loss of advertising revenues. Therefore, we affirm the trial court's damages award. Henderson, 483 So. 2d at 392 ("'Where an appellant fails to cite an authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.'" (quoting Gibson v. Nix, 460 So. 2d at 1347)). Because The McCutchen Company has not provided substantial evidence showing that the trial court erred in entering a summary judgment on WKRG's breach-of-contract 1060211 17 counterclaim, we affirm that judgment. Conclusion The McCutchen Company has not presented substantial evidence demonstrating that there is a genuine issue of material fact. Therefore, the trial court's summary judgment in favor of WKRG on The McCutchen Company's fraud claim and WKRG's breach-of-contract counterclaim was proper, and we affirm the summary judgment. AFFIRMED. Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur.	January 25, 2008
d3b393b4-4a02-4f5f-befa-3ea717591cff	Ex parte William Earl Mitchell. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Perry & Williams, Inc. v. William Earl Mitchell)	N/A	1060356	Alabama	Alabama Supreme Court	REL:01/25/08 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, 2007-2008 _________________________ 1060356 _________________________ Ex parte William Earl Mitchell PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Perry & Williams, Inc. v. William Earl Mitchell ) (Montgomery Circuit Court, CV-98-312; Court of Civil Appeals, 2050508) BOLIN, Justice. 1060356 2 In November 2005, William Earl Mitchell filed a motion in the trial court asking the court to award him a motorized scooter and a lift to put the scooter on his vehicle under a previous workers' compensation judgment that left open the issue of future medical benefits. The trial court granted Mitchell's motion. Relying on this Court's decision in Ex parte City of Guntersville, 728 So. 2d 611 (Ala. 1998), the Court of Civil Appeals reversed the judgment of the trial court awarding Mitchell the scooter and the lift. See Perry & Williams, Inc. v. Mitchell, [Ms. 2050508, November 17, 2006] __ So. 2d __ (Ala. Civ. App. 2006). This Court held in Ex parte City of Guntersville that a van was not a device that served to improve a disabled employee's condition and, therefore, did not come within the meaning of the term "other apparatus" under § 25-5-77(a), Ala. Code 1975. We granted Mitchell's petition for a writ of certiorari to determine whether this Court's holding in Ex parte City of Guntersville should be clarified or overruled. Factual and Procedural Background On May 11, 1999, the Montgomery Circuit Court entered a judgment finding that Mitchell had suffered a compensable 1060356 3 injury in July 1996, caused by inhaling toxic fumes during the course of his employment with Perry & Williams, Inc. The trial court awarded Mitchell workers' compensation benefits in accordance with the Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the Act"). The trial court specified in its judgment that Mitchell's right to any future medical benefits would remain open pursuant to the Act. See § 25-5- 77, Ala. Code 1975. On November 10, 2005, Mitchell moved the trial court to enforce the medical-benefits provision of the May 1999 workers' compensation judgment, alleging that his medical condition had deteriorated, that he was in "need of a scooter and a lift for the scooter for mobility," and that Perry & Williams should pay for the expenses associated with the purchase of the scooter and the lift. Perry & Williams responded to Mitchell's motion, disputing that the scooter and the lift were properly payable medical benefits under § 25-5-77(a), Ala. Code 1975, which mandates that the employer provide "reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, 1060356 4 crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment ...." Perry & Williams argued that based on this Court's holding in Ex parte City of Guntersville, supra, the scooter and the lift did not constitute "other apparatus" so as to be a compensable medical expense under § 25-5-77(a), because the scooter and the lift were merely to assist Mitchell with his mobility and did not improve his medical condition. Perry & Williams also argued that Mitchell's alleged need for a scooter and a lift was not related to his workers' compensation injury, but was related to other medical conditions from which Mitchell also suffered. In support of their position, Perry & Williams presented the affidavits of Mitchell's treating physicians, Dr. Mont F. Highley III and Dr. William P. Saliski, Jr. Dr. Highley stated as follows in his affidavit: "I am a licensed physician practicing in the field of family medicine. In my position as a physician, I have had the opportunity to treat William Earl Mitchell, the plaintiff in the above styled action. "In my professional opinion, Mr. Mitchell's medical condition is such that I believe he would benefit from a scooter and lift. It is further my opinion that the scooter and lift would assist his 1060356 5 mobility and function, but would not be expected or intended to improve his medical condition. "As for defining the specific conditions that have caused or contributed to Mr. Mitchell's need for a scooter and lift, I defer my opinion to that of Dr. William Saliski, to whom I have referred Mr. Mitchell for further assessment and treatment." Dr. Saliski testified as follows in his affidavit: "I am a licensed physician practicing in the field of pulmonology. In my position as a physician, I have had the opportunity to treat William Earl Mitchell, the plaintiff in the above styled action. "I am aware that Mr. Mitchell is interested in obtaining a scooter and lift. In my professional opinion, any benefit that Mr. Mitchell would gain from a scooter and lift would be to assist his mobility and function. The scooter and lift would not in any way improve his medical condition. "It is my professional opinion that Mr. Mitchell's need for a scooter and lift is unrelated to his workers' compensation injury; his need for a scooter and lift was not as the result of his workers' compensation injury and the injury neither caused nor contributed to his perceived need for those items. Instead, it is my opinion that any need Mr. Mitchell has for a scooter and lift is secondary to his diabetes, morbid obesity, severe cardiac disease, and history of smoking." Mitchell responded to Perry & Williams's response by submitting on December 15, 2005, a second affidavit of Dr. Highley, which addressed the issue of causation. Dr. Highley testified in his second affidavit as follows: 1060356 6 "Mr. Mitchell has been disabled for many years because of pulmonary fibrosis. His lung condition is related to an on-the-job exposure in my opinion. "He has recently developed severe aortic stenosis. He initially was approved for a scooter to help him with his mobility. However, the development of the aortic stenosis and the issue of the ideology of his disability became clouded. However, it is my feeling that the patient has sufficient disability on the basis of his lung disease to warrant a scooter. I think the fact that he has aortic stenosis is probably unrelated, but his lungs are unquestionably severely diseased to the point where he is on oxygen on a constant basis. It is my opinion that he should be approved for a scooter and a lift to put the scooter on his car to increase his mobility and decrease his dependence on others." On January 13, 2006, the trial court entered an order requiring Perry & Williams to provide Mitchell with the requested scooter and lift, finding that they were "other apparatus" covered under § 25-5-77(a). The trial court's order reads, in part, as follows: "The question at bar is whether the requested 'scooter and lift' are required under § 25-5-77(a), Ala. Code (1975), which in pertinent part states, an employer is responsible for paying only those medical benefits that are associated with, "'reasonably necessary medical ... treatment and attention, physical rehabilitation ... medical ... supplies, crutches, artificial members, and other apparatus as the result of an accident 1060356 7 arising out of and in the course of the employment.' "The plaintiff contends that the scooter and lift are covered within the broad mandate of the statute. "Two treating physicians have provided affidavits in this action. Dr. Saliski has provided an affidavit to the defendant signed December 8, 2005. Dr. Highley has provided affidavits to both the plaintiff and defendant. Dr. Highley's affidavit to the defendant is signed December 13, 2005. Dr. Highley's affidavit to the plaintiff is signed December 15, 2005. "Dr. Saliski, in his affidavit to the defendant states, "'In my professional opinion, any benefit that Mr. Mitchell would gain from a scooter and lift would be to assist his mobility and function. The scooter and lift would not in any way improve his medical condition.' "Dr. Highley in his affidavit to the defendant, states, "'In my professional opinion, Mr. Mitchell's medical condition is such that I believe he would benefit from a scooter and lift. It is further my opinion that the scooter and lift would assist his mobility and function, but would not be expected or intended to improve his medical condition.' "Dr. Highley in his affidavit to the plaintiff states, 1060356 8 "'Mr. Mitchell has been disabled for many years because of pulmonary fibrosis. His lung condition is related to an on-the-job exposure in my opinion. "'He has recently developed severe aortic stenosis. He initially was approved for a scooter to help him with his mobility. However, the development of the aortic stenosis and the issue of the ideology of his disability became clouded. However, it is my feeling that the patient has sufficient disability on the basis of his lung disease to warrant a scooter.' "While Dr. Highley's and Dr. Saliski's affidavits for the defendant are consistent and parallel, however, Dr. Highley's affidavits for the plaintiff state a distinct opinion from his and Dr. Saliski's affidavits for the defendant. It was represented in open court by plaintiff's attorney that Dr. Highley has been plaintiff's long-time treating physician and would have more knowledge of plaintiff's condition than Dr. Saliski, who only saw plaintiff one time for approximately one and one- half hour. The defendant does not dispute this representation. While it is no question that both doctors are credible, however, it is reasonable to accept the long term treating physician's latest conclusion as more persuasive on the need for the scooter and lift. Dr. Highley's latest conclusion is that a scooter is warranted. Thus, if the scooter is warranted, so is the lift." Perry & Williams argued on appeal to the Court of Civil Appeals that the scooter and the lift were not "other apparatus" that was "reasonably necessary ... as the result of an accident arising out of and in the course of the 1060356 9 employment" pursuant to § 25-5-77(a), as that provision was construed by this Court in Ex parte City of Guntersville, supra. In Ex parte City of Guntersville, a police officer suffered a gunshot wound to his back during the course of his employment with the City of Guntersville. The officer was rendered a paraplegic and was confined to a wheelchair as the result of the gunshot wound. After a judgment had been entered awarding the officer workers' compensation benefits under the Act, the City sued the officer, seeking a determination that the City was not obligated under § 25-5-77(a) to pay for a van equipped with a wheelchair lift. The trial court entered a judgment in favor of the officer, which the Court of Civil Appeals affirmed. See City of Guntersville v. Bishop, 728 So. 2d 605 (Ala. Civ. App. 1997). We granted the City's petition for a writ of certiorari. In reversing the judgment of the Court of Civil Appeals, this Court concluded that "because the Legislature specifically provided for transportation costs in § 25-5-77(f), [Ala. Code 1975,] it would not be logical to conclude that the Legislature intended for the more general language of § 1060356 10 25-5-77(a) to cover costs related to transportation as well." 728 So. 2d at 616. This Court went on to conclude that the van did not fall within the term "other apparatus" as that term is used in § 25-5-77(a). This Court reasoned: "The parties also agree that the van is necessary 'for restoring [Bishop's] mobility "to the highest possible level" of independent functioning.' It is important to note that the parties further stipulated that '[o]ther than as stated, there are no other medical purposes for the van.' If we held that the workers' compensation statute required reimbursement of a claimant's expenses where the sole purpose of those expenses was to enhance the claimant's independent functioning, we believe we would be dangerously disturbing the balance of interests that the Legislature built into the workers' compensation system. "Our workers' compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve to improve a disabled claimant's condition. Its only use is to improve the claimant's independent functioning. While human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers' compensation statute beyond its intended meaning." 1060356 11 728 So. 2d at 616-17. Judge Pittman, writing for the Court of Civil Appeals in this case, stated in the main opinion: "[U]nder the reasoning in Ex parte City of Guntersville, for an item or device prescribed for an injured employee, such as the scooter and the lift at issue in this case, to be deemed a covered 'other apparatus' under § 25-5-77(a) so as to render an employer liable for the cost of that item or device, it must be shown that the purpose of the item or device is to improve the physical or mental condition of the injured employee." Mitchell, __ So. 2d at __. The Court of Civil Appeals then reversed the trial court's judgment awarding Mitchell the scooter and the lift, finding that no substantial evidence existed that indicated that the scooter and the lift were intended to improve Mitchell's physical condition. Mitchell, _____ So. 2d at ____. Judge Thompson concurred specially in the court's decision, noting that the interpretation of Ex parte City of Guntersville in the main opinion may have focused too closely on the language in Guntersville questioning whether the requested apparatus served to improve the disabled employee's medical condition. Judge Thompson noted that many items that do not improve an employee's condition but that merely serve 1060356 Justice Murdock was a member of the Alabama Court of 1 Civil Appeals when that court decided this case. 12 to alleviate or remedy the effects of that condition are compensable under § 25-5-77(a), including those specifically mentioned in § 25-5-77(a), such as crutches and artificial limbs, and those not specifically mentioned, such as a wheelchair. Mitchell, supra. Judge Bryan also concurred specially; he expressed concern that the holding in Ex parte City of Guntersville could be applied to foreclose an employer's liability for common and essential devices such as wheelchairs, canes, hearing aids, braces, and walkers, which merely serve to improve an employee's independent functioning and do not improve the employee's condition. Mitchell, supra. Justice Murdock concurred in the result in Mitchell, 1 reasoning that the main opinion gave much more import to this Court's statement in Ex parte City of Guntersville -- that the van was not a device that served to improve the employee's medical condition –- than this Court reasonably could have given it. Justice Murdock noted that the purpose of the items and services provided for in § 25-5-77(a) was not only to improve the employee's condition, but also (1) to prevent the 1060356 13 deterioration of the employee's condition and (2) to relieve the employee of the adverse effects of the employee's condition as it related to the basic appearance or the basic functioning of the body. Justice Murdock, using a cane as an example, explained that a cane does not serve to improve an employee's condition but serves only to relieve the employee of the adverse effect of his condition as it related to basic functioning, i.e., walking. He pointed out that a cane is not an item specifically mentioned in § 25-5-77(a) and thus would be compensable only as an "other apparatus." However, Justice Murdock concluded that under the approach adopted by the Court of Civil Appeals' opinion, employers would no longer be required to provide canes to injured employees because a cane does not serve to improve an employee's condition. Mitchell, supra. Justice Murdock offered in his special writing a distinction between the van at issue in Ex parte Guntersville and the more common devices such as walkers, wheelchairs, hearing aids, back braces, and the like, routinely provided by employers pursuant to § 25-5-77(a). He stated that the latter, more common, devices aid the body in its basic 1060356 14 appearance or function, whereas the sole purpose of the van was to provide the employee with greater independence or convenience in interacting with society. Mitchell, supra. Justice Murdock then framed the dispositive issue as follows: "[W]hether the [scooter and the lift] at issue were shown by [Mitchell] (a) to be reasonably necessary and (b) to relieve [Mitchell] of the adverse effects of his condition insofar as the basic appearance or functioning of his body." Mitchell, __ So. 2d at __. Justice Murdock concluded that the evidence in the record indicated that Mitchell sought the scooter and the lift for the purpose of enhancing his independence and convenience in accessing and interacting with society rather than for relieving him of the effect of his condition insofar as it relates to the body's basic appearance or function. Mitchell, supra. Standard of Review The standard of review on a petition for a writ of certiorari is as follows: "'On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996). 1060356 15 The Court of Civil Appeals, in turn, is bound by Ala. Code 1975, § 25-5-[81](e), which provides that legal issues are to be reviewed de novo and requires that the judgment of the trial court be affirmed if its factual findings are supported by substantial evidence." Ex parte Fort James Operating Co., 895 So. 2d 294, 296 (Ala. 2004). Further, because the trial court received no ore tenus evidence and its decision was based on the affidavits of Mitchell's treating physicians, no presumption of correctness attaches to the trial court's judgment, and appellate review is de novo. Hacker v. Carlisle, 388 So. 2d 947 (Ala. 1980). Discussion Mitchell asks this Court to overrule, or at least to clarify, its decision in Ex parte City of Guntersville, to the extent that that decision sets forth an overly restrictive standard for determining what constitutes "other apparatus" under § 25-5-77(a), Ala. Code 1975. Section 25-5-77(a) provides, in relevant part, that an employer shall pay for "reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment." The phrase "other apparatus" 1060356 16 is not defined by the Act; therefore, it is subject to construction. "'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. 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.' "... 'Courts must liberally construe the workers' compensation law "to effectuate its beneficent purposes," although such a construction must be one that the language of the statute "fairly and reasonably" supports.'" Ex parte Weaver, 871 So. 2d 820, 823-24 (Ala. 2003) (citations omitted). This Court in Ex parte City of Guntersville discussed the history and underlying policy of the Act: "'[T]he necessity for workers' compensation legislation arose out of the coincidence of a sharp increase in industrial accidents attending the rise of the factory system and a simultaneous decrease in the employee's common-law remedies for his or her injuries.' 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 4.00 (1997). In an effort to meet changing societal needs more efficiently than they were being met by the common law and early statutory law, the states began enacting workers' compensation statutes, in their modern form, in the first part of this century. Larson, § 5.30. In doing so, the states created a 1060356 17 new system that was delicately balanced between the interests of employees and the interests of employers. Under this new system, the employer is automatically responsible for paying medical and disability benefits to employees who are injured on the job. '[T]he employee and his or her dependents, in exchange for ... modest but assured benefits, give up their common-law right to sue the employer for damages for any injury covered by the act....' Larson, § 1.10(e). 'A correctly balanced underlying concept of the nature of workers' compensation is indispensable to an understanding of current cases and to a proper drafting and interpretation of compensation acts.' Larson, § 1.20. The Alabama Legislature incorporated that balanced concept in our workers' compensation statute. Understanding that balance is, of course, a constant challenge for courts. In deciding the issue at hand, we must determine how to best effectuate the intended aims of the compensation statute while maintaining the balance upon which it was based." 728 So. 2d at 615-16. Therefore, in setting forth the appropriate standard to be used in determining what constitutes "other apparatus" under § 25-5-77(a), this Court must strike a balance between the competing interests of employees and employers that is the basis of our workers' compensation system. As Justice Murdock aptly pointed out in his special concurrence to the Court of Civil Appeals' opinion Mitchell, a casual reading of § 25-5-77(a) reveals that not all the apparatus and services specifically mentioned there have as 1060356 18 their sole purpose the improvement of an employee's condition. They may also serve (a) to prevent the deterioration of the employee's condition and (b) to relieve the employee of the adverse effects of his condition as it relates to "the basic appearance or the basic functioning of [the] body." Mitchell, __ So. 2d at __ (Murdock, J., concurring in the result). For example, "medical and surgical treatment," in addition to improving an employee's condition, may also serve to prevent the further deterioration of the employee's condition or restore the employee to a level of basic functioning. "Physical rehabilitation" may serve to improve an employee's condition, but it may also be prescribed for the purpose of preventing the further deterioration of the employee's condition or restoring the employee to a level of basic functioning. "Crutches" do not improve the condition of an employee's injured leg, but they serve to prevent the further deterioration of the employee's leg and also help restore the employee to a level of basic function, i.e., ambulation. "Artificial members" cannot restore or mend a employee's severed limb; however, they would restore the employee's appearance as it relates to the severed limb, and may, in some 1060356 19 cases, return the employee to a level of basic functioning. The same could be said for many other items not specifically mentioned in § 25-5-77(a). For example items such as wheelchairs, walkers, canes, hearing aids, eyeglasses, dentures, and braces (such as back, knee, and elbow braces) do not necessarily serve to improve an employee's condition but, nonetheless, are routinely provided to injured employees under § 25-5-77(a). A narrow interpretation of the phrase "other apparatus" could conceivably foreclose an employer's liability for these common items, which are routinely provided to the employee pursuant to § 25-5-77(a). The ejusdem generis rule of statutory construction provides that where general words or phrases follow or precede a specific list of classes of persons or things, the general word or phrase is interpreted to be of the same nature or class as those named in the specific list. Ex parte McLeod, 718 So. 2d 682 (Ala. 1997). Applying the rule of ejusdem generis to § 25-5-77(a), we must interpret the phrase "other apparatus" to be in the same nature or class as "medical and surgical treatment," "physical rehabilitation," "crutches," and "artificial members." As discussed above, those items and 1060356 20 services do not have as their sole purpose the improvement of an employee's condition. As noted by Justice Murdock, they may also act to prevent the deterioration of the employee's condition, but they serve to relieve the employee of the adverse effects of his condition as it relates to the basic appearance or basic functioning of his body. Therefore, the phrase "other apparatus" must not be construed to include only those items that improve an employee's condition; rather, it must be construed to also include like items that also serve to prevent the deterioration of the employee's condition and to relieve the employee of the effects of his condition as it relates to the basic appearance or functioning of the employee's body. In Ex parte City of Guntersville this Court was asked to consider the narrow issue whether a wheelchair-accessible van fell within the phrase "other apparatus" as that phrase is used in § 25-5-77(a). This Court concluded that the legislature had specifically provided for transportation costs in § 25-5-77(f); therefore, it reasoned, the legislature did not intend for the more general language of § 25-5-77(a) to cover costs related to transportation. Ex parte City of 1060356 21 Guntersville, supra. In dicta, this Court went on to state that the payment of medical benefits pursuant to § 25-5-77(a) did not include the purchase price of a van because a van is not a device that can serve to improve a disabled employee's condition; its only use is to improve the employee's independent functioning. Id. We reject as too restrictive and inconsistent with legislative intent the dicta in Ex parte City of Guntersville, to the extent that it defines the phrase "other apparatus" to include only those items that serve to improve an employee's condition. In this case, this Court is asked to clarify the standard to be used in determining what constitutes an "other apparatus" under § 25-5-77(a). We do so by incorporating the principles discussed above into a functional standard that is consistent with legislative intent and that strikes a balance between the competing interests of employees and employers. Thus, in order to constitute "other apparatus" and be compensable as a medical benefit under § 25-5-77(a), the item must be: (a) reasonably necessary and (b) intended to improve the injured employee's condition, to prevent the further deterioration of the employee's condition, or to relieve the 1060356 22 employee from the effect of his condition by restoring the employee to a basic level of appearance or functioning. The determination of what constitutes a reasonably necessary "other apparatus" should be made on a case-by-case basis. For example, a wheelchair may restore an otherwise healthy employee to a level of basic functioning; however, an employee who suffers from a condition that, in addition to requiring a wheelchair, has also weakened the employee's upper body to the point that the employee cannot operate a wheelchair, may require a scooter to return that employee to a similar level of basic functioning. We now turn specifically to Mitchell's request for a scooter and a lift. The function of the lift is solely to facilitate access to transportation in connection with a motor vehicle. As stated above, the basis for this Court's holding in Ex parte City of Guntersville was that the legislature had specifically provided for transportation costs in 25-5-77(f), and a lift can serve no function other than as an attachment to a mode of transportation to facilitate the injured employee's transportation. The lift itself cannot improve Mitchell's condition, prevent the further deterioration of his 1060356 23 condition, or relieve him from the effect of his condition by restoring him to a basic level of appearance or functioning. Therefore, we conclude as a matter of law that a lift cannot, pursuant to the standard announced today, be considered "other apparatus" under § 25-5-77(a). Therefore, we affirm the judgment of the Court of Civil Appeals as to the lift. However, a scooter could be considered "other apparatus" reasonably necessary to return Mitchell to a level of basic functioning pursuant to the new standard and could therefore be compensable under § 25-5-77(a). Accordingly, we reverse the judgment of the Court of Civil Appeals as to the scooter and remand the case to that court for it in turn to remand the case for the trial court to conduct further proceedings to determine whether Mitchell is entitled to a scooter, as "other apparatus," pursuant to the standard set forth above. Because this Court has announced a new standard in this case, the trial court is free to exercise its discretion and conduct further proceedings, including taking additional evidence, in making its determination. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. 1060356 24 Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, and Parker, JJ., concur. Murdock, J., recuses himself.	January 25, 2008
233f7cd0-1ba7-4602-87bd-2103f07629ba	Brenda Sue Sanford Griffin, executrix of the estate of David Wayne Griffin v. Unocal Corporation et al.	N/A	1061214	Alabama	Alabama Supreme Court	Rel: 01/25/08 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, 2007-2008 _________________________ 1061214 _________________________ Brenda Sue Sanford Griffin, executrix of the estate of David Wayne Griffin v. Unocal Corporation et al. Appeal from Tuscaloosa Circuit Court (CV-06-216) PER CURIAM. Brenda Sue Sanford Griffin, as the executrix of the estate of David Wayne Griffin, deceased, appeals from the dismissal of her claims against Unocal Corporation, Radiator Specialty Company, Hunt Oil Company, TRMI Holdings, Inc., and 1061214 2 Solvents & Chemicals, Inc. (hereinafter collectively "the defendant chemical companies"), in the wrongful-death action she filed against the defendant chemical companies and others. We reverse and remand. Because the trial court granted the defendant chemical companies' motions to dismiss without resort to any facts supplied by affidavit or other evidentiary material outside the complaint, the relevant facts are those alleged in the complaint. Ex parte Alabama Dep't of Youth Servs., 880 So. 2d 393, 397 (Ala. 2003). From 1973 until approximately 1993, David Wayne Griffin was employed at a tire-manufacturing facility in Tuscaloosa. During his employment there, Griffin was exposed to benzene, benzene derivatives, rubber solvents, other toxic and hazardous chemicals, formaldehyde, and other aromatic compounds. These substances were produced or distributed by the defendant chemical companies. On September 9, 2003, approximately 10 years after he left his employment at the tire plant, Griffin was diagnosed with acute myelogenous leukemia. On February 17, 2004, Griffin died as a result of the acute myelogenous leukemia. 1061214 3 On February 16, 2006, Griffin's wife, Brenda, as the executrix of his estate, filed a wrongful-death action alleging that David's illness and his subsequent death had been caused by his exposure to the various chemicals during his employment at the tire-manufacturing facility. In her complaint, Brenda alleged that the defendant chemical companies were responsible for David's developing acute myelogenous leukemia and are liable under the Alabama Extended Manufacturer's Liability Doctrine. The defendant chemical companies filed motions to dismiss and/or motions for a judgment on the pleadings, arguing, based on Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), and its progeny, that Brenda's action was time-barred, because a personal-injury action based on exposure to hazardous chemicals accrues on the date of last exposure to those chemicals; consequently, an action not filed within two years of the date of last exposure is barred by the two-year statutory limitations period set forth in § 6-2-38(1), Ala. Code 1975. Thus, the defendant chemical companies argued, because the statutory limitations period for David's personal- injury claim had expired before his death, Brenda was barred 1061214 4 as a matter of law from pursuing a wrongful-death action based on David's exposure to hazardous chemicals during his employment at the tire-manufacturing plant. See § 6-5-410(a), Ala. Code 1975. On April 13, 2007, the trial court granted the defendant chemical companies' motions and dismissed the claims against them with prejudice. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., and Griffin appealed. As the defendant chemical companies aptly state, the dispositive issue in this case is whether "the date of last exposure rule [is] still the law in Alabama." Defendant chemical companies' brief, at 2. Stated simply, it is not, because we hereby overrule Garrett and its progeny. We do so for the reasons set forth in Justice Harwood's scholarly dissent to this Court's no-opinion affirmance in Cline v. Ashland, Inc., [Ms. 1041076, January 5, 2007] ___ So. 2d ___, ____ (Ala. 2007)(Harwood, J., dissenting), which is attached as an appendix to this opinion. We hereby adopt the reasoning of that dissent as the opinion of the Court in this case. 1061214 5 In particular, as Justice Harwood stated, "a cause of action accrues only when there has occurred a manifest, present injury." Cline, ___ So. 2d at ___ (Harwood, J., dissenting)(emphasis added). We need not repeat Justice Harwood's accurate description of the meaning of the word "manifest" in this context. Further, as Justice Harwood advocated in his dissenting opinion in Cline, the new accrual rule of toxic-substance-exposure cases will be applied prospectively, except in this case, where it will apply retroactively. Griffin, as the prevailing party in bringing about a change in the law, should be rewarded for her efforts. For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. Cobb, C.J., and Lyons, Woodall, Parker, and Murdock, JJ., concur. See, Stuart, Smith, and Bolin, JJ., dissent. 1061214 That act was invalidated on the questionable theory that 1 the 10-year rule of repose was unconstitutional. See Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982). 6 SEE, Justice (dissenting). In Cline v. Ashland, Inc., [Ms. 1041076, January 5, 2007] So. 2d (Ala. 2007), this Court addressed a case very much like this one. We declined in that case to adopt a "discovery rule" in toxic-tort cases. I noted in my special concurrence in that case that a revision of the law in this area is properly entrusted to the legislature. First, the question of recovery for toxic torts has been in the hands of the legislature at least since Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), when this Court adopted the last-exposure rule. I noted in my special concurrence in Cline that "[t]he Garrett Court invited the legislature to respond." ___ So. 2d at ___ (See, J., concurring specially). The legislature responded with Act No. 79-468, Ala. Acts 1979. This Court, however, invalidated that act, and the law reverted to the last-exposure rule declared 1 in Garrett. Since our decision in Garrett, "the legislature has acted in this area both by enacting legislation" providing for a discovery rule in asbestos- related-injury cases, "and 1061214 See Senate Bill 534 and Senate Bill 535 (2006 Regular 2 Session); House Bill 659 and House Bill 660 (2005 Regular Session); and House Bill 93 and House Bill 103 (2004 Regular Session). "The legislature is entrusted with making the public 3 policy of this State, whether or not it is public policy of which this Court would approve. Boles v. Parris, 952 So. 2d 364, 367 (Ala. 2006) ('[I]t is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama.'); Marsh v. Green, 782 So. 2d 223, 231 (Ala. 2000) ('Matters of policy are for the Legislature and, whether wise or unwise, legislative policies are of no concern to the courts.')." Cline, ___ So. 2d at ___ (See, J., concurring specially). 7 by considering, and thus far not adopting, proposed legislation." Cline, ___ So. 2d at ___ (See, J., concurring specially). 2 Matters of policy are properly the domain of the legislature; it is for the legislature to determine when the 3 statute of limitations begins to run in a toxic-tort case, because that question depends on a weighing of competing public policies. As a I wrote in Cline: "We seek in Alabama to compensate those who have been injured. Ala. Const. 1901, Art. I, § 13 ('[T]hat every person, for any injury done him shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.'). On the other hand, we also seek to avoid stale claims and the injustice such claims can engender. Travis v. Ziter, 681 So. 2d 1348, 1355 (Ala. 1996) ('At its core, the statute of limitations advances the truth-seeking function of 1061214 8 our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims.'). The proper balance between these competing public policies requires a weighing, and '[i]t is well established that "'[t]he Legislature is endowed with the exclusive domain to formulate public policy in Alabama.'"' Leonard v. Terminix Int'l Co., 854 So. 2d 529, 534 (Ala. 2002)(citations omitted)." Were this Court a legislative body, we would have for our consideration many more policy alternatives than the parties to this appeal have presented to us. For example, we could retain the last-exposure rule but allow those who are exposed to a toxic substance to bring a cause of action for exposure, with a showing of a manifest, present injury. In Garrett, we stated that the injury "occurred on the date or dates of exposure," 368 So. 2d at 520; however, that rule operates to bar an individual claim where one cannot demonstrate "a manifest present injury." Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala. 2001). Thus, a revision of the manifest- present-injury rule is an alternative resolution of the problem. The actual injury from exposure to toxic substances is, apparently, genetic modification that occurs at the time of exposure and that, years or even decades later, can lead to the development of serious illnesses. See Gary E. Marchant, 1061214 9 Genetics and Toxic Torts, 31 Seton Hall L. Rev. 949, 970-71 (2001) (explaining that exposure to toxic substances can result in "DNA adducts, in which a toxic substance or its metabolites bind[] with DNA to form a stable and characteristic chemical complex" and in cytogenic changes that are caused by a "breakage and rejoining of chromosomes after exposure to an agent capable of causing chromosome breaks"). The measure of damages for exposure could be based on the probability that an individual will develop a serious illness. We permit compensatory damages for future pain and suffering, Brown v. Lawrence, 632 So. 2d 462 (Ala. 1994), future medical expenses, Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801 (Ala. 2003), and lost future income and wages, Joseph Land & Co. v. Gresham, 603 So. 2d 923 (Ala. 1992). The ability to measure genetic damage promises to improve as medical knowledge and technology advance. Allowing compensation after exposure would also allow one who has been exposed to a toxic substance to obtain preventive care or appropriate insurance. See Albert C. Lin, Beyond Tort: Compensating Victims of Environmental Toxic Injury, 78 S. Cal. L. Rev. 1439, 1489 (2005) ("[T]he compensation-for-risk approach enables 1061214 10 individuals to pay for medical monitoring or preventative care."). This approach would also eliminate the logistical problems an employer faces when defending itself from a toxic- tort action. There may well be other approaches available to the legislature, but this Court is not a legislature. I wrote in Cline that the plan that this Court here adopts "looks very much like the statute enacted by the legislature in response to this Court's decision in Garrett, but without the repose provision that this Court held unconstitutional and that the legislature considered essential to the Act." ___ So. 2d at ___ (See, J., concurring specially). Yet, this Court today, some 29 years after Garrett, rejects the policy decision of the legislature that the rule of repose is an essential part of its chosen plan. The legislature is better equipped than is this Court to adopt a change in the law to address the problem presented by this case, because the legislature is designed "to investigate the full impact of a public-policy decision on not only the parties involved in a particular case, but on the State as a whole; it is designed to offer the very kind of 1061214 I stated in Cline: 4 "The public-policy question presented to this Court in this case is one of profound importance, not only to the parties involved, but to countless others as well; however, this Court's jurisdiction and competence are not defined by the importance of the matter presented. See Etowah County Comm'n v. Hayes, 569 So. 2d 397, 398 (Ala. 1990)('In testing the absolutism of the authority of the legislative branch to appropriate operational funds for the 11 forward-looking resolution" this Court now offers. Cline, ___ So. 2d at ___ (See, J., concurring specially) (citing Holmes v. Circo, 196 Neb. 496, 505, 244 N.W.2d 65, 70 (1976)). "The imposition of this sort of policy change ... falls squarely within the power and competence of the legislative branch of our government. Berdeaux v. City Nat'l Bank of Birmingham, 424 So. 2d 594, 595 (Ala. 1982) ('[W]e cannot agree that redress should come by rewriting the law of torts. ... To be able to answer [the question presented by the appeal] would require data that a court is ill equipped to gather, but which the legislature is equally capable of assessing. The issue itself presents a policy matter peculiarly within the province of the legislative as opposed to the judicial branch of government. ... [C]ourts ... should ... leave to the executive and legislative branches matters requiring resolution in the body politic.')." Cline, ___ So. 2d at ___ (See, J., concurring specially). Nor is it an adequate excuse for this Court's venture into the legislative function that because the legislature has failed to address a problem, it is up to the judiciary to do so. 4 1061214 executive branch, the judicial branch of government is constrained not to substitute its judgment for that of the legislature and thus usurp the plenary power of that branch.')." ___ So. 2d at ___ (See, J., concurring specially). 12 The second, more or less independent, reason that I dissent is that the relief this Court orders today is prospective only. Prospective-only changes in the law are legislative in nature. Justice Scalia stated in his concurring opinion in Harper v. Virginia Department of Taxation, 509 U.S. 86, 107 (1993), that "[f]ully retroactive decision making was considered a principal distinction between the judicial and the legislative power" because "'that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases.'" 509 U.S. at 107 (quoting Thomas Cooley, Constitutional Limitations 91 (1868)). In Cline, I expressed my agreement with Justice Scalia that prospective application of judicial decisions does not comport with the traditional conception of judicial power: 1061214 13 "[P]rospectivity is incompatible with the traditional conception of judicial power. Moreover, the Alabama Constitution unequivocally states that 'the judicial [branch] shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.' Article III, § 43, Ala. Const. 1901. ... As we stated in City of Daphne v. City of Spanish Fort, 853 So. 2d 933, 942 (Ala. 2003): '"'[T]o declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.'"' (quoting Sanders v. Cabaniss, 43 Ala. 173, 180 (1869), quoting in turn Thomas M. Cooley, Constitutional Limitations 91-95 (1868))." I believe that the prospective application of the new "discovery rule" in toxic-tort cases is an assumption of a legislative power denied this Court by the Constitution of Alabama. For the foregoing reasons, I dissent. Stuart, J., concurs. 1061214 14 SMITH, Justice (dissenting). I respectfully dissent. The majority in this case overrules nearly 29 years of caselaw originating in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979). As I stated in my special writing in Cline v. Ashland, Inc., [Ms. 1041076, January 5, 2007] ___ So. 2d ___ (Ala. 2007) (Smith, J., concurring specially), I believe that it is incumbent on the legislature, and not this Court, to enact new law to determine the date of the accrual of the cause of action in toxic-substance-exposure cases: "Although the Justices in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), were split as to the proper definition of 'accrued,' both the majority opinion and the dissenting Justices called on the legislature to enact legislation addressing that definition. Garrett thus placed the ball in the legislature's court. "The legislature responded by enacting Act No. 79-468, Ala. Acts 1979 (codified at Ala. Code 1975, §§ 6-5-500 through -504). Section 6-5-502 provided a discovery rule for actions seeking damages for injuries resulting from exposure to toxic substances. However, § 6-5-502(c), which contained a rule of repose, was declared unconstitutional in Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982), as recognized in Daniel v. Heil Co., 418 So. 2d 96 (Ala. 1982). Because § 6-5-504 provided that in the event any part of §§ 6-5-500 through -504 was declared invalid the entire act would become inoperable, Garrett remained the law. Soon thereafter, the legislature again acted to 1061214 15 alter this Court's definition of 'accrued' in toxic- substance-exposure cases by enacting Act No. 80-566, Ala. Acts 1980, but this time it limited the act strictly to claims alleging injury from asbestos. See Ala. Code 1975, § 6-2-30(b). The definition of 5 'accrued' in toxic-substance-exposure cases other than asbestos cases was left untouched, and the legislature is presumed to have knowledge of this fact. Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 814 (Ala. 2003) ('The Legislature, when it enacts legislation, is presumed to have knowledge of existing law and of the judicial construction of existing statutes.'). "This Court has continued to apply the holding of Garrett since 1979. See, e.g., Ramey v. Guyton, 394 So. 2d 2, 5 (Ala. 1980) (stating that 'while rejecting the "discovery of injury" rule, [Garrett] remained true to the common law "accrual" principle'); Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263, 268 (Ala. 1981) (noting that, before the enactment of Act No. 80-566, Garrett held that a claim based on injury from exposure to asbestos accrued on the date of plaintiff's last exposure); American Mut. Liab. Ins. Co. v. Phillips, 491 So. 2d 904, 908 (Ala. 1986) (holding that 'the longstanding damages rule followed in [Garrett]' was applicable in a case involving an injury sustained from exposure to cotton fibers); Moore v. Glover, 501 So. 2d 1187, 1190 (Ala. 1986) ('[T]his Court's opinion in [Garrett] settled the question of the "accrual" of a plaintiff's claim in a radiation exposure case for purposes of determining when the applicable statute of limitations begins to run ....'); Hillis v. Rentokil, Inc., 596 So. 2d 888, 890 (Ala. 1992) (applying the rule in Garrett that the statute of limitations begins to run from the 'date of injury'); Hubbard v. Liberty Mut. Ins. Co., 599 So. 2d 20, 21 n.2 (Ala. 1992) (citing Garrett for the proposition that 'the "date of injury," which starts the running of the statutory period of limitations in a continuous exposure case, occurs when the 1061214 16 plaintiff was last exposed to the chemical or condition causing his injuries'); Johnson v. Garlock, Inc., 682 So. 2d 25 (Ala. 1996) (applying the rule of Garrett in an asbestos-exposure case in which § 6-2-30(b) did not apply); and Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134, 1135 (Ala. 1997) (citing Garrett for the proposition that '[f]or purposes of an action based on continuous exposure to a hazardous substance, the date of the injury is the day on which the plaintiff was last exposed to the hazardous substance causing the injuries'). See also Payton v. Monsanto Co., 801 So. 2d 829 (Ala. 2001). "Proposals to adopt a discovery rule or to redefine when a cause of action accrues in toxic- substance-exposure cases have been introduced in the legislature, but those proposals have not been enacted. See Senate Bill 535 (2006 Regular Session) (expanding Ala. Code 1975, § 6-2-30(b), to provide that a civil action for any injury to the person resulting from exposure to 'any toxic substance' shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury); House Bill 660 (2005 Regular Session) (proposing a constitutional amendment to provide that a civil cause of action for exposure to toxic substances shall be deemed to accrue on the date the injured party should have reason to discover the injury giving rise to the cause of action); and House Bill 103 (2004 Regular Session) (providing that an action for breach of warranty or for injury caused by the 'latent' effects of exposure to 'substances' must be brought within two years from the date the injury is discovered or, by the exercise of reasonable diligence, should have been discovered). "On some level, all statutes of limitations can lead to harsh results. On the other hand, the absence of statutes of limitations, or statutes of limitations that allow the litigation of exceedingly 1061214 17 old and stale cases, can also lead to harsh results. Given the various types of toxic substances and injuries that could result from exposure to such substances, the science involved in detecting and diagnosing injuries or the manifestation of injuries resulting from such exposure, and the public-policy considerations that must be taken into account, I believe the legislature is better equipped than is this Court to formulate a proper definition of 'accrued' in these types of cases. The legislature has certain fact-finding and investigative capabilities that this Court lacks; it is thus in a better position to weigh the countervailing public- policy considerations inherent in properly determining 'how long is too long.' See Leonard v. Terminix Int'l Co., 854 So. 2d 529, 534 (Ala. 2002)(holding that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama); Berdeaux v. City Nat'l Bank of Birmingham, 424 So. 2d 594, 595 (Ala. 1982) (declining to create a duty requiring banks to provide protection for customers using automatic teller machines because to do so 'would require data that a court is ill equipped to gather, but which the legislature is especially capable of assessing' and noting that '[t]he issue itself presents a policy matter peculiarly within the province of the legislative as opposed to the judicial branch of government'); and Matthews v. Mountain Lodge Apartments, Inc., 388 So. 2d 935, 938 (Ala. 1980) (plurality opinion) (stating that the legislature--through hearings and other fact-finding procedures--is better equipped to accurately weigh various factors in creating law in accord with public policy). "Given the long history of Garrett, the difficulty in crafting a proper definition of 'accrued' in toxic-substance-exposure cases, along with the public-policy considerations that must be taken into account in formulating such a definition, and the legislature's specific prior action in 1061214 18 asbestos-exposure cases, I believe that the legislature is the more appropriate body to impose a new rule. _________________ " Act No. 80-566 was also challenged as 5 unconstitutional, and part of it was declared unconstitutional. See Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala. 1981). However, unlike Act No. 79-468, it did not contain a clause nullifying the entire act if a portion were found to be invalid. Thus, the discovery rule provided by Act No. 80-566 in asbestos-exposure cases remains operable." Cline, ___ So. 2d at ___ -___ (Smith, J., concurring specially). I continue to adhere to my special writing in Cline. Bolin, J., concurs. 1061214 19 APPENDIX HARWOOD, Justice (dissenting [from the no-opinion affirmance in Cline v. Ashland, Inc., [Ms. 1041076, January 5, 2007] ___ So. 2d ___, ___ (Ala. 2007)]). In their special concurrences to this Court's decision [in Cline] to affirm the trial court's summary judgment in this appeal without an opinion, Justice See and Justice Smith emphasize that it is the role of the legislature, not this Court, to declare public policy. I quite agree. Indeed, the legislature has already acted and declared the public policy applicable to this case, by means of the interaction of two provisions of the Code of Alabama. Section 6-2-30(a), Ala. Code 1975, provides, in pertinent part, that "[a]ll civil actions must be commenced after the cause of action has accrued within the period prescribed ... and not afterwards ...." Section 6-2-38(l), Ala. Code 1975, provides that an action of the type Jack Cline has filed "must be brought within two years." Therefore, the legislatively declared public policy is that an action such as Cline's can be filed (within the two-year limitations period) only after the cause of action has accrued. By this dissent, I do not presume to advocate a contrary public policy; I simply attempt to honor 1061214 20 the public policy the legislature has declared, by correctly construing the statutory language "cause of action has accrued" in § 6-2-30(a) in accord with traditional principles of tort law. Neither special concurrence takes the position that the construction given that language in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), was in accord with those principles and true to the legislature's intent. They simply take the position, in support of which they offer reasoned argument, that any change from the rule set out in Garrett must, at this late date, be left exclusively to the legislature. For the reasons I set forth hereinafter, I respectively disagree. First, however, these three miscellaneous points: Although Justice See [in his special writing in Cline] fairly states the basic facts underlying Cline's tort claim, it is appropriate to note that it is undisputed that acute myelogenous leukemia can be caused by exposure to benzene, which this Court described in Shell v. Union Oil Co., 489 So. 2d 569, 570 (Ala. 1986), as "a carcinogen known to cause leukemia." Also, Cline made the alternative argument before 1061214 21 the trial court and on original submission on this appeal that his "last exposure" in 1999 to benzene contained in the product of an alleged "joint tortfeasor" of the present appellees should serve to delay the running of the statute of limitations as to them as well. Because this contention was not revisited in Cline's brief in support of his application for rehearing, it was thereby waived and will not now be considered. Birmingham News Co. v. Horn, 901 So. 2d 27, 77 (Ala. 2004). Last, the defendants have not attempted to argue that the natural history of acute myelogenous leukemia is such that Cline must have been suffering from it, i.e., that he must have actually experienced a manifest, present injury in connection with it, before his October 7, 1999, diagnosis. Accordingly, Cline's action filed on April 6, 2001, was timely under the two-year statute of limitations, if the commencement of the running of that statute is measured from October 7, 1999, or any other time within two years before April 6, 2001. Relevant Caselaw and Legislation In Garrett, supra, Jerry Kenneth Garrett filed an action in 1978 against seven companies he alleged had designed, manufactured, or serviced certain radar systems with which he 1061214 22 had had contact from 1955 to 1957; he asserted that because of the defective condition of those systems, he unknowingly had been exposed to massive dosages of dangerous radiation. He had experienced no symptoms or health problems until March 1975. He then consulted numerous doctors, but the nature of his problems was not diagnosed until March 1977 when a radiologist advised him that his problems were the result of his earlier radiation exposure. Garrett's action was filed within one year of that diagnosis, but more than one year after the first manifestation of his health problems and more than two decades after his last exposure to the radiation. Then, as now, § 6-2-30, Ala. Code 1975, required that all civil actions must be commenced within the statutorily prescribed limitations period "after the cause of action has accrued" (emphasis supplied). The then applicable statute of limitations, former § 6-2-39(a)(5), required "[a]ctions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section" to be commenced within one year from accrual. (That provision was recodified as § 6-2-38(l) when the limitations period was increased to two years in 1985.) 1061214 23 The opinion of the five-member Garrett majority (four Justices dissented) commenced: "When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure? We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs." 368 So. 2d at 517-18 (emphasis supplied). However, the majority then collapsed injury into exposure, holding that "the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered." The Court justified this conclusion by stating, "[i]f plaintiff was not injured in 1955-1957 then defendant committed no negligent act at that time which resulted in injury and defendant would not be liable. If plaintiff did become injured or damaged at that time, then the statute of limitations has run." 368 So. 2d at 521. The Court similarly reasoned, "[d]amage must have occurred at the time of exposure else defendant would not be liable. It is simply that all the progressive nature of the injury has not made itself manifest at the time of the last 1061214 24 exposure." 368 So. 2d at 520. As Justice Shores observed in her dissent, "[t]he majority opinion assumes that the injury occurred simultaneously with the plaintiff's exposure to the radiation." 368 So. 2d at 526. She disagreed, stating that "[t]he defendant's exposure of the plaintiff to radiation would not create a cause of action in the plaintiff until injury resulted from that exposure." 368 So. 2d at 526. Justice Jones in his dissenting opinion on application for rehearing likewise explained that the holding of the majority "reduces date of injury (and thus accrual of the cause of action) to a legal conclusion without regard to when the injury in fact occurs." 386 So. 2d at 528. Leading up to its conclusion that "[t]he injury in this case occurred on the date or dates of exposure," 368 So. 2d at 520, the majority acknowledged that "there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff's injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action accrues, and the statute of limitation begins to run, 'when, and only when, the damages are sustained.'" 368 So. 2d at 519. The countervailing rule was explained by the Court as follows: 1061214 25 "'"If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage (then apparent) however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action."'" 368 So. 2d at 519 (quoting Home Ins. Co. v. Stuart-McCorkle, 291 Ala. 601, 608, 285 So. 2d 468, 473 (1973), quoting in turn Kelley v. Shropshire, 199 Ala. 602, 604-05, 75 So. 291, 292 (1917)). The majority's explanation that Garrett's radiation exposure fell within the second class of cases because the "defendant committed no negligent act at that time which resulted in injury and defendant would not be liable," 368 So. 2d at 521, and "[d]amage must have occurred at the time of exposure else defendant would not be liable," 368 So. 2d at 520, seems to me to be no more than circular reasoning that ignores the first class of cases. Indeed, to my best attempt to follow the reasoning of the Garrett majority, it represents judicial public policy-making of the type the majority in this case now rightfully decries. 1061214 26 In selecting "last exposure" as the accrual date, the Garrett Court relied upon three of its prior decisions and a federal case: Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937); American Mut. Liab. Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Garren v. Commercial Union Ins. Co., 340 So. 2d 764 (Ala. 1976); and Minyard v. Woodward Iron Co., 81 F. Supp. 414 (N.D. Ala. 1948), aff'd 170 F.2d 508 (5th Cir. 1948). Howell simply commented in connection with its review of a lower court's order abating a nuisance caused by the overflow of sewage but failing to award any monetary damages, as follows: "It may not be out of place to observe, as to damages that are recurring and separable, that the right to recover, as to such damages not barred by statute, is not affected by the fact that other damages of the same character are barred by statute, provided the damages sustained within the statutory period are separable from those that are barred under the statute by the lapse of time." 234 Ala. at 162, 174 So. at 628. There was no issue in the case about when each item of damage had occurred. In Agricola Furnace, the plaintiff in the lawsuit underlying his employer's declaratory-judgment action against its insurer alleged that he had contracted silicosis and 1061214 27 tuberculosis by his exposure to dust and metal particles in his 10 years of employment. The plaintiff claimed that "along about the first of May 1936 while so engaged [in his employment] he was made sick in that way," although his sickness "did not appear suddenly, violently or by accidental means but gradually appeared to grow progressively worse as a result of said continuous effect of said dust and particles of metal ...." 236 Ala. at 537, 183 So. at 678. The Court stated its understanding of the employee's complaint to be that his exposure was continuous, "but that in May 1936 he was for that cause made sick." 236 Ala. at 537, 183 So. at 679. The employee filed his action in November of that year; thus, there was no issue of its timeliness vis-à-vis the stated date of injury. The Court held that a tort "may be of a continuous sort, and, if so, a recovery may be had for all damages which occurred within the period of limitations," and that such a continuous tort could qualify as "an accident" under an insurance policy, "however difficult it may be to separate the amount of the damages done within the period of the statute of limitations from that occurring in the period preceding." 236 Ala. at 538, 183 So. at 679. 1061214 28 In Minyard, the federal district judge awarded the plaintiff, who had been exposed to silica dust from November 1945 until he quit his job for health reasons in September 1946, monetary damages representing the aggravation by that exposure of the employee's preexisting "silicotic condition." The judge held that Alabama's one-year statute of limitations "began to run from the last date on which plaintiff inhaled silica dust while employed by defendant ...." 81 F. Supp. at 417. Citing Howell and Agricola Furnace, among other cases, the judge concluded that under Alabama caselaw "a recovery may be had for injury resulting from a continuous tort subject to the limitation that only damages which occurred within the period of limitations may be recovered, provided that the damages sustained within the statutory period are separable from those that are barred under the statute by the lapse of time." 81 F. Supp. at 417. The United States Court of Appeals for the Fifth Circuit affirmed the district court's judgment, stating simply that it found no merit in the defendant's contention that the action was barred by Alabama's one-year statute of limitations. Woodward Iron Co. v. Minyard, 170 F.2d 508 (5th Cir. 1948). 1061214 29 Garren was a third-party-tortfeasor action by an employee who had suffered pulmonary injury "as a consequence of continuously breathing dust and lint" emanating from a machine she had operated on her job for several years, until she was forced to quit work on April 23, 1974. On April 22, 1975, she sued the manufacturer of the machine on a products-liability theory and her employer's insurance carrier on a negligent- safety-inspection theory. "Both defendants were granted partial summary judgments on the grounds that plaintiff's claims for relief, seeking to recover damages for injuries suffered more than one year prior to April 22, 1975, are barred by the one-year statute of limitations; further, any damages to which plaintiff might otherwise be entitled could not include those for any injuries suffered by plaintiff more than one year prior to April 22, 1975. Plaintiff appeals from these partial summary judgments. Rule 54(b), [Ala. R. Civ. P.]." 340 So. 2d at 766. Thus, the issue in Garren was not when the statute of limitations had been triggered, but simply whether the plaintiff could recover damages for an injury that had occurred more than one year before the date she sued. Given the fact that plaintiff's right to file a third-party action arose out of the Workmen's Compensation Act, the Court 1061214 30 reasoned that "the statute of limitations begins to run from the date of the injury, which is defined in [Code of Alabama, Tit. 26,] § 313(42) [of the Workmen's Compensation Act] as the date of the last exposure to the hazards of the disease which gave rise to the injury." 340 So. 2d at 765. That Code section (recodified at the time of Garrett as § 25-5-117) provided that for the purpose of bringing a workmen's compensation claim, "[t]he date of the injury shall mean ... the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease." However, as Justice Jones emphasized in his dissent in Garrett and his extended dissent on denial of application for rehearing in that case, the Garren Court's reliance on the workers' compensation Code section was "misplaced because the third-party common law action in Garren does not draw upon the Workmen's Compensation Act for its definition of date of injury." 368 So. 2d at 525. Justice Jones pointed out that if the Workmen's Compensation Act definition of date of injury had in fact applied, Garren should have been decided differently because under the Workmen's Compensation Act Ms. 1061214 31 Garren would have been entitled to recover her full injuries, not just those incurred during the one-year period preceding the filing of her complaint. Justice Faulkner likewise explained in his dissent in Garrett that "to engraft this [Workmen's Compensation Act] statutory scheme on unrelated common law claims is illogical and unsupported." 368 So. 2d at 523. Recognizing the harsh effect of its holding, the Garrett majority encouraged the legislature to consider adopting a "discovery" rule, "so that a plaintiff's claim will not be barred when he has no way to ascertain that he has been damaged by a deleterious substance because the result has not manifested itself until the statute of limitations has run." 368 So. 2d at 521 (emphasis supplied). Noting that the legislature "'has the inherent power to determine the date and time within which an action may be brought unless the time fixed is clearly arbitrary or unreasonable,'" 368 So. 2d at 520 (quoting an earlier case), the Court stated: "It may be that Alabama's rejection of the 'Discovery Rule' is contrary to the weight of opinion generally. However, as this Court is committed to the proposition that the legislature has the inherent power to establish statutes of limitation, we have no other alternative than to 1061214 32 leave it to the legislature to abrogate this rule and adopt a more equitable one should it see fit ...." 368 So. 2d at 521. Justice Shores in her dissent joined the majority in inviting the legislature to remedy the situation. The legislature attempted to do just that later that year, enacting Act No. 79-468, Ala. Acts 1979, now codified as §§ 6-5-500 through -504. The legislation represented "a comprehensive system consisting of the time for commencement of actions, for discoverability of actions based on insidious disease and the repose of actions" and "a complete and unified approach to the time in which product liability actions" might be brought. § 6-5-500. It contained, among other things, a "rule of discovery" whereby latent-injury cases resulting from exposure to toxic substances over a period of time could be brought within one year from the date that the injury "is or in the exercise of reasonable diligence should have been discovered by the plaintiff," and the cause of action was "deemed to accrue" at that time. § 6-5-502(b). Section 6-5- 503 stated that the legislation would "apply only to product liability actions, wherein each element accrues after the effective date of this division, and no provision of this 1061214 33 division shall have retroactive application." The legislature also included a 10-year absolute rule of repose measured from the date the product was first put to use, § 6-5-502(c), but that feature was declared unconstitutional in Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996 (Ala. 1982). This Court's decision in Lankford had the result of invalidating the entire act, because § 6-5-504 provided that "each section, clause, provision, or portion" of the act was to be deemed "inseparable and nonseverable from all others," and in the event any aspect of the legislation was declared invalid or unconstitutional "the entire [Act] and each section, clause, provision, or portion thereof shall be inoperative and have no effect." Therefore, after Lankford Act No. 79-468 was a "dead letter." In 1980 the legislature enacted Act No. 80-566. Section 2 of that act, now codified as § 6-2-30(b), provides that asbestos-exposure claims "shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action." Although Section 3 of Act No. 80-566, stating that following its effective date the act would "apply 1061214 34 retroactively to all pending causes of action," was held unconstitutional in Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263 (Ala. 1981), as violating § 95, Ala. Const. 1901, the prospective "discovery rule" feature remains viable. Bills providing for the adoption of the discovery rule in all hazardous-exposure cases have been proposed in the legislature for at least the last three years, but have not been passed; Senate Bill 534 and Senate Bill 535 (2006 Regular Session); House Bill 659 and House Bill 660 (2005 Regular Session); and House Bill 93 and House Bill 103 (2004 Regular Session). In his dissent in Garrett, Justice Jones noted the potentially anomalous result that logically could flow from the artificiality of the "last exposure" rule of accrual: "The holding of the majority says, or it may be fairly interpreted to say, that one so exposed can bring his action within the year of last exposure and be entitled to at least nominal damages without medical proof of radiation damage -- injury being presumed as a matter of law; or, having timely filed his claim, he may be able to delay trial to await the manifestations of injury and medical proof." 368 So. 2d at 528 (footnote omitted). The flawed artificiality of the Garrett Court's choice of the last-exposure rule was evident when this Court had to apply it to the particular facts in Hillis v. Rentokil, Inc., 1061214 35 596 So. 2d 888 (Ala. 1992). The plaintiff there suffered physical injury as a result of his exposure to chromated copper arsenate during the course of his employment from September 1985 to December 31, 1987, when his employment was terminated. His adverse physical symptoms had manifested well before that "last exposure," however, and he had actually been diagnosed by a doctor on September 25, 1987, who advised him "to see a dermatologist because of an allergic reaction to the [chromated copper arsenate]." 596 So. 2d at 889. He did not file suit until November 15, 1989. Relying on the traditional rule that the running of the statute of limitations is triggered by the first actual damage, the defendant argued that the limitations period had begun to run, at the latest, by September 25, 1987, when the plaintiff's physical symptoms had progressed to the point that he had returned to see his doctor and had, in effect, received a diagnosis. Constrained by the Garrett last-exposure rule, however, this Court held that because the action was filed within two years after the date of last exposure, it was timely. Thus, in Hillis the last-exposure rule became a sword instead of a shield; an individual whose cause of action had clearly accrued under the 1061214 36 conventional common-law approach, because he had experienced a manifest, present injury, was given the protection of the "last exposure equals first injury" rule of Garrett. Although, as Justice See notes, this Court has consistently chosen to continue to follow in subsequent cases the last-exposure rule of Garrett, it has done so simply by accepting that holding at face value, under the constraint of stare decisis, without any reexamination of its underlying rationale. Garrett's last-exposure rule is purely a "court made" rule, because § 6-2-30 then provided, and § 6-2-30(a) now provides, only that civil actions must be commenced within the applicable limitations period "after the cause of action has accrued." The Garrett Court simply declared, as a matter of policy rather than scientific fact, that a toxic-exposure cause of action accrues contemporaneously with the last exposure to the toxic substance, it being judicially deemed that an injury has occurred at that time as a matter of law. Neither Garrett nor any of its progeny articulate any scientific basis for that conclusion, and certainly the defendants in the present case do not argue that benzene 1061214 37 exposure, even up through a last exposure, is known to cause concurrently some actual damage at the cellular level or otherwise to inflict an objectively ascertainable bodily injury. Although it is undisputed that "the Legislature has the inherent power to enact a statute of limitations establishing the period within which a claim must be brought," Baugher v. Beaver Constr. Co., 791 So. 2d 932, 934 n.1 (Ala. 2000), the question presented by this appeal is whether this Court should reexamine its construction in Garrett of the operative phrase in § 6-2-30, "after the cause of action has accrued" and interpret it differently than it did in Garrett for toxic- substance-exposure cases. The Doctrine of Stare Decisis, and When Change in the Law is the Role of the Judiciary "Stare decisis is '[t]he doctrine of precedent under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.' Black's Law Dictionary, 1443 (8th ed. 2004)." Goldome Credit Corp. v. Burke, 923 So. 2d 282, 292 (Ala. 2005). As we explained in Burke: 1061214 38 "Stare decisis, however, 'is a golden rule, not an iron rule.' Ex parte Nice, 407 So. 2d 874, 883 (Ala. 1981) (Jones, J., dissenting). At times 'this Court has had to recognize ... that it is necessary and prudent to admit prior mistakes and to take the steps necessary to ensure that we foster a system of justice that is manageable and that is fair to all concerned.' Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997). As Justice Maddox has stated: '[W]hile 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."' Ex parte State Farm Fire & Cas. Co., 764 So. 2d 543, 545-46 (Ala. 2000) (emphasis added) (quoting Beasley v. Bozeman, 294 Ala. 288, 291, 315 So. 2d 570, 572 (1975) (Jones, J., concurring specially)). See also Ex parte Melof, 735 So. 2d 1172, 1186 (Ala. 1999) ('"'courts are not bound by stare decisis to follow a previous interpretation [that is] later found to be erroneous'"' (quoting Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So. 2d 633, 638 (Ala. 1993), quoting in turn 2B Norman J. Singer, Sutherland Statutory Construction § 49.05 at 16 (5th ed. 1992)))." 923 So. 2d at 292-93. Admittedly, we stated in Hexcel Decatur, Inc. v. Vickers, 908 So. 2d 237, 241 (Ala. 2005), that "[w]hen revisiting this Court's interpretation of a statute, we will afford greater deference to the doctrine of stare decisis than we would if asked to revisit an interpretation of a constitutional provision." Nonetheless, this Court on a number of occasions 1061214 39 has felt obliged to correct its earlier statutory construction, including Burke, supra. For example, in Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997), one of the issues presented was when a fraud cause of action "accrued" under Ala. Code 1975, § 6-2-30(a), so as to trigger the running of the limitations period of § 6-2-38(l). Before 1989, the Court had construed the term "accrued" in that context to mean that "a fraud claim accrued, thus commencing the running of the statutory limitations period, when the plaintiff discovered the fraud or when the plaintiff should have discovered the fraud in the exercise of reasonable care." 693 So. 2d at 417. Under the combined effect of Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), and Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d 458 (Ala. 1991), that judicial interpretation was changed so that the theretofore recognized "reasonable reliance" standard was replaced by a "justifiable reliance" standard. Under that new construction, a person's reliance was to be judged only by what he or she actually knew of facts that would have put a reasonable person on notice of fraud. 693 So. 2d at 418. The Court determined in Parham, supra, that the reasonable-reliance standard had in 1061214 40 fact been the proper construction for the statutory term "accrued" and overruled Hickox and Hicks on that point. In doing so, the Court declared: "Although this Court strongly believes in the doctrine of stare decisis and makes every reasonable attempt to maintain the stability of the law, this Court has had to recognize on occasion that it is necessary and prudent to admit prior mistakes and to take the steps necessary to ensure that we foster a system of justice that is manageable and that is fair to all concerned. See, e.g., Jackson v. City of Florence, 294 Ala. 592, 598, 320 So. 2d 68, 73 (1975), in which Justice Shores, writing for this Court, stated: '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.'" 693 So. 2d at 421. The Court further held in Parham, however, that "[b]ecause this return to the reasonable reliance standard represents a fundamental change in the law of fraud, we think it appropriate to make the new standard applicable in all fraud cases filed after the date of this decision, i.e., all cases filed after March 14, 1997." 693 So. 2d at 421. In Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975), the plaintiff/appellant sought "a re-evaluation of this court's construction" of a statute, acknowledging that in order for the plaintiff/appellant to prevail, the Court would 1061214 41 have to overrule a line of cases extending for more than 60 years following the 1907 enactment of the statute. The interpretation accorded the statute during that period had occasioned opinions employing what the Jackson Court labeled a "judicial sleight of hand," the necessity for which "could have been avoided entirely by giving to the 1907 legislative enactment its clear meaning." 294 Ala. at 597, 320 So. 2d at 72. In choosing to correct its erroneous construction of the statute, despite the fact that the legislature had reenacted the statute without change as a part of its adoption of the Codes of 1923 and 1940, the Court had the following to say: "No one believes in the validity of the rule of stare decisis and the necessity for stability in the law more than we do. ... ".... "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. The city here argues that the failure of the legislature to act in this area constitutes its approval of the construction placed on its enactments by this court. It is equally arguable, as noted by Justice Currie, concurring specially in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618, 626 (1962), that '... they (the legislature) deferred to the supposed wisdom of the court, or else determined that the court should correct its own mistakes,' or as Judge Moremen of the Court of Appeals of Kentucky responded to the 1061214 42 same argument in Haney v. City of Lexington, (Ky.), 386 S.W.2d 738, 741 (1964): "'... It seems to us that an equally reasonable assumption is that the legislature might expect the courts themselves to correct an unjust rule which was judicially created. ...'" 294 Ala. at 597-98, 320 So. 2d at 73. More recently, we explained in Ex parte State Farm Fire & Casualty Co., 764 So. 2d 543, 545-46 n. 3 (Ala. 2000): "'... 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. Certainty is desirable only insofar as it operates to produce the maximum good and the minimum harm and thereby to advance justice.... 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.'" In Lloyd v. Service Corp. of Alabama, Inc., 453 So. 2d 735 (Ala. 1984), the Court, having determined that a change from the law as previously declared by it was necessary, proceeded to determine whether the change "should be effected by the judiciary." 453 So. 2d at 740. The Court's analysis of that issue was as follows: 1061214 43 "First, the judiciary originally created this rule of law. It has not been altered, amended, or expanded upon by our legislative body. In this circumstance, where a judicial creation has become outmoded or unjust in application, it is more often appropriate for the judicial body to act to modify the law. Further, it is not uncommon for the Legislature to defer to the court's wisdom regarding such a rule of law. See Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68, 73 (1975); Haney v. City of Lexington, 386 S.W.2d 738, 741 (Ky. 1964); and Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 626 (1962). McAndrew v. Mularchuk, 33 N.J. 172, 193, 162 A.2d 820, 832 (1960). "Second, this is a tort law issue. An unjust tort law may indirectly affect every citizen of the state, but it will almost never directly affect enough people at any given point in time to generate a great deal of attention. It is not likely, therefore, to be placed on the Legislature's crowded agenda for consideration. For that reason, tort law issues are, when certain other factors are present, proper subjects for judicial reform. "Last, when it has determined that a judicially created law is unjust in its application, this court cannot long permit itself to be used as an instrument of inequity by refusing to act to change the law. To do so undermines our credibility in the public perception. The judicial branch of government cannot avoid action. It must continuously apply the law to resolve the conflicts between citizens of this state. To continue to apply a judicially created rule this court has recognized as obsolete and unjust is a violation of its integrity." 453 So. 2d at 740. Given the legislative history recited earlier, particularly the legislature's prompt response to this Court's 1061214 44 decision in Garrett by enacting Act No. 79-468 (Ala. Code 1975, §§ 6-5-500 through -504) so as to register its disagreement with the holding in Garrett, I do not view the legislature's failure to act further than it has done in this area to constitute its approval of the construction this Court has placed on the statutory term "accrued" in toxic-exposure cases. Since Garrett, this Court has again and again reaffirmed the proposition acknowledged but ignored in Garrett -- that there are cases where the defendant's act does not cause a contemporaneous injury to the plaintiff, but an injury later manifests as a result of, and in furtherance and subsequent development of, the defendant's act. See, e.g., Ex parte Stonebrook Dev., LLC, 854 So. 2d 584 (Ala. 2003); Hinton ex rel. Hinton v. Monsanto, 813 So. 2d 827 (Ala. 2001); Payton v. Monsanto, 801 So. 2d 829 (Ala. 2001); Ex parte Floyd, 796 So. 2d 303 (Ala. 2001); System Dynamics Int'l, Inc. v. Boykin, 683 So. 2d 419 (Ala. 1996); Smith v. Medtronic, Inc., 607 So. 2d 156 (Ala. 1992); and Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala. 1982). In Hinton, the Court was asked in a certified question from a federal district court whether Alabama law recognized a cause of action for medical 1061214 45 monitoring following hazardous-substance exposure when the plaintiffs were not claiming any present injury or illness. Based on that precise set of facts, the Court concluded that Alabama law "provides no redress for a plaintiff who has no present injury or illness" because, as the plurality opinion explained, "Alabama law has long required a manifest, present injury before a plaintiff may recover in tort." 813 So. 2d at 831-32, 829. In his special writing concurring in the result, which I joined, Justice Lyons observed: "Turning to the question as phrased by the district court, this Court, dealing with a similar issue involving the accrual of a cause of action for radiation exposure, stated the question as follows: 'When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure?' Garrett v. Raytheon Co., 368 So. 2d 516, 517-18 (Ala. 1979). This Court then answered the question as follows: 'We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs.' Id. (emphasis added). Recently, in Payton v. Monsanto Co., 801 So. 2d 829, 835 (Ala. 2001), this Court quoted Ex parte Floyd, 796 So. 2d 303, 308 (Ala. 2001): "'"Thus, if the act complained of does not in and of itself constitute a legal injury on the date on which it was performed, the cause of action does not accrue on that date. It is only when the first legal injury occurs that the cause of action 1061214 46 accrues and the limitations period begins to run."'" 813 So. 2d at 832. In Southern Bakeries, Inc. v. Knipp, 852 So. 2d 712 (Ala. 2002), addressing the issue of what constitutes an "injury" under § 6-2-30(b), Ala. Code 1975, sufficient for a cause of action for exposure to asbestos to accrue, the Court had this to say: "Alabama has long required a manifest, present injury before a plaintiff may recover in tort.7 Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala. 2001); see also DeArman v. Liberty Nat'l Ins. Co., 786 So. 2d 1090 (Ala. 2000); Stringfellow v. State Farm Life Ins. Co., 743 So. 2d 439 (Ala. 1999); Williamson v. Indianapolis Life Ins. Co., 741 So. 2d 1057 (Ala. 1999); Ford Motor Co. v. Rice, [726 So. 2d 626 (Ala. 1998)]; Pfizer, Inc. v. Farsian, 682 So. 2d 405 (Ala. 1996). The plaintiff in Hinton did not allege that he sustained a physical injury or an illness as a result of his exposure to polychlorinated biphenyls ('PCBs'); instead, he sought to recover the cost of medical monitoring he alleged was made necessary by his exposure to PCBs. 813 So. 2d at 828. In Hinton, a plurality of this Court held that Alabama law provides no redress for a plaintiff who has suffered no present injury or illness. 813 So. 2d at 831-32. "________________ " It is a basic principle of tort law that in 7 negligence cases, the plaintiff must suffer actual injury; the threat of future harm, not yet realized, is not enough. W. Page Keeton et al., The Law of Torts § 30 at 165 (5th ed. 1984). ..." 1061214 "Catch-22: a frustrating situation in which one is 6 trapped by contradictory regulations or conditions." Random House Webster's Unabridged Dictionary (2d ed. 2001). 47 852 So. 2d at 716-17. As things now stand, and as left in place by the majority in [Cline], the law in this State would seem to be this: A person exposed to a toxic substance having the potential to cause disease on a delayed basis, but who has suffered no manifest, present injury within two years thereafter, may not file an action within that two-year period. Hinton, supra; Southern Bakeries, supra. If, after two years, that same person in fact suffers an injury from the exposure and files an action, the action will be dismissed on the basis that it should have been filed earlier. Thus, no matter when the person attempts to file the action, it is either too soon or too late. This is a classic Catch-22, and one that would 6 seem to violate Art. 1, § 13, Ala. Const. 1901, which provides, in pertinent part, "that every person for any injury done him ... shall have a remedy by due process of law." Perhaps, however, I am mistaken in understanding that the interaction of the rule in Garrett and our more recent caselaw serves to disallow the maintenance of a personal-injury tort 1061214 48 claim after exposure to a toxic substance but in advance of a manifest, present injury. After all, as noted earlier, Justice Jones forecast in his dissent in Garrett that "one so exposed can bring his action within the year [now two years] of last exposure without medical proof of ... damage -- injury being presumed as a matter of law." 368 So. 2d at 528. In fact, the defendants embraced this view of the Garrett rule when they asserted in their initial brief to this Court that Cline "was entitled to sue these defendants for his exposure to benzene at Griffin Wheel from the first day he was exposed to benzene there to any time up to and including the day two years after he was last exposed there to benzene supplied by the defendants ...." (Appellee's brief, p. 43.) If this then is the correct state of the law, why could not the plaintiff in such a situation, after asserting a "Garrett injury," claim as additional damage mental anguish stemming from his or her fear of subsequently developing disease? And why could not the plaintiff in such a case, if asserting claims of fraudulent suppression, misrepresentation, and/or wantonness (as in Southern Bakeries, supra), additionally maintain a 1061214 49 demand for punitive damages? All without any proof of any manifest, present injury. The number of persons eligible to file an action if all that is required is some period of exposure to a toxic substance is potentially huge. See Ex parte BASF Corp., [Ms. 1051060, Oct. 27, 2006] ___ So. 2d ___ (Ala. 2006) (1,600 plaintiffs); Ex parte Flexible Prods. Co., 915 So. 2d 34 (Ala. 2005) (1,675 plaintiffs); and Ex parte Monsanto Co., 862 So. 2d 595 (Ala. 2003) (3,500 plaintiffs). I submit that under either view of the implications of the Garrett rule, the law is confounded; thus, a continued blind obedience to that rule, simply in deference to stare decisis, does not serve the law, but rather greatly disserves it. As the Court explained in Ex parte First Alabama Bank, 883 So. 2d 1236, 1245 (Ala. 2003): "Justice Houston, writing specially in Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala. 1989), embraced a useful standard for weighing the need for change against the advantages of settled principles of law under the doctrine of stare decisis. He posed the question as follows: whether the ratio decidendi of earlier precedent would '"hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by [that] rule of law?"' Southern States Ford, Inc., 1061214 50 541 So. 2d at 1093 (quoting Laun, Stare Decisis, 25 Va. L.Rev. 12, 22 (1938))." Surely the conscience and feeling of justice of the majority of those whose obedience would be required to a rule that says an action filed by a victim of delayed-onset injury from toxic-substance exposure will always be disallowed as either premature or too mature would be shocked. On the other hand, similar shock would surely be the reaction of the majority of those required to accept a rule that would permit anyone and everyone exposed to a toxic substance to maintain a tort action even though that person had not yet suffered, and statistically would probably never suffer, any health problem as a result of that exposure. Based on the foregoing analyses, I conclude that the Garrett construction of the § 6-2-30(a) phrase "after the cause of action has accrued" in toxic-substance-exposure situations should be corrected, that it should be corrected now, and that this Court should undertake the correction rather than abdicating that responsibility to the legislature. Construction of "Accrued" The proper construction of the term "accrued" in § 6-2- 30(a) in the context of toxic-substance-exposure cases should 1061214 51 honor the rule that a cause of action accrues only when there has occurred a manifest, present injury. I understand "manifest" in this context to mean an injury manifested by observable signs or symptoms or the existence of which is medically identifiable. "Manifest" in this sense does not mean that the injured person must be personally aware of the injury or must know its cause or origin. All that is required is that there be in fact a physical injury manifested, even if the injured person is ignorant of it for some period after its development. This approach is mandated by the rule stated as early as Kelly v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917), and as late as Gilmore v. M&B Realty Co., LLC, 895 So. 2d 200, 208 (Ala. 2004), and on innumerable occasions in between, that "plaintiff's ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, [does not] postpone the running of the statute [of limitations] until the tort or injury is discovered." An oft- declared companion rule is that "this Court will not apply the discovery rule unless it is specifically prescribed by the Legislature." Travis v. Ziter, 681 So. 2d 1348, 1354 (Ala. 1996). 1061214 52 We operate within our proper sphere when we undertake to determine the construction that should be ascribed to the legislatively prescribed term "accrued" in § 6-2-30(a); we would operate outside that sphere were we to attempt to add to the text of § 6-2-30(a) so as to superimpose some sort of discovery feature. Thus, I reject the notion that our prior and present requirement of a "manifest," present injury means that the injury must be obvious to and known by the injured party. That would simply represent the creation of a type of discovery rule. I reaffirm that creation of a discovery rule lies within the province of the legislature, which is equipped to weigh the competing public-policy arguments and to fashion variations of discovery principles tailored to the particular nature of each affected cause of action. The legislature has shown its special capability in that regard by structuring variations of discovery features in the following statutes: § 6-2-3; § 6-2-30(b); § 6-5-482; § 6-5-502(b); § 6-5-574(a); § 7-2A-506(2); § 8-19-14; § 8-26A-16(c); and § 8-27-5. Thus, as used in the phrase "manifest, present injury," the word "manifest" designates a condition that has evidenced itself sufficiently that its existence is objectively evident 1061214 53 and apparent, even if only to the diagnostic skills of a physician. "An injury manifests itself 'when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury.' (Marriage & Family Center v. Superior Court (1991) 228 Cal. App. 3d 1647, 1654 [279 Cal. Rptr. 475])." Photias v. Doerfler, 45 Cal. App. 4th 1014, 1021, 53 Cal. Rptr. 2d 202, 206 (1996), abrogated on other grounds by Arredondo v. Regents of Univ. of Cal., 131 Cal. App. 4th 614, 619, 31 Cal. Rptr. 3d 800 (2005). Moreover, this case does not properly present the issue whether a discovery feature should apply, because Cline claims that his injury occurred on the date of his diagnosis of acute myelogenous leukemia, and there is no present argument by the defendants that the actual onset of the disease had accrued at some earlier time. The defendants argue that apart from the statute-of- limitations issue there were failure-of-proof bases on which the trial court should have entered a summary judgment in their favor, and this Court could rely on those bases to affirm that judgment. They acknowledge that the trial court did not reach those issues, but they invoke the principle of 1061214 54 appellate procedure that this Court may affirm the judgment of a trial court on any valid ground presented by the record, regardless of whether the ground was considered, or even if it was rejected, by the trial court. See Unum Life Ins. Co. of America v. Wright, 897 So. 2d 1059, 1082 (Ala. 2004). Because I would not affirm the summary judgment here based on a statute-of-limitations ground, it behooves me to explain why I do not explore the option of affirming that judgment based on other grounds. This Court unhesitatingly resorts to the device of affirming a trial court's judgment on an alternative basis if to do otherwise would have us apply an incorrect rule of law to the parties' circumstances. See Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 960 (Ala. 2004). Nonetheless, the decision to affirm a trial court's ruling on an alternative basis is discretionary with the appellate court. E.g., Tualatin Valley Builders Supply, Inc. v. TMT Homes of Oregon, Inc., 179 Or. App. 575, 41 P.3d 429 (2002); Frady v. Morrow, 169 Or. App. 250, 255-56, 9 P.3d 141, 144 (2000); and Busch v. Graphic Color Corp., 169 Ill. 2d 325, 662 N.E.2d 397, 214 Ill. Dec. 831 (1996). I would decline to 1061214 55 exercise our discretion to invoke that principle under the circumstances presented by this case. It was necessarily clear to the trial court, obliged as it was to apply the last- exposure rule of Garrett, that the case had to be dismissed because the statute of limitations had expired. Thus, it was not just that the trial court failed to consider other possible bases for entering a summary judgment, it was effectively precluded from doing so. The defendants principally argue that Cline's evidence failed sufficiently to establish the element of causation required under the Alabama Extended Manufacturer's Liability Doctrine, but the trial court's reliance on the Garrett rule effectively eliminated causation as an issue. That is to say, if a last exposure effects a legally cognizable injury as a matter of law, then one need not prove actual causation. Additionally, Cline's counsel asserts, and submits arguably supportive materials, that he forwent fully developing certain evidentiary aspects once it became evident that the trial judge was going to dispose of the case on the basis of the statute of limitations, and Cline's counsel came to understand 1061214 56 that counsel for the defendants was in agreement that the planned appeal would focus solely on that issue. Presumably because of its determination early on that Garrett clearly would require a dismissal of the claims against the defendants, the trial court did not address certain challenges they made to the admissibility and adequacy of some of Cline's evidentiary submissions. Because the construction of "accrued" in § 6-2-30(a) that I advocate as the proper one would so alter the analytical approach the trial court would have taken had it had the benefit of that rule, I would deem it appropriate to afford the trial court the opportunity to address on the merits the defendants' evidentiary-challenge arguments. Retroactive Versus Prospective Application of the New Standard Proposed by this Dissent Although my position was not adopted by the majority of the Court, I nonetheless believe a discussion of the reasons favoring a prospective application of a new accrual rule for toxic-substance-exposure cases is in order. "'The determination of the retroactive or prospective application of a decision overruling a prior decision is a matter of judicial discretion that must be exercised on a case-by-case basis.' Ex parte Coker, 575 So. 2d 43, 51 (Ala. 1990), citing 1061214 57 City of Birmingham v. Blount County, 533 So. 2d 534 (Ala. 1988); State Dep't of Revenue v. Morrison Cafeterias Consol., Inc., 487 So. 2d 898 (Ala. 1985). Although circumstances occasionally dictate that judicial decisions be applied prospectively only, retroactive application of judgments is overwhelmingly the normal practice. McCullar v. Universal Underwriters Life Ins. Co., 687 So. 2d 156 (Ala. 1996) (plurality opinion). 'Retroactivity "is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law.... It also reflects the declaratory theory of law, ... according to which the courts are understood only to find the law, not to make it."' 687 So. 2d 156, quoting James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-36, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481 (1991). While reliance upon prior law is an 'important variable that must be appraised in every case presenting questions of prospectivity,' we conclude that, as a policy matter, the application of this newly adopted rule to these parties 'rewards the prevailing party on the appeal, thereby providing "an incentive for litigants to challenge existing rules of law that are in need of reform."' Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892, 899 (Ala. 1995), quoting Prospective Application of Judicial Decisions, 33 Ala. L.Rev. 463, 473 (1982)." Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 352 (Ala. 1997). "Because the rule stated in this opinion would change this Court's construction of the limitations provision of § 6-5-547(a) and reject its previous construction of the statute, a construction [the plaintiff] may have relied on, we would apply this new rule prospectively only, i.e., to legal- malpractice actions filed after the date of this decision. See Professional Ins. Corp. v. Sutherland, 1061214 58 700 So. 2d 347, 351-52 (Ala. 1997); Foremost Ins. Co. v. Parham, 693 So. 2d 409, 421 (Ala. 1997); McCullar v. Universal Underwriters Life Ins. Co., 687 So. 2d 156, 165-66 (Ala. 1996)." Ex parte Panell, 756 So. 2d 862, 869 (Ala. 1999) (plurality opinion of three Justices, but all six remaining Justices concurred in the result, thus joining in the decision for prospective relief only). "The United States Supreme Court has suggested consideration of the following factors in choosing whether to apply a judicial decision prospectively: "'First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., [392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968)] ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, [393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969)]. Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1737-38, 14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied 1061214 59 retroactively, there is ample basis in our cases for avoiding the 'injustice or h a r d s h i p ' b y a h o l d i n g o f nonretroactivity."' "Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)[, but see Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993)]." McCullar v. Universal Underwriters Life Ins. Co., 687 So. 2d 156, 165 (Ala. 1996). My view of the proper construction to be accorded the term "accrued" in § 6-2-30(a) in the context of toxic- substance-exposure cases would establish a new principle of law by overruling clear past precedent on which litigants may have relied. This consideration weighs in favor of a prospective application of the principle, as does the purpose of time limitations for filing actions. On the other hand, Cline, as the prevailing party in bringing about a change in the law should be rewarded for his efforts and to deny him the benefit of the new rule would have a chilling effect on litigants who desire to challenge existing rules of law that are in need of reform. Weighing the merits and demerits of the possible options for effectuating the new rule, I would recommend that it be accorded a completely prospective 1061214 60 operation, save only for its application in Cline's case, where it would apply retroactively. Therefore, except for Cline, only those persons whose last exposure to a toxic substance, and first manifest injury resulting from that exposure, occurred within two years of the opinion adopting the new rule would be entitled to have the accrual of their cause of action determined according to the new rule. By this approach, there would be no "flood gates of litigation" opened, and only if the legislature chose to refrain from any action for many years would there eventually develop the potential for a significant lag time between last exposure and manifest, present injury. Likewise, this approach would answer the concerns of the specially concurring Justices about the presentation of "stale" claims. Claims could become stale, in the sense of there being a significant temporal separation between cause and effect, only if the legislature is satisfied with the new rule and forgoes for a decade or more any legislative adjustment. (It bears noting, moreover, that under the Garrett rule, a claim is "fresh" only at a time when it is not actionable, and when it finally becomes actionable, upon the occurrence of a manifest, present 1061214 61 injury, it is necessarily impermissibly "stale" under the statute of limitations.) I do not seek to preempt the legislature by having this Court correct the erroneous Garrett rule. I simply take the position that the Court, having created the rule, should assume the responsibility for overruling it and replacing it with a rule that conforms to established principles for determining when a tort cause of action accrues. Thereafter, the Court having corrected its own mistake, I would welcome further legislative action aimed at providing any different rules for accrual, including those incorporating a "discovery" feature, that the legislature might determine to be in order. I therefore would reverse the trial court's judgment and remand this case to the trial court so that it might gauge the accrual of Cline's Alabama Extended Manufacturer's Liability Doctrine cause of action under the new rule, as well as consider the other grounds the defendants asserted in support of their motion for a summary judgment.	January 25, 2008
2232cfff-49da-4e41-9f16-cc19018a81a5	Ex parte A.M.P. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: E.W.H. and S.M.H. v. A.M.P.)	N/A	1061010	Alabama	Alabama Supreme Court	REL:03/14/08 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, 2007-2008 _________________________ 1061010 _________________________ Ex parte A.M.P. PETITION FOR WRIT OF MANDAMUS (In re: E.W.H. and S.M.H. v. A.M.P.) _________________________ 1061013 _________________________ A.M.P. v. 2 E.W.H. and S.M.H. _________________________ 1061170 _________________________ W.P. and P.P. v. In the matter of the adoption of S.L.S., a minor child Appellate Proceedings from Cullman Probate Court (AC-2005-032) BOLIN, Justice. A.M.P., the biological mother of S.L.S. ("the mother"), filed a petition for a writ of mandamus, seeking an order setting aside the probate court's interlocutory order granting the petition of the foster parents, E.W.H. and S.M.H., to adopt S.L.S. ("the child") (case no. 1061010). While the mother's petition for the writ of mandamus was pending, the probate court entered a final order granting the adoption petition of the foster parents. Subsequently, the mother filed an appeal from the probate court's final order (case no. 1061013). W.P. and P.P., the child's maternal great-uncle and his wife, also appeal from the probate court's final order of 1061010, 1061013, and 1061170 3 adoption (case no. 1061170). We dismiss A.M.P.'s petition for the writ of mandamus, and we affirm the order of adoption. Facts and Procedural History The child was born in another state in December 1999. When the child was born, both the mother and the child tested positive for opiates. The mother refused drug treatment and social services, and a hearing was scheduled on the child's welfare in that state. The mother fled with the child to Alabama. In April 2000, the Alabama Department of Human Resources ("DHR") received a report of abuse or neglect from the social services department of the child's birth state regarding the child. In May 2000, DHR took temporary custody of the child pursuant to an order of the juvenile court. The mother was allowed to maintain physical custody of the child after the mother agreed to attend a drug-treatment facility. She entered the facility but after a short time left the facility, taking the child with her. The mother returned to the child's birth state and left the child with an unrelated individual there. The mother could not be located, and a DHR employee went to the state and brought the child back to Alabama. 1061010, 1061013, and 1061170 4 The child was placed in the custody of S.B., a maternal great-aunt of the child. The maternal great-aunt could not be a permanent placement for the child, and DHR allowed the great-aunt to place the child with friends of hers, E.W.H. and S.M.H. In July 2000, E.W.H. and S.M.H. became provisionally licensed as the child's foster parents. As foster parents, E.W.H. and S.M.H. signed an agreement with DHR and, as part of that agreement, agreed as follows: "That the State Department of Human Resources has full responsibility and authority for making and carrying out any and all plans for the children pertaining to adoption, without interference on our part, and that said Department has full responsibility and authority for making and carrying out any and all plans for children pertaining to transfer to other homes, return to relatives, etc., without interference on our part. We further agree to cooperate with the Department of Human Resources requested by that Department in carrying out plans for the children. ".... "That we will not file a petition in the court to adopt a child in our home, or take steps toward the adoption of the child, without the WRITTEN CONSENT of the State Department of Human Resources." (Capitalization in original.) In January 2001, DHR developed the first of several individualized service plans ("ISP") for the child with the 1061010, 1061013, and 1061170 5 goal of permanent placement of the child with a relative. DHR contacted the child's putative father, who was incarcerated, on several occasions; he did not express an interest in caring for the child. The mother by this time was also incarcerated and unable to care for the child. Subsequently, both the maternal grandmother, A.T., and the maternal grandfather, D.P., who were at that time divorced from one another, filed separate petitions for custody of the child, alleging that the child was dependent. The child has three older siblings: one sibling lives with the maternal grandmother; one sibling lives with the maternal grandfather; and the third sibling lives with another relative. In 2003, the juvenile court held a hearing on the grandmother's and grandfather's petitions. The foster parents obtained legal counsel, and counsel was allowed to participate in the juvenile court proceedings, although the foster parents had not filed a petition for custody of the child. Instead, the foster mother indicated that she did not feel that the grandfather and grandmother were suitable custodial parents for the child. In December 2003, the juvenile court denied both grandparents' petitions for custody. Both the 1061010, 1061013, and 1061170 6 grandmother and the grandfather filed separate appeals. On November 5, 2004, the Court of Civil Appeals affirmed the judgment of the juvenile court in each appeal, without an opinion. A.T. v. Cullman County Dep't of Human Res., 921 So. 2d 478 (Ala. Civ. App. 2004)(table); D.P. v. Cullman County Dep't of Human Res., 921 So. 2d 478 (Ala. Civ. App. 2004)(table). The grandfather petitioned this Court for certiorari review. On March 11, 2005, this Court denied the grandfather's petition, without an opinion. Ex parte D.P., 924 So. 2d 805 (Ala. 2005)(table). Following the juvenile court's order denying the grandparents' petitions for custody of the child, DHR continued to develop an ISP for the child so that she could be placed with a relative. We note that since November 2001 the child has visited with the maternal great-grandmother, B.P., every Wednesday. In October 2004, the child began having Tuesday afternoon visits with W.P. and P.P., a maternal great- uncle and his wife, after they came forward as a relative resource for adoption, and the child began spending the first full weekend of every month with the great-uncle and great- aunt. Also in October 2004, one weekend each month, the child 1061010, 1061013, and 1061170 Nothing in the Alabama Adoption Code requires a hearing 1 before the entry of an interlocutory order of adoption. However, there is nothing to prohibit such a hearing. All that is required before an interlocutory order is entered is that the mandates of § 26-10A-18, Ala. Code 1975, are met. 7 had weekend visitation with the maternal great-grandmother. While the child was visiting with the great-grandmother, the child also was able to visit with her sister, who resides with a relative who lives near the great-grandmother. On March 18, 2005, the foster parents filed a petition in the probate court to adopt the child. On March 22, 2005, DHR held a meeting with the great-uncle and great-aunt and the foster parents regarding the child's ISP. On June 30, 2005, DHR was notified that the foster parents had filed a petition to adopt the child. On August 1, 2005, the probate court held a hearing on the petition and entered an interlocutory order granting the foster parents' petition. It appears that after 1 the interlocutory order was entered, the foster parents stopped allowing the child to visit any of the relatives. On September 7, 2005, the great-uncle and great-aunt filed a petition in the probate court seeking to adopt the child. Attached to their petition was a written consent signed by the mother, consenting to the adoption of the child 1061010, 1061013, and 1061170 Section 26-10A-7(a)(5) provides that the putative 2 father's consent is needed if the putative father has registered with the Putative Father Registry and responds within 30 days to the notice he receives under § 26-10A- 17(a)(10). Nothing in the record indicates that the putative 8 by the great-uncle and great-aunt. On September 8, 2005, the mother filed a motion to set aside the interlocutory order granting the foster parents' petition of adoption on the ground that the foster parents had not obtained her consent to the adoption; the probate court denied the mother's motion. On September 16, 2005, the great-uncle and great-aunt filed a motion contesting the adoption and a motion to transfer the case to the juvenile court, pursuant to § 26-10A-3, for the limited purpose of terminating the parents' rights. They also moved the probate court, under § 26-10A-21, to stay the adoption proceeding because the child was the subject of related proceedings in the juvenile court. On October 11, 2005, a hearing was held at which the foster parents, DHR, and the great-uncle and great-aunt appeared with counsel and the mother was represented by counsel. The putative father did not appear and was not represented by counsel, even though he was served with notice of the adoption by publication. Evidence was presented 2 1061010, 1061013, and 1061170 father registered with the Putative Father Registry. Nevertheless, service was attempted on the father by certified mail, but the mail was returned as unclaimed. Notice was then served by publication in the local newspaper for four successive weeks as provided for in §§ 26-10A-17(a)(10) and 26-10A-17(c)(1), Ala. Code 1975. 9 indicating that the mother had been incarcerated on and off for several years of the child's life, although the evidence was conflicting as to the total time the mother had been incarcerated. There was evidence indicating that the mother had written the child several letters and had occasionally contacted the foster parents regarding the child until sometime in 2001. Evidence was presented indicating that the mother had telephoned the child when the child was visiting with relatives. The prison ministry where the mother was incarcerated had sent the child and her siblings gifts from the mother. There was evidence indicating that the mother was released on probation in 2004 and that she was thus free for a short period but that she did not attempt to see the child during that time. The great-aunt testified that she and her husband did not come forward sooner seeking to adopt the child because the grandfather and grandmother had both been seeking custody of 1061010, 1061013, and 1061170 10 the child and she thought a competing petition for adoption would cause discord in the family. There was ample evidence presented indicating that both the foster parents and the great-uncle and great-aunt would provide a loving home for the child. On October 21, 2005, the mother filed a petition for a writ of mandamus in the Court of Civil Appeals, seeking an order compelling the probate court to set aside its interlocutory order of adoption and to transfer the foster parents' petition for adoption to the juvenile court, pursuant to § 26-10A-3. On October 25, 2005, DHR filed a motion in the probate court stating that before the foster parents could proceed with their adoption petition, they needed the consent of the parents or a termination of parental rights. On November 8, 2005, the probate court entered a final order granting the foster parents' petition to adopt the child. On November 18, 2005, the mother filed in the Court of Civil Appeals a motion to stay the final order of adoption pending the outcome of the mother's petition for a writ of mandamus. On November 22, 2005, the mother appealed the final order of adoption to the Court of Civil Appeals. On November 1061010, 1061013, and 1061170 The guardian ad litem questioned whether the great-uncle 3 and great-aunt's appeal was timely. Section 26-10A-26, Ala. Code 1975, a part of the Alabama Adoption Code, provides that an appeal shall be filed within 14 days of the final order of adoption. Section 26-10A-37 provides that the Alabama Rules of Civil Procedure apply to the probate court in adoption proceedings to the extent that they apply under § 12-13-12, Ala. Code 1975. Section 12-13-12 provides that in the absence of express provisions to the contrary, provisions of the Code relating to pleading, practice, evidence, and judgments and orders in the circuit court shall apply in the probate court. The great-uncle and great-aunt timely filed a postjudgment motion. That motion was denied by operation of law. The notice of appeal was thus timely filed under the Alabama Rules of Civil Procedure. The Court of Civil Appeals has addressed the merits in appeals in adoption cases from the probate court where a party has filed a postjudgment motion. See In re J.C.P., 871 So. 2d 831 (Ala. Civ. App. 2002)(the putative father filed a postjudgment motion, which was denied by operation of law, and the father subsequently appealed the final order of adoption); J.B. v. F.B., 929 So. 2d 1023 (Ala. Civ. App. 2005)(following the denial of his postjudgment motion, the father appealed from the judgment of the probate court granting the adoption petition). 11 22, 2005, the great-uncle and great-aunt filed a motion for a new trial, which the trial court never ruled upon. On December 6, 2005, the Court of Civil Appeals denied the mother's motion to stay as premature. On December 16, 2005, the great-uncle and great-aunt appealed to the Court of Civil Appeals. In 3 January 2006, the Court of Civil Appeals consolidated the three cases. On April 27, 2007, the Court of Civil Appeals 1061010, 1061013, and 1061170 Section 12-3-15 provides that "[w]hen it is deemed 4 advisable or necessary for the proper dispatch of the business of the Alabama Court of Civil Appeals, the Chief Justice of the Supreme Court, with the advice of the Supreme Court, and the presiding judge of the Court of Civil Appeals, may in writing designate any case in the Alabama Court of Civil Appeals to be transferred to the Supreme Court for a hearing and final determination by that court." No reason was stated for the transfer of this case to this Court. The Supreme Court clerk's office assigned these cases to Justice Bolin on November 29, 2007. 12 transferred the consolidated cases to this Court, pursuant to § 12-3-15, Ala. Code 1975. 4 The Mother's Petition for the Writ of Mandamus (case no. 1061010) On October 21, 2005, the mother filed a petition for a writ of mandamus compelling the probate court to set aside its interlocutory order of adoption and to transfer the foster parents' adoption petition to the juvenile court because the mother had not consented to the adoption of the child by the foster parents. The mother contends that § 26-10A-3 supports a transfer to the juvenile court because it provides that if any party whose consent is required fails, or is unable, to consent to the adoption, the proceeding will be transferred to the juvenile court for a termination of parental rights. The mother further contends that because the probate court did not 1061010, 1061013, and 1061170 13 obtain her consent to the adoption by the foster parents and because her parental rights had not been terminated, the probate court never obtained jurisdiction to enter the interlocutory order of adoption. "'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'" Ex parte Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala. 2003)(quoting Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995)). A petition for a writ of mandamus is an appropriate remedy for challenging an interlocutory order. Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); see also Smith v. Jones, 554 So. 2d 1066 (Ala. Civ. App. 1989)(treating natural parents' appeal from issuance of an interlocutory order granting the adoption as a petition for a writ of mandamus). The probate court entered an interlocutory order of adoption on August 1, 2005. On September 8, 2005, the mother filed a motion to set aside the interlocutory order, which the 1061010, 1061013, and 1061170 14 trial court denied. A final hearing was held on the foster parent's adoption petition, the contest to the adoption, and the great-uncle and great-aunt's adoption petition on October 11, 2005. The probate court entered a final order of adoption on November 8, 2005, granting the foster parents' petition. The mother's mandamus petition seeks to have this Court order the probate court to set aside its interlocutory order and to transfer this adoption case to the juvenile court because, she says, the probate court failed to obtain her consent to the adoption of the child by the foster parents and therefore was without jurisdiction to enter the order. The foster parents argue that the mother has an adequate remedy at law and, therefore, that she is not entitled to mandamus review. Generally, an "adequate remedy" exists if the petitioner will be able to raise the issue on appeal. See Ex parte Daimler Chrysler Corp., 952 So. 2d 1082 (Ala. 2006); Ex parte Jackson, 780 So. 2d 681 (Ala. 2000); Ex parte Inverness Constr. Co., 775 So. 2d 153 (Ala. 2000). "'A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal.'" Ex parte Flexible Prods. Corp., 915 1061010, 1061013, and 1061170 15 So. 2d 34, 39 (Ala. 2005) (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998)). We agree that a petition for a writ of mandamus cannot be used as a substitute for an appeal. However, the petition for a writ of mandamus in the present case is moot. Section 26-10A-18 provides: "Once a petitioner has received the adoptee into his or her home for the purposes of adoption and a petition for adoption has been filed, an interlocutory order of adoption shall be entered delegating to the petitioner (1) custody, except custody shall be retained by the Department of Human Resources or the licensed child placing agency which held custody at the time of the placement until the entry of the final decree and (2) the responsibility for the care, maintenance, and support of the adoptee, including any necessary medical or surgical treatment, pending further order of the court. This interlocutory decree shall not stop the running of the time periods prescribed in Section 26-10A-9." (Emphasis added.) Section 26-10A-18 has two conditions that must be met before the court enters an interlocutory order; the prospective adoptive parents must receive the child into their home for the purpose of adoption and a petition for adoption must be filed. In the present case, the foster parents did not receive the child into their home for the purpose of adoption; instead, they were the foster parents of the child 1061010, 1061013, and 1061170 16 and initially received the child into their home for the purpose of serving as foster parents. However, the mother did not file a motion with the Court of Civil Appeals for a stay of the interlocutory order. With no stay in place, the probate court had jurisdiction to continue the adoption proceedings. We note that the purpose of an interlocutory order of adoption is to enable the prospective adoptive parents to authorize any necessary medical care for the minor child. See Comment to § 26-10A-18. As foster parents licensed by DHR, the foster parents had authority to authorize medical treatment for the child. See Ala. Admin. Code (Dep't Human Res.) Reg. 660-5-29-.04 ("Foster parents shall participate in planning to meet the medical and dental needs of child(ren) in custody."). Furthermore, we note that "[a]s provided for in § 26-10A-24, a proper person at any time before a final decree of adoption is entered may petition the court for a contested hearing. If the contesting party is successful, the court shall dismiss the adoption proceedings." Comment to § 26-10A-18. Once the final order of adoption is entered, the interlocutory order becomes moot. A moot case lacks justiciability. Accordingly, we dismiss the petition 1061010, 1061013, and 1061170 17 for a writ of mandamus because the interlocutory order of adoption became moot when the final order of adoption was entered. The Mother's Appeal (case no. 1061013) The mother raises three issues on appeal: (1) whether the probate court had jurisdiction to grant the foster parents' adoption petition when they failed to obtain the consent of either parent and when the probate court failed to transfer the petition to the juvenile court for a termination of the parents' rights; (2) whether the probate court had jurisdiction to grant the foster parents' petition for adoption when DHR had not consented to the adoption and there was no finding that DHR had unreasonably withheld its consent to the adoption; and (3) whether there was clear and convincing evidence that the mother abandoned her child, thereby impliedly consenting to the adoption. "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) 1061010, 1061013, and 1061170 18 (citing Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962)). Furthermore, "[w]e have always required strict adherence to the statutory requirements in adoption proceedings." McCoy v. McCoy, 549 So. 2d 53, 57 (Ala. 1989) (citing Ex parte Sullivan, 407 So. 2d 559 (Ala. 1981)). "'The adoption of a child was a proceeding unknown to the common law. The transfer of the natural right of the parents to their children was against its policy and repugnant to its principles. It had its origin in the civil law and exists ... only by virtue of the statute which ... expressly prescribes the conditions under which adoption may be legally effected. "'Consent lies at the foundation of statutes of adoption, and under our law this consent is made absolutely essential to confer jurisdiction on the ... court to make an order of adoption, unless the conditions ... exist specially provided by the statute itself and which render such consent of the parents unnecessary. Unless such consent is given, or, for the exceptional causes expressly enumerated is dispensed with, the court has no jurisdiction in the matter. ... The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must be strictly construed, and in order to warrant the exercise of the special power ... in opposition to the wishes and against the consent of the natural parent, on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must be clearly proven ... if the statute is open to construction and interpretation, it should be construed in support of the right of the natural parent.'" 1061010, 1061013, and 1061170 19 McGowen v. Smith, 264 Ala. 303, 305, 87 So. 2d 429, 430-31 (1956) (quoting In re Cozza, 163 Cal. 514, 522-24, 126 P. 161, 164-65 (1912)). On appeal, the mother argues, as she did in her petition for the writ of mandamus, that the probate court erred in granting the foster parents' petition for an interlocutory order of adoption because the foster parents failed to obtain the consent of either the mother or the father and the probate court failed to transfer the adoption petition to the juvenile court for a termination of the mother's and father's parental rights pursuant to § 26-10A-3. However, the transfer provision of § 26-10A-3 does not apply to interlocutory orders. The failure of, or the inability to obtain, the "consent" in § 26-10A-3 means consent generically, i.e., it can involve the absence of written or implied consent. Whether all necessary consents of whatever type are present, though, is to be decided at a later stage of the proceedings, even as late as at the final, dispositional hearing. See § 26-10A- 13(c), concerning written consents, which states that "[a]ll consents or relinquishments required by this act shall be filed with the court in which the petition for adoption is 1061010, 1061013, and 1061170 20 pending before the final decree of adoption is entered," and § 26-10A-24(a)(3), which provides that whether an actual or implied consent is valid shall be determined at a contested hearing, and § 26-10A-25(b)(2), which requires the court, at the dispositional hearing, to find on clear and convincing evidence that "[a]ll necessary consents, relinquishments, terminations or waivers have been obtained and, if appropriate, have been filed with the court." Therefore, whether the proceeding will be transferred to the juvenile court for the limited purpose of terminating parental rights is an issue that typically arises after an interlocutory order has been entered. The mother also appears to be arguing that the probate court erred in entering the final order of adoption because the foster parents failed to obtain the consent of either the mother or the father and the probate court failed to transfer the adoption petition to the juvenile court pursuant to § 26- 10A-3 for a termination of the mother's and father's parental rights. We note that § 26-10A-3 vests the probate courts with original jurisdiction of proceedings brought under the Alabama 1061010, 1061013, and 1061170 21 Adoption Code. Once a petition for adoption is filed in the probate court, however, there are four statutory provisions for a transfer to another court of either the entire proceeding or a specified portion thereof. First, § 12-12-35, Ala. Code 1975, provides: "(a) Adoption proceedings, primarily cognizable before the probate court, may be transferred to the district court on motion of a party to the proceeding in probate court. "(b) When adoption proceedings are transferred to the district court, a copy of the record of such proceedings shall be filed in the probate court, and the probate court offices shall maintain records of all adoption proceedings within their respective counties." This provision, which predates the Alabama Adoption Code but which was not affected by it, allows a party to an adoption proceeding to initiate a transfer, which is discretionary with the probate court ("may be transferred"), and, once a motion for transfer is granted, the entire "adoption proceeding[]" is transferred to the district court. See Ex parte C.L.C., 897 So. 2d 234 (Ala. 2004)(holding that the primary jurisdiction over adoptions is in the probate court and that, unless the juvenile court acquires jurisdiction over a petition to adopt 1061010, 1061013, and 1061170 The UCCJA has been repealed and replaced by the Uniform 5 Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). See § 30-3B-101 et seq., Ala. Code 1975. 22 by the transfer mechanism of § 12-12-35, the juvenile court is without authority to grant an adoption). Second, § 26-10A-21 states: "If, at any time during the pendency of the adoption proceeding, it is determined that any other custody action concerning the adoptee is pending in the courts of this state or any other state or country, any party to the adoption proceeding, or the court on its own motion, may move to stay such adoption proceeding until a determination has been made by an appropriate court with jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental [5] Kidnapping Prevention Act (PKPA). The adoption may be transferred and consolidated with a custody proceeding in any court in this state." This statute, which includes a transfer mechanism, provides that, upon motion made by a party or upon the court's own motion, the probate court may stay an adoption proceeding while a custody action is pending in another court, and, in addition, the probate court may transfer "the adoption" to the other court to be consolidated with the custody proceeding. Thus, this section, like § 12-12-35 quoted above, provides for a discretionary transfer of the entire adoption proceeding. 1061010, 1061013, and 1061170 23 Third, § 26-10A-24, dealing with hearings on adoption contests only, provides for a limited transfer in subsection (e), which states: "(e) On motion of either party or of the court, a contested adoption hearing may be transferred to the court having jurisdiction over juvenile matters." Like the two transfer provisions above, a transfer under this provision, which may be upon the request of a party or upon motion of the court, is a discretionary transfer by the probate court; however, unlike the other two provisions, this section provides that only the "contested adoption hearing" may be transferred, rather than the entire adoption proceeding. Therefore, after a juvenile court has conducted a "contested adoption hearing" transferred to it pursuant to § 26-10A-24(e) and decided the issues presented in the hearing, the adoption proceeding would be remanded to the probate court for further action. The last possible transfer procedure in an adoption proceeding is contained in § 26-10A-3, Ala. Code 1975, which states: "The probate court shall have original jurisdiction over proceedings brought under [this] chapter. If any party whose consent is required 1061010, 1061013, and 1061170 24 fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters." (Emphasis added.) As the emphasized portions of this section provide, if a necessary consent is not present, the proceeding must be transferred to the juvenile court, but only for the limited purpose of determining whether the parental rights of the nonconsenting parent should be terminated. Sections 26-10A-7 and -10 set out the entities from whom consents or relinquishments are either required or not required, before an adoption can be granted. When a consent or relinquishment is required, §§ 26-10A-11 and -12 prescribe the requirements necessary for an express, written consent or relinquishment (and provide a form therefor), while § 26-10A-9 sets out the acts or omissions by which a consent or relinquishment required by § 26-10A-7 may be implied. The contest provision in the Alabama Adoption Code, § 26-10A-24, provides, among other grounds of contest, for the adjudication of the validity of either an express or implied consent. 1061010, 1061013, and 1061170 25 When the probate court has exercised its discretion to transfer the entire adoption proceeding (by virtue of § 12-12- 35 or § 26-10A-21) to either a district or another court, the transferee court acquires jurisdiction, and the probate court thereafter maintains only recordkeeping responsibilities. See § 12-12-35(b) quoted above. When the probate court has exercised its discretion to transfer only that limited portion of the proceeding concerning a contested hearing (by virtue of § 26-10A-24(e)), it is nevertheless then the province of the transferee juvenile court, attendant to the transferred contested hearing, to decide a contested issue of implied consent. Put another way, it is the court that hears and decides the contest that determines "[w]hether an actual or implied consent or relinquishment to the adoption is valid." § 26-10A-24(a)(3). Accordingly, in the absence of a transfer of the contest, it is the probate court that hears and determines whether all necessary consents or relinquishments, either express or implied, are present. Where, as here, the probate court did not transfer the contest filed by the great-uncle and great- aunt, the probate court properly proceeded to hear and decide 1061010, 1061013, and 1061170 26 whether the mother and the putative father gave their implied consent pursuant to § 26-10A-9. The probate court found that each parent had given implied consent, and there was then no mother or father who was required to give consent who had not done so, and therefore no basis for the court to transfer the proceeding pursuant to § 26-10A-3 "for the limited purpose of termination of parental rights," as the mother so requested. It is only when there is no express or implied consent or relinquishment from a parent of the adoptee that the mandatory transfer portion of § 26-10A-3 applies, so that "the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights." (Emphasis added.) When applicable, this transfer provision is mandatory, both because of its language and because the probate court cannot grant an adoption petition in the absence of a necessary parental consent or relinquishment, and it is the exclusive jurisdiction of the juvenile court, § 26-18-1 et seq., Ala. Code 1975, to terminate parental rights, which obviates any further need for consent or relinquishment from the affected parent. 1061010, 1061013, and 1061170 27 In the present case, the great-uncle and great-aunt sought a transfer of the adoption proceeding to the juvenile court for a termination of parental rights under § 26-10A-3. When the legislature adopted the Alabama Adoption Code in 1990, § 26-10A-3 established the probate court as the court with original jurisdiction over adoptions. When § 26-10A-3 is read in para materia with § 26-10A-9, it is clear that if the probate court finds that the evidence does not prove implied consent or if the biological parent is unable to consent, then the probate court must transfer the case to juvenile court for a determination of whether to terminate parental rights. A fair reading of the Alabama Adoption Code is that the court with original jurisdiction over adoptions should be able to determine whether a parent whose consent is required has, through his or her acts or omissions, impliedly consented to an adoption. The mother cites Vice v. May, 441 So. 2d 942 (Ala. Civ. App. 1983), in support of her position that the probate court should have transferred the adoption proceeding to the juvenile court for a termination of parental rights and that because the probate court failed to transfer the case for a 1061010, 1061013, and 1061170 When Vice was decided, § 26-10-3 provided: "'No adoption 6 of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, or who cannot be found, who is insane or otherwise incapacitated from giving such consent, or who has lost guardianship of the child, through divorce proceedings, or by the order of a juvenile court or court of like jurisdiction, may be dispensed with, and consent may be given by the guardian if there is one, or if there is no guardian, by the state department of pensions and security.'" Vice, 441 So. 2d at 943. 28 termination of parental rights, the probate court's order is void. In Vice v. May, the Court of Civil Appeals held that under § 26-10-3, the precursor statute to § 26-10A-3, the consent of the parents, or in circumstances falling under § 26-10-3, the consent of the guardian or the Department of Pensions and Security, is jurisdictional, so that if the required consent is missing, the court never obtains jurisdiction to proceed to the paramount question of the child's welfare. As noted, § 26-10-3 was superseded in 1990 6 by § 26-10A-3 when the Alabama Adoption Code was enacted, and, under § 26-10A-3, a probate court's order of adoption is void when the probate court did not obtain the consents of parents as required and the juvenile court had not entered an order terminating the parent's parental rights. However, consent to an adoption can be either express and written or implied from 1061010, 1061013, and 1061170 29 the conduct of a parent. Furthermore, the mother's reliance on Vice is misplaced because the probate court in that case found that the mother had impliedly consented to the adoption. That is, the probate court could first determine whether there was sufficient evidence regarding implied consent and then proceed. The mother argues that the probate court did not have jurisdiction to grant the foster parents' petition for adoption because DHR had not consented to the adoption of the child by the foster parents and there was no finding that DHR had unreasonably withheld its consent to the adoption as set out in § 26-10A-7(a)(4). Section 26-10A-7(a)(4) requires the consent of "[t]he agency to which the adoptee has been relinquished or which holds permanent custody and which has placed the adoptee for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the adoptee and there is a finding that the agency has unreasonably withheld its consent ...." (Emphasis added.) Section 26-10A-2 defines "relinquishment" as "[g]iving up the physical custody of a 1061010, 1061013, and 1061170 30 minor for purpose of placement for adoption to a licensed child placing agency or the Department of Human Resources." In the present case, DHR had temporary, not permanent, custody of the child. Also, the child was not "relinquished" to DHR as that term is defined in the Alabama Adoption Code; the mother did not give up physical custody of the child for the purpose of placing the child with DHR for adoption. Instead, DHR obtained temporary custody of the child after a child-abuse-and-neglect report had been filed. It does not appear that DHR's consent to the adoption under § 26-10A- 7(a)(4) was necessary. Adoptions are purely statutory creatures and strict adherence to the statutes is required. Although it would seem logical to require the consent of the agency that had either temporary or permanent custody of a child before an adoption could proceed, we leave it to the legislature to remedy any defect in that regard. Last, the mother contends that the foster parents failed to present clear and convincing evidence indicating that she had abandoned the child and thus given her consent to the adoption. Section 26-10A-9 sets out instances in which a parent's consent to an adoption may by implied by his or her 1061010, 1061013, and 1061170 31 acts or omissions with respect to the child's care. Those instances include "[k]nowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months." The mother left a drug-treatment facility with the child in 2000 without the permission of the court that had ordered her to undergo treatment at the facility. She left the child with an unrelated individual in 2000. The mother has not provided any financial support for the child during its life. It does not appear that she has had any physical contact with the child since 2000. The mother made no attempts to have physical contact with child while she was incarcerated. The prison ministry where the mother was incarcerated has sent the child and the child's siblings gifts from the mother. The mother wrote the child several letters while she was incarcerated and there was evidence indicating that the mother had recently telephoned the child when the child was visiting with relatives. The mother states in her brief to this Court that it was undisputed that she has been in jail or prison for all but a 1061010, 1061013, and 1061170 32 few days of the time that the child has been in DHR's custody. However, the record is disputed as to how much time the mother has actually been incarcerated during the child's life. The record indicates that the mother was released from an out-of- state prison in the summer of 2004 but did not contact DHR regarding her release or her location, nor did the mother request a visit with the child following her release. Subsequently, the mother violated her parole and was arrested again. We agree with the mother that incarceration alone is not a ground for finding that a parent has abandoned a child. See Gillespie v. Bailey, 397 So. 2d 130 (Ala. Civ. App. 1980)(incarceration per se does not constitute abandonment of a prisoner's child, but it is a factor to be considered along with other factors indicating abandonment in determining whether the prisoner has impliedly consented to the adoption). However, maintaining a significant parental relationship with a child entails more than a mere sporadic showing of interest or concern. Here, there was clear and convincing evidence indicating that the mother has failed to provide for the child and that she has not maintained a significant relationship with the child. 1061010, 1061013, and 1061170 33 The Great-Uncle and Great-Aunt's Appeal (case no. 1061170) The great-uncle and great-aunt argue that the probate court erred in failing to enforce the agreement the foster parents had entered into with DHR in which the foster parents agreed that they would not seek to adopt the child without DHR's permission. They also argue that the probate court erred in granting the foster parents' adoption petition when there was a relative resource available because the legislature, in § 12-15-1.1, Ala. Code 1975, mandates that the family unit be preserved. The great-uncle and great-aunt also argue that the probate court erred in not staying the petition for adoption pursuant to § 26-10A-21, because, they say, the child was under the continued supervision of the juvenile court. The great-uncle and great-aunt argue that the probate court should have honored the agreement the foster parents signed with DHR. In that agreement, the foster parents agreed that they would obtain DHR's permission before they sought to adopt the child. The foster parents contend that only DHR has standing to advance that argument. We agree. 1061010, 1061013, and 1061170 34 In K.P. v. G.C., 870 So. 2d 751 (Ala. Civ. App. 2003), two sets of foster parents sought to adopt the same child. The second set of foster parents argued that the probate court erred in finding that DHR had improperly withheld its consent to the first set out foster parents. "To be a proper party, 'a person must have an interest in the right to be protected.' Eagerton v. Williams, 433 So. 2d 436, 447 (Ala. 1983). Also, '[a]s a general rule, "a litigant may not claim standing to assert the rights of a third party."' Ex parte Izundu, 568 So. 2d 771, 772 (Ala. 1990)(quoting Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 144, 417 A.2d 1003, 1006 (1980). ...[T]he finding that DHR unreasonably withheld its consent to the adoption of the children by [the first set of foster parents] does not create in [the second set of foster parents] a right that they have an interest in protecting such as would entitle them to advance an argument on behalf of DHR." 870 So. 2d 755-56. In the present case, the great-uncle and great-aunt were not parties to the foster parents' agreement with DHR. The foster-parent relationship is a state-created relationship that is maintained by DHR. DHR is the proper party to decide how best to protect its interest in its foster-care agreement with the foster parents. The great-uncle and great-aunt also argue that the probate court erred in granting the foster parents' adoption 1061010, 1061013, and 1061170 35 petition when there was an available relative resource because the legislature mandates that the family unit be preserved in § 12-15-1.1. Section 12-15-1.1 applies in juvenile courts and to those "who come within the jurisdiction of the juvenile court." Subsections (1) and (8) of § 12-15-1.1 provide that the goal of the juvenile court is to preserve and strengthen the child's family whenever possible and to maintain a preference at all times for preserving the family unit. In the present case, the child was currently before the probate court on a petition for adoption. Although § 12-15- 1.1 sets out the purposes of the juvenile court, § 12-15-30 establishes the jurisdiction of the juvenile court and recognizes that adoption proceedings are outside the jurisdiction of the juvenile court unless transferred there. See § 12-15-30(b)(5). Unlike the probate court, the juvenile court has exclusive original jurisdiction over proceedings in which a child is alleged to be delinquent, dependent, or in need of supervision. As discussed earlier in this opinion, there are certain situations in which the probate court may transfer part or all of an adoption proceeding to the juvenile court. This transfer may be to terminate parental rights, to 1061010, 1061013, and 1061170 See note 5, supra. 7 36 hear a contested hearing, or to decide the adoption in its entirety. The interplay between the probate court and the juvenile court in adoption proceedings does not mean that the probate court must follow the strict mandates of the juvenile court. Furthermore, although one of the goals of juvenile court is to preserve the family unit and to maintain a preference at all times for preserving the family unit, the juvenile court does have the authority to terminate parental rights when necessary. The great-uncle and great-aunt also argue that the probate court erred in not staying the petition for adoption when the child was under the continued supervision of the juvenile court. Section 26-10A-21 provides: "If, at any time during the pendency of the adoption proceeding, it is determined that any other custody action concerning the adoptee is pending in the courts of this state or any other state or country, any party to the adoption proceeding, or the court on its own motion, may move to stay such adoption proceeding until a determination has been made by an appropriate court with jurisdiction pursuant to the provisions of the Uniform Child Custody Act (UCCJA) or the Parental Kidnapping [7] Prevention Act (PKPA). The adoption may be 1061010, 1061013, and 1061170 37 transferred and consolidated with a custody proceeding pending in any court in this state." The great-uncle and great-aunt filed a motion in the probate court on September 16, 2005, to stay the adoption proceedings, arguing that the child was the subject of related proceedings in the juvenile court and that the probate court should therefore stay any further proceedings. In R.C.O. v. J.R.V., 759 So. 2d 559 (Ala. 1999), the biological father appealed from the probate court's order denying the father's motion to dismiss and his motion to stay the proceedings and granting the prospective adoptive parents' petition to adopt the child. The child was born out-of-wedlock, and the mother had placed the child with a private adoption agency. The agency had then placed the child with the prospective adoptive parents. The adoption agency filed a complaint and petition in the juvenile court stating that the biological mother was unable to properly care for the child, that the father had shown no interest in the child, and that it would be in the best interest of the child to proceed with the adoption. The father was served with forms entitled "Relinquishment of Minor for Adoption" and "Notification of Right to Counsel" in Florida where he resided. Acting pro se, the father filed a 1061010, 1061013, and 1061170 38 statement in the juvenile court, stating that he refused to relinquish the child for adoption and that he wanted custody of the child. The juvenile court issued an order requiring a paternity test. The adoption agency later moved to dismiss its complaint because the mother had withdrawn her consent to the adoption. The juvenile court granted the motion to dismiss. The father appealed, seeking review of his claim for custody. While the appeal was pending, the prospective adoptive parents filed a petition to adopt in the probate court. The father filed a motion to dismiss the petition pursuant to § 26-10A-21. The Court of Civil Appeals held that the probate court should have stayed the adoption proceeding because the father's claim for custody was still pending in the juvenile court. While R.C.O. would appear to support the great-uncle and great-aunt's argument, § 26-10A-21 has since been amended, and R.C.O. addressed the earlier version of § 26-10A-21. When § 26-10A-21 was amended, the phrase "shall move to stay such adoption proceeding" was changed to read "may move to stay such adoption proceeding." The amended version makes seeking the stay discretionary. Also, during the amending process 1061010, 1061013, and 1061170 39 what is now the last sentence was added to § 26-10A-21: "The adoption may be transferred and consolidated with a custody proceeding pending in any court in this state." The amended version makes the transfer and consolidation of the adoption with a pending custody proceeding discretionary. In accordance with the current version of § 26-10A-21, making transfer of the adoption proceeding and consolidation with any custody proceeding discretionary, we cannot say that the probate court exceeded its discretion in refusing to grant the stay under the facts of this case. Conclusion The mother's petition for a writ of mandamus has been rendered moot. Therefore, we dismiss the petition. The probate court's order of adoption challenged in both the mother's appeal and the great-uncle and great-aunt's appeal is due to be affirmed. In this case, the child was fortunate to have foster parents and a great-uncle and great-aunt, all of whom love this child and want to provide this child with a safe and stable home life. However, only one set of parents may adopt the child. The judgment of the probate court granting the adoption petition of the foster parents and 1061010, 1061013, and 1061170 40 denying the great-uncle and great-aunt's contest and petition for adoption, based on ore tenus evidence and therefore presumed correct, Ex parte J.W.B., 933 So. 2d 1081 (Ala. 2005), is affirmed. 1061010 -– DISMISSED. 1061013 -- AFFIRMED. 1061170 -- AFFIRMED. Lyons, Woodall, and Parker, JJ., concur. Cobb, C.J., and See, Stuart, and Smith, JJ., concur specially. 1061010, 1061013, and 1061170 41 SEE, Justice (concurring specially). I concur fully with the main opinion. I write to clarify what I believe to be this Court's holding in Ex parte T.V., 971 So. 2d 1 (Ala. 2007). The facts in T.V. are in many ways similar to those in this case. T.V., a drug-addicted mother facing jail time, allowed the Department of Human Resources to take custody of her son and to place him with another family while she was attempting to deal with her drug-related problems. Once she began to make progress in her recovery, she sought to reestablish visitation rights with her child. Before the court ruled on her motion for visitation, it terminated her parental rights. The Court of Civil Appeals affirmed the trial court's judgment, and she petitioned this Court for the writ of certiorari. This Court's main opinion in T.V. states that "[t]he only issue in this case is whether there were grounds to terminate T.V.'s parental rights and whether there was a viable alternative to doing so." 971 So. 2d at 8. When addressing appeals from a judicial termination of parental rights, "this Court must review not only whether [the child] remains dependant, but also whether the trial court considered 1061010, 1061013, and 1061170 42 and rejected, based on clear and convincing evidence, the possible viable alternatives before terminating [the parent's] parental rights." 971 So. 2d at 8. Therefore, as we have stated, "[t]he need to consider all viable alternatives is rooted, in part, in the recognition that the termination of parental rights is a drastic step that once taken cannot be withdrawn ...." 971 So. 2d at 9. Our holding in T.V. was not that the Department of Human Resources failed to "pursue any viable relative resource" before terminating the mother's parental rights. Instead, we held that "the trial court did not, after full consideration of all the viable alternatives to terminating T.V.'s parental rights, find clear and convincing evidence that none existed." 971 So. 2d at 23. Therefore, whether the Department of Human Resources bears an absolute burden to pursue every viable alternative to the termination of parental rights, regardless of the duration and subjectively beneficial nature of the child's tenure with his or her foster family, before it may petition for the termination of a parent's rights was not a question presented to this Court in T.V. 1061010, 1061013, and 1061170 43 STUART, Justice (concurring specially). I concur with the majority opinion completely. I also concur with Justice Smith's special concurrence. I write to reemphasize the problem with the court-created "no viable alternative" second prong of the termination-of-parental- rights test adopted by this Court in Ex parte Beasley, 564 So. 2d 950 (Ala. 1990). I have written at length concerning the origin of this judicial engraftment of a requirement outside the statutes and its subsequent modification, which made bad caselaw worse. See Ex parte F.P., 857 So. 2d 125 (Ala. 2003)(Stuart, J., dissenting). Although this judicially created test has become entrenched in our caselaw, it is nevertheless erroneous and perhaps will one day be overruled. The subsequent interpretation of "no viable alternative" by this Court and the Alabama Court of Civil Appeals has exacerbated the problem the test creates in child-welfare practice. For example, as Justice Smith notes in her special writing, the rationale relied on by the majority in our recent decision in Ex parte T.V., 971 So. 2d 1 (Ala. 2007), suggests that the Department of Human Resources, before filing a termination-of-parental-rights petition, must pursue any 1061010, 1061013, and 1061170 44 viable relative resource, no matter how long a child has been in foster care and, in my opinion, no matter how beneficial a child's proposed permanent placement. With such an interpretation of the "no viable alternative" prong of the test, the Court seems to have overlooked the "best interest of the child" and mistakenly placed "family reunification" in a position superior to "permanency for the child" as a consideration in child-welfare cases. I assert that "family reunification" and "permanency for the child" stand on equal footing as considerations in child-welfare cases and that "the best interest of the child" must always be paramount in cases involving child custody. Furthermore, even under existing law, relatives of the child who do not come forward and seek custody of the child in a timely fashion after a child's removal from his or her home but who rather belatedly come forward seeking custody only when the termination of parental rights is imminent are in almost all cases not a viable alternative to the termination of parental rights and the placement of the child for adoption. This fact is especially true in a case such as this one, where the result of the effective termination of the 1061010, 1061013, and 1061170 45 mother's rights and adoption is a continuation in the custody of the only people the child has known as parents. In most such situations, only the termination of parental rights and adoption promotes the best interest of the child and provides the permanence desperately needed by a child who, through no fault of his or her own, is placed into our foster-care system. So long as our child-protection system does not promote the best interest of our children, concerned parties with the best interest of the children at heart will continue to turn to the probate courts of our State in appropriate cases. Smith, J., concurs. 1061010, 1061013, and 1061170 46 SMITH, Justice (concurring specially). I concur with the majority opinion in all respects. I write specially to highlight the inexplicably wide legal chasm between the evidence necessary to sever a parent's rights by a finding of implied consent in an adoption case filed in the probate court and the evidence necessary to sever a parent's rights in a termination-of-parental-rights proceeding filed in the juvenile court. This case originated in the juvenile court in a rather typical fashion. The Department of Human Resources ("DHR") initiated the matter in the juvenile court by filing a dependency petition. DHR initially placed the child with a relative and ultimately placed the child with E.W.H. and S.M.H., friends of the relative and individuals approved by DHR as foster parents. DHR's efforts at reunification of the family unit were apparently to no avail because of the mother's continued use of drugs and the father's failure to pursue any relationship with his child. As the majority opinion notes, the maternal grandparents each filed a separate appeal. The appellate process in their appeals was not finalized until March 11, 2005, when this 1061010, 1061013, and 1061170 47 Court denied the grandfather's petition for the writ of certiorari. Only when the child was five years old, and at the point in time when DHR would have presumably filed a petition to terminate parental rights based on the father's absence and the mother's continuing drug dependency, did the maternal great-uncle and his wife, W.P. and P.P., come forward to offer themselves as a relative resource. The foster parents filed an adoption petition in the probate court within days of the finalization of the appellate process of the juvenile court proceeding, asserting that the parents implicitly consented to the child's adoption by virtue of their abandonment of the child. Not surprisingly, W.P. and P.P. attempted to transfer the adoption proceeding to the juvenile court. The probate court denied their motion to transfer the adoption proceeding to the juvenile court, and the juvenile court postponed its scheduled proceedings pending outcome of the adoption proceeding. Although W.P. and P.P. testified in the adoption proceeding that they did not come forward earlier "due to pending appeals" and to "preserve family harmony," they admitted on cross-examination that when the child came into 1061010, 1061013, and 1061170 48 DHR's care in 2000 at six months of age they had their own family obligations that apparently influenced their decision not to respond to DHR's efforts to locate a family resource. Specifically, P.P. testified: "Whenever [the child] first came to Cullman when she was six months old, at that time it was the year, I believe, of 2000. At that time[,] my husband and I still had two children in college. My daughter had announced that she was going to be getting married, so we were in the middle of children in college and also planning for weddings. And at that point in our life, we had built a house, and we had only been in that house for one year. And also at that time, we felt like we had raised our children. We weren't ready to take on a six-month-old." The rationale advanced by this Court in our recent decision in Ex parte T.V., 971 So. 2d 1 (Ala. 2007), suggests that DHR must pursue any viable resource rather than filing a termination-of-parental-rights petition, regardless of the length of time the child has been in foster care. In my dissent in T.V., I observed that had a termination-of- parental-rights proceeding been filed after the 18-month permanency hearing, there was ample evidence to suggest that the mother had, in essence, abandoned her child. But, because no termination proceeding had been filed at that juncture, the mother could rehabilitate herself and later seek to have some 1061010, 1061013, and 1061170 49 place in her child's life, regardless of the child's age and despite innumerable years of neglect and abandonment. It is no wonder that the relatives in the instant case, who have belatedly asserted themselves as a viable placement alternative, seek a judicial environment--a termination-of- parental-rights proceeding--where, under T.V., the existence of a viable alternative prevails over permanency and the best interest of the child. Likewise, it is no wonder that these foster parents, the only parents this child has known for all but the first six months of life, seek to place themselves in a judicial environment--an adoption proceeding in the probate court--where six months' abandonment constitutes implied consent, which, once given, cannot be revoked. Cobb, C.J., and Stuart, J., concur.	March 14, 2008
e8f124a4-3cd9-4ef5-9f9f-1373a57920ff	Ex parte Jimmie Martez Lee. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jimmie Martez Lee v. State of Alabama)	N/A	1061709	Alabama	Alabama Supreme Court	REL: 02/15/2008 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, 2007-2008 _________________________ 1061709 _________________________ Ex parte Jimmie Martez Lee PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jimmie Martez Lee v. State of Alabama) (Jefferson Circuit Court, Bessemer Division, CC-04-851; Court of Criminal Appeals, CR-05-2404) LYONS, Justice. Jimmie Martez Lee petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals affirming the trial court's order denying Lee's motion 1061709 Rule 18.5 provides: 1 "(a) Oath. The court shall either remind the jurors that they are still under oath, or may give the jurors the following oath: "'You do solemnly swear, or affirm, that you will well and truly try all issues joined between the defendant(s) and the State of Alabama and render a true verdict thereon according to the law and evidence, so help you God.' "(b) Preliminary Instruction. Immediately after the jury is selected, the court may instruct the jury concerning its duties, its conduct, the order of proceedings, and such other matters as the court deems proper." 2 for a mistrial; the basis for Lee's motion was his allegation that the trial court neither administered the final oath to the petit jury nor reminded the jurors that they were still under the oath given the venire, as required by Rule 18.5, Ala. R. Crim. P. We issued the writ, and we now affirm the 1 judgment of the Court of Criminal Appeals. I. Factual Background and Procedural History Jimmie Martez Lee was indicted and tried for capital murder. On the final day of Lee's trial, defense counsel made an objection, outside the presence of the jury, alleging that the trial court had failed to administer an oath to the petit jury. Defense counsel stated: 1061709 Rule 18.4(b), as amended, provides: 2 "(b)Oath of Prospective Jurors and Inquiry by the Court. Upon calling the case, the court shall administer the following oath: "'Do you and each of you solemnly swear (or affirm) that you will well and truly answer all questions propounded to you touching on your qualifications as a juror, and that you will well and truly try all issues submitted to you and true verdicts render according to the law and evidence, so help you God?' "Following the administration of the oath, the court shall initiate the examination of prospective jurors, i.e., those whose names appear on the 3 "Your Honor, yesterday I had some question about whether the oath had been administered to the jurors. And I asked [the court reporter] to go back and look. This morning he informed [me] that the venire panel received no, prior to sitting as the petit panel, that the jury actually sitting in trial of this case, did not receive an oath from this court. ".... "So the defense at this time takes objection to the failure to administer the oath to the petit jury prior to beginning of the trial and jeopardy attaching." The trial court did not rule on Lee's objection, but while still outside the presence of the jury, the trial court read aloud a January 13, 2005, order from this Court amending, effective June 1, 2005, Rule 18.4(b), Ala. R. Crim. P., which 2 1061709 'strike list' compiled pursuant to section (a), by identifying the parties and their counsel, briefly outlining the nature of the case, and explaining the purposes of the examination. The court shall ask any questions it thinks necessary touching the prospective jurors' qualifications to serve in the case on trial." 4 prescribes the oath a court should administer to prospective jurors. Later that day, after both parties made their closing arguments but before the trial court charged the jury, defense counsel stated: "Judge, we need to make a clarification. Earlier we made an objection for failure to swear in the petit jury. I made it in the form of a motion. I don't know if I actually put on the record the motion was a motion for a mistrial. I know then that you read the administrative instructions, but I don't know that you ever actually denied it. So just for clarification purposes I renew my motion for a mistrial for failure to swear the petit jury and ask the Court to rule." The trial court responded: "I think you're probably right. I think you're right in that I failed to rule on it, I simply read the motion. I think you're absolutely, unequivocally, unquestionably wrong about me swearing the jury in. So I will deny your motion." The trial court then charged the jury, which found Lee guilty of the lesser offense of felony murder. 1061709 5 Lee appealed his conviction to the Court of Criminal Appeals. Lee contended that the trial court erred to reversal by neither administering the final oath to the petit jury nor reminding the jurors that they were still under the oath given the venire, as required by Rule 18.5, Ala. R. Crim. P. The Court of Criminal Appeals affirmed the judgment of the trial court, by unpublished memorandum. Lee v. State (No. CR-05- 2404, June 22, 2007), __ So. 2d __ (Ala. Crim. App. 2007) (table). The Court of Criminal Appeals held that although the record is silent as to whether the trial court complied with Rule 18.5, Ala. R. Crim. P., reversal was not required because any error on the part of the trial court in not complying with Rule 18.5 was harmless. Specifically, in an unpublished memorandum, the court stated: "The record indicates, and the parties agree, that the trial court administered the proper oath to the jury venire, in accordance with Rule 18.4(b), Ala. R. Crim. P. The parties also agree, and our examination confirms, that the record does not reflect that the trial court administered the required oath to the petit jury." (Emphasis added.) Lee then petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. Lee contends 1061709 6 that the decision of the Court of Criminal Appeals conflicts with prior decisions of this Court and of the Court of Criminal Appeals because, he said, a trial court's failure to administer an oath to the petit jury has never been held to be harmless error when the defendant objected during the trial to the defect in the administration of the oath. This Court granted the petition based on the alleged conflict. II. Analysis In its brief to this Court, the State now asserts, contrary to its representation to the Court of Criminal Appeals, that the record sufficiently establishes that the trial court administered an oath to the petit jury. The State notes that the case-action summary states: "Defendant being in open court with counsel and the State of Ala. by its assistant district attorney. Jury duly selected and sworn. Defendant stands trial on his plea of not guilty. Trial of issues. Trial recessed until 2/28/06." (Emphasis added.) This entry on the case-action summary sufficiently establishes that the trial court administered an oath to the petit jury. See Tarver v. State, 500 So. 2d 1232, 1242 (Ala. Crim. App. 1986), aff'd, 500 So. 2d 1256 (Ala. 1986) ("A minute entry is deemed 1061709 7 to be a sufficient showing that the oath was administered."); Foshee v. State, 672 So. 2d 1387, 1389 (Ala. Crim. App. 1995) ("Here, a minute entry on the case action summary indicates that the jury was 'struck and sworn.' This is sufficient ...."). Because the case-action summary shows that the trial court administered an oath to the petit jury, we need not consider whether the holding of the Court of Criminals Appeals –- that any error in failing to administer an oath to the petit jury was harmless -- conflicts with prior caselaw. Although the Court of Criminal Appeals based its affirmance of the judgment of the trial court on other grounds, that court properly affirmed Lee's conviction because his contention that the trial court failed to administer an oath to the petit jury is refuted by the record. III. Conclusion We affirm the judgment of the Court of Criminal Appeals. AFFIRMED. Stuart, Smith, Bolin, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 15, 2008
db50162a-43f0-4abc-bfad-806787734e86	Dennis Maciasz et al. v. Fireman's Fund Insurance Company and Chicago Insurance Company	N/A	1061133	Alabama	Alabama Supreme Court	REL: 01/18/2008 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, 2007-2008 _________________________ 1061133 _________________________ Dennis Maciasz et al. v. Fireman's Fund Insurance Company and Chicago Insurance Company Appeal from St. Clair Circuit Court (CV-03-19) LYONS, Justice. Dennis Maciasz and Stephanie Maciasz, as individuals, and Dennis Maciasz, as father and next friend of Tina Maciasz, a deceased minor, appeal from a summary judgment entered in favor of Fireman's Fund Insurance Company ("Fireman's") and 1061133 2 Chicago Insurance Company, intervenors in an action between the Maciaszes and Christian Cheerleaders of America, Inc. ("CCA"). We affirm. I. Facts and Procedural History On July 20, 2002, a van transporting members of the CCA staff was involved in a single-vehicle accident in St. Clair County. The van was traveling from a cheerleading camp in Texas to a cheerleading camp in North Carolina. Tina Maciasz, a 17-year-old member of the CCA staff and a resident of Louisiana, died as a result of injuries she suffered in the accident. In 2003, Dennis Maciasz and Stephanie Maciasz, as individuals, and Dennis Maciasz, as Tina's father and next friend, sued Ford Motor Company, Goodrich Corporation, Michelin North America, Inc., and fictitiously named defendants in the St. Clair Circuit Court, seeking to recover damages resulting from the accident. On July 12, 2004, the Maciaszes amended their complaint to add claims against CCA alleging negligence and negligent entrustment of the van. On December 9, 2005, the Maciaszes added a claim of negligent 1061133 3 supervision against CCA. CCA was the only defendant remaining when the case was set for trial. On April 3, 2006, the trial court entered a consent judgment against CCA in the amount of $1,500,000. CCA, at the time of the accident, maintained a "Sports General Liability Policy-Occurrence Policy" ("the sports liability policy") that consisted of (1) a liability portion insured through Chicago Insurance Company, a subsidiary of Fireman's, and (2) an accident-medical portion insured through Hartford Insurance Company. CCA also maintained an automobile liability policy with Allstate Insurance Company at the time of the accident. The consent judgment states that Allstate agreed to pay $150,000 in complete satisfaction of any amounts it owes on CCA's automobile liability policy. The consent judgment further states: "[The Maciaszes] shall have the right to execute and collect said Judgement and prosecute all claims and causes of action owned by [CCA] against any and all Fireman's Fund Policies, including the 'Sports General Liability Policy-Occurrence Policy' and all addendums and/or amendments thereto, or other policies providing coverage to [CCA]. [The Maciaszes] cannot execute or collect on the Allstate Policy, other than the Allstate payment." 1061133 The record is unclear as to when Chicago Insurance 1 intervened. 4 On May 22, 2006, the trial court permitted Fireman's to intervene in the action between the Maciaszes and CCA.1 Firemen's also challenged the consent judgment by filing a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the consent judgment to protect itself against the enforcement of the judgment or from prejudice in subsequent proceedings stemming from the consent judgment and by filing a Rule 60, Ala. R. Civ. P., motion for relief from the judgment insofar as it related to Fireman's. On September 26, 2006, the trial court stayed all proceedings related to Fireman's Rule 59 and Rule 60 motions pending resolution of the issue whether CCA's sports liability policy provided coverage for damages arising from the accident that gave rise to the Maciaszes' claims against CCA. The sports liability policy issued by Fireman's subsidiary, Chicago Insurance, states that it is made and accepted subject to several different forms and endorsements, including CG 00 01 01 96; GLD-2065 (09/96); and GLE-8049 (08/99). Form CG 00 01 01 96, titled "Commercial General Liability Coverage Form" states: 1061133 5 "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. We may at our discretion investigate any 'occurrence' and settle any claim or 'suit' that may result." This form includes an automobile exclusion, which states that the insurance does not apply to: "'Bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and 'loading' and 'unloading.'" Form GLD-2065 (09/96), titled "Extension of Declarations" states that "COVERAGE AFFORDED BY THIS POLICY IS SPECIFICALLY LIMITED TO THE SPORTS OR ACTIVITIES CLASSIFICATION(S) LISTED BELOW FOR WHICH AN ADVANCE PREMIUM IS SHOWN." (Capitalization in original.) Under the "Classification" column is a subheading "Sports Camps/Clinics." Under that subheading are two entries: "All approved sports activities included" and "Participant coverage for coaches is provided for team sports, 1061133 The summary judgment in favor of Fireman's and Chicago 2 Insurance mooted Fireman's pending and stayed Rule 59 and Rule 60 motions. 6 camps/clinics only if covered by Primary Accident/Medical Policy." Endorsement GLE-8049 (08/99), titled "Nationwide Amendatory Endorsement for Sports Associations" states "THIS ENDORSEMENT CHANGES THE POLICY." (Capitalization in original.) The endorsement further states under the coverage- limitation heading: "Liability coverage afforded by this policy is specifically limited to the Sports Classification(s) which have been scheduled, with an advance premium, on the EXTENSION OF DECLARATIONS of this policy and applies ONLY while covered, sponsored and supervised activities of the NAMED INSURED are taking place. Coverage also applies directly prior to and following such activities, provided that 'participants' are under the direct supervision of the NAMED INSURED." (Capitalization in original.) On February 23, 2007, Fireman's and Chicago Insurance, jointly, and the Maciaszes moved for a summary judgment on the question whether the sports liability policy provided insurance coverage. After a hearing, the trial court entered a summary judgment in favor of Fireman's and Chicago Insurance. The trial court's order states that North 2 1061133 7 Carolina law should apply to determine the insurance-coverage question. The order then specifically states: "5. ... [T]he central issue in the case [is] whether or not the sports general liability policy covers travel to and from camp [sites]. "6. That it is the ruling of this court that it does not. "7. That the Sports General Liability Policy clearly sets out those activities covered under the policy, one of which is cheerleading 'youth only.' "8. The Court finds that this language is explicit, the coverage is explicit, the policy is not ambiguous." The Maciaszes then appealed to this Court. II. Standard of Review "The standard by which this Court will review a motion for summary judgment is well established: "'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); § 12-21-12(d)[,] Ala. Code 1975. Evidence is "substantial" if it is 1061133 Neither party challenges the trial court's conclusion 3 that North Carolina law governs the construction of the sports liability policy. 8 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 Florida, 547 So. 2d 870, 871 (Ala. 1989). "'In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we 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).'" Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)). III. Analysis We apply North Carolina law in determining whether the 3 trial court properly ruled, as a matter of law, that the sports liability policy does not cover damages resulting from the vehicle accident that gave rise to the Maciaszes' claims against CCA. 1061133 9 The Maciaszes argue that the trial court incorrectly interpreted and applied North Carolina law to conclude that the sports liability policy was explicit and unambiguous. The Maciaszes assert that under North Carolina law, an insurance policy is ambiguous when "[a] reasonable reading of the insurance policy could produce either the reading offered by plaintiff or the reading offered by defendants ...." Scottsdale Ins. Co. v. Travelers Indem. Co., 152 N.C. App. 231, 234, 566 S.E.2d 748, 750 (2002). The Maciaszes rely on Scottsdale Insurance to argue that the sports liability policy is ambiguous because, they say, the automobile exclusion and the extension of declarations can reasonably be read so as to be in direct conflict. In Scottsdale Insurance, several baseball players were injured in an automobile accident while traveling between baseball games. 152 N.C. App. at 232, 566 S.E.2d at 748. The insurer of the baseball team's sponsor sought a judgment declaring that the sponsor's commercial general liability policy did not cover damages arising from the automobile accident. Id. The policy contained an automobile exception and an endorsement that provided coverage for "activities 1061133 10 necessary or incidental to the conduct of practice, exhibitions, scheduled or postseason games." 152 N.C. App. at 233, 566 S.E.2d at 749. The Court of Appeals of North Carolina noted that "this endorsement expands the policy's coverage. The endorsement contains the clause 'THIS ENDORSEMENT CHANGES THE POLICY.'" Id. (capitalization in original) (emphasis added). The court found that the policy was ambiguous because the endorsement that expanded coverage to "activities necessary or incidental to the conduct of" a scheduled game could reasonably be read as covering travel between games and therefore to directly conflict with the automobile exclusion in the policy. 152 N.C. App. at 233-34, 566 S.E.2d 749-50. Because an ambiguous policy must be construed in favor of the insured, the court held that the policy covered damages arising from the automobile accident. Id. The Maciaszes assert that Scottsdale Insurance is nearly indistinguishable from the present case and that it requires reversal of the summary judgment in favor of Fireman's and Chicago Insurance. Fireman's and Chicago Insurance contend that the phrase "[a]ll approved sports activities included" in the extension 1061133 11 of declarations, CGL-2065 (09/96), in CCA's policy is critically different from the endorsement in Scottsdale Insurance providing coverage for "activities necessary or incidental to the conduct of [a scheduled activity]." (Emphasis added.) Fireman's and Chicago Insurance contend that the extension of declarations does not expand the scope of CCA's coverage but merely extends the same coverage -- for injuries occurring while covered athletic programs are taking place -- to campers and coaches who would not have otherwise been covered by the initial deposit premium paid by CCA for cheerleading camps. The agent who sold CCA the policy explained that because there was uncertainty as to the number of people attending camps, a "deposit" premium is collected, and the camp is thereafter required to inform the insurer of the number of attendees at the camp. An additional premium is then collected based on the number of attendees; therefore, the "extension of declarations" merely adds the participants in the camp to the policy. Thus, Fireman's and Chicago Insurance argue that the extension of declarations for "[a]ll approved sports activities" in the sports liability policy, unlike the endorsement in Scottsdale Insurance, does not 1061133 12 expand coverage so as to bring it into conflict with the automobile exclusion in the policy. We agree that Scottsdale Insurance is distinguishable from the present case. The Maciaszes improperly treat the coverage provided for in the extension of declarations as an endorsement expanding the scope of covered activities. Unlike the endorsement in Scottsdale Insurance, however, the extension of declarations in the sports liability policy does not state that it expands coverage; it does not even use the word "endorsement." Furthermore, the extension of declarations states that "COVERAGE AFFORDED BY THIS POLICY IS SPECIFICALLY LIMITED TO THE SPORTS OR ACTIVITIES CLASSIFICATION(S) LISTED BELOW ...." (Capitalization in original.) (Emphasis added.) Absent from CCA's policy is any language analogous to the reference to "activities necessary or incidental to the conduct of [a scheduled activity]" present in Scottsdale Insurance, thereby justifying the Scottsdale Insurance court's inclusion of transportation to or from the activity as within the scope of coverage of the policy. 1061133 13 Fireman's and Chicago Insurance contend that the present case is analogous to Builders Mutual Insurance Co. v. North Main Construction, Ltd., 176 N.C. App. 83, 625 S.E.2d 622 (2006). In Builders Mutual Insurance, an insurer sought a judgment declaring that the automobile exclusion, identical to that found in the sports liability policy, in an employer's commercial general liability policy excluded coverage for claims of negligent hiring, supervision, and/or retention of a driver who was involved in an automobile accident. 176 N.C. App. 85-86, 625 S.E.2d at 623-24. The Court of Appeals of North Carolina noted that "[i]n determining whether an automobile exception applies, this Court looks to the actual causes of a given injury and considers whether a cause separate from the use of a vehicle resulted in those particular injuries." 176 N.C. App. at 89, 625 S.E.2d at 625. The court held that because the "injuries could not have occurred in the absence of the use of the automobile," the automobile exclusion precluded coverage under the policy. Id. In the present case, the injuries to Tina Maciasz, giving rise to the Maciaszes' claims, were clearly caused by the use of an automobile: therefore, the automobile exclusion in the 1061133 14 sports liability policy precludes coverage under the policy. We further find no conflict between the automobile exclusion in the sports liability policy and the extension of declarations, which limits coverage to "[a]ll approved sports activities." The trial court correctly found that there was no coverage under the policy for damages arising from the automobile accident. The Maciaszes also argue that the trial court erred in concluding that the sports liability policy was explicit and unambiguous because, they say, the lack of a definition in the policy of the phrase "[a]ll approved sports activities" creates an ambiguity that must be construed against Fireman's and Chicago Insurance, as drafters of the sports liability policy. Fireman's and Chicago Insurance contend that a definition of "[a]ll approved sports activities" is not needed because a plain reading of the terms "sport" and "activity" reveal that the phrase "approved sports activities" is not capable of more than one meaning. The Court of Appeals of North Carolina has held that "[i]nsurance contracts are construed according to the intent of the parties, and in the absence of ambiguity, we construe them by the plain, ordinary 1061133 15 and accepted meaning of the language used." Integon Gen. Ins. Corp. v. Universal Underwriters Ins. Co., 100 N.C. App. 64, 68, 394 S.E.2d 209, 211 (1990). We hold that the lack of a definition of "[a]ll approved sports activities" in the sports liability policy does not render the policy ambiguous. We reject the contention that travel to or from a venue for a sports activity reasonably constitutes "sports activities." As previously noted, coverage for travel could have been afforded by the use of a term such as "activities necessary or incidental to the conduct of [a scheduled activity]," as was present in the policy before the North Carolina Court of Appeals in Scottsdale Insurance. The Maciaszes further contend that the trial court's stated reasoning for entering a summary judgment in favor of Fireman's and Chicago Insurance was not based upon the automobile exclusion in the sports liability policy. Fireman's and Chicago Insurance dispute this contention. Even assuming that the summary judgment was not based on the automobile exclusion, as we explained in Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So. 2d 1013, 1020 (Ala. 2003), "this 1061133 16 Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court." The Maciaszes also argue that the summary judgment in favor of Fireman's and Chicago Insurance is due to be reversed because the court solely relied on the insurers' underwriting manual, which was not part of the insurance policy, to conclude that "covered activities" were defined in the policy as "cheerleading (youth only)." Fireman's and Chicago Insurance contend that this issue is not reviewable on appeal because the Maciaszes neither objected to the trial court's reference to the underwriting manual at the hearing on the motions for a summary judgment nor filed a Rule 59, Ala. R. Civ. P., motion raising the issue. Even assuming this issue is before us, the trial court's consideration of the underwriting policy, if error, is harmless because the unambiguous applicability of the automobile exclusion affords a separate and independent basis for affirmance of the summary judgment. See Rule 45, Ala. R. App. P. IV. Conclusion 1061133 17 The automobile exclusion in the sports liability policy issued by Chicago Insurance precludes coverage for damages from the automobile accident that gave rise to the Maciaszes' claims against CCA. We affirm the summary judgment in favor of Fireman's and Chicago Insurance. AFFIRMED. Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur.	January 18, 2008
183c786c-fe68-4750-a7f8-1a5a60c101dc	Narriman DiBiasi & Julia Brewer, as co-administratrixes of the Estate of Dominic DiBiasi v. Joe Wheeler Electric Membership Corp.	N/A	1060848	Alabama	Alabama Supreme Court	REL: 1/11/08 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, 2007-2008 _________________________ 1060848 _________________________ Narriman DiBiasi and Julia Brewer, as co-administratrixes of the estate of Dominic DiBiasi v. Joe Wheeler Electric Membership Corp. Appeal from Morgan Circuit Court (CV-05-279) SEE, Justice. This wrongful-death action was brought on behalf of Dominic DiBiasi ("Dominic"), who was electrocuted when he grabbed an uninsulated high-voltage transmission line hanging over the roof of the house on which he was standing. The 1060848 2 transmission line, owned by Hartselle Utilities ("Hartselle"), was attached to a utility pole owned by Joe Wheeler Electric Membership Corp. ("Joe Wheeler"). Narriman DiBiasi, Dominic's mother, and Julia Brewer, Dominic's common-law wife, as co- administratrixes of Dominic's estate (hereinafter referred to collectively as "DiBiasi"), filed a wrongful-death action against both Hartselle and Joe Wheeler, alleging negligence and wantonness on the part of both parties. Joe Wheeler moved for a summary judgment, arguing that its pole was not defective and that Joe Wheeler owed no duty to Dominic. The trial court granted Joe Wheeler's motion and entered a judgment in its favor, stating that "the plaintiffs' claims set forth against [Joe Wheeler] in their original Complaint and all amendments thereto are dismissed with prejudice." The summary judgment was made final pursuant to Rule 54(b), Ala. R. Civ. P. DiBiasi now appeals, arguing that there is substantial evidence indicating that Joe Wheeler owed a duty to Dominic. However, because DiBiasi makes no apparent argument in support of her wantonness claim, it is waived, and, therefore, we do not address it. See Pardue v. Potter 632 So. 2d 470, 473 1060848 3 (Ala. 1994) ("Issues not argued in the appellant's brief are waived." (citing Deutcsh v. Birmingham Post Co., 603 So. 2d 910 (Ala. 1992); Bogle v. Scheer, 512 So. 2d 1336 (Ala. 1987)). We affirm the trial court's judgment. Facts and Procedural History On October 11, 2004, Dominic was residing with Alan and Sherry Holt at 1607 Main Street West, Hartselle, Alabama, to which Hartselle supplies the power. On the morning of the accident, he was working around the house when he and Alan decided to climb onto the roof to inspect the gutters. While they were on the roof, the men saw two lines above the roof of the Holts' house -- one line was 2 to 2.5 feet above the peak of the roof, while the other was approximately 5 feet above the peak of the roof. The two men discussed attaching a pulley to the lines and sliding down, in the belief that the lines were support cables for the nearby utility poles. It appears that both men grabbed the lower of the two lines, a neutral line, and determined that "it would probably hold [them]." Dominic was curious about the higher of the two lines, and he grabbed it to determine whether it would hold 1060848 4 them; that line, however, was an uninsulated 7,200-volt transmission line, and Dominic was killed when he grabbed it. The line that electrocuted Dominic was an electric transmission line owned by Hartselle that crossed the Holts' house as it ran between two poles –- one owned by Hartselle and the other owned by Joe Wheeler. Hartselle attached its line to Joe Wheeler's pole as part of a "joint-use" or "pole- sharing" agreement. The agreement allows the sharing of poles for the transmission of power to the companies' respective customers without the need to duplicate infrastructure. DiBiasi sued both Hartselle and Joe Wheeler, alleging both negligence and wantonness. The negligence and wantonness claim against Joe Wheeler alleges as follows: "a. Defendant Joe Wheeler failed to properly place the utility pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, and allowed the electric power line in question to be in close proximity to the house located at such address; "b. Defendant Joe Wheeler failed to install a utility pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, which was sufficient in height to allow for the proper clearance of the utility line in question over the home located on such property; 1060848 It appears that DiBiasi filed a second amended complaint 1 after Joe Wheeler moved for a summary judgment. The second amended complaint added an additional allegation against Joe Wheeler: "e. Defendant Joe Wheeler used, or allowed defendant [Hartselle] to use, the Joe Wheeler electrical utility pole located on the south end of the residential property at 1607 Main Street West, Hartselle, Alabama, to run a 7,200 volt, uninsulated power line directly over the residence located on such property in a manner which did not comply with the minimum clearance safety standards of the electrical utility industry and, thus, created or allowed for the creation of a dangerous safety hazard." 5 "c. Defendant Joe Wheeler failed to properly construct, install, or erect an electric power pole on the south end of the residential property located at 1607 Main Street West, Hartselle, Alabama, and, thus, allowed for the power line in question to be hung or run in a manner that did not comply with the minimum clearance construction standards of the electrical industry for such lines; and "d. Defendant Joe Wheeler failed to properly maintain and inspect the electric power pole located on the south end of the residential property at 1607 Main Street West, Hartselle, Alabama, and thereby allowed for a dangerous condition to be created by the line in question being in close proximity to the house located on such property." 1 Joe Wheeler argued in its motion for a summary judgment that it "had no duty to inspect, maintain, or supervise the power lines of another company, Hartselle." Joe Wheeler further argued that "[n]o evidence exists that [it] had any 1060848 6 notice of a dangerous condition in the [Hartselle] lines and no evidence exists that Joe Wheeler was required to or was expected to inspect the power lines servicing another utility company's customer." DiBiasi responded, arguing, among other things, that, "even if Joe Wheeler was under no duty to inspect the power line that caused [Dominic]'s death, once Joe Wheeler became aware that the power line improperly and hazardously ran from its pole directly over a residence, this created a duty in Joe Wheeler to take appropriate action. The failure of Joe Wheeler to take any action once armed with this knowledge properly creates liability." The trial court granted Joe Wheeler's summary-judgment motion, finding as follows: "Under the facts set forth in the record ... Joe Wheeler owed no duty to ... Dominic, to inspect electric transmission lines that were attached to its utility pole ... that were owned, installed, controlled and maintained exclusively by [Hartselle]. The plaintiffs have failed to produce substantial evidence ... that Joe Wheeler had knowledge or reason to know that [Hartselle]'s electric transmission lines were too close to the roof of the house occupied by [Dominic] .... This Court understands that certain of its conclusions disregard opinions expressed by [DiBiasi]'s expert in his affidavit. That is so because the disregarded opinions are not based on substantial evidence or on specific electric code provisions, accepted utility industry standards or legal authorities, and that would require the Court to engage in conjecture about unproven facts or impermissibly draw inferences from assumed facts or 1060848 In response to Joe Wheeler's summary-judgment motion, 2 DiBiasi attached the affidavit of her expert witness, John C. Frost. In June 2006, Joe Wheeler moved to strike Frost's affidavit "on the grounds that [the opinions] are based upon conjecture and speculation. 'Evidence which affords nothing more than speculation, conjecture, or guess is wholly insufficient to warrant submission of a case to the jury.'" (Quoting Thompson v. Lee, 439 So. 2d 113, 116 (Ala. 1983).) Although the trial court appears to have disregarded the opinions found in the affidavit, the record does not indicate that the affidavit was actually stricken. 7 from other inferences for which there is no evidentiary support."2 DiBiasi now appeals, arguing that the trial court improperly granted Joe Wheeler's summary-judgment motion because, DiBiasi says, she produced substantial evidence showing that Joe Wheeler owed a duty to Dominic that it breached, resulting in his death. Issues DiBiasi argues that the trial court improperly entered a summary judgment for Joe Wheeler because, she says, (1) DiBiasi presented evidence indicating that Joe Wheeler knew or should have known that its pole was being used to create an unreasonably dangerous condition and, therefore, it owed a duty to Dominic to require the removal of the dangerous condition, and (2) DiBiasi presented substantial evidence from which a jury could reasonably infer that Joe Wheeler knew or 1060848 8 should have known that its utility pole was being used to run an uninsulated transmission line over the Holt residence in a manner that created an unreasonably dangerous hazard. Standard of Review A summary judgment is appropriate only if the trial court finds that there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Once a movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to produce "substantial evidence" that creates a genuine issue of material fact. Ex parte CSX Transp., Inc., 938 So. 2d 959, 961 (Ala. 2006). "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.'" Ex parte CSX Transp., 938 So. 2d at 961 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)); § 12-21-12(d), Ala. Code 1975. "'"If the nonmovant [assuming the nonmovant has the burden of proof at trial] cannot produce sufficient evidence to prove each element of its claim, the movant is entitled to a summary 1060848 9 judgment, for a trial would be useless."'" Prowell v. Children's Hosp. of Alabama, 949 So. 2d 117, 128 (Ala. 2006) (quoting Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999), quoting in turn and approving language from Justice Houston's special writing in Berner v. Caldwell, 543 So. 2d 686, 691 (Houston, J., concurring specially)). On appeal, this Court reviews a summary judgment de novo. Ex parte Essary, [Ms. 1060458, Nov. 2, 2007] ___ So. 2d ___, ___ (Ala. 2007). In doing so, we apply the same standard of review as did the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). "'"Our review is subject to the caveat that we must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant."'" Ex parte CSX Transp., 938 So. 2d at 962 (quoting Payton v. Monsanto Co., 801 So. 2d 829, 833 (Ala. 2001), quoting in turn Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)); Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990). Finally, this Court does not afford any presumption of correctness to the trial court's ruling on questions of law or its conclusion as to the appropriate legal standard to be applied. Ex parte CSX 1060848 10 Transp., 938 So. 2d at 962 (citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997)). Analysis DiBiasi argued at trial, and she now argues on appeal, that Joe Wheeler owed a duty to Dominic. DiBiasi first argues that because Joe Wheeler is a utility, the duty it owed Dominic was a "'high and exacting'" duty because Joe Wheeler was supplying "'the very dangerous agency' of electricity." DiBiasi's brief at 26. DiBiasi also argues that Joe Wheeler owed a duty to Dominic because it knew or should have known of the danger created by the low-hanging uninsulated transmission lines that crossed over the Holt residence and, therefore, that Joe Wheeler had a duty to require that Hartselle remove "the dangerous condition." DiBiasi's brief at 3. We conclude, however, that Joe Wheeler did not owe Dominic a duty of care and that Joe Wheeler was entitled to a judgment as a matter of law. In a negligence action the plaintiff must prove (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; (3) that the plaintiff suffered a loss or injury; and (4) that the defendant's breach was the 1060848 11 actual and proximate cause of the plaintiff's loss or injury. Ford Motor Co. v. Burdeshaw, 661 So. 2d 236, 238 (Ala. 1995). "'It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty,'" Thompson v. Mindis Metals, Inc., 692 So. 2d 805, 807 (Ala. 1997) (quoting Morton v. Prescott, 564 So. 2d 913, 915 (Ala. 1990)), because "where there is no duty, there can be no negligence." City of Bessemer v. Brantley, 258 Ala. 675, 681, 65 So. 2d 160, 165 (1953). "'In Alabama, the existence of a duty is a strictly legal question to be determined by the court.'" Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 937 (Ala. 2006) (quoting Taylor v. Smith, 892 So. 2d 887, 891-92 (Ala. 2004)). The entry of a summary judgment for Joe Wheeler indicates that the trial court concluded that Joe Wheeler did not owe Dominic a duty; however, the existence of a duty is strictly a legal question and, under our standard of review, this Court does not afford the trial court's conclusions of law any presumption of correctness. Therefore, the strictly legal question this Court must answer is whether Joe Wheeler owed a duty to Dominic. A. Did Joe Wheeler owe Dominic a "high and exacting" duty? 1060848 12 DiBiasi first argues that, as a company that supplies electric power, Joe Wheeler's duty of care "extends to the safeguarding of everyone in person or property, at places where he or it may rightfully be." DiBiasi's brief at 29 (citing Alabama Power Co. v. Matthews, 226 Ala. 614, 147 So. 889 (1933)). She further urges that Joe Wheeler owed Dominic a "high and exacting" duty because Joe Wheeler is "in the business of supplying 'the very dangerous agency' of electricity." DiBiasi's brief at 26 (citing Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85 (1916). Joe Wheeler responds that "each of the Alabama cases cited by [DiBiasi] deals with the defendant utility company's failure to eliminate a defect in a power line that it owned. Moreover, each of these cases dealt with electricity supplied by the defendant." Joe Wheeler's brief at 34. Joe Wheeler's argument is well-taken. The authority on which DiBiasi relies is distinguishable. See Alabama Power Co. v. Emens, 228 Ala. 466, 473, 153 So. 729, 734 (1934) ("Where, in the case at bar, a person engaged in the business of generating and distributing electricity for domestic and other uses also sells and engages to install electrical equipment in the 1060848 13 residence of one of its patrons, and supply its current therefor for domestic use, it must exercise the care of a reasonably prudent man skilled in the practice and art of installing such equipment .... [T]he obligation assumed and the duty arising out of such circumstances are not unlike that resting upon a physician or surgeon ...."); Matthews, 226 Ala. at 615, 147 So. at 889-90 ("Plaintiff's evidence tended to show that defendant [electric company] maintained and operated a transmission line ... carrying a current of 44,000 volts; ... that a current of electricity, thus diverted from the line, killed the mule instantly."); Bloom, 197 Ala. at 497, 73 So. at 88 ("The degree of care resting upon the municipality, with respect to the means of transmitting its electric current over public thoroughfares was high and exacting, commensurate with the very dangerous agency it was employing in lighting its streets."). See also Alabama Power Co. v. Cantrell, 507 So. 2d 1295, 1297 (Ala. 1986) ("'"The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires ...."'" (quoting Alabama Power Co. v. 1060848 14 Brooks, 479 So. 2d 1169, 1172 (Ala. 1985), quoting in turn Bush v. Alabama Power Co., 457 So. 2d 350, 353 (Ala. 1984)). Joe Wheeler may have a "high and exacting" duty when it is supplying electricity over its own transmission lines; however, that question is not presented here. It is undisputed that Joe Wheeler merely supplied the pole to which Hartselle's transmission line was affixed and that it neither owned nor installed the power lines at issue and did not supply the power resulting in the death of Dominic. Therefore, we conclude that Joe Wheeler did not, in this instance, owe Dominic the "high and exacting duty" DiBiasi asserts it owed him. B. Was Joe Wheeler's knowledge of the alleged dangerous condition created by the transmission line sufficient to impose a duty on Joe Wheeler? DiBiasi argues that Joe Wheeler's duty to Dominic arose because, she argues, Joe Wheeler knew or should have known that the low-hanging uninsulated transmission line created an unreasonably dangerous condition and that Joe Wheeler therefore had a duty to require Hartselle to remedy the condition. DiBiasi's brief at 29. Joe Wheeler argues that imposing a duty on it solely on the basis of knowledge "is 1060848 15 contrary to well-established law in Alabama." Joe Wheeler's brief at 37. "'In determining whether a duty exists in a given situation, however, courts should consider a number of factors, including public policy, social considerations, and foreseeability. The key factor is whether the injury was foreseeable by the defendant.'" Patrick v. Union State Bank, 681 So. 2d 1364, 1368 (Ala. 1996) (quoting Smitherman v. McCafferty, 622 So. 2d 322, 324 (Ala. 1993)). In addition to foreseeability, Alabama courts look to a number of factors to determine whether a duty exists, including "'(1) the nature of the defendant's activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened.'" Taylor, 892 So. 2d at 892 (quoting Morgan v. South Cent. Bell Tel. Co., 466 So. 2d 107, 114 (Ala. 1985)). DiBiasi argues that "once [Joe Wheeler] had actual or constructive knowledge of the deadly hazard, it had a duty to require the removal of the hazard," and she asserts that "notice or knowledge of a dangerous condition can give rise to a duty of care." DiBiasi's brief at 29 (citing Cantrell, 507 So. 2d at 1297 ("'"The duty of an electric company, in 1060848 DiBiasi argues, in her reply brief, that Joe Wheeler's 3 "failure to ensure that the attachment of the line does not directly create such [a] hazard, is an affirmative act which creates the risk that third parties might be injured. Under these circumstances, Joe Wheeler has a duty to third parties who may be injured as a result." DiBiasi's reply brief at 8- 9. DiBiasi is correct that "[i]n a variety of circumstances, this Court has recognized a duty to foreseeable third parties, 16 conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith."'" (quoting Brooks, 479 So. 2d at 1172, quoting in turn Bush, 457 So. 2d at 353))). The holding of Cantrell is not as broad as DiBiasi posits. Cantrell imposes a specific duty on utilities to insulate their own lines, in specific circumstances, whenever it is reasonably anticipated that people may come into contact with those lines. 507 So. 2d at 1297. Although the duty imposed on the utility companies in Cantrell is triggered when the utility company is aware that individuals may come in contact with its lines, Cantrell does not stand for the proposition that notice of a dangerous condition alone is sufficient to give rise to a duty of care. Further, none of 3 1060848 based on a general 'obligation imposed in tort to act reasonably.'" Taylor, 892 So. 2d at 893 (quoting Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496, 502 (Ala. 1984) (citing cases)). DiBiasi makes this argument and cites this authority for the first time in her reply brief. Arguments made for the first time in a reply brief are not properly before this Court. See The Dunes of GP, L.L.C. v. Bradford, 966 So. 2d 924 (Ala. 2007) (noting the "settled rule that this Court does not address issues raised for the first time in a reply brief" (citing Byrd v. Lamar, 846 So. 2d 334, 341 (Ala. 2002))). We therefore do not address the argument. 17 the other cases cited by DiBiasi support her position. See Bush v. Alabama Power Co., 457 So. 2d at 353-54 (holding Alabama Power Company to the same standard established in Cantrell); Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 576-77, 675 A.2d 209, 214 (1996) ("The existence of actual knowledge of an unsafe condition can be extremely important in considering the fairness in imposing a duty of care."); Dominic v. Wal-Mart Stores, Inc., 606 So. 2d 555, 559 (La. Ct. App. 1992) (holding that "[w]hile we agree with [Wal-mart] that there is no statutory or jurisprudential requirement that Wal-Mart chain or lock the carts kept outside the store, this fact does not preclude the imposition of a duty on Wal-Mart not to create an unreasonable risk of harm with its shopping carts to motorists using the adjacent streets. Actual or constructive knowledge of a risk or injury gives rise to a 1060848 18 duty to take reasonable steps to protect against injurious consequences resulting from the risk," but noting that "whether a legal duty is owed by one party to another depends upon the facts and circumstances of the case and the relationship of the parties ...."); Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1986) ("Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition. Actual knowledge, not mere constructive knowledge, is required."); cf. Alabama Dep't of Corr. v. Thompson, 855 So. 2d 1016, 1021-22, 1025 (Ala. 2003) (noting that "'"[i]t is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third party"'" (quoting Hail v. Regency Terrace Owners Ass'n, 782 So. 2d 1271, 1274 (Ala. 1999), quoting in turn Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1372 (Ala. 1986)), and holding that "state correctional officers owe a general duty to the public, not a duty to a specific person, to maintain custody of inmates"). Although it may be true that foreseeability is a key factor in determining whether a duty exists in a particular 1060848 19 circumstance, and knowledge of a dangerous condition may establish foreseeability, Alabama caselaw does not hold that knowledge, by itself, is sufficient to impose a duty. "The rule which seems to have emerged from the decisions in the United States is that there will be liability in tort whenever misperformance [of a contract] involves a foreseeable, unreasonable risk of harm to the interests of the plaintiff or where there would be liability for performance without the contract. More simply stated, we must determine whether there is a legal duty sufficient to support an action for negligence. For that determination, three primary considerations are important: (1) the nature of the defendant's activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened." Morgan v. South Cent. Bell Tel. Co., 466 So. 2d at 114. Apart from premises liability, Alabama law does not support imposing a duty of care on a party based solely on that party's knowledge of the existence of a dangerous condition. Therefore, we hold that, even if Joe Wheeler knew, or should have known, of a dangerous condition, this alone is an insufficient basis on which to impose a duty of care on Joe Wheeler. C. Do the Morgan factors support imposing a duty on Joe Wheeler? Finally, DiBiasi argues that, under the factors identified in Morgan, supra, Joe Wheeler owed a duty to 1060848 20 Dominic. Assuming, without holding, that DiBiasi could establish that Joe Wheeler could have foreseen that an individual would be electrocuted by a low-hanging transmission line owned by Hartselle and attached to Joe Wheeler's pole, none of the other Morgan factors support imposing a duty on Joe Wheeler. 1. The nature of Joe Wheeler's activities DiBiasi argues that the nature of Joe Wheeler's activity, which it characterizes as the "generation and transmission of high powered electrical current to the public," is "hazardous and replete with danger requiring extreme caution." DiBiasi's brief at 27-28. Joe Wheeler notes that there was no such activity on its part and that its only activity "was to allow [Hartselle] to connect its line to a Joe Wheeler pole." We recognize that, generally speaking, Joe Wheeler is in the business of generating and transmitting electricity; however, even viewing the evidence, as we must, in the light most favorable to DiBiasi, the nonmovant, in this instance Joe Wheeler's only involvement in Dominic's death was that it had at some point allowed Hartselle to connect its line to a utility pole owned by Joe Wheeler. 1060848 21 2. The relationship between the parties DiBiasi argues that the relationship between Dominic and Joe Wheeler was that "of a member of the community with an electrical co-op which has placed its instrumentalities of service into the community." DiBiasi's brief at 28. DiBiasi argues that the duty owed by Joe Wheeler "extends to the safeguarding of everyone, in person or property, at places where he or it may rightfully be." DiBiasi's reply brief at 11 (citing Alabama Power Co. v. Matthews, supra). As noted previously, Matthews involved the presence of high-voltage transmission lines and their proximity to people and property. See Matthews, supra. Matthews is concerned with the danger arising from such lines, wherever they are located. However, the discussion in Matthews appears to be directed to those who maintain or operate the lines; it does not address what relationship, if any, exists between the general public and the owner of a utility pole. DiBiasi admits that Hartselle supplied the electricity to the Holt household and that it was Hartselle's transmission line that caused Dominic's death. DiBiasi's brief at 5 ("It is undisputed that the high-voltage line that caused the death of [Dominic] was owned by 1060848 22 [Hartselle]."). Aside from the fact that that transmission line was attached to a pole owned by Joe Wheeler, there is no apparent relationship between Dominic and Joe Wheeler. 3. The type of injury or harm threatened Finally, DiBiasi argues that "the type of injury or harm threatened was grave (i.e., death or severe injury by electrocution)." DiBiasi's brief at 28. In her reply brief, DiBiasi argues that "the circumstances presented here obviously involve a high potential for severe personal injury or death." DiBiasi's reply brief at 11. DiBiasi does not, however, address how Joe Wheeler's act of allowing another utility company to use its pole involved such a potential. In fact, DiBiasi does not allege that Joe Wheeler's act alone contributed to Dominic's death. Instead, DiBiasi argues that "[t]he combined actions of [Hartselle] and Joe Wheeler placed uninsulated high voltage transmission lines within just a few feet of the roof line of a private residence." DiBiasi's reply brief at 11. DiBiasi's arguments are premised on the transmission of electricity; DiBiasi has not addressed the type of injury or harm that was threatened by Joe Wheeler's act of supplying a utility pole. 1060848 23 Even assuming that Dominic's injuries were foreseeable, we conclude that none of the other Morgan factors support the existence of "a legal duty [owed by Joe Wheeler] sufficient to support an action for negligence." Morgan, 466 So. 2d at 114. Therefore, based on our review and application of the Morgan factors, we hold that Joe Wheeler did not owe a duty of care to Dominic. Conclusion We conclude that Joe Wheeler did not owe a duty of care to Dominic and that Joe Wheeler was entitled to a judgment as a matter of law. Therefore, the summary judgment in favor of Joe Wheeler is affirmed. AFFIRMED. Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur.	January 11, 2008
5ec1bf45-f538-4192-9c22-2b9a3bfcaa08	Anthony Long v. Robert Bryant	N/A	1060515	Alabama	Alabama Supreme Court	REL:01/18/08 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, 2007-2008 _________________________ 1060515 _________________________ Anthony Long v. Robert Bryant Appeal from Perry Circuit Court (CV-04-94) BOLIN, Justice. Anthony Long appeals the decision of the Perry Circuit Court ordering a new election in this challenge to the mayoral election for the City of Marion, brought by mayoral candidate Robert Bryant. The issues in this election contest concern mainly the validity of several votes cast by absentee ballots. 1060515 2 Facts and Procedural History In the August 24, 2004, mayoral election for the City of Marion, three candidates qualified and ran: Robert Bryant, Herb Tucker, and Anthony Long, the incumbent. A total of 2,156 votes were cast for the office of mayor. After the votes were tallied on election day, Long received 1,120 votes, Bryant received 997 votes, and Tucker received 39 votes. On August 26, 2004, Long was declared the winner. On August 30, 2004, Bryant contested the election on the grounds that illegal absentee-ballot votes were cast by: (1) persons not registered to vote; (2) persons registered to vote, but voting in the wrong ward or district; (3) persons not residents of the City; (4) persons convicted of crimes involving moral turpitude; (5) persons whose ballots were illegal because of insufficient witnesses; (6) persons who had not lived in the City long enough to participate in the election; (7) persons who gave fraudulent or fictitious addresses; (8) persons who were dead; and (9) persons who had been fraudulently induced to vote for Long. On September 3, 2004, Long filed an answer. On September 22, 2004, Long amended his answer and filed a motion to dismiss on the grounds that Bryant had failed to file a 1060515 3 verified petition in accordance with § 17-15-29, Ala. Code 1975. That same day, the trial court entered an order denying Long's motion to dismiss. On September 27, 2004, Long filed a petition for a writ of mandamus with this Court seeking an order directing the trial court to, among other things, dismiss Bryant's complaint for failure to file a verified petition. This Court stayed all proceedings pending a decision on Long's petition. On January 7, 2005, we denied the petition for a writ of mandamus without an opinion. Ex parte Long, 924 So. 2d 801 (Ala. 2005)(table). On July 26, 2005, trial began and lasted until August 5, 2005. After the trial, both parties submitted posttrial briefs to the court. A year and a half later, on December 19, 2006, the trial court entered the following order: "This cause came to be heard before this court on July 26, 2005 and ended on August 5, 2005. The Court, after considering the testimony, evidence and arguments presented, makes the following findings, conclusions and judgment: "BACKGROUND "On August 24, 2004, the City of Marion, Alabama, located in Perry County, held its quadrennial general election. The offices up for election were Mayor and all five (5) of the city council districts. Each seat was contested. Relevant to this cause was the Office of Mayor. Three candidates were on the ballot. They were Robert 1060515 4 Bryant, the Contestant (Bryant), Anthony 'Tony' Long, the Contestee (Long), and Herb Tucker, a non- party to this action. A total of 2,156 votes were cast for the Office of Mayor. This was 38 more votes than cast in the race for the council district as 2,118 votes were cast. "The relevant vote totals showed Bryant with 640 (64%) of his total of 997 votes from voters who cast their ballot at the polls, and 357 (36%) of his total from absentee ballot votes. Of Bryant's absentee ballot votes, 95 were challenged and 8 were I.D. challenged. Long received 649 (58%) of his total of 1,120 votes from voters who cast their ballots at the polls, and 471 (42%) of his total from absentee ballot votes. Of Long's absentee ballot votes, 246 were challenged and 12 were I.D. challenged. The non-party challenger, Herb Tucker, received a total of 39 votes. Neither party offered any evidence to challenge or dispute Mr. Tucker's votes. Therefore, 39 votes will be listed as his final vote total to be discussed at the conclusion of this order. "On August 26, 2004, the results of the election were canvassed and Long was declared the winner by a margin of 41 votes in avoiding a run-off. Of the 2,156 votes cast, 1,078 votes plus 1 vote, for a total of 1,079 would be needed for an outright victory. Long exceeded that total by 41 votes. "Bryant timely filed his election contest on August 30, 2004. Various pre-trial motions were filed and ruled upon, including a Motion to Dismiss and [a petition for a] Writ of Mandamus, which the Alabama Supreme Court ultimately denied. The case was thereupon scheduled for discovery and the resulting trial. "LEGAL STANDARDS "Statutes providing for election contest are to be strictly construed. Parker v. Mt. Olive Fire & 1060515 5 Rescue Dist., 420 So. 2d 31 (Ala. 1982). Contest of municipal elections are governed under the authority of Alabama Code § 11-46-69, which included Articles 2 and 3 of Chapter 15, Title 17. This includes § 17- 15-20 through -63 [now § 17-16-47 through -76]. The requirements of § 17-15-29 [now § 17-16-56] are to be read and followed together with § 11-46-69 to institute the contest. The requirements of § 11-46- 70 - 74 are also relevant here. "FINDINGS "The court received evidence from both parties concerning the legality of Absentee Ballots and took the issues and procedural questions under advisement. Neither party offered any evidence to dispute the votes cast at the polls. Thus, those vote totals for each respective party are retained. "The court heard arguments concerning whether both parties complied with § 17-15-21 [now § 17-16- 48], Notice of Nature of Evidence. The court finds that Bryant did comply with the statute. However, Long arguably did not comply with the statute. Long failed to openly tender the requisite notice, even while having time to do so during trial and having the court to continue the proceedings when necessary. However, the court finds his proffer sufficient. Thus, Long's relevant evidence will be considered in the final results.3 "BRYANT'S ARGUMENTS "1. No Reason Indicated on the Application. "Exhibits 13, 29, 90, 102, 103, 104, 105, 107, 108, 111, 112, 113, 114, 115, 143, 354 and 355 all failed to indicate a reason for voting absentee on the application. Such ballots should not have been sent or counted. Each vote was for Long. The number is seventeen (17). Thus, seventeen (17) votes are deducted from Long. 1060515 6 "2. No Reason Indicated on the Affidavit. "Exhibits 70, 86, 100, 101, 109, 110 and 142 fail to indicate a reason for voting absentee on the ballot affidavit. Each was a vote for Long. Such votes should not have been counted. The number is seven (7). Thus, seven (7) votes are deducted from Long. "3. No Reason Requested on the Application or Affidavit. "Exhibits 46 and 106 do not indicate a reason for voting on the application or affidavit. Each was a vote for Long. These votes should not have been cast or counted. Thus, two (2) votes are deducted from Long. "4. Inconsistent Reason For Voting. "The following were votes cast for Long and the reason for voting on the affidavit was inconsistent with the initial request on the application. These votes should not be counted. Four voters applied by stating they will be out of the county, but averred that they are physically incapacitated. They are Exhibits 52, 64, 306 and 331. Four votes applied by stating they were physically incapacitated, but averred that they will be out of the county. They are Exhibits 77, 78, 135 and 350. Three voters applied by stating they will be out of the county, but averred they will be working a conflicting 10- hour work shift. They are Exhibits 96, 302, and 323. One voter, Exhibit 69, stated in her application that she would be working a conflicting work schedule, but avers she will be out of the county. "Thus, this category totals twelve (12) votes. These votes should be subtracted from Long. "5. Disqualifying Convictions. "They found seven (7) voters who cast ballots for Long to be disqualified due to felony 1060515 7 convictions. Bryant presented some evidence of two (2) others, but the Court only found seven (7) to be disqualified; there was no evidence of any restoration of voting rights or pending appeal or court-ordered reversal regarding these votes. Exhibit 40 had a Possession of Controlled Substance conviction and was sentenced on January 5, 2004. He also had an improper non-government-issued I.D. Exhibit 41 had an Arson 2nd conviction and was sentenced March 4, 1996. Exhibit 43 had a Possession of Forged Instrument 2nd conviction and was sentenced on November 1, 1997. Exhibit 44 had an Unlawful Imprisonment 1st and Arson 2nd conviction and was sentenced on May 4, 1998. Exhibit 49 had an Unlawful Distribution of Controlled Substances conviction and was sentenced on March 12, 2003. Exhibit 152 had a Vehicular Homicide conviction and was sentenced on February 23, 2004. Exhibit 206 had a Burglary 3rd conviction and was sentenced on November 13, 2000. Thus, seven (7) votes are deducted from Long. "6. Improper Identification. "In addition to Exhibits 40, 225 and 238, seven 4 (7) other voters were presented with improper identification pursuant to § 17-10A-1 [now § 17-10- 1]. Bryant argued more voters; however, the Court's review of the exhibits showed the following: Improper identification submitted for Exhibits 151, 238, 225, 242, 243, 244, 245, 247, 248 and 249. Each of these voters, and Exhibit 40, have a non- governmental generated I.D. that does not fall within the acceptable forms of I.D. listed in § 17- 11A-1 [now § 17–9-30 and § 17-17-28]. Long's arguments are considered and failed. Thus, ten (10) votes from Long are taken. "7. Votes Changed or Altered on Ballots. "Bryant presented three (3) instances in which a voter's ballot was changed or altered. Each ballot had whiteout or correction fluid on them. The Court 1060515 8 could clearly see that Bryant's name was marked, then whiteout was used to mark Long. The voter could have received another ballot and marked the ballot as spoiled. This was not done. This involved Exhibits 118, 209 and 341. Exhibit 118 bears an initial which could very well be that of the voter. The initial is next to Long's name in addition to the mark. These ballots go beyond the integrity of the votes and really trouble the Court. They should be referred to the District Attorney. However, the Court will give Exhibit 118 the benefit of the doubt, as there is credible initial beside the change. No vote is deducted for Exhibit 118. No evidence was offered to cure these problems, nor any of the problems mentioned in this Order. In fact, no voters were called to cure any defects found thus far. "In light of the evidence, the Court finds that two (2) votes are due to be taken from Long and two (2) votes added to Bryant. "8. Improper Address on Application. "Title 17-10-5 gives the procedure for delivery of absentee ballots to a voter. Pertinent to the Court's inquiry is the requirement of ballots being sent to '... the address where the voter regularly receives mail ...' Several applications were requested to be sent to obvious addresses where the voter did not regularly receive mail. The statute directs that applications mailed to a fraudulent address may be suspect and should be turned over to the District Attorney. The Absentee Election Manager sought to assist the voters by determining alternate addresses to send the ballots. This Good Samaritan act runs afoul of the statute, as it was the District Attorney's responsibility after the fraud was suspected. Yes, there are circumstances in § 17- 10-5 [now § 17-11-5] which the Absentee Election Manager makes inquiry when there is a continuous absentee voting pattern. It was the District Attorney's responsibility to further continue with 1060515 9 the applications. Thus, the ballots should not have been sent out and the votes not counted. This conduct jeopardizes the integrity of the system. "This situation involves a request for several applications to be mailed at the same post office box. This runs afoul of the statute and was the driving force behind revisions of the statute. All votes cast concerning these voters were for Long. They should have not been cast. "These votes involve: "P.O. Box 515 - Exhibits 5, 7, 32, 38, 76, 118, 145, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 201, 203, 211, 227A, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 238A 239, 240, 241, 250, and 251, a total of forty-five (45) votes to be deducted from Long. "P.O. Box 536 - Exhibits 4, 6, 23, 31, 66, 67, 68, 119, 120, 126, 141, 144, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 300 and 327, a total of forty-four (44) votes to be deducted from Long. "P.O. Box 1148 - Exhibits 36, 39, 55, and 146, a total of four (4) votes to be deducted from Long. "P.O. Box 1149 - Exhibits 30, 34 and 37, a total of three (3) votes to be deducted from Long. "Bryant offered several more voters and addresses. However, the Court concluded only the above. Thus, ninety-six (96) votes are deducted from Long for this category. "9. Other Concerns. "Bryant argued several forgeries and improper signatures, but presented no expert testimony to assist the Court. The Court can review and note 1060515 10 variances in signatures. However, that is not persuasive, as people at times can write differently depending on the circumstances and conditions. The Court did find some obvious signature variances, which the Court finds were not from the same writer. They are Exhibits 67, an obvious variance; 76, signature on application acknowledged by someone else; 120, an obvious variance altogether; 223, an obvious print on the application; and 250, an obvious variance. However, these voters are already included on other deletions. "Bryant offered other evidence and arguments concerning the residency of various students. Such arguments are not accepted. Also, the vote of an under-age person is also not accepted as the application concludes otherwise and no other evidence was presented. "LONG'S ARGUMENTS. "10. Improper Discovery. "The Court denied these arguments raised by Long during the proceedings. Long participated in the discovery process and had copies of the documents produced in a manner to keep the ballots with the applications so the Court could determine the actual votes. To cry foul again is unwarranted. "11. Applications and Affidavits Improper. "Long raised the argument that certain exhibits failed to meet the captioned requirements. Exhibits 35, 36, 37, 40 and 42 all failed to indicate a reason for voting absentee on the affidavit. So did Exhibits 39 and 41. Exhibit 38 was not made available to the Court. Exhibit 9 listed an inconsistent reason on the application and affidavit. Exhibits 71 and 112 were sufficient and Long's arguments are incorrect and fail. All of the above were votes for Bryant. Thus, eight (8) votes are deducted from Bryant. 1060515 11 "12. Improper Signatures. "Long failed to submit sufficient evidence on improper signatures or other persons signing for another as he argued. However, Exhibits 28 and 29 do not contain a reason or signature on the affidavit. However, the Exhibits do not show who received the voter's vote. Long failed to submit expert testimony to assist the Court. The lay witness was not helpful and from a review of the ballots, an apparent bias witness as she was a candidate who received votes just like Bryant. However, the Court viewed the Exhibits and could only conclude two (2) obvious variances in the signatures, Exhibits 65 and 68. Each vote was for Bryant. Thus, two (2) votes are deducted from Bryant. "13. P. O. Box Addresses. "Long argues that voters for Bryant who used P.O. Boxes should be excluded. However, the P.O. Box is not the litmus test. It is the fraud aspect of a place a voter does not regularly receive mail or is not registered at. Long has not submitted any evidence to disqualify the votes he argues against. In fact, the exhibits show the P.O. Box addresses to be consistent on the application and affidavit in many instances. There was no evidence of wholesale request to be mailed to a certain P.O. Box as raised by Bryant. In fact, Exhibits 6, 18, 62, 63, 64, 65, 66, 67, 68, 69 and 70 are all consistent. Long's arguments are without foundation and fail. "14. Non-Residents. "Like Bryant, Long's arguments and evidence on this issue are not persuasive. "15. Bad Faith. "Long presents no credible evidence to support his 'bad faith' arguments as to Exhibits 27A, 31, 1060515 It appears that the trial court has counted three ballots 1 –- exhibits number 40, number 225, and number 238 –- twice. Although it noted in category 6 that these three ballots were covered elsewhere, the total for category 6 –- 10 –- seems to include them. According to our calculations, the total votes for category 6 should be 7, making the total number of votes for Long 970. 12 34, 42, 71, 72, 86, 87, 89, 114, 115, 116, 117 and 118. The arguments fail. "Tally "After a review of the findings, the court tallies the vote as follows: Category Bryant Long Tucker Certification 997 1,120 39 1. -17 2. -7 3. -2 4. -12 5. -7 6. -10[1] 7. +2 -2 8. -96 9. 0 10. -8 11. -2 12. 0 13. 0 14. 0 "Net Total 989 967 39 [1] "Total Legal Votes Cast - 1,995 "Total votes needed for victory - 998 + 1 = 999. No winner is declared. A run-off election is needed. 1060515 13 "CONCLUSION "There was certain testimony which gravely concerns the Court and warrants investigation by the District Attorney's Office and other agencies. Voter H.L.K., a black male, testified, he completed his application for an absentee ballot with J.E. After his ballot did not arrive, H.L.K. said he contacted J.E. J.E. told him he needed to come to Mr. Long's office. After arriving and a confrontation, H.L.K. stated he was given his ballot. "Voter V.G., a white male, at _____ Street, Marion, Alabama, testified that A.K.H., R.H. and T.J.H. came from Selma to live with him a few days before the election. He stated they registered to vote, voted in the election, and then returned to Selma shortly after the election. Voter D.G., the wife of V.G., verified these facts and stated she was present when the children voted. "There appeared to be a voter virus which caused several others to move into the city limits just before the election. For instance, voter B.W.N. testified she had lived in Sprott and Bibb County prior to the election. However, she was renting a place from Mr. Long during the election cycle. Voter L.C.H. testified he currently lives in Uniontown, but intended to have the address on Centreville Street in Marion as his home. Voter P.W.P. testified his utilities were off at the time and he had to live in the city limits with his father-in-law. He stated he had lived in Scott Station with his grandmother. Voter B.H.P. testified she moved into the city limits with her father because her power was off. Voter D.S.H., who had lived and currently lives in Sprott, testified she moved into the city limits from July to October, 2004 because she was going through a divorce. Voter C.R.H. testified she lived in town for convenience during the election cycle. Further, she stated as of October 2004, she moved back to Sprott. Voter F.M., who had lived and is currently with his father in Sprott, moved into 1060515 14 the city limits from May 2004 to December 2004 because of family problems. Voter C.N. testified he moved into the city limits with his uncle and stayed from June 2004 to September 2004. He stated he never intended to live there but it was just a place to stay. Further, he said he changed his voting location to the city for the election. The Court rejects these votes and declare them ineligible voters. "Furthermore, there were numerous instances where the voter testified the signature on the Application for an Absentee Ballot was not their signature, i.e., C.R.H., J.R.L.C., D.W., H.L.K., and B.M.M.. Additionally, J.R.L.C. testified, the signature on his wife's application was not his wife's signature. "More particularly, there were applications which requested ballots be sent to a P.O. Box. There was no evidence offered to support who owned the P.O. Box or who authorized the request. This included approximately forty-one (41) applications for P.O. Box 536, forty-one (41) for P.O. Box 515, and seven (7) applications for P.O. Box 1148. "JUDGMENT OF THE COURT "Pursuant to Alabama Code [1975,] § 11-46-70 ..., the Court declares that no person (candidate) has the requisite number of votes to be declared a winner. Such fact is certified to the City of Marion, Alabama that a vacancy exists in the Office of Mayor and a run-off election, pursuant to § 11- 46-55(d) is so Ordered. ____________________ " Long offered evidence of alleged illegalities 3 of some 50 ballots specifically and other generally. " Exhibit 40 is also covered under disqualifying 4 convictions and Exhibits 225 and 238 are covered under improper P.O. Boxes." 1060515 15 (Some footnotes omitted.) Long appeals. Standard of Review An election contest is a statutory matter, and the statute governing the election must be strictly observed and construed. Watters v. Lyons, 188 Ala. 525, 66 So. 436 (1914). "In reviewing a 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). Analysis Long argues that the trial court did not have subject- matter jurisdiction over the case because Bryant did not file a properly verified petition or statement of contest as required by § 17-15-29 (now § 17-16-56). Specifically, Long contends that Bryant's statement was not verified because Bryant failed to swear before a notary public or someone 1060515 16 authorized to administer oaths that the facts and allegations in the statement were true. Section 11-46-69(a), Ala. Code 1975, provides that "[t]he 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 ...." Section 11-46-69(b) provides that such contest shall be instituted in the manner set out in § 17-15-29. Section 17- 15-29 provided, in pertinent part, that "the party contesting must file in the office of the circuit clerk of the county in which the election was held, a statement in writing, verified by affidavit, of the grounds of the contest as provided in this article ...." (Section 17-16-56 contains this same language.) In Washington v. Hill, 960 So. 2d 643 (Ala. 2006), the defeated candidate filed an election contest in a mayoral race. The candidate who had been declared the winner argued that the trial court exceeded its discretion by allowing the election contest to proceed even though the defeated candidate had not complied with § 17-15-29. The candidate argued, among other things, that the defeated candidate had failed to swear, 1060515 17 as part of her affidavit, that the statements contained in the complaint were true. This Court stated: "[T]he applicable statute does not require the statement in an election contest to, as [the candidate] asserts, include specific reference to the date and time of the election being contested or specific wording in an affidavit averring that the statement is true. What the text of the statute requires is language that makes sufficiently clear which election is being challenged and some form of an affidavit by the contestant that communicates the grounds of the contest. As a result, we conclude that the trial court did not err by failing to require stricter adhesion to the form of the election-contest statement than is required by the text of the statute." 960 So. 2d at 648. In the present case, Bryant completed a "notice of contest" complaint that contained the relevant information regarding the election. The complaint was signed in the presence of a notary public, even though the notary public refers to the complaint as a "conveyance" and states that the complaint was voluntarily signed "for the purposes therein contained." We cannot say that Bryant's election-contest statement failed to comply with § 17-15-29. Bryant's complaint sets out which election is being challenged and contains an affidavit setting out the grounds of the contest. 1060515 Section 177(b), Ala. Const. 1901, provides: "No person 2 convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability." Whether the felonies at issue involved crimes of moral turpitude has not been raised. 18 Long contends that the trial court erred in discounting votes for Long on the basis that the votes were cast by persons with a felony record. Seven votes were cast by persons convicted of a felony, but two of those person's names had not been removed from the voter-registration list. Long urges this Court to overrule Williams v. Lide, supra, and allow the two persons whose names had not been removed from the voter registration list to have their votes counted. 2 In Williams, a losing candidate for county office contested the election on the ground that eight persons who had been convicted of a felony for which they were sentenced to time in a penitentiary and whose voting rights had not been restored had been allowed to vote. The competing candidate argued that the eight persons were entitled to vote because the board of registrars had not notified them that their names had been removed from the voter-registration list as required in § 17-4-132 (now repealed). This Court held: 1060515 Article VIII, § 182, Ala. Const. 1901, was repealed by 3 Amendment No. 579, which also repealed former § 177 and added current § 177. 19 "We determine that the legislative intent for requiring notice, by certified mail, of the board's intention to strike a person's name from the registration list is two-fold: (1) to provide an elector with a reasonable opportunity to prevent his disfranchisement by offering proof that he had not been convicted of the disqualifying offense, and (2) to apprise an elector of the fact of his disqualification, thus providing him an incentive to seek the restoration of his right to vote. See generally § 17-3-10 [now § 17-3-31] ('restoration of right to vote upon pardon'; specific statutory provision for reinstatement of voting rights upon submission of a copy of the pardon document). "However, there is no authority for [the competing candidate's] contention that parties who are disqualified from voting under § 182[, Ala. Const. 1901,] nonetheless retain their right to vote until they are notified pursuant to § 17-4-132 that the board intends to remove their names from the registration list. Section 182 appears to be the sole authority for determining who has a right to vote. Section 17-4-132 merely provides the board of registrars with a method of purging the voter registration list that complies with due process; specifically, it protects those citizens whose names the board has selected, erroneously, for removal from the voter registration list, by giving those citizens an opportunity to contest the removal of their names. The presence or absence of a person's name on the voter registration list does not necessarily determine the right to vote."3 628 So. 2d at 533-34 (footnote omitted). Justice Maddox concurred specially in Williams, writing that persons whose 1060515 20 names appear on a voter's list should be entitled to vote until the procedure set forth in § 17-4-132 for removing names have been followed, because § 17-4-132, by setting up a procedure to remove a person's name from a voter's list because of a felony conviction, is designed to guarantee a registered voter who has been convicted of a felony that measure of due process required by the United States Constitution. Justice Adams dissented, writing: "The primary purposes of the notice requirement are to provide an elector with a reasonable opportunity to prevent his disenfranchisement and to apprise an elector of the fact of his disqualification, thus providing him an incentive to seek the restoration of his right to vote. One does not seek a remedy until he is made aware of a deprivation. It is not unreasonable to assume that a significant number of voters are unaware of this particular consequence of a felony conviction -- especially when they are not apprised of it, as the statute requires. The board, in failing to provide either prepurgation or postpurgation notice -– in patent violation of the provisions and purpose of the statute -- discourages the discovery of the deprivation and the pursuit of a remedy." 628 So. 2d at 539-40. Although Long urges this Court to adopt the views of the special writings in Williams, we believe the majority in Williams was correct. The reason behind disenfranchising convicted felons is to preserve the purity of the ballot box, rather than to inflict an additional injury on 1060515 21 a person convicted of a felony. A "criminal record" is one of the "factors which a State may take into consideration in determining the qualifications of voters." Lassiter v. North Hampton County Bd. of Election, 360 U.S. 45, 51 (1959)(comparing the constitutionality of literacy requirements with the constitutionality of disenfranchising voters based on criminal records). The principle "that a convicted felon may be denied the right to vote" remains "unexceptionable." Roper v. Evans, 517 U.S. 620, 634 (1996)(although some voting restrictions are unconstitutional, a person convicted of a felony can be excluded from voting). Alabama has the right to deny a convicted felon the right to vote, and the mere presence of a person's name on a voter- registration list does not necessarily determine the right to vote. Long argues that the trial court erred in throwing out what he says were numerous legal absentee ballots cast for him. Specifically, Long contends that the trial court erred in throwing out 38 votes on the grounds that certain absentee voters did not properly complete the application or affidavit or that the voters gave inconsistent reasons for voting by absentee ballot. Long also contends that the trial court 1060515 22 erred in discounting 96 absentee ballots based on an improper address. Long fails to cite to any portion of the 18-volume record in support of the underlying facts regarding these absentee ballots. Rule 28(a)(10), Ala. R. App. P., requires that an argument in an appellant's (or cross-appellant's) brief contain "citations to the cases, statutes, other authorities, and parts of the record relied on." Long cites Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999), in support of this argument, for the proposition that a person must not be disenfranchised when he has made an honest effort to comply with the law and in that effort has substantially complied with the statutory mandates. It is not the duty of this Court to undertake to link Long's legal argument with the bare factual allegations he offers in support of that argument. "'[W]here no legal authority is cited or argued, the effect is the same as if no argument had been made.'" Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005)(quoting Bennett v. Bennett, 506 So. 2d 1021, 1023 (Ala. Civ. App. 1987)). "[I]t is neither this Court's duty nor its function to perform an appellant's legal research." City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747, 752 (Ala. 1998). 1060515 23 Last, Long argues that the trial court lacked the authority to order a runoff election because the time for holding a "runoff," i.e., the third Tuesday following the regular election, § 11-46-55, Ala. Code 1975, has passed. Long states in his brief: "Needless to say, the third Tuesday after the general election has long since passed. In fact, that date was over two years ago. Therefore the statute does not allow a 'run-off' under these circumstances. ... [I]t is not established what is to take place when there is not a majority vote when judgment is rendered concerning the outcome of an election contest 2 years after the regular election." (Long's brief pp. 17-18.) "The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. ... In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses ...." Darks Diary, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380 (Ala. 1979). In construing statutes, we may glean legislative intent from the language used, the reason and necessity for the legislative act, and the purpose sought to be obtained. Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238 (Ala. 1992). Courts do not interpret statutory provisions in isolation, but consider 1060515 Section 11-46-55 was amended effective April 13, 2006; 4 among nonsubstantive changes, the amendment substituted "sixth" for "third" in two places. 24 them in the context of the entire statutory scheme. Siegelman v. Alabama Ass'n of School Boards, 819 So. 2d 568 (Ala. 2001). Where more than one Code section is involved, each should be construed in harmony with the other Code sections then in effect, so far as is practical. Kinard v. Jordan, 646 So. 2d 1380 (Ala. 1994). At the time pertinent to the appeal, § 11-46-55(d), Ala. Code 1975, provided: "d) If no candidate receives a majority of all the votes cast in such election for any one office or offices for the election to which there were more than two candidates, then the municipal governing body shall order a second or 'runoff' election to be held on the third Tuesday next thereafter [4] following the regular election, at which election the two candidates having received the most and the second most votes, respectively, shall be candidates, and the person receiving the highest number of votes for that office in the runoff election shall be declared elected. If only two candidates are standing for election for any one office or offices and neither candidate receives a majority, then the municipal governing body shall order a second or 'runoff' election to be held on the third Tuesday next thereafter following the [4] regular election, at which election the two candidates shall be candidates, and the person receiving the highest number of votes for that office in the runoff election shall be declared elected. In the event one of the candidates for a 1060515 Following the enactment of Act No. 2006-570, Ala. Acts 5 2006, §§ 17-15-20 through -35 have been reordered as §§ 17-16- 47 through -62; §§ 17-15-50 through -63 have been reordered as §§ 17-16-63 through -76. 25 particular office in the runoff election withdraws, then there need not be a second election to fill the office nor shall the name of either the party so withdrawing or the remaining candidate be printed on the ballot of any second election held under this article. This second election shall be held by the same election officers who held the first election and at the same places the first election was held. If there should be a tie vote cast at any runoff election, then in that event the tie shall be decided by the municipal governing body. A vote for a particular candidate by a majority of those members eligible to vote of the governing body shall be necessary to decide the election in his or her favor. The municipal clerk shall file a copy of each certificate of election in the office of the judge of probate of the county in which the city or town is situated, and the judge shall file the certificate in the same manner that he or she files the declaration of the result of elections to county offices." Section 11-46-69(b) provides that any municipal-election contest must be commenced within five days after the result of the election is declared and that the contest must be instituted in the manner prescribed in § 17-15-29 (now § 17- 16-56), and except as otherwise provided, all proceedings relative to municipal-election contests shall be governed by the provisions of §§ 17-15-20 through -35 and §§ 17-15-50 through -63. 5 1060515 26 Section 11-46-70 addresses the trial of a municipal- election contest. Section 11-46-70 contains four parts, each setting out a scenario involving a contested election: "If, on the trial of the contest of any municipal election, it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the requisite number of votes for election, judgment must be entered declaring such person duly elected, and such judgment shall have the force and effect of investing the person thereby declared elected with full right and title to have and to hold the office to which he is declared elected. "If it appears that no person has or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election, judgment must be entered declaring this fact, and such fact must be certified to the municipal governing body and the vacancy in the office, election to which had been contested, shall be filled in the manner prescribed by law for filling the vacancy in such office. "If the person whose election is contested is found to be ineligible to the office, judgment must be entered declaring the election void, and the fact must be certified to the municipal governing body. The vacancy in such office shall be filled in the manner prescribed by law. "If the party whose election is contested is found to have been duly and legally elected, judgment must be entered declaring him entitled to 1060515 We note that the first and second parts of § 11-46-70 6 contain the phrase "illegally rejected" votes. Although § 11- 46-70 uses the phrase "illegally rejected" votes, an election contest would include both "illegal votes" that were received and the "rejection of any legal votes." See § 17-15-21 (now § 17-16-48)(addressing the testimony permitted in election contests). This is so because § 11-46-70 should be read in pari materia with § 17-15-21, as § 11-46-69(b) provides that contests in municipal-election proceedings are governed by "Articles 2 and 3, Chapter 15, Title 17 of this Code," except as otherwise provided. 27 have and to hold the office to which he was so elected." 6 Part one of § 11-46-70 involves a situation in which two candidates are involved in an election contest, and following the trial the judge determined that the candidate who had been declared the winner did not receive the highest number of votes. Part two applies to those situations where, in an election contest, the judge ultimately determines that, after tallying the legal votes cast in an election that a tie vote results. See Jacobs v. Ryals, 401 So. 2d 776 (Ala. 1981). Part two also applies where more than two candidates are involved, and no one candidate receives a majority of the votes. See Ex parte Vines, 456 So. 2d 26 (Ala. 1984). Part three involves ineligibility to hold the office to which a candidate has been elected, and part four applies in an 1060515 28 election contest where the trial judge determines that the declared winner did receive the majority of legal votes cast. In the present case, the original mayoral election was held on August 24, 2004, and Long was declared the winner on August 26, 2004. Subsequently, Bryant timely filed a contest of the election, pursuant to § 11-46-69, on August 30, 2004. Three candidates were involved in the election, and no candidate received a majority of the votes following the trial of the election contest. Long appears to argue that the mere passage of time as a result of the election contest prevents a runoff election. However, an election contest is part of the statutory election process as set out by the legislature, and the statutes address deficiencies or irregularities that may occur in casting ballots. Following the correct count of votes, a runoff election between the top two of the three candidates involved is properly ordered after "no person has or would have had, if the ballots intended for him and illegally rejected had been received, the requisite number of votes for election" under § 11-46-70. We note it would render an election contest meaningless if the three-week time limit for holding a runoff election set out in § 11-46-55(d), as it read at the time of the election here, barred a runoff 1060515 In 2006, the legislature increased the time for a runoff 7 election from three weeks to six weeks. See note 4. However, six weeks is still not enough time in which to contest an election result, conduct discovery, and complete a trial. 29 election following an election contest where no one candidate received a majority of the votes. In a three-week time limit, there would never be enough time to contest an election, conduct discovery, and complete a trial. Under Long's 7 argument, any time an election was contested and no one candidate had a majority of the votes, there would be a vacancy in the office and a vacancy in a class 8 municipality, like Marion, would be filled by the city council. Certainly, that result was not the intent of the legislature when it provided for timely runoff elections in § 11-46-55(d). Conclusion The judgment of the trial court ordering a runoff election between Long and Bryant is affirmed. AFFIRMED. Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock, JJ., concur.	January 18, 2008
c330e4ee-0a11-44d4-8385-71949de23d5f	Lottie Bishop, as personal representative of the estate of Patricia B. Hambright, deceased v. Chilton County	N/A	1061153	Alabama	Alabama Supreme Court	REL: 01/18/08 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, 2007-2008 _________________________ 1061153 _________________________ Lottie Bishop, as personal representative of the estate of Patricia B. Hambright, deceased v. Chilton County Appeal from Chilton Circuit Court (CV-06-344) WOODALL, Justice. Lottie Bishop, as personal representative of the estate of Patricia B. Hambright, deceased, appeals from a summary judgment in favor of Chilton County ("the County") in Bishop's 1061153 2 wrongful-death action against the County. We reverse and remand. According to the undisputed facts, Patricia B. Hambright was killed on September 22, 2005, when the automobile she was operating was struck by another automobile at an intersection in Chilton County. On April 24, 2006, letters of administration of Hambright's estate were issued to Bishop. On October 26, 2006, Bishop mailed to the Chilton County Commission a letter and "affidavit of claim," asserting that Hambright was "killed by another automobile due, in part, to the County's failure to properly maintain the caution light and keep the grass cut in the right of way and/or shoulder." She "demand[ed] payment ... in an amount of no less than $100,000." On November 28, 2006, Bishop sued the County and the operator of the vehicle that struck Hambright's vehicle, reasserting against the County allegations of the affidavit. In a wrongful-death count, she sought from the County "punitive damages in an amount to be determined by the jury." On December 18, 2006, the County answered the complaint and asserted, as its second defense, that Bishop "failed to file an ante litem notice of claim with the Chilton County 1061153 The County raises no issue regarding Bishop's compliance 1 with § 6-5-20 or § 11-12-5. 3 Commission within twelve (12) months of the accrual of the claim alleged in the complaint ... as required by [Ala. Code 1975,] §§ 6-5-20, 11-12-5, and 11-12-8." On December 21, 2006, the County moved for a summary judgment on the sole ground asserted as its second defense. Specifically, the County argued that the "[f]ailure of a prospective tort claimant to file a pre-suit claim within the twelve-month period contained in § 11-12-8 bars any later lawsuit arising out of the same facts." 1 According to § 11-12-8, "[a]ll claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred ...." (Emphasis added.) The County contended that, because the notice of a claim was not given within 12 months of the accident, the claim was barred by § 11-12-8. In her response to the County's motion, Bishop argued that, for the purposes of § 11-12-8, "a wrongful-death cause of action accrues at the time the personal representative is appointed, rather than the date of death." (Emphasis in original.) 1061153 4 The trial court entered a summary judgment for the County and certified the judgment as final pursuant to Ala. R. Civ. P. 54(b). From that judgment, Bishop appealed. On appeal, Bishop contends that her complaint was timely filed because it was filed within one year of the issuance to her of letters of administration of Hambright's estate. For that proposition, she cites Buck v. City of Rainsville, 572 So. 2d 419 (Ala. 1990). In Buck, this Court considered the timeliness of a wrongful-death claim against a municipality within the context of Ala. Code 1975, § 11-47-23, which provides, in pertinent part: "Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred." (Emphasis added.) The Court held "that -- in regard to actions that must be brought by a personal representative -- for the purposes of § 11-47-23, a wrongful death cause of action accrues at the time the personal representative is appointed." 572 So. 2d at 423 (emphasis added). This was so, because, the Court explained, "[a] cause of action 'accrues' when the party in whose favor it arises is entitled to maintain an action on it," id., and "an individual cannot maintain a wrongful death action unless 1061153 5 he has been appointed personal representative of the estate of the deceased whose death is the basis of the wrongful death action." 572 So. Sd at 422. The County concedes that Buck correctly states the law regarding the filing of a wrongful-death action against a municipality. However, it contends that § 11-12-8 "provides a broader defense to counties with regard to the time-filing requirements of pre-suit notices of claim than § 11-47-23 does to municipalities." The County's brief, at 10-11 (emphasis added). This is so, because, the County argues, § 11-12-8 contains a phrase not found in § 11-47-23, which broadens its scope, namely, the phrase "or become payable." According to the County, this phrase necessitates a result here different from the one in Buck. Our standard of review is de novo. That is the standard by which we review the trial court's grant or denial of a summary-judgment motion, as well as the standard by which we review questions of law regarding statutory construction. Pinigis v. Regions Bank, [Ms. 1060474, July 6, 2007] ___ So. 2d ___, ___ (Ala. 2007); Smith v. State Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala. 2006). This appeal presents a 1061153 6 single question, purely legal in nature, namely, whether the phrase in § 11-12-8 "or become payable" controls the timing of claims against a county arising under the Alabama Wrongful Death Act, Ala. Code 1975, § 6-5-410. We hold that it does not. Bishop contends that the phrase "become payable" does not apply to wrongful-death claims. She argues that a wrongful- death claim "accrues," as that term is used, both in § 11-12-8 and in § 11-47-23, when letters of administration are issued. Moreover, according to Bishop, until she was appointed as personal representative of Hambright's estate, no one existed to whom payment of a claim could be made. Thus, she insists, the ante litem aspect of § 11-12-8 differs in no relevant respect from that in § 11-47-23, insofar as the sections apply to wrongful-death actions. As the sole basis for its argument for a different result under § 11-12-8, the County insists that liability on a wrongful-death claim becomes "fixed" against a county and immediately "payable" by the county at the moment of death. This assertion is repeated throughout the County's brief. See the County's brief, at 12 ("A wrongful death claim 'becomes 1061153 7 payable' against the county immediately upon the death of a decedent in circumstances where a county is chargeable with liability because it is then that the liability of the county becomes fixed"); at 22 ("a wrongful death claim against a county 'become[s] payable' immediately upon the death of the decedent (assuming that a factual basis for liability against the county exists)"(emphasis in original)); at 23-24 ("Because of this difference in wording between the municipal and the county nonclaim statute -- with the county statute focusing upon when the liability of the county becomes fixed, rather than when the claimant acquires the capacity to make the claim -- a pre-suit notice of claim against a county in a wrongful death action must be filed within 12 months of the death of the decedent, or else it is extinguished"); at 27 ("in cases involving wrongful death claims, the time period provided for in § 11-12-8 commences to run from the time the liability of the county becomes fixed"); at 28 ("the Legislature logically provided for the time period in § 11-12-8 to commence when the liability against the county first becomes fixed"); and at 28 ("the time period for the filing of a notice of [a] claim against a county begins to run at the time that the liability 1061153 8 is fixed") (emphasis added except where otherwise noted). We agree with the County that the phrase "become payable" refers to fixed liabilities. However, we disagree that a wrongful- death claim that has not been reduced to a judgment or a settlement is a fixed liability. The term "fixed liabilities" applies to liabilities that are "certain and definite as to both obligation and amount; e.g. interest on bonds or mortgage." Black's Law Dictionary 638 (6th ed. 1990) (emphasis added). To "fix" means, among other things, "[t]o liquidate or render certain." Id. at 637 (emphasis added). "'A claim is liquidated if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance upon opinion or discretion. Examples are claims upon promises to pay a fixed sum, claims for money had and received, claims for money paid out, and claims for goods or services to be paid for at an agreed rate.'" Janelle Mims Marsh and Charles W. Gamble, Alabama Law of Damages § 8:7 (5th ed. 2004) (emphasis added) (quoting Charles Tilford McCormick, Handbook on the Law of Damages § 54 (1935)). "'However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value 1061153 9 judgment.'" Morales Sand & Soil, L.L.C. v. Kendall Props. & Invs., 923 So. 2d 1229, 1232 (Fla. Dist. Ct. App. 2006) (emphasis added) (quoting Bowman v. Kingland Dev., Inc., 432 So. 2d 660, 663 (Fla. Dist. Ct. App. 1983)). "A claim for damages arising out of a personal injury is unliquidated in the sense that the defendant cannot know, prior to judgment, the precise amount he or she is going to be required to pay." 3 Jacob A. Stein, Stein on Personal Injury Damages § 17:60 (3d ed. 1997) (emphasis added). Personal- injury claims "'by their very nature are not fixed until [a] juridical award to fix liability and amount.'" Sylvester v. Dow Jones & Co. (In re Sylvester), 19 Bankr. 671, 673 (9th Cir. 1982)(quoting Denham v. Shellman Grain Elevator, Inc., 444 F.2d 1376, 1380 (5th Cir. 1971)). Punitive damages are inherently unliquidated. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); Emarine v. Haley, 892 P.2d 343, 350 (Colo. Ct. App. 1994). This is so, because an "award of punitive damages is within the sound discretion of the jury, considering all attendant circumstances. ... The jury's award is to punish the wrongdoer based upon the enormity of the wrong to the plaintiff, as well as the 1061153 10 necessity to prevent similar wrongs from being committed in the future." Roberson v. Ammons, 477 So. 2d 957, 961 (Ala. 1985). Thus, a claim brought under the Alabama Wrongful Death Act, § 6-5-410, Ala. Code 1975, where the damages are entirely punitive, "imposed for the preservation of human life," Eich v. Town of Gulf Shores, 293 Ala. 95, 98, 300 So. 2d 354, 356 (1974), and not for the purpose of compensation, McKowan v. Bentley, 773 So. 2d 990, 998 (Ala. 1999), is the paradigmatic unliquidated claim. In short, we agree with Bishop that a claim does not "become payable" until a party exists to whom payment can legally and effectively be made. If an individual has no authority to bring a wrongful-death claim until she "has been appointed personal representative of the estate of the deceased," Buck, 572 So. 2d at 422, then clearly she has no authority to receive payment on a claim she had no authority to bring. Also, we disagree with the County that a wrongful- death claim becomes "fixed," either as to liability or amount, at the time of the decedent's death. Thus, the ante litem term in § 11-12-8 applicable to wrongful-death claims is "accrue," and, informed by Buck, we hold that a wrongful-death 1061153 11 claim against a county accrues upon the appointment of a personal representative of the decedent's estate. Because the notice of claim in this case was filed within one year of Bishop's appointment as personal representative, her claim against the County was timely. The summary judgment in favor of the County is, therefore, reversed, and the cause is remanded for further proceedings. REVERSED AND REMANDED. Cobb, C.J., and See, Smith, and Parker, JJ., concur.	January 18, 2008
2b903003-5379-4aa9-9615-a9a0a571feac	J.F.B.C., LLC v. Global Signal Acquisitions IV LLC	N/A	1190546	Alabama	Alabama Supreme Court	Rel: December 11, 2020 STATE OF ALABAMA -- JUDICIAL DEPARTMENT THE SUPREME COURT OCTOBER TERM, 2020-2021 1190546 J.F.B.C., LLC v. Global Signal Acquisitions IV LLC (Appeal from Mobile Circuit Court: CV-19-900199). BRYAN, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P. Parker, C.J., and Bolin, Shaw, and Mendheim, JJ., concur. Mitchell, J., recuses himself.	December 11, 2020
53812726-b897-4a29-8c7a-0ac191080b77	William C. Harper v. Charles A. Coats III and Ginger K. Coats	N/A	1050145	Alabama	Alabama Supreme Court	Rel: 01/18/2008 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, 2007-2008 ____________________ 1050145 ____________________ William C. Harper v. Charles A. Coats III and Ginger K. Coats Appeal from Monroe Circuit Court (CV-03-70) PARKER, Justice. I. Background The issue in this dispute concerning the public or private nature of streets in a subdivision located outside a municipality is whether the recording of the plat for the subdivision, which properly identified the streets in 1050145 2 question, constituted a dedication of those streets to the public. We hold that it did, and we affirm. Sun Ridge Valley Road and Blue Ridge Drive run through and next to the Blue Ridge subdivision, located in Monroe County, outside the city limits of Monroeville. William C. Harper created the subdivision by recording a plat in the Monroe County Probate Court. The complaint alleges that the plat was recorded in February 1991. Charles A. Coats III and Ginger K. Coats own property outside the subdivision, abutting both Sun Ridge Valley Road and Blue Ridge Drive. William Harper claims that the roads are not for public use and has erected a fence to prevent the Coatses from using the roads for ingress and egress to their property. There is also a dispute regarding whether the Monroe County Water Board can serve the Coatses' property from the water line that currently serves the Blue Ridge subdivision. However, for reasons stated later in this opinion, that issue has been waived, and we do not decide it. The Coatses filed this action in the Monroe Circuit Court. The crux of the dispute is whether the recording of the subdivision plat, which appropriately signified the 1050145 3 dimensions and locations of Sun Ridge Valley Road and Blue Ridge Drive, constituted a completed dedication of those roads to the public. The trial court entered a summary judgment in favor of the Coatses, declaring that the roads are public roads and that the water line serving the subdivision is a public utility and can be used to provide water to the Coatses' property. Harper appealed. We affirm. II. Standard of Review "[O]n appeal a summary judgment carries no presumption of correctness," Hornsby v. Session, 703 So. 2d 932, 938 (Ala. 1997). "'In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact' and whether the movant was entitled to a judgment as a matter of law." Ex parte General Motors Corp., 769 So. 2d 903, 906 (Ala. 1999) (quoting Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988)). "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 1050145 4 movant." Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1997). The parties have presented no factual disputes; instead, their arguments are based entirely on statutory interpretation. III. Issues and Legal Analysis A. Are the Roads Public Roads? The subdividing of land into lots for a residential community is governed by Ala. Code 1975, §§ 35-2-50 through -62. Section 35-2-50 requires persons wishing to subdivide their land into lots to have the land surveyed and then draw a plat or map indicating the length and bearings of the boundaries of each lot. In addition, the plat or map must "give the bearings, length, width and name of each street." It is undisputed that Harper complied fully with this Code section in creating the Blue Ridge subdivision. Alabama Code 1975, § 35-2-51(b), provides that "[t]he acknowledgment and recording of such plat or map shall be held to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public," and the areas indicated as streets on the map 1050145 5 "shall be held in trust for the uses and purposes intended or set forth in such plat or map." The question, therefore, is whether Sun Ridge Valley Road and Blue Ridge Drive were "donated or granted to the public" by the recordation of the subdivision plat. If so, under the provisions of § 35-2-51(b), the recording of the plat constituted a "conveyance in fee simple" to the public, and Harper has no right to prevent the Coatses, or any other member of the public, from using the roads. If not, however, the roads are for the private use of Harper and the owners of property in the subdivision. As owners of property outside the subdivision, the Coatses would have no legal right to use the roads to access their property, unless by some claim of adverse possession or prescriptive easement, and no such claim has been raised or argued in this case. A road can be made public in one of three ways: "'"1) by a regular proceeding for that purpose; 2) by a dedication of the road by the owner of the land it crosses, with acceptance by the proper authorities; or 3) the way is generally used by the public for twenty years."'" Arnett v. City of Mobile, 449 So. 2d 1222, 1224 (Ala. 1984)(quoting Sam Raine Constr. Co. v. 1050145 6 Lakeview Estates, Inc., 407 So. 2d 542, 544 (Ala. 1981), quoting in turn Powell v. Hopkins, 288 Ala. 466, 472, 262 So. 2d 289, 294 (1972)). There is no question that these roads have not been used by the public for over 20 years, although the record indicates that the public has enjoyed unrestricted use of them for several years. There has also not been a regular proceeding for the purpose of establishing the roads as public roads. For these roads to be public roads, then, it must be shown that there has been a dedication of the roads, with the requisite acceptance by the proper authorities. The Coatses point to this Court's holding Gaston v. Ames, 514 So. 2d 877 (Ala. 1987), as providing the applicable rule for this case. In Gaston, the Court was dealing with a dispute similar to the one here. The plaintiffs were seeking to enjoin John Ames from maintaining a locked gate in front of a road used by the plaintiffs to access property in a subdivision and were seeking a declaration that the road was a public road. The subdivision had been properly created by Bruce Pardue and his wife. Although some of the lots had been sold, the Pardues retained a large portion of the subdivision and used it for agricultural purposes. None of the subdivided 1050145 7 land was ever developed by any of the purchasers of the lots, including the plaintiffs. Ames subsequently purchased the remaining subdivision property and restricted access to a road indicated on the plat by means of a locked gate. The trial court found that the gate could be maintained because the subdivision was not viable. This Court reversed the trial court's judgment, finding as follows: "Pardue complied with the statutory requirements for the establishment of the subdivision. He first prepared the plats, pursuant to § 35-2-50, Code of Alabama (1975), and recorded the plats in the Probate Office, pursuant to § 35-2-51(a), Code of Alabama (1975). Having met those two requirements, he is deemed to have made a conveyance in fee simple of all areas granted or dedicated to the public. § 35-2-51(b), Code of Alabama (1975). '[S]ubstantial compliance with the statutory requirements constitutes a valid dedication to the public of all streets, alleys, and other public places.' Johnson v. Morris, 362 So. 2d 209, 210 (Ala. 1978). Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201, 1203 (Ala. 1983). "After there has been a proper dedication to the public, that dedication is irrevocable and it cannot be altered or withdrawn except by statutory vacation proceedings. Booth v. Montrose Cemetery Ass'n, 387 So. 2d 774 (Ala. 1980); Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910)." 514 So. 2d at 879. Here, it is undisputed that Harper met those same statutory demands. Like Pardue, he prepared the plat for the 1050145 8 subdivision, pursuant to § 35-2-50(b), Ala. Code 1975, and recorded it pursuant to § 35-2-51(a), Ala. Code 1975. Thus, the Coatses argue, Gaston demands the same result: Like Pardue, Harper should be "deemed to have made a conveyance in fee simple of all areas granted or dedicated to the public," which cannot now be revoked. 514 So. 2d at 879. Harper responds that other cases from this Court have narrowed that general rule established by Gaston. Specifically, he argues that Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201 (Ala. 1983), and CRW, Inc. v. Twin Lake Property Owners Association, Inc., 521 So. 2d 939 (Ala. 1988), expressly hold that recordation of a plat, standing alone, does not constitute a completed dedication of the streets on the plat to the public and that acceptance by the proper governmental authority is also required. Harper thus contends that because the Coatses failed to show any acceptance of the purported dedication by the appropriate governmental authority in addition to recordation, the Coatses should not have prevailed on their summary-judgment motion. We disagree. A closer look at the two cases Harper relies on reveals that they are distinguishable from the 1050145 In fact, the statement was dismissed as dictum in a 1 subsequent decision by this Court. See Blair v. Fullmer, 583 So. 2d 1307, 1309 (Ala. 1991) ("The language in Cottage Hill stating that acceptance is required is dictum in any event ...."). 9 present case. We acknowledge that this Court in Cottage Hill did state that "[u]nder early Alabama statutory authority, streets indicated on a recorded and acknowledged plat were considered to be dedicated to the public use without awaiting acceptance or use by the public. See Code 1907, § 6030; Manning v. House, 211 Ala. 570, 573, 100 So. 772, 774 (1924). This is no longer true, however. See Code 1975, § 11-52-32(b)." 443 So. 2d at 1203. However, that statement is at most dictum, because acceptance was not truly at issue in Cottage Hill. The actual issue in that case was whether a valid 1 dedication is revocable if the road is never subsequently completed. The disputed land was a thoroughfare expressly reserved by the city before the subdivision was approved, thus making acceptance by the city clear. However, even if we consider this Court's statement in Cottage Hill regarding acceptance as more than mere dictum, it still does not stand entirely for the proposition Harper uses it for. Two points are important to note. The first is that the early statutory authority mentioned in Cottage Hill -- Ala. Code 1907, § 6030 1050145 Alabama Code 1907, § 6030, provided: "The acknowledgment 2 and recording of such plat or map shall be held in law and in equity to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public ...."). Alabama Code 1975, § 35-2-51(b), provides: "The acknowledgment and recording of such plat or map shall be held to be a conveyance in fee simple of such portion of the premises platted as are marked or noted on such plat or map as donated or granted to the public ...."). Because neither party has raised the issue whether this 3 provision applies to property outside the city limits of a municipality but within its police jurisdiction, we do not address that issue in this case. 10 -- contains essentially the same language as Ala. Code 1975, § 35-2-51. In addition, the Code section cited as changing 2 the general rule under the "early statutory authority," Ala. Code 1975, § 11-52-32(b), is limited to municipal corporations. That Code section is found in Subtitle 2 of Title 11 of the Code of Alabama entitled "Provisions Applicable to Municipal Corporations Only." Because the Blue Ridge subdivision is outside the city limits of Monroeville, that provision has no effect here.3 Harper also cites CRW, Inc. v. Twin Lake Property Owners Association, Inc., supra, asserting that the facts in that case "are the same as the facts of this case." Harper's brief, at 5. In CRW, CRW was constructing a subdivision next to an 1050145 11 existing subdivision, Twin Lakes. It began constructing a road that was to connect to the only road that ran through the Twin Lakes subdivision, and it advised potential purchasers of lots in the new subdivision to enter the new neighborhood through the Twin Lakes subdivision. In holding that the road in the Twin Lakes subdivision was a private road, the Court stated: "We do not agree that recordation, standing alone, constitutes a dedication." 521 So. 2d at 941. However, the facts here are not the same as those in CRW; CRW is readily distinguishable. The Twin Lakes subdivision was accessible by only one road, and at the entrance to that road were signs stating "Twin Lakes/Private Property/No Trespassing/Members Only" and "No Trespassing/Private Property/Members Only." 521 So. 2d at 940. The City of Moody expressly allowed the streets of the Twin Lakes subdivision to remain private when it annexed the area, and it was agreed that the roads were not the city's responsibility unless they were subsequently deeded to the city. 521 So. 2d at 940. The county also disavowed ownership and responsibility for the streets in the Twin Lakes subdivision. 521 So. 2d at 940. Far from being a case where the streets were dedicated to the 1050145 12 public but never accepted by the proper authorities, the Twin Lakes Property Owners Association expressly and repeatedly refused dedication of the road to the public. Furthermore, the Twin Lakes subdivision was also in the city limits of a municipality, and the Court again relied on Ala. Code 1975, § 11-52-32(b), in affirming the trial court's judgment finding the road to be a private road. More applicable here is Blair v. Fullmer, 583 So. 2d 1307 (Ala. 1991), which follows the general rule laid down in Gaston. In Blair, a lot owner was seeking a declaration that a road indicated on the subdivision plat was a public road, even though the road apparently had never been completed. No acceptance by any authority beyond recordation of the subdivision plat was shown. In Blair, the Court acknowledged Cottage Hill and CRW, but it distinguished those cases from the facts presented there by noting that, unlike the subdivisions in those cases, the subdivision in Blair was outside the city limits. 583 So. 2d at 1310. In response to the contention that other provisions of the Alabama Code require acceptance by county authorities similar to the municipal acceptance noted in those cases, the Court concluded 1050145 Harper never raises for our review the provisions of the 4 Alabama Code applicable to counties. 13 that those sections "do not repeal the specific provision of § 35-2-51(b) by virtue of which recordation of a plat constitutes a dedication of the roads therein with no requirement of acceptance by any county governing authority." 583 So. 2d at 1312. 4 Further support for the conclusion that any acceptance requirement is limited to streets within municipalities can be found in Ala. Code 1975, § 35-2-52, which states: "It shall be the duty of every probate judge in this state to decline to receive for record in his office any map or plat upon which any lands lying within the corporate limits or police jurisdiction of any city of this state having a population of more than 10,000 inhabitants are platted or mapped as streets, alleys or other public ways, unless such map or plat shall have noted thereon the approval of the governing body or city engineer of such city." No similar provision exists for plats or maps outside "the corporate limits or police jurisdiction of any city of this state ...." Id. The canon of statutory construction that "expressio unius est exclusio alterius" -- the expression of one thing implies the exclusion of the other -- dictates that the acceptance requirement of § 35-2-52 is expressly stated to apply to maps or plats of property within the corporate limits 1050145 Because neither party has alleged that the Blue Ridge 5 subdivision is within the police jurisdiction of the city, we will treat this case as though the subdivision is outside the police jurisdiction as well as outside the municipal limits. 14 or police jurisdiction of a municipality of this State; the requirement does not apply to plats or maps of property outside the corporate limits or police jurisdiction of any municipality of this State. See Ex parte Cove Props., Inc., 5 796 So. 2d 331, 334 (Ala. 2000)("Expressio unius est exclusio alterius. The express inclusion of the words 'in front of their respective riparian lands' excludes an interpretation that a riparian landowner has a right to erect a pier in front of the riparian lands of another."). Harper attempts to limit the holding of Blair by referencing the following statement in that opinion: "It is certainly the case that a city or county must accept such a dedication (perhaps by the general public's use of the roads) before there arises a duty on the governing body to maintain the roads, and it may be that those two cases require an acceptance by a public body before the general public can be given the right to use the roads." 583 So. 2d at 1311(emphasis added). However, this statement was dictum, and the actual holding of Blair was that under § 35-2-51(b) "recordation of a plat constitutes dedication of the roads therein." 583 So. 2d at 1312. To the extent Blair 1050145 15 left open the door for the possibility that acceptance by a county governing body is required for dedication of a street in a subdivision outside the municipal limits or police jurisdiction of a city, we now close that door. By completing the plat of the subdivision in compliance with the statutory requirements of Ala. Code 1975, § 35-2-50, and recording it pursuant to § 35-2-51, Harper dedicated Sun Ridge Valley Road and Blue Ridge Drive to the public. No acceptance of those roads by any governmental entity beyond recordation of that plat is necessary for those roads to be dedicated for public use. The Coatses, as members of the general public, are entitled to use those roads without any interference. B. Is the Water Line Public or Private? The other issue on appeal, whether the water line adjoining Sun Ridge Valley Road and Blue Ridge Drive is public or private, is mentioned only in passing in the parties' briefs. Harper states: "[C]learly, a question of fact has been presented by [Harper] through his response to [the Coatses'] Request for Admission, wherein [Harper] aver[s] that [he is] the owner[] of said water line[]." Harper's brief, at 7. Harper provides no legal authority or argument for the 1050145 16 proposition that the water line belonged to him despite his admission that the Monroeville Water Board uses the water line to service the subdivision. It is not the duty of this Court to make arguments or perform the legal research to supplement an inadequate brief. Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994)("We have unequivocally stated that 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."). The issue whether the water line is Harper's private property is therefore not properly before this Court. Pardue v. Potter, 632 So. 2d 470, 473 (Ala. 1994) ("Issues not argued in the appellant's brief are waived."). IV. Conclusion. We need not decide whether the cases cited by Harper require, in addition to recordation of the subdivision plat, acceptance by the proper authorities for a road to be a public road within a municipality. The subdivision here was outside the city limits; therefore, the rule adopted by this Court in Blair controls. Roads in a subdivision located outside the city limits or police jurisdiction of a municipality are 1050145 17 deemed dedicated to the public by way of proper recordation of a plat, with no requirement of acceptance by any county governing authority. Thus, there is no genuine issue of material fact. It is undisputed that Harper recorded the plat with the streets properly marked off. This, in and of itself, was a "valid dedication to the public" of the streets marked in the plat. The judgment of the trial court is therefore affirmed. AFFIRMED. Cobb, C.J., and See, Woodall, and Smith, JJ., concur.	January 18, 2008
5cc1906d-f982-4900-878a-a39fc3f61409	Bobby Bright, as mayor of the City of Montgomery v. Cornelius Calhoun et al.	N/A	1061146	Alabama	Alabama Supreme Court	REL: 01/11/2008 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, 2007-2008 _________________________ 1061146 _________________________ Bobby Bright, as mayor of the City of Montgomery v. Cornelius Calhoun et al. Appeal from Montgomery Circuit Court (CV-06-3228) LYONS, Justice. Four of the nine members of the city council for the City of Montgomery -- Cornelius Calhoun, Willie Cook, Janet Thomas- May and James A. Nuckles (hereinafter "the minority") -- in their official capacity, sued the mayor of the City of 1061146 2 Montgomery, Bobby Bright, in his official capacity, seeking declaratory and injunctive relief. The minority's action was in response to Mayor Bright's veto of an ordinance containing the City of Montgomery's general-fund budget for the 2007 fiscal year. The Montgomery Circuit Court entered a judgment in favor of the minority, and Mayor Bright appealed. We reverse the trial court's judgment and render a judgment for Mayor Bright. I. Facts and Procedural History On August 15, 2006, Mayor Bright submitted a general-fund budget for the 2007 fiscal year (October 1 to September 30) to the city council for its consideration. On November 21, 2006, the council made several amendments to Mayor Bright's proposed budget and adopted it, by a 5 - 4 vote, as Ordinance 61-2006 ("the first council budget"). On November 27, 2006, Mayor Bright vetoed the first council budget on the grounds (1) that the first council budget allocated discretionary funds to the council, and (2) that no public meeting for the budget, as amended, was held prior to its passage. On December 5, 2006, the council, by a 5 - 4 vote, upheld Mayor Bright's veto of the first council budget. One council 1061146 Section 5.10 of Act No. 618, Ala. Acts 1973, provides: 1 "If for any reason the council fails to adopt the general fund budget on or before [September 20], the general fund budget of the current fiscal year shall be the general fund budget for the ensuing year, until such time as a newly revised budget shall be adopted by the council, and, until such 3 member who had voted to adopt the first council budget voted to uphold Mayor Bright's veto. The minority is the four members who voted not to uphold the veto. Mayor Bright then resubmitted to the council the general-fund budget for the 2007 fiscal year. This budget was carried over until the December 19, 2006, council meeting and then was again carried over until the January 2, 2007, council meeting. On December 29, 2006, the minority sued Mayor Bright, seeking declaratory and injunctive relief. The minority requested that the trial court (1) declare that Mayor Bright does not have the power to veto a general-fund budget that has been approved by a majority of the council, (2) declare Mayor Bright's veto of the first council budget void, (3) declare the first council budget valid, (4) order Mayor Bright to administer the first council budget, and (5) enjoin Mayor Bright from operating under the budget for the 2006 fiscal year, the preceding year's budget. At its meeting on January 1 1061146 time, shall have full force and effect to the same extent as if the same had been adopted by the council, notwithstanding anything to the contrary in this act." 4 2, 2007, the council amended Mayor Bright's proposed budget without increasing the total expenditures and adopted it as Ordinance 2-2007. Mayor Bright approved Ordinance 2-2007 without any objections. On February 1, 2007, Mayor Bright moved to dismiss the minority's action on the grounds that the complaint stated neither a ground nor a justiciable controversy upon which relief could be granted. The trial court denied the motion. On April 11, 2007, the minority moved for a judgment on the pleadings. The next day, Mayor Bright moved for a summary judgment. The trial court held a hearing on both motions. On May 10, 2007, the trial court denied Mayor Bright's motion for a summary judgment and entered a judgment in favor of the minority. The trial court's final judgment stated that Act No. 618, Ala. Acts 1973, sets forth the power, authority, and duties of the mayor and council in managing the affairs of the City of Montgomery and that "there is nothing in Act 618 or in the general law that grants to the mayor of the city of Montgomery [the] power or the authority to veto a budget 1061146 5 passed by the city council." The trial court ordered that the City of Montgomery must operate under the first council budget. On May 10, 2007, Mayor Bright moved in the trial court to stay the final judgment pending appeal. The trial court denied the motion. Mayor Bright then filed a notice of appeal to this Court and moved to stay the trial court's final judgment pending appeal. This Court granted the motion to stay, pending resolution of the appeal. Consequently, the City of Montgomery operated under the budget approved on January 2, 2007, Ordinance 2-2007, until the 2007 fiscal year concluded on September 30, 2007. See §§ 5.01 & 5.10, Act No. 618, Ala. Acts 1973. Since October 1, 2007, the City of Montgomery has operated under the general-fund budget for the 2008 fiscal year, which the council adopted on or about September 18, 2007. II. Standard of Review Because on the motion for a judgment on the pleadings the trial court considered matters outside the pleadings, the motion was treated as one for a summary judgment, see Rule 1061146 6 12(c), Ala. R. Civ. P., and our summary-judgment standard applies. "The standard by which this Court will review a motion for summary judgment is well established: "'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); § 12-21-12(d)[,] Ala. Code 1975. 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 Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). "'In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So. 2d 462, 465 (Ala. 1997). Our review is subject to the caveat that we 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).'" 1061146 The last brief in this appeal was filed on September 25, 2 2007, the case was assigned to Justice Lyons on September 26, 2007, and four days later, on October 1, 2007, the budget for the 2008 fiscal year superseded the budget approved on January 2, 2007, for the 2007 fiscal year. 7 Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999)). III. Analysis A. Mootness The issue of the validity of Mayor Bright's veto of the first council budget is now moot because of the confluence of this Court's stay of the trial court's order nullifying Mayor Bright's veto of Ordinance 61-2006 and the lack of sufficient time to obtain appellate review of the trial court's order.2 However, there is an exception to the doctrine of mootness in those instances where an issue is capable of repetition, yet evades review. See McCoo v. State, 921 So. 2d 450, 458 (Ala. 2005) (citing Griggs v. Bennett, 710 So. 2d 411, 412 n. 4 (Ala. 1998); Ex parte Birmingham News Co., 624 So. 2d 1117 (Ala. Crim. App. 1993); and State ex rel. Kernells v. Ezell, 291 Ala. 440, 444, 282 So. 2d 266, 270 (1973)). Because the mayor of the City of Montgomery may subsequently assert veto 1061146 8 power over a budget in a setting where, once again, judicial review could not be concluded within the confines of the fiscal year to which the budget applied, we deem this proceeding to fall within the exception to the doctrine of mootness. B. Merits 1. Relevant Sections of Act No. 618, Ala. Acts 1973 The City of Montgomery's mayor-council form of government is governed by Act No. 618, Ala. Acts 1973. "In 1973 the legislature enacted Act No. 618, which proposed a mayor-council form of government for the City of Montgomery .... Act No. 618 was ratified on November 5, 1974, at a special election called for such purpose." Siegelman v. Folmar, 432 So. 2d 1246, 1249 (Ala. 1983). Article III of Act No. 618 is entitled "The Council," and § 3.07, entitled "Powers," provides, in pertinent part: "All powers of the city, including all powers vested in it by this act, by the laws, general and local, of the state, and by Title 62 of the Code of Alabama of 1940, as amended, and the determination of all matters of policy, shall be vested in the council. Without limitation of the foregoing, the council shall have power to: ".... 1061146 9 "(b) Adopt the budget of the city. "...." Section 3.15, entitled, "Meetings, passage of ordinances, etc.," provides for regular public meetings of the council, at which a majority of the council members constitutes a quorum. Section 3.15 further provides that "the affirmative vote of a majority of those members present, shall be sufficient for the passage of any resolution, by-law or ordinance ... or the exercise of any of the powers conferred upon it by the terms of this act or by law ...." However, § 3.15 limits this authority, stating, among other things: "No resolution, by-law or ordinance ... appropriating any money for any purpose ... shall be enacted except at a regular public meeting of said council or an adjournment thereof." Section 3.15 also provides: "No ordinance of permanent operation shall be passed at the meeting at which it was introduced except by unanimous consent of all members of the council present ...." Section 3.15 further provides: "[A]ll ordinances or resolutions, after having been passed by the council, shall by the clerk be transmitted within forty-eight (48) hours after their passage to the mayor for his consideration, who, if he shall approve thereof, shall sign and return the same to the clerk, who shall publish 1061146 10 them, if publication thereof is required, and such ordinances and resolutions shall thereupon become effective and have the force of law. ... If the mayor shall disapprove of any ordinance or resolution transmitted to him as aforesaid, he shall, within ten (10) days of the time of its passage by the council, return the same to the clerk with his objections in writing, and the clerk shall make report thereof to the next regular meeting of the city council; and if a majority of the council members present shall at said meeting adhere to said ordinance or resolution, notwithstanding said objections, said vote being taken by yeas and nays and spread upon the minutes, then, and not otherwise, said ordinance or resolution shall after publication thereof, if publication is required, have the force of law. If publication of said ordinance or resolution is not required, it shall take effect upon its passage over objections. ... Anything in this section to the contrary notwithstanding, the mayor shall not have the power to veto over appointments of the council, or over any action of the council relating to an investigation as provided for in section 9.03 of Article IX." (Emphasis added.) Article IV of Act No. 618 is entitled "Mayor," and § 4.06, entitled "Powers and duties," provides: "The mayor shall be the head of the administrative branch of the city government. He shall not sit with the council nor shall he have a vote in its proceedings and he shall have the power and duties herein conferred. He shall be responsible for the proper administration of all affairs of the city and, subject to the provisions of any civil service or merit system law applicable to such city and except as otherwise provided herein, he shall have power and shall be required to: 1061146 Mayor Bright states that the two specifically enumerated 3 exceptions to the mayor's power to veto an ordinance in § 3.15 are not applicable here. The minority contends that Mayor Bright's argument that 4 Act No. 618 grants him statutory authority to veto an ordinance containing a budget is not supported with any relevant authority and, therefore, only minimally complies with Rule 28, Ala. R. App. P. However, we note that this case requires interpretation of specific provisions in a local act that this Court has not previously considered. Moreover, Mayor Bright adequately supports his argument by citation of 11 ".... "(4) Keep the council fully advised as to the financial conditions and needs of the city; prepare and submit the budget annually to the council and be responsible for its administration after its adoption; prepare and submit, as of the end of the fiscal year, a complete report on the financial and administrative activities of the city for such year. "...." 2. Whether Act No. 618 permits the Mayor to Veto a Budget The minority contends that the trial court correctly ruled that Act No. 618 does not grant the mayor of the City of Montgomery the power or authority to veto a budget. On the other hand, Mayor Bright contends that he vetoed Ordinance 61- 2006, which adopted the first council budget, and that § 3.15 of Act No. 618 grants the mayor of the City of Montgomery the power and authority to veto any and all ordinances passed by 3 the council and submitted to the mayor by the city clerk. 4 1061146 applicable cases regarding statutory construction. 12 We must determine whether the legislature intended to grant the mayor of the City of Montgomery the power to veto an ordinance adopting a budget. Section 3.15 provides: "If the mayor shall disapprove of any ordinance ..., he shall, within ten (10) days of the time of its passage by the council, return the same to the clerk with his objections in writing." (Emphasis added.) Mayor Bright contends that the phrase "any ordinance" in this sentence subsumes an ordinance that contains a budget. The minority contends that Act No. 618 does not use the terms "budget" and "ordinance" interchangeably and notes that Act No. 618 never refers to an ordinance that contains a budget. Our inquiry is governed by settled principles of statutory construction: "'The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So. 2d 391 (1956).' 1061146 13 "Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380 (Ala. 1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So. 2d 789, 794 (Ala. 2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So. 2d 423 (Ala. 1996)." City of Bessemer v. McClain, 957 So. 2d 1061, 1074-75 (Ala. 2006). The minority's contention that Act No. 618 does not grant the mayor the power to veto a budget or an ordinance adopting a budget is, for the reasons set forth below, refuted when § 3.15 is considered in light of the entire Act. See McRae v. Security Pac. Hous. Servs., Inc., 628 So. 2d 429, 432 (Ala. 1993) ("Under the rules of statutory construction, we must consider the statute as a whole and must construe the statute reasonably so as to harmonize the provisions of the statute."). a. The Reference in § 3.15 to Ordinances of Permanent Operation First, we note that § 3.15 expressly limits the council's authority to act on an "ordinance of permanent operation"; 1061146 14 such an ordinance must be passed by "unanimous consent of all members of the council present." This limitation evidences legislative contemplation of ordinances of an impermanent character, such as ordinances adopting budgets, which by their nature have a limited duration and effect. Opinion of the Attorney General No. 91-180, relied upon by the trial court as support for its finding no veto power in the mayor, recognizes that a resolution or ordinance dealing with a budget is an ordinance not intended to be "of permanent operation." Op. Att'y Gen. No. 91-180 (Feb. 21, 1991). Unlike the statute addressed in the Attorney General's Opinion, which granted a mayor the power to veto only ordinances of permanent operation, the mayor's veto power granted in Act. 618 applies to "any ordinance or resolution," notwithstanding that in a preceding sentence in the same section the legislature referred to an "ordinance of permanent operation." (Emphasis added.) Our cases have recognized that ordinances may be of permanent operation or may have a more limited duration. See City of Prichard v. Moulton, 277 Ala. 231, 238, 168 So. 2d 602, 609 (1964) ("Ordinances or resolutions of permanent 1061146 15 operation are those which continue in force until repealed. An ordinance providing for the creation of city offices such as a treasurer, tax collector, or clerk, is an example of an ordinance of a permanent nature. Michael v. State, 163 Ala. 425, 50 So. 929 [(1909)]. In Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301 [(1913)], this Court held that ordinances and resolutions relating to the calling for and acceptance of bids and fixing assessments, for paving of certain streets were not ordinances or resolutions of a permanent nature."). In Moulton, this Court concluded that proceedings involving resolutions and ordinances for a city's ordinary needs and expenses did not need to be approved by the mayor, whose veto authority was limited to ordinances and resolutions intended to be of a permanent operation. 277 Ala. at 238, 168 So. 2d at 609. Thus, because § 3.15 refers to "ordinances of permanent operation" we must conclude that the legislature also contemplated the existence of ordinances that deal with matters not of permanent operation, such as those dealing with adoption of a budget for a given year, and contemplated that such ordinances were within the scope of the council's authority to pass ordinances. 1061146 16 b. The Effect of the Absence of Direct Reference to a "Budget" in the Context of Ordinances The minority contends that we should draw significance from the absence of the term "budget" in connection with references to ordinances because, it argues, the legislature could have chosen to use, but did not, the term "budget- ordinance." The trial court held that § 3.07 grants the council the sole power to adopt the general-fund budget for the City of Montgomery, without discussing the mayor's power to veto ordinances in § 3.15. Because §§ 3.07 and 3.15 deal with the same subject matter, the powers of the city council, we must read them in pari materia and construe them together to ascertain the meaning and intent of each section. Ex parte Weaver, 871 So. 2d 820, 824 (Ala. 2003). The conclusion that we should attach significance to the omission of any reference to the word "budget" in § 3.15 does not withstand scrutiny when § 3.15 is considered in its entirety and in light of the plain meaning of the term "ordinance." Section 3.15 uses the term "ordinance" to describe a means of "appropriating any money for any 1061146 Section 3.15 provides, in pertinent part: "No resolution, 5 by-law or ordinance ... appropriating any money for any purpose ... shall be enacted except at a regular public meeting of said council or an adjournment thereof." 17 purpose." (Emphasis added.) "Ordinance" is defined in 5 Black's Law Dictionary 1132 (8th ed. 2004) as follows: "An authoritative law or decree; esp., a municipal regulation. Municipal governments can pass ordinances on matters that the state government allows to be regulated at the local level. -- Also termed bylaw; municipal ordinance. [Cases: Municipal Corporations 105. C.J.S. Municipal Corporations §§ 247-251.] "'An ordinance ... may be purely administrative in nature, establishing offices, prescribing duties, or setting salaries; it may have to do with the routine or procedure of the governing body. Or it may be a governmental exercise of the power to control the conduct of the public -- establishing rules which must be complied with, or prohibiting certain actions or conduct. In any event it is the determination of the sovereign power of the state as delegated to the municipality. It is a legislative enactment, within its sphere, as much as an act of the state legislature.' 1 Judith O'Gallagher, Municipal Ordinances § 1A.01, at 3 (2d ed. 1998)." (Some emphasis original; some emphasis added.) Appropriating money for various purposes through the adoption of a budget is an administrative function of the City of Montgomery. Perhaps the most compelling evidence of the 1061146 18 reasonableness of interpreting the council's action of passing a budget as the adoption of an ordinance pursuant to the powers enumerated in § 3.15 is found in the style of the document through which the council adopted the first council budget –- the very budget that Mayor Bright vetoed; it is entitled, "Ordinance 61-2006." (Emphasis added.) Moreover, if we do not harmonize §§ 3.07 and 3.15 and instead accept the minority's reasoning that every power granted to the council by § 3.07 is exempt from the veto power granted to the mayor by § 3.15, we would then have to ascribe to the legislature an intent to provide the mayor with a virtually meaningless veto power. We find no basis to conclude that Act No. 618 withholds the authority to adopt a budget from the sweep of the council's power to pass ordinances in § 3.15. Therefore, we draw no significance from the absence of the term "budget" in connection with the grant of power in § 3.15 to the mayor to veto ordinances. c. The Effect of Express Limitations on the Mayor's Veto Power Section 3.15 places express limitations upon the mayor's power to veto ordinances, and none of these limitations 1061146 The minority does not contend that any section of Act No. 6 618 explicitly prohibits the mayor of the City of Montgomery from vetoing a budget or an ordinance containing a budget. 19 relates to ordinances adopting budgets. The legislature 6 expressly provided that the mayor lacks the power to veto appointments of the council and any actions relating to an investigation by the council but does not mention ordinances adopting budgets. Under the rule of "expressio unius est exclusio alterius," we must construe § 3.15 as excluding other subjects from which the sweep of the mayor's veto power is withheld. Champion v. McLean, 266 Ala. 103, 112, 95 So. 2d 82, 91 (1957). ("According to this rule of construction, where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all those things not expressly mentioned."). d. The Effect of the Limitation on the Mayor's Voting Rights in § 4.06 The trial court held that § 4.06, which provides that the mayor "shall not sit with the council nor shall he have a vote in its proceedings and he shall have the powers and duties herein conferred," supports the absence of a veto power over budgets. However, that view requires a strained reading of § 4.06, one that is inconsistent with the plain meaning of the 1061146 20 section. A veto does not come into play until the conclusion of the proceedings by the council. The prohibition against a vote "in its proceedings" is therefore inapplicable to a veto, which occurs after an ordinance has been passed by the council. Once again, we must reasonably construe the Act in its entirety so as to harmonize its provisions. See McRae, 628 So. 2d at 432. e. The Inapplicability of Wilson v. Dawson The trial court also relied upon Wilson v. Dawson, 590 So. 2d 263 (Ala. 1991), which the minority urges us to follow. In Wilson, the mayor of the City of Prichard made two types of changes to the general-fund budget adopted by the city council. 590 So. 2d at 264. The mayor line-item vetoed several expenditures on the budget and inserted several line- item expenditures. 590 So. 2d at 264. To determine the scope of the powers of the mayor of the City of Prichard, this Court specifically examined § 11-43C-52 because the mayor-council form of government for the City of Prichard is governed by § 11-43C-1 et seq., Ala. Code 1975. 590 So. 2d at 264. Section 11-43C-52 provides: "If the mayor shall disapprove of any expenditure line item contained in the budget 1061146 At the time Wilson was decided, § 11-43C-52 required the 7 adherence of five members of the council. 21 transmitted to him by the council, he shall, within 10 days of the time of its passage by the council, return the same to the clerk with his objections in writing, and the clerk shall make report thereof to the next regular meeting of the city council, and if four of the council members shall at the meeting [7] adhere to said expenditure line item by yeas and nays and spread upon the minutes, then said expenditure line item shall become effective." In Wilson, this Court strictly construed § 11-43C-52 to conclude that the legislature intended to provide the mayor with the power to line-item veto expenditures in a budget, but not "the power to alter and amend the budget so as to add or change items after its adoption." 590 So. 2d at 266. Therefore, this Court held that "[t]he mayor's statutory powers are not broad enough to permit a mayor to make alterations and amendments to a budget after it has been adopted by the council." 590 So. 2d at 265. The trial court applied the holding in Wilson to hold that Mayor Bright did not have the power or authority to veto the first council budget because, it reasoned, Act No. 618 does not explicitly grant Mayor Bright the power or authority to veto a budget. This reasoning assumes that the reference 1061146 We need not address Mayor Bright's argument that the 8 council adopted Ordinance 61-2006 in violation § 5.09 of Act No. 618. 22 to "all ordinances" in § 3.15 is insufficient to deal with the council's adoption of a budget, a concept we have rejected. IV. Conclusion We hold that pursuant to § 3.15 of Act No. 618, the mayor of the City of Montgomery has the power and authority to veto an ordinance adopting a budget and, therefore, that the budget approved January 2, 2007, was the proper budget for the 2007 fiscal year. Accordingly, the judgment of the trial court is 8 reversed and a judgment is rendered in favor of Mayor Bright. REVERSED AND JUDGMENT RENDERED. Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	January 11, 2008
c0643fed-e9e2-491d-b9f5-21ea921651af	Martin v. Martin	N/A	1181002	Alabama	Alabama Supreme Court	REL: December 18, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1181002 ____________________ Thomas John Martin v. Sheila Martin, as personal representative and trustee under the will of Henry Thomas Martin, deceased Appeal from Colbert Circuit Court (CV-17-900200) MITCHELL, Justice. Thomas John Martin ("Thomas") appeals from a judgment of the Colbert Circuit Court dismissing his declaratory-judgment action for lack of subject-matter jurisdiction. Because we determine that the circuit court 1181002 has subject-matter jurisdiction under the Alabama Uniform Trust Code, we reverse the judgment. Facts and Procedural History Henry Thomas Martin ("Henry") died and was survived by his wife, Sheila Martin ("Sheila"), and his two children, Thomas and Dawn Michelle Martin ("Dawn"). Henry's will was admitted to probate in the Colbert Probate Court. Among other dispositions, Henry's will created a testamentary trust for the benefit of Dawn ("the testamentary trust"). The will directed the trustee to hold 25% of Henry's residuary estate in trust and to pay Dawn, in estimated equal monthly installments, the net income from the trust along with any surplus net incomes. Following Henry's death, Dawn died without a will. Henry's will was silent, however, about what happened to the principal of the testamentary trust upon Dawn's death. While the Colbert Probate Court proceedings were pending, Thomas filed a complaint in the Colbert Circuit Court seeking a judgment declaring the following: 2 1181002 "a. [t]he amount and nature, if any, of [his] interest in the reversions held by [Henry’s] heirs, successors, and assigns; "b. [t]he proper and timely distribution of any and all property and assets held as such reversionary interest; and "c. [t]he various rights, titles, and interests of the parties in and to the assets belonging to [Henry] at the time of his death and the allocation of those assets among the various trusts established under the Will." Sheila, as the personal representative of Henry's estate and the trustee of the testamentary trust, moved to dismiss Thomas's declaratory- judgment action under Rule 12(b), Ala. R. Civ. P., arguing that the circuit court lacked subject-matter jurisdiction. Following briefing and a hearing, the circuit court granted Sheila's motion and dismissed the action, explaining: "[Thomas] claims a reversionary interest in the principal of a testamentary trust which terminated upon the death of the beneficiary [(Dawn)]. [Thomas] claims the undistributed principal passes by intestacy to the sole surviving heir, [Thomas], pursuant to § 43-8-40 of the Code of Alabama 1975. [Thomas] cites to the Court § 19-3B-203 of the Code of Alabama 1975 in support of his position that this court has jurisdiction. The Court finds § 19-3B-203 to be inapplicable in this case as this proceeding is not being brought by a trustee or a beneficiary under the trust concerning the administration of a trust. [Thomas's] claim is as a sole heir under intestate 3 1181002 succession which is under the jurisdiction of the probate court." Thomas appealed. Standard of Review We review issues of subject-matter jurisdiction de novo. DuBose v. Weaver, 68 So. 3d 814, 821 (Ala. 2011). Analysis The issue presented is which court -- circuit or probate -- has subject- matter jurisdiction to hear Thomas's declaratory-judgment action concerning the testamentary trust. Thomas argues that the Colbert Circuit Court has jurisdiction because he seeks an equitable remedy and the Colbert Probate Court lacks jurisdiction to grant equitable relief. Sheila argues, however, that the Colbert Probate Court has jurisdiction and that Thomas cannot simply reframe a probate matter as a declaratory-judgment action in an effort to get into circuit court. To resolve this issue, we begin with the statutory framework outlining the subject-matter jurisdiction of both the circuit and probate courts. 4 1181002 Circuit courts have subject-matter jurisdiction over equitable matters that "extend[s] ... [t]o all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals." § 12-11- 31(1), Ala. Code 1975. By contrast, the subject-matter jurisdiction of probate courts "is limited to the matters submitted to it by statute." Wallace v. State, 507 So. 2d 466, 468 (Ala. 1987). Section 12-13-1, Ala. Code 1975, vests probate courts with original and general jurisdiction over controversies involving the administration of a decedent's estate. See § 12-13-1(b)(3); Suggs v. Gray, 265 So. 3d 226, 230 (Ala. 2018). As a court of law, the probate court " 'generally does not possess jurisdiction to determine equitable issues.' " Suggs, 265 So. 3d at 230 (quoting Lappan v. Lovette, 577 So. 2d 893, 896 (Ala. 1991)). Currently, only five Alabama probate courts may exercise equitable jurisdiction. See Segrest v. Segrest, [Ms. 1190676, December 4, 2020] ___ So. 3d ___ (Ala. 2020). The Jefferson Probate Court and the Mobile Probate Court share equity jurisdiction with circuit courts by local act. See Act. No. 974, Ala. Acts 1961; Act No. 1144, Ala. Acts 1971. And the Shelby, Pickens, and Houston Probate Courts may share equity 5 1181002 jurisdiction with circuit courts by local constitutional amendments. See Ala. Const. 1901, Local Amendments, Shelby County, § 4 (proposed by Amend. No. 758); Ala. Const. 1901, Local Amendments, Pickens County, § 6.10 (proposed by Amend. No. 836); Ala. Const. 1901, Local Amendments, Houston County, § 3.50 (proposed by Amend. No. 898). Thus, while all probate courts have subject-matter jurisdiction over general matters of estate administration, only five probate courts in the State have jurisdiction to hear equitable matters and to fashion equitable remedies. See Suggs, 265 So. 3d at 230-31. With trusts, the Alabama Uniform Trust Code, § 19-3B-101 et seq., Ala. Code 1975 ("the Alabama UTC"), provides the statutory framework for subject-matter jurisdiction as between circuit and probate courts: "(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust. "(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust." 6 1181002 § 19-3B-203, Ala. Code 1975. By its text, § 19-3B-203(a) provides that circuit courts have exclusive jurisdiction over cases "brought by a trustee or beneficiary concerning the administration of a trust." See also Regions Bank v. Reed, 60 So. 3d 868, 880 (Ala. 2010) (noting that subsection (a) provides the general rule and subsection (b) acts as an exception to the general rule vesting "those [probate] courts that have been granted those broader [statutory equitable] powers [with] the same jurisdiction to hear actions brought by trustees or beneficiaries concerning the administration of trusts as do the circuit courts of this State"). Although Thomas asserts that he is, in some respect, a beneficiary by virtue of having a reversionary interest in the testamentary trust, it is not necessary to determine whether he actually is for purposes of subsection (a), because this case can be resolved under subsection (b). Subsection (b) establishes that in a proceeding involving a testamentary or inter vivos trust, only those probate courts that have statutory equitable jurisdiction have concurrent jurisdiction with the circuit courts. See § 19-3B-203(b). 7 1181002 It is a well established principle of statutory interpretation that "[t]he expression of one thing implies the exclusion of others." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 10, at 107-11 (Thomson/West 2012) (discussing the negative- implication canon). Indeed, the use of negative implication is consistent with this Court's jurisprudence. See, e.g., New Props., L.L.C. v. Stewart, 905 So. 2d 797, 800 (Ala. 2004) (noting that where Rule 52(b), Ala. R. Civ. P., excuses a losing party from certain objections and motions if the trial court does make findings of fact in a nonjury case, the negative implication of the rule is that no such excuse is permitted when the trial court does not make findings of fact (quoting Ex parte James, 764 So. 2d 557, 560-61 (Ala. 1999) (Lyons, J., concurring in the result))); Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732, 734 (Ala. 1989) ("Under Alabama's commercial code, a bank may charge a customer's account only when an item is deemed 'properly payable.' Ala. Code 1975, § 7-4-401. Thus, by negative implication, § 7-4-401 imposes liability on a drawee bank that charges a customer's account for items not properly payable."). 8 1181002 When the principle of negative implication is applied to subsection (b), it is clear that those probate courts that have not been granted statutory equitable jurisdiction do not share jurisdiction with the circuit courts in inter vivos or testamentary-trust cases. Thus, where the probate court lacks concurrent jurisdiction, the circuit court must have jurisdiction. With this jurisdictional framework, we turn to Thomas's claim. In his complaint, Thomas seeks a declaration of whether he has an interest in the testamentary trust and, if so, the amount of his interest, the amount of others' interests, and the proper and timely distribution of those interests. He brings his claim as an action under § 6-6-225, Ala. Code 1975, which provides: "Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, infant, incompetent, or insolvent may have a declaration of rights or legal relations in respect thereto: "... "(3) To determine any question arising in the administration of the estate or trust, including 9 1181002 questions of construction of wills and other writings." Based on the statute providing for Thomas's cause of action and the relief sought, this case is "a proceeding involving a testamentary ... trust," § 19- 3B-203(b), brought by an heir "[t]o determine [a] question arising in the administration of [a] trust." § 6-6-225. Because the Colbert Probate Court is not one of the probate courts with statutory equitable jurisdiction, it lacks concurrent jurisdiction with the circuit court to hear this testamentary-trust case. See § 19-3B-203(b). Consequently, the Colbert Circuit Court must have subject-matter jurisdiction, which means it erred in dismissing this case. Sheila nonetheless argues that this Court's decision in Suggs prevents the circuit court from exercising jurisdiction because, she says, Thomas's action involves issues that are exclusively within the jurisdiction of the probate court. But Suggs actually demonstrates that the circuit court here has subject-matter jurisdiction. Suggs involved a dispute between the estates of a deceased married couple who died four months apart. The personal representatives who were appointed to each 10 1181002 of the estates jointly agreed to sell the marital home and that the proceeds from the sale would be held in a law firm's trust account. Some time thereafter, the personal representative of the wife's estate notified the law firm that the wife's estate had a claim against the husband's estate and instructed the law firm not to disburse any of the funds held in its trust account until that claim was resolved. While both estates were pending in the probate court, the personal representative of the husband's estate filed a declaratory-judgment action in the circuit court, seeking a disbursement of the proceeds held in the trust account. The wife's estate then filed a counterclaim, alleging, among other things, that it was entitled to assets in possession of the husband's estate. The circuit court entered summary judgments deciding ownership of the disputed assets and concluding that the husband's estate was entitled to a disbursement of the proceeds of the sale of the marital home. The wife's estate appealed, arguing, that the circuit court lacked subject- matter jurisdiction because the administration of both estates remained pending in the probate court when the action was filed and the probate 11 1181002 court retained jurisdiction to determine which assets belonged to which estate. The judgments were partially affirmed and partially vacated on appeal. This Court held that the circuit court lacked jurisdiction to enter judgments adjudicating the proper ownership of the disputed assets; those issues remained within the jurisdiction of the probate court. Suggs, 265 So. 3d at 232. But this Court held that the circuit court did have subject- matter jurisdiction over the disbursement of those funds generated by the sale of the marital home and held in the law firm's trust account. Id. at 231. Suggs, therefore, drew a distinction between (1) determining the ownership of the separate estate assets (a normal matter of estate administration) and (2) determining the proper disbursement of funds being held in a law firm's trust account that were claimed by both estates (an area that does not fall within general estate administration and has not been afforded to probate courts by statute). That distinction is instructive. Here, Henry's will created a testamentary trust but failed to account for what would happen to the principal of the trust when the beneficiary of that trust died. Unlike the 12 1181002 estate assets in Suggs, which were solely within the province of the probate court, questions involving testamentary trusts are generally directed to the circuit court by statute. Although the distribution of separate estate assets is clearly within the probate court's jurisdiction, the Alabama UTC empowers only circuit courts -- and those probate courts that have statutory equitable jurisdiction -- to adjudicate testamentary- trust claims like the one here. Put another way, in a county where the probate court has not been granted statutory equitable jurisdiction, the circuit court has jurisdiction over cases involving testamentary trusts under § 19-3B-203(b). As a result, this Court's ruling in Suggs does not preclude the Colbert Circuit Court from exercising subject-matter jurisdiction over this declaratory-judgment action. We emphasize that the question presented by this appeal is narrow: which court -- circuit or probate -- may decide this case? Nothing in today's decision is intended to expand the jurisdiction of the circuit courts to matters of general estate administration. To the contrary, our holding today plainly states what the Legislature accomplished by enacting § 19- 3B-203(b) -- that testamentary-trust questions are to be heard by either 13 1181002 circuit courts or those probate courts granted statutory equitable jurisdiction. If or to the extent the Colbert Circuit Court determines that the testamentary trust has terminated and that the assets have not effectively been disposed of under Henry's will in accordance with § 43-8-40, Ala. Code 1975, the allocation of those intestate assets under the intestate-succession laws would come within the jurisdiction of the Colbert Probate Court. See Gardner v. Gardner, 244 Ala. 107, 107-08, 11 So. 2d 852, 853 (Ala. 1943) ("The jurisdiction of the probate court, among other things, is ... for the sale and disposition of the real and personal property belonging to intestate's estate and for the distribution of same ...."). But questions involving the testamentary trust -- its continuance, termination, or otherwise -- are left to the Colbert Circuit Court under § 19-3B-203(b). Conclusion Thomas filed this declaratory-judgment action in the Colbert Circuit Court seeking to determine the rights, obligations, and liabilities of the parties with respect to the testamentary trust and the allocation of the assets contained within that trust. Although certain probate courts in Alabama have been vested with jurisdiction to hear cases involving 14 1181002 testamentary trusts, the Colbert Probate Court is not one of them. As a result, only the Colbert Circuit Court has subject-matter jurisdiction under § 19-3B-203(b) to consider arguments about whether the testamentary trust continues or has terminated. REVERSED AND REMANDED. Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur. Sellers and Mendheim, JJ., concur in the result. Shaw and Bryan, JJ., dissent. 15 1181002 SHAW, Justice (dissenting). I do not believe that the plaintiff below, Thomas John Martin, can bring this action in the circuit court under the Alabama Uniform Trust Code ("the Alabama UTC"), Ala. Code 1975, § 19-3B-101 et seq., or that he has demonstrated that the administration of a trust is even at issue in this action. Therefore, I respectfully dissent. The main opinion holds that the circuit court had jurisdiction under the Alabama UTC. Alabama Code 1975, § 19-3B-203, states: "(a) Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust. "(b) A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust." The main opinion expressly declines to address whether § 19-3B-203(a) applies and instead holds that § 19-3B-203(b) provides the circuit court with jurisdiction. I disagree that anything in subsection (b) provides the circuit court with jurisdiction in addition to what is provided in subsection (a). Specifically, subsection (a) provides the circuit court with jurisdiction 16 1181002 over certain actions "concerning the administration of trusts," and describes subsection (b) as an exception. Subsection (b) states that certain probate courts with equitable jurisdiction have "concurrent jurisdiction" with the circuit court in proceedings involving "a testamentary or inter vivos trust." It seems to me that the circuit court's jurisdiction with which the probate court's jurisdiction is "concurrent" is the jurisdiction already provided to the circuit court under subsection (a). Subsection (b) simply extends to certain probate courts that have broader equity powers than others the same jurisdiction subsection (a) provides the circuit court. Our decision in Regions Bank v. Reed, 60 So. 3d 868, 880 (Ala. 2010), described the Code section as follows: "A plain reading of § 19–3B–203 indicates that subsection (b) acknowledges that certain probate courts have been granted broader powers and that the exception referenced in subsection (a) is that those [probate] courts that have been granted those broader powers have the same jurisdiction to hear actions brought by trustees or beneficiaries concerning the administration of trusts as do the circuit courts of this State." 17 1181002 (Emphasis added.) Reed thus states that the jurisdiction granted to certain probate courts in subsection (b) is the jurisdiction provided to circuit courts in subsection (a). Subsection (b) does not separately grant the circuit court jurisdiction different from, or in addition to, subsection (a). What is granted to the circuit court in subsection (a) limits both the parties to the action -- "a trustee or beneficiary" -- and the subject of the proceedings -- "concerning the administration of a trust." (Emphasis added.) If subsection (b) also grants jurisdiction to the circuit court over "any proceeding involving a testamentary or inter vivos trust," then that would be a much broader grant of jurisdiction -- not limited to certain parties or to the administration of a trust -- rendering subsection (a) superfluous. (Emphasis added.) However, "'"[t]here is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used."'" Ex parte Children's Hosp. of Alabama, 721 So. 2d 184, 191 (Ala.1998) (quoting 18 1181002 Sheffield v. State, 708 So.2d 899, 909 (Ala. Crim. App. 1997), quoting in turn 82 C.J.S. Statutes § 316 (1953)). Instead, by referencing "any proceeding involving a testamentary or inter vivos trust," subsection (b) is actually designating that the "concurrent jurisdiction" granted to those probate courts with broader equity powers is related to actions involving two types of trusts: testamentary or inter vivos. In sum, subsection (b) is simply an exception to subsection (a), Reed, supra, to also grant to certain probate courts in cases involving testamentary and inter vivos trusts the jurisdiction that subsection (a) provides to the circuit court; it does not separately grant more jurisdiction to the circuit court that would make subsection (a) unnecessary in the first place. Thomas suggested below that subsection (a) provides the circuit court with jurisdiction. The trial court disagreed: "[Thomas] claims a reversionary interest in the principal of a testamentary trust which terminated upon the death of the beneficiary. "[Thomas] claims the undistributed principal passes by intestacy to the sole surviving heir, [Thomas], pursuant to §43-8-40 of the Code of Alabama. 19 1181002 "[Thomas] cites to the Court §19-36-203 of the Code of Alabama in support of his position that this court has jurisdiction. "The Court finds §19-36-203 to be inapplicable in this case as this proceeding is not being brought by a trustee or a beneficiary under the trust concerning the administration of a trust. "[Thomas's] claim is as a sole heir under intestate succession which is under the jurisdiction of probate court." To hold that the circuit court has jurisdiction under § 19-3B-203(a), I believe that we must address whether Thomas is in fact a "trustee or beneficiary." Thomas points to the definition of the word "beneficiary" in Ala. Code 1975, § 19-3B-103(3)(A), as "a person that ... has a present or future beneficial interest in a trust, vested or contingent." However, as discussed further below, Thomas contends that the trust actually terminated, and his "interest," according to him, is as an heir under intestacy law to any funds that remain after the termination of the trust. In his reply brief, Thomas expressly states: "Indeed, the Appellee Sheila Martin argues that Thomas John Martin is 'someone other than a beneficiary or trustee of the trust.' This is conceded to be a correct statement." 20 1181002 Additionally, for jurisdiction to exist under § 19-3B-203(a), we must determine whether the action is "concerning the administration of a trust." If not, then § 19-3B-203(a) does not apply and no other identified impediment to the probate court's exercising jurisdiction would exist. Thomas's argument is that the trust terminated as a matter of law, and he seeks to determine his rights under the laws of intestacy to any funds resulting from the termination of the trust. His complaint alleges that the termination resulted in a "reversion" -- presumably to Henry's estate -- and seeks a determination as to any interest Thomas has in the reversion as an heir. According to the complaint, the beneficiary of the trust, Dawn Michelle Martin, died in 2017, and the “trust ... terminated upon her death pursuant to Ala. Code § 19-3B-410 in that no purpose of the trust remains to be achieved or the purpose[s] of the trust have become impossible to achieve.” (Emphasis added.)1 The trial court's order 1Alabama Code 1975, § 19-3B-410(a), states in pertinent part: "[A] trust terminates to the extent ... no purpose of the trust remains to be achieved, or the purposes of the trust have become ... impossible to achieve." Thomas's argument that the trust terminated is repeated several times in the record. 21 1181002 appears also to accept that the trust terminated. Thomas further alleged that he “is the owner and holder of a reversion in a portion or all of the property not otherwise disposed” in the will, including “the reversion following the termination of the trust.” (Emphasis added.) In his prayer for relief, Thomas sought a determination of "a. [t]he amount and nature, if any, of [Thomas's] interest in the reversions held by Henry Thomas Martin's heirs, successors, and assigns; "b. [t]he proper and timely distribution of any and all property and assets held as such reversionary interest; and "c. [t]he various rights, titles, and interests of the parties in and to the assets belonging to Henry Thomas Martin at the time of his death and the allocation of those assets among the various trusts established under the Will." Contrary to the main opinion, it does not appear that the complaint "seeks a declaration as to whether [Thomas] has an interest in the testamentary trust," ___ So. 3d at ___, or otherwise concerns "the administration of a trust." Thomas -- who is Henry's son -- instead alleged that the trust of which his sister was the beneficiary terminated and sought a determination as to his entitlement to the "reversion." I see no demonstration on appeal that that claim falls under the purview of § 19- 22 1181002 3B-203 or that the probate court would not have jurisdiction to hear such a claim, which is related to the administration of Henry's estate currently pending in that court. Ala. Code 1975, § 12-13-1(b)(3). On appeal, Thomas continues to argue that the trust terminated, that there was a "reversion" of the trust funds, and that he can seek a determination as to whether those funds pass to him under the laws of intestacy. Thomas states that, to the extent that there is any question regarding whether the trust terminated upon Dawn's death, then jurisdiction under § 19-3B-203 is appropriate. For the reasons stated above, I disagree with that proposition, because Thomas is neither a trustee nor a beneficiary of the trust. Further, if, as a matter of law, the termination of the trust did not result in its funds reverting to the estate, and thus the administration of the trust or any legal issues relating to trust law remain at issue, then Thomas, as the appellant, must demonstrate that such is the case. That argument, however, seems inconsistent with his position. Thomas also appears to allege that he seeks equitable relief that the probate court has no jurisdiction to provide. Precisely how the relief requested is equitable in nature is not discussed; 23 1181002 if, as Thomas alleged in his complaint, the trust terminated and there is a reversion that passes to him under intestacy, then I see no jurisdictional impediment demonstrated on appeal to the probate court providing such relief under its jurisdiction relating to the administration of estates. The circuit court could have jurisdiction under Ala. Code 1975, § 12- 11-31(1) (providing jurisdiction where a remedy is not provided in another court), or Ala. Code 1975, § 6-6-225 (authorizing declaratory-judgment actions for estate and trust matters). Section 12-11-31(1) would not apply if the probate court could exercise jurisdiction. Further, if no trust issue exists, § 6-6-225 would not allow the circuit court to exercise jurisdiction over the administration of the estate without proper removal of the estate action from the probate court to the circuit court, which has not occurred. Suggs v. Gray, 265 So. 3d 226 (Ala. 2018). I thus respectfully dissent. Bryan, J., concurs. 24	December 18, 2020
9037ed68-f338-4e39-99f0-2f8c6b7b4414	Ex parte Sacha Baron Cohen et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Kathie Martin v. Sacha Baron Cohen et al.)	N/A	1061288	Alabama	Alabama Supreme Court	REL:01/18/08 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, 2007-2008 ____________________ 1061288 ____________________ Ex parte Sacha Baron Cohen et al. PETITION FOR WRIT OF MANDAMUS (In re: Kathie Martin v. Sacha Baron Cohen et al.) (Jefferson Circuit Court, CV-06-7333) BOLIN, Justice. Sacha Baron Cohen; Twentieth Century Fox Film Corporation; One America Productions, Inc., d/b/a Springland Films; Everyman Pictures; Dune Entertainment, L.L.C.; MTV 1061288 2 Networks; Comedy Central; Dakota North Entertainment, Inc.; and Four by Two Production Company (hereinafter collectively referred to as "the petitioners"), the defendants in an action filed in the Jefferson Circuit Court by Kathie Martin, moved the trial court to dismiss Martin's claims against them on the basis of a forum-selection clause in the contract between Martin and Springland Films that provides that New York County, New York, is the exclusive venue for Martin's claims. The trial court denied the petitioners' motion. The petitioners now seek mandamus relief from this Court. We grant their petition and issue the writ. I. Kathie Martin owns and operates the Etiquette School of Birmingham, which provides etiquette training to individuals and corporate groups. Sometime in October 2005, Todd Schulman, an employee of One America Productions, contacted Martin via telephone to inquire about her business and to assess her interest in participating in what he described as a documentary being filmed for Belarusian television about the experiences of a foreign reporter traveling in the United 1061288 In all his dealings with Martin, Schulman identified 1 himself as "Todd Lewis" and the company he was working for as Springland Films. 3 States. Martin agreed to give the reporter a lesson on 1 dining etiquette, and, on October 24, 2005, she traveled to the Tutwiler Hotel in Birmingham for the filming of the lesson. Upon arriving at the Tutwiler Hotel, Martin was presented with a document entitled "Standard Consent Agreement," which she signed. That document (hereinafter referred to as "the consent agreement") provided, in pertinent part: "This is an agreement between Springland Films (the 'Producer') and the undersigned participant (the 'Participant'). In exchange for the Producer's obligation to pay a participation fee in the amount of $350 (receipt of which is acknowledged by the Participant) and the opportunity for the Participant to appear in a motion picture, the Participant agrees as follows: "1. The Participant agrees to be filmed and audiotaped by the Producer for a documentary-style film (the 'Film'). It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats. "2. The Participant agrees that any rights that the Participant may have in the Film or the Participant's contribution to the Film are hereby assigned to the Producer, and that the Producer shall be exclusively entitled to use, or to assign 1061288 4 or license to others the right to use, the Film and any recorded material that includes the Participant without restriction in any media throughout the universe in perpetuity and without liability to the Participant, and the Participant hereby grants any consents required for those purposes. The Participant also agrees to allow the Producer, and any of its assignees or licensees, to use the Participant's contribution, photograph, film footage, and biographical material in connection not only with the Film, but also in any advertising, marketing or publicity for the Film and in connection with any ancillary products associated with the Film. ".... "4. The Participant specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Film, that include assertions of (a) infringement of rights of publicity or misappropriation (such as any allegedly improper or unauthorized use of the Participant's name or likeness or image), (b) damages caused by 'acts of God' (such as, but not limited to, injuries from natural disasters), (c) damages caused by acts of terrorism or war, (d) intrusion (such as any allegedly offensive behavior or questioning or any invasion of privacy), (e) false light (such as any allegedly false or misleading portrayal of the Participant), (f) infliction of emotional distress (whether allegedly intentional or negligent), (g) trespass (to property or person), (h) breach of any alleged contract 1061288 5 (whether the alleged contract is verbal or in writing), (i) allegedly deceptive business or trade practices, (j) copyright or trademark infringement, (k) defamation (such as any allegedly false statements made on the Film), (l) violations of Section 43(a) of the Lanham Act (such as allegedly false or misleading statements or suggestions about the Participant in relation to the Film or the Film in relation to the Participant), (m) prima facie tort (such as alleged intentional harm to the Participant), (n) fraud (such as any alleged deception or surprise about the Film or this consent agreement), (o) breach of alleged moral rights, or (p) tortious or wrongful interference with any contracts or business of the Participant, or any claim arising out of the Participant's viewing of any sexually- oriented materials or activities. ".... "6. Although the Participant agrees not to bring any claim in connection with the Film or its production, if any claim nevertheless is made, the Participant agrees that any such claim must be brought before, and adjudicated by, only a competent court located in the State of New York and County of New York, under the laws of the State of New York." After signing the consent agreement, Martin was introduced to the alleged foreign reporter who was the subject of the film, and they proceeded to begin filming the dining-etiquette lesson. It is sufficient to say that an eventful meal ensued 1061288 6 during which the alleged reporter engaged in behavior that would generally be considered boorish and offensive. After the lesson concluded, Martin telephoned her husband and related what had occurred. After hearing Martin's description of what had happened and being suspicious of the alleged reporter, Martin's husband sent to Martin's office pictures of two characters played by comedian and actor Sacha Baron Cohen on his HBO television series "Da Ali G Show," Ali G and Borat, which he had gotten off the Internet. Martin then learned for the first time that the alleged foreign reporter was in fact Cohen in character as Borat, a fictitious journalist from Kazakhstan. Unbeknownst to Martin, her lesson with Borat had in fact been filmed not for use in a Belarusian television documentary, but for inclusion in a major Hollywood motion picture, Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (hereinafter referred to as "the Borat movie"), distributed by Twentieth Century Fox Film Corporation. The Borat movie, which was assigned an R-rating by the ratings board based on strong crude and sexual content and graphic nudity and language, was released in the United 1061288 Cohen was not initially included in the motion to dismiss 2 because he had not yet been served when it was filed. However, after being served, Cohen filed a motion adopting and joining in the previously filed motion to dismiss. 7 States on approximately November 3, 2006, and went on to gross more than $200 million worldwide. Martin was identified by name in the film, which included portions of her etiquette lesson with Borat. Segments of Martin's initial meeting with Borat were also used in the film's advertising and promotion. On December 22, 2006, Martin, claiming that she had been embarrassed and humiliated by her encounter with Borat and her inclusion in and association with the Borat movie, sued Cohen, the production companies associated with the Borat movie, and other parties related to the film, in the Jefferson Circuit Court, stating claims alleging fraud and deceit, quasi- contract and unjust enrichment, commercial appropriation and invasion of privacy, and intentional infliction of emotional distress. The petitioners responded by filing, pursuant to Rule 12(b)(3), Ala. R. Civ. P., a motion to dismiss for improper venue, based on the forum-selection clause in the consent agreement naming New York as the proper venue for any claims arising out of that agreement. In her response to the 2 motion to dismiss, Martin argued, among other things, that the 1061288 Section 10-2B-15.02(a) provides, in pertinent part: 3 "All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement ...." 8 consent agreement that included the forum-selection clause was void because the only defendant that was a signatory to that agreement –– Springland Films –– was not qualified to do business in Alabama and that, pursuant to Alabama's door- closing statute, § 10-2B-15.02(a), Ala. Code 1975, the consent agreement was therefore void. The petitioners filed a reply, 3 arguing that they were engaged in interstate commerce in making the film and that the Commerce Clause in the United States Constitution accordingly shielded them from § 10-2B- 15.02(a). See North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So. 2d 598, 601 (Ala. 1988) (stating that the United States Constitution bars Alabama from preventing a foreign corporation that has not qualified to do business in Alabama "from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business"). 1061288 9 On April 26, 2007, after receiving further briefing on the issue and holding a hearing, the trial court denied the petitioners' motion to dismiss on the basis that the consent agreement was void and unenforceable under § 10-2B-15.02(a) because Springland Films was not qualified to do business in Alabama. On June 7, 2007, the petitioners timely petitioned this Court for a writ of mandamus directing the trial court to vacate its April 26, 2007, order and to grant their motion to dismiss. II. "'[A] petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an "outbound" forum-selection clause when it is presented in a motion to dismiss.' Ex parte D.M. White Constr. Co., 806 So. 2d 370, 372 (Ala. 2001); see Ex parte CTB, Inc., 782 So. 2d 188, 190 (Ala. 2000). '[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.' Ex parte Palm Harbor Homes, Inc., 798 So. 2d 656, 660 (Ala. 2001). '[T]he review of a trial court's ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.' Ex parte D.M. White Constr. Co., 806 So. 2d at 372." Ex parte Leasecomm Corp., 886 So. 2d 58, 62 (Ala. 2003). Thus, we review the trial court's April 26, 2007, order to determine whether the trial court exceeded its discretion in 1061288 10 concluding that the consent agreement was void because Springland Films failed to register to do business in Alabama. III. We first note that at the trial court level there was some question as to whether the relevant test for determining whether the Commerce Clause barred the application of § 10-2B- 15.02(a) in this case was: 1) whether the primary purpose of the transaction between Martin and Springland Films was interstate commerce, or 2) whether the transaction between Martin and Springland Films merely affected interstate commerce. Our opinion in Briarcliff Nursing Home, Inc. v. Turcotte, 894 So. 2d 661, 667 (Ala. 2004), issued after the Supreme Court of the United States decided Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003), makes clear that the test in cases involving § 10-2B-15.02(a) remains whether the primary purpose of the transaction constitutes an interstate activity: "[I]n Community Care [of America of Alabama, Inc. v. Davis, 850 So. 2d 283 (Ala. 2002)], this Court also stated: "'The test of the enforceability of the arbitration clause in the Admission Contract in this case is not, as Community Care contends, whether the transaction 1061288 11 substantially affects interstate commerce –– which is the proper analysis in cases not involving § 10-2B-15.02, see Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759 (Ala. 2000) –– but "whether the main or primary purpose of the [transaction] constitutes an interstate or intrastate activity." Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So. 2d 1242, 1244-45 (Ala. Civ. App. 1986).' "Community Care, 850 So. 2d at 287. In Community Care, Community Care was attempting to enforce a contract (specifically an arbitration provision in the admission contract); however, it was not qualified to do business in Alabama at the time it entered into the admission contract. This Court held that the penalty of § 10-2B-15.02(a), Ala. Code 1975, extends to the enforcement of arbitration provisions. Id. at 286. Section 10-2B-15.02(a) is a 'door closing' statute that '"bars a foreign corporation not qualified to do business in Alabama from enforcing in an Alabama court a contract it made in Alabama."' Community Care, 850 So. 2d at 286 (quoting Hays Corp. v. Bunge Corp., 777 So. 2d 62, 64 (Ala. 2000)). Therefore, this Court held that § 10-2B-15.02(a) voided the admission contract and changed the test of the enforceability of the arbitration provision from whether it substantially affects interstate commerce to '"whether the main or primary purpose of the [transaction] constitutes an interstate or intrastate activity."' 850 So. 2d at 287 (quoting Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So. 2d 1242, 1244-45 (Ala. Civ. App. 1986)). The present case does not involve § 10-2B-15.02(a); therefore, the proper test is whether the activity substantially affects interstate commerce." 894 So. 2d at 667. Because this case does involve 10-2B-15.02(a), the proper test is accordingly whether the 1061288 12 main or primary purpose of the transaction between Martin and Springland Films constitutes an interstate, or an intrastate, activity. That, in turn, depends on how the purpose of the transaction is defined. The petitioners argue that "[t]he purpose of the [consent] agreement between [Martin] and One America [d/b/a Springland Films] was to provide for [Martin]'s appearance in an internationally distributed motion picture." (Petition at p. 2.) Martin, however, argues that the purpose of the consent agreement "was for Mrs. Martin to provide dining etiquette services for filming in the State of Alabama" and that "[n]o mention was ever made about Mrs. Martin participating in any production or distribution of a 'motion picture' or, for that matter, any activities outside of Alabama." (Response to petition at p. 6.) For the reasons that follow, we agree with the petitioners. When attempting to discern the purpose of a contract, "this Court must first look to the plain language of the contract." Turner v. West Ridge Apartments, Inc., 893 So. 2d 332, 335 (Ala. 2004). The plain language of the consent agreement makes clear that the transaction between Martin and 1061288 13 Springland Films was not, as Martin attempts to portray it, a simple exchange pursuant to which Martin was to provide one filmed etiquette lesson in return for $350. Indeed, the consent agreement makes no mention of Martin's providing any services in exchange for the $350 payment. Rather, pursuant to the terms of the consent agreement, Martin was given the $350 payment "and the opportunity for [Martin] to appear in a motion picture" in exchange for her agreement, among other things, "to be filmed and audiotaped by [Springland Films] for a documentary-style film" and to assign to Springland Films any rights she may have in the recorded material so as to allow Springland Films to use the material "without restriction in any media throughout the universe in perpetuity." Thus, although Martin has characterized the primary purpose of the transaction as "the provision of local labor by Mrs. Martin" (response to petition at p. 24), which, under Alabama caselaw, would clearly be an intrastate activity, see Building Maintenance Personnel, Inc. v. International Shipbuilding, Inc., 621 So. 2d 1303, 1305 (Ala. 1993) (noting that labor is not an article of commerce and "'is quite 1061288 Although this Court is not bound by the label parties may 4 attach to a document, the fact that the contract at the center of this dispute was prominently labeled "Standard Consent Agreement" further supports our conclusion that obtaining Martin's consent was an integral part of the transaction, which was not a transaction characterized by the simple exchange of money for Martin's services. 14 clearly defined as intrastate, rather than interstate, activity'" (quoting Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370 (Ala. 1988))), the transaction here clearly encompassed more than Martin's providing labor. The plain language of the consent agreement indicates that any provision of services by Martin was incidental to the actual purpose of the transaction –– to provide for Martin's appearance in recorded footage that might be used "without restriction in any media throughout the universe."4 Accordingly, we hold that the primary purpose of the transaction between Martin and Springland Films constituted an interstate activity. This is true notwithstanding the fact that the filming, the execution of the consent agreement (along with the assignment of rights therein), and Springland Films' payment to Martin all took place in Alabama. We further note that Martin's argument that the petitioners failed to make their current argument to the trial 1061288 15 court and that their petition should now be denied on that basis is without merit. Citing Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45 (Ala. 2003), Martin argues that the petitioners argued below only that the transaction with Martin affected interstate commerce –– not that its primary purpose was interstate commerce –– and that because the petitioners did not make the latter argument in the trial court the argument was waived and cannot now be made. See Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988) (stating that "this Court will not reverse the trial court's judgment on a ground raised for the first time on appeal"). The appellant in Kingvision sought to have a default judgment against it vacated. In the trial court, the appellant had argued that it had a meritorious defense to the plaintiff's claims; however, the appellant apparently did not at that time address the other two elements of the three-factor test this Court first enunciated in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 520 So. 2d 600 (Ala. 1988), for challenging a default judgment –– whether the plaintiff would be prejudiced if the judgment was set aside and whether the default judgment was the result of the appellant's own 1061288 16 culpable conduct. Thus, because the appellant did not argue to the trial court that its case met the three-part test, this Court did not allow it to make that argument on appeal. In the present case, the petitioners did first argue to the trial court that the Commerce Clause barred the application of § 10-2B-15.02(a) because their transaction with Martin merely affected interstate commerce. However, after Martin argued that the proper test was whether the primary purpose of the transaction was interstate, the petitioners responded by arguing that they were entitled to relief under the test advocated by Martin as well. At the April 26, 2007, hearing on this matter, the petitioners' counsel argued: "What [an affidavit filed by a Springland Films official] establishes more clearly I think is the interstate nature of the transaction at issue, that is, the making of this and distribution of this film. Which I think even without the affidavit, Judge, the result from our perspective should be the same, that is, that this is plainly an interstate commerce transaction no matter how one articulates the test. Whether it be an [Citizens Bank v.] Alafabco[, 539 U.S. 52 (2003),] type test of substantially affect[ing] interstate commerce or whether it be a test of plaintiff –– excuse me –– plaintiff now argues that you have to look to see whether the main or primary purpose of the transaction was intrastate or interstate." 1061288 17 Thus, unlike the appellant in Kingvision, the petitioners did argue to the trial court that their case met the entirety of the relevant test, and they accordingly preserved their argument for appeal. IV. The petitioners have established that the primary purpose of the transaction between Springland Films and Martin was interstate commerce, specifically, to provide for Martin's appearance in a film that might be used "without restriction in any media throughout the universe." Because the purpose of that transaction was interstate commerce, the Commerce Clause of the United States Constitution precludes the courts of this State from applying § 10-2B-15.02(a) to prevent the petitioners from enforcing the consent agreement. Because the petitioners have a clear, legal right to the relief they seek –– an order directing the Jefferson Circuit Court to vacate its order holding the consent agreement void and unenforceable –– their petition for the writ of mandamus is granted. The trial court is directed to vacate its April 26, 2007, order and to conduct further proceedings consistent with this opinion. 1061288 18 PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and Lyons and Stuart, JJ., concur. Murdock, J., concurs specially. 1061288 19 MURDOCK, Justice (concurring specially). The main opinion concludes that the subject of the contract at issue is sufficiently interstate in nature that § 10-2B-15.02, Ala. Code 1975, may not be used against the petitioners by Martin. I concur in this rationale. In so doing, I note that this is the only ground argued by the petitioners as to why § 10-2B-15.02, which is commonly referred to as Alabama's door-closing statute because it bars nonqualified foreign corporations from accessing Alabama courts to enforce their contracts, does not prevent the petitioners from using provisions of their contract with Martin to defend against the lawsuit she initiated.	January 18, 2008
4000e924-ffef-46f2-a870-e5a25bed125c	Alabama State Bar v. R.G.P., Jr.	N/A	1061601	Alabama	Alabama Supreme Court	REL: 01/25/08 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, 2007-2008 _________________________ 1061601 _________________________ Alabama State Bar v. R.G.P., Jr. Appeal from the Board of Disciplinary Appeals of the Alabama State Bar (No. 07-01) WOODALL, Justice. The Alabama State Bar ("the Bar") appeals the decision of the Board of Disciplinary Appeals of the Alabama State Bar ("the Board") reversing the order of a panel of the Disciplinary Board of the Alabama State Bar ("the panel"); the 1061601 2 panel had disciplined R.G.P., Jr., a member of the Bar, for allegedly violating Rule 8.4(d), Ala. R. Prof. Conduct. We vacate the order and remand. In its order reversing the panel's decision, the Board stated, in pertinent part: "The Board considered the briefs as filed and the Board finds that the briefs, which substantially comply with the procedural rules, are accepted as filed. "After serious discussion by the Board, each member speaking to the point as raised by the Appeal, it is the decision of the Board of Disciplinary Appeals that [R.G.P., Jr.,] has demonstrated that the Order [of the panel] is erroneous under the standard of review set forth in Rule 5.1(d), [Ala. R. Disc. P.]. "Accordingly, it is ORDERED and DECREED by the [Board] that the findings of the [panel] on January 23, 2007, are hereby reversed and this Board hereby enters its Order finding [R.G.P., Jr.,] not guilty of engaging in conduct prejudicial to the administration of justice." (Emphasis added.) The Board was established in Rule 5.1, Ala. R. Disc. P., which became effective August 1, 2000. In establishing the Board, this Court limited the manner in which the Board may make its decision by requiring that, "[i]n affirming, reversing, or modifying a decision or order, the [Board] shall 1061601 3 specifically state the reason(s) for its conclusion(s) and the legal basis on which it relies." Rule 5.1(d) (emphasis added). When it fails to do so, this Court will vacate the Board's order and remand the case for further consideration, including compliance with Rule 5.1(d). "[T]he 'clearly erroneous' standard [of review] is applicable to the [Board's] review of decisions of the [panel] ...." Tipler v. Alabama State Bar, 866 So. 2d 1126, 1137 (Ala. 2003); see also Rule 5.1(d). "[W]hether the [Board] properly applied the 'clearly erroneous' standard of review to the [panel's] findings of fact is a question of law. Likewise, all other legal questions in the final order of the [Board] present questions of law to us." Tipler, 866 So. 2d at 1137 (emphasis added). Additionally, "[n]o error shall be predicated on any ground not presented to the [panel]." Rule 5.1(d) (emphasis added). Thus, to review properly the Board's order reversing the order of the panel, this Court must be informed as to whether the basis of the reversal was factual or legal and as to what arguments were presented to the Board by the appellant. In this case, for example, the panel's order imposing discipline 1061601 4 was based on a finding of negligence on the part of R.G.P., Jr. However, the Board's conclusory order reversing the panel's decision does not indicate whether the Board merely disagreed with the panel's factual findings or whether it concluded, as a matter of law, that discipline could not be imposed on the basis of negligence, either as a general rule or as this case was postured. Because it does not satisfy the mandate of Rule 5.1(d), the Board's order is vacated, and the case is remanded for further proceedings that comply with Rule 5.1, Ala. R. Disc. P. ORDER VACATED; CASE REMANDED. Cobb, C.J., and See, Lyons, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	January 25, 2008
22809134-556b-4f2e-941e-40d2bf839209	Burt W. Newsome and Newsome Law, LLC v. Clark A. Cooper et al.	N/A	1180252	Alabama	Alabama Supreme Court	REL: December 18, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1180252 ____________________ Burt W. Newsome and Newsome Law, LLC v. Clark A. Cooper et al. ____________________ 1180302 ____________________ Burt W. Newsome and Newsome Law, LLC v. Balch & Bingham, LLP, et al. Appeals from Jefferson Circuit Court (CV-15-900190) PER CURIAM. Attorney Burt W. Newsome and his law practice Newsome Law, LLC (hereinafter referred to collectively as "the Newsome plaintiffs"), sued attorney Clark A. Cooper; Cooper's former law firm Balch & Bingham, LLP ("Balch"); John W. Bullock; Claiborne Seier ("Seier"); and Don Gottier (hereinafter referred to collectively as "the defendants") in the Jefferson Circuit Court, alleging that the defendants combined to have Newsome arrested on a false charge with the intent of damaging his reputation and law practice. The trial court ultimately entered judgments in favor of the defendants, while reserving jurisdiction to make a later award of attorney fees and costs under the Alabama Litigation Accountability Act, § 12-19- 270 et seq., Ala. Code 1975 ("the ALAA"). After the Newsome plaintiffs appealed the initial judgments against them, the trial court awarded Balch, Bullock, Seier, and Gottier attorney fees and costs under the ALAA. The Newsome plaintiffs then filed another appeal seeking the 2 1180252, 1180302 reversal of those awards. We now affirm the judgments challenged by the Newsome plaintiffs in both appeals. Facts and Procedural History On December 19, 2012, Bullock went to his dentist's office in Birmingham to have a crown reset. The dentist's office shared a parking lot with Newsome Law, and Bullock parked his vehicle in a parking space near Newsome's vehicle. As Bullock got out of his vehicle to go in for his appointment, Newsome was leaving his office and approaching his own vehicle. Approximately 11 months earlier, Newsome had similarly been leaving his office when Alfred Seier ("Alfred") exited a vehicle parked near his and confronted Newsome about collection efforts Newsome was taking against Alfred's wife, who owed money to a bank that Newsome represented. During that confrontation, Alfred produced a handgun, but Newsome was able to escape to his office unharmed. Newsome later filed a criminal complaint against Alfred for menacing, a violation of § 13A-6- 3 1180252, 1180302 23, Ala. Code 1975.1 Alfred's brother Seier, an attorney, later contacted Newsome and attempted to convince him to drop the menacing charge against Alfred, who had cancer and was in poor health, but Newsome declined to do so. Newsome states that Bullock's parking and the manner in which Bullock exited his vehicle on December 19 was reminiscent of the incident with Alfred earlier that year. Feeling threatened, Newsome pulled out a handgun as he approached Bullock and their vehicles and ordered Bullock to return to his vehicle until Newsome entered his vehicle and left. Bullock did so. Bullock later contacted law enforcement and swore out a warrant against Newsome for menacing. On May 2, 2013, Newsome was stopped by the police for speeding. After the police officer discovered that Newsome had an outstanding warrant for his arrest, Newsome was taken into custody and was 1Section 13A-6-23(a) provides that "[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." 4 1180252, 1180302 transported to the Shelby County jail. Newsome was released later that day. Two days later, Cooper learned about Newsome's arrest. Like Newsome, Cooper was an attorney who represented banks in creditors' rights actions. Cooper and Newsome, in fact, had several of the same banks as clients, representing them in different matters, depending on the nature and scope of the action. As part of his practice, Cooper periodically e-mailed his banking clients when he learned that another attorney had filed an action on their behalf to ask if there was anything he could do to get more business referred to Balch; Cooper had sent these e-mails to some of his clients after learning of actions that Newsome had filed. Upon learning of Newsome's arrest, Cooper forwarded Newsome's mug shot to a friend who was an executive at IberiaBank, which periodically referred legal matters to both Cooper and Newsome, with a note wondering how Newsome's arrest would affect his law license. That IberiaBank executive subsequently testified that he did not refer any cases to Newsome for the next three weeks until they met and Newsome assured him that the 5 1180252, 1180302 menacing charge would have no effect on his ability to practice law. IberiaBank thereafter resumed referring cases to Newsome. Newsome's menacing charge was set for a November 12, 2013, trial in the Shelby District Court. During a pretrial conference that morning, the State, with Bullock's consent, offered to continue the trial until April 1, 2014, and to then dismiss the charge at that time if Newsome had no further arrests and paid the required court costs. The "Dismissal and Release" order ("the D&R order") memorializing the terms of their agreement further provided: "[Newsome] does hereby grant a full, complete and absolute Release of all civil and criminal claims stemming directly or indirectly from this case to the State of Alabama ... [and] to any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter .... [Newsome] freely makes this release knowingly and voluntarily. In exchange for this release, this case will be either dismissed immediately, or pursuant to conditions noted above." (Emphasis in original.) The D&R order was signed by Bullock, the assistant district attorney, Newsome, and Newsome's attorney. On April 4, 2014, the district court dismissed the case against Newsome. 6 1180252, 1180302 On January 14, 2015, the Newsome plaintiffs sued Cooper, Balch, Bullock, and Seier, alleging, as later amended, malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, invasion of privacy, and multiple counts of conspiracy and intentional interference with a business relationship. The gist of their complaint was that Cooper and Seier conspired with Bullock to stage a confrontation and to set Newsome up to be arrested so that Cooper could then take Newsome's clients on behalf of Balch and Seier could get revenge upon Newsome for filing a menacing charge against Alfred.2 On February 13, 2015, Seier moved the trial court to dismiss the Newsome plaintiffs' claims asserted against him, arguing that they had no factual basis and that, in any event, the claims were barred by the release clause in the D&R order because the claims were related to Newsome's menacing case. Six days later, Newsome petitioned the Shelby Circuit Court to expunge the records relating to his menacing charge under § 15-27-1, Ala. Code 1975. Both the State and Bullock filed 2The Newsome plaintiffs' complaint did not offer a reason for Bullock's participation in the alleged scheme. 7 1180252, 1180302 objections, and, following a hearing, Newsome's petition was denied. Newsome moved the court to reconsider, however, and, on September 10, 2015, the court granted his motion and entered an order ("the expungement order") expunging the records relating to his menacing charge. While Newsome was pursuing expungement in the Shelby Circuit Court, the Jefferson Circuit Court granted motions to dismiss filed by Seier and Bullock and a summary-judgment motion filed by Cooper and Balch. But after the expungement order was entered by the Shelby Circuit Court, the Newsome plaintiffs moved the Jefferson Circuit Court to reconsider, arguing, among other things, that because the records of Newsome's criminal case had been expunged, nothing from that case -- including the D&R order containing the release clause -- could be produced or relied upon in the Newsome plaintiffs' civil case. See § 15-27- 16(a), Ala. Code 1975 (explaining that the contents of an expunged file generally cannot be revealed, used, or disclosed by an individual who knows an expungement order has been issued). In December 2015, the Jefferson Circuit Court granted the Newsome plaintiffs' motion and 8 1180252, 1180302 vacated its judgments in favor of Cooper, Balch, Bullock, and Seier. The Newsome plaintiffs then continued to conduct discovery trying to uncover a link between Cooper, Bullock, and Seier, all of whom denied that a conspiracy existed or that they even knew each other. Meanwhile, back in the Shelby Circuit Court, Bullock and Seier filed requests to have the expungement order reversed based on Newsome's breach of the release clause in the D&R order. On June 8, 2016, the Shelby Circuit Court granted their requests and reversed the expungement order under § 15-27-17, Ala. Code 1975, explaining that Newsome had obtained the expungement order under false pretenses because he had not, in fact, fulfilled all the terms of the D&R order at the time he sought expungement (this order is hereinafter referred to as "the expungement-reversal order").3 The Shelby Circuit Court further explained: 3Section 15-27-17 provides that, "[u]pon determination by the court that a petition for expungement was filed under false pretenses and was granted, the order of expungement shall be reversed and the criminal history record shall be restored to reflect the original charges." 9 1180252, 1180302 "The movants are further free to utilize all records related to [Newsome's] prosecution, plea and the case's disposition as they may find appropriate and necessary. The expungement statute was enacted to provide a 'shield' to first-time and non- violent offenders. It was not intended to be a 'sword' for those engaged in civil litigation over the same transaction made the basis of their criminal offense, and the court will not construe the statute as such." Newsome then petitioned the Court of Criminal Appeals to set aside the expungement-reversal order, but, in a four-page order, the Court of Criminal Appeals unanimously denied his request, stating: "We find no abuse of discretion in the trial court's finding that the petition for expungement was filed under false pretenses in contravention of the agreement signed between the parties." (No. CR-15-1223, September 20, 2017.) Newsome followed that ruling by petitioning this Court for the same relief; that petition was also denied. (No. 1161155, April 27, 2018.) The Newsome plaintiffs, meanwhile, continued with discovery in their civil case against the defendants, eventually obtaining the telephone records of Cooper, Bullock, and Seier. Those records indicated that Cooper, Bullock, and Seier had all received calls from telephone number 205-410-1494 on dates surrounding notable events in this case, including 10 1180252, 1180302 the date of Newsome and Bullock's confrontation in the parking lot, the date of Newsome's arrest, the date Cooper sent the e-mail with Newsome's mug shot to an IberiaBank executive, and the date the Newsome plaintiffs filed their complaint initiating the underlying action. Based on some Internet searches, Newsome concluded that the telephone number 205- 410-1494 was assigned to 76-year-old Calera resident Don Gottier, and, on June 30, 2017, the Newsome plaintiffs filed an amended complaint naming Gottier as a defendant and asserting that he was the coordinator of the alleged conspiracy that had targeted Newsome. The Newsome plaintiffs also asked the trial court enter a judgment declaring the D&R order void and unenforceable. Upon being served with the Newsome plaintiffs' complaint, Gottier contacted the Calera Police Department and filed a report indicating that he may be a victim of identity theft because he had been named a defendant in a lawsuit alleging that the telephone number 205-410-1494 was assigned to him, but, he stated, he had never been assigned or operated that telephone number. During the course of its ensuing investigation, the Calera Police Department subpoenaed records from 11 1180252, 1180302 Verizon Wireless, a cellular-telephone provider, and received information indicating that the telephone number 205-410-1494 was not, in fact, a working telephone number but was instead an internal routing number controlled by Verizon Wireless that was used to connect calls originating from outside the caller's home area. A custodian of records for Verizon Wireless subsequently confirmed that information in a deposition when he testified that the telephone number 205-410-1494 had been used as a routing number by Verizon Wireless since 2007 and that it was not assigned to any individual customer.4 Cooper, Balch, Bullock, and Seier thereafter filed new summary- judgment motions with the trial court, and Gottier filed a motion to dismiss. The defendants supported their respective motions with evidence indicating that, other than Cooper and Balch, they did not know each other before the Newsome plaintiffs sued them and that there had been no conspiracy to stage an incident that would result in Newsome's arrest. 4The defendants have noted that this also explains why 205-410- 1494 is listed in telephone records only as the number originating a call; there is no evidence anybody ever placed a call to 205-410-1494. 12 1180252, 1180302 The trial court held a hearing on those motions, during which it expressed skepticism about the merits of the Newsome plaintiffs' claims, but, before the trial court could issue a ruling, the Newsome plaintiffs moved the trial judge to recuse herself, alleging bias. Following another hearing, the trial court denied the motion to recuse. The Newsome plaintiffs then petitioned this Court for a writ of mandamus directing the trial judge to recuse herself. That petition was denied. (No. 1170844, August 8, 2018.) On June 15, 2018, the trial court entered judgments in favor of the defendants on all of the Newsome plaintiffs' claims, expressly reserving the right to later enter an award of attorney fees and costs under the ALAA.5 See SMM Gulf Coast, LLC v. Dade Capital Corp., [Ms. 1170743, June 5, 2020] ___ So. 3d ___, ___ (Ala. 2020) (explaining that a trial court 5Although the judgment entered in favor of Gottier purported to grant his motion to dismiss, it noted that the trial court had reviewed all the "evidence submitted." When a trial court reviewing a motion to dismiss considers evidence outside the pleadings, the motion is converted into a summary-judgment motion. Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 212-13 (Ala. 2009). Accordingly, we treat the judgment of dismissal entered by the trial court in favor of Gottier, like the other judgments entered on June 15, 2018, as a summary judgment. 13 1180252, 1180302 retains jurisdiction to enter a postjudgment award of attorney fees under the ALAA only if it has expressly reserved jurisdiction to do so). The parties then filed briefs and evidence regarding the defendants' motions for attorney fees and costs, which the trial court ultimately granted in the following amounts: $56,283 for Balch; $56,317 for Bullock; $78,341 for Seier; and $1,250 for Gottier. The Newsome plaintiffs appeal both the underlying judgments (case no. 1180252) and the awards entered against them under the ALAA (case no. 1180302). Analysis The Newsome plaintiffs make myriad arguments about how the trial court allegedly erred and why the judgments entered in favor of the defendants should be reversed. Ultimately, however, it is unnecessary for this Court to address all of those arguments. For the reasons explained below, we hold (1) that the trial judge did not exceed her discretion in denying the Newsome plaintiffs' motion seeking her recusal; (2) that Newsome is bound by the release clause in the D&R order; (3) that summary judgment was proper on all claims asserted by Newsome Law, and (4) that the circumstances of this case support the trial court's award 14 1180252, 1180302 of attorney fees and costs under the ALAA. We pretermit discussion of all other issues raised by the parties. A. The Newsome Plaintiffs' Seeking the Trial Judge's Recusal We first consider the Newsome plaintiffs' argument that the trial judge should have recused herself and that her failure to do so requires the reversal of the judgments she has entered. 1. Standard of Review "A trial judge's ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion." Ex parte George, 962 So. 2d 789, 791 (Ala. 2006). This Court has further explained that the necessity for recusal will be evaluated in each case based on the totality of the circumstances, id., and that, when an allegation of bias has been made, recusal will be required only "where facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge." Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982). 2. Merits of the Newsome Plaintiffs' Recusal Argument 15 1180252, 1180302 The Newsome plaintiffs argue that the trial judge's impartiality can reasonably be questioned because (1) she and her husband, a state legislator, allegedly received $34,500 in campaign donations from "agents" having some association with the defendants and (2) the trial judge has made various rulings throughout the course of this case that have gone against the Newsome plaintiffs. We are not convinced by the Newsome plaintiffs' arguments. In their brief to this Court, the Newsome plaintiffs cite Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994), and In re Sheffield, 465 So. 2d 350, 357 (Ala. 1985), for the well established general principle that recusal is appropriate when there is a reasonable basis for questioning a judge's impartiality. But they cite no authority to support their allegations that the trial judge in this case did anything that would reasonably cause one to question her impartiality and thus require her recusal. In contrast, the defendants have cited authority that supports the trial court's denial of the motion to recuse. With regard to the alleged campaign contributions, Cooper and Balch note that one appellate judge has explained how impractical it would be to require judges to recuse themselves in every 16 1180252, 1180302 case in which a party or attorney has supported the judge's campaign because, in Alabama, judges are required to run for reelection and, therefore, "situations will arise in which an attorney associated with a specific judge's campaign will have a case come before that judge. If we were to require recusal in such cases, we would be opening Pandora's box leading to untold problems for probate judges, district judges, circuit judges, and appellate judges, all of whom must run for election to their judgeships and all of whom have had numerous attorneys associated with their campaigns." Smith v. Alfa Fin. Corp., 762 So. 2d 843, 849 (Ala. Civ. App. 1997) (opinion on application for rehearing) (Monroe, J., statement of nonrecusal), reversed on other grounds by Ex parte Alfa Fin. Corp., 762 So. 2d 850 (Ala. 1999). Cooper and Balch further note that in § 12-24-3, Ala. Code 1975, the Alabama Legislature specifically addressed the circumstances in which campaign contributions might require a judge's recusal, but the Newsome plaintiffs have failed to cite or make any argument invoking that statute.6 And, with regard to the trial court's rulings against the 6Section 12-24-3 explains that there is a rebuttable presumption that a judge should recuse himself or herself from a case when a party or a party's attorney has made a campaign contribution that represents a 17 1180252, 1180302 Newsome plaintiffs on various issues raised during the pendency of this case, Bullock notes that this Court has previously held that "[a]dverse rulings during the course of proceedings are not by themselves sufficient to establish bias and prejudice on the part of a judge." Henderson v. G&G Corp., 582 So. 2d 529, 530-31 (Ala. 1991). Turning to the merits of the Newsome plaintiffs' recusal motion, we are not convinced that, under the totality of the circumstances, there is a reasonable basis to question the impartiality of the trial judge. George, 962 So. 2d at 791. Although the Newsome plaintiffs allege that agents of the defendants have given $34,500 to the campaigns of the trial judge and her state-legislator husband, the evidence does not support that allegation. First, the Newsome plaintiffs argue that $29,500 of campaign significant portion of the judge's fundraising. See Dupre v. Dupre, 233 So. 3d 357, 360 (Ala. Civ. App. 2016) ("By its plain language, § 12–24–3(b)(2) creates a rebuttable presumption that a circuit-court judge should recuse himself or herself when a party, or his or her attorney, contributes 15% or more of the total campaign contributions collected by the circuit-court judge during an election cycle while the party, or his or her attorney, has a case pending before the judge."). The Newsome plaintiffs' brief does not reveal or address the total campaign contributions received by the trial judge in this case. 18 1180252, 1180302 contributions made by political action committees should be attributed to Balch because Balch or its agents had made contributions to those committees. But Balch's general counsel provided unrefuted testimony that, "once a contribution is made to a political action committee, that political action committee has the authority and discretion as to which candidates it decides to support with any funds contributed."7 Next, the Newsome plaintiffs include in their $34,500 calculation a $3,000 donation made by the law firm that employs Alfred's wife as a paralegal. It is borderline absurd, however, to suggest that a campaign donation to the legislator spouse of a trial judge made by the employer of the wife of the brother of one of five defendants would be a basis upon which a person could reasonably conclude that the trial judge was biased in favor of the defendants. 7We further note that in Startley General Contractors, Inc. v. Water Works Board of Birmingham, 294 So. 3d 742, 758 n.10 (Ala. 2019), this Court reviewed a ruling on a motion to recuse made under 12-24-3 and distinguished between donations to a campaign made by a political action committee and those made by an individual. 19 1180252, 1180302 Finally, the Newsome plaintiffs note that the outside law firm that Balch ultimately retained to represent it and Cooper in this action has also donated $2,000 to the trial judge. Again, however, we do not conclude, and do not believe that any reasonable person would conclude, that this campaign donation is a reasonable basis upon which to question the impartiality of the trial judge. As explained by the special writing in Smith, 762 So. 2d at 849, judges in Alabama are required to campaign for their positions. As part of that process, attorneys will inevitably provide financial support for candidates. Indeed, Newsome acknowledged at the hearing on the motion to recuse that he too has made campaign contributions to judges before whom he practices. Section 12-24-3 provides that there is a rebuttable presumption that a judge should recuse himself or herself from a case when a party or a party's attorney has made a campaign contribution that represents a significant portion of the judge's fundraising, but the Newsome plaintiffs have not cited this statute or demonstrated that any of the campaign donations they have identified were of an amount sufficient to implicate § 12-24-3. 20 1180252, 1180302 We also expressly reject the Newsome plaintiffs' argument that the fact that the trial judge has ruled against them on various issues throughout the course of this litigation demonstrates a bias against them. Although the trial judge has ruled against the Newsome plaintiffs on some issues, she has also issued rulings favorable to them. Notably, in December 2015, she vacated judgments she had previously issued disposing of the Newsome plaintiffs' claims and allowed them to thereafter conduct extensive discovery. Considering the totality of the facts and circumstances, no reasonable person could consider the trial judge's rulings and conclude that they were the product of bias and prejudice. The trial judge did not exceed her discretion by denying the Newsome plaintiffs' motion to recuse. B. The D&R Order We next consider the Newsome plaintiffs' arguments concerning the D&R order. They argue, first, that it was reversible error for the trial court to consider the D&R order or any other materials related to Newsome's menacing case, because, they allege, the expungement- reversal order was "counterfeit" and the expungement order was therefore 21 1180252, 1180302 still in effect and barred consideration of the D&R order. They additionally argue that, even if the trial court could consider the D&R order, the release clause in that order is unenforceable and that the trial court therefore erred to the extent it concluded that the release clause barred the Newsome plaintiffs from pursuing civil claims against the defendants stemming from Newsome's menacing arrest. Neither of those arguments has merit. 1. Standard of Review The Newsome plaintiffs are essentially arguing that the D&R order is inadmissible as evidence in the underlying action. This Court has explained that we will reverse a trial court's decision to consider evidence submitted in conjunction with a summary-judgment motion only if it is established that the trial court exceeded its discretion in doing so. Swanstrom v. Teledyne Cont'l Motors, Inc., 43 So. 3d 564, 574 (Ala. 2009). To the extent the Newsome plaintiffs argue that the trial court erred in holding that the release clause in the D&R order bars their claims, we review that issue de novo. See McDonald v. H&S Homes, L.L.C., 853 So. 22 1180252, 1180302 2d 920, 923 (Ala. 2003) (explaining that the interpretation of an unambiguous provision is a question of law, which we review de novo). 2. The Validity of the Expungement-Reversal Order As explained in the statement of facts above, after Seier moved the trial court to dismiss the Newsome plaintiffs' claims based on the release clause in the D&R order, Newsome petitioned the Shelby Circuit Court to expunge the records of his menacing charge. Once Newsome successfully obtained the expungement order, the Newsome plaintiffs argued to the trial court that § 15-27-16(a), Ala. Code 1975, barred the defendants from introducing the D&R order into evidence or from relying upon its release clause. But the Shelby Circuit Court later reversed the expungement order after concluding that Newsome had obtained the expungement order under false pretenses. That prompted the trial court to allow the defendants to submit evidence related to Newsome's menacing charge -- including the D&R order. And the trial court relied upon the D&R order when entering its judgments in favor of the defendants.8 Indeed, in 8We note that, although Bullock was the only defendant who signed the D&R order, the language of its release clause is broad enough to 23 1180252, 1180302 granting Bullock's summary-judgment motion, the trial court expressly held that "Newsome executed a valid and binding release." The Newsome plaintiffs nonetheless argue that it was reversible error for the trial court to consider the D&R order because, they allege, the expungement-reversal order was "counterfeit" and the expungement order -- and the concomitant prohibition on using any records related to Newsome's menacing charge -- was therefore still in effect. Although the Newsome plaintiffs repeatedly use the term "counterfeit" to describe the expungement-reversal order, they are not alleging that the judge's signature on that order was forged; rather, they dispute the conclusions set forth in the order, challenge the court's jurisdiction to enter the order, and argue that the order has no effect because it was not entered into the State Judicial Information System ("SJIS"). Newsome previously made these arguments when he filed petitions with the Court of Criminal encompass claims asserted against "organizations or persons in any way related to the matter." See discussion, infra. 24 1180252, 1180302 Appeals and this Court.9 Those petitions were denied. The arguments presented in those petitions are no more persuasive this time around. As the Court of Criminal Appeals explained in its order denying Newsome's petition, the Shelby Circuit Court had jurisdiction to consider whether Newsome filed his petition for expungement under false pretenses pursuant to § 15-27-17, which provides that an order of expungement "shall be reversed" if the court determines that the petition for expungement was filed under false pretenses. The Court of Criminal Appeals noted that, because § 15-27-17 provides no time frame in which a motion to set aside an expungement order must be filed or in which a ruling on such a motion must be made, the court had jurisdiction to reverse the expungement order notwithstanding the fact that it did so 9Section 15-27-5(c), Ala. Code 1975, provides that the ruling of a court on a request for expungement of a criminal record "shall be subject to certiorari review." In Bell v. State, 217 So. 3d 962, 963 (Ala. Crim. App. 2016), the Court of Criminal Appeals explained that, because Rule 39, Ala. R. App. P., only contemplates certiorari petitions filed with the Supreme Court seeking review of a decision made by one of the intermediate appellate courts, certiorari petitions seeking review of a ruling on a request for expungement are governed by Rule 21(c), Ala. R. App. P., which applies to extraordinary writs other than writs of mandamus and prohibition. 25 1180252, 1180302 more than 30 days after that order was entered. In light of the evidence, the Court of Criminal Appeals further concluded that it could "find no abuse of discretion in the trial court's finding that the petition for expungement was filed under false pretenses in contravention of the agreement signed by the parties." After failing to obtain relief from the Court of Criminal Appeals, Newsome petitioned this Court for a writ of certiorari or, in the alternative, a writ of mandamus, directing the Shelby Circuit Court to vacate its order reversing the expungement order. In an April 27, 2018, order, we denied Newsome's petition but directed the Shelby Circuit Court to enter the expungement-reversal order into the SJIS. The Newsome plaintiffs state that, despite this Court's April 2018 order, the Shelby Circuit Court still has not entered the expungement-reversal order into the SJIS. Accordingly, they repeat their argument that the expungement- reversal order is invalid because it is not in the SJIS. We reject that argument. When this Court directed the Shelby Circuit Court to enter the expungement-reversal order into the SJIS in April 2018, we implicitly held that that order was valid and that the 26 1180252, 1180302 evidence supported the court's exercising its discretion to reverse the expungement order. We expressly confirm that now. The Newsome plaintiffs' argument that the expungement-reversal order is "counterfeit" and that the trial court therefore erred by allowing the defendants to introduce the D&R order in this action is without merit. 3. The Validity of the Release Clause in the D&R Order The Newsome plaintiffs argue that, even if the trial court could consider the D&R order, the release clause in that order is unenforceable because (1) the D&R order violates Alabama law against compounding; (2) any legal effect the D&R order might have had ended once Newsome's menacing case was officially dismissed five months later; (3) the release clause constitutes a punishment not permitted by law; (4) the release clause was obtained by fraud; and (5) the release clause is invalid under federal law. We consider these arguments in turn. a. Whether the D&R order violates Alabama law prohibiting compounding The Newsome plaintiffs first argue that, because the D&R order provided that Newsome's menacing case would be dismissed if, among 27 1180252, 1180302 other things, he released "all civil and criminal claims stemming directly or indirectly from this case," the D&R order violates § 13A-10-7(a), Ala. Code 1975, which provides that "[a] person commits the crime of compounding if he gives or offers to give, or accepts or agrees to accept, any pecuniary benefit or other thing of value in consideration for ... [re]efraining from seeking prosecution of a crime." The Newsome plaintiffs fail to acknowledge, however, that this Court expressly held that "[r]elease-dismissal agreements are not invalid per se" in Gorman v. Wood, 663 So. 2d 921, 922 (Ala. 1995), another case in which an individual sought to file a lawsuit after signing a release in exchange for having his criminal charges dismissed. The Gorman Court explained: "We have studied the general release in this case. The plaintiff admits that he signed the release and that [his criminal cases] ... were dismissed when the release was signed. When the plaintiff signed the release, he was represented by an attorney, who had drafted the release and who notarized the plaintiff's signature. The plaintiff does not allege that the release was obtained by fraud. The release is not ambiguous. Therefore, the plain and clear meaning of the terms of the release document must be given effect." Id. 28 1180252, 1180302 Although Gorman did not directly address § 13A-10-7, the United States District Court for the Middle District of Alabama addressed that statute in Penn v. City of Montgomery, 273 F. Supp. 2d 1229, 1237 (M.D. Ala. 2003), and concluded that a prosecutor's decision to dismiss pending criminal charges did not constitute "refraining from seeking prosecution of a crime" as that term is used in § 13A-10-7(a) and that release- dismissal agreements simply did not constitute "the kind of conduct which the Alabama Code has said constitutes the crime of compounding." The Penn court further explained that this Court had effectively held as much in Gorman though it did not expressly state its holding in those terms. 273 F. Supp. 2d at 1238.10 The Newsome plaintiffs' argument -- that the release clause in the D&R order has no effect because the order was void under § 13A-10-7 -- is without merit. b. Whether the release clause was no longer binding after Newsome's menacing case was dismissed 10The United States Court of Appeals for the Eleventh Circuit affirmed the holding of Penn in Penn v. City of Montgomery, 381 F.3d 1059, 1062-63 (11th Cir. 2004), similarly concluding that § 13A-10-7 does not bar release-dismissal agreements and noting that this Court had implicitly recognized that fact in Gorman. 29 1180252, 1180302 The Newsome plaintiffs next argue that the D&R order was essentially an interlocutory order that became unenforceable after a final judgment was entered five months later dismissing Newsome's criminal case. In support of this argument, they cite multiple family-law cases for the proposition that a settlement agreement that is merged into a final judgment can no longer be enforced as a contract. See, e.g., Turenne v. Turenne, 884 So. 2d 844, 849 (Ala. 2003) (explaining that the appellant had "no claim that can be enforced on a contract theory ... because the settlement agreement was merged into the divorce judgment"). Thus, they argue, the defendants cannot now enforce the release clause in the D&R order because the D&R order was subsumed by the final judgment dismissing Newsome's case. The Newsome plaintiffs misread Turenne and the other cases upon which they rely; to the extent those family-law cases apply, they do not support the conclusion that the D&R order ceased being valid when Newsome's case was dismissed. In Turenne, this Court quoted the following passage from Killen v. Akin, 519 So. 2d 926, 930 (Ala. 1988): 30 1180252, 1180302 " 'The question whether a separation agreement or a property settlement is merged in the decree or survives as an independent agreement depends upon the intention of the parties and the court ....' East v. East, 395 So. 2d 78 (Ala. Civ. App. 1980), cert. denied, 395 So. 2d 82 (Ala. 1981). If there is an agreement between the parties and it is not merged or superseded by the judgment of the court, it remains a contract between the parties and may be enforced as any other contract." Thus, a settlement agreement is not always subsumed within the final judgment; rather, it depends upon "the intention of the parties and the court." 519 So. 2d at 930. It is clear here that the parties to the D&R order intended for it to survive as an independent agreement, most notably because of the broad release clause contained in the order. It would be irrational to include a release clause that would no longer have any effect once Newsome received the benefit of his bargain and the criminal charge was dismissed, and we will not read the D&R order in a manner that would be contrary to its terms and allow such a result. The Newsome plaintiffs are entitled to no relief on the basis of this argument. c. Whether the release clause imposed a punishment not authorized by law 31 1180252, 1180302 The Newsome plaintiffs next argue that the release clause should not be enforced because, they argue, it constitutes a punishment not permitted by Alabama law. In support of this argument, they cite § 15- 18-1(a), Ala. Code 1975, which provides that "[t]he only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death." Notably, the Newsome plaintiffs state, requiring a defendant to release legal claims he or she may have is not a sentencing option under § 15-18-1(a). As explained above in our discussion of § 13A-10-7 and Gorman, release-dismissal agreements are permitted by Alabama law. The Newsome plaintiffs fail to recognize that a party voluntarily releasing legal claims he or she may have in return for the dismissal of criminal charges is not receiving a sentence of punishment that must comply with § 15-18-1(a); rather, that party is making a decision to release those claims so as to avoid entirely the possibility of a sentence including any 32 1180252, 1180302 of the punishment contemplated by § 15-18-1(a). This argument therefore fails. d. Whether the release clause is void because the D&R order was obtained through fraud In Gorman, this Court noted that there was no allegation in that case that the release-dismissal agreement at issue had been obtained by fraud. 663 So. 2d at 922. In contrast, the Newsome plaintiffs have alleged that the D&R order was the product of fraud, and they argue that "[a] release obtained by fraud is void." Taylor v. Dorough, 547 So. 2d 536, 540 (Ala. 1989). They specifically point to their allegation that the defendants concealed the "fact" that Newsome's parking-lot confrontation with Bullock was planned and staged by them to set Newsome up for a false charge of menacing. They further represent that Newsome never would have signed the D&R order and agreed to release any potential claims if he had known of the defendants' alleged conspiracy. Although it is true that a release obtained by fraud is void, the Newsome plaintiffs' argument fails because, despite the extensive discovery that has been conducted, they have not identified substantial 33 1180252, 1180302 evidence supporting their allegation that the D&R order was obtained through fraud. See, e.g., Anderson v. Amberson, 905 So. 2d 811, 816 (Ala. Civ. App. 2004) (affirming the summary judgment entered on one of the plaintiff's claims because the plaintiff "did not present substantial evidence supporting his claim of fraud in the inducement pertaining to the release"). The defendants have consistently maintained throughout this litigation that there was no conspiracy and that, apart from Cooper and Balch, they did not even know one another before the Newsome plaintiffs named them as defendants in this action; the evidence they submitted with their summary-judgment motions supports this position.11 The Newsome plaintiffs' only counter has been to claim that the defendants are all linked by Gottier and the telephone number 205-410-1494. But the undisputed evidence has established that the telephone number 205-410- 1494 is not a working telephone number and that it is not assigned to or 11The Newsome plaintiffs assert that the defendants have "simply ignored [their] claim for fraudulent concealment and have done nothing to rebut [the Newsome plaintiffs'] prima facie case that the release is not valid." Newsome plaintiffs' brief, p. 78. This assertion is disingenuous. The record is replete with instances of the defendants claiming that there was no conspiracy that was fraudulently concealed from Newsome. 34 1180252, 1180302 operated by Gottier. Simply put, no fair-minded person in the exercise of impartial judgment could reasonably infer -- based on the evidence before the trial court as opposed to mere speculation and conjecture -- that the defendants conspired to stage an altercation that would result in Newsome's arrest. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989) (defining substantial evidence). Because the Newsome plaintiffs have not adduced substantial evidence to support their allegation that the D&R order containing the release was the product of fraud, we will not conclude that the D&R order is unenforceable on that basis. e. Whether the release clause is void under federal law Finally, the Newsome plaintiffs argue that this Court should apply the decision of the Supreme Court of the United States in Town of Newton v. Rumery, 480 U.S. 386 (1987), and conclude on that authority that the release clause in the D&R order is invalid. In Rumery, the plaintiff, who had been arrested for tampering with a witness, executed a release- dismissal agreement in which he agreed to release any claims against the town employing the police officers who had arrested him, town officials, 35 1180252, 1180302 and his victim in exchange for the dismissal of the criminal charges he faced. In spite of that agreement, the plaintiff thereafter sued the town and certain town officials alleging civil-rights violations under 42 U.S.C. § 1983, but his case was dismissed after the federal district court concluded that his decision to execute the release had been voluntary, deliberate, and informed. The United States Court of Appeals for the First Circuit reversed the district court's judgment, however, adopting a per se rule invalidating release-dismissal agreements. The case was then appealed to the United States Supreme Court, which reversed the Court of Appeals' judgment, explaining that, "although we agree that in some cases these agreements may infringe important interests of the criminal defendant and of society as a whole, we do not believe that the mere possibility of harm to these interests calls for a per se rule." 480 U.S. at 392. The Court then considered (1) whether the release-dismissal agreement was voluntary; (2) whether there was evidence of prosecutorial misconduct; and (3) whether enforcement of the agreement would adversely affect the relevant public interests. Concluding that all of those factors weighed in favor of enforcing the agreement, the Court ruled that 36 1180252, 1180302 the release-dismissal agreement was valid and that it required the dismissal of the plaintiff's § 1983 action. It is not clear why the Newsome plaintiffs believe it would benefit their position if this Court adopts the holding in Rumery. Like the plaintiff in Rumery, Newsome, after receiving advice from counsel, executed an agreement releasing his claims against the local municipality, government officials, and the victim of his crime. The D&R order indicates on its face that Newsome voluntarily agreed to its terms. Moreover, there is no evidence, or even an allegation, of prosecutorial misconduct, and enforcing the D&R order according to its terms would not adversely affect any public interest. In sum, nothing in Rumery supports the Newsome plaintiffs' argument that the D&R order should not be enforced. 4. The Effect of the Release Clause in the D&R Order Having established that the release clause in the D&R order is valid and enforceable, we must next determine its effect. By executing the D&R order in his menacing case, Newsome granted "a full, complete and absolute Release of all civil and criminal claims stemming directly or 37 1180252, 1180302 indirectly from this case ... to any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter." (Emphasis in original.) The theory of the Newsome plaintiffs' case is that the defendants combined to stage the parking-lot confrontation between Newsome and Bullock so that Newsome would be arrested on a false charge. All the claims asserted by Newsome against the defendants -- malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, invasion of privacy, conspiracy, and intentional interference with a business relationship -- stem at least indirectly from his menacing case and are accordingly within the scope of the release clause. We further note that, although Bullock was the only one of the defendants to sign the D&R order, the language of its release clause is broad enough to encompass claims asserted against "organizations or persons in any way related to this matter." See also Conley v. Harry J. Whelchel Co., 410 So. 2d 14, 15 (Ala. 1982) (explaining that the broad and unambiguous terms of a release barred the plaintiffs from pursuing claims against defendants who were not parties to the agreement containing the 38 1180252, 1180302 release). Again, the entire theory of the Newsome plaintiffs' case is that the defendants were all involved in the alleged conspiracy leading to his menacing arrest. The Newsome plaintiffs have not claimed that the defendants are not "related to" Newsome's menacing case. And they could not credibly do so -- their alleged combined involvement is the essence of this lawsuit. In its orders entering summary judgments for the defendants, the trial court cited the release clause only as a basis for the judgment entered in favor of Bullock. Nevertheless, "we will affirm a summary judgment if that judgment is proper for any reason supported by the record, even if the basis for our affirmance was not the basis of the decision below." DeFriece v. McCorquodale, 998 So. 2d 465, 470 (Ala. 2008). The release clause in the D&R order barred Newsome from pursuing any civil claims "stemming directly or indirectly" from his menacing case against any "complainants, ... organizations or persons in any way related to [that] matter." This includes all the claims Newsome has individually asserted against Cooper, Balch, Bullock, Seier, and Gottier, and the judgments entered in favor of the defendants on those claims were therefore proper. 39 1180252, 1180302 C. The Claims Asserted by Newsome Law The materials filed by the Newsome plaintiffs throughout this action generally treat the claims they have asserted as collective claims held by both Newsome and Newsome Law. Nevertheless, it is apparent that the majority of those claims are personally held only by Newsome individually. The Newsome plaintiffs have cited no authority to this Court, and the facts in the record would not support, any claim by Newsome Law alleging malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, or invasion of privacy. But the Newsome plaintiffs' complaint, as amended, does allege colorable intentional-interference-with-a-business-relationship and conspiracy claims against Cooper and Balch that might be held by Newsome Law. We therefore review de novo the summary judgment entered on those claims. SE Prop. Holdings, LLC v. Bank of Franklin, 280 So. 3d 1047, 1051 (Ala. 2019) ("This Court applies a de novo standard of review to a summary judgment."). Newsome Law's intentional-interference claims are based on e-mails that Cooper sent to their shared banking clients seeking to obtain more 40 1180252, 1180302 legal work from those clients for Cooper and Balch. In White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009), this Court clarified that the tort of intentional interference with a business relationship includes the following elements: "(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage." But, even if these elements are met, a defendant can avoid liability by proving the affirmative defense of justification. 32 So. 3d at 13. In entering the summary judgment for Cooper and Balch, the trial court concluded that they had proven justification as a matter of law: "[The] claims for intentional interference against Cooper fail, first and foremost, because of the competitor's privilege -- the affirmative defense known as justification. Both Newsome and Cooper are banking lawyers and Cooper was justified in competing for the business of their ongoing clients, IberiaBank, Renasant Bank, and Bryant Bank. See Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238, 247 (Ala. 1992) ('[B]ona fide business competition is a justification for intentional interference with a competitor's business.'); Bridgeway Communications, Inc. v. Trio Broadcasting, Inc., 562 So. 2d 222, 223 (Ala. 1990) (holding that legitimate economic motives and bona fide business competition qualify as justification for intentional 41 1180252, 1180302 interference with a competitor's business). Cooper was a competitor of Newsome's, represented the same banks as Newsome, and was, thus, allowed to contact those clients. Justification is a complete defense to an intentional interference claim." The Newsome plaintiffs argue that the trial court erred because justification is a question for the jury and, in any event, does not apply when the defendant has acted improperly. See White Sands Grp., 32 So. 3d at 18-19 (explaining that "[j]ustification is generally a jury question" and that the nature of the defendant's conduct is paramount and noting that, although competitors are not necessarily expected to be gentlemen, there is no privilege when devious and improper means have been used). The Newsome plaintiffs state that Cooper's actions were outside the bounds of lawful competition; we disagree. First, as already explained, the Newsome plaintiffs have produced nothing more than speculation to support their theory that Cooper was part of a conspiracy involving Bullock, Seier, and Gottier. Second, although the Newsome plaintiffs state that Cooper's e-mails to their shared banking clients cannot be considered lawful competition because, the Newsome plaintiffs allege, such solicitations are prohibited by the Alabama Rules of Professional 42 1180252, 1180302 Conduct, they are simply wrong in this regard. Solicitations made to current clients are not barred by Rule 7.3, Ala. R. Prof. Cond., which regulates the solicitation of "prospective clients" but by its terms exempts solicitations to parties with whom an attorney has a "current or prior professional relationship." See also Ala. State Bar Ethics Op. No. 2006-01, June 21, 2006 ("Current and former clients are ... excluded from the prohibition against direct solicitation. Due to their previous or ongoing interaction with the attorney, current or former clients will have a sufficient basis upon which to judge whether to continue or reactivate a professional relationship with a particular attorney."). Moreover, although Cooper forwarded news of Newsome's arrest and his mug shot to a friend who was an executive at one of their shared banking clients, he did not misrepresent any facts related to Newsome's arrest, and we do not consider this to be the sort of devious and improper act that would defeat a justification defense. See White Sands Grp., 32 So. 3d at 19-20 (describing acts of misrepresentation and concealment that have defeated justification defenses in other actions). 43 1180252, 1180302 Finally, by indicating that justification is generally a jury question, White Sands Group implicitly recognized that a summary judgment may nonetheless be appropriate in instances where the party asserting that affirmative defense carries its burden. 32 So. 3d at 20 (concluding that the defendant "failed to carry its burden of showing that it is entitled to a judgment as a matter of law on its affirmative defense of justification"). This is such a case. The Newsome plaintiffs have not put forth substantial evidence indicating that Cooper acted improperly, and the trial court therefore correctly held that the asserted intentional- interference-with-business-relations claims should not be submitted to the jury.12 And because Cooper and Balch were entitled to a judgment as a matter of law on Newsome Law's intentional-interference claims, they were also entitled to a judgment as a matter of law on Newsome Law's conspiracy claims. See Alabama Psych. Servs., P.C. v. Center for Eating 12To the extent Newsome may have personally asserted intentional- interference claims against Cooper and Balch based on e-mails Cooper sent to their shared clients that did not reference Newsome's menacing arrest, summary judgment was properly entered in favor of Cooper and Balch on the basis of justification even if those claims were not covered by the release clause in the D&R order. 44 1180252, 1180302 Disorders, L.L.C., 148 So. 3d 708, 715 (Ala. 2014) (explaining that conspiracy is not an independent cause of action and that, because "[the plaintiff] did not prove its underlying cause of action (intentional interference with business relations), [the defendants] also were entitled to a [judgment as a matter of law] as to [the plaintiff's] conspiracy claim"). D. The ALAA Awards In accordance with the ALAA, the trial court awarded attorney fees and costs to the defendants in the following amounts: $56,283 for Balch; $56,317 for Bullock; $78,341 for Seier; and $1,250 for Gottier. The Newsome plaintiffs argue that those awards should be reversed because, they argue, "the trial court's erroneous reliance on the counterfeit [expungement-reversal] order infected its ALAA findings and [the Newsome plaintiffs'] legal arguments regarding the 'release' were made in good faith." Newsome plaintiffs' brief, p. 91. For the reasons that follow, the awards entered by the trial court are affirmed. Section 12-19-272(a), Ala. Code 1975, provides that a trial court "shall" award reasonable attorney fees and costs when an attorney or party "has brought a civil action, or asserted a claim therein, ... that a 45 1180252, 1180302 court determines to be without substantial justification." "[W]ithout substantial justification" means that the action "is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court." § 12-19-271(1), Ala. Code 1975. This Court has stated that "[t]he standard of review for an award of attorney fees under the ALAA depends upon the basis for the trial court's determination for the award." McDorman v. Moseley, [Ms. 1190819, September 18, 2020] ___ So. 3d ___, ___ (Ala. 2020). We further explained: "If a trial court finds that a claim or defense is without substantial justification because it is groundless in law, that determination will be reviewed de novo, without a presumption of correctness. Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala. 1993). If, however, a trial court finds that a claim or defense is without substantial justification using terms or phrases such as 'frivolous,' 'groundless in fact,' 'vexatious,' or 'interposed for any improper purpose,' that determination will not be disturbed on appeal unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Id." 46 1180252, 1180302 Moseley, ___ So. 3d at ___. The trial court expressly stated in its order awarding Balch, Bullock, Seier, and Gottier attorney fees and costs that the Newsome plaintiffs' "claims were without substantial justification because they were frivolous, groundless in fact, vexatious, or were interposed for an improper purpose of harassment, delay, or abusing discovery." Accordingly, we will reverse the awards made by the trial court only if the Newsome plaintiffs show that those awards were "clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Id. The Newsome plaintiffs argue that the awards entered under the ALAA must be reversed because, they say, the trial court erred by giving effect to the expungement-reversal order and because, they say, their arguments that the release was invalid were made in good faith. We have already explained above that the trial court did not err by relying upon the expungement-reversal order. Indeed, both the Court of Criminal Appeals and this Court denied the petitions that Newsome brought litigating this same point in September 2017 and April 2018, respectively, and the orders denying those petitions should have put the Newsome 47 1180252, 1180302 plaintiffs on notice that their position lacked merit. Nevertheless, the Newsome plaintiffs continue to ignore those orders and maintain that the expungement-reversal order was "counterfeit." It was not. The Newsome plaintiffs also state that their arguments that the release clause in the D&R order was invalid were made in good faith and that the trial court's judgments should be reversed to the extent that court held otherwise. We disagree. Newsome is an attorney, and he executed the one-page D&R order containing the release clause after consulting with counsel. That release clause is unambiguous. Yet, instead of abiding by the clear terms of the release clause, Newsome sought to suppress the D&R order using the expungement statutes. As the trial court explained: "Newsome exhibited bad faith in attempting to have his Shelby County arrest (the very arrest that resulted in his mug shot being taken and began the debacle of this lawsuit) expunged with the stated intent of using that expungement as an offensive weapon against [the] defendants in this lawsuit. The court takes judicial notice of Newsome's misrepresentation to the Circuit Court of Shelby County, whereby he claimed to be in compliance with all terms of his deferred prosecution agreement, including the release of all related civil claims. The court takes further judicial notice of the Shelby County court's finding that Newsome made a 'false representation' regarding his claims in this lawsuit constituting 'false pretenses' under Alabama law. This finding was affirmed by 48 1180252, 1180302 the Alabama Court of [Criminal] Appeals, and the Alabama Supreme Court denied Newsome's petition for certiorari review. [The Newsome] plaintiffs' attempt to unlawfully use Alabama's expungement statute for the stated purposes of attacking [the] defendants in this lawsuit is further evidence of [the Newsome] plaintiffs' bad faith." The Newsome plaintiffs cannot maintain that their arguments regarding the release clause were made in good faith. Moreover, although the Newsome plaintiffs focus their arguments challenging the awards made under the ALAA on the expungement- reversal order and the release clause, the trial court explained that it was making those awards not just because of the Newsome plaintiffs' questionable actions attempting to suppress the D&R order, but because their entire lawsuit was groundless in fact: "Although the court first granted [the] defendants summary judgment early on in this case, [the Newsome] plaintiffs asked for further opportunity to prove their claims. The court granted them that opportunity[;] however, [the Newsome] plaintiffs have provided no further credible evidence after conducting extensive discovery than they had in 2015 when they filed this action. Defendants continuously contended [the Newsome] plaintiffs' claims were fabricated, outrageous, and entirely unsupported. ".... 49 1180252, 1180302 "Despite [the] defendants' repeated assertions, including sworn testimony, that they never knew each other before the filing of this lawsuit, [the Newsome] plaintiffs refused to voluntarily dismiss their conspiracy-related claims. Further, during the course of additional discovery, [the Newsome] plaintiffs produced no admissible evidence of any kind supporting their claims that these defendants knew each other and conspired to commit any underlying act. [The Newsome] plaintiffs could have dismissed the amended conspiracy claims alleged against Cooper, Balch, and Gottier once it learned from Verizon that the telephone number that [the Newsome] plaintiffs thought was their lynchpin was only a routing number. However, they did not. "... Instead of reducing or dismissing invalid claims and dismissing some or all of [the] defendants, [the Newsome] plaintiffs ignored contrary evidence and made no effort at dismissal or reduction. Rather, [the Newsome] plaintiffs continued to add invalid claims and a new party, Gottier, in the face of clear evidence that their claims were frivolous." Considering the facts of the case, we agree with the trial court that the ALAA awards are supported by the evidence and appropriate under the circumstances. Those awards are therefore affirmed. Conclusion The Newsome plaintiffs sued the defendants asserting various claims based on their allegation that the defendants combined together to have Newsome arrested on a false menacing charge to damage his 50 1180252, 1180302 reputation and law practice. But the Newsome plaintiffs failed to produce substantial evidence supporting their claims even after conducting extensive discovery; the trial court therefore entered summary judgments in favor of the defendants. The trial court further awarded attorney fees and costs because the Newsome plaintiffs had subjected the defendants to almost three and a half years of litigation even though the asserted claims were without substantial justification. For the reasons explained herein, the summary judgments entered by the trial court and its awards of attorney fees are affirmed. 1180252 -- AFFIRMED. 1180302 -- AFFIRMED. Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur. Sellers, J., recuses himself. 51	December 18, 2020
c944999e-dd34-4cc0-a230-0fbdbbbdf321	Ex parte Citizens State Bank. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Bill McGee and Betty McGee v. Citizens State Bank)	N/A	1061815	Alabama	Alabama Supreme Court	REL: 02/15/08 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, 2007-2008 _________________________ 1061815 _________________________ Ex parte Citizens State Bank PETITION FOR WRIT OF MANDAMUS (In re: Bill McGee and Betty McGee v. Citizens State Bank) (Jefferson Circuit Court, CV-07-900884) WOODALL, Justice. Citizens State Bank ("the Bank") is a corporation; its principal office is in Lamar County. It is undisputed that 1061815 2 the Bank has never done business by agent in Jefferson County. On May 11, 2007, Bill McGee and Betty McGee filed a declaratory-judgment action against the Bank in the Jefferson Circuit Court. The Bank timely filed a motion to transfer the action to the Lamar Circuit Court. In response to the Bank's motion to transfer, the McGees argued only "that because [they] are residents of Jefferson County, Jefferson County venue is proper under § 6-3-7(a)(3)," Ala. Code 1975. The trial court, without explanation, denied the Bank's motion to transfer. The Bank timely petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying the motion and to transfer the action to Lamar County. We grant the petition and issue the writ. "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus." Ex parte Alabama Great Southern R.R., 788 So. 2d 886, 888 (Ala. 2000). "The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing 1061815 3 of error on the part of the trial judge." Ex parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987). Section 6-3-7, Ala. Code 1975, governs venue for actions against corporate defendants. That section 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." (Emphasis added.) 1061815 4 It is undisputed that the Bank's principal office is in Lamar County. Further, it is undisputed that no "substantial part of the events or omissions giving rise to the claim occurred" in Jefferson County. Consequently, to determine whether venue is proper in Jefferson County, we need only apply the clear language of § 6-3-7(a)(3) to the undisputed facts of this case. In support of its motion to transfer, the Bank filed an affidavit of Anthony J. Burnett, its executive vice president. According to that affidavit, the "Bank does not, nor has it ever done business in Jefferson County, Alabama, by an agent." Section 6-3-7(a)(3) clearly provides that a corporation may be sued "[i]n the county in which the plaintiff resided ... 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." Burnett's affidavit was sufficient to make a prima facie showing that the Bank did not do business by agent in Jefferson County. Consequently, the burden then shifted to the McGees to prove that the Bank did in fact conduct business by agent in Jefferson County. Ex parte Silver Chiropractic Group, Inc., [Ms. 1050980, June 15, 2007] 1061815 5 ___ So. 2d ___, ___ (Ala. 2007); Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1092 (Ala. 2002). However, the McGees offered no evidence indicating that the Bank did business by agent in Jefferson County. Instead, they argued, as they do in response to the Bank's petition for the writ of mandamus, that § 6-3-7(a)(3) allows them to sue the Bank in the county of their residence, regardless of whether the Bank did business by agent in that county. The McGees' argument is contrary to the clear language of the statute, as well as the prior decisions of this Court. See, e.g., Ex parte Scott Bridge Co., 834 So. 2d 79, 81 (Ala. 2002). For the foregoing reasons, we grant the Bank's petition and issue a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying the Bank's motion to transfer and to enter an order transferring the action to Lamar County. PETITION GRANTED; WRIT ISSUED. Cobb, C.J., and See, Smith, and Parker, JJ., concur.	February 15, 2008
e191c328-12a0-4869-a9d4-e6b29978852e	Parrett Trucking, Inc. v. Telecom Solutions, Inc. (Appeal from	N/A	1061528	Alabama	Alabama Supreme Court	REL: 02/15/2008 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, 2007-2008 ____________________ 1061528 ____________________ Parrett Trucking, Inc. v. Telecom Solutions, Inc. ____________________ 1061618 ____________________ Parrett Trucking, LLC v. Telecom Solutions, Inc. Appeals from Morgan Circuit Court (CV-05-447) 1061528, 1061618 2 STUART, Justice. Parrett Trucking, Inc. ("PTI"), and Parrett Trucking, LLC ("PTL"), the purchaser of PTI's assets, appeal from the judgment of the trial court holding that PTI breached its contract with Telecom Solutions, Inc. ("TSI"), and holding PTI and PTL, as the corporate successor to PTI, liable for damages resulting from that breach. PTI argues that there was no breach of contract, and PTL argues that TSI failed to establish that it was the corporate successor to PTI and thus liable for any breach. We affirm the judgment as to PTI (case no. 1061528) and reverse it as to PTL (case no. 1061618). I. Factual and Procedural Background On January 29, 2003, PTI, a Scottsboro-based trucking company, entered into a consulting agreement with TSI, pursuant to which TSI would assist PTI in lowering the costs of its telecommunications services. TSI was to accomplish this by analyzing PTI's past invoices and then: 1) securing refunds and/or credits for past overcharges and 2) identifying options to reduce future telecommunications expenses. In return, PTI was to remit to TSI: 1) 50% of the value of all credits and refunds received for past overcharges, and 2) 50% 1061528, 1061618 3 of the "total amount saved during the first twenty-four full months following the implementation of new programs or other changes to [PTI]'s telecommunication arrangements." Among the terms and conditions included in the consulting agreement were the following: • "[Client shall] [b]e assessed consultant's fees if any telecom cost saving services are implemented any time during the first 24 months from the date TSI's recommendation report has been rendered." • "[Client shall] [r]emit consulting fees to consultant according to 'Schedule A' herein, after reviewing for accuracy with consultant. Consultant receives a fee only if the client receives a positive benefit from cost saving services." • "Fees for cost reductions will be derived from the actual invoice after changes have been implemented. Savings will be based on an average of the old telecom phone bill vs. new cost for each individual item, based on the invoices analyzed by consultant." • "At one month intervals, consultant shall calculate the actual savings and collect a fee of 50% of the actual savings on those items implemented by consultant or client." • "The client understands consultant has been granted exclusive right to act as the telecommunications auditing department for the term of the agreement. The client will consult with consultant before making any moves, additions, or changes, if time allows. Failure 1061528, 1061618 4 to do so does not preclude any compensation set forth in this agreement." • "Fees are due and payable for all implemented changes made by the consultant, by the client, or by the client's telecom vendors, whether implemented by the consultant, by the client, or by the vendor on any telecom related items implemented within 24 months of the date consultant provides a 'recommendation report' but no sooner than 24 months from the date first set forth below. If client declines to carry out proposed cost savings recommendations by consultant, then client must do so in writing. If, within 2 years of the date of the written notice presented to consultant, the client performs the recommended changes or a portion thereof, then the client is subject to the consultant's compensation arrangement described above." • "Should the client fail to comply with any part of this agreement or pay any fee or part thereof when due: "1) Will result in client being charged fees as determined by initial cost estimate comparison or from the last previous check up (whichever is available) through the remainder of the term of this agreement. Payment is due immediately. "2) If payment is not received and when litigation is necessary, consultant is entitled to recover all costs associated with that action, including but not limited to, reasonable attorney's fees and 1.5% interest per month, if and only if client is found liable for consultant's fees. Client waives 1061528, 1061618 The invoice also indicated that TSI had made 1 recommendations for changes to PTI's cellular-telephone service; however, it did not calculate the savings that would result from those changes. At trial, the president of TSI, David Hendriks, testified that he was at that time "still working on the cell phones, trying to pin down what to do" but that he decided to nevertheless begin billing for the other services to start receiving some fees. 5 venue to the courts of Morgan County, Alabama." After entering into the consulting agreement with PTI, TSI spent approximately a year working on the PTI account, reviewing past billing statements, seeking refunds, and then modifying services and changing service providers. It was not until February 17, 2004, that TSI submitted its first invoice to PTI. That invoice indicated that TSI had obtained $12,651.56 in refunds and credits from service providers as compensation for past overcharging of PTI's account, and that PTI had saved $4,113.56 on its local and long-distance telephone service the previous month because of changes implemented by TSI. Pursuant to the terms of the consulting 1 agreement, PTI paid TSI 50% of both figures, $6,325.78 and $2,056.78, respectively, for its work. Using billing statements forwarded to it by PTI, TSI calculated PTI's monthly savings in March, April, and May 2004 as well. Upon 1061528, 1061618 Among the assets PTI sold to PTL was PTI's entire 2 telecommunications system. PTL thereafter replaced the system and the providers that PTI had used. 6 receiving TSI's invoices for those months, PTI promptly paid TSI 50% of the amount saved. On May 17, 2004, PTI entered into an asset-purchase agreement with PTL, an Arkansas limited-liability company previously known as Classic Leasing LLC. PTL was a wholly owned subsidiary of Maverick Transportation, Inc. Pursuant to the terms of the asset-purchase agreement, PTL acquired virtually all PTI's assets. PTL also assumed some 2 obligations and liabilities of PTI; however, it disclaimed all obligations that were not specifically assumed under the terms of the asset-purchase agreement. PTI's consulting agreement with TSI was not listed as one of the liabilities that PTL assumed. PTI immediately ceased operating its trucking business after the asset sale; it voluntarily gave up the licenses and permits that it held, and it canceled its insurance. However, although PTI was no longer operating as a licensed motor carrier, business continued as usual at the PTI facilities and for PTI employees; PTL merely took over the operations. PTL 1061528, 1061618 7 continued to operate out of the same location and used the same telephone number, Web site, personnel, assets, and equipment that PTI had used. After the asset sale, PTI took the position with TSI that it no longer had any telecommunications systems or services (having all been transferred to PTL) and that PTI was accordingly not receiving any monthly savings as a result of TSI's services. Therefore, it made no payments to TSI for any savings that would have been achieved after May 17, 2004. On June 1, 2005, TSI sued PTI in the Morgan Circuit Court, alleging breach of contract. PTL and Maverick Transportation were also named as defendants under a theory of successor-corporation liability. A bench trial was held on March 5, 2007. At the close of TSI's case-in-chief, the trial court entered a judgment as a matter of law for Maverick Transportation. On March 8, 2007, the trial court entered a judgment in favor of TSI and against PTI and PTL in the amount of $111,060.84, plus court costs. PTI and PTL jointly moved for a new trial; however, after a hearing, the trial court denied their motion. They then filed separate appeals to this Court, which were subsequently consolidated for purposes of 1061528, 1061618 8 writing one opinion. PTI and PTL raise three issues on appeal. II. PTI's Appeal (case no. 1061528) A. PTI first argues that under the unambiguous terms of the consulting agreement, it owed TSI a monthly fee only if, during a specific month, PTI received "a positive benefit" from TSI's services as evidenced by "actual savings" in telecommunications expenses because of TSI's recommendations. PTI argues that it did not have any such savings after the May 17, 2004, sale of its assets because, it argued, it no longer had any telecommunications expenses; therefore, PTI argues, it owed TSI no additional fees after that date. As PTI notes, there has been no allegation or finding that the consulting agreement is ambiguous. Thus, even though the trial court conducted a bench trial and received evidence ore tenus, we apply the standard of review set forth by this Court in Winkleblack v. Murphy, 811 So. 2d 521, 525-26 (Ala. 2001), and we review this first issue de novo: "As long as the contractual terms are clear and unambiguous, questions of their legal effect are questions of law. Commercial Credit Corp. v. Leggett, 744 So. 2d 890 (Ala. 1999). Thus, we apply 1061528, 1061618 9 a de novo review to a trial court's determination of whether a contract is ambiguous and to a trial court's determination of the legal effect of an unambiguous contract term." PTI's argument that it did not breach the consulting agreement is based on the following two provisions in the consulting agreement: that the "[c]onsultant receives a fee only if the client receives a positive benefit from cost saving services" and that the "consultant shall calculate the actual savings and collect a fee of 50% of the actual savings on those items implemented by consultant or client" (emphasis added). PTI argues that it received no "positive benefit" or "actual savings" from the changes implemented by TSI after May 17 because it had no telecommunications services and received no statements for telecommunications services after that date. However, although this argument may at first blush appear persuasive, it fails to recognize another provision in the consulting agreement, which states: "The client understands consultant has been granted exclusive right to act as the telecommunications auditing department for the term of the agreement. The client will consult with consultant before making any moves, additions, or changes, if time allows. Failure to do so does not preclude any compensation set forth in this agreement." 1061528, 1061618 No evidence has been adduced that would indicate time did 3 not allow PTI to consult with TSI before it entered into the asset-purchase agreement with PTL. 10 The trial court, in its March 8, 2007, order, held that PTI did not comply with this provision and that it accordingly breached its contract with TSI by selling its assets, including its telecommunications systems, to PTL without first consulting TSI: "The consult[ing] agreement provided that unless [PTI] declined in writing the recommendations submitted by [TSI] in February 2003, then the latter would be paid a fee, calculated monthly on actual cost savings resulting from the recommended telecommunications system and service changes, for a period of 24 months from the date of [TSI]'s detailed analysis and recommendation report. Under the terms of the consult[ing] agreement and letter of agency, [PTI] granted [TSI] the exclusive right to act as its telecommunications auditor and agent, agreed to consult with [TSI] before making any changes to its telecommunications systems or services and agreed that any such changes made by it without consulting [TSI] would not preclude [TSI's] receipt of the compensation called for in the consult[ing] agreement. In short, [PTI] had no unilateral right to terminate the consult[ing] agreement by selling its assets to [PTL,] who then chose to implement a whole new telecommunications system without consulting [TSI]."3 PTI now argues that there was no provision in the consulting agreement specifically preventing it from entering into an asset-purchase agreement; however, that argument is 1061528, 1061618 11 immaterial. There undoubtedly was a provision barring PTI from "making any moves, additions, or changes" to its telecommunications systems without first consulting with TSI. PTI failed to comply with that provision and, under the clear language of the consulting agreement, that failure "does not preclude any compensation set forth in this agreement." Accordingly, the trial court correctly held that PTI breached its contract with TSI. B. PTI argues that, assuming there was a breach, the trial court erred by awarding TSI damages based on cost savings achieved in connection with PTI's cellular-telephone service as a result of TSI's recommendations. "The ore tenus standard of review extends to the trial court's assessment of damages." Edwards v. Valentine, 926 So. 2d 315, 325 (Ala. 2005). Thus, the trial court's damages award will be reversed "only if clearly and palpably erroneous." Robinson v. Morse, 352 So. 2d 1355, 1357 (Ala. 1977). PTI argues that although TSI made several cost-savings recommendations for adjusting PTI's cellular-telephone service, there was no evidence indicating that PTI ever implemented any of those recommendations. 1061528, 1061618 12 Moreover, they note that TSI calculated the alleged "actual savings" that would have resulted from PTI's implementing those recommendations by comparing PTI's old cellular-service bills with the post-asset-sale cellular-service bills of PTL. Thus, they conclude, the damages awarded on the basis of savings allegedly received for cellular service are impermissibly based on speculative evidence. See generally Systrends, Inc. v. Group 8760, LLC, 959 So. 2d 1052, 1075-76 (Ala. 2006) (noting that "'[d]amages may not be based upon speculation'" (quoting Jamison, Money, Farmer & Co. v. Standeffer, 678 So. 2d 1061, 1067 (Ala. 1996))). At trial, TSI's president, David Hendriks, testified that he made the following recommendations to PTI regarding ways it could reduce its monthly cellular-telephone expenses: (1) "cancel the service if it's not needed"; (2) "switch to a lower cost plan"; and (3) "get the corporate discount." He further testified that he in fact got an 8% discount with Verizon, a cellular-service provider, on behalf of PTI. A written analysis of PTI's cellular service prepared by TSI also recommended that PTI cancel all lines of cellular service with the cellular-service providers Nextel and Suncom/Tritel 1061528, 1061618 13 and use Verizon exclusively. PTI does not dispute that TSI made these recommendations; however, it argues that there is no evidence indicating that it ever adopted them and realized "actual savings" as a result. Again, however, PTI fails to recognize the effect of the provision in the consulting agreement stating that "[t]he client will consult with consultant before making any moves, additions, or changes, if time allows. Failure to do so does not preclude any compensation set forth in this agreement." PTI's failure to consult with TSI before selling its assets accordingly cannot deprive TSI of compensation it would have otherwise been due. The consulting agreement provided that "[i]f client declines to carry out proposed cost savings recommendations by consultant, then client must do so in writing." There is no evidence indicating that PTI ever notified TSI in writing that it was declining to carry out TSI's cellular-telephone-service cost-saving recommendations. Therefore, we may presume that those recommendations would have been implemented if not for PTI's breach of contract and that TSI would have been entitled to its fee as a result of the savings achieved. 1061528, 1061618 It appears from the record that TSI used either PTL's 4 September 2004 or October 2004 cellular-telephone bill as a baseline. 14 Having established that TSI was entitled to a fee based on cellular-service cost savings, we must still consider the argument that the damages award was based on mere speculation. TSI was able to establish damages based on the fees it earned by reducing local- and long-distance-telephone-service expenses by simply comparing PTI's telecommunications bills before and after TSI's recommendations were implemented; however, it was unable to use this same process with PTI's cellular service because PTI sold its assets before all TSI's recommendations were implemented. TSI accordingly compared PTI's pre-asset sale cellular-telephone bills with PTL's cellular-telephone bill after the asset sale. It appears 4 that during the interval between the sale of its assets in May 2004 and September or October 2004 –– whether by coincidence or pursuant to the recommendation made by TSI –– PTL canceled approximately 40 of the 51 lines of cellular service that PTI had formerly had, and its expenses were reduced accordingly. The damages awarded by the trial court were presumably based 1061528, 1061618 15 on the evidence indicating those savings and were, therefore, not based on mere speculation. III. PTL's Appeal (case no. 1061618) PTL argues that TSI failed to establish that PTL was responsible for PTI's debts under a theory of successor liability. The trial court applied the continuity-of- enterprise test and concluded that PTL was merely the continuation of PTI and was, therefore, liable for PTI's debts. This Court explained the continuity-of-enterprise test in Asher v. KCS International, Inc., 659 So. 2d 598, 599-600 (Ala. 1995), as follows: "This court has adopted a four-factor test for determining whether a purchasing corporation is a mere continuation of the selling corporation. If there is substantial evidence of each of the four factors, then [the purchasing corporation] may be held liable as a successor corporation. Brown v. Economy Baler Co., 599 So. 2d 1 (Ala. 1992). The factors are as follows: "'"(1) There was basic continuity of the enterprise of the seller corporation, including, apparently, a retention of key personnel, assets, general business operations and even the [seller's] name. "'"(2) The seller corporation ceased ordinary business operations, liquidated, and dissolved soon after distribution of consideration received from the buying corporation. 1061528, 1061618 16 "'"(3) The purchasing corporation assumed those liabilities and obligations of the seller ordinarily necessary for the continuation of the normal business operations of the seller corporation. "'"(4) The purchasing corporation held itself out to the world as the effective continuation of the seller corporation."' "Id. at 3, quoting Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873, 883-84 (1976), as quoted in Turner v. Wean United, Inc., 531 So. 2d 827, 830 (Ala. 1988). See, also Pietz v. Orthopedic Equipment Co., 562 So. 2d 152 (Ala. 1989)." PTL now argues that the trial court's findings as to the second and third factors, i.e., that PTI was dissolved and that PTL had assumed those liabilities and obligations of PTI necessary for the continuation of PTI's normal business operations, are unsupported by the evidence and therefore clearly erroneous. See Odom v. Hull, 658 So. 2d 442, 444 (Ala. 1995) ("Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court's findings on issues of fact; its judgment based on these 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."). 1061528, 1061618 17 We first consider PTL's argument that TSI failed to present substantial evidence establishing the second factor –– that PTI "ceased ordinary business operations, liquidated, and dissolved soon after distribution of consideration received from the buying corporation." Asher, 659 So. 2d at 599. PTL does not dispute that PTI may have ceased doing business and/or liquidated; however, it argues that there was no evidence indicating that PTI had dissolved at any time, much less "soon after distribution of consideration received from the buying corporation." Asher, 659 So. 2d at 599. At trial, the only evidence offered that related to the dissolution of PTI was the testimony of Michael Parrett, its owner and president. He testified as follows under direct examination: "Q: Now, as we sit in this courtroom today, [PTI] is still a viable corporation, isn't that right? Let me ask this question: 'It still has assets, doesn't it?' "A: [PTI]? I don't believe so. "Q: Does it pay taxes? "A: No, there's no taxes to be paid. "Q: Does it make Secretary of State filings? "A: It's had to do that, yes. 1061528, 1061618 18 "Q: Because it is still on paper a corporation, correct? "A: I believe that's accurate, but I'm not sure of that. I know we're in the process of it not being, and I don't know if that's transpired or not. "Q: I see. So let me be fair about this. After May 17, on May 18, 2004, all right, May 18, the day after the asset purchase, on May 18, [PTI] still had assets? "A: That's correct. "Q: On May 18, 2004, [PTI] still paid taxes? "A: That's correct. "Q: On May 18, 2004, [PTI] still made Secretary of State –– filings with the Alabama Secretary of State's office? "A: That's correct. "Q: And it has been a process since that time up until today of [PTI] winding down, is that correct? "A: That's correct. "Q: And as we sit here today, you're unsure one way or the other if [PTI] is still a viable corporation, but you believe that [PTI] still exists on paper, correct? "A: As far as I know." Under subsequent questioning by TSI's attorney, Parrett again confirmed that he did not know the legal status of PTI: 1061528, 1061618 19 "Q: But you're in the process of seeing to it that [PTI]'s not in existence? "A: I don't know where we are in that process. "Q: But you're in that process? That's my question. "A: Somewhere. "Q: Okay. "A: But it may already be done. I'm not sure. "Q: I understand. I'm not trying to pin you down to that. But you're somewhere in that legal process? "A: Somewhere." Thus, Parrett testified that at the time of his testimony he believed PTI was technically still a corporation, but that it was somewhere in the process of dissolving. This is not evidence indicating that PTI is dissolved. In Asher, we emphasized that the continuity-of-enterprise test requires evidence of the seller corporation's actual dissolution, stating: "Although Cruistar [the seller corporation] dissolved the Cruisers division of the corporation, Cruistar the corporation did not dissolve. The [appellants] argue that the real intent of that requirement is that all the predecessor's ordinary business must have ceased. However, the rule provides that the corporation must 'cease[] ordinary business operations, liquidate[], and dissolve[].' 1061528, 1061618 20 Indisputably, this has not occurred with Cruistar. See Matrix-Churchill v. Springsteen, 461 So. 2d 782 (Ala. 1984) (holding that even though the purchasing corporation acquired 99.7% of the old stock and continued to operate the purchased corporation as a separate entity, the requirement that the old corporation 'cease ordinary business operations, liquidate and dissolve' was not met, because the selling corporation did not completely dissolve)." 659 So. 2d at 600. That PTI is "for all practical purposes dissolved," as TSI states in its brief, or "effectively dissolved," as the trial court found in its order, is insufficient. There must be evidence of dissolution. The trial court buttressed its conclusion by citing Turner v. Wean United, Inc., 531 So. 2d 827 (Ala. 1988), in which this Court affirmed the trial court's judgment based on its finding that the second factor of the continuity-of- enterprise test was met even though the evidence established that the seller corporation was not officially dissolved until three years after the asset sale, for the proposition that, "within the entire scheme of the continuity-of-enterprise test, factor (2) does not carry great weight." However, under the continuity-of-enterprise test adopted by this Court, there is no "weighing" of the factors; rather, as we stated in Asher, there must be "substantial evidence of each of the four 1061528, 1061618 This Court reemphasized this principle in its concluding 5 paragraph in Asher by referring to Brown v. Economy Baler Co., 599 So. 2d 1 (Ala. 1992): "In Brown, supra, this Court held that each of the four factors must be met before a successor corporation may be held liable based on the 'mere continuation' of the enterprise exception. Although the Ashers presented evidence that many basic business operations were continued by KCS and that KCS took steps to hold itself out to the world to be a long-time manufacturer of Cruisers boats, the Ashers did not present substantial evidence of all four factors. As stated in Brown, supra, these factors are to be considered in the conjunctive, not in the alternative. Brown, 599 So. 2d at 3." 659 So. 2d at 601. 21 factors." 659 So. 2d at 599. Thus, although Turner may 5 support the proposition that there is some room for discretion in determining whether a dissolution took place "soon after" an asset sale, it in no way abrogated the requirement that there be substantial evidence of dissolution. In Turner, there was evidence establishing proof of dissolution; in the present case, there was no such evidence. For that reason, the trial court's finding that PTI was dissolved is clearly erroneous. Because PTI was not dissolved, PTL cannot be held liable as a successor corporation to PTI based on the 1061528, 1061618 Because we have already held that the second factor of 6 the continuity-of-enterprise test was not met, we need not consider PTL's argument that the third factor was not met. 22 continuity-of-enterprise theory, and the trial court's judgment must be reversed in that regard.6 Before closing, however, we must also address the trial court's observation, and TSI's associated argument on appeal, that there would be "something unsavory" about a finding that PTI was not dissolved in light of the fact that the asset- purchase agreement between PTI and PTL allegedly contained a barrier to the dissolution of PTI; specifically, a provision that prevented PTI from dissolving, distributing, or liquidating its assets "unless the procedure set forth in § 10-2B-14.06, Ala. Code 1975, is followed with respect to known claims against [PTI]." Section 10-2B-14.06 provides: "(a) A dissolved corporation may dispose of the known claims against it by following the procedure described in this section. "(b) The dissolved corporation shall notify its known claimants in writing of the dissolution at any time after its effective date. The written notice must: "(1) Describe information that must be included in a claim; "(2) Provide a mailing address where a claim may be sent; 1061528, 1061618 23 "(3) State the deadline, which may not be fewer than 120 days from the effective date of the written notice, by which the dissolved corporation must receive the claim; and "(4) State that the claim will be barred if not received by the deadline. "(c) A claim against the dissolved corporation is barred: "(1) If a claimant who was given written notice under subsection (b) does not deliver the claim to the dissolved corporation by the deadline; "(2) If a claimant whose claim was rejected by the dissolved corporation does not commence a proceeding to enforce the claim within 90 days from the effective date of the rejection notice. "(d) For purposes of this section, 'known claim' or 'claim' includes unliquidated claims but does not include a contingent liability that has not matured so that there is no immediate right to bring suit, or a claim based on an event occurring after the effective date of dissolution." A review of the language in § 10-2B-14.06 indicates that the provision in the asset-purchase agreement requiring PTI to comply with § 10-2B-14.06 in the event it dissolved was not a wholesale prohibition on PTI's right to dissolve –– nor was it an impediment to dissolution at all. It merely would have required PTI, once it had officially dissolved, to notify 1061528, 1061618 24 known claimants of that dissolution. Thus, it is in no manner inequitable in this case to require that all the elements of the continuity-of-enterprise test, including the dissolution element, be met in order to establish corporate-successor liability. IV. Conclusion TSI sued PTI and PTL alleging breach of contract. After a bench trial, the trial court entered a judgment holding that PTI had breached its contract with TSI and that PTI and PTL were liable for that breach, PTL in its capacity as the corporate successor to PTI. We now affirm that judgment insofar as it holds that PTI breached its contract with TSI and awarded TSI damages as a result. However, because TSI did not submit evidence that would establish that PTL was the mere continuation of PTI, we reverse the judgment insofar as it holds that the damages awarded TSI should also be assessed against PTL, and we remand the cause for proceedings consistent with this opinion. 1061528 –– AFFIRMED. Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin, Parker, and Murdock, JJ., concur. 1061528, 1061618 25 1061618 –– REVERSED AND REMANDED. See, Lyons, Woodall, Smith, Bolin, and Parker, JJ., concur. Cobb, C.J., and Murdock, J., concur in the result. 1061528, 1061618 26 MURDOCK, Justice (concurring in case no. 1061528 and concurring in the result in case no. 1061618). The main opinion quotes Asher v. KCS International, Inc., 659 So. 2d 598, 600 (Ala. 1995), for the proposition that "'the rule [relating to the continuity-of-enterprise theory of successor liability] provides that the [predecessor] corporation must "cease[] ordinary business operations, liquidate[], and dissolve[]."'" ___ So. 2d at ___ (emphasis in Asher). We have not been asked in this case to overrule Asher in this regard. As the main opinion also notes, TSI argues in its brief that PTI is "for all practical purposes dissolved." TSI cites no authority, however, explaining why this Court should recognize a "practical" or de facto dissolution as sufficient to satisfy the above-quoted rule. See Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala. 1994) (holding that 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 the foregoing, I concur in the result reached in Part III of the main opinion (case no. 1061618). I otherwise concur in the main opinion. Cobb, C.J., concurs.	February 15, 2008
c4c6acbf-bb19-4b0c-a18b-e0f142170d14	Ex parte Cornelius Dewan Garlington. PETITION FOR WRIT OF CERTIORARI TO THECOURT OF CRIMINAL APPEALS (In re: Cornelius Dewan Garlington v. State ofAlabama)	N/A	1061831	Alabama	Alabama Supreme Court	Rel: 02/22/08 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, 2007-2008 _________________________ 1061831 _________________________ Ex parte Cornelius Dewan Garlington PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Cornelius Dewan Garlington v. State of Alabama) (Houston Circuit Court, CC-03-472.10; CC-05-485.10; and CC-05-1185.10; Court of Criminal Appeals, CR-06-1066) WOODALL, Justice. 1061831 2 In August 2005, Cornelius Dewan Garlington was convicted of possession of cocaine, distribution of a controlled substance, and obstruction of justice. He was sentenced to 20 years' imprisonment for the drug-related convictions and to 2 years' imprisonment for the obstruction conviction, all three sentences to run concurrently. The sentences were suspended, and he was placed on two years' probation. In 2006, after a probation-revocation hearing, the trial court revoked Cornelius Dewan Garlington's probation, stating only, both orally on the record and in a written order, "Probation is revoked." Garlington appealed, and the Court of Criminal Appeals issued an unpublished memorandum affirming the trial court's revocation order. Garlington v. State (No. CR-06-1066, August 24, 2007), ___ So. 2d ___ (Ala. Crim. App. 2007)(table). Garlington petitioned this Court for certiorari review. We granted his petition to consider whether the Court of Criminal Appeals' decision affirming the revocation of his probation conflicts with this Court's decision in McCoo v. State, 921 So. 2d 450 (Ala. 2005). See Rule 39(a)(1)(D), Ala. R. App. P. We reverse and remand. 1061831 3 Rule 27.6(f), Ala. R. Crim. P., provides, when revoking probation, that "[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation." In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is "the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons." McCoo, 921 So. 2d at 462 (emphasis added). In this case, as the State admits, neither the trial court's oral declaration nor its written order stated the reason for revoking Garlington's probation or the evidence it relied upon in doing so. Consequently, the Court of Criminal Appeals' affirmance of the trial court's probation-revocation order does, as Garlington argues, conflict with McCoo. Under these circumstances, the appropriate remedy is to "remand this case to the circuit court with instructions that it enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking the appellant's probation." Kenney v. State, 949 So. 2d 192, 195 1061831 4 (Ala. Crim. App. 2006). Consequently, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court to enter an appropriate order remanding the case to the trial court for the entry of such an order. REVERSED AND REMANDED. Cobb, C.J., and See, Lyons, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	February 22, 2008
dc040f03-f581-42d7-ac62-3f697c4682bc	Everett Wess, individually and in his capacity of a qualified elector voter and candidate for Jefferson County Circuit Judge, Place 3 v. Kechia Davis; John H. Merrill, in his official capacity as Secretary of State of Alabama; Judge James Naftel, in his of	N/A	1190300	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11,2020 1190300 Everett Wess, individually and in his capacity of a qualified elector voter and candidate for Jefferson County Circuit Judge, Place 3 v. Kechia Davis; John H. Merrill, in his official capacity as Secretary of State of Alabama; Judge James Naftel, in his official capacity as Probate Judge of Jefferson County; Christopher England, in his official capacity as Alabama Democratic Party Chairperson; and Nancy Worley, in her official capacity as Democratic Party Chairperson (Appeal from Montgomery Circuit Court: CV-19-902123). ORDER IT IS ORDERED that the above-styled case is dismissed. MITCHELL, J. - Parker, C.J., and Shaw, Bryan, Sellers, Mendheim, and Stewart, JJ., concur. Bolin, J., recuses himself. Witness my hand this 11th day of December, 2020. /ra	December 11, 2020
105b0863-1594-4293-bf9e-fdaa08c8cc5c	SE Property Holdings, LLC, successor by merger to Vision Bank v. Bama Bayou, LLC, f/k/a Riverwalk, LLC, et al.	N/A	1190205	Alabama	Alabama Supreme Court	Rel: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190205 ____________________ SE Property Holdings, LLC, successor by merger to Vision Bank v. Bama Bayou, LLC, f/k/a Riverwalk, LLC, et al. ____________________ 1190251 ____________________ FNB Bank v. Marine Park, LLC, et al. Appeals from Mobile Circuit Court (CV-09-900085) BOLIN, Justice. SE Property Holdings, LLC ("SEPH"), the successor by merger to Vision Bank, and FNB Bank ("FNB") separately appeal from the Mobile Circuit Court's judgments on their breach-of-contract claims against Bama Bayou, LLC, formerly known as Riverwalk, LLC ("Bama Bayou"), and Marine Park, LLC ("Marine Park"),1 and the individuals and entities guaranteeing Bama Bayou's and Marine Park's contract obligations, challenging the trial court's damages awards. See Ex parte Weyerhaeuser Co., 702 So. 2d 1227, 1228 (Ala. 1996) ("Alabama caselaw is clear that a party who prevailed in the trial court can appeal only on the issue of adequacy of damages awarded."). Facts 1Marine Park is a wholly owned subsidiary of Bama Bayou. 2 1190205, 1190251 Bama Bayou and Marine Park were the developers of a planned mixed-use development in Orange Beach consisting of a marine park, residential condominiums, retail shops, hotels, and commercial entertainment venues. Marine Park specifically intended to develop a special-use facility for the exhibition of marine animals. Vision Bank made four loans to Bama Bayou and Marine Park related to the development project: (1) The "West loan" is a loan in the amount of $6,000,000 made on March 24, 2005, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "West parcel"; (2) The "East loan" is a loan in the amount of $5,000,000 made on June 12, 2006, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "East parcel"; (3) The "North loan" is a loan in the amount of $5,000,000 made on September 27, 2007, evidenced by a promissory note and a loan agreement 3 1190205, 1190251 and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "North parcel"; and (4) The "Marine Park loan" is a loan in the amount of $5,000,000 made on March 2, 2007, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "Marine Park parcel." The Marine Park loan was fully funded by FNB pursuant to a participation agreement with Vision Bank.2 The participation agreement provided that the Marine Park parcel would be owned by FNB in the event it was acquired by foreclosure. The promissory notes executed in relation to each of the loans made to Bama Bayou and Marine Park required Bama Bayou and Marine Park to pay to Vision Bank the principal amount of the loans plus interest as calculated in the manner provided in the promissory notes. The promissory notes also provided that Bama Bayou and Marine Park were 2A number of banks participated in making these loans to Bama Bayou and Marine Park pursuant to participation agreements with Vision Bank. FNB participated in only the Marine Park loan. 4 1190205, 1190251 obligated to pay reasonable attorney's fees and costs incurred by Vision Bank in collecting on the promissory notes in the event of a default. The promissory notes stated that they were being guaranteed by certain guarantors and that the indebtedness described in the notes was secured by the mortgages and security agreements executed in conjunction with the promissory notes. The mortgages and security agreements executed by the parties also required Bama Bayou and Marine Park to pay to Vision Bank the principal amount of the loans, plus interest, and all reasonable attorney's fees and costs incurred by Vision Bank in the event of the foreclosure of any of the mortgages. The mortgages also provided that Bama Bayou and Marine Park were responsible for the payment of all property- preservation costs, including taxes, insurance premiums, the costs of maintenance and repairs, the costs of security and protection, liens, utility charges, and assessments. In the event of a default by Bama Bayou and Marine Park, the mortgages allowed Vision Bank to pay the property- preservation costs and to obtain reimbursement of those costs from Bama Bayou and Marine Park, plus interest at a rate of 10%. 5 1190205, 1190251 Section 2.14 of the mortgages provides the following remedy in case of a wrongful foreclosure: "Discontinuance of Proceedings - Position of parties, Restored. In case the Lender shall have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights powers and remedies of the Lender shall continue as if no such proceeding had been taken." (Emphasis added.) Section 2.15 of the mortgages provides: "Remedies Cumulative. No right, power, or remedy conferred upon or reserved to the Lender by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder, or under the Note, or under the Loan Documents, or now or hereafter existing at law or in equity or by statute." Each of the four loans to Bama Bayou and Marine Park were guaranteed by a number of individuals and entities that were investors in the project. Pursuant to the guaranty agreements, the guarantors, among other things, waived any rights they had regarding the collateral, i.e., the West parcel, the East parcel, the North parcel, and the Marine Park 6 1190205, 1190251 parcel; waived any defenses Bama Bayou and Marine Park may have had; and agreed to be unconditionally liable for the debts until they were paid in full. The guaranty agreements provide, in part: "1. Guaranty. ... [T]he undersigned ... jointly and severally unconditionally guarantees and promises to pay Vision Bank (hereinafter called 'Bank') ... any and all indebtedness, as hereinafter defined, of [Bama Bayou and Marine Park] .... The word 'indebtedness' is used herein in its most comprehensive sense and includes a loan to be made by Bank to Borrower ... (the 'Loan') and any and all advances, debts, obligations and liabilities of Borrower to Bank heretofore, now, or hereafter existing, made, incurred, or created, whether voluntary or involuntary, and whether or not arising under, pursuant to or in connection with the Loan Agreement (as hereinafter defined) the Note (as hereinafter defined) and/or any and all other Loan Documents (as hereinafter defined), whether due or not due ... not limited to but including principal, interest, costs of collection, attorney's fees and all other lawful charges .... ".... "3. Guarantor's Obligations Independent: Statute of Limitations. The obligations of the Guarantor hereunder are independent of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against the Guarantor ... and the Guarantor waives the benefit of any statute of limitations or other defenses affecting its liability hereunder or the enforcement thereof. ".... 7 1190205, 1190251 "6. Waivers. Guarantor waives any right to require Bank to (A) proceed against Borrower or any other Guarantor; (B) proceed against or exhaust any security held from Borrower; or (C) pursue any other remedy in Bank's power whatsoever. Guarantor waives any defense arising by reason or any disability or other defense of Borrower .... Until the Indebtedness of Borrower to Bank shall have been paid in full, even though such Indebtedness is in excess of Guarantor's liability hereunder, Guarantor ... waives any benefit of, and any right to participate in any security now or hereafter held by Bank .... ".... "10. Expenses of Collection: Waiver of Right of Exemption. Guarantor agrees to pay reasonable actual attorney's fees and all other costs and expenses which may be incurred by Bank in the enforcement of this Guaranty .... ".... "14. Limitations of Liability. The limitations of liability under this Guaranty set forth in this Section 14 do not apply to the Borrower or to any other guarantor of Borrower's Indebtedness to the Bank. Guarantor shall be liable for ... (i) an amount equal to Guarantor's Specified Portion of the principal of the Note ... (ii) 100% of all interest on the Loan accrued or accruing at any time ... (iii) 100% of all costs and expenses (including reasonable actual attorney's fees) of collection related or attributable, directly or indirectly, to the enforcement of Guarantor's obligations under this Guaranty, and (iv) 100% of all other costs and expenses (including reasonable actual attorney's fees) of collection relating to all principal, interest, and other charges under the Note and/or relating to any other Indebtedness." 8 1190205, 1190251 Bama Bayou and Marine Park were having financial problems with regard to the project by August 2007. The maturity dates of the promissory notes were extended several times to give Bama Bayou and Marine Park time to secure other financing. The notes finally matured in late 2008, and Vision Bank refused to further extend their maturity dates. Vision Bank demanded payment at that time, and Bama Bayou, Marine Park, and the guarantors failed and/or refused to pay the indebtedness owed on the loans. On March 20, 2009, Vision Bank conducted a public auction to separately foreclose the mortgages on the West parcel, the East parcel, the North parcel, and the Marine Park parcel. There were no bids submitted at the public auction. Thus, Vision Bank purchased the properties through the following individual credit bids: (A) $2,000,000 for the West parcel; (B) $5,181,682.48 for the East parcel; (C) $383,500 for the North parcel; and (D) $2,750,000 for the Marine Park parcel. 9 1190205, 1190251 Neither Bama Bayou, nor Marine Park, nor the guarantors exercised their rights to redeem the properties. Procedural History3 On January 16, 2009, Vision Bank sued Bama Bayou and its guarantors ("the Bama Bayou guarantors"), alleging that Bama Bayou was indebted to Vision Bank on the loan for the West parcel, the loan for the East parcel, and the loan for the North parcel, as evidenced by the respective promissory note and loan agreement for each parcel. Vision Bank further alleged that the Bama Bayou guarantors had guaranteed payment of each of those loans, as evidenced by their guaranty agreements. Vision Bank sought a judgment against Bama Bayou for all amounts owed under those loans, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Vision Bank further sought a judgment against each of the Bama Bayou guarantors, jointly 3The underlying litigation involved numerous parties in addition to the parties involved in these appeals, lasted over 10 years, and amassed a record of over 26,000 pages. This Court has tailored its statement regarding the procedural history of the litigation to address only the procedural history relevant to the issues and the parties before this Court in these appeals. 10 1190205, 1190251 and severally, for all sums owed under their guaranty agreements, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Also on January 16, 2009, Vision Bank separately sued Marine Park and its guarantors ("the Marine Park guarantors"), alleging that Marine Park was indebted to Vision Bank on the loan for the Marine Park parcel, as evidenced by the Marine Park promissory note and loan agreement for that parcel. Vision Bank further alleged that the Marine Park guarantors had guaranteed payment of that loan, as evidenced by their guaranty agreements. Vision Bank sought a judgment against Marine Park for all amounts owed under the Marine Park loan, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Vision Bank further sought a judgment against each of the Marine Park guarantors, jointly and severally, for all sums owed under their guarantee agreements, including all principal, accrued interest, late charges, attorney's fees, and collection costs. The two cases were later consolidated by the trial court. 11 1190205, 1190251 Bama Bayou, Marine Park, and their guarantors (hereinafter referred to collectively as "the borrowers and the guarantors") answered the complaints, generally denying the allegations and asserting a number of affirmative defenses. The borrowers and the guarantors also asserted counterclaims against Vision Bank, alleging, among other things, that Vision Bank had breached a promise to provide additional financing for the project; that Vision Bank had assumed a duty to provide the financing required to develop the project; that certain female guarantors had been required to sign guaranty agreements, based solely on their status as spouses of other guarantors, in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691; and that Vision Bank had wrongfully foreclosed on the four parcels by bidding a grossly inadequate amount at the foreclosure sales. On October 15, 2010, the Federal Deposit Insurance Corporation ("FDIC"), a counterclaim defendant based on its status as receiver for two of the participating banks that had advanced funds to Bama Bayou pursuant to participating agreements with Vision Bank, see note 2, supra, removed the consolidated cases to the United States District Court for the 12 1190205, 1190251 Southern District of Alabama. On February 11, 2011, the federal district court remanded the consolidated cases back to the trial court. On August 30, 2011, the trial court, in an effort to move the litigation along, scheduled for October 5, 2011, an evidentiary hearing on the issues of (1) wrongful foreclosure and (2) whether the guarantors had "standing" to challenge the foreclosure process.4 The parties had identified those issues to the trial court as being "potentially dispositive or particularly helpful in refining the causes of action" in the consolidated cases. However, the FDIC, on October 5, 2011, again removed the cases to the federal district court. On August 21, 2013, the consolidated cases were once again remanded back to the trial court. 4Although the trial court and the parties referred to this issue as an issue of "standing," this Court has explained that "the concept [of standing] appears to have no necessary role to play in respect to private- law actions." Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 41 (Ala. 2013). "We have observed that in such actions 'our courts too often have fallen into the trap of treating as an issue of "standing" that which is merely a failure to state a cognizable cause of action or legal theory ....' " Ex parte State Farm Fire & Cas. Co., 300 So. 3d 562, 568 (Ala. 2020)(quoting Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama,42 So. 3d 1216, 1219 (Ala. 2010)). 13 1190205, 1190251 On December 19, 2013, the trial court entered an order setting for an evidentiary hearing on June 16, 2014, the counterclaim asserted by the borrowers and the guarantors alleging wrongful foreclosure. The trial court expressly limited the scope of the hearing to the "very narrow issue of the unconscionability of the foreclosure bid figures" made by Vision Bank. On June 5, 2014, the trial court amended its December 19, 2013, order, stating: "The parties in these actions have divergent views as to what remedies are available should the Court determine the bid prices to be unconscionable. After consulting with the Special Master, who has been supervising discovery leading to the June 16th hearing, the Court is of the opinion that it would be in the best interests of judicial economy and efficiency for the Court to first determine the extent of any remedies available to the Counterclaim Plaintiffs should they meet their burden of proof on the unconscionability issue and whether all Counterclaim Plaintiffs have standing to contest the foreclosure bid prices." Thus, the trial court continued the evidentiary hearing scheduled for June 16, 2014, and ordered all parties to submit briefs on the issues of what remedies would be available should the trial court determine that the foreclosures were, in fact, wrongful and of whether the guarantors had "standing" to assert a wrongful-foreclosure counterclaim by June 16, 2014. 14 1190205, 1190251 On June 16, 2014, SEPH5 and FNB submitted motions "for partial summary judgment" as to the issues of what remedies should be available upon a finding of wrongful foreclosure and of whether the guarantors had "standing" to assert a wrongful-foreclosure counterclaim contesting the foreclosure bid prices. SEPH and FNB argued in their motions that, under Alabama law, the only remedy available in a wrongful-foreclosure proceeding based on the inadequacy of bid prices is to set aside the foreclosure. SEPH and FNB further argued that not only is setting aside 5Vision Bank became known as SEPH when the two entities merged. On June 10, 2014, SEPH was substituted for Vision Bank as the real party in interest. Subsequently, SEPH assigned to FNB the promissory note and loan agreement associated with the Marine Park loan and the various guaranty agreements associated with that loan. The trial court granted leave to SEPH and FNB to file an amended complaint in order to substitute FNB for SEPH on the counts specifically related to the Marine Park loan. Thus, on March 12, 2015, SEPH and FNB filed a third amended complaint substituting FNB for SEPH on the counts contained in the complaint specifically relating to the Marine Park loan and guaranty agreements. In sum, after the merger of Vision Bank and SEPH and the subsequent assignments by SEPH to FNB, SEPH holds all the promissory notes, loan agreements, mortgages, and guaranty agreements associated with the West parcel, the East parcel, and the North parcel. SEPH also is the current holder of the mortgage on the Marine Park parcel. FNB is the current holder of the promissory note, the loan agreement, and the guaranty agreements associated with the Marine Park parcel. 15 1190205, 1190251 the foreclosure the only remedy available under Alabama law, but that Bama Bayou and Marine Park expressly agreed in their mortgage documents that the sole remedy available to them in the event of a wrongful foreclosure was to have the foreclosures set aside and the parties returned to their former positions "as if no such [foreclosure] proceeding had been taken." As for the issue whether the guarantors had "standing" to contest the foreclosures based on the alleged inadequacy of the bid prices, SEPH and FNB argued that, under Alabama law, only Bama Bayou and Marine Park had "standing" to contest the bid prices because, in the guaranty agreements, the guarantors had expressly waived all defenses available to Bama Bayou and Marine Park and all claims regarding the collateral. On June 16, 2014, the borrowers and the guarantors submitted their brief on the issues of what remedies should be available upon a finding of wrongful foreclosure and of whether the guarantors had "standing" to contest the foreclosures. The borrowers and the guarantors argued that the parcels were not stand-alone, independent parcels but, rather, were inextricably intertwined and interlocked by infrastructure consisting of 16 1190205, 1190251 underground water, sewer, power, and gas lines and aboveground streets, bridges, and parking lots, all of which were designed to operate as a single unit. The borrowers and the guarantors contended that each parcel needed access to all the infrastructure -- both above and below ground -- and that no parcel could support development without physically accessing the infrastructure on the other parcels that would have been available to each parcel had Vision Bank not shattered the integrity of the whole unit. The borrowers and the guarantors further argued that Vision Bank's decision to foreclose and bid on the interdependent parcels separately essentially broke up the unit and drove the fair market value of the parcels down because the individual parcels were not as valuable as the whole unit. The borrowers and the guarantors argued that the trial court had the authority to determine whether the method of the foreclosures and the amounts of the bids were unconscionable and then to fashion its own equitable remedy upon a finding of wrongful foreclosure. As for the "standing" issue, the borrowers and the guarantors argued that the guarantors had "standing" to sue Vision Bank alleging wrongful foreclosure because, they said, the guarantors had been injured as the 17 1190205, 1190251 result of Vision Bank's tortious misconduct surrounding the foreclosure sale. On October 5, 2015, the trial court entered an order finding (1) that under both Alabama law and the agreements between the parties the appropriate remedies in these cases would be to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place, and (2) that the guarantors did not have "standing" to assert a counterclaim alleging wrongful foreclosure against Vision Bank because, the court determined, they had no legally protected interest in the properties foreclosed upon by Vision Bank. Having determined the remedy available upon a finding of wrongful foreclosure, the trial court, on January 6, 2016, entered an order setting the date for an evidentiary hearing on the adequacy of the credit bids made by Vision Bank -- i.e., to determine whether, in fact, the foreclosures had been wrongful. The trial court expressly limited the scope of that hearing "to the very narrow issue of the unconscionability of the foreclosure bid figures, where the [trial court] will be focusing on the 18 1190205, 1190251 stated bid amounts and evidence of the values of the properties in question." Following that evidentiary hearing, the trial court, on October 26, 2016, entered an order that provides, in part: "After seven years of litigation, extensive briefing, arguments of counsel, and a thorough evidentiary hearing, the Court holds as follows: "The seminal case setting forth the general rule applicable in this case states: " 'Where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.' "Hayden v. Smith, 216 Ala. 428, [430,] 113 So. 293[, 295] (1927). "Although both the Lenders and the Borrowers rely on Hayden, each point to a different aspect of the holding, which admittedly appear contradictory. As the Lenders contend, Hayden appears to state that inadequacy of price is not sufficient to set aside the sale unless 'coupled with any other circumstances showing unfairness, misconduct, fraud, or even stupid management, resulting in the sacrifice of the property.' See also CS Assets, LLC v. West Beach LLC, 370 Fed. Appx. 45 (11th Cir. March 16, 2010). 19 1190205, 1190251 "However, as the Borrowers assert, the Hayden Court stated it found the foreclosure price 'upon its face so grossly inadequate as to shock the judicial conscience and justifie[d] the setting aside of the sale,' giving rise to the assumption that in certain cases the inadequate price itself can be sufficient. Hayden[, 216 Ala. at 430, 113 So.] at 295. "The Borrowers have the burden of proving by substantial evidence the elements of their [counterclaim]. "In view of the evidence presented, the Court finds the bids on their face so grossly inadequate as to shock the judicial conscience. Further, the Court finds the Borrowers have met any additional burden of showing unfairness, misconduct, fraud, or even 'stupid management.' Lenders contend that they want the opportunity to show there was no misconduct. The burden is on the Borrowers, however, to present substantial evidence of misconduct, not on the Lenders to show there is no misconduct. The record is replete with evidence that would meet the burden of 'any other circumstance' of misconduct coupled with the inadequate foreclosure prices. "For these reasons, the Court finds the extremely low bids at the foreclosure sale raise the presumption of unconscionableness and the grossly inadequate prices coupled with substantial evidence of misconduct justifies setting aside the foreclosure sale. The Court hereby sets aside the foreclosure sale and declares the foreclosure deeds null, void and of no force and effect." On March 7, 2017, FNB moved the trial court for a partial summary judgment against some of the Marine Park guarantors on its claim asserted in the third amended complaint alleging breach of the promissory 20 1190205, 1190251 note and the guaranty agreements associated with the Marine Park loan, see note 5, supra, seeking an award of principal, interest, late charges, attorney's fees, and collection costs accrued up to the date of any order granting the motion. On July 10, 2017, the borrowers and the guarantors moved the trial court to enter a partial summary judgment in their favor on SEPH's and FNB's breach-of-contract claims seeking the payment of interest, attorney's fees, and expenses incurred after the foreclosures on March 20, 2009. The borrowers and the guarantors conceded that Bama Bayou and Marine Park were liable for the principal amount of each loan as of March 20, 2009. However, the borrowers and the guarantors contended that, because the trial court's October 26, 2016, order found the foreclosures to be wrongful and set aside the foreclosure deeds as "null, void and of no force and effect," Bama Bayou's and Marine Park's liability should be limited to principal amounts owed on the loans as of March 20, 2009, and that they should not be held liable for any interest, late charges, attorney's fees, or collection costs incurred after that date. The borrowers and the guarantors argued that "[p]rinciples of equity underlie the [trial 21 1190205, 1190251 court's] order that set aside the foreclosures [and that] those same principles must now operate to shield the borrowers and guarantors from having [SEPH's and FNB's] post foreclosure interest, costs, and expenses visited upon them as a consequence of the wrongful foreclosures." The borrowers and the guarantors specifically sought a judgment dismissing all claims against the guarantors and limiting the liability of Bama Bayou and Marine Park to the principal amounts owed on the loans as of March 20, 2009. Further, the borrowers and the guarantors moved the trial court for a judgment requiring SEPH and FNB to pay their attorney's fees and litigation expenses incurred after the March 20, 2009, foreclosures. On August 15, 2017, SEPH moved the trial court for a partial summary judgment as to its claims against Bama Bayou and the Bama Bayou guarantors alleging a breach of the promissory notes and the guaranty agreements associated with the West loan, the East loan, and the North loan, see note 5, supra, and seeking an award of principal, interest, late charges, attorney's fees, and collection costs accrued up to the date of any order granting the motion. SEPH also sought a summary judgment as to all of the borrowers' and the guarantors' counterclaims 22 1190205, 1190251 against it, including the claims alleging breach of a promise to provide additional financing for the project and the violation of the Equal Credit Opportunity Act. On September 1, 2017, SEPH filed its opposition to the borrowers' and the guarantors' motion for a partial summary judgment seeking relief from liability for interest and litigation expenses incurred following the wrongful foreclosures and seeking reimbursement for their attorney's fees and litigation expenses. SEPH noted that the trial court had already determined in its October 5, 2015, order that the sole remedy available for a wrongful foreclosure was to set the foreclosure aside. SEPH argued that Vision Bank, its predecessor, and Bama Bayou and Marine Park had agreed in the mortgages associated with the loans that if a foreclosure was set aside, the parties would be restored to their former positions under the mortgages as if the foreclosure had not occurred. SEPH further argued that the mortgages also clarified that all rights, powers, and remedies of the lender would continue if a foreclosure was set aside "as if no such proceeding had been taken." SEPH also argued that the law in Alabama is consistent with the parties' agreements contained in the mortgage 23 1190205, 1190251 documents, asserting that Alabama law provides that setting aside a foreclosure -- not the release from, or reduction of, any indebtedness on the loans -- is the single appropriate remedy in a wrongful-foreclosure proceeding. Regarding the guarantors' claim that they were free from liability, SEPH argued that the guarantors had agreed in their guaranty agreements that they had no interest in the collateral; that foreclosure was not a condition of recovery against them; that they had waived all defenses available to Bama Bayou and Marine Park; and that they had agreed to be liable for the debts until they were paid. On August 31, 2018, the trial court entered an order granting in part FNB's motion for a partial summary judgment against some of the Marine Park guarantors on its claim asserting a breach of the promissory note and guaranty agreements; granting in part the borrowers' and guarantors' motion for a partial summary judgment in their favor as to SEPH's and FNB's breach-of-contract claims seeking the payment of interest, late charges, attorney's fees, and collection costs incurred after the foreclosures on March 20, 2009; denying the borrowers' and the 24 1190205, 1190251 guarantors' motion seeking payment of their own attorney's fees and litigation expenses; granting in part SEPH's motion for a partial summary judgment as to its claims against Bama Bayou and the Bama Bayou guarantors alleging a breach of the promissory notes and guaranty agreements associated with the West loan, the East loan, and the North loan; granting SEPH's motion for a summary judgment as to the counterclaim asserted against SEPH alleging that it had agreed to provide further financing for the Bama Bayou project; and denying SEPH's motion for a summary judgment as to the counterclaims asserting against SEPH a violation of the Equal Credit Opportunity Act.6 Regarding the wrongful-foreclosure issue, the trial court stated: "On October 5, 2015, this Court addressed the remedies available to the parties, noting each of the mortgages executed by the Borrowers contains the following language in the following provision concerning the parties' agreement in the event a foreclosure is 'determined adversely to Lender': " 'Discontinuance of Proceedings - Position of Parties, Restored. In case the Lender shall have 6The trial court also disposed of a number of the other counterclaims, third-party claims, affirmative defenses, and motions not directly relevant to these appeals. 25 1190205, 1190251 proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Lender shall continue as if no such proceeding had been taken.' "The Court held then that the only remedy available to the Borrowers and the Guarantors was for the Court to judicially set aside the foreclosure if the Court should determine a wrongful foreclosure had occurred. The Court also held the Guarantors did not have standing to assert an affirmative cause of action for wrongful foreclosure, although the Court did recognize the Guarantors could raise affirmative defenses. "On October 26, 2016, the Court ruled on the issue of wrongful foreclosure, holding as follows: " '[T]he Court finds the extremely low bids at the foreclosure sale raise the presumption of unconscionableness and the grossly inadequate prices coupled with substantial evidence of misconduct justifies setting aside the foreclosure sale.' "Because the foreclosure was 'determined adversely to the Lender,' the parties' contracts provide the Borrower and Lender 'shall be restored to their former positions and rights ... as if no such proceeding had been taken.' 26 1190205, 1190251 ".... "Turning to the issue of the affirmative defense based on wrongful foreclosure, the Court invokes its equity powers in determining the appropriate remedy. When a foreclosure is set aside, the mortgagor’s equity of redemption is restored. See, e.g., Cotton v. First Nat. Bank, [228 Ala. 311,] 153 So. 225 (Ala. 1934); Murphy v. May, [243 Ala. 94,] 8 So. 2d 442 (Ala. 1942). During the period after the voided foreclosure sale, the mortgagee is regarded as a mortgagee in possession before foreclosure, and an accounting is to be performed for this period to determine the amount of the debt. See Smith v. Stringer,[220 Ala. 353,] 125 So. 226 (Ala. 1929); and De Moville v. Merchants & Farmers Bank of Greene County, [233 Ala. 204,] 170 So. 756 (Ala. 1936). During this period, interest continues to accrue on the debt. See, e.g., Smith v. Stringer, [228 Ala. 630,] 155 So. 85 (Ala. 1934); De Moville v. Merchants & Farmers Bank of Greene County, [237 Ala. 347,] 186 So. 704 (Ala. 1939). The purpose of the accounting is to determine the amount of the debt so the mortgagor can exercise its equity of redemption and re-acquire title to its property. De Moville, [233 Ala. 204,] 170 So. 756. This is the remedy afforded the mortgagor on a voided foreclosure sale even when there has been a finding of misconduct by the mortgagee in connection with the foreclosure. See, e.g., De Moville, [233 Ala. 204,] 170 So. 756; and De Moville, [237 Ala. 347,] 186 So. 704. "Under this body of law, interest ordinarily would accrue on the debt from the time of the wrongful foreclosure to date because there is no doubt the borrowers had the use of the money at issue. If the bids, however, on the foreclosed property had been reasonable but still created a deficiency owed by the borrowers, then the interest the borrowers would have paid on any deficiency amount would be substantially reduced. Moreover, much of the delay in this litigation may be laid at 27 1190205, 1190251 the feet of the Lenders and their respective backing entities. Therefore, based upon consideration and balancing of the relative equities involved, the Court orders an accounting of the debt for purposes of the equitable right of redemption in the amount consisting of: "(1) principal amounts on each loan due on the date of foreclosure, March 20, 2009; "(2) interest and late charges on the principal amount from the date the notes were last timely paid through March 20, 2009; "(3) interest only on the amount determined in (2) above from March 20, 2009 until the date of the remand from the ... removal to federal court, August 21, 2013. "Judgment is entered for the Borrowers and the Guarantors on the Plaintiff's claims for late charges after the date of foreclosure, interest after August 21, 2013, attorneys' fees, litigation expenses, collection expenses, property preservation expenses, and other costs otherwise claimed. "Judgment is entered against the Borrowers and the Guarantors on their claims for attorneys' fees and expenses. "The Plaintiffs’ requests for summary judgment as to the Guarantors is premature in the face of the equities employed by the Court in this case and so is denied." 28 1190205, 1190251 The trial court further ordered the parties to confer with each other and to file a joint status report as to any outstanding issues that would prevent the order from being a final judgment in the cases. On September 27, 2018, the parties submitted the joint status report indicating, among other things, that FNB's breach-of-contract claim against Marine Park was still outstanding, because FNB had not moved the trial court for a summary judgment as to that claim; that FNB's breach-of-contract claim against the Marine Park guarantors was still outstanding, because FNB had moved the trial court for a summary judgment as to only some of the Marine Park guarantors; that SEPH's breach-of-contract claims against Bama Bayou were still outstanding, because there was no monetary value attached to the judgment in favor of SEPH on those claims; that SEPH's breach-of-contract claims against the Bama Bayou guarantors was still outstanding;7 that SEPH's claim for 7In its August 31, 2018, order, the trial court initially granted SEPH's motion for a partial summary judgment as to its breach-of- contract claims against the Bama Bayou guarantors. However, the order also states that the "requests for summary judgment as to the Guarantors [was] premature in the face of the equities employed by the Court in this case and so is denied." SEPH contends that, because there was no 29 1190205, 1190251 an inspection and accounting of records and payments made by the borrowers and the guarantors remained outstanding, because SEPH had not sought a summary judgment as to that claim; that SEPH's fraud claims remained outstanding, because SEPH had not sought a summary judgment as to those claims; and that the counterclaim asserting against SEPH a violation of the Equal Credit Opportunity Act remained outstanding. On April 23, 2019, the trial court entered an order empowering a special master with the authority to retain an expert to prepare an accounting within the parameters set forth by the trial court in its August 31, 2018, order to establish debt figures for equitable-right-of-redemption purposes. On May 29, 2019, the special master submitted its recommendation as to the calculation of Bama Bayou's and Marine Park's monetary judgment entered against the guarantors, its breach-of-contract claims against the Bama Bayou guarantors remain outstanding. The guarantors contend that the trial court denied the motions against them as being premature. It is clear that, regardless of the reason, those claims remained outstanding. 30 1190205, 1190251 equitable rights of redemption based on the ordered accounting. The special master's recommendation provided as follows: "1. A listing of the subject 4 loans with the principal balances as of the last time a principal payment was made is: [West loan] - $6,000,000.00; [East loan] - $5,000,000.00; [North loan] - $3,950,495.29; and [Marine Park loan] - $4,976,422.62. "2. Interest and Late Charges accrued from the date of last payment through March 20, 2009 for each of the loans in the order set out above is: $140,933.34; $144,544.45; $115,332.41; and $178,806.33. "3. The Special Master directed Mr. Hall [the retained expert] to determine what the default interest rate on each of the 4 loans was and to then use that rate to come up with a daily interest amount for each loan. Further, the Special Master directed Mr. Hall to apply that daily rate to principal balances and to calculate it for the time from March 20, 2009 through August 21, 2013 as previously directed by this Court in the order of August 31, 2018. "4. The additional interest amounts for each of the loans in the order set out above is: $1,725,611.35; $1,769,862.35; $1,398,363.90; and $2,201,891.00. See, Hall affidavit. "5. Accordingly, the equitable right of redemption figure for each of said loans is: [West loan] - $7,866,544.69; [East loan] - $6,914,406.80; [North loan] - $5,464,191.60; and [Marine Park loan] - $7,357,119.95." On July 8, 2019, the trial court entered an order adopting the special master's recommendation adjudging the equitable-right-of-redemption 31 1190205, 1190251 figure for each loan to be: $7,866,544.69 for the West loan; $6,914,406.80 for the East loan; $5,464,191.60 for the North loan; and $7,357,119.95 for the Marine Park loan. The trial court further ordered the parties to file dispositive motions as to the remaining issues in the action, as identified in the joint status report. On August 6, 2019, SEPH, in separate motions, (1) moved the trial court for a summary judgment as to all of its remaining claims -- except its fraud and accounting-and-inspection claims -- asserted against the borrowers and the guarantors and as to all remaining counterclaims asserted against it by the borrowers and the guarantors and (2) moved the trial court to dismiss its accounting-and-inspection claim asserted against the borrowers and the guarantors. On October 29, 2019, SEPH moved the trial court to dismiss its fraud claims asserted against the borrowers and the guarantors. On August 13, 2019, FNB moved the trial court for a summary judgment on its claims asserting a breach of the promissory note and guaranty agreements against Marine Park and the remaining Marine Park guarantors. FNB also moved the trial court for a summary judgment 32 1190205, 1190251 as to any remaining counterclaims asserted against it by Marine Park and the Marine Park guarantors. On November 20, 2019, the trial court entered a final judgment disposing of all remaining motions and claims pending in SEPH's case.8 The trial court's judgment dismissed SEPH's claim for an inspection and accounting of records; dismissed SEPH's fraud claims; and entered a summary judgment in favor of SEPH on the counterclaim asserting a violation of the Equal Credit Opportunity Act. The trial court further entered a judgment in favor of SEPH on its breach-of-contract claims against Bama Bayou in the following amounts: $7,866,544.69 on the West loan; $6,914,406.80 on the East loan; and $5,464,191.60 on the North loan. The trial court also entered a judgment in favor of SEPH on its breach-of- contract claims against the Bama Bayou guarantors, in certain specified 8On October 1, 2019, SEPH moved the trial court, pursuant to Rule 21, Ala. R. Civ. P., to sever, as a separate action, all claims brought by SEPH and the Bank of Franklin against each other. The trial court granted the motion to sever those claims as a separate action. The trial court also disposed of all remaining claims as they pertained to other parties not specifically discussed in this opinion, because they have no direct relevance to the issues raised in these appeals. 33 1190205, 1190251 amounts, holding each Bama Bayou guarantor jointly and severally liable with Bama Bayou and each other Bama Bayou guarantor, up to the specified amount of principal and interest owed on each note.9 Significant for purposes of these appeals, the amounts awarded SEPH on its breach- of-contract claims were consistent with the trial court's August 31, 2018, order and, thus, included interest only up to August 21, 2013, and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. On November 20, 2019, the trial court also entered a final judgment in favor of FNB on its breach-of-contract claims against Marine Park and the Marine Park guarantors. The trial court awarded FNB $7,357,119.95 on its breach-of-contract claim against Marine Park. The trial court also awarded FNB certain specified amounts against each of the 16 Marine Park guarantors on its breach-of-contract claim against the Marine Park guarantors, holding each Marine Park guarantor jointly and severally 9There are 23 Bama Bayou guarantors. This Court has not set forth the specific dollar amount of the monetary award entered against each guarantor. Suffice it to say, the awards were substantial, ranging from $1,793,596.31 to $14,544,347.80. 34 1190205, 1190251 liable with Marine Park, and each other, up to the specified amount of principal and interest owed under the note on the Marine Park loan. As was the case with the awards in SEPH's favor, the amounts awarded FNB on its breach-of-contract claims were consistent with the trial court's August 31, 2018, order and, thus, included interest only up to August 21, 2013, and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. SEPH and FNB each timely appealed, challenging the trial court's damages awards on their breach-of-contract claims. See Ex parte Weyerhaeuser, 702 So. 2d at 1228. The appeals were consolidated by this Court. Standard of Review "This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law." Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004). Discussion 35 1190205, 1190251 SEPH and FNB appeal from the trial court's final judgments of November 20, 2019, awarding them damages on their breach-of-contract claims against the borrowers and the guarantors that, pursuant to the trial court's August 31, 2018, order, did not include interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses.10 On October 5, 2015, the trial court entered an order initially finding that, under both Alabama law and the agreements between the parties in these cases, the appropriate remedy upon a finding of wrongful foreclosure was to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place. Following an evidentiary hearing, the trial court, on October 26, 2016, entered an order finding that the foreclosures were wrongful and setting them aside. 10The trial court gave no explanation as to why it determined that SEPH and FNB could not recover interest accrued after August 21, 2013, other than to note that that date was the date the cases were remanded to the trial court following their removal to federal court. 36 1190205, 1190251 On August 31, 2018, the trial court entered an order expressly invoking its equitable powers to fashion a remedy in favor of the borrowers and the guarantors that prohibited SEPH and FNB from recovering interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property- preservation expenses. That order is inconsistent with the trial court's October 5, 2015, order, in which it determined that the sole remedy available upon the finding of wrongful foreclosure was to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place. SEPH and FNB argue that, in its October 5, 2015, order, the trial court determined the sole remedy available pursuant to both the parties' agreements and Alabama law and that the trial court erred in ignoring the parties' unambiguous agreements and the law of this state to fashion its own equitable remedy to relieve the borrowers and the guarantors of their obligations to pay interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. SEPH and FNB expressly 37 1190205, 1190251 state that they are not seeking to reinstate the foreclosures by having the trial court's order setting aside the foreclosures reversed. The borrowers and the guarantors argue on appeal that it would be inequitable for them to pay interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, collection costs, and property-preservation expenses after Vision Bank had wrongfully foreclosed on the loans by submitting unconscionably low credit bids. The borrowers and the guarantors further argue that, because equitable principles provided the basis for setting aside of the wrongful foreclosures, the trial court had the authority to fashion whatever additional equitable relief it deemed necessary. I. The Loan Documents The promissory notes executed in relation to each of the loans made to Bama Bayou and Marine Park required Bama Bayou and Marine Park to repay the principal amount of the loans with interest. The promissory notes also provided that Bama Bayou and Marine Park were obligated to pay reasonable attorney's fee and costs incurred by the lender in collecting on the promissory notes in the event of a default. The promissory notes 38 1190205, 1190251 were secured both by the guaranty agreements and by the mortgages executed in conjunction with the promissory notes. The mortgages also required Bama Bayou and Marine Park to repay the principal amount of the loans with interest and all reasonable attorney's fees and costs incurred by the lender in the event of a foreclosure of any of the mortgages. The mortgages further provided that Bama Bayou and Marine Park were responsible for the payment of all property-preservation expenses, including taxes, insurance premiums, the costs of maintenance and repairs, the costs of security and protection, liens, utility charges, and assessments. Section 2.14 of the mortgages expressly sets forth the remedy to be applied if a foreclosure is found to be wrongful: "Discontinuance of Proceedings - Position of parties, Restored. In case the Lender shall have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights powers and remedies of the Lender shall continue as if no such proceeding had been taken." 39 1190205, 1190251 (Emphasis added.) Section 2.15 of the mortgages further emphasizes that each of the lender's rights, powers, and remedies under the promissory notes, mortgages, and loan documents are cumulative to each other and that the lender is entitled to pursue all of its available remedies under the promissory notes, mortgages, and loan documents. Section 2.15 of the mortgage provides: "Remedies Cumulative. No right, power, or remedy conferred upon or reserved to the Lender by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder, or under the Note, or under the Loan Documents, or now or hereafter existing at law or in equity or by statute." (Emphasis added.) This Court has stated: " A promissory note is a form of contract; therefore, it must be construed under general contract principles. See 11 Am. Jur. 2d Bills and Notes § 2 (1997) ('Bills and notes ... are contracts; accordingly, the fundamental rules governing contract law are applicable to the determination of the legal questions which arise over such instruments.' (footnotes omitted)) .... ' "General contract law requires a court to enforce an unambiguous, lawful contract, as it is written. . . . " ' 40 1190205, 1190251 Dawkins v. Walker, 794 So. 2d 333, 339 (Ala. 2001) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35-36 (Ala. 1998))." Bockman v. WCH, L.L.C., 943 So. 2d 789, 795 (Ala. 2006). Further, "[a] mortgage agreement is construed like any other contract." Tennant v. Chase Home Fin., LLC, 187 So. 3d 117, 1181 (Ala. Civ. App. 2015). "Where a contract, by its terms, is plain and free from ambiguity, there is no room for construction and the contract must be enforced as written." Austin Apparel, Inc. v. Bank of Prattville, 872 So. 2d 158, 165 (Ala. Civ. App. 2003). Section 2.14 of the mortgages operates to govern the rights and responsibilities of the parties if a wrongful foreclosure is set aside, and it requires that, in every such case determined adversely to the lender (i.e., SEPH and FNB), both the borrower (i.e., Bama Bayou and Marine Park) and the lender "shall be restored to their former positions and rights" under the mortgages and "all rights, powers, and remedies of the Lender shall continue as if no such proceeding had been taken." Section 2.14 is unambiguous and leaves no room for the application of other remedies, whether equitable or not, in the case of a wrongful foreclosure. The 41 1190205, 1190251 "rights, powers, remedies" of the lender include its right to accrued interest, late charges, attorney's fees, collection costs, and property- preservation expenses as allowed by the promissory notes, the mortgages, and other loan documents. As stated above, the trial court expressly recognized in its October 5, 2015, order that the mortgages at issue "expressly require" that the foreclosures be set aside as the sole remedy for a wrongful foreclosure. Vision Bank and Bama Bayou and Marine Park decided in the mortgages that the sole remedy for a wrongful foreclosure was to set aside the foreclosure and to return the parties to their former positions and rights under the mortgages and that all rights, powers, and remedies of Vision Bank would continue as if no foreclosure proceeding had taken place, including the right to recover accrued interest, late charges, attorney's fees, collection costs, and property-preservation expenses. Those provisions are clear and unambiguous. Thus, the mortgages must be enforced as written. Bockman, supra, Austin Apparel, supra. The plain language of the mortgages and the promissory notes prohibit the trial court's ruling limiting the amount of interest and late charges SEPH and 42 1190205, 1190251 FNB could recover and disallowing the recovery of attorney's fees, collection costs, and property-preservation expenses. Accordingly, we conclude that the trial court erred in refusing to enforce the unambiguous provisions of the promissory notes and mortgages by entering an award in favor of SEPH and FNB on their breach-of-contract claims that limited their damages awards by including interest accruing only up to August 21, 2013, by including late charges accruing only up to the date of foreclosure, and by not including attorney's fees, collection costs, and property- preservation expenses. II. Alabama Law SEPH and FNB contend that the trial court's ruling that a wrongful foreclosure justifies a release from part of the indebtedness incurred by Bama Bayou and Marine Park is also inconsistent with the law of this state. They contend that the law of this state is in fact consistent with the contractual provisions contained in the mortgages and the promissory notes. In Alabama, the appropriate remedy for a wrongful foreclosure, based upon a finding of an inadequate purchase price at the foreclosure 43 1190205, 1190251 sale, is to have the foreclosure set aside. Breen v. Baldwin Cnty. Fed. Sav. Bank, 567 So. 2d 1329, 1333 (Ala. 1990) (citing Hayden v. Smith, 216 Ala. 428, 113 So. 293 (1927)). When a claim for a wrongful foreclosure has been made, " ' "a court of equity will enjoin a sale or will set it aside if made." ' " Jackson v. Wells Fargo Bank, N.A., 90 So. 3d 168, 171 (Ala. 2012) (quoting Paint Rock Props. v. Shewmake, 393 So. 2d 982, 984 (Ala. 1981), quoting in turn Abel v. Fricks, 219 Ala. 619, 621, 123 So. 17, 18 (1929))(emphasis added). See also First Nat'l Bank of Opp v. Wise, 235 Ala. 124, 126, 177 So. 636, 638 (1937) (holding that, in a wrongful-foreclosure case, the party contesting the foreclosure, if successful, is "entitled to have the sale set aside and annulled"); Ross v. Rogers, 25 So. 3d 1160, 1168 n. 9 (Ala. Civ. App. 2009) ("[W]e are not at all convinced that, even if the amount Ross paid for the Madison County property created 'a presumption of fraud, unfairness, or culpable mismanagement,' ... the appropriate remedy would have been to judicially declare both promissory notes satisfied. The proper remedy appears to be the setting aside of the foreclosure sale ...."), and Harmon v. Dothan Nat'l Bank, 186 Ala. 360, 378, 64 So. 621, 627 (1914) (Mayfield, J., dissenting) ("A mere pretext, a mere sham sale, where the 44 1190205, 1190251 mortgagee both sells and buys (even under his authority so to do) for a mere song, and for the sole and real purpose of depriving the mortgagor of his right to redeem, will not have the desired effect of a real and bona fide foreclosure sale. Courts of law, as well as courts of equity, will treat such pretended sales as they ought to be treated -- as if they had never occurred -- and treat the mortgagee as in possession without foreclosure."). The trial court initially recognized in its October 5, 2015, order that courts of this state have consistently held that setting aside the foreclosure sale was the single appropriate remedy in a wrongful-foreclosure proceeding. Once a foreclosure has been set aside, the law in Alabama restores the parties to their former positions and rights under the mortgage. This Court has explained: "Alabama classifies itself as a 'title' state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee. Lloyd's of London v. Fidelity Securities Corporation, 39 Ala. App. 596, 105 So. 2d 728 (1958); Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So. 2d 105 (1944); Jones v. Butler, 286 Ala. 69, 237 So. 2d 460 (1970). The mortgagor is left with an equity of redemption, but upon payment of the debt, legal title revests in the mortgagor. § 35-10-26, Code 1975. The equity of redemption may be conveyed by the mortgagor, and his grantee secures only an equity of redemption. McDuffie v. Faulk, 214 Ala. 221, 107 So. 45 1190205, 1190251 61 (1926). The payment of a mortgage debt by the purchaser of the equity of redemption invests such purchaser with the legal title. Denman v. Payne, 152 Ala. 342, 44 So. 635 (1907). The equity of redemption in either case, however, is extinguished by a valid foreclosure sale, and the mortgagor or his vendee is left only with the statutory right of redemption. ... McDuffie, supra." Trauner v. Lowrey, 369 So. 2d 531, 534 (Ala. 1979)(emphasis added). The important distinction to be made is that, before a foreclosure, the mortgagor possesses the equity of redemption and that, after a foreclosure sale, the mortgagor has the statutory right of redemption. See also Chess v. Burt, 87 So. 3d 1201, 1207 (Ala. 2011) (holding that foreclosure extinguished the equity of redemption and actuated the statutory right of redemption); and Cotton v. First Nat'l Bank, 228 Ala. 311, 315, 153 So. 225, 229 (1934) (holding that the "foreclosure sale should be set aside and vacated and the foreclosure deed canceled, leaving the complainants the right to enforce the equity of redemption"). Thus, when the trial court set aside the foreclosures, Bama Bayou and Marine Park, as the mortgagors, had their equity of redemption restored, giving them the opportunity to satisfy the indebtedness and to have title to the properties vested in them. Trauner, 369 So. 2d at 534. 46 1190205, 1190251 As the law relates to a mortgagee's possession of property between the date of foreclosure and the date a trial court sets aside a foreclosure, the mortgagee may be liable to a mortgagor for income earned on, and waste to, the property during that period. "It may be well at this point to say that the law is established that one in possession of land as a purchaser at a foreclosure sale, made in strict compliance with the terms of the mortgage, is not a mortgagee in possession, but the absolute owner not chargeable with rent or for waste; but a mortgagee in possession before foreclosure, or after an irregular foreclosure, may be liable for rent and waste, and the purchase by the mortgagee, unless authorized by the mortgage, is such an irregularity as to render him liable for rent and waste. " Hale v. Kinnaird, 200 Ala. 596, 600, 76 So. 954, 958 (1917)(emphasis added) . Although the mortgagee in possession of property following a wrongful foreclosure is liable for rents and waste, the mortgagee is also entitled to receive interest on the mortgage debt -- because the interest continues to accrue on the debt -- during the period between the foreclosure and the time when the mortgage debt is adjudicated. See Smith v. Stringer, 228 Ala. 630, 155 So. 85 (1934) ("Smith II"), De Moville 47 1190205, 1190251 v. Merchants & Farmers Bank of Greene Cnty., 237 Ala. 347, 186 So. 704 (1939). In Smith v. Stringer, 220 Ala. 353, 355, 125 So. 226, 227 (1929)("Smith I"), the plaintiff brought a claim seeking to have the foreclosure of certain real property set aside as invalid, to enforce her equity of redemption, and for an accounting. The trial court determined that the foreclosure, which occurred in August 1925, was invalid and set aside the foreclosure. This Court upheld the trial court's order setting aside the foreclosure. This Court further determined that the defendant mortgagee was considered merely a mortgagee in possession and, as such, was accountable to the plaintiff for certain rents or profits realized during his possession of the property after foreclosure, as well as for any waste or mismanagement of the property caused by his failure to use reasonable care and diligence in dealing with the property. This Court reversed the portion of the trial court's judgment basing its accounting on only rents and profits received by the defendant. Smith I. On remand, the matter was retried, seeking a full accounting of the mortgage debt by including payments for taxes, repairs, and insurance for 48 1190205, 1190251 the property paid by the defendant while in possession of the property but deducting amounts for rents received and for and any waste on the part of the defendant while in possession of the property. In reaching its determination as to the amount of the mortgage debt, the trial court attributed $375 to waste on the part of the defendant, and the defendant appealed. Smith II. On appeal, this Court determined that the $375 attributed by the trial court as waste was too high and lowered that amount to $50. This Court then determined the mortgage debt by factoring in, among other things, the reduced amount for waste and also eight years of accrued interest from the time of the foreclosure in 1925.11 This Court explained: 11It is not entirely clear from the decisions in Smith I and Smith II as to the event that occurred in 1933 that prompted this Court to determine that date to be the cutoff point for the accrual of interest; however, it is safe to assume that the prompting event was the entry of the trial court's judgment from which the appeal was taken in Smith II. What is abundantly clear from Smith II is this Court's determination that interest continued to accrue on the mortgage debt through the entire period of time following the foreclosure of the mortgage up until when the mortgage debt was finally adjudicated. 49 1190205, 1190251 "Complainant purchased the property for $325, $25 cash and assumption of the mortgage $300, prior to the entry of the mortgagee, or any disturbance of the grapevines. ... ".... "... [U]pon a careful review and consideration of the evidence, taken before and after the former appeal, we conclude the court greatly erred in the allowance for waste. It should be and is here reduced to the sum of $50, a sum ample, we think, to cover any influence this vineyard had on the real value of the property. "This, with interest for eight years, $32, added to the balance found on rent account, $73.15, makes aggregate credits on the mortgage debt as of the date of the decree, July 31, 1933, the sum of $155.15. "The mortgage debt, with interest to same date [1925- 1933] was $486. "A decree will be here rendered ascertaining and decreeing a balance due on the mortgage debt of $330.85, with interest from July 31, 1933." Smith II, 228 Ala. at 632, 155 So. at 86 (emphasis added). See also De Moville, 237 Ala. 347, 186 So. 704 (affirming the award of accrued interest from the time of foreclosure in January 1932 through the date of final adjudication of the mortgage debt in June 1937 and determining that a 50 1190205, 1190251 mortgagee in possession is entitled to property-preservation expenses such as taxes, insurance, and repairs). Based on the foregoing, we conclude that the appropriate remedy to be applied upon the finding of a wrongful foreclosure is to set aside the foreclosure and that the trial court erred by limiting SEPH's and FNB's damages on their breach-of-contract claims by allowing postforeclosure interest only from March 20, 2009, until August 21, 2013, and by not allowing their recovery of property-preservation expenses. III. The Guarantors As stated above, the trial court awarded SEPH and FNB certain specified amounts against each of the Bama Bayou guarantors and the Marine Park guarantors on their breach-of-contract claims and held each Bama Bayou guarantor and Marine Park guarantor jointly and severally liable with either Bama Bayou or Marine Park, up to the specified amount of principal and interest owed under each of the promissory notes. The amounts awarded SEPH and FNB were consistent with the trial court's August 31, 2018, order and included interest only up to August 21, 2013, 51 1190205, 1190251 and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. Pursuant to Section 1 of the guaranty agreements, the guarantors "unconditionally guarantee[d] and promise[d] to pay" any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including principal, interest, costs of collection, and attorney's fees." Section 14 of the guaranty agreements limits the guarantors' liability to (1) an amount equal to a specified portion of the principal; (2) 100% of all interest accrued or accruing on the loan; (3) 100% of all costs and expenses of collection, including a reasonable attorney's fees, relating to the enforcement of the guaranty agreements; and (4) 100% of all other costs and expenses of collection, including a reasonable attorney's fees, relating to all principal, interest, and other charges under the promissory notes and/or relating to any other indebtedness. Further, although the guaranty agreements obligate the guarantors to pay any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including 52 1190205, 1190251 principal, interest, costs of collection, and attorney's fees," the guarantors are not obligated to pay property-preservation expenses. " 'Rules governing the interpretation and construction of contracts are applicable in resolving a question as to the interpretation or construction of a guaranty contract.' Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So. 2d 68, 75 (Ala. 1989)." Barnett Millworks, Inc. v. Guthrie, 974 So. 2d 952, 954 (Ala. 2007). " ' "General contract law requires a court to enforce an unambiguous, lawful contract, as it is written." ' " Bockman, 943 So. 2d at 795 (quoting other cases). The guaranty agreements are plain and unambiguous and must be enforced as written. The guarantors have expressly "guaranteed and promised" to pay unconditionally any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including principal, interest, costs of collection, and attorney's fees." Because we have determined that the trial court erred in entering awards in favor of SEPH and FNB that did not include interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, 53 1190205, 1190251 and collection costs, we also hold that the awards entered in favor of SEPH and FNB against the Bama Bayou guarantors and the Marine Park guarantors that likewise did not include interest accrued after August 21, 2013, and the aforementioned fees and expenses is in error. Conclusion We reverse the trial court's judgments entered in these consolidated cases and remand the cases for a determination consistent with this opinion regarding the appropriate damages awards on SEPH's and FNB's breach-of-contract claims. Such awards should account for all accrued interest, late charges, attorney's fees, collection costs, and property- preservation expenses owed to SEPH and FNB.12 1190205 -- REVERSED AND REMANDED WITH INSTRUCTIONS. 1190251 -- REVERSED AND REMANDED WITH INSTRUCTIONS. 12The borrowers and the guarantors ask this Court to remand the cases with instructions to the trial court to clarify or resolve the inconsistencies in its orders. "[T]he law of Alabama is well-settled on this point. In the absence of taking an appeal, an appellee may not cross-assign as error any ruling of the trial court adverse to appellee." McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 24 (Ala. 1986). The borrowers and the guarantors have not filed cross-appeals in these cases. Thus, this Court cannot consider this request. 54 1190205, 1190251 Shaw, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur. Parker, C.J., dissents. Stewart, J., recuses herself. 55	December 31, 2020
72f2958b-c5dc-4060-8948-db4beddb6e60	Kenworth of Mobile, Inc., d/b/a Volvo Trucks of Mobile v. Dolphin Line, Inc. (Appeal from Mobile Circuit Court:	N/A	1051643	Alabama	Alabama Supreme Court	REL:01/25/2008 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, 2007-2008 ____________________ 1051643 ____________________ Kenworth of Mobile, Inc., d/b/a Volvo Trucks of Mobile v. Dolphin Line, Inc. ____________________ 1051724 ____________________ Volvo Group North America, Inc., and Volvo Trucks North America, Inc. v. Dolphin Line, Inc. Appeals from Mobile Circuit Court (CV-06-1226) 1051643, 1051724 2 MURDOCK, Justice. Kenworth of Mobile, Inc., d/b/a Volvo Trucks of Mobile ("Kenworth"), appeals from an order of the Mobile Circuit Court denying its motion to compel arbitration. Volvo Group North America, Inc. ("Volvo Group"), and Volvo Trucks North America, Inc. ("Volvo Trucks"), appeal separately from an order of the trial court in the same action denying their motion to compel arbitration. We have consolidated the appeals for the purpose of writing one opinion, and we reverse as to both appeals. I. Facts and Procedural History Kenworth is a Volvo truck dealership located in Mobile. In 2001 and 2002, Dolphin Line, Inc. ("Dolphin"), purchased a number of Volvo trucks from Kenworth. In conjunction with those purchases, Dolphin allegedly entered into an agreement with Kenworth, Volvo Trucks, and Volvo Group whereby those parties agreed that Dolphin could trade back the trucks it purchased from Kenworth when making future purchases of Volvo trucks ("the trade-back agreement"). On April 10, 2006, Dolphin filed a complaint against Kenworth, Volvo Group, and 1051643, 1051724 3 Volvo Trucks, alleging the following details surrounding its purchase of the trucks from Kenworth: "7. In or around July of 2001, Dolphin entered negotiations with ... [Kenworth], [Volvo Group], and/or [Volvo Trucks] to purchase five new Volvo trucks. "8. The negotiations involved the purchase of five model year 2001 Volvos. "9. At the time of negotiations, the five 2001 model year trucks were one model year old, as 2002 model year trucks were being produced and sold. "10. [Volvo Group] and/or [Volvo Trucks] and [Kenworth] had been unable to find a buyer for the five 2001 model year trucks. "11. Although the 2001 model year trucks were new, the release of the 2002 model year trucks significantly reduced the marketability of the 2001 model year trucks. "12. [Volvo Group], then acting under the name of [Volvo Trucks], by and through its Pricing Administration Manger [sic], Brian Layman, and [Kenworth], acting by and through its President, Bob Mitchell, and its salesman, Tom Mitchell, induced Dolphin to purchase the five 2001 model year trucks by offering a one for one tradeback on future Volvo truck purchases. "13. Dolphin entered negotiations with the local Volvo distributor, [Kenworth] and [Volvo Group] to purchase five new Volvo trucks. "14. [Volvo Group] and [Kenworth] contractually agreed to protect Dolphin at the end of Dolphin's trade cycle, by guaranteeing the values of the five trucks. 1051643, 1051724 4 "15. Dolphin entered other negotiations with [Kenworth] and [Volvo Group] for the purchase of additional trucks. "16. In 2002, only two months before the release of the 2003 model year trucks, [Kenworth] and [Volvo Group] persuaded Dolphin to purchase seventeen 2002 model year trucks, by again offering guaranteed values of trade. "17. Beyond needing to sell the aging model year trucks, [Volvo Group] and [Kenworth] were also interested in selling the proprietary Volvo engine, the VED 12, to Dolphin. "18. The VED 12 motor consistently brings much lower resale values to the Volvo trucks and is not a preferred motor in the trucking industry. "19. Nevertheless, [Volvo Group] and [Kenworth] guaranteed the repurchase of the trucks at specified values, inducing Dolphin to purchase the trucks with the VED 12 motor. "20. Each of the tradeback agreements allowed Dolphin to return the trucks to [Volvo Group] and [Kenworth] 36 or 48 months after the trucks were purchased. "21. In total, [Volvo Group] and [Kenworth] persuaded Dolphin to purchase 51 trucks, under a guaranteed trade-back agreement, at the end of Dolphin's trade cycle. "22. In August 2003, Dolphin communicated verbally and in writing its desire to trade back, one for one, the first set of five (5) trucks to [Volvo Group] and [Kenworth]. "23. This communication went unanswered. 1051643, 1051724 5 "24. In June 2004, Dolphin again communicated verbally and in writing its desire to trade back, one for one, the trucks under the trade back agreements. "25. Despite their written contract, [Volvo Group] and [Kenworth] ignored and refused Dolphin[']s request to trade the trucks." Dolphin's complaint included four counts: (1) breach of contract; (2) fraudulent misrepresentation; (3) unjust enrichment; and (4) promissory estoppel. As part of the purchases of the 51 trucks, Kenworth and Dolphin signed documents known as "Buyer's Orders," which listed the terms of the purchases. Among the terms included in the Buyer's Orders was an arbitration provision that stated: "ARBITRATION. Any controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment, and/or any other controversy or claim whatsoever arising between the parties hereto, shall be submitted to arbitration in Birmingham, Alabama, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any award rendered in such proceedings may be entered in any court having jurisdiction thereof, and the parties hereto submit to the jurisdiction of all State and Federal courts located in Birmingham, Alabama, for the purpose of entering said judgment. Furthermore, Buyer and Dealer acknowledge that this transaction involved interstate commerce, and Buyer warrants that the Equipment is to be used primarily for business, rather than family or household, 1051643, 1051724 6 purposes. Nothing in this agreement, and no exercise of any right of arbitration, will limit the right of any person, whether before, during or after the pendency of any arbitration proceeding, (a) to foreclose against any collateral by the exercise of any power of sale under any security agreement or other instrument or under applicable law, (b) to exercise self-help remedies such as setoff or repossession, or (c) to obtain provisional or ancillary remedies such as pre-judgment seizure of property." Volvo Group and Volvo Trucks were not signatories to the Buyer's Orders. On June 12, 2006, Kenworth filed a motion to stay the action and to compel Dolphin to arbitrate its claims against Kenworth. Kenworth argued that the arbitration provision in the Buyer's Orders covered Dolphin's claims and that the transactions at issue in the case involved interstate commerce. As a result, Kenworth argued, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., required Dolphin to arbitrate its claims. On June 20, 2006, Volvo Group and Volvo Trucks filed a motion to stay the action and to compel Dolphin to arbitrate its claims against them. They argued that they were entitled to seek enforcement of the arbitration provision contained in the Buyer's Orders because the language of the arbitration 1051643, 1051724 7 provision was not so restrictive as to preclude its enforcement by nonsignatories, because Dolphin's claims fell within the description in the arbitration provision of those claims subject to arbitration, and because Dolphin's claims against Volvo Group and Volvo Trucks were "intimately founded in and intertwined with" its claims against Kenworth. On July 20, 2006, Dolphin responded to Kenworth's motion. It argued that the Buyer's Orders were not applicable to the present case because, it argued, the complaint "unambiguously dictate[d] that the nature of this action [did] not lie with the purchase of the trucks, but with the Defendants['] failure to repurchase the trucks at the end of their trade cycle." According to Dolphin, "there [was] no dispute in connection with the purchase of the trucks." Dolphin also asserted that the trade-back agreement, which was the basis of the case, did not require the parties to arbitrate their claims. Dolphin attached to its response a series of documents that it stated constituted the trade-back agreement. One of the documents was entitled "Used Truck Trade Agreement" and was signed by a representative of Volvo Trucks. Another document contained within the trade-back agreement contained 1051643, 1051724 8 a provision that stated: "The attached 'Used Truck Trade Agreement' and the 'Trade Vehicle Specification Outline' are the only documents that will govern the details of any trade transaction and must be signed by all parties to the agreement in order to be considered an agreement." Kenworth moved to strike this attachment because, it said, it was not properly authenticated and was therefore inadmissible. On July 28, 2006, the trial court denied Kenworth's motion to compel arbitration. Kenworth appealed the trial court's order to this Court. On August 8, 2006, Dolphin responded to Volvo Group and Volvo Trucks' motion to compel arbitration. It repeated the argument it had made in opposition to Kenworth's motion to compel arbitration, and, in addition, pointed out the language contained in the series of documents it had submitted in opposition to Kenworth's motion indicating that the "'Used Truck Trade Agreement' and the 'Trade Vehicle Specification Outline' are the only documents that will govern the details of any trade transaction ...." Dolphin attached this series of documents, as well as the affidavit of its president authenticating the documents, to its response. 1051643, 1051724 9 On August 15, 2006, the trial court denied Volvo Group's and Volvo Trucks' motion to compel arbitration. Volvo Group and Volvo Trucks appealed to this Court. We consolidated Kenworth's appeal with Volvo Group and Volvo Trucks' appeal. II. Standard of Review In Fleetwood Enterprises, Inc. v. Bruno, 784 So. 2d 277 (Ala. 2000), we discussed the standard of review applicable to an appeal of the denial of a motion to compel arbitration: "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 that 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)." 784 So. 2d at 280 (emphasis omitted). We note that the proper method by which to challenge the denial of a motion to compel arbitration is by appeal. Rule 4(d), Ala. R. App. P.; AmSouth Bank v. Dees, 847 So. 2d 923, 928 (Ala. 2002). 1051643, 1051724 10 III. Kenworth's Appeal (no. 1051643) Kenworth contends that the trial court erred when it denied its motion to stay the action and to compel arbitration. It argues that the arbitration agreement contained in the Buyer's Orders covers the dispute in this case and requires the arbitration of Dolphin's claims against it. In the trial court, Kenworth submitted the Buyer's Orders, signed by a representative of Dolphin, that set forth the terms of the agreements by which Kenworth sold Dolphin the trucks at issue in this case. As noted, the Buyer's Orders contained an arbitration agreement. Kenworth also submitted undisputed evidence to the trial court that the Buyer's Orders evidenced a transaction affecting interstate commerce. The issue before the trial court, then, was whether the arbitration agreement applied to the dispute. See Fleetwood Enters., Inc., 784 So. 2d at 280. The arbitration agreement contained in the Buyer's Orders provides, among other things, that "[a]ny controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale" of the trucks 1051643, 1051724 11 "shall be submitted to arbitration." Kenworth argues that this language is sufficiently broad to encompass Dolphin's claims against it. Dolphin responds that its claims arise solely from the trade-back agreement, not from the Buyer's Orders, and that the trade-back agreement does not contain an arbitration provision. It points out that the trade-back agreement contains a clause providing that the "'Used Truck Trade Agreement' and the 'Trade Vehicle Specification Outline' are the only documents that ... govern[ed] the details of any trade transaction," thereby excluding the provisions of the Buyer's Orders from the dispute at issue. Dolphin also asserts that the Buyer's Orders each contain a merger clause that separates those agreements from the trade-back agreement and renders the arbitration provisions contained therein inapplicable to the trade-back agreement. Dolphin's claims are based upon agreements and representations made in connection with its purchase of the trucks. Its averments make clear that the trade-back agreement was inextricably intertwined with Dolphin's purchase of the trucks when it asserts that the defendants induced it to purchase the trucks by offering the trade-back agreement 1051643, 1051724 12 and that, when purchasing the trucks, it relied on the defendants' representations regarding the trade-back agreement. Indeed, in its complaint, Dolphin clearly indicated that the defendants persuaded it to purchase the trucks (and thus to enter into the Buyer's Orders) by offering it the trade-back agreement. We conclude that the dispute between Dolphin and Kenworth "relate[s] to [the] Buyer's Orders" and, in particular, "relate[s] ... to the purchase or sale" of the trucks. See Serra Chevrolet, Inc. v. Hock, 891 So. 2d 844, 847 (Ala. 2004) ("This Court has repeatedly stated '"that the words 'relating to' in the arbitration context are given a broad construction."'"). Therefore, the dispute between Dolphin and Kenworth falls within the scope of the arbitration agreement contained in the Buyer's Orders. Dolphin asserts that language in the trade-back agreement provides that the "'Used Truck Trade Agreement' and the 'Trade Vehicle Specification Outline' are the only documents that ... govern the details of any trade transaction." That does not exclude the application of other contracts not concerned with "the details of any trade transaction," nor does it prevent 1051643, 1051724 Dolphin further contends that the Buyer's Orders and the 1 trade-back agreement are "disconnected in time," which, according to Dolphin, indicates that the agreements do not have a common nexus. However, the allegations of Dolphin's complaint clearly demonstrate that the agreements have a common nexus. According to the complaint, Dolphin purchased the trucks at issue (thus entering into the Buyer's Orders) based on the defendants' representations related to the trade- back agreement. That the parties did not sign the agreements 13 other contracts between the parties, such as the Buyer's Orders, from determining in what forum a dispute as to "the details of any trade transaction" are to be resolved. As noted, Dolphin argues that the merger clause in the Buyer's Orders prevents its application to the present case. That clause provides that, in signing the Buyer's Orders, Dolphin acknowledged that the terms contained therein "constitute[d] the entire agreement between [it] and [Kenworth], except for any other written agreement." The merger clause plainly recognizes that the parties to the Buyer's Orders may be entering into other written contracts that, as between the parties, would be binding. Nothing in the merger clause prevents the terms of the Buyer's Orders from applying to the present dispute, especially given that the trade-back agreement was allegedly of such a nature as to be integral to Dolphin's purchase of the trucks. Indeed, it 1 1051643, 1051724 at the same time is of no consequence for present purposes. 14 is Kenworth's position in this case that is bolstered by the fact that the Buyer's Orders contemplate "other written agreements" between the parties relating to the purchase or sale of the trucks and yet expressly provide that the requirement to arbitrate applies to "any controversy or claim ... relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment." Dolphin relies on this Court's decision in Capitol Chevrolet & Imports, Inc. v. Payne, 876 So. 2d 1106 (Ala. 2003). In that case, the plaintiff purchased a car from a dealership, signing a sales contract that included an arbitration agreement. After a month, she returned the car to the dealership "in reliance on [the dealership's salesperson]'s representation that [the dealership] had a willing buyer for the vehicle." 876 So. 2d at 1107. The plaintiff alleged that the salesperson's representation to her that the dealership had a willing buyer for the car was a misrepresentation, and that, following her return of the car, the salesperson converted the car to his own use. The plaintiff sued the dealership and the salesperson, alleging 1051643, 1051724 15 that, "as a result of the misrepresentation, she lost the use of her vehicle, suffered severe mental anguish, and suffered an adverse credit rating once she stopped making payments on the [car]." 876 So. 2d at 1108. The dealership moved to compel arbitration on the basis of the arbitration agreement contained in the sales contract. The trial court denied the dealership's motion, and the dealership appealed. Examining the language of the arbitration agreement at issue, this Court stated that "a fair reading of the arbitration agreement ... leads to the conclusion that the agreement covers only disputes that more closely relate to the initial purchase and financing of the [car], and the negotiations and sale of other services incident to the initial sale of the [car]." 876 So. 2d at 1109 (emphasis omitted). Concluding that the arbitration agreement did not cover the dispute at issue, we stated: "We do not believe that the plain language of the arbitration agreement would lead one to assume or understand that the agreement covered the claims alleged in Payne's complaint -- a later fraudulent misrepresentation, unrelated to the original sale of the vehicle, resulting in the conversion of the vehicle. The present dispute involves alleged subsequent tortious conduct on the part of Capitol and its agent that is not close enough in relation 1051643, 1051724 16 to the initial sale of the [car] to be covered by the language of the arbitration agreement." 876 So. 2d at 1110. Thus, we affirmed the trial court's order denying the dealership's motion to compel arbitration. Payne is distinguishable from the present case. Unlike the dispute in Payne, the dispute in the present case involves contractual undertakings that, if Dolphin's allegations are proven correct, are integral to the original purchase and sale of trucks at issue. Although the dispute in Payne "involve[d] alleged subsequent tortious conduct on the part of [the dealership] and its agent that [was] not close enough in relation to the initial sale of the [car] to be covered by the language of the arbitration agreement," 876 So. 2d at 1110, the dispute in the present case relates directly to Dolphin's purchase of the trucks at issue, as well as the negotiations surrounding those purchases. Indeed, according to Dolphin's complaint, Dolphin would never have entered into the Buyer's Orders containing the arbitration provision but for the alleged fraud over which it is suing the defendants relating to the trade-back agreement. Although there was no nexus between the sales agreement and the alleged misrepresentation in Payne, Dolphin's allegations in its complaint clearly 1051643, 1051724 Because we resolve Kenworth's appeal in this manner, we 2 do not address its additional arguments supporting reversal of the order denying its motion to compel arbitration. 17 demonstrate the nexus between its agreement to buy the trucks from Kenworth and the trade-back agreement. Thus, Dolphin's reliance on Payne is misplaced. Because the arbitration clause in the Buyer's Orders covers the dispute between Kenworth and Dolphin, we conclude that the trial court erred when it denied Kenworth's motion to stay the action and to compel arbitration.2 IV. Volvo Group and Volvo Trucks' Appeal (no. 1051724) In their appeal, Volvo Group and Volvo Trucks contend that the trial court erred when it denied their motion to stay the action and to compel Dolphin to arbitrate its claims against them. They argue that, although they were not parties to the Buyer's Orders, which contain the arbitration agreement, the arbitration agreement applies to Dolphin's claims against them because, they argue, it is broad enough to encompass Dolphin's claims, the claims against them are "intimately founded in or intertwined with" Dolphin's claims against Kenworth, and the language of the arbitration agreement does not restrict its application to only disputes 1051643, 1051724 Dolphin also responds with the arguments it asserted 3 against Kenworth. As discussed in our treatment of Kenworth's appeal, those arguments are without merit. 18 arising between Dolphin and Kenworth. Dolphin responds that Volvo Group and Volvo Trucks lack standing to enforce the arbitration agreement because the language of the arbitration agreement indicates that it applies to only those disputes arising between Dolphin and Kenworth.3 In Ex parte Stamey, 776 So. 2d 85 (Ala. 2000), this Court discussed the issue whether and to what extent a defendant that is not a party to an arbitration provision can appropriately seek to compel the plaintiff to arbitrate its claims against the defendant: "Normally, in order to have a valid arbitration provision, there must be an agreement to arbitrate, and if no agreement exists, then a party cannot be forced to submit a dispute to arbitration. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995). The question whether one has assented to an arbitration provision is governed by ordinary principles of a state's common law and statutory law governing the formation of contracts. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989). Assent to arbitrate is usually to be manifested through a party's signature on the contract containing the arbitration provision. However, both Federal courts and Alabama courts have enforced exceptions to this rule, so as to allow a 1051643, 1051724 19 nonsignatory, and even one who is not a party, as to a particular contract, to enforce an arbitration provision within that same contract. Two such exceptions apply to the present case. The first is an exception under a theory of equitable estoppel for claims that are so 'intimately founded in and intertwined with' the claims made against a party that is a signatory to the contract. See Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir. 1984)); see also Ex parte Napier, 723 So. 2d 49 (Ala. 1998); Ex parte Gates, 675 So. 2d 371 (Ala. 1996). ... ".... "In order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty, the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonparties –- claims that would otherwise fall within the scope of the arbitration provision -- to arbitration. See Ex parte Napier, 723 So. 2d at 53. All that is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be 'intimately founded in and intertwined with' the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it. See id. In other words, the language of the arbitration agreement must be so broad that the nonparty could assert that in reliance on that language he believed he had the right to have the claims against him submitted to arbitration, and, therefore, that he 1051643, 1051724 20 saw no need to enter into a second arbitration agreement." 776 So. 2d at 88-89 (emphasis, other than emphasis on second "and," added). See also Edwards v. Costner, [Ms. 1060099, August 17, 2007] __ So. 2d __, __ (Ala. 2007) ("Intertwining is 'where nonarbitrable claims are considered so intimately founded in and closely related to claims that are subject to the arbitration agreement that the party opposing arbitration is equitably estopped to deny the arbitrability of the related claims.'" (quoting Ex parte Tony's Towing, Inc., 825 So. 2d 96, 97 (Ala. 2002))); SouthTrust Bank v. Ford, 835 So. 2d 990, 994-95 (Ala. 2002) ("The doctrine of intertwining is applicable where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped from denying the arbitrability of the related claim."). Volvo Trucks and Volvo Group contend that they satisfy the first prong of the test in Stamey because, they say, Dolphin's claims against them are "intimately founded in and intertwined with" its claims against Kenworth, which is a party to the arbitration agreement. This is so, they argue, because Dolphin's complaint "asserts the same causes of action 1051643, 1051724 21 against both Kenworth and [them] for the same alleged conduct, and arising out of the same transaction." We agree. In Service Corp. International v. Fulmer, 883 So. 2d 621 (Ala. 2003), Blair Fulmer entered into a contract with SCI Alabama Funeral Services, Inc. ("SCI-Alabama"), for the provision of funeral and cremation services for his deceased mother. The contract included an arbitration provision. After Fulmer was given a vase that was supposed to have contained his mother's remains but allegedly did not, Fulmer sued SCI-Alabama and Service Corporation International ("SCI"), SCI-Alabama's parent corporation. The defendants filed a motion to compel arbitration, which the trial court denied. The defendants appealed. SCI argued that, even though it was not a signatory to the contract containing the arbitration agreement, "Fulmer's claims against the signatory defendant, SCI-Alabama, are so 'intertwined' with his claims against SCI that arbitration of all of Fulmer's claims, including those against SCI, is appropriate." 883 So. 2d at 634. After noting Stamey's two- part test, this Court addressed the first part, which relates to whether the claims against the nonsignatory defendant are 1051643, 1051724 This Court went on to conclude that SCI could not enforce 4 the arbitration agreement against Fulmer because, in spite of the fact that it met the first prong of Stamey, it did not meet the second prong of Stamey. In other words, the language of the arbitration agreement explicitly limited its application to Fulmer and SCI-Alabama. 22 intertwined with the claims against the signatory defendant. Finding that prong satisfied, this Court wrote: "Here, Fulmer's claims against SCI are clearly 'intimately founded in and intertwined with' his claims against SCI-Alabama. ... All of Fulmer's claims arise from the same set of facts. Virtually none of Fulmer's claims makes a distinction between the alleged bad acts of SCI (the parent corporation) and those of SCI-Alabama (its subsidiary); rather, the claims are asserted as if SCI and SCI-Alabama acted in concert." 883 So. 2d at 634.4 In the present case, Dolphin's claims against Volvo Group and Volvo Trucks arise from the same set of facts as do its claims against Kenworth. None of Dolphin's claims makes a distinction between any of the defendants. Instead, as in Fulmer, the claims are asserted against all the defendants as if they had acted in concert. As a result, we conclude that Dolphin's claims against Volvo Group and Volvo Trucks are 1051643, 1051724 Because we find that Dolphin's claims against Volvo Group 5 and Volvo Trucks are "intimately founded in and intertwined with" its claims against Kenworth, we do not address Volvo Group and Volvo Trucks' argument that the first prong of the test in Stamey is met because "the scope of the arbitration agreement signed by the party resisting arbitration [is] broad enough to encompass those claims made by that party against nonsignatories." 23 "intimately founded in and intertwined with" its claims against Kenworth.5 Having concluded that the first prong of the Stamey test is met, we proceed now to examine the second prong of that test, that is, whether "the description of the parties subject to the arbitration agreement [is] not ... so restrictive as to preclude arbitration by" Volvo Group and Volvo Trucks. As previously noted, the arbitration provision in the Buyer's Orders stated, in pertinent part: "Any controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment, and/or any other controversy or claim whatsoever arising between the parties hereto, shall be submitted to arbitration in Birmingham, Alabama, in accordance with the Commercial Arbitration Rules of the American Arbitration Association." Dolphin argues that the phrase "arising between the parties hereto" modifies the phrase "controversy or claim" both times the latter phrase appears, thus limiting the application of 1051643, 1051724 24 the arbitration clause to only those disputes arising between it and Kenworth. Volvo Group and Volvo Trucks contend that the phrase "arising between the parties hereto" modifies the phrase "controversy or claim" only the second time it appears, so that the scope of the arbitration clause is not explicitly limited to disputes between Kenworth and Dolphin when the dispute is one "arising out of or relating to [the] Buyer's Order or otherwise relating in any fashion to the purchase or sale" of the trucks. We agree with Volvo Group and Volvo Trucks. We first note that the clause "[a]ny controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment" stands alone syntactically. The following clause, in which is found the phrase "between the parties hereto," is set off from the former clause and the remainder of the sentence by commas and the introductory term "and/or." Accordingly, that phrase is not properly viewed as modifying the subject of the preceding clause. We also note that if, as Dolphin asserts, the phrase "arising between the parties" modifies "controversy or claim" 1051643, 1051724 Dolphin also points to the merger clause on the face of 6 the Buyer's Orders indicating that, by signing the Buyer's Orders, Dolphin was acknowledging that the terms of the Buyer's Orders (which included the arbitration clause) constituted the entire agreement between it and Kenworth, except for any other written agreements between them. The effect of this provision was to make inapplicable any other agreements between the parties that were not in writing. It did not have the effect, as argued by Dolphin, of excluding Volvo Group and Volvo Trucks from the arbitration clause. 25 in both places it appears in the arbitration provision, the result would be that all claims between the parties to the contract (Dolphin and Kenworth), and no others, would be subject to arbitration. Were this the parties' intention, there would have been no reason to separately enumerate "claims or controversies arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment" from "any other controversy or claim whatsoever." Instead, were Dolphin's interpretation correct, the arbitration clause would more simply have stated that any claim or controversy arising between the parties to the Buyer's Order is subject to arbitration.6 Accordingly, we conclude that the proper interpretation of the arbitration clause is the one advanced by Volvo Group and Volvo Trucks, i.e., that the phrase "arising between the 1051643, 1051724 26 parties hereto" modifies only the latter category of claims or controversies contained within the clause, or "any other controversy or claim whatsoever." The phrase does not modify the former category of claims or controversies contained within the clause, i.e., those arising out of or relating to the Buyer's Orders or otherwise relating to the purchase and sale of the trucks. Our conclusion is bolstered by the "strong presumption in favor of arbitration" created by the Federal Arbitration Act. See, generally, Blue Cross Blue Shield of Alabama v. Rigas, 923 So. 2d 1077, 1083 (Ala. 2005). "In interpreting an arbitration provision, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" The Dunes of GP, L.L.C. v. Bradford, 966 So. 2d 924, 927 (Ala. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)) (emphasis omitted). Indeed, "'a motion to compel arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not 1051643, 1051724 27 susceptible of an interpretation that covers the asserted dispute."'" Id. (quoting Ex parte Colquitt, 808 So. 2d 1018, 1024 (Ala. 2001), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960)) (emphasis omitted). "While, 'as with any other contract, the parties' intentions control, ... those intentions are generously construed as to issues of arbitrability.'" Carroll v. W.L. Petrey Wholesale Co., 941 So. 2d 234, 237 (Ala. 2006) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 437 U.S. 614, 626 (1985)). Because we find that the application of the arbitration clause is not limited, with regard to disputes that relate "in any fashion to the purchase or sale" of the trucks, to only those disputes arising between Kenworth and Dolphin, we conclude that the second prong of the test set forth in Stamey is met. In other words, we conclude that the description of the parties subject to the applicable portion of the arbitration clause is not so restrictive as to preclude arbitration of the claims against Volvo Group and Volvo Trucks. 1051643, 1051724 28 Both prongs of the test set forth in Stamey having been met in this case, we hold that Dolphin is equitably estopped from asserting that the arbitration clause cannot be enforced by Volvo Group and Volvo Trucks. Thus, we conclude that the trial court erred when it denied their motion to stay the action and to compel arbitration. V. Conclusion Based on the foregoing, we reverse the trial court's orders denying the motions to stay and to compel arbitration, and we remand the cause for the entry of an order staying the action and compelling Dolphin to arbitrate its claims against Kenworth, Volvo Group, and Volvo Trucks. 1051643--REVERSED AND REMANDED WITH INSTRUCTIONS. 1051724–-REVERSED AND REMANDED WITH INSTRUCTIONS. Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur.	January 25, 2008
3873b3ef-6527-45db-bdf3-11ba846c7c6d	William Earl Roper and Cynthia Lanell Roper v. Ronald A. Rhodes; James V. Perdue, in his official capacity as probate judge of Crenshaw County; and Beth Chapman, in her official capacity as secretary of state of Alabama	N/A	1060331	Alabama	Alabama Supreme Court	REL:01/11/2008 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, 2007-2008 ____________________ 1060331 ____________________ William Earl Roper and Cynthia Lanell Roper v. Ronald A. Rhodes; James V. Perdue, in his official capacity as probate judge of Crenshaw County; and Beth Chapman, in her official capacity as secretary of state of Alabama Appeal from Crenshaw Circuit Court (CV-06-103) SMITH, Justice. William Earl Roper and Cynthia Lanell Roper appeal from a judgment of the Crenshaw Circuit Court dismissing the Ropers' action against Ronald A. Rhodes; James V. Perdue, in his official capacity as probate judge of Crenshaw County; and 1060331 When the Ropers filed their complaint in this action, 1 Nancy Worley was the secretary of state and was named as a defendant. Beth Chapman succeeded her in that office in January 2007. Rule 43(b), Ala. R. App. P., provides: "When a public officer is a party to an appeal or other proceeding in the appellate court in that officer's official capacity, and during its pendency dies, resigns, or otherwise ceases to hold office, the action shall not abate and the public officer's successor is automatically substituted as a party." See also Rule 25(d)(1), Ala. R. Civ. P. 2 Beth Chapman, in her official capacity as secretary of state of Alabama. We dismiss the appeal. 1 Facts and Procedural History William Earl Roper served on the Crenshaw County Board of Education, district 1, until 2006. Rhodes and one other candidate challenged William for that office in the June 6, 2006, Democratic primary. Following the primary election, William and Rhodes participated in a runoff election on July 18, 2006. William and Rhodes received an equal number of votes in the runoff election. To break the tie, the chairman of the Crenshaw County Democratic party conducted a "domino draw," and Rhodes prevailed. See § 17-13-21 (formerly § 17- 16-39), Ala. Code 1975. On August 14, 2006, Rhodes was certified as the nominee for the Democratic party. 1060331 Act No. 2006-570, Ala. Acts 2006, which took effect on 2 January 1, 2007, reorganized and amended Title 17, Ala. Code 1975. Unless otherwise noted, all citations in this opinion are to the earlier version of Title 17, which was in effect at the time the present action was filed. In Title 17, as revised by Act No. 2006-570, the FCPA is codified at § 17-5-1 et seq., Ala. Code 1975. The revised Title 17 is found in Volume 13A of the Code of Alabama; that volume includes a "Disposition Table" indicating the disposition of the sections found in Title 17 before the reorganization effected by Act No. 2006-570. The relief sought by the Ropers included a declaratory 3 judgment, an injunction, a writ of mandamus, and a writ of quo warranto. 3 On October 30, 2006--eight days before the November 7, 2006, general election--William and Cynthia filed an action in the Crenshaw Circuit Court against Rhodes, Judge Perdue, and the secretary of state. The complaint alleged that, during the time leading to the primary and runoff elections, Rhodes had violated certain reporting provisions of the Fair Campaign Practices Act, § 17-22A-1 et seq., Ala. Code 1975 ("the FCPA"). Although it asserted different theories, the 2 3 complaint sought two basic forms of relief: the revocation of Rhodes's certificate of nomination and the removal of his name from the ballot for the general election. The Ropers also filed a petition asking the trial court to issue an injunction postponing the November 7, 2006, election for the office of 1060331 The trial court also held that the secretary of state was 4 not a proper party to the proceeding. On their notice of appeal, the Ropers listed the secretary of state as an appellee, and the secretary of state has filed a brief as an appellee in this Court. However, the Ropers have made no argument to this Court on the issue whether the secretary of state was a proper party, and they therefore have waived the 4 Crenshaw County Board of Education, district 1, or, in the alternative, prohibiting the certification of the election results for that office pending the outcome of this case. Rhodes filed a motion to dismiss the complaint. Among other things, Rhodes asserted that the Ropers' action was untimely filed and that the trial court did not have subject- matter jurisdiction. The trial court held a hearing on November 6, 2006, to consider the Ropers' petition for an injunction postponing the election for the board-of-education office or prohibiting the certification of the election results for that office. At the November 6, 2006, hearing, the trial court initially denied Rhodes's motion to dismiss and proceeded to hear testimony. On November 14, 2006, the trial court entered an order holding that the Ropers' action was an election contest, which had been untimely filed, and the trial court therefore denied all the Ropers' claims for relief. The 4 1060331 issue. Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196, 1206 (Ala. 2006) ("'Issues not argued in a party's brief are waived.'" (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1167 (Ala. 2003))). Section 17-22A-4 of the FCPA requires a candidate for 5 office to file a statement with the secretary of state or the judge of probate, as provided in § 17-22A-9, showing, among other things, the names of the individuals serving as the principal campaign committee for the candidate. Section 17- 22A-8 requires "[t]he treasurer of each principal campaign committee or other political committee" to file at designated 5 Ropers appealed to this Court. Standard of Review "'[B]ecause 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)." Ex parte Forrester, 914 So. 2d 855, 858 (Ala. 2005). Discussion The Ropers' claims for relief are based on allegations that Rhodes failed to file reports required to be filed under the FCPA. Specifically, the Ropers alleged that, before the primary and runoff elections, Rhodes had not filed the reports described in § 17-22A-8 of the FCPA. Relying primarily on 5 1060331 times a report outlining the contributions to the candidate and the expenditures of the committee. The Ropers alleged that before the primary and runoff elections Rhodes had failed to file reports by the times set forth in § 17-22A-8(a), which provides: "The treasurer of each principal campaign committee or other political committee shall file with the Secretary of State or judge of probate, as designated in Section 17-22A-9, reports of contributions and expenditures at the following times in any year in which an election is held: "(1) Forty-five days before and between 10 and five days before the date of any election for which a political committee receives contributions or makes expenditures with a view toward influencing such election's result; "(2) Provided, however, that a report shall not be required except between five and 10 days before a run-off election." Before the primary, Rhodes filed two documents entitled "Waiver of Report," which stated that Rhodes had not "reached the filing threshold amount [of $1,000 in contributions or expenditures] as set forth in the [FCPA]." See § 17-22A-2(1), (2), and (4). The Ropers contended that those statements were inaccurate and that Rhodes in fact had reached the filing threshold amount and therefore was subject to the reporting requirements of the FCPA. 6 Harvey v. City of Oneonta, 715 So. 2d 779 (Ala. 1998), and the authorities cited therein, the appellees argue that the trial court did not have subject-matter jurisdiction to address the Ropers' claims that Rhodes had violated provisions of the FCPA. We agree. 1060331 The decision in Harvey does not state directly whether 6 Harvey filed her complaint before the election occurred. However, because she sought an injunction preventing the certification of Whited as the winner of the election, it appears that Harvey filed her complaint after the election but before the certification of Whited as the winner. 715 So. 2d at 779. 7 In Harvey, Mattie Harvey, a candidate for place number 3 on the Oneonta City Council, filed an action alleging that her opponent, Glen Whited, had not complied with the FCPA and seeking declaratory and injunctive relief. 715 So. 2d at 779. It was undisputed that Whited had failed to file a statement required by the FCPA before the election, and Harvey sought a declaration that Whited had not complied with the FCPA and an injunction preventing the certification of Whited as the winner. 715 So. 2d at 779-80. Holding that the circuit 6 court did not have jurisdiction to hear the action, this Court dismissed Harvey's appeal. 715 So. 2d at 779. This Court held that, instead of an action seeking declaratory and injunctive relief, Harvey should have filed an election contest under § 11-46-69, Ala. Code 1975, which sets forth the time limitation and the grounds for filing a contest to a municipal election. The Court first examined § 17-15-6, Ala. Code 1975, which stated: 1060331 8 "'No jurisdiction exists [in] or shall be exercised by any judge, court or officer exercising chancery powers to entertain any proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void and shall not be enforced by any officer or obeyed by any person; and should any judge or other officer hereafter undertake to fine or in any wise deal with any person for disobeying any such prohibited injunction, process or order, such attempt shall be null and void, and an appeal shall lie forthwith therefrom to the supreme court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days.'" 715 So. 2d at 779 (emphasis added in Harvey). On the authority of Davis v. Reynolds, 592 So. 2d 546 (Ala. 1991), this Court in Harvey noted that "a candidate who does not file a statement or report required by the FCPA before the election in question is ineligible to be elected to the office at that election." Harvey, 715 So. 2d at 780. Consequently, "[a]ny challenge to Whited's election on that basis [i.e., Whited's failure to file an FCPA-required statement] should have been 1060331 9 filed as an election contest pursuant to § 11-46-69(a)(2)." 715 So. 2d at 780-81. Because Harvey had not filed an election contest in compliance with § 11-46-69, the circuit court did not have jurisdiction to hear Harvey's claims. 715 So. 2d at 781. This Court held that the judgment of the circuit court was void and dismissed the appeal. 715 So. 2d at 781. Although the secretary of state and Judge Perdue discuss Harvey in their briefs to this Court, the Ropers do not address it. The Ropers maintain that their action is not an election contest and that, therefore, it is not subject to the statutory requirements--such as time limitations--for bringing an election contest. Instead, they contend, it is a pre- election action (i.e., an action filed before the general election) seeking to enforce § 17-22A-21, Ala. Code 1975, which states: "A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked." The Ropers argue that this Court has jurisdiction to enforce 1060331 Although the Ropers do not so note, Megginson was 7 overruled by this Court in Davis v. Reynolds, 592 So. 2d 546, 556 (Ala. 1991). 10 the "unambiguous and clear" language of § 17-22A-21. (Ropers' reply brief, p. 7.) The Ropers note that they filed their action before the general election, and they contend that rather than contesting an election, they were seeking to prevent Rhodes's name from appearing on the ballot for the November 7, 2006, election. The Ropers cite Megginson v. Turner, 565 So. 2d 247 (Ala. 1990), to support their 7 assertion that "[t]he remedy provided in the [FCPA]-- revocation of the certificate of election--is mandatory and requires the removal of the offending candidate's name from the ballot." (Ropers' reply brief, p. 5.) The section of the FCPA on which the Ropers rely--§ 17- 22A-21-- requires the forfeiture of an election under certain circumstances by a candidate who fails to file a statement or a report required by the FCPA. The fundamental problem with the Ropers' reliance on § 17-22A-21, however, is that they fail to place § 17-22A-21 in the context of the entire statutory scheme established by the legislature in Title 17. Moreover, the Ropers misapprehend this Court's decision in 1060331 11 Davis v. Reynolds, 592 So. 2d 546 (Ala. 1991). In Davis, this Court examined § 17-22A-21 within the context of the FCPA and noted: "The [FCPA] was enacted by the Legislature in 1988. Its primary laudable purpose was to require candidates for public office in Alabama to disclose campaign contributions and expenditures prior to elections. It repealed parts of the Corrupt Practices Act, § 17-22-1 et seq., which required disclosure only after the election. To accomplish this purpose, the legislature included sanctions for violation of the statute. For a failure to file a statement required by the statute prior to the election, § 17-22A-21 provides the harshest penalty of all: "'A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this Chapter.' "Thus, any candidate who fails to file a statement that is required to be filed by the [FCPA], prior to the election for the purpose of informing the voting public of the sources of his contributions and the subject of his expenditures, shall forfeit the election. "For the candidate who does not fail to file a statement before the election, but who files such a statement late, § 17-22A-22(b) prescribes and applies punishment in the form of a criminal penalty. "These two distinct sanctions, forfeiture of the election for those candidates who fail to file the disclosure statements required by the statute prior to the election, and criminal fines for candidates 1060331 12 who file such disclosure statements prior to the election but not within the time prescribed by the statute, carry out the legislative intent of full disclosure before the election; but these sanctions do not require a candidate who discloses his contributions and expenditures before the election (but not within the time provided by the statute) to forfeit the election. That sanction is too harsh to visit upon a candidate who has not failed to file the statements required, but has merely filed them late. After all, this candidate is the candidate chosen by the people as their representative, even though his disclosure statement was filed untimely. The people's choice should prevail even if the candidate is in violation of the time constraints of the statute, if he files his disclosure statements prior to the election. "A fair reading of the [FCPA] leads one inescapably to the conclusion that the Legislature made a clear distinction between penalties that would apply to those candidates who fail to file disclosure statements and those candidates who merely file them late. It is not surprising that it did so. It was designed to differ from the Corrupt Practices Act, which provided only the harsh sanction of removal of the candidate's name from the ballot. The purpose of the [FCPA] is to aid the voting public in choosing its state and county officials. Its purpose is not to deny the voting public its choice of representative, even if he or she has failed to meet a statutory deadline for filing disclosure statements, so long as he or she nevertheless has filed the statements prior to the election. "The penal provisions of the [FCPA] have been addressed by this Court in only one case. In Megginson v. Turner, 565 So. 2d 247 (Ala. 1990), this Court affirmed a trial court's ruling that Megginson could not be certified as the Democratic nominee because he had filed his statement naming 1060331 13 his principal campaign committee more than five days after his announcement and declaration of candidacy. Megginson cited Jones v. Phillips, 279 Ala. 354, 185 So. 2d 378 (1966); Owens v. Heartsill, 279 Ala. 359, 185 So. 2d 382 (1966); Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967); and Kirksey v. Democratic Party of Alabama, 495 So. 2d 638 (Ala. 1986), as authority for its holding. However, those cited cases were decided under the Corrupt Practices Act, which did not provide the separate sanctions that the [FCPA] provides. "All candidates are, of course, subject to the five-day requirements of § 17-22A-4. If one fails to file a statement required by that section before the election, § 17-22A-21 applies the sanction: forfeiture of the election. If one files the statement required by § 17-22A-4 before the election, but not within the five days required by that section, § 17-22A-22(b) applies. To the extent that Megginson v. Turner, supra, holds to the contrary, it is overruled. "The [FCPA] marks a new day in Alabama campaign practices. It requires full and complete disclosure by all candidates for public office of the sources of all contributions and the subject of all expenditures. It requires this disclosure prior to the election. If it is not made before the election, the candidate may not be certified to the office if he wins the election, § 17-22A-21. It requires this disclosure shortly after one becomes a candidate. If it is not made within the time required, but before the election, the candidate is subject to the penalties provided by § 17-22A-22(b). Its purpose is to inform the voting public of the source of a candidate's financial support. This purpose is served by the sanctions provided for in the Act. This Court has no authority to enlarge the sanctions provided for in the legislation itself." 592 So. 2d at 555-56 (footnote omitted). 1060331 14 In the present case, the Ropers filed their action on October 30, 2006--more than two months after Rhodes had been certified as the winner of the runoff election. As noted, the Ropers' action was based on Rhodes's alleged failure to file reports required to be filed by the FCPA. Because of Rhodes's alleged failure to file the reports required by the FCPA, the Ropers argued that Rhodes was ineligible to be elected in the general election. The Ropers did not argue expressly that Rhodes's alleged failure to file the FCPA reports also made him ineligible to be elected in the primary or runoff elections. However, the Ropers' allegations necessarily lead to the conclusion that if Rhodes failed to file reports required to be filed by the FCPA before the primary and runoff elections, he was ineligible to participate in those elections. Consequently, to the extent the Ropers alleged FCPA violations occurring before the primary and runoff elections, the Ropers are actually claiming that Rhodes was ineligible to participate in those elections. In that regard, the Ropers' claim is an attempt to contest the primary and runoff elections, because if the Ropers prevailed in their attempt to have Rhodes removed from the general 1060331 15 election ballot on the basis of alleged FCPA violations that occurred before the primary and runoff elections, the results of the primary and runoff elections would be affected--indeed they would be negated. As the Court noted in Harvey, § 17-15-6 prohibits a court from exercising jurisdiction over any proceeding seeking to "ascertain[] the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void." (Emphasis added.) See also Etheridge v. State ex rel. Olson, 730 So. 2d 1179, 1182 (Ala. 1999) ("We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so. The Legislature has made this abundantly clear. See § 17-15-6." (emphasis added)). Under Harvey, supra, and Davis, supra, to the extent the Ropers alleged that Rhodes violated the FCPA before the primary and runoff elections, the Ropers were contesting those elections 1060331 16 on the basis that Rhodes was allegedly ineligible to be a candidate in those elections. A procedure for contesting primary and runoff elections is set forth in §§ 17-16-70 through -89, Ala. Code 1975, and § 17-16-71(2) includes the ineligibility of a candidate as a ground for contesting a primary or runoff election. However, the Ropers did not follow the procedure outlined in §§ 17-16-70 through -89, Ala. Code 1975, and the Ropers have not cited another statutory provision authorizing their action to the extent it contested the primary and runoff elections on the basis that Rhodes was allegedly ineligible to be a candidate in those elections. Consequently, the trial court did not have jurisdiction to hear the Ropers' claims alleging FCPA violations by Rhodes that occurred before the primary and runoff elections. See also Dunning v. Reynolds, 570 So. 2d 668 (Ala. 1990); Ex parte Skidmore, 277 Ala. 221, 168 So. 2d 483 (1964). In their materials filed with this Court, the Ropers suggest that Rhodes failed to file reports that the FCPA required to be filed before the general election, and they 1060331 See, e.g., Ropers' brief, p. 12 ("The Ropers sought a 8 judgment declaring that Rhodes violated the [FCPA] by failing to file the required reports in connection with the primary, runoff, and general election[s]."); Ropers' reply brief, p. 7 ("Rhodes ... failed on several occasions to file required reports under the [FCPA] ... before the general election ...."). Rhodes disputes the Ropers' claim. The record shows that Rhodes initially filed a waiver before the general election. That waiver stated he had not reached the filing threshold amount under the FCPA and therefore was not subject to the FCPA. See supra note 5. However, Rhodes testified at the hearing the day before the general election that he would file an "amended" report before the end of that day. The Ropers have not pointed to any evidence suggesting that Rhodes failed to follow through on his plan to file an "amended" report. 17 insist that that allegation entitles them to relief.8 However, at the time they filed their action on October 30, 2006, the Ropers could not have obtained relief under § 17- 22A-21 on a theory that Rhodes had failed to file a required report before the general election, because the general election had not yet occurred. At most, they could have alleged that Rhodes had failed to timely file an FCPA-required report. Under Davis, supra, the penalty imposed by § 17-22A- 21 does not apply to a candidate who has filed an untimely FCPA-required report, so long as that untimely report is filed before the election to which it applies. Instead, § 17-22A-21 applies only when a candidate does not file a report before 1060331 The Court noted in Bell v. Eagerton, 908 So. 2d 204, 206 9 (Ala. 2002): "[T]his Court identified an exception to § 17-15-6 in City of Adamsville [v. City of Birmingham, 495 So. 2d 642 (Ala. 1986)]: "'This Court has held that these provisions [in § 17-15-6], which formerly appeared in the 1940 Code as Tit. 17, § 235, do not prevent the enjoining of an election. Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So. 2d 475 (1947).'" 18 the election. In any event, even if Rhodes did not file an FCPA- required report before the general election, the trial court did not have jurisdiction over the matter because the Ropers did not pursue an election contest in accordance with Chapter 15 of Title 17, Ala. Code 1975. "Under the holding in Davis v. Reynolds,[592 So. 2d 546 (Ala. 1991)], a candidate who does not file a statement or report required by the FCPA before the election in question is ineligible to be elected to the office at that election. Any challenge to [Rhodes's] election on that basis should have been filed as an election contest pursuant to [Chapter 15 of Title 17, Ala. Code 1975]. ... [The Ropers] should have filed an election contest. [They] did not do so, and the circuit court did not have jurisdiction to entertain this action for [declaratory and injunctive] relief." Harvey, 715 So. 2d at 780-81.9 1060331 We recognized this exception to the jurisdictional limitation stated in former § 17-15-6 (currently § 17-16-44) in our recent decision in King v. Campbell, [Ms. 1060804, Nov. 30, 2007] ___ So. 2d ___, ___ (Ala. 2007), in which we quoted the following from Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925): "'The general rule without question is that courts of equity will not interfere by injunction with the holding of elections political in character, nor take jurisdiction of a contest after the election is held. But this court is committed to the proposition that equity will interfere by injunction to restrain elections not authorized by law. It will also restrain the usurpation of office, or the assumption of functions of office where no lawful office exists.'" ___ So. 2d at ___ (quoting Dennis, 212 Ala. at 452, 103 So. at 61-62 (emphasis added in Dennis)). Unlike King, which involved a claim that the entire election was void because the challenged office filled at that election was unconstitutional, the present case involves a claim that, because of alleged violations of the FCPA, a particular candidate was ineligible to be a candidate for an otherwise valid office. Moreover, the Ropers do not argue that the Dennis exception applies in the present case. 19 Conclusion The trial court did not have jurisdiction over the action. Thus, its judgment is void, and the Ropers' appeal is dismissed. APPEAL DISMISSED. Cobb, C.J., and Lyons, Woodall, Stuart, and Parker, JJ., 1060331 20 concur. See and Bolin, JJ., concur specially. Murdock, J., dissents. 1060331 21 SEE, Justice (concurring specially). I concur specially. I believe the main opinion does the best that can be done to carve a path through this part of the thicket of campaign law; however, I also believe today's decision will prove problematic in future election-law cases. I find it, to say the least, unsettling that an area of the law intended to regulate ordinary citizens as they seek to serve their state challenges the understanding of highly skilled lawyers. The various statutes sorely need to be harmonized. 1060331 When Title 17, Ala. Code 1975, was reorganized following 10 the enactment of Act No. 2006-570, Ala. Acts 2006, § 17-15-6 became § 17-16-44. See note 2 in the main opinion. 22 BOLIN, Justice (concurring specially). I concur fully with the main opinion. I write specially to emphasize the logical interplay of the various, and often disparate, election statutes that govern pre-election campaign financial disclosure, as well as jurisdiction to hear and determine disputes and also to provide available remedies for violations of those statutes. As the main opinion notes, the beginning point for discussion in this matter is § 17-15-6, Ala. Code 1975, which 10 prevents a court from exercising jurisdiction over any proceeding seeking to "ascertain[] the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void ...." (Emphasis added.) The statutory jurisdictional exception, i.e., "save as it 1060331 23 may be specially and specifically enumerated and set down by statute," is § 17-5-18 (formerly 17-22A-21), Ala. Code 1975, which states: "A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or local office who fails to file any statement or report required by this chapter shall be revoked." (Emphasis added.) It is clear from its language that § 17-5-18 is concerned solely with whether, depending upon a candidate's compliance with the pre-election reporting requirements of the FCPA, a certificate of election or nomination should properly be issued to that candidate in the event he or she wins the election, and if any such certificate has been issued and should not have been, whether that certificate should be revoked. Thus, the subject matter of § 17-5-18 falls squarely within the exception allowing a court to exercise jurisdiction if the procedure for doing so is "specifically enumerated and set down by statute," as provided in § 17-15-6. The questions that necessarily follow a finding of a 1060331 24 basis for subject-matter jurisdiction are: What remedy is available to challenge a certificate of election "sought to be inquired into or questioned," and what is the time limitation, if any, in which this remedy may be invoked? The answer to these questions does not lie within the FCPA; rather, it lies within election-contest provisions statutorily created for challenges in municipal, primary, and general elections. The main opinion correctly points out that § 17-13-70 et seq., Ala. Code 1975 (formerly § 17-16-70 et seq.), provides for a contest to the result of a primary election and is also applicable to a contest to the result of a "second primary election," commonly called a primary runoff election, as provided for in § 17-13-18(b). Section 17-13-71(2) specifically states that a ground for a primary-election contest is "[w]hen a person whose nomination is contested was not eligible to the office sought at the time of the declaration of nomination." This Court stated in Harvey v. City of Oneonta, 715 So. 2d 779, 780 (Ala. 1998), that "[u]nder the holding in Davis v. Reynolds, [592 So. 2d 546 (Ala. 1991)], a candidate who does not file a statement or report required by the FCPA is ineligible to be elected to the 1060331 I note that there may be practical differences between 11 municipal elections (as in Harvey), primary elections (as herein), and general elections. Of the three types of elections, only general elections permit write-in candidates. See §§ 17-6-27 and 17-7-21(b)(8) (formerly §§ 17-8-5 and 17- 24-3(b)(8)) for general elections and § 11-46-25(g) and (h) for mayor-council elections. Therefore, only in general elections are unopposed candidates required to have their names printed on election ballots and stand for election, because a write-in candidate could conceivably win the 25 office at the election." Although Harvey dealt with a municipal "election" rather than a "nomination" by a political party, the result concerning candidate eligibility is the same. Roper had an opportunity on both the day of the primary and the day of the primary runoff election to check the records in the office of the probate judge of Crenshaw County to ascertain whether Rhodes had fully complied with the reporting requirements of the FCPA and would have had 24 hours after the declaration of the results of each election in which to file a contest questioning Rhodes's "eligibil[ity] to the office sought at the time of the declaration of nomination," based upon Rhodes's alleged failure to comply with the reporting requirements of the FCPA and the attendant consequences of § 17-5-18. Therefore, an election contest provides the "where" and "when" remedy to pursue a failure-to- file transgression of § 17-5-18 of the FCPA.11 1060331 election by receiving more votes than did a party nominee or independent candidate whose name appears on the ballot. However, because there is no statutory provision for write-in voting in either municipal or primary elections, a candidate who is the only person who qualifies for mayor or a council position in a municipal election, or a candidate who is the sole qualifier for any elected position in a partisan primary election, is the automatic winner of the respective office or nomination and is not listed as a candidate on the ballot in the election. However, the issue of an unopposed candidate who violates a mandatory FCPA provision is not before the Court in this proceeding. 26 The FCPA was designed to remedy the inadequacies of prior campaign-disclosure laws contained in the Corrupt Practices Act, which it repealed. The public has the absolute right to know who made contributions to a candidate for any political office, as well as to whom the candidate has made expenditures, and the only way that an act requiring disclosure is meaningful is if such disclosures are made before an election. Candidates who are late in complying with the reporting requirements of §§ 17-5-4, 17-5-5, and 17-5-8 (formerly §§ 17-22A-4, 17-22A-5, and 17-22A-8), as opposed to candidates who are in total noncompliance by a failure to file, are subject to the criminal penalties now contained in § 17-17-35(b), and I note that § 17-17-35(e) imposes a two- year statute of limitations for the prosecution of violations 1060331 27 of these sections. In comparison, the penalty provided for in § 17-5-18, even though civil rather than criminal in nature, is more severe in its sanction, for the reason that the public has been totally deprived of this information by the candidate's failure to file before the day of the election. This sanction, the equivalent of an electoral death knell, strikes at the eligibility of the guilty party to receive a certificate of election and his or her privilege to take office and serve the public trust. Therefore, this issue should be decided early, as election-contest procedures so provide, to prevent an ineligible person from taking and holding office improperly for any length of time. 1060331 References to statutory provisions are to the statutes 12 in effect at the time of, and that govern, the acts and omissions at issue in this case. See note 2 in the main opinion. 28 MURDOCK, Justice (dissenting). The election-contest provisions that have been enacted by the Alabama Legislature comprise Chapter 15 of Title 17 of the Alabama Code. Section 17-22A-21, Ala. Code 1975, is part of 12 the separately enacted Fair Campaign Practices Act, comprising Chapter 22A of Title 17 of the Code. I am not persuaded that an action brought under § 17-22A-21 must be, or even can be, brought as an election contest under Chapter 15. First, I see nothing in § 17-22A-21 or any other provision of the Fair Campaign Practices Act that purports to require that an action brought thereunder must be brought under the provisions of our election-contest statutes. Section 17-22A-21 provides simply that "[a] certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked." 1060331 29 In adopting this provision, the legislature created duties on the part of election officials regarding the issuance and revocation of certificates of election under certain circumstances. Likewise, the legislature in adopting this provision created certain rights in the public, in individual electors, and in candidates. The statute appears to be enforceable by way of actions brought by or against those election officials, actions by the attorney general or other appropriate law-enforcement authorities, and actions by candidates and individual electors. The election-contest provisions of Chapter 15, however, expressly provide only that election contests will be filed by "electors." See Ala. Code 1975, § 17-15-20 (as to general elections) (now § 17-16-47); § 17-16-78(a) (as to primary elections) (now § 17-13-78). Also, as discussed in more detail hereinafter, the focus of the election-contest statutes is on challenges to certified election results, whereas § 17-22A-21 expressly contemplates an action to prevent the issuance of a certification in the event the candidate does not comply with the Fair Campaign Practices Act. 1060331 In Bostwick v. Harris, 421 So. 2d 492 (Ala. 1982), for 13 example, the issue presented on appeal was whether the circuit court had jurisdiction over an action seeking a declaratory judgment or, in the alternative, a writ of mandamus, and a request for injunctive relief to enforce the rights and duties created by Ala. Code 1975, § 17-16-21 (prohibiting the same person from being a candidate for more than one State office of the same classification). That statute, like § 17-22A-21, merely proscribes certain conduct and, in so doing, creates rights on the part of electors, such as those who brought the action; it contains no provision specifically authorizing the circuit court to entertain actions in equity to enforce those rights and proscriptions. Yet the Bostwick Court held that the circuit court had jurisdiction over the action as brought, while at the same time specifically stating that the matter 30 Again, § 17-22A-21 creates certain rights. For aught appearing from that statute, those rights and duties are subject to enforcement in the circuit courts of this State without the necessity of an additional statutory provision explicitly so providing. See generally Art. VI, § 142(b), Ala. Const. 1901 (Off. Recomp.) ("The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law."); King v. Campbell, [Ms. 1060804, Nov. 30, 2007] ___ So. 2d ___ (Ala. 2007); Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). In this regard, § 17-22A-21 is no different than countless other statutes that have been adopted by our legislature unaccompanied by any such explicit provision.13 1060331 before it was "not an election contest case." 421 So. 2d at 493. 31 Similarly, I see nothing in the election-contest provisions of Chapter 15 stating that an action brought pursuant to § 17-22A-21 must be brought as an election contest. Section 17-15-6 states: "No jurisdiction exists in or shall be exercised by any judge, court or officer exercising chancery powers to entertain any proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute; and any injunction, process or order from any judge, court or officer in the exercise of chancery powers, whereby the results of any election are sought to be inquired into, questioned or affected, or whereby any certificate of election is sought to be inquired into or questioned, save as may be specially and specifically enumerated and set down by statute, shall be null and void and shall not be enforced by any officer or obeyed by any person; and should any judge or other officer hereafter undertake to fine or in any wise deal with any person for disobeying any such prohibited injunction, process or order, such attempt shall be null and void, and an appeal shall lie forthwith therefrom to the supreme court then sitting, or next to sit, without bond, and such proceedings shall be suspended by force of such appeal; and the notice to be given of such appeal shall be 14 days." (Emphasis added.) 1060331 Three of the four cases relied upon by the Harvey Court 14 are distinguishable from the present case, either because they involved no "specially and specifically enumerated" statutory basis for the relief requested, see Ex parte Baxley, 496 So. 2d 688 (Ala. 1986), and Turner v. Cooper, 347 So. 2d 1339 (Ala. 1977), or because they involved a failure to exhaust administrative remedies, see Dunning v Reynolds, 570 So. 2d 668 (Ala. 1990). 32 Section 17-22A-21 does provide a "specially and specifically enumerated" statutory basis for preventing or causing the revocation of a certificate of election. I see nothing in § 17-5-6, however, that requires all causes of action "specially and specifically enumerated and set down by [a] statute" outside the election-contest statutes to be prosecuted under those election-contest statutes. In other words, § 17-15-6 appears to prohibit common-law actions regarding election matters by providing that only statutory actions will be allowed. Section 17-15-6 does not appear to mandate that all statutory actions necessarily must be brought as election contests. It is true that, in Harvey v. City of Oneonta, 715 So. 2d 779 (Ala. 1998), this Court stated that the contestant there, seeking to pursue a claim under the Fair Campaign Practices Act, should have filed an election contest. The Harvey Court cited no persuasive authority for this proposition, however.14 1060331 I also find questionable the holding in Davis that a 15 candidate who files the forms required by the Fair Campaign Practices Act before the election, even though he or she does not file them at the time required by the statute, is not subject to the sanctions prescribed in § 17-22A-21. The phrase "before the election" is nowhere found in § 17-22A-21. Less than five months before it released the decision in Davis v. Reynolds, this Court decided the case of Megginson v. Turner, 565 So. 2d 247 (Ala. 1990). Megginson, together with the several cases cited by it as authority, indicates that a failure to file a statement required by the Fair Campaign Practices Act within the time prescribed by that Act is tantamount to a failure to file under the Act. Further, I am at a loss as to how the filing of the required disclosure forms beyond the prescribed statutory deadline -- say, for example, late in the day on the eve of the election -- necessarily serves to "carry out the legislative intent of full disclosure before the election," as the majority in Davis concluded. 592 So. 2d at 555. See City of Talladega v. Pettus, 602 So. 2d 357, 362 (Ala. 1992) (Maddox, J., concurring specially, joined by Houston, J.) (reiterating his position in Davis v. Reynolds, 592 So. 2d at 556-59 (Maddox, J., dissenting), that the interpretation placed on the Fair Campaign Practices Act by the majority in Davis "essentially rewrote the penalty provisions of § 17-22A-21 and 17-22A-22" in a way that "'could completely frustrate the very purpose of the [Fair Campaign Practices Act],'" and expressing his hope that "[w]hen and if the Court is presented with a case in which it can reevaluate its 33 The case primarily relied upon in Harvey for the assertion that the challenge under the Fair Campaign Practices Act should have been filed as an election contest was Davis v. Reynolds, 592 So. 2d 546 (Ala. 1991). I find the reasoning of Davis v. Reynolds on this point to be unpersuasive.15 1060331 holding in Davis, ... it will do so"). 34 The Court in Davis reasoned as follows: When the legislature replaced the former Corrupt Practices Act (which previously had been set out in Chapter 22 of Title 17) with the Fair Campaign Practices Act, it did not amend the statute- of-limitations provision found in Chapter 15 of Title 17, specifically, § 17-15-22, for election contests. Because of this, according to the Davis Court, the legislature must have intended that the statute of limitations continued to apply to actions brought under the Fair Campaign Practices Act. 592 So. 2d at 554. The Court provided no authority, however, for its foundational assumption that the statute of limitations for election contests in Chapter 15 was ever in fact applicable to actions brought under the Corrupt Practices Act. The Court just asserted that it was. Nothing in the statute prescribes as much, and, as discussed hereinafter, the precedents of this Court before Davis stood for the contrary proposition. Early on in the history of the statutes at issue, the Supreme Court offered the following explanation in Beatty v. Hartwell, 217 Ala. 239, 240, 115 So. 164, 165 (1927): 1060331 35 "Section 545 of the Code of 1923[, a precursor to § 17-15-1 of the election-contest statutes,] sets forth the grounds upon which the office of probate judge may be contested, and ground (2), the only one having any bearing upon this case, says: 'When the person whose election is contested was not eligible thereto at the time of said election.' This means when the person was incompetent or disqualified at the time of the election, and not when he became disqualified because of illegal or improper conduct in and about the election. Finklea v. Farish, 160 Ala. 230, 49 So. 366 [(1909)]. In other words, a candidate may be eligible to the office the day of the election, but on that day may do some act in violation of the Corrupt Practice[s] Act as would disqualify him from assuming or holding the office. True, section 587 of the Code[, part of the Corrupt Practices Act,] provides that the conduct as set up in [the complaint] shall constitute a violation of the act and shall disqualify the candidate for said office. But this does not mean that it rendered him not eligible as a candidate on the day of the election within the meaning of ground (2) in section 545 of the Code. We therefore hold that [the complaint] failed to set up a ground for contest as provided by sections 1884 and 545 of the Code of 1923. If the contestee violated the Corrupt Practice[s] Act so as to become disqualified under [that Act], he should be removed by some method other than a contest of the election. Watters v. Lyons, 188 Ala. 52[5], 66 So. 436 [(1914)]." (Emphasis added.) As in Beatty, the only provision of the election-contest statutes that has any bearing on the question before us is § 17-15-1(2), which provides for an election contest "[w]hen the person whose election to office is contested was not 1060331 36 eligible thereto at the time of the election." Although Beatty was decided under the Corrupt Practices Act, the Court's analysis as to whether a candidate's misconduct under that Act goes to the candidate's "eligibility" to hold office within the meaning of the precursor to § 17-15-1(2) appears to apply with no less force to the Fair Campaign Practices Act. Bolstering the reasoning provided in Beatty is the fact that election contests under Chapter 15 of Title 17 are, by their nature, contemplated to be contests of certified election results. For example, § 17-15-1 begins by stating that "[t]he election of any person declared elected" to the certain offices may be contested. Section 17-22A-21, on the other hand, specifically provides that a violation of that provision of the Fair Campaign Practices Act will constitute a basis for preventing the issuance of a certificate of election to the candidate. The design of § 17-22A-21 to prevent even the issuance of a certificate of election implies a separate quo warranto action, mandamus petition, or "some method other than a contest of the election," as concluded in Beatty. 1060331 I also note that the parties have not argued or briefed 16 to this Court the issue whether we should overturn Davis. 37 Because I am not persuaded of the necessity of bringing an action under § 17-22A-21 as an election contest, I respectfully must dissent from the main opinion's dismissal of the appeal in this case. I would add, however, that the practical outcome achieved by the trial court's judgment and by the main opinion on appeal would appear to be just. The Ropers' challenge to Rhodes's certification as the nominee of the Democratic party for the office of Crenshaw County Board of Education member was filed over two months after the primary election and only eight days before the general election. This delay, coupled with the apparent prejudice to the parties and to the orderly conduct of the general election itself that would result if the primary election were to be undone at such a late date, compels a ruling in Rhodes's favor on the ground of laches. 16	January 11, 2008
11b3cb04-3210-44a7-92c7-54ec5efed794	Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Rufo Ruiz Martinez v. State of Alabama)	N/A	1061108	Alabama	Alabama Supreme Court	REL:2/15/2008 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, 2007-2008 ____________________ 1061108 ____________________ Ex parte State of Alabama PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Rufo Ruiz Martinez v. State of Alabama) (Madison Circuit Court, CC-05-4898, CC-05-4899; CC-05-4900; CC-05-4901; and CC-05-4902; Court of Criminal Appeals, CR-05-1669) SMITH, Justice. The petition for the writ of certiorari is denied. See Ex parte Gillentine, [Ms. 1051370, September 7, 2007] ___ So. 1061108 2 2d ___, ___ (Ala. 2007); Ex parte Dorsey, 881 So. 2d 533, 538- 39 (Ala. 2003); and Jeffers v. United States, 432 U.S. 137, 150 (1977). WRIT DENIED. See, Woodall, Parker, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 15, 2008
54e6b4e4-55f1-4b4d-8d28-933fd785fdd9	Ex parte Theron Glen Lindsey. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: City of Decatur v.Theron Glen Lindsey)	N/A	1061673	Alabama	Alabama Supreme Court	REL: 02/15/2008 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, 2007-2008 ____________________ 1061673 ____________________ Ex parte Theron Glen Lindsey PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: City of Decatur v. Theron Glen Lindsey) (Morgan Circuit Court, CC-06-555; Court of Criminal Appeals, CR-06-0806) STUART, Justice. The petition for the writ of certiorari is quashed. 1061673 2 In quashing 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 Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT QUASHED. Lyons, Smith, Bolin, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 15, 2008
bbea1e84-a5f0-4a79-ae7b-2a33c400a471	James Slack v. Christopher Stream	N/A	1060007	Alabama	Alabama Supreme Court	Rel 01/18/2008 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, 2007-2008 _________________________ 1060007 _________________________ James Slack v. Christopher Stream Appeal from Jefferson Circuit Court (CV-04-3931) COBB, Chief Justice. James Slack, the defendant in an action in the Jefferson Circuit Court alleging against Slack defamation, invasion of privacy, and intentional interference with a business 1060007 2 contract, appeals from a judgment in favor of Christopher Stream, the plaintiff. We affirm. I. Factual Background and Procedural History The testimony at trial reveals the following facts. In the fall of 2002, Stream accepted an appointment as assistant professor in the Department of Government at the University of Alabama at Birmingham ("UAB"). During the summer of 2003, the Young Men's Business Club of Birmingham invited Stream to speak about Amendment One, a proposed constitutional amendment placed on the ballot in a 2003 special election that would have significantly restructured the sources of revenue for Alabama. Stream asked his graduate assistant, Vladimir Shilkrot, to assist him in finding newspaper articles concerning Amendment One. Stream used these newspaper articles, as well as other articles and research he had compiled, to compose his notes for the speech. Soon after Stream presented the speech, Michael Howell- Moroney, also an assistant professor of government at UAB, approached Stream about coauthoring an article regarding Amendment One for submission to a scholarly journal. The article, Evidence of Public Regardingness: Doing the Right 1060007 A referee is a scholar in a specified field who 1 anonymously reviews a submitted article for a journal and provides feedback to the editor. 3 Thing in the Alabama Tax Vote? was submitted to the Journal of Politics ("the JOP"). On December 17, 2003, William G. Jacoby, the editor of the JOP, e-mailed Stream, informing him that the article was being rejected for publication based on the reviews of two referees. In his e-mail, Jacoby 1 referenced issues raised by the two referees such as "the sizable literature of self-interest effects" that were not referenced in the article, the model specification, and the use of aggregate data to test hypotheses about individual behavior. Jacoby, however, encouraged Stream and Howell- Moroney to revise their article using the referee's critiques and to submit the article to a more subject-focused journal. Attached to Jacoby's e-mail were the comments from the two referees, designated as "reviewer 1" and "reviewer 2." Although the reviewer's comments concerning the alleged plagiarism were not specifically referenced in Jacoby's e- mail, reviewer 1 stated in his comments: "The quality of writing is also problematic, in that I found several instances of plagiarism in the manuscript with fairly modest effort (I suspect 1060007 4 there are many more cases in the paper as well). This is completely unacceptable for a manuscript submitted for publication. If one of my students had turned in this paper to me, he or she would have faced serious penalties in the university's honor court." (Emphasis in original.) Reviewer 1 quoted three sources he found had been plagiarized: an Associated Press article by Phillip Rawls, an article by Thomas Spencer, and an article from the Clarke County Democrat, a local newspaper in Grove Hill. Stream forwarded Jacoby's e-mail to Howell-Moroney on the same day he received it. After reading the comments of reviewer 1, Howell-Moroney telephoned Stream and learned that Stream had not read the reviewers' comments. Upon learning that one of the reviewers had found incidences of plagiarism in the article, Stream testified that he was "stunned," "embarrassed," and "ashamed." Stream claims that during the conversation with Howell-Moroney, while thinking aloud he stated that he wondered if the plagiarized material could have come from materials provided by Shilkrot. That evening, Stream e-mailed Howell-Moroney apologizing for his "laziness." In the e-mail, Stream wrote: "It's no excuse, but I've had several career decisions to make this semester and the stress 1060007 According to Howell-Moroney, he had discussed the 2 plagiarism situation with his brother, a theologian, and decided "to take the path of grace and mercy with Dr. Stream" by not reporting the findings of reviewer 1 to Slack, chairman of the Department of Government at UAB. 5 has gotten to me. I had hoped to ease my stress by taking advantage of my grad assistant, but that's no excuse. It was still my responsibility to check what he had given me." Howell-Moroney responded to Stream's e-mail, writing: "I appreciate your apology, but don't hassle it. Let's just tighten that puppy up and send it back out." 2 By the 2003-2004 academic year, Stream had become dissatisfied at UAB and decided to look for other employment. On January 26, 2004, the University of Nevada, Las Vegas ("UNLV"), extended an offer to Stream to become assistant professor in its Department of Public Administration, and Stream accepted UNLV's offer on January 30, 2004, to begin teaching there in the summer of 2004. Howell-Moroney learned on or about February 16, 2004, of Stream's planned departure from UAB and decided at that time that he would inform Slack of reviewer 1's findings of plagiarism. According to Howell- Moroney, he decided to inform Slack of reviewer 1's findings because he believed that he could be accused of plagiarism if 1060007 UAB's Department of Government falls within the ambit of 3 the School of Social and Behavioral Sciences. 6 it was ever disclosed that the reviewer found incidences of plagiarism in the manuscript. Upon learning of reviewer 1's finding of plagiarism, Slack asked for and received a copy of the e-mail from Jacoby and a copy of the manuscript. After reviewing the manuscript, Jacoby's e-mail to Stream, and the reviewers' comments, Slack reviewed the university handbook, but he was unable to find a policy or procedure dealing with plagiarism by a member of the faculty. According to Slack, he met with Tennant McWilliams, dean of UAB's School of Social and Behavioral Sciences, before March 3 1, 2004, regarding the plagiarism incident, and Dean McWilliams did not disclose to him during that meeting that a policy existed concerning plagiarism by a faculty member. Dean McWilliams, however, does not recall such a meeting. Purportedly unable to find a policy regarding plagiarism by a faculty member, Slack conducted research on the Internet and found, among other items, a "Statement on Plagiarism" approved by the American Association of University Professors. The "Statement on Plagiarism" stated, in part: 1060007 7 "Any discovery of suspected plagiarism should be brought at once to the attention of the affected parties and, as appropriate, to the profession at large through proper and effective channels –- typically through reviews in or communications to relevant scholarly journals." Slack contacted Jacoby and had tenured professors in the Department of Government review the manuscript. Slack also telephoned Shilkrot because Howell-Moroney had stated that Stream mentioned Shilkrot and because Shilkrot was referenced in the e-mail exchange between Howell-Moroney and Stream. In an e-mail from Shilkrot to Slack following their telephone conversation, Shilkrot said that he had summarized for Stream five articles for a political science publication that had been submitted to Stream for peer review as a time-saving measure for Stream. On March 17, 2004, Slack called Stream into his office and asked Stream if he was "associated" with a claim of plagiarism. Stream responded that he was not. Slack then asked Stream if he had submitted a manuscript to the JOP that had been rejected because of plagiarism. Stream responded that he and Howell-Moroney had submitted an article to the JOP and that the article had been rejected but that it had not been rejected for plagiarism. Stream alleges that he ended 1060007 8 the conversation with Slack so he could discuss the matter with Howell-Moroney to "put things in context." On March 17, 2004, in response to numerous requests from Slack, Jacoby sent Slack a memorandum explaining that, besides the issues mentioned in Jacoby's e-mail to Stream of December 17, 2003, Stream and Howell-Moroney's manuscript "probably would have been rejected anyway" because of the plagiarism found by reviewer 1. On March 18, 2004, Slack wrote the following letter to Stream: "This letter serves as a REPRIMAND for UNETHICAL SCHOLARLY BEHAVIOR. "(1) During Fall Semester 2003, you and a co-author submitted a manuscript, entitled 'Evidence of Public Regardingness: Doing the Right Thing in the Alabama Tax Vote,' to the Journal of Politics (JOP manuscript 111803A). "(2) During Fall Semester 2003, you received a copy of the reviewers' comments on the paper. "(3) Reviewer number 1 ... states: "'The quality of writing is also problematic, in that I found several instances of plagiarism in the manuscript with fairly modest effort (I suspect there 1060007 9 are many more cases in the paper as well). This is completely unacceptable for a manuscript submitted for publication. If one of my students had turned in this paper to me, he or she would have faced serious penalties in the university's honor court.' "(4) Reviewer number 1 provides three examples of plagiarism.... "(5) According to the co-author, you admitted that the plagiarization occurred in the manuscript sections for which you had writing responsibility. "(6) The co-authored [sic] provides a 17 December 2003 e-mail ... from you to verify that you took responsibility for the plagiarized sections of the manuscript. "(7) In the 17 December 2003 e-mail, you place blame for the plagiarism on your MPA graduate assistant. "(8) However, in a 25 February e-mail ..., the MPA graduate assistant asserts the following: "• That you instructed the graduate assistant to collect summaries for the manuscript. "• That you did not make him aware, nor get his permission for quoting his own intellectual property verbatim in your manuscript. 1060007 The allegations regarding Stream's use of a graduate 4 student's work as his own in reviewing manuscripts when Stream was a referee for a journal editor appear to be false. Shilkrot stated that the manuscripts he summarized concerned health-care issues. According to Stream, he served as a referee for those manuscripts in 2001 when he was an assistant professor at the University of Idaho. Shilkrot was a new graduate assistant for Stream, and Stream was unaware of Shilkrot's writing and analytical abilities. Thus, according to Stream, he asked Shilkrot to summarize the manuscripts Stream had already reviewed for the journal in order to evaluate Shilkrot's writing and analytical abilities. In order not to insult Shilkrot's intellect, Stream told him that his summarizing the manuscripts would save Stream time. 10 "• (As a relevant aside, the graduate assistant also asserts that you instructed him to read and summarize five (5) manuscripts sent to you by a reputable scholarly journal(s) seeking your expert opinion and not the opinion of someone with a bachelor's degree, in this case, the MPA graduate assistant. According to the graduate assistant, this was done as a 'time saving measure' for yourself.)[4] "(9) Furthermore, the passages in question, those to which reviewer number 1 calls attention, are without citation. Hence, even if the MPA graduate assistant provided you with satisfactory paraphrases, there is still no citation of the source of those paraphrases. "(10) On 17 March, I talked with you about the issue. You denied knowing anything about the word 'plagiarism' being included in a review of a 1060007 11 manuscript submitted to JOP. You initially offered to let me see the reviews but, once I accepted the offer, you said that you had not received a hard copy from JOP and you had erased the electronic version. "(11) On 17 March you called the co-author to discuss our conversation. The co- author has sent me an e-mail ... outlining that conversation in which he heard you admit that you intentionally lied to me. "(12) On 17 March I received an e-mail from the editor of JOP ..., in which he verifies that plagiarism did occur and that this is 'reprehensible and unethical behavior.' "It matters not whether you plagiarized as a result of poorly paraphrased passages submitted by a third party (in this case, an MPA graduate student), or whether you plagiarized the actual words of this same third party who never gave you permission to use those words as your own. You did not cite the original source (even if the student would have supplied an acceptable paraphrase), and you did not even officially acknowledge in the manuscript that you were using the words crafted by that student. "It matters not because plagiarism of any flavor constitutes intellectual theft, instills doubt in our discipline's ability to self-govern scholarship, and ultimately constitutes the rape of the academy. "What journal editors decide to do with you –- for both plagiarism and passing off to persons with bachelor degrees manuscripts which were written in earnest, sent to reputable scholarly outlets in earnest, and then entrusted to you for deliberation 1060007 12 –- is beyond my realm. But what is equally telling is this: I have taken the time, as well as your co- author, to apologize to the Journal of Politics. As of this date, you have not. "What your new employer does with you is also none of my business. Whether the University of Nevada at Las Vegas considers your actions to constitute an academic misdemeanor or a capital offense will ultimately reflect on its faculty and the value that its faculty and administration places on scholarly integrity and intellectual honesty. "But as far as this department is concerned, had you not resigned your tenure-track faculty position and chose to remain at UAB, a strong recommendation to central administration would have been forthcoming for the issuance of a termination notice. "Your behavior is deeply troubling, not just because of its potential harm to the reputation of the Department of Government at UAB, but also because of the actual damage it inflicts upon the academy and the fundamental processes in which the academy invests to guarantee honesty and quality in the discovery and dissemination of new knowledge in our discipline. "It is for the reasons stated above that I render this reprimand." (Capitalization and emphasis in original.) Slack placed a copy of the letter in Stream's office mailbox, mailed a copy of the letter to Stream via first-class mail, and had his secretary escort him to Stream's office, where Slack watched as she taped a copy of the letter to Stream's chair. Attached 1060007 13 to the letter were various documents and correspondence referenced in the letter. Stream was not in his office on March 18, 2004, to receive the letter. Dean McWilliams recalls meeting Slack in the hallway at UAB on the morning of March 18, 2004. Slack mentioned to Dean McWilliams that he had serious concerns about a case of plagiarism by Stream. Dean McWilliams suggested the two meet that afternoon to discuss the matter. Dean McWilliams then went into a meeting, and when he emerged from the meeting he found the letter of reprimand and its attachments sitting on his secretary's desk. Dean McWilliams became concerned because the attachments indicated that the letter of reprimand had been sent to various universities and journals. Dean McWilliams telephoned the office of general counsel for UAB and was told not to discuss the Stream situation with Slack. The following week during an alumni dinner in Georgetown, District of Columbia, Dean McWilliams had a discussion with Slack regarding Stream but avoided any conversation about UAB's written policy concerning plagiarism based on the advice of general counsel. He avoided such conversation based on his understanding that Slack had acted outside the scope of his 1060007 14 authority by issuing the letter of reprimand and disseminating it to individuals outside UAB. On the morning of March 18, 2004, Slack telephoned Lee Bernick, chairman of the Public Administration Department at UNLV, at his home between 6:00 a.m. and 6:30 a.m. Slack introduced himself to Bernick and asked Bernick if he knew he was hiring a plagiarist. Bernick stated that he needed more information, and Slack informed Bernick that he would be sending information via facsimile. When Bernick arrived at his office, he found a copy of Jacoby's memorandum of March 17, 2004, as well as reviewer 1's comments. Later in the morning Bernick received an e-mail from Slack requesting confirmation that he had received the facsimile. Bernick replied via e-mail, "I did receive the information. Thank you for the material." Slack replied to that e-mail on the morning of March 19, stating, "FYI. Here is the letter that [Stream] is receiving today in the mail." Attached was the letter of reprimand. Slack then forwarded to Bernick two e- mails Stream had sent Slack requesting that Stream and Slack meet. Bernick testified that he felt that by referencing UNLV 1060007 15 in the letter Slack "was trying to intimidate the university, UNLV, into not hiring Dr. Stream." Unbeknownst to Stream, Slack also sent copies of the letter of reprimand to the chair of the Department of Government at Florida State University (the institution that had awarded Stream his Ph.D. degree), as well as to the editors of at least eight scholarly journals that had published articles authored by faculty of UAB's Department of Government. In his cover letter to the chairman of the Department of Government at Florida State, Slack wrote: "[Y]ou should know that he is a graduate of your doctoral program. While I realize that one bad apple does not spoil the barrel, I'm sure you understand that the product of one's program influences the opinion of others about that program." In his cover letter to the Journal of Public Affairs Education, Slack wrote: "Whether or not you want this person to affiliate in any way with your journal is your choice." In his cover letter to the editor of the American Review of Public Administration, Slack wrote: "Whether you want this person to affiliate with the American Review of Public Administration is your choice, but I submit this letter of reprimand to you." 1060007 16 In his cover letter to the editor of the Public Administration Review, Slack wrote: "Whether or not you want this person to affiliate in any way with PAR is naturally your choice, but you need to know this." Slack sent similar cover letters to the Urban Affairs Review and the Journal of Urban Affairs. In all the cover letters, Slack stated: ""In fact finding, I discovered that he also let an unqualified third party review and summarize manuscripts for him that were specifically sent to him as an external referee by a reputable journal." Upon receiving the letter of reprimand, Bernick informed Martha Watson, dean of UNLV's College of Urban Affairs, of the allegations against Stream. Watson and Bernick telephoned Stream and asked him to come to Las Vegas so they could discuss the allegations. Stream met with Watson and Bernick on March 30, 2004. On March 31, 2004, Watson wrote a memorandum to UNLV's president and provost explaining the investigative process and her findings. Watson concluded that the incidences of plagiarism in the manuscript constituted sloppy scholarship and that she found no evidence that Stream intended to plagiarize. Thus, she proposed that UNLV not rescind its job offer to Stream. In doing so, Watson wrote: 1060007 17 "Further, I am concerned about the process whereby we became aware of this problem, which resembles a systematic effort to ruin a career. Certainly, a letter of reprimand was warranted; providing us with unsolicited copies of this confidential personnel document and writing to the institutions which granted the Ph.D. seems excessive. Finally and most importantly, we have been given confidential personnel documents (e.g., the letter of reprimand) which we did not request. Our use of that material to terminate our contract with Stream raises ethical and perhaps has legal implications." UNLV's president eventually approved Watson's recommendation, and Stream was allowed to join the UNLV faculty for the fall semester 2004. However, Bernick had initially offered to allow Stream to teach two summer courses at UNLV in 2004 for which he would have been paid between $10,000 and $12,000. Because of the ongoing investigation, Stream was not permitted to teach these classes. The faculty of the Department of Government held a meeting on April 2, 2004, regarding plagiarism. According to Angela Lewis, a member of the faculty in the Department of Government, during the April 2 meeting Slack told the faculty that Stream had plagiarized in a manuscript submitted to the JOP. Lewis also alleged that Slack had told her that Stream had misused a graduate assistant. Lewis further stated that after learning of the charges against Stream, she was afraid 1060007 18 to be associated with Stream during the remainder of his tenure at UAB. In fact, she considered Stream to be "an academic leper." According to Lewis: "Well, if a junior faculty member commits plagiarism and you're associated with that person, it can harm your career. If you're associated with them, either publishing with them or doing any kind of work with them, I mean, it can harm my reputation in my field and my career and my reputation at UAB." Gary Mans, director of public relations at UAB and a former graduate student in the Department of Government, recalled receiving a telephone call from Slack in which Slack stated that he had information that Stream had possibly committed plagiarism and that he was going to see to it that Stream never worked in academia again. Slack, however, denies ever having such a conversation with Mans. Rachel Harris, who was a student in UAB's Department of Government during the spring semester 2004, had a conversation with Slack regarding Stream's departure from UAB. According to Harris, she understood from her conversation with Slack that Stream was being forced out of UAB because of plagiarism. Harris also stated that "one of the biggest things [she] heard" among students in UAB's Department of Government during the spring semester 2004 was about Stream and plagiarism. 1060007 19 After learning that Slack had disseminated the letter of reprimand to UNLV, Florida State, and various journals, Stream wrote a letter to those individuals who had received a copy of the reprimand letter, explaining that the allegations contained in the letter were untrue, that Slack had not followed due process in investigating the allegations, and that UAB was investigating whether Slack had violated UAB policy in sending the letter of reprimand to them. Although Slack stated that he was unable to find a policy applicable to plagiarism by a faculty member in the faculty handbook, the handbook contained a "Policy Concerning the Maintenance of High Ethical Standards in Research and Other Scholarly Activities" ("policy 22"). Policy 22 contains the following pertinent provisions: "Any UAB employee (including, but not limited to, regular and adjunct faculty, fellows, technicians, and student employees) or any UAB student who has reason to suspect any other employee or student of misconduct with regard to the conducting or reporting of research has the responsibility of following up these suspicions in accordance with the procedures outlined below. For purposes of this policy, 'misconduct' means fabrication, falsification, plagiarism, or other practices which seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research. It does not include honest error or 1060007 20 honest differences in interpretations or judgments of data. ".... "It is the responsibility of student employees, trainees, fellows, faculty members, staff members, or other employees who become aware of misconduct in research and other scholarly activities to report such misconduct to one of the following: (a) their department/unit head, (b) the dean of the school in which their department/unit is located, or (c) the UAB Scientific Integrity Officer. In the case of graduate students or of trainees at any level, such evidence also may be reported to the Dean of the Graduate School. "The individual receiving such evidence of misconduct must immediately report such evidence and the allegation of misconduct to the UAB Scientific Integrity Officer, the department/unit head and the dean of the unit in which the alleged misconduct occurred, and the Provost. If the UAB Scientific Integrity Officer determines that the allegation warrants initiation of the inquiry process, the inquiry shall be initiated immediately, and the Office of Counsel shall be informed. "Allegations of this nature are very serious matters, and all parties involved should take measures to assure that the positions and reputations of all individuals named in such allegations and all individuals who in good faith report apparent misconduct are protected. Details of the charge, the name of the accused, the identity of the individual bringing suspected fraud, and all other information about the case shall be kept confidential as far as possible, compatible with investigating the case. Revealing confidential information to those not involved in the investigation shall itself be considered misconduct." 1060007 Subsequent to the actions made the subject of this case 5 but before trial, Capilouto was appointed provost of UAB. 21 Slack contends that he was not aware of policy 22 until UAB's provost referenced it in communications to Slack on April 23, 2004. On April 27, 2004, then acting UAB Provost Eli Capilouto5 sent a memorandum to the provost of UNLV, stating: "I understand you were forwarded a copy of a letter of 'reprimand' dated March 18, 2004 from Dr. James Slack to Dr. Christopher Stream. We are reviewing the facts of this matter. The University of Alabama at Birmingham has not made a finding of wrongdoing. Any suggestion to the contrary by Dr. Slack was not the result of an inquiry by the University into the matter and was, at best, premature." UAB initiated an investigation in accordance with policy 22 as to both the claim of plagiarism against Stream and Slack's actions in writing and disseminating the letter of reprimand. The committee assembled to conduct the investigation questioned all participants in the matter. Immediately before Slack's meeting with the committee, Dean McWilliams required Slack to tender his resignation as chairman of the Department of Government. The investigative committee concluded that although the manuscript for the article contained verbatim quotes from 1060007 22 published newspaper articles without attribution, there were mitigating circumstances surrounding the writing of the manuscript. The committee also concluded that Slack, as chairman of the department, should have been aware of policy 22 or should have at least sought guidance from Dean McWilliams and the Scientific Integrity Officer before writing a letter of reprimand without investigating the allegations and then circulating the letter of reprimand to uninterested parties. Provost Capilouto stated that he found Slack's dissemination of the letter of reprimand beyond UAB to be unacceptable. He also called Slack's actions "callously precipitous." Provost Capilouto also ordered Slack to stop distributing information about Stream. According to Provost Capilouto, Slack committed himself to working with Stream in making the appropriate retractions. However, Slack never made the retractions. On June 28, 2004, Stream sued Slack and UAB in the Jefferson Circuit Court. Stream alleged that Slack was guilty of defamation, invasion of privacy, and intentional 1060007 Stream filed a second amended complaint adding claims 6 alleging negligence and/or wantonness and the tort of outrage against Slack. However, it appears from the record that Stream failed to pursue these claims during the course of litigation. 23 interference with a business contract. On August 3, 2005, 6 Slack filed a counterclaim, alleging that Stream had defamed him by disseminating to journal editors information that Slack was being investigated by UAB for his actions relating to the letter of reprimand; Slack also filed a cross-claim against UAB, alleging that UAB had denied him due process by forcing him to resign as chairman of the Department of Government and that UAB had retaliated against him by forcing his resignation as chairman of the department in response to the exercise of his First Amendment right to free speech. The trial court eventually dismissed all claims and cross-claims against UAB based on the doctrine of sovereign immunity. Slack moved for a summary judgment in his favor based on the doctrine of State-agent immunity, which the trial court denied. On June 14, 2006, the jury returned a verdict in favor of Stream on Stream's claims of defamation, invasion of privacy, and intentional interference with a business contract against Slack, awarding Stream $212,000 in compensatory damages and 1060007 24 $450,000 in punitive damages. The jury also returned a verdict in favor of Stream on Slack's counterclaim. A judgment was entered by the trial court on the jury's verdict. On July 14, 2006, Slack filed a motion for a new trial as well as a renewed motion for a judgment as a matter of law or, in the alternative, for a remittitur; the trial court denied those motions on August 14, 2006. Slack appeals the judgment only as to Stream's claims against him. II. Standard of Review "This Court conducts a de novo review of rulings on a motion for a summary judgment and on a motion for a judgment as a matter of law. Bailey v. Faulkner, 940 So. 2d 247, 249 (Ala. 2006). In Butler v. Town of Argo, 871 So. 2d 1, 11-12 (Ala. 2003), we recognized: "'"'[T]his Court uses the same standard the trial court used initially in granting or denying a [judgment as a matter of law]. 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 1060007 25 order to withstand a motion for a [judgment as a matter of law]. 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 [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. 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).' "'"...." "'I.C.U. Investigations, Inc. v. Jones, 780 So. 2d 685, 688 (Ala. 2000).' "With regard to review of a trial court's ruling on a motion for a new trial, this Court has stated: "'"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 1060007 26 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."' "Curtis v. Faulkner Univ., 575 So. 2d 1064, 1066 (Ala. 1991) (quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989))." Cottrell v. National Collegiate Athletic Ass'n, [Ms. 1041858, June 1, 2007] ___ So. 2d ___, ___ (Ala. 2007). III. Analysis On appeal, Slack makes three arguments: (1) that he is entitled to State-agent immunity, (2) that the award of compensatory damages is not supported by the testimony and evidence, and (3) that the award of punitive damages is not supported by the testimony and evidence. A. State-Agent Immunity Slack asks this Court to extend the doctrine of State- agent immunity to include State agents who essentially fail to discharge their duties as required by rules or regulations because they are ignorant of those rules and regulations. We decline to do so. "'Since [Ex parte] Cranman[, 792 So. 2d 392 (Ala. 2000)], we analyze immunity issues in terms of 1060007 27 "State-agent" immunity rather than "under the dichotomy of ministerial versus discretionary functions."' Howard v. City of Atmore, 887 So. 2d 201, 203 (Ala. 2003)(quoting Ex parte Hudson, 866 So. 2d 1115, 1117 (Ala. 2003)). In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), a plurality of 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 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 1060007 28 "'(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 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 (some emphasis added [in Feagins]). In Ex parte Butts, 775 So. 2d 173 (Ala. 2000), a majority of this Court adopted the Cranman restatement of the rule governing State-agent immunity. "'We have established a "burden- shifting" process when a party raises the defense of State-agent immunity. Ex parte Wood, 852 So. 2d 705 (Ala. 2002). In order to claim State-agent immunity, the 1060007 29 [defendants] bear the burden of demonstrating that [the plaintiff's] claims arise from a function that would entitle them to immunity. Wood, 852 So. 2d at 709; Ryan v. Hayes, 831 So. 2d 21 (Ala. 2002). If the [defendants] make such a showing, the burden then shifts to [the plaintiff], who, in order to deny the [defendants] immunity from suit, must establish that the [defendants] acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. 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." Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000).' "Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)." Feagins v. Waddy, [Ms. 1051349, August 3, 2007] ___ So. 2d ___, ___ (Ala. 2007). Slack contends that his actions relating to reprimanding Stream met at least four of the criteria set forth in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). Specifically, he argues that, in reprimanding Stream, he (1) was formulating a plan or policy for handling the charges of plagiarism; (2) was exercising his judgment in the administration of the Department of Government of UAB, a state-supported institution of higher learning; (3) was engaging in conduct necessary to 1060007 30 supervise personnel in the department of which he was the chairman; and (4) was attempting to discharge his duties as chairman of the Department of Government. Assuming, without holding, that Slack has met his burden of "demonstrating that [his] claims arise from a function that would entitle them to immunity," Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003), thus shifting the burden to Stream to prove that Slack is not immune from suit, sufficient evidence exists for the trial court's holding that Slack is not entitled to State-agent immunity. This Court has previously held that "[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)). It is undisputed that Slack failed to abide by the detailed guidelines for investigating a claim of plagiarism by a member of the faculty provided for in policy 22, which also included a checklist for the person investigating the plagiarism. Slack, however, argues that this Court should create an exception to this rule of law 1060007 31 because, he says, he searched for a policy in the university handbook and was unable to find a policy applicable to Stream's situation. In support of his argument, Slack cites this Court's recent decisions in Ex parte Reynolds, 946 So. 2d 450 (Ala. 2006), and Ex parte Randall, [Ms. 1050203, April 27, 2007] ___ So. 2d ___ (Ala. 2007), in which, he contends, this Court has held "that a defendant's failure to follow a set of rules does not automatically remove the cloak of state-agent immunity from a defendant state-agent." (Slack's brief, p. 39.) Both Reynolds and Randall, however, are distinguishable. In Reynolds, the plaintiff, who was injured in an automobile accident, alleged that the accident resulted when the tires of his vehicle left the roadway and he was unable to steer the vehicle back onto the roadway. The plaintiff alleged that his inability to steer the vehicle back on the roadway was caused by the front right tire of his automobile entering a "channel" in the paved surface. The plaintiff sued the district engineer of the Alabama Department of Transportation ("ALDOT") as well as ALDOT's district maintenance superintendent, alleging that the two had negligently, wantonly, willfully, maliciously, fraudulently, 1060007 32 and in bad faith failed to inspect, maintain, and repair the area of the roadway where the accident occurred. The evidence indicated that both the district engineer and maintenance superintendent inspected highways in the district, determined whether maintenance and repair were necessary, and supervised the roadwork. Both men would prioritize and rank projects based on the degree of the danger a condition created, the type of work needed, the availability of labor resources, and the particular road. Both men used ALDOT's "Maintenance Manual" and "Field Operations Manual" in performing their duties. The maintenance supervisor, however, argued that the manuals often did not provide explicit guidelines for particular situations and that the exercise of judgment was often required. The plaintiff, however, argued that the district engineer and maintenance supervisor were negligent in inspecting the road in question because the former acting district engineer testified via affidavit that he had observed numerous places on the road where the pavement and shoulder had been damaged by large trucks getting too close to the shoulder of the road. He also testified via affidavit that the road contained areas where the shoulder was higher than 1060007 33 the roadway as well as areas where the shoulder was lower than the roadway. In issuing the writ of mandamus, this Court held that although the ALDOT manuals set forth criteria by which decisions were made and set out duties, the manuals gave the district engineer and district maintenance supervisor a significant degree of discretion in inspecting the highways, formulating plans and policies, and exercising judgment in allocating resources for inspections. Thus, by exercising judgment in actually undertaking to accomplish the necessary maintenance and repairs, the district engineer and district maintenance supervisor were entitled to State-agent immunity. Unlike Reynolds, where the question presented was whether ALDOT's rules and regulations allowed its employees to exercise their judgment and discretion, this Court is now faced with a situation where Slack completely disregarded UAB's written policy. In Ex parte Randall, the parents of an infant who died at a day-care facility filed a wrongful-death and fraud action against a social worker with the Department of Human Resources ("DHR"). The parents alleged that the social worker failed to 1060007 34 detect, when completing licensing-evaluation forms during an in-home inspection of the day-care facility, that the day-care provider was administering medication to children without proper documentation from the parents and failed to detect that the children at the day-care facility were improperly supervised. The social worker moved for a summary judgment, asserting State-agent immunity as a defense. The trial court denied the motion, and the social worker petitioned this Court for a writ of mandamus. In issuing the writ, this Court held that the social worker was entitled to State-agent immunity as to the parents' allegations regarding administering medication to children because the social worker's behavior in failing to detect that the day-care provider was administering medication to children without the proper written documentation from their parents was only negligent and/or wanton. Slack's argument devolves to an assertion that he should be cloaked in State-agent immunity because the dean of his school and the provost of the university did not instruct him as to the existence of policy 22, that he made an effort to find an applicable policy in the UAB handbook, and that only when he was unable to find a policy he thought applied did he 1060007 35 promulgate his own procedure. This argument neglects the fact that Slack received a copy of the UAB handbook in 1999 when he accepted the position of chairman of the Department of Government, approximately five years before the incidents underlying this action occurred, and that as chairman of the department he had an obligation to be familiar with UAB's policies and procedures as determined by the UAB committee that investigated whether Slack violated policy 22. The foreseeable consequences of a rule that would cloak a State agent with State-agent immunity when he or she acts without knowledge of a rule or regulation are undesirable. Such a rule would encourage nefarious individuals with knowledge of a rule or regulation that they do not wish to follow to violate the rule and regulation, only to later claim ignorance of the rule or regulation. Our courts should not be burdened with the duty of determining whether an individual was truly ignorant of a rule or regulation. Thus, we decline to extend State-agent immunity to individuals who are ignorant of the rules and regulations of the State agency with which they are employed. 1060007 Although Slack testified that he did not have such a 7 conversation with Mans, in view of the verdict, the jury apparently believed that the conversation indeed took place. 36 Moreover, Slack loses the protection of State-agent immunity for other reasons. First, in forwarding Stream's letter of reprimand to various institutions, Slack acted beyond his authority as chairman of UAB's Department of Government. Provost Capilouto stated in a letter to Slack that disseminating the letter of reprimand beyond UAB was not acceptable. Likewise, Dean McWilliams testified that Slack was not acting within the scope of his authority when he sent the letter of reprimand to other academic institutions. Further, although Slack testified at trial that he did not harbor any ill will toward Stream, there is ample evidence indicating that Slack indeed acted willfully and maliciously. Mans testified that he received an unsolicited telephone call from Slack in which Slack stated that he was going to see to it that Stream never worked in academia again. Slack's 7 actions regarding UNLV were willful and malicious. In the letter of reprimand, Slack wrote: "What your new employer does with you is also none of my business. Whether the University of Nevada at Las Vegas considers your actions to constitute an 1060007 37 academic misdemeanor or a capital offense will ultimately reflect on its faculty and the value that its faculty and administration places on scholarly integrity and intellectual honesty." After composing the letter, Slack made numerous telephone calls to Bernick, sent Bernick numerous e-mails, sent Bernick the March 17 memorandum from Jacoby, and sent Bernick the letter of reprimand, even though Bernick had not asked to see the letter. In fact, Slack telephoned Bernick at his home between 6:00 a.m. and 6:30 a.m. and got Bernick out of the shower to tell him that Stream had committed plagiarism. Bernick testified that he felt that Slack was trying to intimidate UNLV into not hiring Stream. Provost Capilouto referred to Slack's action as "callously precipitous." Likewise, Dean McWilliams stated that Slack pursued the situation with "intensity and ... vigor." Furthermore, the evidence indicates that Slack had a motive to make it appear that Stream was being forced to leave UAB because of the plagiarism charges. During Slack's tenure as chairman of the Department of Government at UAB, there had been a high turnover rate among junior faculty members. The provost's office was becoming concerned about the high turnover in Slack's department. Thus, the plagiarism charges 1060007 38 provided Slack with a reason for Stream's departure should the provost's office inquire. Because Slack acted willfully and maliciously in disseminating the letter of reprimand concerning Stream, as well as beyond the scope of his authority, he is not entitled to State-agent immunity. Therefore, the trial court properly denied Slack's motion for a summary judgment and motion for a judgment as a matter of law premised upon State-agent immunity. B. Appropriateness of Compensatory Damages Award Slack argues that, even if this Court upholds the judgment against him, the award of $212,000 in compensatory damages is inappropriate because, he alleges, it is wholly unsupported by the evidence. During trial, Stream sought both actual compensatory damages as well as damages for mental anguish. Slack argues that Stream was able to prove, at most, $12,000 in lost income from his inability to teach at UNLV during the summer of 2004. Slack also argues that Stream admitted that he was embarrassed about the charges of plagiarism before the letter of reprimand was written. He further argues that, although Stream claims his reputation in 1060007 39 academia has been tarnished, Stream has successfully published in journals since the letter of reprimand was made public. It is undisputed that Slack lost the opportunity to receive $12,000 in income from teaching summer courses at UNLV because of UNLV's investigation, which was initiated by the letter of reprimand Slack had disseminated. Thus, this Court must determine if an award of $200,000 in damages for mental anguish is excessive. "Mental anguish includes anxiety, embarrassment, anger, fear, frustration, disappointment, worry, annoyance, and inconvenience." Horton Homes, Inc. v. Brooks, 832 So. 2d 44, 53 (Ala. 2001). Regarding an award of damages for mental anguish, this Court has held: "It is well settled that a plaintiff may recover compensatory damages for mental anguish, even when mental anguish is the only injury visited upon the plaintiff. Kmart v. Kyles, 723 So. 2d 572, 578 (Ala. 1998); Alabama Power Co. v. Harmon, 483 So. 2d 386, 389 (Ala. 1986). Once the plaintiff has presented some evidence of mental anguish, the question whether he should recover for such mental anguish, and, if so, how much, is a question reserved for the jury. National Ins. Assoc. v. Sockwell, 829 So. 2d 111, 133 (Ala. 2002); Kmart, 723 So. 2d at 578. ... A jury's verdict is presumed correct, and that presumption is strengthened upon the trial court's denial of a motion for new trial. [Alabama Power Co. v. Murray, 751 So. 2d [494,] 500-01 [(Ala. 2004)]. On the 1060007 40 other hand, that presumption is weakened and we strictly scrutinize such a verdict when a plaintiff who claims damages solely for mental anguish fails to offer his own testimony of the mental anguish he has suffered. Sockwell, 829 So. 2d at 133-34; Kmart, 723 So. 2d at 578. "Despite our great deference to the jury's award of compensatory damages for mental anguish, we have not hesitated to remit such damages where the plaintiff has produced little or no evidence indicating that he has suffered such mental anguish. Orkin Exterminating Co. v. Jeter, 832 So. 2d 25, 36-37 (Ala. 2001). The inquiry is not whether traumatic events have occurred, but whether the plaintiff has actually suffered as a result of those events. 832 So. 2d at 37. When a plaintiff's testimony amounts to little more than the obvious notion that dealing with the traumatic event was 'hard' or 'humiliating,' we have consistently remitted damages. Delchamps, Inc. v. Bryant, 738 So. 2d 824, 837 (Ala. 1999). Additionally, when a plaintiff testifies merely that he suffered 'a lot' of mental anguish, we have similarly remitted damages. Oliver v. Towns, 770 So. 2d 1059, 1061 (Ala.2000); Foster v. Life Ins. Co. of Georgia, 656 So. 2d 333, 336-37 (Ala. 1994)." George H. Lanier Mem'l Hosp. v. Andrews, 901 So. 2d 714, 725- 26 (Ala. 2004). The case before us, however, is replete with evidence of Stream's mental anguish. Upon learning that Bernick had received a copy of the letter of reprimand, a letter of which Stream was unaware when it was sent to Bernick, Stream stated he became worried about his job at UNLV as well as his 1060007 41 professional career. Stream also received telephone calls from junior faculty members at Florida State University, where he had earned his Ph.D., indicating that they had learned of the plagiarism charges. Stream stated he was embarrassed and ashamed that his friends and colleagues would associate him with "rape," "intellectual theft," and a "capital offense" as Slack alluded to in his letter. He felt like an outcast because his colleagues at UAB would not speak to him after learning of Slack's accusations against him. Stream felt further isolated from the faculty of the Department of Government because Slack denied him access to the department's photocopier and the facsimile machine. As of the date of trial, Stream did not know to whom the letter of reprimand had been disseminated. Stream testified that two years after the incident he still obsesses over it, continually relives the situation in his mind, and thinks about it every day. Furthermore, Stream's wife, Maria Rice Stream, had resigned from her position at UAB, and the Streams had placed their house in Birmingham on the market in February 2004 when he learned that he had been offered the job at UNLV. The uncertainty surrounding his position at UNLV following Slack's 1060007 42 sending the letter of reprimand to UNLV caused Stream to worry about Maria's resignation from UAB as well as the sale of their house. Maria testified that the events surrounding the letter of reprimand strained the Stream's marriage and caused difficulty in communications between her and Stream. The stress on their marriage also caused arguments. Maria also testified that she saw Stream cry over the events surrounding the letter of reprimand. According to Maria, Stream became very depressed and could not sleep. The evidence showed other bases for awarding mental- anguish damages in light of the significance of the status of professional reputation in Stream's academic field. As Dr. Mary Guy of Florida State University testified at trial, the damage to an academician's reputation caused by an accusation of plagiarism is "extreme and it takes years and years and years to overcome...." Slack argues that the truthfulness or partial truthfulness of the allegations contained in the letter of reprimand mitigates Stream's compensatory damages. In support of his argument, Slack cites Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So. 2d 441 (1960). In Johnson Publishing, 1060007 43 Davis sued the publishers of Jet magazine, alleging libel for a story published in Jet that stated that Davis had attacked Rev. Ralph David Abernathy with a hatchet and pistol. The evidence showed, however, that Davis had a hatchet and a pistol on his person when he met with Abernathy about Abernathy's relationship with Davis's wife and that during the meeting Davis advanced toward Abernathy, displaying the hatchet, when Abernathy stood up. In reducing the punitive- damages award, this Court held: "Truth of some of the statements attributed to the defendant may be shown in mitigation of damages. Jacobs v. Herlands, 257 App. Div. 1050, 13 N.Y.S.2d 707 [(1939)]; Fleckenstein v. Friedman, 266 N.Y. 19, 193 N.E. 537 [(1934)], and 'Well settled is the basic rule that the amount of plaintiff's recovery may be reduced by proof of facts "tending but failing to prove the truth" of the libel's charge.' Crane v. New York World Telegram Corp., 308 N.Y. 470, 126 N.E.2d 753, 757, 52 A.L.R.2d 1169 [(1955)]." 271 Ala. at 490, 124 So. 2d at 453. Johnson Publishing is distinguishable from this case: Whereas Johnson Publishing involved punitive damages in a libel case, Slack asks this Court to remit the damages for mental anguish, which are considered compensatory damages. "Compensatory damages are designed to make the plaintiff whole by reimbursing him or her for the 1060007 44 loss or harm suffered. Torsch v. McLeod, 665 So. 2d 934, 940 (Ala. 1995). In contrast, punitive damages serve '"not to compensate the plaintiff but to punish the wrongdoer and to deter the wrongdoer and others from committing similar wrongs in the future."' Ex parte Weyerhaeuser [Co.], 702 So. 2d [1227] at 1229 [(Ala. 1996)], quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala. 1989)." Ex parte Moebes, 709 So. 2d 477, 478 (Ala. 1997). Whereas the partial truth of a matter asserted may mitigate the need to punish the wrongdoer or to deter similar wrongs as it relates to punitive damages, it does not mitigate the mental anguish suffered by the offending statement. Therefore, we decline to remit the mental-anguish damages award. Because we presume that a jury's verdict is correct and that presumption is strengthened when the trial court denies a motion for a new trial, and because Stream provided sufficient evidence that he suffered mental anguish, we affirm the trial court's award of damages for mental anguish. See Alabama Power Co. v. Murray, 751 So. 2d 494 (Ala. 2004). C. Appropriateness of Punitive-Damages Award Similarly, Slack argues that the record is devoid of any evidence of intentional, willful, or wanton conduct on his part upon which to base an award of punitive damages. However, in making this argument Slack fails to cite any 1060007 45 controlling precedent or authority in support of his argument, thus failing to meet the requirements of Rule 28(a)(10), Ala. R. App. R. Regarding compliance with Rule 28, this Court recently stated: "We note that waiver of an argument for failure to comply with Rule 28(a)(10), Ala. R. App. P., has been limited to those cases where there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1 (Ala. 2007)(appellant's argument was insufficient to invoke review of the allegedly excessive compensatory-damages award to plaintiff/appellee in a personal-injury action where the appellant's three-sentence argument cited only a single case in support of a general proposition of law and offered no discussion of the nature and extent of the plaintiff's injuries); Davis v. Sterne, Agee & Leach, Inc., [Ms. 1050478, January 12, 2007] ___ So. 2d ___ (Ala. 2007) (appellant's lone citation to a general principle of law without specific relevance to her action against financial services company was insufficient to meet the requirements of Rule 28(a)(10) to cite relevant authority in support of arguments); Hall v. Hall, 903 So. 2d 78 (Ala. 2004) (the appellant cited no authority for the proposition that the checking account should have been included as an asset of the estate and presented no argument and cited no authority to support his conclusion that the ore tenus rule did not require an affirmance on this issue); and Ex parte Gonzalez, 686 So. 2d 204 (Ala. 1996) (petitioner did not show a clear legal right to having capital-murder indictment quashed on the ground that the district attorney testified as a witness in front of the grand jury when the 1060007 46 petitioner cited only a federal district court case that was not binding authority and that was distinguishable)." Ex parte Borden, [Ms. 1050042, August 17, 2007] ___ So. 2d ___, ___ (Ala. 2007) (footnote omitted). Because Slack fails to meet the requirements of Rule 28(a)(10), we do not address the merits of Slack's argument regarding the punitive-damages award. IV. Conclusion Because the trial court correctly determined that Slack is not entitled to State-agent immunity and because the jury's award of compensatory damages is not against the weight of the evidence and Slack has failed to meet the requirements of Rule 28(a)(10) regarding his argument that the punitive damages are excessive, we affirm the trial court's judgment. AFFIRMED. See, Lyons, Woodall, and Parker, JJ., concur.	January 18, 2008
e007ccda-7c1c-4d7a-8d66-b11424c065f2	James L. Parris, G.D. Varn III, James V. Searse, Jr., and Samuel S. Parris v. Phyllis H. Ballantine, Scott Preston Harrison, and Renee DuPont Harrison	N/A	1180908	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 18, 2020 1180908 James L. Parris, G.D. Varn III, James V. Searse, Jr., and Samuel S. Parris v. Phyllis H. Ballantine, Scott Preston Harrison, and Renee DuPont Harrison (Appeal from Jefferson Probate Court: 196712). CERTIFICATE OF JUDGMENT WHEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on December 18, 2020: Application Overruled. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur. WHEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on September 25, 2020: Motion to Dismiss Denied; Affirmed. Stewart, J. - Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. Bolin and Shaw, JJ., concur in the result. Wise and Sellers, JJ., dissent. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 18th day of December, 2020. Clerk, Supreme Court of Alabama	December 18, 2020
854f388f-977e-4d3a-aaad-520c4771c5ae	Ex parte Shaheed El-Alim Shabazz a/k/a Mario Kim. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Mario Kim v. Alabama Department of Corrections)	N/A	1061837	Alabama	Alabama Supreme Court	REL: 02/15/2008 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, 2007-2008 _________________________ 1061837 _________________________ Ex parte Shaheed El-Alim Shabazz a/k/a Mario Kim PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Mario Kim v. Alabama Department of Corrections) (Montgomery Circuit Court, CV-06-1119; Court of Criminal Appeals, CR-06-0352) LYONS, Justice. 1061837 The defendant styled his petition for a writ of 1 certiorari to this Court as "Ex parte Shaheed El-Alim Shabazz a/k/a Mario Kim." However, the Court of Criminals Appeals' unpublished memorandum under review here is styled "Mario Kim v. Alabama Department of Corrections." The alleged conflict of the Court of Criminal Appeals' 2 decision with Martin v. State, 616 So. 2d 384 (Ala. Crim. App. 1993), and Davis v. State, 648 So. 2d 658 (Ala. Crim. App. 1994), discussed below, is the only issue raised in Shabazz's petition for a writ of certiorari that properly invokes this Court's jurisdiction. Accordingly, our review is limited to that issue. 2 The defendant, Shaheed El-Alim Shabazz a/k/a Mario Kim,1 petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the trial court's judgment dismissing his petition for a writ of certiorari. We granted certiorari review. For the reasons 2 discussed below, we affirm the judgment of the Court of Criminal Appeals. I. Facts and Procedural History The Department of Corrections ("DOC") charged Shabazz with violating Ala. Admin. Code (Department of Corrections), regulation no. 403, violation 90, which prohibits "consumption or use of, or [being] under the influence of alcohol, narcotics or other intoxicants." The evidentiary basis for the charge against Shabazz was a urine sample that tested 1061837 3 positive for narcotics. After a disciplinary hearing in which evidence of the positive urine sample was received, Shabazz was found guilty of violating the DOC regulation and punished with segregation for 45 days and loss of store, telephone, and visitation privileges for 45 days. Shabazz did not lose any good-time credits as a result of his alleged violation. Shabazz petitioned the Montgomery Circuit Court for a writ of certiorari to review DOC's determination that he had violated the DOC regulation. Among other things, Shabazz contended that the results of the test on his urine sample were inadmissible at the disciplinary hearing because, he says, there was no evidence establishing a valid chain of custody for the urine sample. The trial court denied the petition. Shabazz then appealed to the Court of Criminal Appeals. The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion. Kim v. Alabama Dep't of Corr. (No. CR-06-0352, August 24, 2007), __ So. 2d __ (Ala. Crim. App. 2007) (table). In an unpublished memorandum, the Court of Criminal Appeals stated that Shabazz was not entitled to due-process protections because his punishment did not 1061837 4 involve a protected liberty interest, and the Court of Criminals Appeals therefore did not need to review the evidence to determine whether Shabazz's due-process protections, such as the requirement that a valid chain of custody for the urine sample be proved, were violated. We granted certiorari review to determine whether the Court of Criminal Appeals erred in affirming the trial court's judgment. 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)). III. Analysis Shabazz argues that the Court of Criminal Appeals erred in concluding that he was not entitled to due-process protections, particularly the requirement that a valid chain of custody be proved for evidence introduced against a defendant, during his disciplinary proceeding. Shabazz asserts that Martin v. State, 616 So. 2d 384 (Ala. Crim. App. 1993), and Davis v. State, 648 So. 2d 658 (Ala. Crim. App. 1061837 5 1994), clearly hold that, at a prison-disciplinary hearing in which an inmate is charged with consumption of a narcotic, the disciplinary board must introduce oral and/or documentary evidence of a valid chain of custody of a urine sample where the results of the test on that sample are introduced against the inmate. In Martin, an inmate appealed the trial court's judgment denying his petition for a writ of habeas corpus challenging his prison disciplinary for violating a prison rule prohibiting the consumption of narcotics. 616 So. 2d at 385. The opinion does not describe the nature of the discipline imposed upon the inmate. In the Court of Criminal Appeals, the inmate asserted that his due-process rights were violated at the disciplinary hearing because the disciplinary board had presented no evidence of a valid chain of custody of the urine sample that tested positive for narcotics and that provided the evidentiary basis for the disciplinary. 616 So. 2d at 385. The Court of Criminal Appeals concluded that the results of the test on the urine sample were inadmissible against the inmate because a valid chain of custody of the urine sample 1061837 6 was not introduced. 616 So. 2d at 388. The court reversed the judgment of the trial court and remanded the cause to the trial court with instructions to order DOC to afford the inmate a new disciplinary hearing. 616 So. 2d at 388-89. The Court of Criminal Appeals stated: "We hold that in the context of a prison disciplinary hearing in which the inmate is charged with the consumption of a controlled substance, the disciplinary board must introduce oral and/or documentary evidence of a valid chain of custody of the urine sample where the results of a test on that sample are introduced against the inmate and where the inmate raises some objection to that chain of custody." 616 So. 2d at 388. Similarly, in Davis, an inmate appealed the trial court's judgment denying his petition for a writ of habeas corpus for relief from two prison disciplinaries for violating a prison rule prohibiting the consumption of narcotics. 648 So. 2d at 659. The opinion does not describe the nature of the discipline imposed upon the inmate. In the Court of Criminal Appeals, the inmate asserted that the evidence of the results of the tests on his urine samples was inadmissible against him because a valid chain of custody of the urine samples was not introduced at his disciplinary hearings. 648 So. 2d at 659. 1061837 We assume the reference to Wolff, without further 3 citation in the Court of Criminal Appeals' unpublished memorandum, is intended to refer to Wolff v. McDonnell, 418 U.S. 539 (1974), in which the United States Supreme Court held that loss of good-time credits in a prison-disciplinary proceeding implicated a liberty interest under the Fourteenth Amendment. 7 In light of Martin, the Court of Criminal Appeals reversed the trial court's judgment denying the inmate's petition for a writ of habeas corpus and found that the inmate was entitled to new disciplinary hearings. 648 So. 2d at 659. The Court of Criminal Appeals rejected Shabazz's argument that Martin and Davis apply to his case. In its unpublished memorandum, the court stated: "[Shabazz's] reliance on Davis v. State, 648 So. 2d 658 (Ala. Crim. App. 1994), and Martin v. State, 616 So. 2d 384 (Ala. Crim. App. 1993), to support his contention that the chain of custody of the urine sample was not proven is flawed, in part, because those cases were brought in petitions for a writ of habeas corpus averring that the appellant's due-process rights had been violated. Here, because the deprivations [Shabazz] suffered do not involve a protected liberty interest, we need not examine the evidence to determine whether his due-process rights had been violated, because the due-process protections discussed in Wolff and its progeny are [3] not applicable to [Shabazz's] case." The conclusion reached by the Court of Criminal Appeals is correct. However, lest Shabazz erroneously assume that he did not prevail simply because he failed to invoke the proper 1061837 This Court has held that a petition for the writ of 4 certiorari that should have been filed as a petition for the writ of habeas corpus and that otherwise meets the procedural requirements for such a petition must be treated as a petition for a writ of habeas corpus. See Ex parte Deramus, 882 So. 2d 875 (Ala. 2002). 8 writ, we note that a petition for the writ of habeas corpus 4 will not lie as the vehicle for reviewing an inmate's punishment for misconduct in prison absent a violation of a liberty interest. See Ex parte Woods, 941 So. 2d 259, 261 (Ala. 2006) ("Generally, review by way of a petition for the writ of habeas corpus is not appropriate unless the inmate alleges a deprivation of a liberty interest or unless a liberty interest is at stake."). Shabazz's punishment -- loss of certain privileges for 45 days and 45 days' segregation -- does not implicate a liberty interest. Sandin v. Conner, 515 U.S. 472, 486 (1995) ("We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest."); Summerford v. State, 466 So. 2d 182, 185 (Ala. Crim. App. 1985) ("[W]e do not believe petitioner had a 'liberty interest' protected under the due process clause in maintaining his store privileges or in being unburdened by an 1061837 9 extra work detail."); Zamudio v. State, 615 So. 2d 156, 157 (Ala. Crim. App. 1993) ("Store and telephone privileges are not liberty interests, nor does a prisoner have a right not to have extra work duty imposed, Summerford."). Where no liberty interest is involved, due-process protections are not applicable. See Sandin, 515 U.S. at 487; Montanye v. Haymes, 427 U.S. 236, 242 (1976) ("As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight."); see also Austin v. Alabama Dep't of Corr., [Ms. CR-06-0505, April 27, 2007] __ So. 2d __ (Ala. Crim. App. 2007) ("Turning to the facts of this case [in which disciplinary involved placement in segregation for 15 days and the loss of visitation, telephone, and store privileges for 45 days], we note that 'the protections of due process are implicated only when a loss of a protected liberty interest is at stake. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and Slawson v. Alabama Forestry Comm'n, 631 So. 2d 953, 957 (Ala. 1994).' Ex parte 1061837 10 Woods, 941 So. 2d at 261. Because the appellant did not suffer the deprivation of a liberty interest, the Wolff due process protections do not apply to his case."). Because Shabazz's punishment did not involve a liberty interest, Shabazz was not entitled to due-process protections, such as ensuring a valid chain of custody of evidentiary material, at his disciplinary hearing. Because Martin and Davis apply only in habeas corpus proceedings and because in Woods we recognized that a petition for a writ of habeas corpus to review a prison-disciplinary action is appropriate only when a liberty interest is implicated, Shabazz's reliance on those cases is misplaced. IV. Conclusion We affirm the judgment of the Court of Criminal Appeals. AFFIRMED. See, Stuart, Bolin, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 15, 2008
a3ec38b3-9f79-40a7-a728-7030f3dceb0b	Samantha Phillips, a minor, by and through her father, Shawn M. Phillips v. United Services Automobile Association	N/A	1051520	Alabama	Alabama Supreme Court	REL: 01/11/2008 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, 2007-2008 ____________________ 1051520 ____________________ Samantha Phillips, a minor, by and through her father, Shawn M. Phillips v. United Services Automobile Association Appeal from Mobile Circuit Court (CV-05-479) MURDOCK, Justice. Samantha Phillips, a minor, by and through her father Shawn M. Phillips, as next friend, appeals from a summary 1051520 2 judgment entered by the Mobile Circuit Court in favor of United Services Automobile Association ("USAA"). We affirm. I. Facts and Procedural History On July 11, 2004, Samantha and her friend, Katie Catlin, were involved in a single-car accident. At the time of the accident, Katie was driving her father's truck; Samantha was a passenger in the truck. Samantha and Katie were returning to Katie's home, having just returned a movie to a movie- rental store. As the two were proceeding west on Cottage Hill Road, Katie recognized two of her friends who were in an automobile that was stopped at an exit from a subdivision, waiting to turn onto Cottage Hill Road. As Katie and Samantha passed by the subdivision exit, Katie turned and waved to her friends, taking her eyes off the road. As she did so, the truck began to cross the centerline of the road and enter the eastbound lane. As the truck began to veer into the eastbound lane, Samantha got Katie's attention by exclaiming "Katie! Katie! Katie!" After hearing her name, Katie returned her attention to the road and saw an oncoming car. She swerved to the right, causing the truck to leave the roadway and enter the shoulder of the westbound lane. Katie then swerved back 1051520 Section 32-1-2, Ala. Code 1975, provides: 1 3 to the left and lost control of the truck. The truck crossed Cottage Hill Road, flipped over, and came to rest in a yard bordering the eastbound lane. Samantha was ejected from the truck during the accident and sustained an injury to her back. On February 14, 2005, Samantha, acting through her father, sued Katie and USAA, which provided an automobile insurance policy to the Phillipses. The complaint alleged that Katie had acted wantonly in causing the accident and that USAA was liable for the payment of underinsured-motorist benefits to Samantha because the liability limits of Katie's automobile insurance would not adequately compensate Samantha for the injuries she sustained in the accident. On May 1, 2006, USAA filed a motion for a summary judgment. It argued that it could be liable for the payment of underinsured-motorist benefits to Samantha only if, among other things, Samantha could demonstrate that Katie was legally liable for Samantha's injuries. It argued that, under the Alabama Guest Statute, Ala. Code 1975, § 32-1-2, Katie could be liable to Samantha only if she had acted wantonly in causing Samantha's injuries. There was no evidence, it 1 1051520 "The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle." 4 asserted, that Katie had acted wantonly with regard to the accident. Shortly after USAA filed its summary-judgment motion, Samantha settled her claim against Katie, leaving only her claim against USAA. In her response to USAA's motion, Samantha argued that there was evidence demonstrating that Katie had acted wantonly with regard to the accident, particularly based on "her awareness of several driving rules of conduct" that Katie had learned in her driver's education course at her high school. According to Samantha, Katie "appreciated an injury would more than likely occur if she ignored the rules of conduct taught in her driver's training and reenforced during her driver's license exam," and Katie's "conscious disregard for a driver's rules of conduct resulted in her passenger sustaining significant physical injuries." Thus, Samantha argued, USAA's motion was due to be denied. 1051520 5 On June 9, 2006, the trial court granted USAA's summary- judgment motion and entered a summary judgment in its favor. Samantha appeals. II. Standard of Review The standard by which we review a summary judgment is well settled: "This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So. 2d 82, 87 (Ala. 2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce 'substantial evidence' creating a genuine issue of material fact. Ala. Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). '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 Fla., 547 So. 2d 870, 871 (Ala. 1989)." Muller v. Seeds, 919 So. 2d 1174, 1176-77 (Ala. 2005). III. Analysis Samantha did not in the trial court and does not on appeal challenge USAA's assertion that it can be liable to her 1051520 6 only if she can demonstrate that Katie was liable for the injuries Samantha sustained. She also does not challenge USAA's assertion that the Alabama Guest Statute, Ala. Code 1975, § 32-1-2, applies to this case and prevents recovery against it absent a showing that Katie acted wantonly in causing Samantha's injuries. Samantha argues only that she presented substantial evidence indicating that Katie acted wantonly, so that a summary judgment in favor of USAA was inappropriate. In Ex parte Anderson, 682 So. 2d 467 (Ala. 1996), this Court discussed the concept of wantonness in the context of operating an automobile: "In a case subject to the Guest Statute, a plaintiff's showing of 'wanton misconduct' requires more than a showing of some form of inadvertence on the part of the driver; it requires a showing of some degree of conscious culpability. George v. Champion Ins. Co., 591 So. 2d 852 (Ala. 1991). "What constitutes wanton misconduct depends on the facts presented in each particular case. Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala. 1989); Brown v. Turner, 497 So. 2d 1119 (Ala. 1986); Trahan v. Cook, 288 Ala. 704, 265 So. 2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala. 1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or 1051520 7 omission, is not to be confused with negligence (i.e., mere inadvertence): "'Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury.... "'Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. "Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted." McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913).... "'.... "'"Willful and wanton conduct has a well-defined meaning at law. It is sometimes expressed in terms of 'reckless disregard of the safety of another.' Willful and wanton conduct should not be confused with negligence. It has been correctly stated that the two concepts are as 'unmixable as oil and water.'" "'.... "'"... Willfulness or wantonness imports premeditation, or knowledge and consciousness that the injury is likely to 1051520 8 result from the act done or from the omission to act, and strictly speaking, is not within the meaning of the term 'negligence,' which conveys the idea of inadvertence, as distinguished from premeditation or formed intention."' "510 So. 2d at 145-46 (citations omitted.) See also, Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala. 1989)." 682 So. 2d at 469-70. On appeal, Samantha does not challenge the principles articulated in Anderson. She relies on two cases decided by this Court in an effort to support an argument that Katie's actions in causing the accident constituted wantonness: Sellers v. Sexton, 576 So. 2d 172 (Ala. 1991), and Scott v. Villegas, 723 So. 2d 642 (Ala. 1998). This Court discussed these two cases in Tolbert v. Tolbert, 903 So. 2d 103 (Ala. 2004): "In Sellers, another guest-statute case, the automobile driver was proceeding along a highway with which she was intimately familiar on a day in January when travel advisories had been issued because of expected inclement weather and the possibility of freezing precipitation. The day before, the county engineer's office had placed a coarse type of slag on several bridges in anticipation of the freezing weather. The route the driver and her passenger were traveling took them across a series of three bridges. She was traveling 'at or about the maximum legal speed of 55 m.p.h. when she crossed the first of the three 1051520 9 bridges.' 576 So. 2d at 173. She observed that there was loose rock and stone on that bridge. '[S]he did not slow down as she approached the second bridge,' although '[s]he acknowledged that she normally slowed down before entering this bridge because of a wide curve to the left.' 576 So. 2d at 173. Upon entering the second bridge, she lost control of her car, 'first pulling to the right and then, in an attempt to correct the direction of the vehicle, steering to the left and traveling completely into the lane of oncoming traffic.' 576 So. 2d at 173. The ensuing collision resulted in the death of the passenger. This Court concluded that the evidence, establishing that the driver proceeded onto the second bridge while continuing her speed at or near the maximum posted speed limit, at a time when she 'should have known' that the bridge had been spread with slag in preparation for the bad weather and with knowledge that there was a wide curve that would obstruct her view of any oncoming traffic constituted substantial evidence to support the wantonness claim. 576 So. 2d at 175. "In Scott, Villegas was driving an automobile he had just purchased and that he had driven only one time previously. Scott, his passenger, had driven the automobile several times while it was owned by the seller. Villegas was well aware that the vehicle (a 1990 Ford GT-50) was 'souped up,' with a 5-speed transmission and a V-8 engine. 'According to Villegas, "it was a fast car. ... It was bad."' 723 So. 2d at 643. In pulling out of the driveway at the start of the trip, Villegas stalled the automobile, and Scott asked if he could drive. Villegas refused. As Villegas then drove the car down the road, he 'spun off' because, as he later explained, he was not used to the 'tight gears,' which required that the driver give the engine some gas. Accordingly, he 'fishtail[ed] a little bit.' 723 So. 2d at 643. It had been raining and the roads were wet. Scott again asked if he could drive and Villegas declined, stating that he wanted to 1051520 10 drive his own car. Next, at an intersection Villegas '"gave it a little too much gas and it spun a little bit more."' 723 So. 2d at 643. Scott again asked if he could drive and Villegas again insisted on driving. At another intersection Villegas spun off again. He then told Scott '"[i]f I mess up one more time, you can drive the car."' Id. "'Subsequently, "because [Villegas and Scott were] in a hurry to get" to [their] destination, [Villegas] shifted from fifth gear into third gear and passed another automobile; Villegas's automobile went into a spin, struck another automobile, spun some more, and turned over. When Villegas was asked what he thought caused the spin, he testified as follows: "'"I believe that when I did it--well, it was a wet road. And I believe it hydroplaned or, then again, it was a lot of power. I did turn it over. And right when I turned the steering wheel, when I was switching lanes, my car spinned. It went sideways. "'".... "'"I was going normal speed. "'".... "'"45 [mph]. Because I just threw it down. "'".... "'"[W]hen I shifted up, the RPM gauge went up and I gave it a little more power, and that's what happened."' "723 So. 2d at 643-44. 1051520 11 "The Court concluded that 'there is substantial evidence from which the jury could find that Villegas acted with a reckless or conscious disregard of the rights or safety of others by consciously driving the automobile while knowing that he could not control it on the wet pavement and knowing that if he lost control of it, injury would likely or probably result.' 723 So. 2d at 644." 903 So. 2d at 115-17. As she did in the trial court, Samantha bases her argument that Katie acted wantonly on the fact that Katie was taught rules of safe driving in the driver's education course she took. In doing so, she relies on the following exchange from Katie's deposition involving questions by Samantha's attorney: "Q. I have just a couple of follow-ups. Okay? And as I understand, you went through a driver's training before you obtained your license; correct? "A. Yes, sir. "Q. And you ultimately had to take a driver's safety course or driver's course with the State of Alabama to get your license? "A. Yes, sir. "Q. And at any point during that time, did you learn that concentration is one of the most important elements of driving? "A. Yes, sir. 1051520 12 "Q. And things such as distracting conversations could result in an accident? "A. Yes, sir. "Q. And you were also during these courses trained to keep your eyes on the road at all times? "A. Yes, sir." Based on this passage, Samantha argues that, "[a]t the time of the collision, [Katie] was conscious an accident would more than likely occur if she disregarded the rules taught in her driver's training and reenforced during her driver's exam." She concludes that "[t]he level of [Katie]'s conduct established 'more than a showing of some form of inadvertence on the part of the driver,'" and that "a jury could and should infer [that Katie]'s conduct rose to the level of wantonness." USAA argues that the facts in this case more closely resemble those present in George v. Champion Insurance Co., 591 So. 2d 852 (Ala. 1991), which this Court described as follows: "[T]he plaintiff, Elizabeth Karen George, age 16, was the passenger in an automobile driven by her best friend, Shannon Plaiss, also 16. The two were going to a birthday party. Shannon was driving a white 1979 Ford Pinto automobile, proceeding south on Memorial Parkway in Huntsville. It was a full car. Shannon was driving, Scott White was sitting in the front passenger seat, Karen's sister Paula 1051520 13 was sitting beside White. Karen and her sister Kelly George were in the rear seat. It was Sunday afternoon and a clear day. The occupants of the car were engaged in conversation. As the car approached the intersection of the Parkway and Golf Road, Shannon saw that the traffic light was green. She glanced back in conversation. When she looked forward, the traffic light was red. Scott cried out for her to stop. Shannon testified in her deposition that she tried to put her foot on the brake pedal, but missed and hit the clutch pedal. She ran the red light, and her automobile collided with a vehicle that was turning left in front of her." 591 So. 2d at 854. Affirming the trial court's judgment, this Court held that Shannon's actions did not rise to the level of wantonness, stating that "[w]hile the facts show inadvertence on the part of the driver, they do not amount to wantonness, which requires some degree of conscious culpability." 591 So. 2d at 854. In the present case, even reviewing the evidence, as we must, in the light most favorable to Samantha, the nonmovant for summary judgment, we agree with USAA that Samantha has not presented substantial evidence indicating that Katie acted wantonly. Samantha has not put forward substantial evidence tending to show that Katie had "knowledge and consciousness" that a likely result of momentarily waving to her friends was an automobile accident in which Samantha would be injured. 1051520 14 What Samantha has shown is that Katie had knowledge as to how to properly and safely operate an automobile. Presumably, anyone who obtains a driver's license in the State of Alabama has such knowledge. See, generally, Ala. Code 1975, § 32-6-3(a) ("Every person who applies for an initial Alabama driver's license issued by the Department of Public Safety under this article shall be given and successfully pass an examination before the issuance of a driver's license."). Samantha's reasoning would convert every failure to properly or safely operate an automobile resulting from "inattention, thoughtlessness, ... heedlessness, [or] a lack of due care" into an act of wantonness on the ground that the driver knew or should have known that such inattention, thoughtlessness, or heedlessness is improper. IV. Conclusion Because Samantha presented substantial evidence of nothing more than that Katie's actions in causing the accident were inattentive, thoughtless, or heedless, i.e., negligent, we conclude that the trial court properly entered a summary judgment in favor of USAA, and we affirm that summary judgment. 1051520 15 AFFIRMED. Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur.	January 11, 2008
9605511b-cc55-4c03-930b-da3d72c87e68	Ex parte Petway Olsen, LLC.	N/A	1190402	Alabama	Alabama Supreme Court	Rel: December 11, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 _________________________ 1190402 _________________________ Ex parte Petway Olsen, LLC PETITION FOR WRIT OF MANDAMUS (In re: Grelinda Lee and Linda Eubanks-Hill, as personal representatives of the Estate of Camlyn Jacob Devon Lee, deceased, et al. v. Valisha D. Cartwell et al.) (Jefferson Circuit Court, Bessemer Division CV-17-900193) 1190402 WISE, Justice. Petway Olsen, LLC, a law firm, petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to set aside its order granting the motion filed by Mercedes-Benz USA, LLC ("MBUSA"), seeking to disqualify the firm from representing the plaintiffs in the underlying case and to enter an order allowing the firm to represent the plaintiffs. Facts and Procedural History On February 23, 2017, Valisha D. Cartwell was driving a 1998 Mercedes ML320. As Cartwell was pulling into a parking space in front a dental office operated by Vital Smiles Alabama, P.C., the vehicle suddenly accelerated and crashed into the front of the dental office, killing six-year-old Camlyn Jacob Devon Lee and injuring others. On March 8, 2017, Grelinda Lee, as personal representative of the estate of Camlyn Jacob Devon Lee ("the estate"), sued Cartwell and Tiffany N. Dixon, the owner of the Mercedes ML320, and fictitiously named defendants, asserting a wrongful-death claim. On October 23, 2 1190402 2017, Lee and additional plaintiffs Linda Eubanks-Hill, as co-personal representative of the estate; Linda Eubanks-Hill, individually and as the guardian and next friend of Ikinda Hill, a minor; and Amauri Amison (hereinafter collectively referred to as "the plaintiffs") filed a first amended complaint. In the first amended complaint, the plaintiffs added Cal-Mid Properties, L.P.; Brookhill Capital Resources, Inc.; Midfield Properties, LLC; and, Vital Smiles Alabama, P.C., as defendants, and asserted various claims against them. On April 26, 2018, the plaintiffs filed a second amended complaint in which they added Mercedes-Benz U.S. International, Inc. ("MBUSI"), and MBUSA as defendants. In their second amended complaint, they alleged that, as Cartwell was parking on the day in question, the Mercedes ML320 "began to accelerate on its own, crashing into the Vital Smiles dental office." They further alleged: "19. The subject Mercedes ML320 and its component parts were defective and unreasonably dangerous because the Mercedes ML320's accelerator was prone to cause the subject vehicle to accelerate to high rates of speed on its own causing the risk of collision. 3 1190402 "20. At the aforesaid time and place, and for sometime prior thereto, MBUSI and MBUSA Defendants were engaged in the business of designing, manufacturing, testing, marketing, selling and/or distributing subject vehicles throughout the United States, including the State of Alabama, for use by the general public. MBUSI and MBUSA designed, manufactured, tested, marketed, distributed, and/or sold the subject vehicle. ".... "22. The subject vehicle was not reasonably safe when used in a foreseeable manner. To the contrary, it was in a defective condition unreasonably dangerous to the human body when being so used. The subject vehicle's defects include the drive systems being prone to instances of unintended acceleration. The design of the subject vehicle was defective and unreasonably dangerous. The subject vehicle was also manufactured and assembled in a defective and unreasonably dangerous manner. The warnings and instruction accompanying the subject vehicle were also inadequate and also rendered them defective and unreasonably dangerous." The plaintiffs asserted against MBUSA and MBUSI a claim under the Alabama Extended Manufacturer's Liability Doctrine and negligence and wantonness claims. Those claims were based on MBUSI's and MBUSA's designing, testing, manufacturing, marketing, and selling of the Mercedes ML320 involved in the accident. The second amended complaint was signed by D. Bruce Petway of Petway Olsen and included the names of 4 1190402 other attorneys with different law firms who were also representing the plaintiffs. On May 29, 2018, MBUSI and MBUSA filed their answers to the second amended complaint. Both MBUSI and MBUSA asserted as a defense that Petway Olsen was "disqualified [from representing the plaintiffs] because one of its members [was] a former in-house attorney and general counsel for MBUSI." On June 11, 2018, MBUSI filed a motion to disqualify Petway Olsen from representing the plaintiffs. Specifically, it asserted that Janet Olsen was a member of Petway Olsen and that she was married to Bruce Petway; that Olsen was former general counsel for MBUSI; and that, in that capacity, Olsen "was privy to vast amounts of MBUSI's privileged, proprietary, and confidential information that could be used to MBUSI's extreme disadvantage in the instant case, and there is a substantial relationship between Plaintiff's [sic] action against MBUSI and Olsen's former representation." In support of its motion, MBUSI attached an affidavit from Richard J. Clementz, who was then general counsel for MBUSI. Bruce Petway, on 5 1190402 behalf of Petway Olsen, filed a response to MBUSI's motion to disqualify and attached an affidavit from Olsen in support of that response. The trial court conducted a hearing on MBUSI's motion to disqualify. It continued the hearing to allow the parties to obtain an ethics opinion from the Alabama State Bar regarding Petway Olsen's representation of the plaintiffs in this case. The parties attempted to obtain an opinion from the Alabama State Bar, but the Alabama State Bar responded that it would not provide a written opinion in response to the inquiry. On August 30, 2019, the plaintiffs filed a motion to dismiss MBUSI from this case with prejudice, which the trial court granted on that same day. On November 20, 2019, MBUSA filed a motion to disqualify Petway Olsen. In support of its motion, MBUSA attached a second affidavit from Clementz and an affidavit from Audra D. Dial, assistant general counsel for MBUSA. Bruce Petway, on behalf of Petway Olsen, filed a response to MBUSA's motion to disqualify. In his response, Petway asserted that MBUSA had waived its right to seek disqualification of Petway Olsen because its motion was not timely. He also asserted that MBUSA had 6 1190402 failed to satisfy its burden of establishing that Petway Olsen should be disqualified. In support of his response, Petway filed a new affidavit from Olsen. MBUSA filed a reply to Petway's response. In support, MBUSA attached an affidavit from William G. Ross, a professor at Cumberland School of Law at Samford University. In that affidavit, Ross stated: "[I]t is my opinion that the court should disqualify plaintiffs' counsel because the representation of the plaintiffs by Ms. Olsen and [Petway Olsen] would violate Rule 1.9 of the Alabama Rules of Professional Conduct insofar as this lawsuit is 'substantially related' to matters upon which Ms. Olsen worked while she was in-house counsel for Mercedes-Benz U.S. International, Inc. (MBUSI) between 1996 and 2002 and general counsel for MBUSI from 2002 until 2004. It is also my opinion that Rule 1.10[, Ala. R. Prof. Cond.,] compels disqualification of [Petway Olsen] because Ms. Olsen's disqualification is imputed to the law firm in which she is a partner." On January 3, 2020, after conducting a hearing, the trial court granted MBUSA's motion to disqualify Petway Olsen. Petway Olsen then filed this petition for a writ of mandamus. Standard of Review 7 1190402 "A petition for the writ of mandamus is a proper method for reviewing a motion to disqualify an attorney. Ex parte Central States Health & Life Co., 594 So. 2d 80 (Ala. 1992). "The writ of mandamus is an extraordinary writ and will be issued only when the petitioner has shown a clear, indisputable right to the relief sought." Ex parte Intergraph Corp., 670 So. 2d 858, 860 (Ala. 1995). Discussion In its petition, Petway Olsen argues that MBUSA did not timely file its motion to disqualify and that it, therefore, waived its right to seek Petway Olsen's disqualification in this case. In Intergraph, this Court addressed the timeliness of a motion to disqualify. In that case, Randolph C. Marks, d/b/a Historic Architectural Resource, sued Intergraph Corporation on December 17, 1993. When Marks filed his complaint, he was represented by Crowson Partners, P.C. Timothy Crowson, who was the senior partner in that firm, had been employed by Intergraph as in-house legal counsel approximately seven years before he established the firm. Marks also sought to retain Donovan Conwell, a Florida attorney, as legal counsel in his lawsuit against Intergraph. In March 1994, Crowson moved for the pro hac vice 8 1190402 admission of Conwell. He also filed an amended complaint and requested documents and answers to interrogatories from Intergraph. During a June 6, 1994, meeting of the trial judge, Crowson, and the attorneys for Intergraph regarding discovery, Intergraph did not object to the court's admitting Conwell as additional counsel for Marks. Diane Hargrave, then an employee of Intergraph's legal department, was also present at the meeting. Hargrave had worked for Crowson when he was in-house counsel at Intergraph. However, Hargrave did not object to Crowson's or Conwell's involvement in the case. On June 13, 1994, Intergraph filed a motion to disqualify both Crowson and Conwell. The trial court disqualified Crowson, but allowed Conwell to continue representing Marks. Intergraph filed a petition for a writ of mandamus asking this Court to order that Conwell also be disqualified. Marks filed a petition for a writ of mandamus asking this Court to order that both Crowson and Conwell be allowed to represent him. In his petition, Marks argued that Intergraph had waived its right to object to their representation because it had failed to do so in a timely manner. This Court addressed this issue as follows: 9 1190402 "[T]here is a question whether the former client has waived the right to disqualify the former attorney. See Hall v. Hall, 421 So. 2d 1270 (Ala. Civ. App. 1982); Cox v. American Cast Iron Pipe Co., 847 F.2d 725 (11th Cir. 1988). Prior Alabama case law indicates that laches may bar a disqualification motion if the delay in filing the motion was intentional. " Hall arose out of a divorce case. The wife had been represented in an uncontested divorce by the attorney now representing her ex-husband in a child custody modification hearing. The Court of Civil Appeals held that the former client had waived her right to object to her attorney's subsequent representation of her former husband by not objecting until after the trial. "In Cox, the defendant in a sexual discrimination case objected to an attorney who had previously represented it but who had later formed a partnership with another attorney now representing the plaintiffs on appeal in the sexual discrimination action. The defendant was held to have waived the right to object because it had not objected earlier when it was informed of the proposed partnership, but had waited 18 months before filing the motion to disqualify. Additionally, the defendant had not objected when the newly formed law partnership represented other plaintiffs in a different sexual discrimination action against that defendant. "We hold that the trial court erred in disqualifying Crowson. One should file a motion to disqualify within a reasonable time after discovering the facts constituting the basis for the motion. It is undisputed that Intergraph knew when Marks filed his action that Crowson had previously worked for Intergraph as in-house counsel. Intergraph should have objected to Crowson's involvement at the very beginning, instead of allowing the case to proceed for six months while 10 1190402 discovery was ongoing and the case was being prepared for trial." Intergraph, 670 So. 2d at 860 (emphasis added). In this case, the plaintiffs filed their second amended complaint adding MBUSI and MBUSA on April 26, 2018. The plaintiffs were represented by Petway at that time. MBUSA and MBUSI filed their answers on May 29, 2018. In the answers, MBUSA and MBUSI asserted, as a defense, that Petway Olsen was disqualified because one of its members was a former in-house attorney and general counsel for MBUSI. On June 11, 2018, MBUSI filed a motion to disqualify Petway Olsen. In his affidavit submitted in support of that motion, Clementz stated: "Ms. Olsen also assisted another Defendant in this case -- Mercedes Benz USA, LLC (MBUSA) -- in responding to discovery and formulating litigation defense strategies in product liability suits involving Mercedes-Benz M-Class vehicles." Based on the foregoing, MBUSA knew of the possible grounds for disqualification at the time it filed its answer to the second amended complaint or, at the very latest, at the time MBUSI filed its motion to disqualify. However, MBUSA did not join MBUSI's motion to disqualify 11 1190402 or file its own motion to disqualify at that time. Rather, it waited approximately 17 to 18 months to file its motion to disqualify. Thus, MBUSA did not file its motion to disqualify within a reasonable time after discovering the facts constituting the basis for that motion. Additionally, in its response to MBUSA's motion to disqualify, Bruce Petway asserted that "[t]he Plaintiffs relied on MBUSA's absence of any objection to Petway [Olsen] representing the Plaintiffs in dismissing MBUSI, believing this would satisfy all concerns that had been raised by any Party to this action." Therefore, Petway argued, the plaintiffs would be unduly prejudiced if MBUSA's untimely motion to disqualify was granted. We conclude that MBUSA did not timely file its motion to disqualify Petway Olsen from representing the plaintiffs. Therefore, it waived any objection to Petway Olsen's representation of the plaintiffs. Accordingly, the trial court erred when it granted MBUSA's motion to disqualify Petway Olsen. Conclusion 12 1190402 The trial court erred when it granted MBUSA's motion to disqualify Petway Olsen from representing the plaintiffs. Accordingly, we grant Petway Olsen's petition for writ of mandamus and direct the trial court to vacate its order granting MBUSA's motion to disqualify and to permit Petway Olsen to represent the plaintiffs.1 PETITION GRANTED; WRIT ISSUED. Parker, C.J., and Shaw, Bryan, Mendheim, and Stewart, JJ., concur. Sellers, J., concurs in the result. Bolin and Mitchell, JJ., dissent. 1Based on our holding that MBUSA waived its objection to Petway Olsen's representation of the plaintiffs, we pretermit discussion of the remaining arguments raised by the parties. 13 1190402 MITCHELL, Justice (dissenting). The majority concludes that Mercedes-Benz USA, LLC ("MBUSA"), waived its right to seek the disqualification of Petway Olsen, LLC, by failing to file a timely motion asserting that Petway Olsen should be disqualified. See, e.g., Ex parte Intergraph Corp., 670 So. 2d 858, 860 (Ala. 1995) (recognizing that "laches may bar a disqualification motion if the delay in filing the motion was intentional"). The majority therefore grants Petway Olsen's petition and issues a writ directing the trial court to vacate its order disqualifying Petway Olsen from representing the plaintiffs in their wrongful-death action against MBUSA and the other defendants. I respectfully dissent. This Court has recently confirmed that "rulings on a motion to disqualify counsel are within the discretion of the trial court." Ex parte Terminix Int'l Co., LP, [Ms. 1180863, October 30, 2020] ___ So. 3d ___, ___ (Ala. 2020); see also Ex parte Utilities Bd. of City of Tuskegee, 274 So. 3d 229, 232 (Ala. 2018) (explaining that a trial court has the authority and the discretion to disqualify counsel for violating the Alabama Rules of Professional Conduct). Moreover, we have repeatedly held that the 14 1190402 applicability of the doctrine of laches is dependent upon the particular facts and circumstances of each case and that the decision whether to apply the doctrine lies squarely within the sound discretion of the trial court. See, e.g., L.B. Whitfield, III Family LLC v. Whitfield, 150 So. 3d 171, 180 (Ala. 2014). Applying these principles here, I believe we should defer to the decision of the trial court, which has overseen this litigation for almost three years and is in the best position to determine whether MBUSA's motion to disqualify Petway Olsen was filed within a reasonable time. The materials before us establish the following timeline: April 26, 2018: MBUSA and its corporate sibling Mercedes- Benz U.S. International, Inc. ("MBUSI") are added as defendants in this action. May 29, 2018: Both MBUSA and MBUSI file answers in which they assert that "Petway Olsen, LLC is disqualified because one of its members is a former in-house attorney and general counsel for MBUSI." June 11, 2018: MBUSI files a motion to disqualify Petway Olsen. July 17, 2018: After holding a hearing on MBUSI's motion, the trial court stays all discovery so that the parties can seek an ethics opinion from the Alabama State Bar. 15 1190402 August 30, 2019: The plaintiffs move to dismiss MBUSI with prejudice, and the trial court grants that motion. September 10, 2019: Nearly 14 months after discovery was stayed, the Bar informs the parties that it will not issue a formal ethics opinion addressing Petway Olsen's involvement. November 20, 2019: MBUSA files its own motion to disqualify Petway Olsen. Thus, MBUSA first made known its position that Petway Olsen should be disqualified in the initial pleading it filed after being added as a defendant. Although it did not file its own motion to disqualify for approximately another 18 months, the case was stayed for almost that entire time so that MBUSI's motion to disqualify could be decided. MBUSA states in its response to the plaintiffs' petition that it did not file its own motion to disqualify at the same time as MBUSI because it "reasonably expected that a ruling on MBUSI's motion to disqualify would resolve the conflict issue -- [Petway Olsen] would or would not be disqualified from representing [the] plaintiffs." MBUSA's response, p. 9. The trial court apparently accepted MBUSA's asserted reason for the delay. I cannot conclude that it exceeded its discretion in doing so. Bolin, J., concurs. 16	December 11, 2020
9ab64fcf-fd27-4311-8faf-cbca4a342f58	Ex parte Stanley Anderson. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Stanley Anderson v. State of Alabama)	N/A	1061004	Alabama	Alabama Supreme Court	REL: 1/25/08 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, 2007-2008 ____________________ 1061004 ____________________ Ex parte Stanley Anderson PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Stanley Anderson v. State of Alabama) (Montgomery Circuit Court, CC-04-176.70; Court of Criminal Appeals, CR-05-1943) SEE, Justice. 1061004 2 Stanley Anderson seeks a reversal of the judgment of the Court of Criminal Appeals' affirming the trial court's judgment revoking Anderson's probation. We reverse the Court of Criminal Appeals' judgment and remand the case. Facts and Procedural History Stanley Anderson was convicted in 2004 of breaking and entering a motor vehicle and of theft of property. The trial court sentenced Anderson to a 15-year sentence for each conviction, to be served concurrently; it then suspended the sentences and placed him on supervised probation. In 2006, at the request of Anderson's probation officer, the Montgomery Circuit Court held a hearing to determine whether to revoke Anderson's probation, at which time the following conversation took place: "The Court: Stanley, if you admit these things, in other words, if you say, 'Yeah, I did that, Judge,' I've got to decide if I'm going to revoke your probation or not revoke it. If what I read to you is not true, all you need to do is say 'I deny the alleged violations.' I will appoint a lawyer to represent you, and we'll have a hearing at a later date. Do you understand all of that? "Anderson: Yes, ma'am. "The Court: All right. The first one is failure to report to your probation officer. They haven't seen you since May 17, 2004. The second one is failure 1061004 Anderson was confined in Chilton County for two years, 1 while he was also serving his probationary term in Montgomery County. 3 to pay supervision fees. You currently owe $90. The third alleged violation is failure to pay court- ordered moneys. You currently owe $394. The fourth alleged violation is that you have a new arrest for being in possession of a firearm, drug paraphernalia, and resisting arrest. And I got a report that you're fighting with someone over at the jail. So what's going on? Are you admitting or denying these alleged violations? "Anderson: Well I'm denying the firearm charge and the other charges." Upon further questioning by the trial judge, Anderson admitted that he had pleaded guilty to the charges of possessing a firearm, possessing drug paraphernalia, and resisting arrest and had completed his punishment for those convictions, but 1 maintained that he was nevertheless innocent of the charges. Following this admission, the judge revoked Anderson's probation and reinstated the 15-year sentences without appointing an attorney for him or setting a date for a revocation hearing. Anderson appealed to the Court of Criminal Appeals, arguing that the trial court erred in not complying with the requirements of Rule 27.5(a)(1) through 1061004 Rule 27.5(a)(1) through (4) provide: 2 "(a) Initial Appearance. When a probationer is arrested pursuant to Rule 27.4(b) or Rule 27.4(c), the probation officer shall be notified immediately (unless the officer made the arrest), and the probationer shall be taken without unnecessary delay before the judge who issued the warrant or summons, if available, or in case of an arrest without a warrant, before the original sentencing judge, if available; otherwise, the probationer shall be taken before another judge of the same district or circuit, who shall "(1) Inform the probationer of the alleged violation of probation and furnish the probationer with a written copy thereof; "(2) Inform the probationer that any statement the probationer makes prior to the hearing may be used against the probationer; "(3) Advise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met; "(4) Set the date of the revocation hearing ...." Rule 27.6, "Revocation of Probation," provides in 3 subparagraphs (a) and (b): "(a) Hearing. 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 under Rule 27.5. "(b) Presence; Right to Counsel. The 4 (4) and Rule 27.6(a) and (b) and (c)(5), Ala. R. Crim. P., 2 3 1061004 probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request: "(1) If the probationer makes a colorable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or "(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present." There is no subparagraph (5) in Rule 27.6(c), Ala. R. Crim. P. 5 i.e., in not holding a subsequent revocation hearing and in not allowing Anderson an opportunity to be represented by counsel. The Court of Criminal Appeals issued an unpublished memorandum affirming the trial court's revocation order on the ground that Anderson had not preserved the issues for appellate review because he had not raised them in the trial court. Anderson v. State, [No. CR-05-1943, March 2, 2007] ___ So. 2d ___ (Ala. Crim. App. 2007) (Welch, J., dissenting). We granted Anderson's petition for the writ of certiorari to determine whether the decision of the Court of Criminal 1061004 6 Appeals to affirm the trial court's revocation order on the basis that Anderson failed to preserve his argument for appellate review conflicts with prior caselaw. Analysis A probationer who makes his initial appearance under Rule 27.5, Ala. R. Crim. P., is entitled to a revocation hearing. Rule 27.5(a)(4), Ala. R. Crim. P. (at the initial appearance, the "judge ... shall ... set the date of the revocation hearing"). At the revocation hearing, the probationer is entitled to be represented by counsel. See Rule 27.6(b), Ala. R. Crim. P. ("[P]robationer is entitled ... to be represented by counsel.). The probationer may waive his right to a revocation hearing if he is given "sufficient prior notice of the charges and sufficient notice of the evidence to be relied upon" and if he "admits, under the requirements of Rule 27.6(c), that he committed the alleged violation." Rule 27.5(b), Ala. R. Crim. P. In the present case, it appears that the judge determined that Anderson had waived his right to a revocation hearing and his right to counsel, because she revoked his probation during his initial appearance without affording him representation by 1061004 7 counsel. The trial judge initially informed Anderson that "[i]f what I read to you is not true, all you need to do is say 'I deny the alleged violations.' I will appoint a lawyer to represent you, and we'll have a hearing at a later date." After the judge read the violations, Anderson responded, "I'm denying the firearm charge and the other charges." However, he later during the initial hearing admitted that he had not reported to his probation officer because he did not have any money and could not pay his supervision fees or court-ordered moneys. Anderson also admitted during this initial appearance that although he was "denying the firearm charge and the other charges," he had pleaded guilty to those charges and had completed his sentence related to those charges. At no time during the appearance did Anderson request an attorney; however, neither did the trial judge, before revoking Anderson's probation, ask him if he was willing to waive his right to a revocation hearing or to counsel. Nevertheless, based on Anderson's admission that he had knowingly failed to report to his probation officer and that he had pleaded guilty to the other charges, the trial judge revoked Anderson's probation without counsel present. 1061004 8 The Court of Criminal Appeals did not reach the merits of Anderson's appeal, affirming the trial court's order on the ground that Anderson had not presented to the trial court the arguments that he was entitled to counsel and a revocation hearing, and, therefore, he had not preserved those arguments for appellate review. Generally, arguments not presented to the trial court are waived on appeal. See Ex parte Helton, 578 So. 2d 1379, 1380 (Ala. 1990) ("The second issue raised by [the defendant] ... was not properly raised at trial and thus, was not preserved for review."). However, in Puckett v. State, 680 So. 2d 980, 983 (Ala. Crim. App. 1996), the Court of Criminal Appeals recognized two exceptions to that general rule when the case involves the revocation of probation: "[The Court of Criminal Appeals] has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held." (Citations omitted.) In deciding that Anderson had not preserved his arguments for appeal, the Court of Criminal Appeals did not issue an opinion overruling Puckett or suggest 1061004 9 in its unpublished memorandum that Puckett should be overruled, nor have we been asked to overrule it. Anderson argues that his case falls within the second Puckett exception because the trial court failed to hold a revocation hearing. We agree. During the exchange between the trial judge and Anderson at his initial appearance, the trial judge told Anderson that if he denied the charges he would be afforded counsel and a subsequent hearing would be held; however, when he denied the charges, he was not afforded counsel and a revocation hearing for a later date was not set. "A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence." Fiorella v. State, 40 Ala. App. 587, 590, 121 So. 2d 875, 878 (1960). We agree with Judge Welch's dissent from the Court of Criminal Appeals' unpublished memorandum in this case. He stated that "[i]n this case no hearing was held. Instead, Anderson was subjected to an interrogation by the trial court with no meaningful 1061004 10 opportunity to present any evidence." Anderson, ___ So. 2d at ___ (Welch, J., dissenting). Anderson has set forth facts indicating that a revocation hearing was not held and that Anderson did not waive a revocation hearing. Because the failure to hold a revocation hearing is one of the exceptions to the general rule requiring a defendant to preserve his arguments for appeal by first raising them in the trial court, the Court of Criminal Appeals' decision is in error. Conclusion For the foregoing reason, we reverse the decision of the Court of Criminal Appeals and remand this case to that court for further proceedings consistent with this opinion. REVERSED AND REMANDED. Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur.	January 25, 2008
3663fd3e-e6a5-44bb-958a-fd24ccc6d441	Breland v. City of Fairhope	N/A	1180492	Alabama	Alabama Supreme Court	REL: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1180492 ____________________ Charles K. Breland, Jr., and Breland Corporation v. City of Fairhope and The Battles Wharf / Point Clear Protective Association Appeal from Baldwin Circuit Court (CV-13-901096) MITCHELL, Justice. Charles K. Breland, Jr., purchased land in Baldwin County to build a housing subdivision. The subdivision he planned to construct required 1180492 filling about 10.5 acres of wetlands, which the City of Fairhope and Baldwin County opposed. Breland and Breland Corporation (collectively "the Breland parties") sued Fairhope in the Baldwin Circuit Court, claiming that they had a vested right to fill the wetlands, that Fairhope's ordinances could not prevent them from filling the wetlands, that Fairhope had acted negligently regarding Breland's application for a land- disturbance permit, and that Breland's criminal citation for beginning work without a permit should be expunged. The trial court rejected their claims following a nonjury trial. The Breland parties have appealed the trial court's judgment to this Court. For the reasons discussed below, we affirm the judgment. Facts and Procedural History In 1999, Breland purchased 65 acres in Baldwin County ("the property"), which lie outside Fairhope's corporate limits but within its police jurisdiction. Breland received preliminary site-plan approval from Fairhope in 2000 to develop Battles Wharf Landing, an 18-lot subdivision on uplands within the property. Rather than developing the 18-lot project, Breland revised his plan to include 36 lots. This new plan 2 1180492 required filling approximately 10.5 acres of wetlands to develop 20 of the lots. To fill the wetlands, Breland had to obtain, through a joint- application process, a permit from the United States Army Corps of Engineers ("the Corps") and a certification from the Alabama Department of Environmental Management ("ADEM"). The joint application included a preliminary subdivision-plot plan. Breland's joint application was subject to a period of public input. In 2001, Fairhope's mayor, Tim Kant, submitted a letter on behalf of Fairhope's city council objecting to Breland's application. That letter raised "environmental concerns associated with this project" and noted that filling "these natural wetlands will cut off what acts as a filter for water draining into Mobile Bay and also acts as a sponge, soaking in runoff water reducing drainage naturally." Mayor Kant testified at trial that, around the time of Breland's application, Fairhope passed a comprehensive plan directed at improving stormwater management and 3 1180492 commissioned a study by Audubon International, which recommended additional protections.1 The Baldwin County Commission also objected to Breland's application, arguing that his proposal did not conform with Baldwin County Subdivision Regulation 5.2.2 ("Regulation 5.2.2"), which provides, in relevant part: "No development shall be approved that proposes to fill either jurisdictional or nonjurisdictional wetlands in order to create buildable lots. ... Lots may be platted where sufficient upland areas exist to provide a building site for the principal structure and necessary ancillary facilities. Fill may be used where necessary to provide access to lots where approval for such fill has been received from the Corps of Engineers and other appropriate governmental agencies...."2 The County also objected on the basis of the ecological impact of the proposed development. 1According to Mayor Kant, the reason for these concerns was that Fairhope was experiencing a "major influx of development" around that time, which was causing stormwater challenges and flooding problems that "put pressure on [Fairhope] to pass regulations and ordinances to deal with it." 2Regulation 5.2.2 was amended in 2012 to exempt landowners who have obtained filling permits from the Corps. 4 1180492 At the Corps' request, Breland responded to the objections to his proposal. He acknowledged that he "is required by law to obtain approval under separate authorization from the Baldwin County Planning Commission[, which] will review the project for conformity," and that "[s]hould the Commission not approve conformity, the project will not be built." ADEM completed its review of Breland's application and issued its water-quality certification to the Corps in October 2002 ("the certification"). The next month, the Corps issued a permit to Breland, which provided authorization for him to "construct a residential subdivision" of 35 lots and "include[d] the filling" of wetlands ("the federal permit"). The federal permit was subject to several conditions and limitations. To offset the loss of wetlands, Breland had to preserve nearly 31 acres of additional wetlands on the property through a restrictive covenant that prohibited any other land disturbance. Additionally, it required Breland to purchase 24.68 mitigation credits from a mitigation bank run by Weeks Bay Watershed Protective Association, Inc. ("Weeks Bay"). The federal 5 1180492 permit also provided that Breland must "comply with all Federal, State, and local floodplain ordinances" and that it did not "obviate the need to obtain other Federal, State, or local authorizations required by law" or "grant any property rights or exclusive privileges." Breland purchased the mitigation credits in July 2003 for $143,144. In 2003, Breland's project manager contacted Fairhope and County officials about developing a subdivision on the property called Loyola Park. Fairhope issued two letters in response, raising concerns that "[a]lmost all of the entire project appears to be delineated wetlands" and noting that "the Planning Commission may consider this property not suitable for platting and development because of the filling issues, drainage issues, and the health issues of building houses in a wetland." Fairhope also referred to the County's subdivision regulations, stating that in Fairhope's view of the regulations, "the uplands should be developed and not the wetlands." The County denied Breland's site plan 6 1180492 in part because it did not conform with Regulation 5.2.2.3 Breland did not pursue further approval of Loyola Park. At the time the federal permit and the certification were issued, Fairhope did not have an ordinance in place governing the filling of wetlands outside Fairhope's corporate limits. That changed in August 2006, when Fairhope enacted Ordinance No. 1313. That ordinance prohibited filling activity "until the land owner or contractor has obtained a land disturbing permit from the City of Fairhope." Ordinance No. 1313, which was enacted to "protect the water quality and environmental integrity for the area watersheds," provided that fill material could not be more than 10% "red [soil] or clay." Over a year later, without applying for a land-disturbance permit under Ordinance No. 1313, Breland moved heavy machinery to the property to clear an entrance in preparation for filling. Before Breland 3In a report on Breland's plan, County staff concluded that it "exploits the existing loophole in the regulations" -- which did "not allow lots that are entirely wetland to be platted" -- by obtaining the federal permit before securing the County's subdivision approval so that he could plat lots "that were 100% wet." 7 1180492 began land-disturbance activity, however, a Fairhope zoning enforcement officer issued a stop-work order because of Breland's failure to obtain a land-disturbance permit. In April 2008, the Breland parties applied for land-disturbance permits from Fairhope and the County. The County issued a permit to Breland Corporation on June 2, 2008. In the cover letter, the County stated that "it appears that the purpose of this permit is to ultimately allow for the development of a subdivision." The County reminded Breland Corporation that, as such, under its subdivision regulations, "[n]o development shall be approved that proposes to fill either jurisdictional or non-jurisdictional wetlands in order to create buildable lots," and it advised Breland Corporation to consult with the County and Fairhope "prior to moving forward with any development plans." Fairhope never responded to Breland's permit application. But on June 9, 2008, Fairhope enacted Ordinance No. 1363, which instituted a moratorium on issuing land-disturbance permits for projects that "may result in the loss, fill or destruction of wetlands." In its preamble, the ordinance cited "substantial growth and development" locally that had 8 1180492 "resulted in the loss of certain sensitive environmental wetlands," which "serve a number of functions including pollution control and protection of water quality, flooding and stormwater control, and which provide habitat for fish, wildlife and vegetation." Ordinance No. 1363 was set to lapse by its own terms in October 2008. With the federal permit set to expire in November 2008, Breland sued Fairhope in the Baldwin Circuit Court to enjoin the enforcement of Ordinance No. 1363 and to obtain a judgment declaring that Breland's land-disturbance-permit application to Fairhope should be granted. The Breland parties voluntarily dismissed that lawsuit after obtaining an extension of the federal permit. Two days before the moratorium expired, Fairhope adopted Ordinance No. 1370. Like Ordinance No. 1313, Ordinance No. 1370 governs land-disturbance permits for projects that fill or destroy wetlands, but it imposes more detailed regulations. Ordinance No. 1370 states that the destruction of wetlands within and near Fairhope had "increased downstream water pollution, flooding, and erosion and [had] resulted in the loss of wildlife habitat." The ordinance also contains a "grandfather 9 1180492 clause," which exempted from its permitting process "[a]ll uses and activities that were lawful before the passage of this ordinance." The Breland parties have not attempted to obtain a permit under Ordinance No. 1370.4 The Breland parties contend that, between late 2008 and 2011, Fairhope officials negotiated with Breland to purchase the property. But by late 2011, Breland believed that Fairhope would not purchase the property. Without seeking further permits from Fairhope, Breland attempted to resume his attempt to fill the wetlands. Fairhope issued a second stop-work order the same day. A few days later, a Fairhope official explained to Breland that he needed to comply with multiple ordinances, including Ordinance No. 1370. Fairhope also issued a criminal citation to Breland for failing to obey a city ordinance. The Breland parties then brought the underlying lawsuit against Fairhope in the Baldwin Circuit Court. They sought: (1) a temporary 4Fairhope later adopted additional relevant ordinances, including Ordinance No. 1398, in August 2009, and Ordinance No. 1423, in May 2010. The Breland parties have not attempted to comply with these ordinances either. 10 1180492 restraining order and a preliminary injunction against Fairhope's attempts to stop them from filling the wetlands; (2) a judgment declaring that they had obtained a vested right to fill the wetlands; (3) a judgment declaring that Fairhope's ordinances are preempted by state law; (4) a judgment declaring that Fairhope's ordinances are improper de facto zoning regulations; (5) a verdict of negligence against Fairhope for allegedly mishandling Breland's 2008 permit application; and (6) expungement of the 2011 criminal citation issued against Breland. The trial court entered a summary judgment in Fairhope's favor, holding that the statute of limitations barred most of the Breland parties' claims. The Breland parties appealed to this Court, and we reversed the trial court's judgment and remanded the case to the trial court, holding that "each time Fairhope enforced its ordinances to stop Breland from filling activity on his property Fairhope committed a new act that serves as a basis for a new claim." Breland v. City of Fairhope, 229 So. 3d 1078, 1090 (Ala. 2016). 11 1180492 On remand, the trial court granted The Battles Wharf/Point Clear Protective Association's motion to intervene and held a nonjury trial.5 In a posttrial order, it held that the Breland parties had not obtained a vested right to fill the wetlands, that state law did not preempt Fairhope's ordinances, and that Fairhope's ordinances were not improper zoning ordinances. Therefore, it held that the Breland parties' negligence and expungement claims were moot. The Breland parties then appealed to this Court. Standard of Review Where, as here, a trial court hears oral testimony in a nonjury trial, the ore tenus rule governs. Under that rule, the findings of the trial court 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). Nevertheless, we review the trial court's "conclusions of law or its application of law to facts" de novo. Mitchell v. Brooks, 281 So. 3d 1236, 1243 (Ala. 2019). 5The Battles Wharf/Point Clear Protective Association is a group of nearby property-owners who objected to Breland's proposed development. 12 1180492 Analysis The Breland parties raise a host of arguments on appeal, but we need not address all of them. As we explain: (1) the Breland parties' constitutional challenge to Ordinance No. 1363 is moot, and their void-for- vagueness constitutional challenge to the other ordinances is not ripe; (2) the trial court did not err in holding that the Breland parties had no vested right to fill the wetlands; (3) the trial court properly held that state law does not preempt Fairhope's ordinances; and (4) the trial court did not err in holding that Fairhope's ordinances are not de facto zoning ordinances. It is not necessary to address the Breland parties' remaining arguments. A. The Breland Parties' Constitutional Arguments The Breland parties contend that Fairhope's ordinances -- "especially Ordinance [No.] 1370" -- are unconstitutionally vague and allow for arbitrary enforcement. They also argue that Fairhope has denied them due process of law by refusing to apply the grandfather clause in Ordinance No. 1370 to their vested rights to fill the wetlands. The trial court did not address these arguments in its posttrial order. 13 1180492 "In reviewing an ordinance against a challenge of unconstitutional vagueness, '[w]e must be certain that the ordinance is so plainly and palpably inadequate and incomplete as to be convinced beyond reasonable doubt that it offends the constitution or we will not strike it down.'" Ex parte Baldwin Cnty. Planning & Zoning Comm'n, 68 So. 3d 133, 138-39 (Ala. 2010) (quoting Walls v. City of Guntersville, 253 Ala. 480, 485, 45 So. 2d 468, 471 (Ala. 1950)). We will declare an act to be void for vagueness "only if the act is so indefinite that 'a person of ordinary intelligence, exercising common sense [could] derive no rule or standard at all from the ... language,' or if it is so vague as to 'authorize or encourage arbitrary and discriminatory enforcement.' " 68 So. 3d at 139 (quoting Northington v. Alabama Dep't of Conservation & Nat. Res., 33 So. 3d 560, 567 (Ala. 2009)). In a vagueness challenge not based on the First Amendment, we examine whether the statute is vague "as applied to the conduct allegedly proscribed," not as applied to "hypothetical concerns." Id. (internal quotation marks and emphasis omitted). It is undisputed that the Breland parties have not attempted to comply with any of Fairhope's ordinances adopted after Ordinance No. 14 1180492 1313. We therefore need not analyze the Breland parties' vagueness arguments as to Ordinance No. 1370, or those ordinances enacted after it, because they are "hypothetical concerns" that are not ripe for our review. Id.; see also DeBuys v. Jefferson Cnty., 511 So. 2d 196, 199 (Ala. Civ. App. 1987) (denying due-process challenge to county's failure to implement "ascertainable" standards for evaluating permit requests because plaintiffs "refused to give the Committee the opportunity to apply those standards to their requests").6 Breland did apply for a land-disturbance permit under the framework of Ordinance No. 1313. The Breland parties argue: "Ordinance 6On a similar note, the Breland parties also argue that the moratorium imposed by Ordinance No. 1363 attempted to suspend the law in violation of Ala. Const. 1901, Art. I, § 21. The moratorium expired by its own terms in 2008, and Breland voluntarily dismissed his lawsuit challenging the validity of the moratorium after it expired and after he obtained an extension of the federal permit. Thus, this argument is moot. See Bradley Outdoor, Inc. v. City of Florence, 962 So. 2d 824, 833 (Ala. Civ. App. 2006) (holding that challenge to moratorium, which expired by its terms when a new ordinance was enacted, was mooted by the expiration of the moratorium); see also Aaron Private Clinic Mgmt. LLC v. Berry, 912 F.3d 1330, 1335 (11th Cir. 2019) (holding that challenge to temporary licensing moratorium was moot because the moratorium had expired). 15 1180492 [No.] 1313 references obtaining a land disturbance permit but provides no standards by which such a permit may be granted or denied. Thus, from the face of the ordinance, it appears that a permit is due to be granted merely by filing the application." Breland parties' brief, at pp. 54-55. Thus, while this argument appears in the briefing alongside the Breland parties' vagueness argument, their argument is not that Ordinance No. 1313 is void because it is unconstitutionally vague.7 Rather, at bottom, their argument is that they are entitled to the permit by the terms of Ordinance No. 1313. 7In fact, the Breland parties conceded five times in their briefing that they are obligated to comply with Ordinance No. 1313. See Breland parties' brief, at p. 24 ("Breland contends that he must comply only with Ordinance [No.] 1313...."); id. at p. 25 ("Breland acquired 'vested rights' to fill under his Permit, subject only to Ordinance [No.] 1313...."); id. at p. 29 ("Fundamental principles of fairness, due process and equity dictate that Breland has a 'vested right' to fill the wetlands with material that is compliant with Ordinance [No.] 1313."); id. at p. 68 ("Breland seeks a determination that he be permitted to fill the Property...subject only to the 'red clay' limitations contained in Ordinance [No.] 1313...."); Reply brief, at p. 35 ("Breland prays for declaratory relief establishing his right to fill the Property in compliance with the Permit, subject only to the 'red clay' provisions of Ordinance [No.] 1313...."). Taking the Breland parties' argument to mean that Ordinance No. 1313 is void for vagueness would conflict with these concessions. 16 1180492 On that issue, the trial court noted that, "[w]hile [it] found no good cause for the City's inaction on the [application], the parties agreed in open court that the City's failure to act on the application served as a denial" -- a finding Breland does not challenge. But the trial court did not determine what action Fairhope should have taken or would have been justified in taking. Nor, for that matter, did the trial court make factual findings in its posttrial order essential to evaluating whether Breland was entitled to the permit, and we are ill equipped to make those factual findings in the first instance on appeal.8 Additionally, the Breland parties 8By contrast, in other cases in which this Court has held that a permit was wrongfully denied, there have been clear factual findings supporting that conclusion. See, e.g., Mobile Cnty. v. City of Saraland, 501 So. 2d 438, 440 (Ala. 1986) (holding that city acted arbitrarily where it routinely granted permits to other applicants, the applicant complied with all provisions of the ordinance, and the permit would have been granted absent political pressure, among other facts); Pritchett v. Nathan Rodgers Constr. & Realty Corp., 379 So. 2d 545, 548 (Ala. 1979) (holding that city acted arbitrarily by granting and denying sewer-connection permits to different applicants on a case-by-case basis and where it had not enacted a moratorium on those permits); Swann v. City of Graysville, 367 So. 2d 952, 953-54 (Ala. 1979) (noting that city had issued permits to applicants similarly situated to the plaintiff). 17 1180492 have not articulated a clear federal or state constitutional basis for their argument that Breland is entitled to a land-disturbance permit. But even assuming that Breland's application met the technical requirements, an application for a permit does not automatically give the applicant a vested right to avoid compliance with later, duly enacted ordinances under a municipality's police power. Further, the trial court's unchallenged finding that Breland's application was denied by the passage of time is not "palpably erroneous or manifestly unjust." Philpot, 843 So. 2d at 125. Thus, the Breland parties' argument concerning Ordinance No. 1313 does not exempt them from compliance with Fairhope's later enacted ordinances.9 9Because the Breland parties did not obtain a permit under Ordinance No. 1313 or establish that they are entitled to it, filling the wetlands was not a "lawful use or activit[y]," and thus we reject their claim that the grandfather clause in Ordinance No. 1370 exempts them from compliance with that ordinance or that Fairhope denied them due process of law by not applying this exception to their filling efforts. And for the same reason, we reject the Breland parties' argument that Fairhope's ordinances have been improperly applied retroactively. 18 1180492 B. The Breland Parties' Vested-Rights Argument The Breland parties contend that the trial court erred when it held that they had not obtained a vested right to fill the wetlands on the property. Specifically, they argue that the permits they obtained, the $143,144 they spent on mitigation credits, and the unspecified sums they spent on consultants created a vested right to fill the wetlands when they first obtained a land-disturbance permit from the County. The Breland parties also argue that the trial court erred in applying Regulation 5.2.2 and in holding that they failed to exhaust administrative remedies before filing the underlying lawsuit.10 Thus, the Breland parties contend, they may fill the wetlands subject only to the requirements in Ordinance No. 1313. In Grayson v. City of Birmingham, 277 Ala. 522, 173 So. 2d 67 (1963), a case on which the Breland parties rely, this Court addressed the framework for evaluating a vested-rights claim. There, a company 10Because we affirm the trial court's judgment holding that the Breland parties did not obtain a vested right, it is not necessary to evaluate the merits of their argument that they were not required to exhaust administrative remedies. 19 1180492 obtained approval from the Jefferson County Planning and Zoning Commission to have agricultural property rezoned to residential and commercial parcels. The company then improved the commercial parcels by paving streets, adding water pipes and storm sewers, and grading, leveling, and clearing the lots, at a cost (as of the mid 1950s) of $3,518. About two years after that approval, the City of Birmingham annexed the land and rezoned the commercial parcels to residential. The company sued Birmingham to challenge the rezoning of the plaintiffs' property. On appeal, this Court explained that such a rezoning "must stand or fall on vested rights, which, in the absence of a contract, depend for their existence on equitable fairness, both to the property owner and to the general public." 277 Ala. at 525, 173 So. 2d at 69. This Court further held that the question of vested rights is a fact-intensive inquiry in which "changes, investments, and permits" relating to the "structures initiated or completed, are made the criteria of hardships imposed on the property owner and judicially recognized to sustain the claims of vested rights." Id. This Court noted in Grayson that the plaintiffs' investments in the property, standing alone, might "serve to establish [the plaintiffs'] 20 1180492 contention that they have acquired a vested right in the property." 277 Ala. at 526, 173 So. 2d at 70. But the Court also weighed the landowner's interests against "the reasonable necessity for protecting and promoting the health, safety, morals, and general welfare of the public" underlying Birmingham's rezoning of the plaintiffs' property -- in that case, minimizing traffic hazards near a school. 277 Ala. at 528, 173 So. 2d at 72. As such, the landowner's loss relating to its "naked lots, which [were] without structural initiation thereon" and with "no building permit granted," was of "minor weight" compared the city's zoning responsibilities. 277 Ala at 525, 527, 173 So. 2d at 69, 71. The Breland parties also rely on Baker v. State Board of Health, 440 So. 2d 1098 (Ala. Civ. App. 1983). In Baker, a landowner obtained a permit to install septic tanks on 3,200 square-foot lots for a mobile-home park, which was permitted under applicable regulations at that time. The landowner then spent about $32,000 purchasing equipment, clearing the property, and building roads. The mobile-home regulations were later changed to require 15,000 square-foot lots. After neighboring landowners complained about the mobile-home development and sought to enforce 21 1180492 regulations, the Court of Civil Appeals held that the regulation permitted the landowner to develop the park on 3,200 square-foot lots based on a grandfather clause in the new regulation. Additionally, the court found the landowners' "general equitable" arguments pertinent, noting that they "relied on the permit and expended time and money developing and improving the lots according to the regulations under which they acquired the permit." 440 So. 2d at 1100. In both Grayson and Baker, the landowners made physical improvements to the land in reliance on the relevant government authorizations.11 And, unlike here, there is no indication that relevant governing authorities objected to the development from the outset or during the landowners' development process. Further, the Breland parties cite no case in which an Alabama court has held that a 11The Breland parties also rely on Greenbriar Village, L.L.C. v. City of Mountain Brook, 202 F. Supp. 2d 1279 (N.D. Ala. 2002), aff'd in part, rev'd in part, 345 F.3d 1258 (11th Cir. 2003). There, the trial court held that the landowner had a vested right to the continuation of a city permit. As in Grayson and Baker, however, the landowner in Greenbriar Village had completed at least some improvement to the land, and, unlike here, there is no indication that the landowner lacked any applicable permits. 22 1180492 landowner's rights vested based solely on expenses related to permit applications, permit approvals, or development plans.12 Yet, Breland made no physical improvements to the property despite having had the federal permit for nearly four years before Fairhope enacted Ordinance No. 1313. Although physical improvement to property may not be required to establish a vested right in every instance, the lack of physical improvement to the property, combined with other equitable considerations outlined here, foreclose the Breland parties' vested-rights argument. First, the federal permit -- which serves as a key basis for the Breland parties' vested-rights argument -- states: "This permit does not grant any property rights or exclusive privileges." (Emphasis added.) And it is a condition of the federal permit that Breland must comply with local law. As noted, Breland's permit application was denied by the passage of 12In the zoning context, "[t]he general rule is that applications for building permits may be denied based on zoning regulations enacted after applications are made regardless of whether the zoning regulations were pending when the applications were made." 101A C.J.S. Zoning and Land Planning § 289 (2015). 23 1180492 time; thus, he was not in compliance with local law or the federal permit when he claims his rights vested. Second, the County objected to Breland's federal permit application in part because the proposed project did not conform with its subdivision regulations. At the Corps' request for a response to that concern, Breland responded: "The applicant is required by law to obtain approval under separate authorizations from the Baldwin County Planning Commission who will review the project for conformity. Should the Commission not approve conformity, the project will not be built." Used in the context of the application process, "project" did not merely refer to construction of houses, but to filling the wetlands as well.13 Further, the federal permit provided that "[t]he determination of this office that issuance of this 13See, e.g., "Federal Permit Project" description ("The authorized work includes the filling of ... wetlands ...." (emphasis added)); ADEM certification ("The Alabama Department of Environmental Management has completed its review of the above referenced proposed project to impact 10.49 acres of pine flatwood wetlands ...."); joint application to the Corps and ADEM ("The project involves the clearing, grading and filling of 10.47 acres of wetlands for the construction of 20 single family residential lots ...."). 24 1180492 permit is not contrary to the public interest was made in reliance on the information you provided." (Emphasis added.)14 Breland initially followed through with his representation to the Corps when he submitted his Loyola Park site-plan proposal to the County and Fairhope. Fairhope responded first, suggesting that the proposal might not conform with the County's subdivision regulations. Proving Fairhope correct, the County rejected that proposal in part on the basis of Regulation 5.2.2. Several years after the Loyola Park plan failed, Breland embarked on his plan to fill first and seek permission later.15 The Breland parties contend that none of this matters because, they say, Regulation 5.2.2 does not apply to Breland's initial fill efforts and that the fill-first approach was Breland's plan all along. We need not 14In fact, the Corps made specific findings in its review of the project concerning compliance with County regulations. ("[T]he applicant[s] provided that they are required by law to obtain separate approval and authorization from the Baldwin County Planning Commission for conformity ...." and "[t]he proposed project does not meet all existing zoning and land use requirements ...."). 15Even then, when the County issued its land-disturbance permit in 2008, it reminded Breland yet again of the need to comply with Regulation 5.2.2. 25 1180492 decide whether the Breland parties are correct.16 Rather, we consider it relevant that Breland unambiguously represented to the Corps that the "project" would not be built if it did not conform with the County's subdivision regulations and that Fairhope and the County have consistently objected to the filling on the basis of the County's subdivision regulations. Similarly, the Breland parties' additional argument -- that the County has since amended Regulation 5.2.2 to allow Corps-approved wetlands filling -- does not alter this analysis. That amendment took place after Fairhope enacted the ordinances at issue here. And had Breland not represented to the Corps that he would comply with the County's subdivision regulations, it is unclear whether the Corps would have issued the permit in the first place. Finally, based on this Court's equitable analysis in Grayson, we consider "the reasonable necessity for protecting and promoting the health, safety, morals, and general welfare of the public." Grayson, 277 16We do note, however, that the Breland parties' fill-first position is inconsistent with Breland's representation to the Corps and his Loyola Park proposal in 2003. 26 1180492 Ala. at 528, 173 So. 2d at 72. Fairhope is empowered to adopt ordinances "to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience" of citizens within its police jurisdiction. § 11-45-1, Ala. Code 1975. The Breland parties have presented no convincing evidence that Fairhope has arbitrarily targeted them or the property. In fact, Fairhope approved Breland's initial development plans for the property in 1999, and Fairhope's actions corroborate its stated concerns about growth and environmental management. Thus, the record supports the trial court's finding that the ordinances at issue were "designed to minimize potential harm and impacts to the environment and adjacent property owners." We acknowledge that the Breland parties have expended significant time and resources on this project.17 But, under this Court's framework 17There is evidence in the record suggesting that the sum Breland spent on mitigation credits may not be lost. The owner of Weeks Bay testified that the mitigation credits have a market value that has increased from $5,800 per credit at the time Breland purchased them to between $13,000 and $15,000 per credit at the time of trial. She further testified that Weeks Bay "would buy them back today" if the Corps approved. 27 1180492 in Grayson, we must balance those expenses against other equitable considerations. Given the equitable considerations here, we conclude that the trial court did not err in holding that the Breland parties failed to obtain a vested right to fill the wetlands. See Grayson, 277 Ala. at 528, 173 So. 2d at 72 ("Where the [trial court's] decree correctly determines the equities of the case, as here, ... the case will be affirmed."). C. The Breland Parties' Preemption Arguments The Alabama Constitution states that "[t]he legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with general laws of this state." Ala. Const., 1901, Art. IV, § 89. The Legislature, in turn, has given municipalities the authority to "adopt ordinances and resolutions not inconsistent with the laws of the state." § 11-45-1, Ala. Code 1975. Given those principles, this Court has identified three instances in which state law preempts municipal ordinances: (1) when the statute expressly "defines the extent to which its enactment preempts municipal ordinances"; (2) "when a municipal ordinance attempts to regulate conduct in a field that the legislature intended the state law to exclusively occupy" -- that is, "field preemption"; 28 1180492 and (3) "when a municipal ordinance permits what a state statute forbids or forbids what a statute permits." Ex parte Tulley, 199 So. 3d 812, 821 (Ala. 2015). The Breland parties contend that Fairhope's ordinances are invalid for two reasons: (1) the Alabama Environmental Management Act, § 22- 22A-1 et seq., Ala. Code 1975 ("AEMA"), and the Alabama Water Pollution Control Act, §22-22-1 et seq., Ala. Code 1975 ("AWPCA") preempt the field of wetlands regulations, and (2) because ADEM issued the certification in accordance with the AWPCA, Fairhope's ordinances improperly conflict with state law. We address each argument. 1. The AEMA and the AWPCA Do Not Preempt the Field of Wetlands Regulation For state law to preempt an entire field, " ' " 'an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way.' " ' " Peak v. City of Tuscaloosa, 73 So. 3d 5, 19-20 (Ala. Crim. App. 2011) (quoting Gann v. City of Gulf Shores, 29 So. 3d 244, 251 (Ala. Crim. App. 2009), quoting other cases). To make that determination, we look to the text of the relevant statutes. Ex parte 29 1180492 Waddail, 827 So. 2d 789, 794 (Ala. 2001). The presence of "extensive regulation is not sufficient to establish that the State intended to preempt an entire field." Peak, 73 So. 3d at 24. Notably, however, the Breland parties rely on the text of the AEMA and the AWPCA to establish field preemption -- not the regulations approved under those statutes. See Breland parties' reply brief, at p. 9-10. Concerning the AEMA, the Breland parties focus on a provision of that statute setting forth the Legislature's express purpose. See § 22-22A-2, Ala. Code 1975. Specifically, the Breland parties point to the Legislature's goal of providing "a comprehensive and coordinated program of environmental management," the elimination of overlapping or duplicative efforts "within the environmental programs of the state, and a "unified environmental regulatory and permit system." The Breland parties also argue that the Legislature intended to "retain for the state" control over its air, land, and water resources. Thus, according to the Breland parties, this evidences the Legislature's "clear preemptive intent." Breland parties' brief, at p. 38. 30 1180492 The reliance on § 22-22A-2 is misguided. The words "wetlands," "filling," and related terms do not appear in the text of the AEMA. And when the statute is read in its full context, it is clear that § 22-22A-2 attempts to create efficiencies within State agencies and programs -- not between the State and municipalities. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 24, at 167 (Thomson/West 2012) ("The text must be construed as a whole."). For example, § 22-22A-2 states that ADEM was created to "effect the grouping of state agencies," to "eliminate overlapping or duplication of effort within the environmental programs of the state," and to consolidate those responsibilities "within the Executive Branch." (emphasis added); see also § 22-22A-4, Ala. Code 1975 (consolidating various state commissions and boards under ADEM's purview); § 22-22A-9, Ala. Code 1975 (transferring funds from previous state commissions to new fund under ADEM and abolishing funds of older state commissions). Similarly, the reference in § 22-22A-2(2) to retaining control over air, land, and water resources concerns the state's relationship to the federal government, as it expressed its intent to retain that control "within the constraints of 31 1180492 appropriate federal law." See also § 22-22A-4(n), Ala. Code 1975 (designating ADEM as the "State Environmental Control Agency for the purposes of federal environmental law"). The Breland parties' reliance on the AWPCA fares no better. The AWPCA broadly instructs ADEM to "receive and examine applications, plans, specifications, and other data and to issue permits for the discharge of pollutants" into state waters. § 22-22-9(g), Ala. Code 1975. Like the AEMA, the AWPCA contains no specific references to wetlands, and the Breland parties do not rely on any regulations promulgated under the AWPCA to establish field preemption. Further, the express purposes of the AWPCA are to conserve the state's water resources and to regulate pollution in state waters. See § 22-22-2, Ala. Code 1975. Although those are also purposes of Fairhope's ordinances, they are not the only purposes; for example, Fairhope's ordinances also exist to curb flooding and erosion. See, e.g., Ordinance No. 1363 (preserving wetlands because they "serve a number of functions including pollution control and protection of water quality, flooding and stormwater control"); Ordinance No. 1370 ("The purpose of this ordinance is ... (a) protection of the quality and quantity 32 1180492 of all Wetlands and waters ... and (d) minimization of impacts to existing land uses and properties ... by preventing increases in flood, erosion, and other natural hazards due to destruction of Wetlands and/or Buffer areas."). And even in carrying out the responsibility to regulate pollution, the AWPCA at least implicitly contemplates municipal action in the same field. See § 22-22-9(d) ("It shall be the further duty of the commission to extend its cooperation and to advise industries and municipalities relative to the control of waste and other deleterious matter of pollutive nature and to make available to industries and municipalities the benefits of its studies and findings."). Although the Breland parties do not rely on specific regulations indicating that the Legislature intended to preempt the field of wetlands regulation, they argue more broadly that ADEM "met its legislative charge by adopting statewide regulations for permitting filling and discharge activities in the state's wetlands." Breland parties' brief, at p. 40. But that does not mean that the Legislature has preempted all other wetlands regulations. See Tulley, 199 So. 3d at 821 (noting that municipalities may " 'enlarge[] upon the provision of a statute by requiring 33 1180492 more restrictions than the statute requires' " (quoting Congo v. State, 409 So. 2d 475, 478 (Ala. Crim. App. 1981))); Peak, 73 So. 3d at 24 ("[E]xtensive regulation is not sufficient to establish that the State intended to preempt an entire field."). Further, at least some regulations promulgated under the AEMA and the AWPCA require compliance with municipal- and county-approval processes. See, e.g., Ala. Admin. Code (ADEM) R. 335-6-12-.35(5)(c) ("[I]ssuance of registration [of a National Pollutant Discharge Elimination System permit] under this Chapter does not modify in any way an operator's legal responsibility or liability, to apply for, obtain, or comply with other applicable ADEM, federal, State, or local government permits, authorizations, registrations, ordinances, regulations, certifications, licenses, or other approvals not regulated by this chapter prior to commencing or continuing construction disturbance regulated by this Chapter." (emphasis added)). For these reasons, the AEMA and the AWPCA do not "make manifest a legislative intent that no other enactment may touch upon the subject in any way" such that Fairhope's ordinances are preempted. Peak, 73 So. 3d. at 19-20. 34 1180492 2. Fairhope's Ordinances Do Not Conflict with State Law An ordinance is inconsistent with state law when it "permits what a state statute forbids or forbids what a statute permits." Tulley, 199 So. 3d at 821. The Breland parties argue that the certification, issued in accordance with the AWPCA, conflicts with Fairhope's ordinances. Assuming that a state permit, license, or certification can serve as the basis for a conflict-preemption claim, state approval for a given action does not necessarily eliminate the need to comply with local law. In Gibson v. City of Alexander City, 779 So. 2d 1153, 1153 (Ala. 2000), the Alabama Alcoholic Beverage Control Board issued a business owner a license that allowed him to sell and serve alcoholic beverages 24 hours per day, 6 days per week. Alexander City later adopted an ordinance prohibiting establishments from allowing alcohol consumption on their premises between midnight and 7 a.m., and the business owner challenged the ordinance on the grounds that it was inconsistent with Alabama law. This Court rejected his argument, holding that "[t]he challenged ordinance merely enlarges upon the statutory provisions of the Alcoholic Beverage Licensing Code; it is not inconsistent with Alabama 35 1180492 statutory law or the Alabama Constitution." 779 So. 2d at 1155; see also Alabama Recycling Ass'n, Inc. v. City of Montgomery, 24 So. 3d 1085, 1090 (Ala. 2009) (holding that ordinance does not conflict with statute because it "enlarges upon the provisions of the Act by adding certain restrictions" or "merely because the Act is silent where the ordinance speaks"). ADEM issued the certification as a part of the joint application and review process with the Corps, and it did not authorize the filling apart from the federal permit -- nor did it exempt landowners from compliance with local regulations. But the federal permit, issued as a part of the joint review process, expressly required compliance with local regulations. Further, the Breland parties have not identified any conditions in the certification that conflict with the standards in Fairhope's ordinances. And as the trial court found, "[n]one of the ordinances adopted by [Fairhope] prohibits the construction of a subdivision or the filling of wetlands." Thus, as in Gibson, Fairhope's ordinances "merely enlarge" 36 1180492 upon state law. Accordingly, the trial court did not err in holding that the ordinances do not conflict with Alabama law.18 D. Fairhope's Ordinances Are Not De Facto Zoning Laws The Breland parties contend that Fairhope's ordinances have been "intentionally and systematically applied against [Breland] to prevent the otherwise lawful use and development of his wetlands." Breland parties' brief, at p. 56. Because, they claim, Fairhope has prohibited any lawful "use" of the wetlands, the ordinances are de facto zoning regulations, which are improper because they cannot apply outside Fairhope's corporate limits. "'Zoning' is primarily concerned with the regulation of the use of property, to structural and architectural designs of buildings, and the character of use to which the property or the buildings within classified 18Concerning the preemption arguments, the trial court noted that the Breland parties failed to "demonstrate the existence of a justiciable controversy that would entitle [them] to declaratory judgment relief." Because we affirm the trial court's holding concerning the merits of the Breland parties' preemption claim, we need not address the Breland parties' argument that the trial court erred in holding that no justiciable controversy exists. 37 1180492 or designated districts may be put." Roberson v. City of Montgomery, 285 Ala. 421, 425, 233 So. 2d 69, 72 (1970). The fact that regulations limit the type of activity that can take place on real property, however, does not convert them into zoning laws. For example, the Court of Civil Appeals has held that county subdivision regulations prohibiting development of land unsuitable because of flooding or improper drainage were not zoning ordinances. See Dyess v. Bay John Devs. II, L.L.C., 13 So. 3d 390, 395 (Ala. Civ. App. 2007), cert. quashed, 13 So. 3d 397 (Ala. 2009). Applying Roberson, the court in Dyess reasoned that the regulations did not "seek to limit the actual use of the land" and that they did not "mandate certain types of land usage based upon categories, zones, or districts." Id. Rather, the court held that the regulations were "a statutorily authorized and proper exercise of the general police power to plan 'orderly development.' " Id.; see also City of Robertsdale v. Baldwin Cnty., 538 So. 2d 33, 36 (Ala. Civ. App. 1988) (holding that city's requirement for building permit outside corporate limits was valid exercise of police power). As in Dyess, Fairhope's ordinances do not "mandate certain types of land usage based upon categories, zones, or districts." Dyess, 13 So. 3d 38 1180492 at 395. And as explained above, the trial court's finding that the ordinances are "designed to minimize potential harm and impacts to the environment and adjacent property owners" is not palpably erroneous. We therefore agree with the trial court that Fairhope's ordinances "were enforceable in the police jurisdiction as they are not zoning ordinances," but instead were "enacted pursuant to [Fairhope's] police power to protect public health, safety, and welfare." Conclusion The Breland parties have not established that Fairhope's ordinances are invalid or that they obtained a vested right to fill the wetlands on the property. Further, the Breland parties' argument that Breland's citation should be expunged is premised on the notion that he was not obligated to comply with Fairhope's ordinances in existence at the time of his citation. Because we have rejected that premise, the Breland parties' request for expungement is moot. And because we do not reverse or remand for further proceedings and there is no other apparent remedy at this stage, the Breland parties' claim that the trial court erred by allowing The Battles Wharf/Point Clear Protective Association to intervene is moot. 39 1180492 AFFIRMED. Bolin, Shaw, Mendheim, and Stewart, JJ., concur. Parker, C.J., concurs in part and concurs in the result. Bryan, J., concurs in the result. Sellers, J., dissents. 40 1180492 PARKER, Chief Justice (concurring in part and concurring in the result). I concur in the main opinion as to all but its analysis of whether Charles K. Breland, Jr., and Breland Corporation ("the Breland parties") acquired a vested right to fill the wetlands. "Under either the vested rights or the estoppel standard, the developer or builder must demonstrate: (1) the existence of a valid government act; (2) substantial reliance on the governmental act; (3) good faith; and (4) that the rights are substantial enough to make it fundamentally unfair to eliminate those rights." 1 John J. Delaney et al., Handling the Land Use Case: Land Use Law, Practice & Forms § 35:3 (3d ed. 2020) (footnotes omitted). Neither the federal and county permits nor any action by the City of Fairhope created a reasonable expectation, as against the City, that development could proceed. Therefore, the Breland parties never obtained a vested right in equity. But the main opinion goes further by distinguishing expenditures from physical improvements for purposes of determining whether a developer has substantially relied. I do not see why expenditures made in reasonable reliance on an act by a government authority should not be treated similarly to improvements. See, e.g., Kleikamp v. Board of Cnty. 41 1180492 Comm'rs, 240 Or. App. 57, 61, 246 P.3d 56, 65 (2010) ("[A] landowner's proof of 'substantial expenditures' is the sine qua non of a vesting determination."); Cribbin v. City of Chicago, 384 Ill. App. 3d 878, 893 N.E.2d 1016, 323 Ill. Dec. 542 (2008) (holding that a developer obtained a vested right based on substantial expenditures); Town of Midland v. Wayne, 368 N.C. 55, 64, 773 S.E.2d 301, 308 (2015) ("[The] defendant in good faith reliance made substantial expenditures of money, time, and labor ..., thus supporting his common law vested right to develop the subdivision in accordance with the plan."). I would not reach such a distinction. 42 1180492 SELLERS, Justice (dissenting). I respectfully dissent. Charles K. Breland, Jr., submitted an application for certification from the Alabama Department of Environmental Management ("ADEM") and for a permit from the United States Army Corps of Engineers ("the Corps"), seeking approval to fill approximately 10.5 acres of wetlands Breland had purchased in Baldwin County outside the City of Fairhope. In addition to ADEM and the Corps, Breland communicated with the Alabama State Lands Division, the United States Fish and Wildlife Service, and the Alabama Historical Commission. Breland paid between $20,000 and $30,000 in consulting fees in pursuit of the ADEM certification and the Corps permit. ADEM provided the requested certification, and the Corps issued the requested permit. Thereafter, Breland spent another $143,144 on wetlands "mitigation credits" aimed at mitigating the impact the filling project would have on wetlands. He also conveyed a portion of his property to Weeks Bay Watershed Protective Association, Inc., as part of the wetlands-mitigation process. Eventually, Breland requested and received a land-disturbance permit from Baldwin County authorizing the 43 1180492 filling of the wetlands. All in all, Breland's project necessitated the involvement of two federal agencies, three state agencies and two local governments. When Breland obtained the ADEM certification and the Corps permit, Fairhope did not have any ordinances that governed the filling necessary for the project. But, in 2006, Fairhope adopted Ordinance No. 1313, which required a land-disturbance permit for "filling activity" and prohibited the use of fill material consisting of more than 10% red soil or clay. Ordinance No. 1313 contained no restrictions that would have prevented Breland from proceeding with the project. Breland submitted an application for a permit under Ordinance No. 1313. Although it appears he was entitled to that permit, Fairhope simply ignored his application and adopted a temporary moratorium on issuing land-disturbance permits. Shortly after imposing the moratorium, Fairhope adopted a series of new ordinances dealing more specifically with the filling of wetlands within the City's permitting jurisdiction. Breland's position in the trial court and on appeal suggests that the requirements 44 1180492 of the new ordinances would have rendered his proposed project impossible or economically impractical.19 Thus, as a practical matter, even though Breland had taken all regulatory steps required by existing law and had spent significant funds on the project, Fairhope's subsequent adoption of new ordinances curtailed his ability to proceed. "Surely, no citation of authority is necessary to demonstrate the constitutional invalidity, on general due process grounds, of any regulatory scheme ... that fails to recognize vested rights of prior interest holders." Bingham v. City of Tuscaloosa, 383 So. 2d 542, 544 (Ala. 1980). Almost 60 years ago, this Court acknowledged the principle that, in some situations, a municipality cannot change its ordinances to the detriment of vested property owners: "We are quite aware that some courts ... determine the existence of vested rights in property which has been made the 19Fairhope's mayor indicated during the trial in this case that, when he learned of Breland's efforts to obtain a permit from the Corps, he took steps to "stand in the way" of Breland's filling project. There is some evidence indicating that the new ordinances adopted by Fairhope were aimed at hampering Breland's development plan, but they were generic enough to escape being declared as impermissibly aimed specifically at that project. 45 1180492 subject of zoning amendments on the property owner's substantial change of position, financial investments, or permits granted, all relating to structures built, initiated, or authorized on the rezoned area. "Such changes, investments, and permits, relating as they do to structures initiated or completed, are made the criteria of hardships imposed on the property owner and judicially recognized to sustain the claims of vested rights. The facts in no two cases are the same." Grayson v. City of Birmingham, 277 Ala. 522, 525, 173 So. 2d 67, 69 (1963). As Fairhope points out, the Court in Grayson ultimately held that the appellants in that case did not have vested rights in commercially zoned real property, upon which they had built roads and installed utilities, before the City of Birmingham amended its zoning ordinances to designate the property as residential. But the appellants in Grayson had expended much less than Breland expended, even taking into account the rate of inflation since Grayson was decided. In addition, the Court in Grayson noted that the appellants in that case had not obtained a building permit and had "no intention of building on [the land]." 277 Ala. at 525, 173 So. 2d at 69. Moreover, the Court acknowledged that the modest investment made by the appellants in Grayson indeed might have been 46 1180492 enough to establish vested rights if it were not for Birmingham's significant interest in preserving the residential nature of the surrounding area. Specifically, the Grayson appellants' small investment in the property was "of minor weight and importance in comparison with the duty on the part of [Birmingham] to foresee the traffic and pass adequate zoning regulations designed to protect pedestrians and motorists ... from loss of life or serious injury." 277 Ala. at 527, 173 So. 2d at 71-72. As Breland and Breland Corporation point out, ADEM and the Corps granted Breland permission to proceed with his fill project. Thus, those entities must have determined that the project would not have had such a detrimental effect on the environment that it should be prohibited. In Baker v. State Board of Health, 440 So. 2d 1098 (Ala. Civ. App. 1983), the Court of Civil Appeals held that the owners of a mobile-home park with lots that were 3,200 square feet in size had a vested interest in the land and were not subject to a new regulation requiring mobile-home lots to be a minimum of 15,000 square feet: "[W]e find pertinent the defendants' contention that the 15,000 square foot requirement should not be enforced because of general equitable considerations. The mobile home park was 47 1180492 developed under a permit that allowed 3,200 square foot lots. The owners and their successors relied on the permit and expended time and money developing and improving the lots according to the regulations under which they acquired the permit. Equity adapts relief to the case and in so doing form gives way to substance." 440 So. 2d at 1100. Likewise, Breland expended a significant amount of money and took all steps legally required of him to begin the fill project. He paid more than $140,000 to obtain mitigation credits, paid more than $20,000 in consulting fees, and conveyed a portion of his property in connection with a conservation easement, all in the absence of any municipal wetlands regulations. He obtained all necessary permits, with the exception of a permit under Ordinance No. 1313. Instead of issuing him that permit, Fairhope simply ignored Breland's application and changed the governing law, effectively blocking him from proceeding with the project. Property developers like Breland take on significant risk in purchasing raw land in contemplation of development. Governmental entities should not be allowed to add to that inherent risk by tacking on further regulations to prohibitively increase the costs or otherwise block 48 1180492 beneficial property improvements. At the time of purchase, the proper and improper uses of the property are readily discernable by a review of the local, state, and federal laws. A developer's right to use his or her property according to those applicable regulations vests when the developer expends significant time and expense in pursuit of developing the property. The costs of obtaining regulatory approval for a development can be quite significant and consist of more than the mere completion of paperwork. In the present case, Breland did not just submit simple plans and applications to regulatory agencies. He took significant steps, such as purchasing mitigation credits and conveying a sizable piece of property to a watershed organization, as contingencies for approval of the preliminary phase of the project. After a developer has attempted to comply with the law, obtained appropriate permits, and incurred significant expense in pursuit of a development, a local governmental agency cannot deny a permit to which the developer is entitled, or change the governing regulations to effectively stop the improvements, simply because it does not like the development plans. At that point, the right to 49 1180492 use the property subject to the obtained applicable permitting vests, such that any additional restrictions cannot be legally imposed to thwart the approved development. To impose such subsequent restrictions amounts to an impermissible ex post facto law. Here, as in Baker, equity should recognize the hardship Fairhope's position imposes on Breland and Breland Corporation. I would reverse the trial court's judgment. 50	December 31, 2020
1bd04c8a-7ae7-4836-9ec6-27a2d7ad88de	Ex parte Jacory Tyshon Townsend.	N/A	1200019	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200019 Ex parte Jacory Tyshon Townsend. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jacory Tyshon Townsend v. State of Alabama) (Pike Circuit Court: CC-18-43; CC-18-44; Criminal Appeals : CR-18-0443). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Wise, J. - Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
086ceded-84d8-4d0c-b874-5f16ae2ff578	Ex parte Francis A. Weatherspoon.	N/A	1190994	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1190994 Ex parte Francis A. Weatherspoon. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Francis A. Weatherspoon v. State of Alabama) (Escambia Circuit Court: CC-18-527; Criminal Appeals : CR-19-0045). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
07f78c3d-0aa1-4c8b-8b6d-cffaf713d78f	Plaintiff v. Defendant	N/A	1180302, 1180252	Alabama	Alabama Supreme Court	REL: December 18, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1180252 ____________________ Burt W. Newsome and Newsome Law, LLC v. Clark A. Cooper et al. ____________________ 1180302 ____________________ Burt W. Newsome and Newsome Law, LLC v. Balch & Bingham, LLP, et al. Appeals from Jefferson Circuit Court (CV-15-900190) PER CURIAM. Attorney Burt W. Newsome and his law practice Newsome Law, LLC (hereinafter referred to collectively as "the Newsome plaintiffs"), sued attorney Clark A. Cooper; Cooper's former law firm Balch & Bingham, LLP ("Balch"); John W. Bullock; Claiborne Seier ("Seier"); and Don Gottier (hereinafter referred to collectively as "the defendants") in the Jefferson Circuit Court, alleging that the defendants combined to have Newsome arrested on a false charge with the intent of damaging his reputation and law practice. The trial court ultimately entered judgments in favor of the defendants, while reserving jurisdiction to make a later award of attorney fees and costs under the Alabama Litigation Accountability Act, § 12-19- 270 et seq., Ala. Code 1975 ("the ALAA"). After the Newsome plaintiffs appealed the initial judgments against them, the trial court awarded Balch, Bullock, Seier, and Gottier attorney fees and costs under the ALAA. The Newsome plaintiffs then filed another appeal seeking the 2 1180252, 1180302 reversal of those awards. We now affirm the judgments challenged by the Newsome plaintiffs in both appeals. Facts and Procedural History On December 19, 2012, Bullock went to his dentist's office in Birmingham to have a crown reset. The dentist's office shared a parking lot with Newsome Law, and Bullock parked his vehicle in a parking space near Newsome's vehicle. As Bullock got out of his vehicle to go in for his appointment, Newsome was leaving his office and approaching his own vehicle. Approximately 11 months earlier, Newsome had similarly been leaving his office when Alfred Seier ("Alfred") exited a vehicle parked near his and confronted Newsome about collection efforts Newsome was taking against Alfred's wife, who owed money to a bank that Newsome represented. During that confrontation, Alfred produced a handgun, but Newsome was able to escape to his office unharmed. Newsome later filed a criminal complaint against Alfred for menacing, a violation of § 13A-6- 3 1180252, 1180302 23, Ala. Code 1975.1 Alfred's brother Seier, an attorney, later contacted Newsome and attempted to convince him to drop the menacing charge against Alfred, who had cancer and was in poor health, but Newsome declined to do so. Newsome states that Bullock's parking and the manner in which Bullock exited his vehicle on December 19 was reminiscent of the incident with Alfred earlier that year. Feeling threatened, Newsome pulled out a handgun as he approached Bullock and their vehicles and ordered Bullock to return to his vehicle until Newsome entered his vehicle and left. Bullock did so. Bullock later contacted law enforcement and swore out a warrant against Newsome for menacing. On May 2, 2013, Newsome was stopped by the police for speeding. After the police officer discovered that Newsome had an outstanding warrant for his arrest, Newsome was taken into custody and was 1Section 13A-6-23(a) provides that "[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." 4 1180252, 1180302 transported to the Shelby County jail. Newsome was released later that day. Two days later, Cooper learned about Newsome's arrest. Like Newsome, Cooper was an attorney who represented banks in creditors' rights actions. Cooper and Newsome, in fact, had several of the same banks as clients, representing them in different matters, depending on the nature and scope of the action. As part of his practice, Cooper periodically e-mailed his banking clients when he learned that another attorney had filed an action on their behalf to ask if there was anything he could do to get more business referred to Balch; Cooper had sent these e-mails to some of his clients after learning of actions that Newsome had filed. Upon learning of Newsome's arrest, Cooper forwarded Newsome's mug shot to a friend who was an executive at IberiaBank, which periodically referred legal matters to both Cooper and Newsome, with a note wondering how Newsome's arrest would affect his law license. That IberiaBank executive subsequently testified that he did not refer any cases to Newsome for the next three weeks until they met and Newsome assured him that the 5 1180252, 1180302 menacing charge would have no effect on his ability to practice law. IberiaBank thereafter resumed referring cases to Newsome. Newsome's menacing charge was set for a November 12, 2013, trial in the Shelby District Court. During a pretrial conference that morning, the State, with Bullock's consent, offered to continue the trial until April 1, 2014, and to then dismiss the charge at that time if Newsome had no further arrests and paid the required court costs. The "Dismissal and Release" order ("the D&R order") memorializing the terms of their agreement further provided: "[Newsome] does hereby grant a full, complete and absolute Release of all civil and criminal claims stemming directly or indirectly from this case to the State of Alabama ... [and] to any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter .... [Newsome] freely makes this release knowingly and voluntarily. In exchange for this release, this case will be either dismissed immediately, or pursuant to conditions noted above." (Emphasis in original.) The D&R order was signed by Bullock, the assistant district attorney, Newsome, and Newsome's attorney. On April 4, 2014, the district court dismissed the case against Newsome. 6 1180252, 1180302 On January 14, 2015, the Newsome plaintiffs sued Cooper, Balch, Bullock, and Seier, alleging, as later amended, malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, invasion of privacy, and multiple counts of conspiracy and intentional interference with a business relationship. The gist of their complaint was that Cooper and Seier conspired with Bullock to stage a confrontation and to set Newsome up to be arrested so that Cooper could then take Newsome's clients on behalf of Balch and Seier could get revenge upon Newsome for filing a menacing charge against Alfred.2 On February 13, 2015, Seier moved the trial court to dismiss the Newsome plaintiffs' claims asserted against him, arguing that they had no factual basis and that, in any event, the claims were barred by the release clause in the D&R order because the claims were related to Newsome's menacing case. Six days later, Newsome petitioned the Shelby Circuit Court to expunge the records relating to his menacing charge under § 15-27-1, Ala. Code 1975. Both the State and Bullock filed 2The Newsome plaintiffs' complaint did not offer a reason for Bullock's participation in the alleged scheme. 7 1180252, 1180302 objections, and, following a hearing, Newsome's petition was denied. Newsome moved the court to reconsider, however, and, on September 10, 2015, the court granted his motion and entered an order ("the expungement order") expunging the records relating to his menacing charge. While Newsome was pursuing expungement in the Shelby Circuit Court, the Jefferson Circuit Court granted motions to dismiss filed by Seier and Bullock and a summary-judgment motion filed by Cooper and Balch. But after the expungement order was entered by the Shelby Circuit Court, the Newsome plaintiffs moved the Jefferson Circuit Court to reconsider, arguing, among other things, that because the records of Newsome's criminal case had been expunged, nothing from that case -- including the D&R order containing the release clause -- could be produced or relied upon in the Newsome plaintiffs' civil case. See § 15-27- 16(a), Ala. Code 1975 (explaining that the contents of an expunged file generally cannot be revealed, used, or disclosed by an individual who knows an expungement order has been issued). In December 2015, the Jefferson Circuit Court granted the Newsome plaintiffs' motion and 8 1180252, 1180302 vacated its judgments in favor of Cooper, Balch, Bullock, and Seier. The Newsome plaintiffs then continued to conduct discovery trying to uncover a link between Cooper, Bullock, and Seier, all of whom denied that a conspiracy existed or that they even knew each other. Meanwhile, back in the Shelby Circuit Court, Bullock and Seier filed requests to have the expungement order reversed based on Newsome's breach of the release clause in the D&R order. On June 8, 2016, the Shelby Circuit Court granted their requests and reversed the expungement order under § 15-27-17, Ala. Code 1975, explaining that Newsome had obtained the expungement order under false pretenses because he had not, in fact, fulfilled all the terms of the D&R order at the time he sought expungement (this order is hereinafter referred to as "the expungement-reversal order").3 The Shelby Circuit Court further explained: 3Section 15-27-17 provides that, "[u]pon determination by the court that a petition for expungement was filed under false pretenses and was granted, the order of expungement shall be reversed and the criminal history record shall be restored to reflect the original charges." 9 1180252, 1180302 "The movants are further free to utilize all records related to [Newsome's] prosecution, plea and the case's disposition as they may find appropriate and necessary. The expungement statute was enacted to provide a 'shield' to first-time and non- violent offenders. It was not intended to be a 'sword' for those engaged in civil litigation over the same transaction made the basis of their criminal offense, and the court will not construe the statute as such." Newsome then petitioned the Court of Criminal Appeals to set aside the expungement-reversal order, but, in a four-page order, the Court of Criminal Appeals unanimously denied his request, stating: "We find no abuse of discretion in the trial court's finding that the petition for expungement was filed under false pretenses in contravention of the agreement signed between the parties." (No. CR-15-1223, September 20, 2017.) Newsome followed that ruling by petitioning this Court for the same relief; that petition was also denied. (No. 1161155, April 27, 2018.) The Newsome plaintiffs, meanwhile, continued with discovery in their civil case against the defendants, eventually obtaining the telephone records of Cooper, Bullock, and Seier. Those records indicated that Cooper, Bullock, and Seier had all received calls from telephone number 205-410-1494 on dates surrounding notable events in this case, including 10 1180252, 1180302 the date of Newsome and Bullock's confrontation in the parking lot, the date of Newsome's arrest, the date Cooper sent the e-mail with Newsome's mug shot to an IberiaBank executive, and the date the Newsome plaintiffs filed their complaint initiating the underlying action. Based on some Internet searches, Newsome concluded that the telephone number 205- 410-1494 was assigned to 76-year-old Calera resident Don Gottier, and, on June 30, 2017, the Newsome plaintiffs filed an amended complaint naming Gottier as a defendant and asserting that he was the coordinator of the alleged conspiracy that had targeted Newsome. The Newsome plaintiffs also asked the trial court enter a judgment declaring the D&R order void and unenforceable. Upon being served with the Newsome plaintiffs' complaint, Gottier contacted the Calera Police Department and filed a report indicating that he may be a victim of identity theft because he had been named a defendant in a lawsuit alleging that the telephone number 205-410-1494 was assigned to him, but, he stated, he had never been assigned or operated that telephone number. During the course of its ensuing investigation, the Calera Police Department subpoenaed records from 11 1180252, 1180302 Verizon Wireless, a cellular-telephone provider, and received information indicating that the telephone number 205-410-1494 was not, in fact, a working telephone number but was instead an internal routing number controlled by Verizon Wireless that was used to connect calls originating from outside the caller's home area. A custodian of records for Verizon Wireless subsequently confirmed that information in a deposition when he testified that the telephone number 205-410-1494 had been used as a routing number by Verizon Wireless since 2007 and that it was not assigned to any individual customer.4 Cooper, Balch, Bullock, and Seier thereafter filed new summary- judgment motions with the trial court, and Gottier filed a motion to dismiss. The defendants supported their respective motions with evidence indicating that, other than Cooper and Balch, they did not know each other before the Newsome plaintiffs sued them and that there had been no conspiracy to stage an incident that would result in Newsome's arrest. 4The defendants have noted that this also explains why 205-410- 1494 is listed in telephone records only as the number originating a call; there is no evidence anybody ever placed a call to 205-410-1494. 12 1180252, 1180302 The trial court held a hearing on those motions, during which it expressed skepticism about the merits of the Newsome plaintiffs' claims, but, before the trial court could issue a ruling, the Newsome plaintiffs moved the trial judge to recuse herself, alleging bias. Following another hearing, the trial court denied the motion to recuse. The Newsome plaintiffs then petitioned this Court for a writ of mandamus directing the trial judge to recuse herself. That petition was denied. (No. 1170844, August 8, 2018.) On June 15, 2018, the trial court entered judgments in favor of the defendants on all of the Newsome plaintiffs' claims, expressly reserving the right to later enter an award of attorney fees and costs under the ALAA.5 See SMM Gulf Coast, LLC v. Dade Capital Corp., [Ms. 1170743, June 5, 2020] ___ So. 3d ___, ___ (Ala. 2020) (explaining that a trial court 5Although the judgment entered in favor of Gottier purported to grant his motion to dismiss, it noted that the trial court had reviewed all the "evidence submitted." When a trial court reviewing a motion to dismiss considers evidence outside the pleadings, the motion is converted into a summary-judgment motion. Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 17 So. 3d 200, 212-13 (Ala. 2009). Accordingly, we treat the judgment of dismissal entered by the trial court in favor of Gottier, like the other judgments entered on June 15, 2018, as a summary judgment. 13 1180252, 1180302 retains jurisdiction to enter a postjudgment award of attorney fees under the ALAA only if it has expressly reserved jurisdiction to do so). The parties then filed briefs and evidence regarding the defendants' motions for attorney fees and costs, which the trial court ultimately granted in the following amounts: $56,283 for Balch; $56,317 for Bullock; $78,341 for Seier; and $1,250 for Gottier. The Newsome plaintiffs appeal both the underlying judgments (case no. 1180252) and the awards entered against them under the ALAA (case no. 1180302). Analysis The Newsome plaintiffs make myriad arguments about how the trial court allegedly erred and why the judgments entered in favor of the defendants should be reversed. Ultimately, however, it is unnecessary for this Court to address all of those arguments. For the reasons explained below, we hold (1) that the trial judge did not exceed her discretion in denying the Newsome plaintiffs' motion seeking her recusal; (2) that Newsome is bound by the release clause in the D&R order; (3) that summary judgment was proper on all claims asserted by Newsome Law, and (4) that the circumstances of this case support the trial court's award 14 1180252, 1180302 of attorney fees and costs under the ALAA. We pretermit discussion of all other issues raised by the parties. A. The Newsome Plaintiffs' Seeking the Trial Judge's Recusal We first consider the Newsome plaintiffs' argument that the trial judge should have recused herself and that her failure to do so requires the reversal of the judgments she has entered. 1. Standard of Review "A trial judge's ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion." Ex parte George, 962 So. 2d 789, 791 (Ala. 2006). This Court has further explained that the necessity for recusal will be evaluated in each case based on the totality of the circumstances, id., and that, when an allegation of bias has been made, recusal will be required only "where facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge." Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982). 2. Merits of the Newsome Plaintiffs' Recusal Argument 15 1180252, 1180302 The Newsome plaintiffs argue that the trial judge's impartiality can reasonably be questioned because (1) she and her husband, a state legislator, allegedly received $34,500 in campaign donations from "agents" having some association with the defendants and (2) the trial judge has made various rulings throughout the course of this case that have gone against the Newsome plaintiffs. We are not convinced by the Newsome plaintiffs' arguments. In their brief to this Court, the Newsome plaintiffs cite Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994), and In re Sheffield, 465 So. 2d 350, 357 (Ala. 1985), for the well established general principle that recusal is appropriate when there is a reasonable basis for questioning a judge's impartiality. But they cite no authority to support their allegations that the trial judge in this case did anything that would reasonably cause one to question her impartiality and thus require her recusal. In contrast, the defendants have cited authority that supports the trial court's denial of the motion to recuse. With regard to the alleged campaign contributions, Cooper and Balch note that one appellate judge has explained how impractical it would be to require judges to recuse themselves in every 16 1180252, 1180302 case in which a party or attorney has supported the judge's campaign because, in Alabama, judges are required to run for reelection and, therefore, "situations will arise in which an attorney associated with a specific judge's campaign will have a case come before that judge. If we were to require recusal in such cases, we would be opening Pandora's box leading to untold problems for probate judges, district judges, circuit judges, and appellate judges, all of whom must run for election to their judgeships and all of whom have had numerous attorneys associated with their campaigns." Smith v. Alfa Fin. Corp., 762 So. 2d 843, 849 (Ala. Civ. App. 1997) (opinion on application for rehearing) (Monroe, J., statement of nonrecusal), reversed on other grounds by Ex parte Alfa Fin. Corp., 762 So. 2d 850 (Ala. 1999). Cooper and Balch further note that in § 12-24-3, Ala. Code 1975, the Alabama Legislature specifically addressed the circumstances in which campaign contributions might require a judge's recusal, but the Newsome plaintiffs have failed to cite or make any argument invoking that statute.6 And, with regard to the trial court's rulings against the 6Section 12-24-3 explains that there is a rebuttable presumption that a judge should recuse himself or herself from a case when a party or a party's attorney has made a campaign contribution that represents a 17 1180252, 1180302 Newsome plaintiffs on various issues raised during the pendency of this case, Bullock notes that this Court has previously held that "[a]dverse rulings during the course of proceedings are not by themselves sufficient to establish bias and prejudice on the part of a judge." Henderson v. G&G Corp., 582 So. 2d 529, 530-31 (Ala. 1991). Turning to the merits of the Newsome plaintiffs' recusal motion, we are not convinced that, under the totality of the circumstances, there is a reasonable basis to question the impartiality of the trial judge. George, 962 So. 2d at 791. Although the Newsome plaintiffs allege that agents of the defendants have given $34,500 to the campaigns of the trial judge and her state-legislator husband, the evidence does not support that allegation. First, the Newsome plaintiffs argue that $29,500 of campaign significant portion of the judge's fundraising. See Dupre v. Dupre, 233 So. 3d 357, 360 (Ala. Civ. App. 2016) ("By its plain language, § 12–24–3(b)(2) creates a rebuttable presumption that a circuit-court judge should recuse himself or herself when a party, or his or her attorney, contributes 15% or more of the total campaign contributions collected by the circuit-court judge during an election cycle while the party, or his or her attorney, has a case pending before the judge."). The Newsome plaintiffs' brief does not reveal or address the total campaign contributions received by the trial judge in this case. 18 1180252, 1180302 contributions made by political action committees should be attributed to Balch because Balch or its agents had made contributions to those committees. But Balch's general counsel provided unrefuted testimony that, "once a contribution is made to a political action committee, that political action committee has the authority and discretion as to which candidates it decides to support with any funds contributed."7 Next, the Newsome plaintiffs include in their $34,500 calculation a $3,000 donation made by the law firm that employs Alfred's wife as a paralegal. It is borderline absurd, however, to suggest that a campaign donation to the legislator spouse of a trial judge made by the employer of the wife of the brother of one of five defendants would be a basis upon which a person could reasonably conclude that the trial judge was biased in favor of the defendants. 7We further note that in Startley General Contractors, Inc. v. Water Works Board of Birmingham, 294 So. 3d 742, 758 n.10 (Ala. 2019), this Court reviewed a ruling on a motion to recuse made under 12-24-3 and distinguished between donations to a campaign made by a political action committee and those made by an individual. 19 1180252, 1180302 Finally, the Newsome plaintiffs note that the outside law firm that Balch ultimately retained to represent it and Cooper in this action has also donated $2,000 to the trial judge. Again, however, we do not conclude, and do not believe that any reasonable person would conclude, that this campaign donation is a reasonable basis upon which to question the impartiality of the trial judge. As explained by the special writing in Smith, 762 So. 2d at 849, judges in Alabama are required to campaign for their positions. As part of that process, attorneys will inevitably provide financial support for candidates. Indeed, Newsome acknowledged at the hearing on the motion to recuse that he too has made campaign contributions to judges before whom he practices. Section 12-24-3 provides that there is a rebuttable presumption that a judge should recuse himself or herself from a case when a party or a party's attorney has made a campaign contribution that represents a significant portion of the judge's fundraising, but the Newsome plaintiffs have not cited this statute or demonstrated that any of the campaign donations they have identified were of an amount sufficient to implicate § 12-24-3. 20 1180252, 1180302 We also expressly reject the Newsome plaintiffs' argument that the fact that the trial judge has ruled against them on various issues throughout the course of this litigation demonstrates a bias against them. Although the trial judge has ruled against the Newsome plaintiffs on some issues, she has also issued rulings favorable to them. Notably, in December 2015, she vacated judgments she had previously issued disposing of the Newsome plaintiffs' claims and allowed them to thereafter conduct extensive discovery. Considering the totality of the facts and circumstances, no reasonable person could consider the trial judge's rulings and conclude that they were the product of bias and prejudice. The trial judge did not exceed her discretion by denying the Newsome plaintiffs' motion to recuse. B. The D&R Order We next consider the Newsome plaintiffs' arguments concerning the D&R order. They argue, first, that it was reversible error for the trial court to consider the D&R order or any other materials related to Newsome's menacing case, because, they allege, the expungement- reversal order was "counterfeit" and the expungement order was therefore 21 1180252, 1180302 still in effect and barred consideration of the D&R order. They additionally argue that, even if the trial court could consider the D&R order, the release clause in that order is unenforceable and that the trial court therefore erred to the extent it concluded that the release clause barred the Newsome plaintiffs from pursuing civil claims against the defendants stemming from Newsome's menacing arrest. Neither of those arguments has merit. 1. Standard of Review The Newsome plaintiffs are essentially arguing that the D&R order is inadmissible as evidence in the underlying action. This Court has explained that we will reverse a trial court's decision to consider evidence submitted in conjunction with a summary-judgment motion only if it is established that the trial court exceeded its discretion in doing so. Swanstrom v. Teledyne Cont'l Motors, Inc., 43 So. 3d 564, 574 (Ala. 2009). To the extent the Newsome plaintiffs argue that the trial court erred in holding that the release clause in the D&R order bars their claims, we review that issue de novo. See McDonald v. H&S Homes, L.L.C., 853 So. 22 1180252, 1180302 2d 920, 923 (Ala. 2003) (explaining that the interpretation of an unambiguous provision is a question of law, which we review de novo). 2. The Validity of the Expungement-Reversal Order As explained in the statement of facts above, after Seier moved the trial court to dismiss the Newsome plaintiffs' claims based on the release clause in the D&R order, Newsome petitioned the Shelby Circuit Court to expunge the records of his menacing charge. Once Newsome successfully obtained the expungement order, the Newsome plaintiffs argued to the trial court that § 15-27-16(a), Ala. Code 1975, barred the defendants from introducing the D&R order into evidence or from relying upon its release clause. But the Shelby Circuit Court later reversed the expungement order after concluding that Newsome had obtained the expungement order under false pretenses. That prompted the trial court to allow the defendants to submit evidence related to Newsome's menacing charge -- including the D&R order. And the trial court relied upon the D&R order when entering its judgments in favor of the defendants.8 Indeed, in 8We note that, although Bullock was the only defendant who signed the D&R order, the language of its release clause is broad enough to 23 1180252, 1180302 granting Bullock's summary-judgment motion, the trial court expressly held that "Newsome executed a valid and binding release." The Newsome plaintiffs nonetheless argue that it was reversible error for the trial court to consider the D&R order because, they allege, the expungement-reversal order was "counterfeit" and the expungement order -- and the concomitant prohibition on using any records related to Newsome's menacing charge -- was therefore still in effect. Although the Newsome plaintiffs repeatedly use the term "counterfeit" to describe the expungement-reversal order, they are not alleging that the judge's signature on that order was forged; rather, they dispute the conclusions set forth in the order, challenge the court's jurisdiction to enter the order, and argue that the order has no effect because it was not entered into the State Judicial Information System ("SJIS"). Newsome previously made these arguments when he filed petitions with the Court of Criminal encompass claims asserted against "organizations or persons in any way related to the matter." See discussion, infra. 24 1180252, 1180302 Appeals and this Court.9 Those petitions were denied. The arguments presented in those petitions are no more persuasive this time around. As the Court of Criminal Appeals explained in its order denying Newsome's petition, the Shelby Circuit Court had jurisdiction to consider whether Newsome filed his petition for expungement under false pretenses pursuant to § 15-27-17, which provides that an order of expungement "shall be reversed" if the court determines that the petition for expungement was filed under false pretenses. The Court of Criminal Appeals noted that, because § 15-27-17 provides no time frame in which a motion to set aside an expungement order must be filed or in which a ruling on such a motion must be made, the court had jurisdiction to reverse the expungement order notwithstanding the fact that it did so 9Section 15-27-5(c), Ala. Code 1975, provides that the ruling of a court on a request for expungement of a criminal record "shall be subject to certiorari review." In Bell v. State, 217 So. 3d 962, 963 (Ala. Crim. App. 2016), the Court of Criminal Appeals explained that, because Rule 39, Ala. R. App. P., only contemplates certiorari petitions filed with the Supreme Court seeking review of a decision made by one of the intermediate appellate courts, certiorari petitions seeking review of a ruling on a request for expungement are governed by Rule 21(c), Ala. R. App. P., which applies to extraordinary writs other than writs of mandamus and prohibition. 25 1180252, 1180302 more than 30 days after that order was entered. In light of the evidence, the Court of Criminal Appeals further concluded that it could "find no abuse of discretion in the trial court's finding that the petition for expungement was filed under false pretenses in contravention of the agreement signed by the parties." After failing to obtain relief from the Court of Criminal Appeals, Newsome petitioned this Court for a writ of certiorari or, in the alternative, a writ of mandamus, directing the Shelby Circuit Court to vacate its order reversing the expungement order. In an April 27, 2018, order, we denied Newsome's petition but directed the Shelby Circuit Court to enter the expungement-reversal order into the SJIS. The Newsome plaintiffs state that, despite this Court's April 2018 order, the Shelby Circuit Court still has not entered the expungement-reversal order into the SJIS. Accordingly, they repeat their argument that the expungement- reversal order is invalid because it is not in the SJIS. We reject that argument. When this Court directed the Shelby Circuit Court to enter the expungement-reversal order into the SJIS in April 2018, we implicitly held that that order was valid and that the 26 1180252, 1180302 evidence supported the court's exercising its discretion to reverse the expungement order. We expressly confirm that now. The Newsome plaintiffs' argument that the expungement-reversal order is "counterfeit" and that the trial court therefore erred by allowing the defendants to introduce the D&R order in this action is without merit. 3. The Validity of the Release Clause in the D&R Order The Newsome plaintiffs argue that, even if the trial court could consider the D&R order, the release clause in that order is unenforceable because (1) the D&R order violates Alabama law against compounding; (2) any legal effect the D&R order might have had ended once Newsome's menacing case was officially dismissed five months later; (3) the release clause constitutes a punishment not permitted by law; (4) the release clause was obtained by fraud; and (5) the release clause is invalid under federal law. We consider these arguments in turn. a. Whether the D&R order violates Alabama law prohibiting compounding The Newsome plaintiffs first argue that, because the D&R order provided that Newsome's menacing case would be dismissed if, among 27 1180252, 1180302 other things, he released "all civil and criminal claims stemming directly or indirectly from this case," the D&R order violates § 13A-10-7(a), Ala. Code 1975, which provides that "[a] person commits the crime of compounding if he gives or offers to give, or accepts or agrees to accept, any pecuniary benefit or other thing of value in consideration for ... [re]efraining from seeking prosecution of a crime." The Newsome plaintiffs fail to acknowledge, however, that this Court expressly held that "[r]elease-dismissal agreements are not invalid per se" in Gorman v. Wood, 663 So. 2d 921, 922 (Ala. 1995), another case in which an individual sought to file a lawsuit after signing a release in exchange for having his criminal charges dismissed. The Gorman Court explained: "We have studied the general release in this case. The plaintiff admits that he signed the release and that [his criminal cases] ... were dismissed when the release was signed. When the plaintiff signed the release, he was represented by an attorney, who had drafted the release and who notarized the plaintiff's signature. The plaintiff does not allege that the release was obtained by fraud. The release is not ambiguous. Therefore, the plain and clear meaning of the terms of the release document must be given effect." Id. 28 1180252, 1180302 Although Gorman did not directly address § 13A-10-7, the United States District Court for the Middle District of Alabama addressed that statute in Penn v. City of Montgomery, 273 F. Supp. 2d 1229, 1237 (M.D. Ala. 2003), and concluded that a prosecutor's decision to dismiss pending criminal charges did not constitute "refraining from seeking prosecution of a crime" as that term is used in § 13A-10-7(a) and that release- dismissal agreements simply did not constitute "the kind of conduct which the Alabama Code has said constitutes the crime of compounding." The Penn court further explained that this Court had effectively held as much in Gorman though it did not expressly state its holding in those terms. 273 F. Supp. 2d at 1238.10 The Newsome plaintiffs' argument -- that the release clause in the D&R order has no effect because the order was void under § 13A-10-7 -- is without merit. b. Whether the release clause was no longer binding after Newsome's menacing case was dismissed 10The United States Court of Appeals for the Eleventh Circuit affirmed the holding of Penn in Penn v. City of Montgomery, 381 F.3d 1059, 1062-63 (11th Cir. 2004), similarly concluding that § 13A-10-7 does not bar release-dismissal agreements and noting that this Court had implicitly recognized that fact in Gorman. 29 1180252, 1180302 The Newsome plaintiffs next argue that the D&R order was essentially an interlocutory order that became unenforceable after a final judgment was entered five months later dismissing Newsome's criminal case. In support of this argument, they cite multiple family-law cases for the proposition that a settlement agreement that is merged into a final judgment can no longer be enforced as a contract. See, e.g., Turenne v. Turenne, 884 So. 2d 844, 849 (Ala. 2003) (explaining that the appellant had "no claim that can be enforced on a contract theory ... because the settlement agreement was merged into the divorce judgment"). Thus, they argue, the defendants cannot now enforce the release clause in the D&R order because the D&R order was subsumed by the final judgment dismissing Newsome's case. The Newsome plaintiffs misread Turenne and the other cases upon which they rely; to the extent those family-law cases apply, they do not support the conclusion that the D&R order ceased being valid when Newsome's case was dismissed. In Turenne, this Court quoted the following passage from Killen v. Akin, 519 So. 2d 926, 930 (Ala. 1988): 30 1180252, 1180302 " 'The question whether a separation agreement or a property settlement is merged in the decree or survives as an independent agreement depends upon the intention of the parties and the court ....' East v. East, 395 So. 2d 78 (Ala. Civ. App. 1980), cert. denied, 395 So. 2d 82 (Ala. 1981). If there is an agreement between the parties and it is not merged or superseded by the judgment of the court, it remains a contract between the parties and may be enforced as any other contract." Thus, a settlement agreement is not always subsumed within the final judgment; rather, it depends upon "the intention of the parties and the court." 519 So. 2d at 930. It is clear here that the parties to the D&R order intended for it to survive as an independent agreement, most notably because of the broad release clause contained in the order. It would be irrational to include a release clause that would no longer have any effect once Newsome received the benefit of his bargain and the criminal charge was dismissed, and we will not read the D&R order in a manner that would be contrary to its terms and allow such a result. The Newsome plaintiffs are entitled to no relief on the basis of this argument. c. Whether the release clause imposed a punishment not authorized by law 31 1180252, 1180302 The Newsome plaintiffs next argue that the release clause should not be enforced because, they argue, it constitutes a punishment not permitted by Alabama law. In support of this argument, they cite § 15- 18-1(a), Ala. Code 1975, which provides that "[t]he only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death." Notably, the Newsome plaintiffs state, requiring a defendant to release legal claims he or she may have is not a sentencing option under § 15-18-1(a). As explained above in our discussion of § 13A-10-7 and Gorman, release-dismissal agreements are permitted by Alabama law. The Newsome plaintiffs fail to recognize that a party voluntarily releasing legal claims he or she may have in return for the dismissal of criminal charges is not receiving a sentence of punishment that must comply with § 15-18-1(a); rather, that party is making a decision to release those claims so as to avoid entirely the possibility of a sentence including any 32 1180252, 1180302 of the punishment contemplated by § 15-18-1(a). This argument therefore fails. d. Whether the release clause is void because the D&R order was obtained through fraud In Gorman, this Court noted that there was no allegation in that case that the release-dismissal agreement at issue had been obtained by fraud. 663 So. 2d at 922. In contrast, the Newsome plaintiffs have alleged that the D&R order was the product of fraud, and they argue that "[a] release obtained by fraud is void." Taylor v. Dorough, 547 So. 2d 536, 540 (Ala. 1989). They specifically point to their allegation that the defendants concealed the "fact" that Newsome's parking-lot confrontation with Bullock was planned and staged by them to set Newsome up for a false charge of menacing. They further represent that Newsome never would have signed the D&R order and agreed to release any potential claims if he had known of the defendants' alleged conspiracy. Although it is true that a release obtained by fraud is void, the Newsome plaintiffs' argument fails because, despite the extensive discovery that has been conducted, they have not identified substantial 33 1180252, 1180302 evidence supporting their allegation that the D&R order was obtained through fraud. See, e.g., Anderson v. Amberson, 905 So. 2d 811, 816 (Ala. Civ. App. 2004) (affirming the summary judgment entered on one of the plaintiff's claims because the plaintiff "did not present substantial evidence supporting his claim of fraud in the inducement pertaining to the release"). The defendants have consistently maintained throughout this litigation that there was no conspiracy and that, apart from Cooper and Balch, they did not even know one another before the Newsome plaintiffs named them as defendants in this action; the evidence they submitted with their summary-judgment motions supports this position.11 The Newsome plaintiffs' only counter has been to claim that the defendants are all linked by Gottier and the telephone number 205-410-1494. But the undisputed evidence has established that the telephone number 205-410- 1494 is not a working telephone number and that it is not assigned to or 11The Newsome plaintiffs assert that the defendants have "simply ignored [their] claim for fraudulent concealment and have done nothing to rebut [the Newsome plaintiffs'] prima facie case that the release is not valid." Newsome plaintiffs' brief, p. 78. This assertion is disingenuous. The record is replete with instances of the defendants claiming that there was no conspiracy that was fraudulently concealed from Newsome. 34 1180252, 1180302 operated by Gottier. Simply put, no fair-minded person in the exercise of impartial judgment could reasonably infer -- based on the evidence before the trial court as opposed to mere speculation and conjecture -- that the defendants conspired to stage an altercation that would result in Newsome's arrest. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989) (defining substantial evidence). Because the Newsome plaintiffs have not adduced substantial evidence to support their allegation that the D&R order containing the release was the product of fraud, we will not conclude that the D&R order is unenforceable on that basis. e. Whether the release clause is void under federal law Finally, the Newsome plaintiffs argue that this Court should apply the decision of the Supreme Court of the United States in Town of Newton v. Rumery, 480 U.S. 386 (1987), and conclude on that authority that the release clause in the D&R order is invalid. In Rumery, the plaintiff, who had been arrested for tampering with a witness, executed a release- dismissal agreement in which he agreed to release any claims against the town employing the police officers who had arrested him, town officials, 35 1180252, 1180302 and his victim in exchange for the dismissal of the criminal charges he faced. In spite of that agreement, the plaintiff thereafter sued the town and certain town officials alleging civil-rights violations under 42 U.S.C. § 1983, but his case was dismissed after the federal district court concluded that his decision to execute the release had been voluntary, deliberate, and informed. The United States Court of Appeals for the First Circuit reversed the district court's judgment, however, adopting a per se rule invalidating release-dismissal agreements. The case was then appealed to the United States Supreme Court, which reversed the Court of Appeals' judgment, explaining that, "although we agree that in some cases these agreements may infringe important interests of the criminal defendant and of society as a whole, we do not believe that the mere possibility of harm to these interests calls for a per se rule." 480 U.S. at 392. The Court then considered (1) whether the release-dismissal agreement was voluntary; (2) whether there was evidence of prosecutorial misconduct; and (3) whether enforcement of the agreement would adversely affect the relevant public interests. Concluding that all of those factors weighed in favor of enforcing the agreement, the Court ruled that 36 1180252, 1180302 the release-dismissal agreement was valid and that it required the dismissal of the plaintiff's § 1983 action. It is not clear why the Newsome plaintiffs believe it would benefit their position if this Court adopts the holding in Rumery. Like the plaintiff in Rumery, Newsome, after receiving advice from counsel, executed an agreement releasing his claims against the local municipality, government officials, and the victim of his crime. The D&R order indicates on its face that Newsome voluntarily agreed to its terms. Moreover, there is no evidence, or even an allegation, of prosecutorial misconduct, and enforcing the D&R order according to its terms would not adversely affect any public interest. In sum, nothing in Rumery supports the Newsome plaintiffs' argument that the D&R order should not be enforced. 4. The Effect of the Release Clause in the D&R Order Having established that the release clause in the D&R order is valid and enforceable, we must next determine its effect. By executing the D&R order in his menacing case, Newsome granted "a full, complete and absolute Release of all civil and criminal claims stemming directly or 37 1180252, 1180302 indirectly from this case ... to any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter." (Emphasis in original.) The theory of the Newsome plaintiffs' case is that the defendants combined to stage the parking-lot confrontation between Newsome and Bullock so that Newsome would be arrested on a false charge. All the claims asserted by Newsome against the defendants -- malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, invasion of privacy, conspiracy, and intentional interference with a business relationship -- stem at least indirectly from his menacing case and are accordingly within the scope of the release clause. We further note that, although Bullock was the only one of the defendants to sign the D&R order, the language of its release clause is broad enough to encompass claims asserted against "organizations or persons in any way related to this matter." See also Conley v. Harry J. Whelchel Co., 410 So. 2d 14, 15 (Ala. 1982) (explaining that the broad and unambiguous terms of a release barred the plaintiffs from pursuing claims against defendants who were not parties to the agreement containing the 38 1180252, 1180302 release). Again, the entire theory of the Newsome plaintiffs' case is that the defendants were all involved in the alleged conspiracy leading to his menacing arrest. The Newsome plaintiffs have not claimed that the defendants are not "related to" Newsome's menacing case. And they could not credibly do so -- their alleged combined involvement is the essence of this lawsuit. In its orders entering summary judgments for the defendants, the trial court cited the release clause only as a basis for the judgment entered in favor of Bullock. Nevertheless, "we will affirm a summary judgment if that judgment is proper for any reason supported by the record, even if the basis for our affirmance was not the basis of the decision below." DeFriece v. McCorquodale, 998 So. 2d 465, 470 (Ala. 2008). The release clause in the D&R order barred Newsome from pursuing any civil claims "stemming directly or indirectly" from his menacing case against any "complainants, ... organizations or persons in any way related to [that] matter." This includes all the claims Newsome has individually asserted against Cooper, Balch, Bullock, Seier, and Gottier, and the judgments entered in favor of the defendants on those claims were therefore proper. 39 1180252, 1180302 C. The Claims Asserted by Newsome Law The materials filed by the Newsome plaintiffs throughout this action generally treat the claims they have asserted as collective claims held by both Newsome and Newsome Law. Nevertheless, it is apparent that the majority of those claims are personally held only by Newsome individually. The Newsome plaintiffs have cited no authority to this Court, and the facts in the record would not support, any claim by Newsome Law alleging malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, or invasion of privacy. But the Newsome plaintiffs' complaint, as amended, does allege colorable intentional-interference-with-a-business-relationship and conspiracy claims against Cooper and Balch that might be held by Newsome Law. We therefore review de novo the summary judgment entered on those claims. SE Prop. Holdings, LLC v. Bank of Franklin, 280 So. 3d 1047, 1051 (Ala. 2019) ("This Court applies a de novo standard of review to a summary judgment."). Newsome Law's intentional-interference claims are based on e-mails that Cooper sent to their shared banking clients seeking to obtain more 40 1180252, 1180302 legal work from those clients for Cooper and Balch. In White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009), this Court clarified that the tort of intentional interference with a business relationship includes the following elements: "(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage." But, even if these elements are met, a defendant can avoid liability by proving the affirmative defense of justification. 32 So. 3d at 13. In entering the summary judgment for Cooper and Balch, the trial court concluded that they had proven justification as a matter of law: "[The] claims for intentional interference against Cooper fail, first and foremost, because of the competitor's privilege -- the affirmative defense known as justification. Both Newsome and Cooper are banking lawyers and Cooper was justified in competing for the business of their ongoing clients, IberiaBank, Renasant Bank, and Bryant Bank. See Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238, 247 (Ala. 1992) ('[B]ona fide business competition is a justification for intentional interference with a competitor's business.'); Bridgeway Communications, Inc. v. Trio Broadcasting, Inc., 562 So. 2d 222, 223 (Ala. 1990) (holding that legitimate economic motives and bona fide business competition qualify as justification for intentional 41 1180252, 1180302 interference with a competitor's business). Cooper was a competitor of Newsome's, represented the same banks as Newsome, and was, thus, allowed to contact those clients. Justification is a complete defense to an intentional interference claim." The Newsome plaintiffs argue that the trial court erred because justification is a question for the jury and, in any event, does not apply when the defendant has acted improperly. See White Sands Grp., 32 So. 3d at 18-19 (explaining that "[j]ustification is generally a jury question" and that the nature of the defendant's conduct is paramount and noting that, although competitors are not necessarily expected to be gentlemen, there is no privilege when devious and improper means have been used). The Newsome plaintiffs state that Cooper's actions were outside the bounds of lawful competition; we disagree. First, as already explained, the Newsome plaintiffs have produced nothing more than speculation to support their theory that Cooper was part of a conspiracy involving Bullock, Seier, and Gottier. Second, although the Newsome plaintiffs state that Cooper's e-mails to their shared banking clients cannot be considered lawful competition because, the Newsome plaintiffs allege, such solicitations are prohibited by the Alabama Rules of Professional 42 1180252, 1180302 Conduct, they are simply wrong in this regard. Solicitations made to current clients are not barred by Rule 7.3, Ala. R. Prof. Cond., which regulates the solicitation of "prospective clients" but by its terms exempts solicitations to parties with whom an attorney has a "current or prior professional relationship." See also Ala. State Bar Ethics Op. No. 2006-01, June 21, 2006 ("Current and former clients are ... excluded from the prohibition against direct solicitation. Due to their previous or ongoing interaction with the attorney, current or former clients will have a sufficient basis upon which to judge whether to continue or reactivate a professional relationship with a particular attorney."). Moreover, although Cooper forwarded news of Newsome's arrest and his mug shot to a friend who was an executive at one of their shared banking clients, he did not misrepresent any facts related to Newsome's arrest, and we do not consider this to be the sort of devious and improper act that would defeat a justification defense. See White Sands Grp., 32 So. 3d at 19-20 (describing acts of misrepresentation and concealment that have defeated justification defenses in other actions). 43 1180252, 1180302 Finally, by indicating that justification is generally a jury question, White Sands Group implicitly recognized that a summary judgment may nonetheless be appropriate in instances where the party asserting that affirmative defense carries its burden. 32 So. 3d at 20 (concluding that the defendant "failed to carry its burden of showing that it is entitled to a judgment as a matter of law on its affirmative defense of justification"). This is such a case. The Newsome plaintiffs have not put forth substantial evidence indicating that Cooper acted improperly, and the trial court therefore correctly held that the asserted intentional- interference-with-business-relations claims should not be submitted to the jury.12 And because Cooper and Balch were entitled to a judgment as a matter of law on Newsome Law's intentional-interference claims, they were also entitled to a judgment as a matter of law on Newsome Law's conspiracy claims. See Alabama Psych. Servs., P.C. v. Center for Eating 12To the extent Newsome may have personally asserted intentional- interference claims against Cooper and Balch based on e-mails Cooper sent to their shared clients that did not reference Newsome's menacing arrest, summary judgment was properly entered in favor of Cooper and Balch on the basis of justification even if those claims were not covered by the release clause in the D&R order. 44 1180252, 1180302 Disorders, L.L.C., 148 So. 3d 708, 715 (Ala. 2014) (explaining that conspiracy is not an independent cause of action and that, because "[the plaintiff] did not prove its underlying cause of action (intentional interference with business relations), [the defendants] also were entitled to a [judgment as a matter of law] as to [the plaintiff's] conspiracy claim"). D. The ALAA Awards In accordance with the ALAA, the trial court awarded attorney fees and costs to the defendants in the following amounts: $56,283 for Balch; $56,317 for Bullock; $78,341 for Seier; and $1,250 for Gottier. The Newsome plaintiffs argue that those awards should be reversed because, they argue, "the trial court's erroneous reliance on the counterfeit [expungement-reversal] order infected its ALAA findings and [the Newsome plaintiffs'] legal arguments regarding the 'release' were made in good faith." Newsome plaintiffs' brief, p. 91. For the reasons that follow, the awards entered by the trial court are affirmed. Section 12-19-272(a), Ala. Code 1975, provides that a trial court "shall" award reasonable attorney fees and costs when an attorney or party "has brought a civil action, or asserted a claim therein, ... that a 45 1180252, 1180302 court determines to be without substantial justification." "[W]ithout substantial justification" means that the action "is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court." § 12-19-271(1), Ala. Code 1975. This Court has stated that "[t]he standard of review for an award of attorney fees under the ALAA depends upon the basis for the trial court's determination for the award." McDorman v. Moseley, [Ms. 1190819, September 18, 2020] ___ So. 3d ___, ___ (Ala. 2020). We further explained: "If a trial court finds that a claim or defense is without substantial justification because it is groundless in law, that determination will be reviewed de novo, without a presumption of correctness. Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala. 1993). If, however, a trial court finds that a claim or defense is without substantial justification using terms or phrases such as 'frivolous,' 'groundless in fact,' 'vexatious,' or 'interposed for any improper purpose,' that determination will not be disturbed on appeal unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Id." 46 1180252, 1180302 Moseley, ___ So. 3d at ___. The trial court expressly stated in its order awarding Balch, Bullock, Seier, and Gottier attorney fees and costs that the Newsome plaintiffs' "claims were without substantial justification because they were frivolous, groundless in fact, vexatious, or were interposed for an improper purpose of harassment, delay, or abusing discovery." Accordingly, we will reverse the awards made by the trial court only if the Newsome plaintiffs show that those awards were "clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Id. The Newsome plaintiffs argue that the awards entered under the ALAA must be reversed because, they say, the trial court erred by giving effect to the expungement-reversal order and because, they say, their arguments that the release was invalid were made in good faith. We have already explained above that the trial court did not err by relying upon the expungement-reversal order. Indeed, both the Court of Criminal Appeals and this Court denied the petitions that Newsome brought litigating this same point in September 2017 and April 2018, respectively, and the orders denying those petitions should have put the Newsome 47 1180252, 1180302 plaintiffs on notice that their position lacked merit. Nevertheless, the Newsome plaintiffs continue to ignore those orders and maintain that the expungement-reversal order was "counterfeit." It was not. The Newsome plaintiffs also state that their arguments that the release clause in the D&R order was invalid were made in good faith and that the trial court's judgments should be reversed to the extent that court held otherwise. We disagree. Newsome is an attorney, and he executed the one-page D&R order containing the release clause after consulting with counsel. That release clause is unambiguous. Yet, instead of abiding by the clear terms of the release clause, Newsome sought to suppress the D&R order using the expungement statutes. As the trial court explained: "Newsome exhibited bad faith in attempting to have his Shelby County arrest (the very arrest that resulted in his mug shot being taken and began the debacle of this lawsuit) expunged with the stated intent of using that expungement as an offensive weapon against [the] defendants in this lawsuit. The court takes judicial notice of Newsome's misrepresentation to the Circuit Court of Shelby County, whereby he claimed to be in compliance with all terms of his deferred prosecution agreement, including the release of all related civil claims. The court takes further judicial notice of the Shelby County court's finding that Newsome made a 'false representation' regarding his claims in this lawsuit constituting 'false pretenses' under Alabama law. This finding was affirmed by 48 1180252, 1180302 the Alabama Court of [Criminal] Appeals, and the Alabama Supreme Court denied Newsome's petition for certiorari review. [The Newsome] plaintiffs' attempt to unlawfully use Alabama's expungement statute for the stated purposes of attacking [the] defendants in this lawsuit is further evidence of [the Newsome] plaintiffs' bad faith." The Newsome plaintiffs cannot maintain that their arguments regarding the release clause were made in good faith. Moreover, although the Newsome plaintiffs focus their arguments challenging the awards made under the ALAA on the expungement- reversal order and the release clause, the trial court explained that it was making those awards not just because of the Newsome plaintiffs' questionable actions attempting to suppress the D&R order, but because their entire lawsuit was groundless in fact: "Although the court first granted [the] defendants summary judgment early on in this case, [the Newsome] plaintiffs asked for further opportunity to prove their claims. The court granted them that opportunity[;] however, [the Newsome] plaintiffs have provided no further credible evidence after conducting extensive discovery than they had in 2015 when they filed this action. Defendants continuously contended [the Newsome] plaintiffs' claims were fabricated, outrageous, and entirely unsupported. ".... 49 1180252, 1180302 "Despite [the] defendants' repeated assertions, including sworn testimony, that they never knew each other before the filing of this lawsuit, [the Newsome] plaintiffs refused to voluntarily dismiss their conspiracy-related claims. Further, during the course of additional discovery, [the Newsome] plaintiffs produced no admissible evidence of any kind supporting their claims that these defendants knew each other and conspired to commit any underlying act. [The Newsome] plaintiffs could have dismissed the amended conspiracy claims alleged against Cooper, Balch, and Gottier once it learned from Verizon that the telephone number that [the Newsome] plaintiffs thought was their lynchpin was only a routing number. However, they did not. "... Instead of reducing or dismissing invalid claims and dismissing some or all of [the] defendants, [the Newsome] plaintiffs ignored contrary evidence and made no effort at dismissal or reduction. Rather, [the Newsome] plaintiffs continued to add invalid claims and a new party, Gottier, in the face of clear evidence that their claims were frivolous." Considering the facts of the case, we agree with the trial court that the ALAA awards are supported by the evidence and appropriate under the circumstances. Those awards are therefore affirmed. Conclusion The Newsome plaintiffs sued the defendants asserting various claims based on their allegation that the defendants combined together to have Newsome arrested on a false menacing charge to damage his 50 1180252, 1180302 reputation and law practice. But the Newsome plaintiffs failed to produce substantial evidence supporting their claims even after conducting extensive discovery; the trial court therefore entered summary judgments in favor of the defendants. The trial court further awarded attorney fees and costs because the Newsome plaintiffs had subjected the defendants to almost three and a half years of litigation even though the asserted claims were without substantial justification. For the reasons explained herein, the summary judgments entered by the trial court and its awards of attorney fees are affirmed. 1180252 -- AFFIRMED. 1180302 -- AFFIRMED. Parker, C.J., and Bolin, Shaw, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur. Sellers, J., recuses himself. 51	December 18, 2020
c3eadb17-968e-4972-8308-825adaf0ee96	Williams v. Mari Properties, LLC	N/A	1190555	Alabama	Alabama Supreme Court	Rel: December 18, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 _________________________ 1190555 _________________________ Eleanor Williams v. Mari Properties, LLC Appeal from Jefferson Probate Court (No. 17BHM02189) STEWART, Justice. Eleanor Williams appeals from an order of the Jefferson Probate Court ("the probate court") denying her request for redemption of certain 1190555 real property. Because we determine that the probate court lacked jurisdiction to enter the order appealed from, we dismiss the appeal. Facts and Procedural History In 2003, the State of Alabama purchased property located on 45th Street North in Birmingham ("the property") at a tax sale after the then owners, Benjamin and Marzella Rosser, failed to pay ad valorem taxes. The State sold the property in 2016 for $1,000 to Waynew Global Holdings, LLC ("WGH"). In February 2017, WGH sold the property to Mari Properties, LLC ("Mari"), for $5,000, and Mari recorded the deed to the property.1 In September 2017, Williams filed in the probate court a petition for redemption of the property under § 40-10-120, Ala. Code 1975, with which she tendered $1,100. Williams claimed that she inherited the property from the Rossers in or around March 2003. Williams named WGH and 1Mari executed a promissory note and mortgage in favor of WGH in the amount of $3,750. On January 2, 2018, WGH recorded a satisfaction of the note and release of the mortgage. 2 1190555 Mari as defendants, although WGH was dismissed from the action voluntarily. The probate court entered an order on September 10, 2019, granting Williams's petition for redemption and ordering Williams to pay $1,100, plus interest, and any taxes paid or owing to the Jefferson County tax collector and any insurance premiums previously paid, with interest. In the order, the probate court directed Mari to compute and submit the amount of those items and stated that, upon receipt of those figures, the probate court would enter an amendment to the order and direct payment by Williams. The probate court did not vest title of the property in Williams. In addition, the probate court noted that it was retaining jurisdiction to make any other necessary orders.2 2Based on our dismissal of the appeal, it is not necessary for us to determine whether the September 10, 2019, order was final, but see Surginer v. Roberts, 231 So. 3d 1117, 1124 (Ala. Civ. App. 2017)(explaining that a redemption order that did not "completely resolve the claims of the parties and expressly contemplated further action by the trial court" was not final (citing Ex parte Bessemer Bd. of Educ., 68 So. 3d 782, 788 n.5 (Ala. 2011)). 3 1190555 On October 8, 2019, Mari filed a motion to vacate the September 10, 2019, order in which it asserted that the probate court lacked subject- matter jurisdiction over the redemption petition because, it argued, Williams was required under § 40-10-120, Ala. Code 1975, to redeem the property through statutory redemption within three years of the May 13, 2003, tax sale. Mari contended in the motion that the only redemption process available to Williams was judicial redemption under § 40-10-83, Ala. Code 1975, and that the Jefferson Circuit Court had exclusive jurisdiction over that process. On October 9, 2019, Mari filed a notice of appeal to the Jefferson Circuit Court ("the circuit court"). On October 28, 2019, the probate court entered an order transferring the documents in the probate-court record to the circuit court. The record on appeal before this Court is devoid of any filings, orders, or other documents from the circuit court. Despite Mari's filing of the notice of appeal to the circuit court, the parties continued filing documents in the probate court. On January 3, 2020, Williams filed in the probate court a response in opposition to Mari's motion to vacate, asserting that the probate court had jurisdiction 4 1190555 concurrent with the circuit court to consider judicial redemption because, she alleged, Act No. 1144, Ala. Acts 1971, a general act of local application to Jefferson County, provides that the probate court has concurrent jurisdiction with the circuit court on matters of equity. On January 9, 2020, the probate court entered an order stating that Mari's motion to vacate had been denied by operation of law under Rule 59.1, Ala. R. Civ. P. On January 10, 2020, Mari filed a renewed motion to vacate the September 10, 2019, order, purportedly under Rule 60(b)(4), Ala. R. Civ. P., but asserted identical grounds as those contained in its previous motion to vacate. On February 6, 2020, the probate court entered an order stating: "This matter having been previously transferred by this Court to the Circuit Court of Jefferson County, Alabama, and the matter having not been docketed in Circuit Court, the matter is hereby recalled by the Probate Court of Jefferson County, Alabama from the Circuit Court of Jefferson County, Alabama. The Circuit Court is hereby requested to transfer the file back to the Probate Court for further adjudication." 5 1190555 On February 27, 2020, Williams filed a response in opposition to Mari's second motion to vacate and a motion seeking a correction of the September 10, 2019, order under Rule 60(a), Ala. R. Civ. P. On March 6, 2020, after a hearing, the probate court entered an order purportedly vacating the September 10, 2019, order for a lack of jurisdiction, finding that Williams filed a petition for statutory redemption under § 40-10-120 but that the time had passed to redeem under that statute and that Williams should have filed in the circuit court a petition for judicial redemption under § 40-10-83. On April 6, 2020, Williams filed a notice of appeal to this Court. Discussion Before this Court can consider the merits of Williams's arguments, i.e., whether her petition for statutory redemption was timely filed and whether the probate court had subject-matter jurisdiction to consider her petition as one for judicial redemption, we must first examine ex mero motu whether the order appealed from is a valid order capable of supporting an appeal. Williams has appealed from the probate court's 6 1190555 March 6, 2020, order. That order was entered after Mari had filed a notice of appeal of the probate court's September 10, 2019, order to the circuit court on October 9, 2019. Although the parties neglect to address the jurisdictional implications of Mari's filing of the notice of appeal to the circuit court, "[w]e must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal." City of Huntsville v. Miller, 271 Ala. 687, 689, 127 So. 2d 606, 608 (1958). Generally, the filing of a notice of appeal from a lower court to the circuit court has jurisdictional implications -- the circuit court is conferred jurisdiction and the lower court is divested of jurisdiction to proceed with adjudication of the matter. See Harden v. Laney, 118 So. 3d 186, 187 (Ala. 2013)("The timely filing of a notice of appeal invokes the jurisdiction of an appellate court and divests the trial court of jurisdiction to act except in matters entirely collateral to the appeal."). Accordingly, when a final judgment is appealed from the probate court to the circuit court under § 12-22-20, Ala. Code 1975, the probate court is without jurisdiction to 7 1190555 proceed further. This is also true even if the order that is appealed, in actuality, is a nonfinal order.3 See R.H. v. J.H., 778 So. 2d 839, 841 (Ala. Civ. App. 2000)(holding that nonfinal orders entered in the juvenile court after a party filed a notice of appeal to the circuit court were nullities that would not support an appeal). See also Horton v. Horton, 822 So. 2d 431, 434 (Ala. Civ. App. 2001) (holding that a premature notice of appeal divested the trial court of jurisdiction to rule upon the remaining issues in the case until the appeal had been disposed and that, accordingly, any orders entered during that time were a nullity). In the present case, Mari invoked the jurisdiction of the circuit court under § 12-22-20 on October 9, 2019, by filing a notice of appeal to the 3Although the probate court's September 10, 2019, order directed Mari to compute the amount of taxes and insurance premiums and stated that it was retaining jurisdiction over the case, whether the appeal to the circuit court was from a nonfinal judgment was a question for the circuit court to resolve, and, until that resolution, the probate court was without jurisdiction to act concerning the matters appealed. See Foster v. Greer & Sons, Inc., 446 So. 2d 605, 608–09 (Ala. 1984)(explaining that, until an appellate court makes a determination regarding its own jurisdiction, the appellate court and trial court are "bound by the presumption that [the appellate court has] jurisdiction. Thames v. Gunter-Dunn, Inc., 365 So. 2d 1216 (Ala. 1979)"), overruled on other grounds by Ex parte Andrews, 520 So. 2d 507 (Ala. 1987). 8 1190555 circuit court. At that point, the notice of appeal divested the probate court of jurisdiction, and, therefore, any orders entered by the probate court after that point would be void.4 This includes the February 6, 2020, order in which the probate court purported to "recall" the case from the circuit court. Moreover, a probate court lacks any authority to recall or direct the transfer of a case that has been appealed to the circuit court. We further note that, to the extent that Mari's January 10, 2020, motion to vacate the September 10, 2019, order can be construed as a motion filed under Rule 60(b)(4), Rule 60(b) provides, in pertinent part, that "[l]eave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually 4Rule 4(a)(5), Ala. R. App. P., which provides that a notice of appeal will be held in abeyance until a postjudgment motion is ruled upon or denied by operation of law, does not apply to appeals from the probate court to the circuit court. Accordingly, a notice of appeal from the probate court to the circuit court will not be held in abeyance pending a ruling on the postjudgment motion by the lower court. Instead, the postjudgment motion is deemed withdrawn upon the filing of the notice of appeal, and jurisdiction immediately vests in the circuit court. See Veteto v. Yocum, 794 So. 2d 1117 (Ala. Civ. App. 2000). Thus, the filing of the notice of appeal on October 9, 2019, served to withdraw Mari's motion to vacate filed on October 8, 2019, and jurisdiction vested with the circuit court on October 9, 2019. 9 1190555 pending before such court." (Emphasis added.)5 As the Court of Civil Appeals concluded in P.I.M. v. Jefferson County Department of Human Resources, 297 So. 3d 409 (Ala. Civ. App. 2019), if a party neglects to obtain leave from the appropriate appellate court before filing a motion in the trial court pursuant to Rule 60(b), "the trial court does not acquire jurisdiction over the Rule 60(b) motion." 297 So. 3d at 411 (citing Jenkins v. Covington, 939 So. 2d 31, 34 (Ala. Civ. App. 2006)). Accordingly, even if Mari's January 10, 2020, motion was filed pursuant to Rule 60(b)(4), the probate court did not acquire jurisdiction over the motion because Mari did not seek leave of the circuit court to file the motion in the probate court. Therefore, the March 6, 2020, order appealed from is void. Conclusion Based on the foregoing, the probate court's March 6, 2020, order, entered before the circuit court had disposed of Mari's appeal, was a nullity and will not support an appeal. 5According to Rule 1, Ala. R. Civ. P., the Alabama Rules of Civil Procedure "govern the procedure ... in probate courts so far as the application is appropriate and except as otherwise provided by statute." 10 1190555 APPEAL DISMISSED. Parker, C.J., and Shaw, Wise, Bryan, Mendheim, and Mitchell, JJ., concur. Sellers, J., concurs in the result. Bolin, J., recuses himself. 11	December 18, 2020
378c3f6d-a8f4-41cc-bf1d-584d7c8d563d	Ex parte Robert Leslie Manning.	N/A	1200060	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200060 Ex parte Robert Leslie Manning. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Robert Leslie Manning v. State of Alabama) (Mobile Circuit Court: CC-91-2061.61 & CC-91-2062.61; Criminal Appeals : CR-19-0342). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
c8e8c401-34d5-4838-9910-67b4c788b8ce	Ex parte Dennis Dwyne Frazier.	N/A	1191071	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 18, 2020 1191071 Ex parte Dennis Dwyne Frazier. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Dennis Dwyne Frazier v. State of Alabama) (Mobile Circuit Court: CC-18-3231; CC-18-3232; Criminal Appeals : CR-19-0132). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 18, 2020: Writ Denied. No Opinion. Stewart, J. - Parker, C.J., and Bolin, Shaw, and Sellers, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 18th day of December, 2020. Clerk, Supreme Court of Alabama	December 18, 2020
c44dbf5d-9a4e-43b5-b75d-f983da124605	Darlene Houston v. GEICO Casualty Company	N/A	1180497	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 31, 2020 1180497 Darlene Houston v. GEICO Casualty Company (Appeal from Jefferson Circuit Court: CV-14-902864; Civil Appeals : 2180325). CERTIFICATE OF JUDGMENT WHEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on December 31, 2020: Application Overruled. No Opinion. (Bolin, J.) Bolin, J. - Shaw, W ise, Bryan, Sellers, and Mitchell, JJ., concur. Parker, C.J., and Mendheim, and Stewart, JJ., dissent. W HEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on March 20, 2020: Affirmed. No Opinion. Parker, C.J. - Bolin, Shaw, W ise, Bryan, Sellers, and Mitchell, JJ., concur. Mendheim and Stewart, JJ., dissent. NOW , THEREFORE, pursuant to Rule 41, Ala. R . App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R . App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 31st day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 31, 2020
aabd5385-00b9-4656-aa5b-675b454c7350	McGill v. Szymela	N/A	1190260	Alabama	Alabama Supreme Court	Rel: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190260 ____________________ Janice McGill and Timothy McGill v. Victor F. Szymela, M.D. Appeal from Jefferson Circuit Court (CV-16-901198) PARKER, Chief Justice. Janice McGill and her husband, Timothy McGill, appeal from a judgment of the Jefferson Circuit Court against them in their medical- malpractice lawsuit against Victor F. Szymela, M.D. The McGills alleged that Dr. Szymela failed to properly perform Janice's temporomandibular- 1190260 joint total-replacement ("TJR") surgery. We affirm. I. Facts and Procedural History In February 2014, Janice sought treatment from Dr. Szymela, a board-certified oral and maxillofacial surgeon, for her temporomandibular- joint ("TMJ") disorder. Janice had been experiencing clicking and locking of her jaw and excruciating jaw and ear pain. Dr. Szymela recommended TJR surgery. Dr. Szymela performed the surgery on April 1, 2014, installing prosthetic joints. Janice alleged that she experienced distinct, worse pain immediately after the surgery and that the new pain did not resolve with time. She continued to experience popping in her jaw. She alleged that her overbite was exacerbated by the surgery. She also alleged that she could not open her mouth as wide as previously and that she lost sensation in her lips, which diminished her ability to speak clearly. Later in 2014, Janice sought treatment from Dr. Michael Koslin. Dr. Koslin referred Janice to a pain-management specialist but eventually determined that her pain was unresponsive to conservative treatment. In 2017, Dr. Koslin surgically removed the prosthesis. Several weeks later, 2 1190260 Dr. Koslin implanted custom joints. Janice alleged that Dr. Koslin's treatment relieved her pain. In March 2016, Janice sued Dr. Szymela, alleging that he breached the standard of care for an oral and maxillofacial surgeon in the following ways relevant to this appeal: "a. He failed to provide or offer alternative treatments to remedy [Janice's] symptoms before recommending [TJR] surgery; "... "f. He failed to install the medical devices properly; "... "h. He failed to properly perform the [TJR] surgery." Janice's husband Timothy joined the complaint, alleging loss of consortium. The McGills identified Dr. Louis G. Mercuri as one of their expert witnesses regarding oral and maxillofacial surgery. On Dr. Szymela's motion, the trial court ruled that Dr. Mercuri did not qualify as a "similarly situated health care provider" under § 6-5-548(c)(4), Ala. Code 1975, because he had not practiced in Dr. Szymela's specialty within the 3 1190260 year preceding Dr. Szymela's alleged breach. Thus, the court excluded Dr. Mercuri as a witness. At trial, the McGills called Dr. Koslin and Dr. Robert Pellecchia as experts. Dr. Szymela and defense expert Dr. Gary Warburton also testified. At the close of all evidence, on Dr. Szymela's motion, the trial court entered a partial judgment as a matter of law ("JML") in favor of Dr. Szymela. In pertinent part, the JML eliminated the McGills' issues of improper installation of the prosthesis and improper performance of the surgery, the latter of which included Dr. Szymela's alleged failure to maintain Janice's occlusion (distinct bite alignment) in the surgery. Other issues were waived or consolidated, and the only issues submitted to the jury were whether Dr. Szymela breached the standard of care by failing to provide or offer alternative treatments to surgery and whether Timothy suffered loss of consortium as a result of that breach. The jury found in favor of Dr. Szymela, and the trial court entered a final judgment on the verdict. The McGills appeal, contending that the trial court erred in excluding Dr. Mercuri as an expert witness and in entering the partial 4 1190260 JML. II. Standards of Review "In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548[, Ala. Code 1975], we apply the [excess]-of-discretion standard of review." Tuck v. Health Care Auth. of Huntsville, 851 So. 2d 498, 501 (Ala. 2002). The standard of review of a judgment as a matter of law is the same as the standard used by the trial court in deciding the motion, i.e., whether, when the evidence is viewed in the light most favorable to the nonmovant, the nonmovant presented substantial evidence in support of his position. City of Birmingham v. Sutherland, 834 So. 2d 755, 758 (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 Fla., 547 So. 2d 870, 871 (Ala. 1989); see also § 12-21-12(d). III. Analysis The McGills present two issues on appeal. First, they argue that the trial court erred by excluding Dr. Mercuri as an expert witness because it 5 1190260 incorrectly concluded that he did not meet the statutory qualifications of a "similarly situated health care provider." Second, they argue that the trial court erred by entering the JML on their claims of improper installation of the prostheses and improper surgical performance. A. Exclusion of Dr. Mercuri The McGills contend that the trial court erred in excluding Dr. Mercuri as an expert on the basis that he did not meet the statutory qualifications of a "similarly situated health care provider" under § 6-5- 548, Ala. Code 1975. "In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548, we apply the [excess]-of-discretion standard of review." Tuck, 851 So. 2d at 501. Although the McGills argue that this Court should conduct a de novo review because this issue involves interpreting § 6-5-548, we decline to depart from our consistent practice of applying the excess-of-discretion standard to trial courts' evidentiary rulings under this statute, see, e.g., Dowdy v. Lewis, 612 So. 2d 1149, 1152 (Ala. 1992); Biggers v. Johnson, 659 So.2d 108, 112 (Ala. 1995) ; Holcomb v. Carraway, 945 So.2d 1009, 1017 (Ala. 2006); Smith v. Fisher, 143 So. 3d 110, 122 (Ala. 2013). 6 1190260 Section 6-5-548, part of the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala. Code 1975, sets forth the criteria for qualifying a health-care provider as an expert witness where the medical-malpractice defendant is a specialist: "Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical specialty, and holds himself or herself out as a specialist, a 'similarly situated health care provider' is one who meets all of the following requirements: "(1) Is licensed by the appropriate regulatory board or agency of this or some other state. "(2) Is trained and experienced in the same specialty. "(3) Is certified by an appropriate American board in the same specialty. "(4) Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred." § 6-5-548(c) (emphasis added). The trial court explained that it excluded Dr. Mercuri on the basis of subsection (c)(4)'s "practiced" requirement. The court wrote: 7 1190260 "The Court read and considered documents contained within the court file that state that Dr. Mercuri retired in 2010, and he was not actively practicing during the year preceding the date of Dr. Szymela's alleged breach of the standard of care, to wit: April 1, 2014. The Court considered testimony from the deposition of Dr. Mercuri, dated February 23, 2018, that he retired from the practice of medicine in December 2010; that the year of 2010 was the last time Dr. Mercuri performed a TMJ replacement or any type of surgical procedure; that Dr. Mercuri is board certified but in a retired status, which means that he no longer practices medicine and, thus, has not practiced medicine since 2010. Dr. Mercuri further stated that his board certification changed from active to 'reserve'/retired in 2010. The Court further considered an e- mail from Dr. Louis Mercuri on November 6, 2017, addressed to Dr. Gary Warburton, wherein, he states: '...There is a TMJR legal case in Alabama that I have been consulting on that needs an actively practicing, Boarded [oral and maxillofacial surgeon] with knowledge and experience in [TJR surgery]. I can consult, but cannot be an expert witness because I am retired.' " (Citation omitted; emphasis trial court's.) The McGills argue that the court wrongly concluded that Dr. Mercuri had not "practiced" in the specialty in the year before Dr. Szymela performed Janice's surgery. The Alabama Medical Liability Act of 1987 does not define "practiced" for purposes of § 6-5-548(c)(4). Here, all expert witnesses acknowledged that Dr. Mercuri was a world-renowned TMJ surgeon, scholar, and surgical instructor. Dr. Mercuri was lifetime-certified by the 8 1190260 American Board of Oral and Maxillofacial Surgery. However, Dr. Mercuri stopped performing surgeries in the United States in 2010, and his certification then changed to "retired" status. Dr. Mercuri then devoted himself to research in the field of TMJ prosthetics and to teaching TJR surgical technique, including supervising students performing surgery on cadavers. He also consulted for a manufacturer of custom TMJ prostheses. In August 2013, Dr. Mercuri was involved with one TJR surgery in Brazil, which his affidavit said he "performed" with another doctor. In Dr. Mercuri's deposition, he described his role in that surgery as that of a "visiting professor." He explained that he was able to practice in South America because some South American countries were "just pretty happy to get somebody who has a lot of experience to assist or to do these surgeries." He went on to say that, in Brazil, he was able to "just walk[] into the operating room" without any license verification or background check. The question is whether, under these facts, the trial court exceeded its discretion by ruling that Dr. Mercuri had not "practiced" in Dr. Szymela's specialty during the year before Dr. Szymela 9 1190260 performed Janice's surgery on April 1, 2014.1 Alabama courts have on several occasions addressed what it means to have "practiced" under § 6-5-548. Consistent with our review of trial courts' rulings on the qualification of other kinds of experts, we have reviewed this "practice" issue as a matter within trial courts' discretion. In this way, we have not attempted to comprehensively define "practiced," but have allowed the contours of trial courts' discretion to be determined over time, in a case-by-case manner. For example, and as points of reference, we will survey the most relevant of these prior cases, paying particular attention to the how the "practice" issue was resolved at the trial-court and appellate levels.2 1The parties agree that April 1, 2014, was the "date that the alleged breach of the standard of care occurred," § 6-5-548(c)(4), for purposes of Dr. Mercuri's qualification. Thus, we do not consider whether any other date was relevant. 2 The cases surveyed involved qualification of experts under § 6-5- 548(b), which governs claims against nonspecialists and requires that a proffered expert have "practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred." § 6-5-548(b)(3). Because subsections (c)(4) and (b)(3) impose a similar "practiced" requirement, cases decided under subsection (b)(3) are instructive in applying subsection (c)(4). 10 1190260 In Medlin v. Crosby, 583 So. 2d 1290 (Ala. 1991), this Court reversed a trial court's ruling that an expert was not a "similarly situated health care provider." The plaintiff's decedent had died from a heart attack, allegedly because of an emergency-room doctor's failure to properly diagnose her condition. During the year before the alleged breach, the plaintiff's expert was a clinical professor at a medical school, teaching emergency medicine. In that role, he saw patients in an emergency department for the purpose of teaching and participated in the patients' diagnosis and treatment. On the other hand, he spent most of his time running a company that presented educational programs on emergency- response planning for industrial accidents and medical-response issues. Nevertheless, we held that the trial court erred in ruling that the expert had not "practiced" emergency medicine within that year; we noted that "the statute does not specify the amount of time spent practicing or the nature and quality of the practice." Id. at 1296. In Dowdy v. Lewis, 612 So. 2d 1149 (Ala. 1992), this Court affirmed a trial court's ruling that an expert was similarly situated. After the plaintiff's thyroid was removed, a hematoma blocked her airway, causing 11 1190260 respiratory arrest. The plaintiff alleged that her nurse had been negligent in failing to inform the surgeon about the plaintiff's postoperative complaint of choking. The plaintiff's two experts were nursing-school instructors. During the year before the alleged breach,3 they both taught full-time at universities, and at least one of them supervised students as they performed nursing care on patients. We concluded that the trial court did not exceed its discretion by permitting those experts to testify.4 Similarly, in Biggers v. Johnson, 659 So. 2d 108 (Ala. 1995), this Court affirmed a trial court's ruling that an expert was similarly situated. The plaintiff had been hospitalized for an infection after a molar 3This Court's opinion indicated that the alleged breach occurred on March 29-30, 1992. 612 So. 2d at 1150. However, that date was clearly a scrivener's error in the opinion, because the opinion indicated that the trial occurred in January 1992, two months earlier than that date. Id. at 1152. A review of available records reveals that the alleged breach occurred on March 29-30, 1988. 4In subsequent cases, this Court interpreted Dowdy as creating an exception for "highly qualified" experts, exempting them from the statute's requirement that the expert must have "practiced" in the same discipline or school of practice. See HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 827 (Ala. 1997); Tuck, 851 So. 2d at 502; Springhill Hosps., Inc. v. Critopoulos, 87 So. 3d 1178, 1189 (Ala. 2011). However, the McGills have not relied on Dowdy as creating such an exception, so we need not address the applicability of that exception here. 12 1190260 extraction. The plaintiff alleged that the general dentist who performed the extraction had failed to diagnose and treat an existing infection before the extraction. During the year before the alleged breach, the plaintiff's expert was both a lawyer and a licensed dentist who had retired from the "hands-on" practice of dentistry. He spent 80% of his time practicing law and 20% consulting in dentistry. He also extracted teeth for family and friends and had a working dental office in his house. In addition, he was an adjunct professor, teaching a university class on dental-medical emergencies. This Court noted that the evidentiary call was a "close one," id. at 112, but the Court could not say that the trial court exceeded its discretion by ruling that the expert had "practiced" in the year before the breach. Finally, in King v. Correctional Medical Services, Inc., 919 So. 2d 1186 (Ala. Civ. App. 2005), the Court of Civil Appeals affirmed a trial court's ruling that an expert was not similarly situated. A prison inmate had died in a hospital from a brain infection. The plaintiff alleged that prison doctors were negligent in their evaluation and treatment of the inmate. During the year before the alleged breach, the plaintiff's expert 13 1190260 had not practiced "hands-on" medicine. Instead, he had been a consultant on design and management for managed-care organizations and correctional health-care systems. The Court of Civil Appeals recognized that this Court had upheld a trial court's admission of arguably similar experts in Dowdy. However, the Court of Civil Appeals astutely recognized that, when the excess-of-discretion standard applies, an appellate court's affirmance of the trial court's admission of an expert does not mean that exclusion of that expert would be error. Id. at 1195 ("The fact that the trial court's decision to allow the testimony of the proffered witnesses did not amount to an [excess] of discretion [in Dowdy and HealthTrust, Inc. v. Cantrell, 689 So. 2d 822 (Ala. 1997),] does not necessarily mean that the opposite decision -- that is, one to exclude their testimony -- would have resulted in a reversal."). Indeed, this insight follows directly from the appellate principle that, under the excess-of- discretion standard, when reasonable judicial minds could differ as to the correct ruling, a trial court's ruling in either direction must be affirmed. See Baldwin Cnty. Elec. Membership Corp. v. Catrett, 942 So. 2d 337, 344 (Ala. 2006) (" 'A trial court exceeds its discretion when it "exceed[s] the 14 1190260 bounds of reason ...." ' " (quoting Johnson v. Willis, 893 So. 2d 1138, 1141 (Ala. 2004)); In re Kingsley, 518 F.3d 874, 877 (11th Cir. 2008) ("In reviewing for abuse of discretion, we recognize the existence of a 'range of possible conclusions the trial judge may reach,' and 'must affirm unless we find that the ... court has made a clear error of judgment, or has applied the wrong legal standard.' " (quoting Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1238 (11th Cir. 2007))); Kern v. TXO Prod. Corp., 738 F.2d 968, 971 (8th Cir. 1984) ("The very concept of discretion presupposes a zone of choice within which trial courts may go either way."); David G. Knibb, Federal Court of Appeals Manual § 31:4 (6th ed. 2013) ("Often, a [trial] court could rule for either party and still not abuse its discretion."). Accordingly, the Court of Civil Appeals held that the trial court did not exceed its discretion by excluding the expert because he lacked "hands-on" treatment of patients. Read together, the lesson of these cases is clear: in a case involving a medical-malpractice claim based on "hands-on" medical practice, a trial court has wide latitude in deciding whether to admit or exclude as witnesses medical experts whose work in the year preceding the breach 15 1190260 was at the margins of active medical practice. Here, the McGills' claim against Dr. Szymela was based on his "hands-on" medical practice. Dr. Mercuri's most similar work during the year preceding the surgery was his involvement in a TJR surgery in Brazil. However, as related above, the evidence before the trial court contained only vague information about the nature of Dr. Mercuri's participation in that surgery. In view of that absence of clarity, along with the general nature of Dr. Mercuri's post-retirement work discussed above, the trial court could reasonably have concluded that Dr. Mercuri's work during that year did not constitute having "practiced" for purposes of § 6-5-548(c)(4). For these reasons, we cannot say that the trial court's ruling exceeded its broad discretion illustrated by the precedent cases discussed above. In particular, unlike the expert in Medlin and like the expert in King, Dr. Mercuri's general responsibilities were not shown to include direct, "hands-on" diagnosis and treatment of patients. Therefore, although the evidentiary call in this case is a "close one," Biggers, 659 So. 2d at 112, the trial court did not err by excluding Dr. Mercuri's testimony. 16 1190260 B. Partial JML The McGills contend that the trial court erred by granting Dr. Szymela's preverdict motion for a JML on the issues whether Dr. Szymela failed to install the prosthetic joints correctly and failed overall to perform the TJR surgery properly. We review a JML by asking whether, when the evidence is viewed in the light most favorable to the nonmovant, the nonmovant presented substantial evidence in support of his position. Sutherland, 834 So. 2d at 758. In support of the McGills' argument, they assert that "[t]he testimony established that the standard of care required that Dr. Szymela maintain the occlusion [distinct bite alignment] that Janice came into the operating room with, and that Dr. Szymela place the condyle [ball] component properly within the fossa [socket] component on each side. ... [The McGills' expert] Dr. Pellecchia offered substantial evidence to show that standard was breached." (Record citations omitted.) Alternatively, the McGills argue that expert testimony was not needed because the nature of Janice's injuries -- altered occlusion, clicking noise in her jaw, and postoperative pain -- spoke for itself to indicate that Dr. Szymela negligently performed the surgery. 1. Standard-of-care evidence 17 1190260 The McGills contend that the testimony of Dr. Pellecchia amounted to substantial evidence that Dr. Szymela breached the applicable surgical standard of care. In order for a plaintiff to establish a breach of the standard of care, there must be evidence establishing that standard of care. See Collins v. Herring Chiropractic Ctr., LLC, 237 So. 3d 867, 870 (Ala. 2017). To establish the standard, "ordinarily, the plaintiff must offer expert medical testimony as to what is or what is not the proper practice, treatment, and procedure." Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1129 (Ala. 1985) (emphasis added). In this case, the McGills' expert, Dr. Pellecchia, did not articulate such a standard of care. Thus, the McGills rely on the testimony of Dr. Szymela himself and of his own expert, Dr. Warburton, as having established the standard of care. Neither of those witnesses, however, articulated the standard of care for a TJR surgery, particularly with regard to maintenance of a patient's occlusion and placement of the condyle (ball) within the fossa (socket). Dr. Szymela discussed in detail his method for performing TJR surgeries and opined that his performance met the standard of care, but he never articulated what that standard of 18 1190260 care was. Dr. Warburton testified that the standard of care was "what a reasonable practitioner would do in similar circumstances with similar resources." That language merely paraphrased the general legal concept of a medical standard of care; it did not articulate "what is or what is not the proper practice, treatment, and procedure," Rosemont, 481 So. 2d at 1129, in a TJR surgery. Thus, Dr. Szymela's and Dr. Warburton's testimony was not sufficient to establish the specific standard of care applicable to TJR surgery. As a consequence, no expert testimony established the standard of care. 2. Common-knowledge exception In the alternative, the McGills argue that expert testimony was not needed to establish that Dr. Szymela breached the standard of care. The McGills rely on our prior holding that "[a] narrow exception to [the] 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." ' " Ex parte HealthSouth Corp., 851 So. 2d 33, 38 (Ala. 2002) (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala. 1984), 19 1190260 quoting in turn Dimoff v. Maitre, 432 So. 2d 1225, 1226-27 (Ala. 1983)). In HealthSouth, the plaintiff was receiving inpatient rehabilitation after back surgery. She was placed in a bed with rails and was instructed not to get up without assistance from a nurse. While in bed, the plaintiff needed to use the restroom and rang for the nurse. The plaintiff waited between 30 minutes and an hour, but the nurse did not come. Unable to wait any longer, the plaintiff tried to get up on her own. When she placed weight on her left leg, it gave way and she fell, fracturing her hip. This Court held that expert testimony was unnecessary to establish that the nurse breached the standard of care: "We do not see why a medical expert would be necessary to establish that [the plaintiff's] failure to follow doctor's orders -- by getting out of bed and injuring herself -- was the result of the failure to respond to a call for assistance for an unreasonable period. In this case, where the issue is whether a nurse breached the standard of care by not responding to a routine call within a 30-minute period, laypersons could answer [that question] by using their 'common knowledge and experience.' " 851 So. 2d at 41. Additionally, in Collins v. Herring Chiropractic Center, LLC, 237 So. 3d 867 (Ala. 2017), this Court highlighted examples where "common 20 1190260 knowledge and experience" were sufficient to understand a medical professional's alleged breach. See id. at 871-72 (citing cases involving failing to adequately cool a medical implement, causing burns; leaving bed rails down contrary to orders; and failing to provide available speedier transportation to a patient with a crushed hand). In Collins, we held that expert testimony was not required to establish that a chiropractor had breached the standard of care by applying a frozen cold pack to the plaintiff's knee, when the plaintiff experienced blistering and scarring after the cold pack was removed. Id. at 873. The McGills argue that expert testimony was unnecessary here because, they assert, Janice's injury "speaks for itself." However, the record reveals that the TJR surgical process and potential complications were anything but simple or self-explanatory. Dr. Szymela testified at length about the many detailed steps in the surgical technique, including, for example, how a patient's occlusion could be maintained during surgery with screws and wires, how the patient's own bones would be sawed or remolded to accommodate the prostheses (on both sides of the jaw), how the prostheses would be attached, and how all this would be done without 21 1190260 injuring the patient's facial nerves and blood vessels. In light of the inherent complexity of the surgery and the anatomical modification it involved, this is not "a case where want of skill or lack of care is so apparent," HealthSouth, 851 So. 2d at 38, that a layperson would understand it without expert assistance. Particularly with reference to the McGills' claim, the common knowledge and experience of a layperson was insufficient to establish the limits of reasonable practice in placing the prosthesis and maintaining the patient's occlusion. Importantly, the common-knowledge exception does not allow a jury to infer the standard of care or breach thereof based solely on an unsuccessful outcome, if the procedure itself is not within the ken of a layperson. Under the Alabama Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, "[n]either a physician, a surgeon, a dentist nor a hospital shall be considered an insurer of the successful issue of treatment or service." § 6-5-484(b). Consistent with the statute, it is well established in Alabama that a poor medical outcome alone does not give rise to medical-malpractice liability. See Ingram v. Harris, 244 Ala. 246, 248, 13 So. 2d 48, 48-49 (1943) ("[T]he burden of proof is on the plaintiff to show 22 1190260 negligence in the diagnosis or treatment, and it is not enough to show that an unfortunate result followed such diagnosis or treatment."); Piper v. Halford, 247 Ala. 530, 532, 25 So. 2d 264, 266 (1946) ("[A] physician or surgeon does not warrant a cure or a successful result .... It is not enough to show that an unfortunate result followed."); Watterson v. Conwell, 258 Ala. 180, 182-83, 61 So. 2d 690, 692 (1952) ("There is no requirement of law that a physician should have been infallible in his diagnosis and treatment of a patient. ... A showing of an unfortunate result does not raise an inference of culpability."); Holt v. Godsil, 447 So. 2d 191, 193 (Ala. 1984) ("[T]he existence of an unfortunate result does not raise an inference of culpability ...."); Bates v. Meyer, 565 So. 2d 134, 137 (Ala. 1990) (same); 2 Stuart M. Speiser, The Negligence Case: Res Ipsa Loquitur § 24:9 (1972) ("In actions for medical malpractice it is well established that no ... inference of negligence on the part of a physician or surgeon arises from the mere fact that a medical treatment or surgical operation was unsuccessful ...."). Thus, the mere fact that a layperson could easily understand Janice's poor outcome does not mean that expert testimony was not needed to establish the standard of care and a breach 23 1190260 thereof. As explained above, the standard of care for a TJR surgery is not within the ken of a layperson. Therefore, expert testimony regarding the standard of care was needed. Because of the absence of expert testimony articulating the standard of care and the inapplicability of the common-knowledge exception, the evidence was insufficient to establish the standard of care. Therefore, the trial court did not err in entering a JML on the McGills' installation and surgical-performance claims. IV. Conclusion The trial court did not exceed its discretion by excluding the testimony of Dr. Mercuri on the basis that he was not statutorily qualified as an expert. Because the McGills did not present or point to substantial evidence of the standard of care for Dr. Szymela's performance of Janice's TJR surgery, the trial court properly entered a JML on the claims relating to the surgery. Accordingly, we affirm the judgment. AFFIRMED. Stewart, J., concurs. Bolin, Sellers, and Mendheim, JJ., concur in the result. 24	December 31, 2020
3135b307-1a13-4c44-aebe-ea88ea38ce7f	Randy Lee Melvin and Karen Melvin v. Aliant Bank	N/A	1190824	Alabama	Alabama Supreme Court	Rel: December 11, 2020 STATE OF ALABAMA -- JUDICIAL DEPARTMENT THE SUPREME COURT OCTOBER TERM, 2020-2021 1190824 Randy Lee Melvin and Karen Melvin v. Aliant Bank (Appeal from St. Clair Circuit Court: CV-14-900016). BOLIN, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. Parker, C.J., and Sellers, Mendheim, and Stewart, JJ., concur.	December 11, 2020
daf7ea3b-6944-49f6-8f09-468ecfbddb1e	Ex parte Elroy Joshua Adams.	N/A	1200051	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200051 Ex parte Elroy Joshua Adams. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Elroy Joshua Adams v. State of Alabama) (St. Clair Circuit Court: CC-09-128; Criminal Appeals : CR-18-0998). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
3ec994e5-7ada-470b-80c1-b43d6d2b6d14	Jack Wilborn Roper v. States Resources Corporation	N/A	1190714	Alabama	Alabama Supreme Court	Rel: December 11, 2020 STATE OF ALABAMA -- JUDICIAL DEPARTMENT THE SUPREME COURT OCTOBER TERM, 2020-2021 1190714 Jack Wilborn Roper v. States Resources Corporation (Appeal from Escambia Circuit Court: CV-19-900157). WISE, Justice. AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.	December 11, 2020
2abe0a92-6830-438d-af24-f0c37d322944	Ex parte C. P. C.	N/A	1200017	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200017 Ex parte C. P. C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: C. P. C. v. State of Alabama) (Baldwin Circuit Court: CC-12-2041.61; Criminal Appeals : CR-19-0372). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
b181a28e-36bb-4fa2-92f3-691e278112b7	Ex parte Mary Helen Parker Pugh.	N/A	1191061	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1191061 Ex parte Mary Helen Parker Pugh. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Mary Helen Parker Pugh v. Garner Farms, LLC) (Dale Circuit Court: CV-19-900076; Civil Appeals : 2190167). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Bryan, J. - Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
943cbe8e-9c3c-4c90-839e-50025c8e10aa	Wayne Farms LLC v. Primus Builders, Inc.	N/A	1190533	Alabama	Alabama Supreme Court	Rel: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190533 ____________________ Wayne Farms LLC v. Primus Builders, Inc., and Steam-Co, LLC Appeal from Houston Circuit Court (CV-19-900675) BOLIN, Justice. 1190533 Wayne Farms LLC appeals from the Houston Circuit Court's order compelling it to arbitrate its claims asserted against Primus Builders, Inc., and staying the action. Factual and Procedural History Wayne Farms is a poultry producer located in Dothan. Wayne Farms sought to expand its poultry-processing facility, and, to that end, it entered into a "Design/Build Agreement" with Primus on May 26, 2017, that specifically addressed work to be completed by Primus in connection with the expansion of Wayne Farms' freezer warehouse. Article 11 of that agreement addresses disputes that might arise between the parties. Section 11.6 provides as follows: "In the event of any dispute arising between [Wayne Farms] and [Primus] regarding any part of the Agreement or the Contract Documents, or the Parties' obligations or performance thereunder, either Party may institute the dispute resolution procedures set forth herein." Section 11.7 of the agreement contains the dispute-resolution procedures available to the parties. Section 11.7.1 provides in part that "[a]ny party may from time to time call a special meeting for the resolution of disputes that would have a material impact on the cost or progress of the Project." 2 1190533 Section 11.7.2.1 of the agreement provides in part that, "[i]f the dispute has not been resolved within five (5) working days after the special meeting has been held, a mediator, mutually acceptable to the Parties and experienced in design and construction matters shall be appointed." The third component of the dispute-resolution procedures is arbitration. Section 11.7.3.1 of the agreement provides: "Any controversy or dispute not resolved through non-binding mediation shall be settled by binding arbitration. Either party may initiate arbitration by giving written notice to the other party after exhausting the mediation procedures set forth herein. The notice shall state the nature of the claim or dispute, the amount involved, if any, and the remedy sought." Section 11.7.3.2 provides: "The dispute shall be submitted to an independent arbitrator mutually selected by the Parties. If the dispute has a value in excess of One Million Dollars ($1,000,000) then at the election of either Party, there shall be a panel of three arbitrators. If the Parties do not mutually agree on an arbitrator or arbitrators who is/are willing and able to serve, the Parties shall then utilize the American Arbitration Association (or another entity acceptable to the Parties) to provide the required independent arbitrator(s). The decision of the appointed independent arbitrator(s) shall be final and binding on the Parties. In rendering a decision, the arbitrator(s) shall comply with the Construction Industry Arbitration Rules of the American Arbitration Association in effect as of the date of this Agreement. The arbitrator(s) shall have no direct or 3 1190533 indirect social, political or business relationship of any sort with any of the Parties, their respective legal counsel, or any other person or entity materially involved in the Project." The scope of Primus's work under the Design/Build Agreement with Wayne Farms included the installation of a refrigeration unit, including a galvanized steel condenser. On March 6, 2017, before Wayne Farms and Primus executed the Design/Build Agreement, Republic Refrigeration, Inc., submitted a bid to Primus to install the refrigeration unit for a price of $3,702,720. The scope-of-work declaration submitted with Republic's bid specifically excluded "passivation services, equipment, chemicals or installation for new condensers." 1 On April 3, 2017, Primus submitted the Republic bid to Wayne Farms with a recommendation that the refrigeration-unit installation work be awarded to Republic. Republic's bid was accepted, and it ultimately entered into a subcontract with 1According to materials in the record, "passivation" is a chemical- treatment process conducted on equipment composed of galvanized steel, such as the condenser in this case, pursuant to which the galvanized steel is treated with chemicals to prevent "white rust," which results from a corrosive chemical reaction between water in the condenser and zinc used in the process of galvanizing the condenser and can lead to degradation of the galvanized steel and a reduced life expectancy of the condenser. 4 1190533 Primus to install the refrigeration unit, and Primus does not dispute that the scope of the work to be performed under the subcontract excluded passivation services . The refrigeration unit, including the condenser, was subsequently installed by Republic at the Wayne Farms facility. The passivation of the condenser was a necessary part of the preparation of the new refrigeration unit in order for it to operate at the Wayne Farms facility. Wayne Farms and Primus both communicated with Steam-Co, LLC, a water-treatment company, regarding the passivation of the newly installed condenser. In April 2018, Wayne Farms entered into a contract with Steam-Co to perform passivation on the condenser. Steam-Co noted that Primus had, on April 13, 2018, filled the condenser with water using a water hose. On April 13, Steam-Co recommended to Primus that it have "makeup" water ready for passivation by adding certain chemicals to the water already in the sump of the condenser. Steam-Co further recommended that "two days of city water" then be added to the "makeup" water and that passivation then start. It appears from the record that Steam-Co wanted to start passivation on the condenser on April 17 or 18. However, for reasons not 5 1190533 entirely clear from the record, Steam-Co apparently did not start passivation on either of those dates.2 It appears that water from the local city water supply was added to the "makeup" water already in the condenser on May 11, 2018. On May 12, the condenser was drained and inspected before loading ammonia into the refrigeration unit. At that time, it was discovered that the interior of the condenser was coated with corrosive "white rust." See note 1, supra. Primus completed an incident report after being notified of the presence of white rust in the condenser. Primus then replaced the damaged condenser at a cost of approximately $500,000 under a change order, pursuant the Design/Build Agreement with Wayne Farms. Wayne Farms paid Primus for both the original damaged condenser and the replacement condenser. Both Primus and Steam-Co have claimed that the other is responsible for the damage to the condenser. 2The parties' briefs and the record on appeal lack significant factual details surrounding the passivation process. It appears that the parties had ongoing discussions regarding problems relating to the passivation process, which appear to have involved supplying the necessary water and power to conduct the process. 6 1190533 On December 4, 2019, Wayne Farms sued Primus and Steam-Co asserting claims of breach of contract and negligence and seeking damages for the damaged condenser and the cost of replacing it.3 On January 6, 2020, Steam-Co answered Wayne Farms' complaint and filed cross-claims against Primus, alleging breach of contract and negligence and seeking indemnification from Primus.4 Steam-Co alleged that Primus had failed to timely prepare the condenser for passivation and had allowed untreated water to damage the condenser. On January 8, 2020, Primus moved the trial court to compel arbitration as to the claims asserted against it by Wayne Farms. 3Before filing its complaint, Wayne Farms participated in a special meeting with Primus for the purpose of resolving the dispute regarding the damaged condenser, as required by section 11.7.1 of the Design/Build Agreement. When that meeting proved unsuccessful in resolving the dispute between Wayne Farms and Primus, those parties participated in nonbinding mediation in March 2019, as required by section 11.7.2.1 of that agreement. That mediation also proved unsuccessful in settling the dispute between the parties. 4As noted earlier, Wayne Farms and Steam-Co entered into a contract for the passivation services. Primus was not a party to that contract. Additionally, no separate contract existed between Primus and Steam-Co for the passivation services. Steam-Co's breach-of-contract claim against Primus appears to be an inartfully pleaded claim, the basis for which is not entirely clear from the record. 7 1190533 Additionally, Primus sought a stay of Wayne Farms' action against it. Primus supported its motion to compel arbitration with the affidavit of its president, Matthew Hirsch. On February 6, 2020, Primus moved the trial court to dismiss or, in the alternative, to stay Steam-Co's cross-claims against it. On March 2, 2020, Wayne Farms filed its response in opposition to Primus's motion to compel arbitration, arguing that no contract existed between the parties requiring it to arbitrate claims arising from the passivation process. On March 5, 2020, Primus filed a supplemental affidavit by Hirsch in support of the motion to compel arbitration. On March 9, 2020, Steam-Co filed a response in opposition to Primus's motion to dismiss or, in the alternative, to stay Steam-Co.'s cross-claims. Also on March 9, Wayne Farms moved the trial court to strike Hirsch's supplemental affidavit in support of Primus's motion to compel arbitration. Following a hearing, the trial court, on March 19, 2020, entered an order granting Primus's motion to compel arbitration; reserved ruling on Primus's motion to dismiss Steam-Co's cross-claims against it; 8 1190533 and, stayed the action as to Wayne Farms' claims against Primus and Steam-Co and as to Steam-Co's cross-claims against Primus. Wayne Farms appeals the trial court's order, specifically challenging the trial court's decisions to grant Primus's motion to compel arbitration and to stay the action as to its claims against Steam-Co. See Rule 4(d), Ala. R. App. P. ("An order granting or denying a motion to compel arbitration is appealable as a matter of right...."). Standard of Review "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 9 1190533 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))." SSC Montgomery Cedar Crest Operating Co. v. Bolding, 130 So. 3d 1194, 1196 (Ala. 2013). Discussion Primus first argues that Wayne Farms' initial participation in the dispute-resolution process set forth in the Design/Build Agreement equitably estops Wayne Farms from pursuing its claims in court and refusing to participate in the arbitration of the dispute regarding the damage to the condenser. As set forth above, the dispute-resolution procedures provided for in the Design/Build Agreement contain a three-step process designed to resolve disputes that might arise between the parties during the course of the performance of that agreement. Section 11.7.1 of the agreement provides in part that any party may call a special meeting for the purpose of attempting to resolve a dispute that arises between the parties. Section 10 1190533 11.7.2.1 of the agreement provides in part that, if the dispute has not been resolved within five working days following the special meeting, a mediator shall be appointed to attempt to resolve the dispute. Section 11.7.3.1 of the agreement provides that any controversy or dispute arising between the parties and not resolved through nonbinding mediation "shall be settled by binding arbitration." Hirsch testified in his affidavit that Wayne Farms and Primus had voluntarily participated in the special- meeting and the mediation stages of the dispute-resolution process provided for in the Design/Build Agreement. After participating in the first two steps of the dispute-resolution process provided for in that agreement, Wayne Farms has now objected to being forced to participate in the third step of the dispute-resolution process by arguing that the parties did not agree to arbitrate claims arising out of the passivation process. Equitable estoppel is an affirmative defense. City of Huntsville v. Stove House 5, Inc., 3 So. 3d 186 (Ala. 2008). Generally, if a party fails to plead an affirmative defense, that defense is waived. Patterson v. Liberty 11 1190533 Nat'l Life Ins. Co., 903 So. 2d 769 (Ala. 2004). Regarding affirmative defenses, this Court has stated: " 'Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [Morse], 352 So. 2d 1355, 1357 (Ala. 1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown [Central ] Petroleum Corp., 451 So. 2d 793, 796 (Ala. 1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT [Phillips] Drill Division, Inc., 445 So. 2d 559, 561 (Ala. 1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So. 2d 298, 302 (Ala. 1979); and Williams v. McMillan, 352 So. 2d 1347, 1349 (Ala. 1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8–251 (3d ed.1984)....' " Wallace [v. Alabama Ass'n of Classified Sch. Emps.], 463 So. 2d [135,] 136-37 [ (Ala. 1984)]." Adams v. Tractor & Equip. Co., 180 So. 3d 860, 867 (Ala. 2015). It does not appear from the record that Primus raised the issue of equitable estoppel in any pleading filed with the trial court. However, Primus states that it argued the issue of equitable estoppel at the hearing on its motion to compel arbitration. Primus's "argument" consists of a single, conclusory sentence in which its counsel stated: "I think Wayne Farms should be estopped from arguing somehow that now that we've 12 1190533 done the first two, we shouldn't go to the third one." This conclusory statement made in passing during the hearing on the motion to compel arbitration, in which the parties focused their arguments exclusively on the issue of the scope of the arbitration provision, is insufficient to "revive" the defense of equitable estoppel. Accordingly, we conclude that Primus has waived this defense. However, even assuming that Primus had not waived the defense of equitable estoppel, Primus has failed demonstrate how it would apply in this case so as to prevent Wayne Farms from pursuing its claims arising from the damaged condenser in court rather than in arbitration proceedings. Equitable estoppel is defined as " 'a defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured in some way.' " Bowers v. Wal-Mart Stores, Inc., 827 So. 2d 63, 67 n. 2 (Ala. 2001) (quoting Black's Law Dictionary 571 (7th ed. 1999)). A party raising the defense of equitable estoppel must show the following: 13 1190533 "(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;' "(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 Elect. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So. 2d 1240, 1243 (Ala. 1983)). Primus has presented no evidence or argument that would satisfy those essential elements of the defense of equitable estoppel so as to prevent Wayne Farms from pursuing its claims in court rather than in arbitration proceedings. We next address the merits of Primus's motion to compel arbitration. Primus submitted Hirsch's original affidavit and his supplemental affidavit, along with exhibits, in support of its motion to compel arbitration. Those affidavits and exhibits satisfied Primus's initial burden 14 1190533 of " ' "proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce." ' " Bolding, 130 So. 3d at 1196 (quoting other cases). Therefore, the burden shifted to Wayne Farms to " ' " 'present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' " ' " Bolding, 130 So. 3d at 1196 (quoting other cases). Wayne Farms argues that the arbitration provision contained in the Design/Build Agreement does not apply to its claims arising out of the passivation process, and the resulting damage to the original condenser, because, it says, the parties did not agree in that agreement to arbitrate any dispute arising out of the passivation process. Specifically, Wayne Farms argues that Republic's subcontract with Primus to install the refrigeration unit fell within the scope of the work to be performed by Primus pursuant to the Design/Build Agreement between Wayne Farms and Primus and that the subcontract to install the refrigeration unit expressly excludes "passivation services, equipment, chemicals or installation for new condensers." Wayne Farms further notes that it 15 1190533 contracted with Steam-Co to perform the passivation work, which, it asserts, was outside the scope of the work to be performed pursuant to the Design/Build Agreement, approximately a year after the Design/Build Agreement was entered into with Primus. Thus, Wayne Farms contends that no agreement to arbitrate claims arising from the passivation process exists with Primus and that the trial court could not compel it to arbitrate a dispute it did not agree to arbitrate. It is well established that " ' " '[a]rbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' " ' " Custom Performance, Inc. v. Dawson, 57 So. 3d 90, 97 (Ala. 2010) (quoting Central Reserve Life Ins. Co. v. Fox, 869 So. 2d 1124, 1127 (Ala. 2003), quoting in turn AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986), quoting in turn United Steelworkers of America v. Gulf Navigation Co., 363 U.S. 574, 582 (1960)). This Court has stated: "In interpreting an arbitration provision, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.' Moses H. Cone 16 1190533 Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (emphasis added; footnote omitted). 'Thus, a motion to compel arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582–83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).' Ex parte Colquitt, 808 So. 2d 1018, 1024 (Ala. 2001) (emphasis added)." Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 7 (Ala. 2007). Wayne Farms and Primus entered into the Design/Build Agreement for an expansion project at the Wayne Farms facility. Primus's scope of work under the Design/Build Agreement included the installation of a refrigeration unit, including a condenser. Primus entered into a subcontract with Republic to install the refrigeration unit to satisfy that particular obligation Primus had under the Design/Build Agreement. The subcontract entered into between Primus and Republic for the installation of the refrigeration unit was based on Republic's bid submitted to Primus and approved by Wayne Farms. The terms of the bid expressly excluded passivation services for the condenser from the scope of work to be performed by Republic for Primus. Because passivation of the condenser was necessary to the installation of the refrigeration unit, Wayne Farms 17 1190533 entered into a completely separate contract with Steam-Co for completion of the passivation work approximately a year after Wayne Farms had entered into the Design/Build Agreement with Primus. The Design/Build Agreement provides that any party may submit to the dispute-resolution process, which includes arbitration as its third step, "any dispute arising between [Wayne Farms] and [Primus] regarding any part of ... the Parties' obligations or performance" under that agreement. Although Primus was obligated under the Design/Build Agreement with Wayne Farms to perform the installation of the refrigeration unit, it is clear that performance of the passivation work was not an obligation contemplated by Wayne Farms or Primus with respect to the installation of the refrigeration unit under the Design/Build Agreement. Because Wayne Farms and Primus agreed to arbitrate only those disputes arising between them regarding their obligations or performance under the Design/Build Agreement, Wayne Farms cannot be compelled to arbitrate with Primus a dispute arising from the performance of passivation work that was not an obligation agreed to in the Design/Build Agreement. 18 1190533 Dawson, 57 So. 3d at 97. Accordingly, we conclude that the trial court erred in granting Primus's motion to compel arbitration. Wayne Farms next argues that the trial court erred in staying the action as to its claims against Steam-Co in the absence of a motion seeking that relief. Because this Court has found that the trial court erred in granting Primus's motion to compel arbitration, a discussion of whether the trial court erred by staying the action pending arbitration is unnecessary, and, thus, we pretermit discussion of that issue. Conclusion The trial court's order granting Primus's motion to compel arbitration and staying proceedings in this case is reversed, and the case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. Wise, Sellers, Mendheim, and Stewart, JJ., concur. Parker, C.J., and Bryan, J., concur in the result. Shaw and Mitchell, JJ., dissent. 19 1190533 SHAW, Justice (dissenting). The record indicates that Primus Builders, Inc., made a prima facie demonstration in the trial court that the claims alleged against it by Wayne Farms LLC are included within the scope of an arbitration agreement between the two and that Wayne Farms failed to demonstrate otherwise. Therefore, I respectfully dissent. The parties entered in a "Design/Build Agreement" in which Primus agreed to construct an expansion to Wayne Farms' chicken-processing facility. That project, it appears undisputed, included the installation of an operational refrigeration system. The agreement also contained the following provision outlining the scope of arbitrable issues: "In the event of any dispute arising between [Wayne Farms] and [Primus] regarding any part of the Agreement or the Contract Documents, or the Parties' obligations or performance thereunder, either Party may institute the dispute resolution procedures set forth herein." The dispute-resolution procedures set forth in the agreement included the right to pursue binding arbitration once other enumerated dispute- resolution procedures had failed. 20 1190533 Primus subcontracted with Republic Refrigeration, Inc., to install the refrigeration system. Documents related to the subcontract indicate that the "passivation" of the system's condenser, a treatment process necessary to prepare the condenser before use, was excluded from Republic's scope of work. A company called Steam-Co, LLC, performed the passivation. At some point during or after the passivation, the condenser was found to be damaged during the process. Primus replaced it under a "change order" pursuant to the Design/Build Agreement. Wayne Farms was required to pay for a replacement condenser and allegedly suffered other damages. Primus and Steam-Co dispute who is responsible for the damage to the condenser. Wayne Farms sued both Primus and Steam-Co, alleging both breach-of-contract and tort claims. It contended that Primus and Steam- Co either "solely or collectively" caused the damage. Primus moved to compel arbitration under the arbitration provisions found in the Design/Build Agreement. It alleged that, as part of its work under that agreement, it had "agreed to furnish and install a condenser 21 1190533 as a component of the refrigeration system serving the plant expansion." In support of its motion to compel, Primus submitted a copy of the Design/Build Agreement and two affidavits by Matthew Hirsch, the president of Primus. Hirsch testified that the Design/Build Agreement "provided for work by Primus for the benefit of Wayne Farms in connection" with the expansion project. Hirsch stated that, "[w]ith respect to the damaged condenser that is the basis for Wayne Farms' claims against Primus in this lawsuit, Primus had only one contract with Wayne Farms and that contract is the 'Design/Build Agreement.' " He further stated that Primus had "never invoiced or been paid for any work relating to the condenser outside the Design/Build Agreement and its written change orders." His affidavit further provided: "Part of Primus’[s] scope of work under the contract is the furnishing and installation of the condenser, which is part of the freezer system at the facility. Primus has been paid by Wayne Farms for both the original damaged condenser and the second, replacement condenser under Change Order no. 19 to the Design/Build Agreement. "Passivation of the condenser was a necessary part of its preparation to operate at the facility." (Paragraph numbers omitted.) 22 1190533 Wayne Farms responded to the motion to compel and argued that there was a separate contract governing the passivation work. Therefore, according to Wayne Farms, the work did not fall under the scope of the Design/Build Agreement or its arbitration provision. The trial court held a hearing and then granted the motion to compel. Wayne Farms appeals. " '[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))." 23 1190533 Vann v. First Cmty. Credit Corp., 834 So. 2d 751, 752–53 (Ala. 2002). Additionally, " 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.' " Elizabeth Homes, L.L.C. v. Cato, 968 So. 2d 1, 7 (Ala. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25 (1983)). In the trial court, Primus met its " 'burden of proving the existence of a contract calling for arbitration.' " 5 Vann, 834 So. 2d at 752. As noted above, Primus presented evidence that its work under the Design/Build Agreement with Wayne Farms included furnishing the condenser as part of the expansion project, that the passivation was a necessary part of that work, and that there was no other contract under which the work was performed. Thus, the evidence indicated that the "dispute" that had arisen between Primus and Wayne Farms related to or "regarded" that 5Primus also presented evidence to establish that the contract affected interstate commerce, but that issue is not material in this appeal. 24 1190533 work, the Design/Build Agreement, and Primus's performance or obligations under the Design/Build Agreement. On appeal, Wayne Farms challenges whether the dispute is covered by the terms of the arbitration provisions in the Design/Build Agreement. Specifically, it asserts that passivation was not actually provided as part of the scope of work in the Design/Build Agreement. Wayne Farms argues instead that passivation was excluded from the Republic subcontract and performed under a separate passivation contract between Wayne Farms, Steam-Co, and Primus. That separate contract, Wayne Farms contends, contains no agreement to arbitrate. It appears from the record that no separate contract for the passivation work exists in writing,6 and no evidence demonstrating the existence of the separate contract was provided to the trial court. Specifically, no affidavit or other testimony regarding that contract or its terms was submitted in opposition to the motion to compel. Although 6Counsel for Wayne Farms indicated at a hearing on the motion to compel arbitration that there was no "written passivation agreement separate and apart from the Design/Build Agreement." 25 1190533 Wayne Farms asserted in its filings in the trial court and at the hearing on the motion to compel that such an agreement existed, no evidence was provided to substantiate those assertions. Cf. Ex parte Merrill, 264 So. 3d 855, 860 n.4. (Ala. 2018) ("Motions, statements in motions, and arguments of counsel are not evidence."); Lewis v. Mobil Oil Corp., 765 So. 2d 629, 630 (Ala. 1999) ("The party opposing a motion for summary judgment may not merely rely upon the allegations and denials in pleadings in order to defeat a properly supported motion."). Wayne Farms therefore did not demonstrate that a contract other than the Design/Build Agreement governed the work giving rise to the dispute between Wayne Farms and Primus in this case. Wayne Farms also contends that the passivation work itself was actually excluded from the Design/Build Agreement. It argued in the trial court that a "Scope of Work -- Refrigeration Addendum" to the Design/Build Agreement specifically excluded passivation from that agreement. That purported addendum, which was submitted to the trial court, is actually Republic's bid summary to perform its subcontracting work for the installation of the refrigeration system. That document, at 26 1190533 best, simply defined the scope of work that Republic was to perform for the project under its own subcontract with Primus; by its terms, it does not limit or otherwise indicate the scope of work Primus was to perform under the Design/Build Agreement for the expansion project.7 Therefore, Wayne Farms did not sufficiently demonstrate that the passivation work was excluded from the scope of the work performed pursuant to the Design/Build Agreement. In sum, the evidence produced in support of the motion to compel arbitration demonstrates that the claims related to the passivation of the condenser arose in regard to work provided under the terms of the Design/Build Agreement and Primus's obligations and performance under that agreement. Further, Primus's remediation work to replace the condenser, the related charges for which Wayne Farms seeks to recoup in this action, was performed under the Design/Build Agreement. Primus 7Wayne Farms also cited an e-mail from Hirsch that was apparently generated after the passivation damage was discovered, which stated that "passivation of the condenser is excluded from the scope of the project." However, it is unclear if that e-mail was referring to the scope of the work under the Design/Build Agreement or the scope of work performed by Republic, which was previously mentioned in the e-mail. 27 1190533 thus demonstrated that the arbitration provisions in the Design/Build Agreement apply to Wayne Farms' claims against Primus. In response, Wayne Farms did not meet its burden to present evidence that the arbitration provisions are not valid or do not apply to the dispute in question. Therefore, the trial court's order compelling arbitration is due to be affirmed, and I respectfully dissent. 28 1190533 MITCHELL, Justice (dissenting). The majority opinion concludes that the underlying dispute between Wayne Farms LLC and Primus Builders, Inc., is outside the scope of the arbitration provisions in a contract those parties previously executed. Accordingly, the majority would reverse the order of the Houston Circuit Court compelling Wayne Farms to arbitrate its dispute. Because I agree with the trial court's conclusion that the underlying dispute falls within the scope of the arbitration provisions, I respectfully dissent. Wayne Farms and Primus executed a contract ("the Design/Build Agreement") whereby Primus agreed to perform certain work related to the expansion of Wayne Farms' freezer warehouse. That work included the installation of a refrigeration unit, which contained a large galvanized steel condenser. After the steel condenser was installed, Wayne Farms hired a separate company, Steam-Co, LLC, to passivate it. That step was required before the condenser could be placed into service. At some point during the passivation process, it was determined that the condenser was irreparably damaged, and Wayne Farms had to replace it at a cost of approximately $500,000. 29 1190533 Wayne Farms sued both Primus and Steam-Co seeking to recover damages stemming from the replacement of the condenser. Count two of Wayne Farms' complaint alleged that the defendants "negligently, recklessly, and/or wantonly passivated, constructed, designed, supervised, inspected, engineered, and/or tested the condenser unit and breached the standard of care when passivating the condenser unit." Thus, Wayne Farms alleged that the defendants committed errors (1) when the condenser was "passivated" and (2) when the condenser was "constructed, designed, supervised, inspected, engineered and/or tested." That second set of errors relates to the installation of the condenser, which was a contractual obligation of Primus under the Design/Build Agreement. The fact that Wayne Farms alleged negligence in both the passivation process and the installation process is further evidenced by the requests for production of documents that Wayne Farms served upon the defendants with the complaint. Those requests asked the defendants to: "1. Produce all text messages, emails, correspondence or any other form of communication, both internal and external, that refers to and/or relate to the condenser unit referenced in 30 1190533 plaintiff's complaint and/or the passivation and/or installation/set up of said condenser unit. "2. Produce your complete file relating to, referencing, and/or regarding the purchase, installation, set up and/or passivation of the condenser unit referenced in plaintiff's complaint. "3. Produce all photographs, notes, memos, incident reports or other documents that reference and/or relate to the installation, set up, and/or passivation of the condenser unit referenced in plaintiff's complaint." The Design/Build Agreement set forth a multistep procedure that Wayne Farms and Primus were required to follow to resolve disputes "arising between [them] regarding any part of the Agreement or the Contract Documents, or [their] obligations or performance thereunder." Although Wayne Farms' allegations related to passivation are arguably outside the scope of the Design/Build Agreement and its arbitration provisions, the allegations concerning the installation of the condenser clearly concern a contractual obligation of Primus. I would therefore affirm the judgment of the trial court compelling Wayne Farms to arbitrate its claims against Primus. 31	December 31, 2020
5ba59bc4-9edb-479e-a761-e2e6567a18ac	FNB Bank v. Marine Park, LLC, et al.	N/A	1190251	Alabama	Alabama Supreme Court	Rel: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190205 ____________________ SE Property Holdings, LLC, successor by merger to Vision Bank v. Bama Bayou, LLC, f/k/a Riverwalk, LLC, et al. ____________________ 1190251 ____________________ FNB Bank v. Marine Park, LLC, et al. Appeals from Mobile Circuit Court (CV-09-900085) BOLIN, Justice. SE Property Holdings, LLC ("SEPH"), the successor by merger to Vision Bank, and FNB Bank ("FNB") separately appeal from the Mobile Circuit Court's judgments on their breach-of-contract claims against Bama Bayou, LLC, formerly known as Riverwalk, LLC ("Bama Bayou"), and Marine Park, LLC ("Marine Park"),1 and the individuals and entities guaranteeing Bama Bayou's and Marine Park's contract obligations, challenging the trial court's damages awards. See Ex parte Weyerhaeuser Co., 702 So. 2d 1227, 1228 (Ala. 1996) ("Alabama caselaw is clear that a party who prevailed in the trial court can appeal only on the issue of adequacy of damages awarded."). Facts 1Marine Park is a wholly owned subsidiary of Bama Bayou. 2 1190205, 1190251 Bama Bayou and Marine Park were the developers of a planned mixed-use development in Orange Beach consisting of a marine park, residential condominiums, retail shops, hotels, and commercial entertainment venues. Marine Park specifically intended to develop a special-use facility for the exhibition of marine animals. Vision Bank made four loans to Bama Bayou and Marine Park related to the development project: (1) The "West loan" is a loan in the amount of $6,000,000 made on March 24, 2005, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "West parcel"; (2) The "East loan" is a loan in the amount of $5,000,000 made on June 12, 2006, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "East parcel"; (3) The "North loan" is a loan in the amount of $5,000,000 made on September 27, 2007, evidenced by a promissory note and a loan agreement 3 1190205, 1190251 and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "North parcel"; and (4) The "Marine Park loan" is a loan in the amount of $5,000,000 made on March 2, 2007, evidenced by a promissory note and a loan agreement and secured by a mortgage and security agreement encumbering real property referred to by the parties as the "Marine Park parcel." The Marine Park loan was fully funded by FNB pursuant to a participation agreement with Vision Bank.2 The participation agreement provided that the Marine Park parcel would be owned by FNB in the event it was acquired by foreclosure. The promissory notes executed in relation to each of the loans made to Bama Bayou and Marine Park required Bama Bayou and Marine Park to pay to Vision Bank the principal amount of the loans plus interest as calculated in the manner provided in the promissory notes. The promissory notes also provided that Bama Bayou and Marine Park were 2A number of banks participated in making these loans to Bama Bayou and Marine Park pursuant to participation agreements with Vision Bank. FNB participated in only the Marine Park loan. 4 1190205, 1190251 obligated to pay reasonable attorney's fees and costs incurred by Vision Bank in collecting on the promissory notes in the event of a default. The promissory notes stated that they were being guaranteed by certain guarantors and that the indebtedness described in the notes was secured by the mortgages and security agreements executed in conjunction with the promissory notes. The mortgages and security agreements executed by the parties also required Bama Bayou and Marine Park to pay to Vision Bank the principal amount of the loans, plus interest, and all reasonable attorney's fees and costs incurred by Vision Bank in the event of the foreclosure of any of the mortgages. The mortgages also provided that Bama Bayou and Marine Park were responsible for the payment of all property- preservation costs, including taxes, insurance premiums, the costs of maintenance and repairs, the costs of security and protection, liens, utility charges, and assessments. In the event of a default by Bama Bayou and Marine Park, the mortgages allowed Vision Bank to pay the property- preservation costs and to obtain reimbursement of those costs from Bama Bayou and Marine Park, plus interest at a rate of 10%. 5 1190205, 1190251 Section 2.14 of the mortgages provides the following remedy in case of a wrongful foreclosure: "Discontinuance of Proceedings - Position of parties, Restored. In case the Lender shall have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights powers and remedies of the Lender shall continue as if no such proceeding had been taken." (Emphasis added.) Section 2.15 of the mortgages provides: "Remedies Cumulative. No right, power, or remedy conferred upon or reserved to the Lender by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder, or under the Note, or under the Loan Documents, or now or hereafter existing at law or in equity or by statute." Each of the four loans to Bama Bayou and Marine Park were guaranteed by a number of individuals and entities that were investors in the project. Pursuant to the guaranty agreements, the guarantors, among other things, waived any rights they had regarding the collateral, i.e., the West parcel, the East parcel, the North parcel, and the Marine Park 6 1190205, 1190251 parcel; waived any defenses Bama Bayou and Marine Park may have had; and agreed to be unconditionally liable for the debts until they were paid in full. The guaranty agreements provide, in part: "1. Guaranty. ... [T]he undersigned ... jointly and severally unconditionally guarantees and promises to pay Vision Bank (hereinafter called 'Bank') ... any and all indebtedness, as hereinafter defined, of [Bama Bayou and Marine Park] .... The word 'indebtedness' is used herein in its most comprehensive sense and includes a loan to be made by Bank to Borrower ... (the 'Loan') and any and all advances, debts, obligations and liabilities of Borrower to Bank heretofore, now, or hereafter existing, made, incurred, or created, whether voluntary or involuntary, and whether or not arising under, pursuant to or in connection with the Loan Agreement (as hereinafter defined) the Note (as hereinafter defined) and/or any and all other Loan Documents (as hereinafter defined), whether due or not due ... not limited to but including principal, interest, costs of collection, attorney's fees and all other lawful charges .... ".... "3. Guarantor's Obligations Independent: Statute of Limitations. The obligations of the Guarantor hereunder are independent of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against the Guarantor ... and the Guarantor waives the benefit of any statute of limitations or other defenses affecting its liability hereunder or the enforcement thereof. ".... 7 1190205, 1190251 "6. Waivers. Guarantor waives any right to require Bank to (A) proceed against Borrower or any other Guarantor; (B) proceed against or exhaust any security held from Borrower; or (C) pursue any other remedy in Bank's power whatsoever. Guarantor waives any defense arising by reason or any disability or other defense of Borrower .... Until the Indebtedness of Borrower to Bank shall have been paid in full, even though such Indebtedness is in excess of Guarantor's liability hereunder, Guarantor ... waives any benefit of, and any right to participate in any security now or hereafter held by Bank .... ".... "10. Expenses of Collection: Waiver of Right of Exemption. Guarantor agrees to pay reasonable actual attorney's fees and all other costs and expenses which may be incurred by Bank in the enforcement of this Guaranty .... ".... "14. Limitations of Liability. The limitations of liability under this Guaranty set forth in this Section 14 do not apply to the Borrower or to any other guarantor of Borrower's Indebtedness to the Bank. Guarantor shall be liable for ... (i) an amount equal to Guarantor's Specified Portion of the principal of the Note ... (ii) 100% of all interest on the Loan accrued or accruing at any time ... (iii) 100% of all costs and expenses (including reasonable actual attorney's fees) of collection related or attributable, directly or indirectly, to the enforcement of Guarantor's obligations under this Guaranty, and (iv) 100% of all other costs and expenses (including reasonable actual attorney's fees) of collection relating to all principal, interest, and other charges under the Note and/or relating to any other Indebtedness." 8 1190205, 1190251 Bama Bayou and Marine Park were having financial problems with regard to the project by August 2007. The maturity dates of the promissory notes were extended several times to give Bama Bayou and Marine Park time to secure other financing. The notes finally matured in late 2008, and Vision Bank refused to further extend their maturity dates. Vision Bank demanded payment at that time, and Bama Bayou, Marine Park, and the guarantors failed and/or refused to pay the indebtedness owed on the loans. On March 20, 2009, Vision Bank conducted a public auction to separately foreclose the mortgages on the West parcel, the East parcel, the North parcel, and the Marine Park parcel. There were no bids submitted at the public auction. Thus, Vision Bank purchased the properties through the following individual credit bids: (A) $2,000,000 for the West parcel; (B) $5,181,682.48 for the East parcel; (C) $383,500 for the North parcel; and (D) $2,750,000 for the Marine Park parcel. 9 1190205, 1190251 Neither Bama Bayou, nor Marine Park, nor the guarantors exercised their rights to redeem the properties. Procedural History3 On January 16, 2009, Vision Bank sued Bama Bayou and its guarantors ("the Bama Bayou guarantors"), alleging that Bama Bayou was indebted to Vision Bank on the loan for the West parcel, the loan for the East parcel, and the loan for the North parcel, as evidenced by the respective promissory note and loan agreement for each parcel. Vision Bank further alleged that the Bama Bayou guarantors had guaranteed payment of each of those loans, as evidenced by their guaranty agreements. Vision Bank sought a judgment against Bama Bayou for all amounts owed under those loans, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Vision Bank further sought a judgment against each of the Bama Bayou guarantors, jointly 3The underlying litigation involved numerous parties in addition to the parties involved in these appeals, lasted over 10 years, and amassed a record of over 26,000 pages. This Court has tailored its statement regarding the procedural history of the litigation to address only the procedural history relevant to the issues and the parties before this Court in these appeals. 10 1190205, 1190251 and severally, for all sums owed under their guaranty agreements, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Also on January 16, 2009, Vision Bank separately sued Marine Park and its guarantors ("the Marine Park guarantors"), alleging that Marine Park was indebted to Vision Bank on the loan for the Marine Park parcel, as evidenced by the Marine Park promissory note and loan agreement for that parcel. Vision Bank further alleged that the Marine Park guarantors had guaranteed payment of that loan, as evidenced by their guaranty agreements. Vision Bank sought a judgment against Marine Park for all amounts owed under the Marine Park loan, including all principal, accrued interest, late charges, attorney's fees, and collection costs. Vision Bank further sought a judgment against each of the Marine Park guarantors, jointly and severally, for all sums owed under their guarantee agreements, including all principal, accrued interest, late charges, attorney's fees, and collection costs. The two cases were later consolidated by the trial court. 11 1190205, 1190251 Bama Bayou, Marine Park, and their guarantors (hereinafter referred to collectively as "the borrowers and the guarantors") answered the complaints, generally denying the allegations and asserting a number of affirmative defenses. The borrowers and the guarantors also asserted counterclaims against Vision Bank, alleging, among other things, that Vision Bank had breached a promise to provide additional financing for the project; that Vision Bank had assumed a duty to provide the financing required to develop the project; that certain female guarantors had been required to sign guaranty agreements, based solely on their status as spouses of other guarantors, in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691; and that Vision Bank had wrongfully foreclosed on the four parcels by bidding a grossly inadequate amount at the foreclosure sales. On October 15, 2010, the Federal Deposit Insurance Corporation ("FDIC"), a counterclaim defendant based on its status as receiver for two of the participating banks that had advanced funds to Bama Bayou pursuant to participating agreements with Vision Bank, see note 2, supra, removed the consolidated cases to the United States District Court for the 12 1190205, 1190251 Southern District of Alabama. On February 11, 2011, the federal district court remanded the consolidated cases back to the trial court. On August 30, 2011, the trial court, in an effort to move the litigation along, scheduled for October 5, 2011, an evidentiary hearing on the issues of (1) wrongful foreclosure and (2) whether the guarantors had "standing" to challenge the foreclosure process.4 The parties had identified those issues to the trial court as being "potentially dispositive or particularly helpful in refining the causes of action" in the consolidated cases. However, the FDIC, on October 5, 2011, again removed the cases to the federal district court. On August 21, 2013, the consolidated cases were once again remanded back to the trial court. 4Although the trial court and the parties referred to this issue as an issue of "standing," this Court has explained that "the concept [of standing] appears to have no necessary role to play in respect to private- law actions." Ex parte BAC Home Loans Servicing, LP, 159 So. 3d 31, 41 (Ala. 2013). "We have observed that in such actions 'our courts too often have fallen into the trap of treating as an issue of "standing" that which is merely a failure to state a cognizable cause of action or legal theory ....' " Ex parte State Farm Fire & Cas. Co., 300 So. 3d 562, 568 (Ala. 2020)(quoting Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama,42 So. 3d 1216, 1219 (Ala. 2010)). 13 1190205, 1190251 On December 19, 2013, the trial court entered an order setting for an evidentiary hearing on June 16, 2014, the counterclaim asserted by the borrowers and the guarantors alleging wrongful foreclosure. The trial court expressly limited the scope of the hearing to the "very narrow issue of the unconscionability of the foreclosure bid figures" made by Vision Bank. On June 5, 2014, the trial court amended its December 19, 2013, order, stating: "The parties in these actions have divergent views as to what remedies are available should the Court determine the bid prices to be unconscionable. After consulting with the Special Master, who has been supervising discovery leading to the June 16th hearing, the Court is of the opinion that it would be in the best interests of judicial economy and efficiency for the Court to first determine the extent of any remedies available to the Counterclaim Plaintiffs should they meet their burden of proof on the unconscionability issue and whether all Counterclaim Plaintiffs have standing to contest the foreclosure bid prices." Thus, the trial court continued the evidentiary hearing scheduled for June 16, 2014, and ordered all parties to submit briefs on the issues of what remedies would be available should the trial court determine that the foreclosures were, in fact, wrongful and of whether the guarantors had "standing" to assert a wrongful-foreclosure counterclaim by June 16, 2014. 14 1190205, 1190251 On June 16, 2014, SEPH5 and FNB submitted motions "for partial summary judgment" as to the issues of what remedies should be available upon a finding of wrongful foreclosure and of whether the guarantors had "standing" to assert a wrongful-foreclosure counterclaim contesting the foreclosure bid prices. SEPH and FNB argued in their motions that, under Alabama law, the only remedy available in a wrongful-foreclosure proceeding based on the inadequacy of bid prices is to set aside the foreclosure. SEPH and FNB further argued that not only is setting aside 5Vision Bank became known as SEPH when the two entities merged. On June 10, 2014, SEPH was substituted for Vision Bank as the real party in interest. Subsequently, SEPH assigned to FNB the promissory note and loan agreement associated with the Marine Park loan and the various guaranty agreements associated with that loan. The trial court granted leave to SEPH and FNB to file an amended complaint in order to substitute FNB for SEPH on the counts specifically related to the Marine Park loan. Thus, on March 12, 2015, SEPH and FNB filed a third amended complaint substituting FNB for SEPH on the counts contained in the complaint specifically relating to the Marine Park loan and guaranty agreements. In sum, after the merger of Vision Bank and SEPH and the subsequent assignments by SEPH to FNB, SEPH holds all the promissory notes, loan agreements, mortgages, and guaranty agreements associated with the West parcel, the East parcel, and the North parcel. SEPH also is the current holder of the mortgage on the Marine Park parcel. FNB is the current holder of the promissory note, the loan agreement, and the guaranty agreements associated with the Marine Park parcel. 15 1190205, 1190251 the foreclosure the only remedy available under Alabama law, but that Bama Bayou and Marine Park expressly agreed in their mortgage documents that the sole remedy available to them in the event of a wrongful foreclosure was to have the foreclosures set aside and the parties returned to their former positions "as if no such [foreclosure] proceeding had been taken." As for the issue whether the guarantors had "standing" to contest the foreclosures based on the alleged inadequacy of the bid prices, SEPH and FNB argued that, under Alabama law, only Bama Bayou and Marine Park had "standing" to contest the bid prices because, in the guaranty agreements, the guarantors had expressly waived all defenses available to Bama Bayou and Marine Park and all claims regarding the collateral. On June 16, 2014, the borrowers and the guarantors submitted their brief on the issues of what remedies should be available upon a finding of wrongful foreclosure and of whether the guarantors had "standing" to contest the foreclosures. The borrowers and the guarantors argued that the parcels were not stand-alone, independent parcels but, rather, were inextricably intertwined and interlocked by infrastructure consisting of 16 1190205, 1190251 underground water, sewer, power, and gas lines and aboveground streets, bridges, and parking lots, all of which were designed to operate as a single unit. The borrowers and the guarantors contended that each parcel needed access to all the infrastructure -- both above and below ground -- and that no parcel could support development without physically accessing the infrastructure on the other parcels that would have been available to each parcel had Vision Bank not shattered the integrity of the whole unit. The borrowers and the guarantors further argued that Vision Bank's decision to foreclose and bid on the interdependent parcels separately essentially broke up the unit and drove the fair market value of the parcels down because the individual parcels were not as valuable as the whole unit. The borrowers and the guarantors argued that the trial court had the authority to determine whether the method of the foreclosures and the amounts of the bids were unconscionable and then to fashion its own equitable remedy upon a finding of wrongful foreclosure. As for the "standing" issue, the borrowers and the guarantors argued that the guarantors had "standing" to sue Vision Bank alleging wrongful foreclosure because, they said, the guarantors had been injured as the 17 1190205, 1190251 result of Vision Bank's tortious misconduct surrounding the foreclosure sale. On October 5, 2015, the trial court entered an order finding (1) that under both Alabama law and the agreements between the parties the appropriate remedies in these cases would be to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place, and (2) that the guarantors did not have "standing" to assert a counterclaim alleging wrongful foreclosure against Vision Bank because, the court determined, they had no legally protected interest in the properties foreclosed upon by Vision Bank. Having determined the remedy available upon a finding of wrongful foreclosure, the trial court, on January 6, 2016, entered an order setting the date for an evidentiary hearing on the adequacy of the credit bids made by Vision Bank -- i.e., to determine whether, in fact, the foreclosures had been wrongful. The trial court expressly limited the scope of that hearing "to the very narrow issue of the unconscionability of the foreclosure bid figures, where the [trial court] will be focusing on the 18 1190205, 1190251 stated bid amounts and evidence of the values of the properties in question." Following that evidentiary hearing, the trial court, on October 26, 2016, entered an order that provides, in part: "After seven years of litigation, extensive briefing, arguments of counsel, and a thorough evidentiary hearing, the Court holds as follows: "The seminal case setting forth the general rule applicable in this case states: " 'Where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.' "Hayden v. Smith, 216 Ala. 428, [430,] 113 So. 293[, 295] (1927). "Although both the Lenders and the Borrowers rely on Hayden, each point to a different aspect of the holding, which admittedly appear contradictory. As the Lenders contend, Hayden appears to state that inadequacy of price is not sufficient to set aside the sale unless 'coupled with any other circumstances showing unfairness, misconduct, fraud, or even stupid management, resulting in the sacrifice of the property.' See also CS Assets, LLC v. West Beach LLC, 370 Fed. Appx. 45 (11th Cir. March 16, 2010). 19 1190205, 1190251 "However, as the Borrowers assert, the Hayden Court stated it found the foreclosure price 'upon its face so grossly inadequate as to shock the judicial conscience and justifie[d] the setting aside of the sale,' giving rise to the assumption that in certain cases the inadequate price itself can be sufficient. Hayden[, 216 Ala. at 430, 113 So.] at 295. "The Borrowers have the burden of proving by substantial evidence the elements of their [counterclaim]. "In view of the evidence presented, the Court finds the bids on their face so grossly inadequate as to shock the judicial conscience. Further, the Court finds the Borrowers have met any additional burden of showing unfairness, misconduct, fraud, or even 'stupid management.' Lenders contend that they want the opportunity to show there was no misconduct. The burden is on the Borrowers, however, to present substantial evidence of misconduct, not on the Lenders to show there is no misconduct. The record is replete with evidence that would meet the burden of 'any other circumstance' of misconduct coupled with the inadequate foreclosure prices. "For these reasons, the Court finds the extremely low bids at the foreclosure sale raise the presumption of unconscionableness and the grossly inadequate prices coupled with substantial evidence of misconduct justifies setting aside the foreclosure sale. The Court hereby sets aside the foreclosure sale and declares the foreclosure deeds null, void and of no force and effect." On March 7, 2017, FNB moved the trial court for a partial summary judgment against some of the Marine Park guarantors on its claim asserted in the third amended complaint alleging breach of the promissory 20 1190205, 1190251 note and the guaranty agreements associated with the Marine Park loan, see note 5, supra, seeking an award of principal, interest, late charges, attorney's fees, and collection costs accrued up to the date of any order granting the motion. On July 10, 2017, the borrowers and the guarantors moved the trial court to enter a partial summary judgment in their favor on SEPH's and FNB's breach-of-contract claims seeking the payment of interest, attorney's fees, and expenses incurred after the foreclosures on March 20, 2009. The borrowers and the guarantors conceded that Bama Bayou and Marine Park were liable for the principal amount of each loan as of March 20, 2009. However, the borrowers and the guarantors contended that, because the trial court's October 26, 2016, order found the foreclosures to be wrongful and set aside the foreclosure deeds as "null, void and of no force and effect," Bama Bayou's and Marine Park's liability should be limited to principal amounts owed on the loans as of March 20, 2009, and that they should not be held liable for any interest, late charges, attorney's fees, or collection costs incurred after that date. The borrowers and the guarantors argued that "[p]rinciples of equity underlie the [trial 21 1190205, 1190251 court's] order that set aside the foreclosures [and that] those same principles must now operate to shield the borrowers and guarantors from having [SEPH's and FNB's] post foreclosure interest, costs, and expenses visited upon them as a consequence of the wrongful foreclosures." The borrowers and the guarantors specifically sought a judgment dismissing all claims against the guarantors and limiting the liability of Bama Bayou and Marine Park to the principal amounts owed on the loans as of March 20, 2009. Further, the borrowers and the guarantors moved the trial court for a judgment requiring SEPH and FNB to pay their attorney's fees and litigation expenses incurred after the March 20, 2009, foreclosures. On August 15, 2017, SEPH moved the trial court for a partial summary judgment as to its claims against Bama Bayou and the Bama Bayou guarantors alleging a breach of the promissory notes and the guaranty agreements associated with the West loan, the East loan, and the North loan, see note 5, supra, and seeking an award of principal, interest, late charges, attorney's fees, and collection costs accrued up to the date of any order granting the motion. SEPH also sought a summary judgment as to all of the borrowers' and the guarantors' counterclaims 22 1190205, 1190251 against it, including the claims alleging breach of a promise to provide additional financing for the project and the violation of the Equal Credit Opportunity Act. On September 1, 2017, SEPH filed its opposition to the borrowers' and the guarantors' motion for a partial summary judgment seeking relief from liability for interest and litigation expenses incurred following the wrongful foreclosures and seeking reimbursement for their attorney's fees and litigation expenses. SEPH noted that the trial court had already determined in its October 5, 2015, order that the sole remedy available for a wrongful foreclosure was to set the foreclosure aside. SEPH argued that Vision Bank, its predecessor, and Bama Bayou and Marine Park had agreed in the mortgages associated with the loans that if a foreclosure was set aside, the parties would be restored to their former positions under the mortgages as if the foreclosure had not occurred. SEPH further argued that the mortgages also clarified that all rights, powers, and remedies of the lender would continue if a foreclosure was set aside "as if no such proceeding had been taken." SEPH also argued that the law in Alabama is consistent with the parties' agreements contained in the mortgage 23 1190205, 1190251 documents, asserting that Alabama law provides that setting aside a foreclosure -- not the release from, or reduction of, any indebtedness on the loans -- is the single appropriate remedy in a wrongful-foreclosure proceeding. Regarding the guarantors' claim that they were free from liability, SEPH argued that the guarantors had agreed in their guaranty agreements that they had no interest in the collateral; that foreclosure was not a condition of recovery against them; that they had waived all defenses available to Bama Bayou and Marine Park; and that they had agreed to be liable for the debts until they were paid. On August 31, 2018, the trial court entered an order granting in part FNB's motion for a partial summary judgment against some of the Marine Park guarantors on its claim asserting a breach of the promissory note and guaranty agreements; granting in part the borrowers' and guarantors' motion for a partial summary judgment in their favor as to SEPH's and FNB's breach-of-contract claims seeking the payment of interest, late charges, attorney's fees, and collection costs incurred after the foreclosures on March 20, 2009; denying the borrowers' and the 24 1190205, 1190251 guarantors' motion seeking payment of their own attorney's fees and litigation expenses; granting in part SEPH's motion for a partial summary judgment as to its claims against Bama Bayou and the Bama Bayou guarantors alleging a breach of the promissory notes and guaranty agreements associated with the West loan, the East loan, and the North loan; granting SEPH's motion for a summary judgment as to the counterclaim asserted against SEPH alleging that it had agreed to provide further financing for the Bama Bayou project; and denying SEPH's motion for a summary judgment as to the counterclaims asserting against SEPH a violation of the Equal Credit Opportunity Act.6 Regarding the wrongful-foreclosure issue, the trial court stated: "On October 5, 2015, this Court addressed the remedies available to the parties, noting each of the mortgages executed by the Borrowers contains the following language in the following provision concerning the parties' agreement in the event a foreclosure is 'determined adversely to Lender': " 'Discontinuance of Proceedings - Position of Parties, Restored. In case the Lender shall have 6The trial court also disposed of a number of the other counterclaims, third-party claims, affirmative defenses, and motions not directly relevant to these appeals. 25 1190205, 1190251 proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Lender shall continue as if no such proceeding had been taken.' "The Court held then that the only remedy available to the Borrowers and the Guarantors was for the Court to judicially set aside the foreclosure if the Court should determine a wrongful foreclosure had occurred. The Court also held the Guarantors did not have standing to assert an affirmative cause of action for wrongful foreclosure, although the Court did recognize the Guarantors could raise affirmative defenses. "On October 26, 2016, the Court ruled on the issue of wrongful foreclosure, holding as follows: " '[T]he Court finds the extremely low bids at the foreclosure sale raise the presumption of unconscionableness and the grossly inadequate prices coupled with substantial evidence of misconduct justifies setting aside the foreclosure sale.' "Because the foreclosure was 'determined adversely to the Lender,' the parties' contracts provide the Borrower and Lender 'shall be restored to their former positions and rights ... as if no such proceeding had been taken.' 26 1190205, 1190251 ".... "Turning to the issue of the affirmative defense based on wrongful foreclosure, the Court invokes its equity powers in determining the appropriate remedy. When a foreclosure is set aside, the mortgagor’s equity of redemption is restored. See, e.g., Cotton v. First Nat. Bank, [228 Ala. 311,] 153 So. 225 (Ala. 1934); Murphy v. May, [243 Ala. 94,] 8 So. 2d 442 (Ala. 1942). During the period after the voided foreclosure sale, the mortgagee is regarded as a mortgagee in possession before foreclosure, and an accounting is to be performed for this period to determine the amount of the debt. See Smith v. Stringer,[220 Ala. 353,] 125 So. 226 (Ala. 1929); and De Moville v. Merchants & Farmers Bank of Greene County, [233 Ala. 204,] 170 So. 756 (Ala. 1936). During this period, interest continues to accrue on the debt. See, e.g., Smith v. Stringer, [228 Ala. 630,] 155 So. 85 (Ala. 1934); De Moville v. Merchants & Farmers Bank of Greene County, [237 Ala. 347,] 186 So. 704 (Ala. 1939). The purpose of the accounting is to determine the amount of the debt so the mortgagor can exercise its equity of redemption and re-acquire title to its property. De Moville, [233 Ala. 204,] 170 So. 756. This is the remedy afforded the mortgagor on a voided foreclosure sale even when there has been a finding of misconduct by the mortgagee in connection with the foreclosure. See, e.g., De Moville, [233 Ala. 204,] 170 So. 756; and De Moville, [237 Ala. 347,] 186 So. 704. "Under this body of law, interest ordinarily would accrue on the debt from the time of the wrongful foreclosure to date because there is no doubt the borrowers had the use of the money at issue. If the bids, however, on the foreclosed property had been reasonable but still created a deficiency owed by the borrowers, then the interest the borrowers would have paid on any deficiency amount would be substantially reduced. Moreover, much of the delay in this litigation may be laid at 27 1190205, 1190251 the feet of the Lenders and their respective backing entities. Therefore, based upon consideration and balancing of the relative equities involved, the Court orders an accounting of the debt for purposes of the equitable right of redemption in the amount consisting of: "(1) principal amounts on each loan due on the date of foreclosure, March 20, 2009; "(2) interest and late charges on the principal amount from the date the notes were last timely paid through March 20, 2009; "(3) interest only on the amount determined in (2) above from March 20, 2009 until the date of the remand from the ... removal to federal court, August 21, 2013. "Judgment is entered for the Borrowers and the Guarantors on the Plaintiff's claims for late charges after the date of foreclosure, interest after August 21, 2013, attorneys' fees, litigation expenses, collection expenses, property preservation expenses, and other costs otherwise claimed. "Judgment is entered against the Borrowers and the Guarantors on their claims for attorneys' fees and expenses. "The Plaintiffs’ requests for summary judgment as to the Guarantors is premature in the face of the equities employed by the Court in this case and so is denied." 28 1190205, 1190251 The trial court further ordered the parties to confer with each other and to file a joint status report as to any outstanding issues that would prevent the order from being a final judgment in the cases. On September 27, 2018, the parties submitted the joint status report indicating, among other things, that FNB's breach-of-contract claim against Marine Park was still outstanding, because FNB had not moved the trial court for a summary judgment as to that claim; that FNB's breach-of-contract claim against the Marine Park guarantors was still outstanding, because FNB had moved the trial court for a summary judgment as to only some of the Marine Park guarantors; that SEPH's breach-of-contract claims against Bama Bayou were still outstanding, because there was no monetary value attached to the judgment in favor of SEPH on those claims; that SEPH's breach-of-contract claims against the Bama Bayou guarantors was still outstanding;7 that SEPH's claim for 7In its August 31, 2018, order, the trial court initially granted SEPH's motion for a partial summary judgment as to its breach-of- contract claims against the Bama Bayou guarantors. However, the order also states that the "requests for summary judgment as to the Guarantors [was] premature in the face of the equities employed by the Court in this case and so is denied." SEPH contends that, because there was no 29 1190205, 1190251 an inspection and accounting of records and payments made by the borrowers and the guarantors remained outstanding, because SEPH had not sought a summary judgment as to that claim; that SEPH's fraud claims remained outstanding, because SEPH had not sought a summary judgment as to those claims; and that the counterclaim asserting against SEPH a violation of the Equal Credit Opportunity Act remained outstanding. On April 23, 2019, the trial court entered an order empowering a special master with the authority to retain an expert to prepare an accounting within the parameters set forth by the trial court in its August 31, 2018, order to establish debt figures for equitable-right-of-redemption purposes. On May 29, 2019, the special master submitted its recommendation as to the calculation of Bama Bayou's and Marine Park's monetary judgment entered against the guarantors, its breach-of-contract claims against the Bama Bayou guarantors remain outstanding. The guarantors contend that the trial court denied the motions against them as being premature. It is clear that, regardless of the reason, those claims remained outstanding. 30 1190205, 1190251 equitable rights of redemption based on the ordered accounting. The special master's recommendation provided as follows: "1. A listing of the subject 4 loans with the principal balances as of the last time a principal payment was made is: [West loan] - $6,000,000.00; [East loan] - $5,000,000.00; [North loan] - $3,950,495.29; and [Marine Park loan] - $4,976,422.62. "2. Interest and Late Charges accrued from the date of last payment through March 20, 2009 for each of the loans in the order set out above is: $140,933.34; $144,544.45; $115,332.41; and $178,806.33. "3. The Special Master directed Mr. Hall [the retained expert] to determine what the default interest rate on each of the 4 loans was and to then use that rate to come up with a daily interest amount for each loan. Further, the Special Master directed Mr. Hall to apply that daily rate to principal balances and to calculate it for the time from March 20, 2009 through August 21, 2013 as previously directed by this Court in the order of August 31, 2018. "4. The additional interest amounts for each of the loans in the order set out above is: $1,725,611.35; $1,769,862.35; $1,398,363.90; and $2,201,891.00. See, Hall affidavit. "5. Accordingly, the equitable right of redemption figure for each of said loans is: [West loan] - $7,866,544.69; [East loan] - $6,914,406.80; [North loan] - $5,464,191.60; and [Marine Park loan] - $7,357,119.95." On July 8, 2019, the trial court entered an order adopting the special master's recommendation adjudging the equitable-right-of-redemption 31 1190205, 1190251 figure for each loan to be: $7,866,544.69 for the West loan; $6,914,406.80 for the East loan; $5,464,191.60 for the North loan; and $7,357,119.95 for the Marine Park loan. The trial court further ordered the parties to file dispositive motions as to the remaining issues in the action, as identified in the joint status report. On August 6, 2019, SEPH, in separate motions, (1) moved the trial court for a summary judgment as to all of its remaining claims -- except its fraud and accounting-and-inspection claims -- asserted against the borrowers and the guarantors and as to all remaining counterclaims asserted against it by the borrowers and the guarantors and (2) moved the trial court to dismiss its accounting-and-inspection claim asserted against the borrowers and the guarantors. On October 29, 2019, SEPH moved the trial court to dismiss its fraud claims asserted against the borrowers and the guarantors. On August 13, 2019, FNB moved the trial court for a summary judgment on its claims asserting a breach of the promissory note and guaranty agreements against Marine Park and the remaining Marine Park guarantors. FNB also moved the trial court for a summary judgment 32 1190205, 1190251 as to any remaining counterclaims asserted against it by Marine Park and the Marine Park guarantors. On November 20, 2019, the trial court entered a final judgment disposing of all remaining motions and claims pending in SEPH's case.8 The trial court's judgment dismissed SEPH's claim for an inspection and accounting of records; dismissed SEPH's fraud claims; and entered a summary judgment in favor of SEPH on the counterclaim asserting a violation of the Equal Credit Opportunity Act. The trial court further entered a judgment in favor of SEPH on its breach-of-contract claims against Bama Bayou in the following amounts: $7,866,544.69 on the West loan; $6,914,406.80 on the East loan; and $5,464,191.60 on the North loan. The trial court also entered a judgment in favor of SEPH on its breach-of- contract claims against the Bama Bayou guarantors, in certain specified 8On October 1, 2019, SEPH moved the trial court, pursuant to Rule 21, Ala. R. Civ. P., to sever, as a separate action, all claims brought by SEPH and the Bank of Franklin against each other. The trial court granted the motion to sever those claims as a separate action. The trial court also disposed of all remaining claims as they pertained to other parties not specifically discussed in this opinion, because they have no direct relevance to the issues raised in these appeals. 33 1190205, 1190251 amounts, holding each Bama Bayou guarantor jointly and severally liable with Bama Bayou and each other Bama Bayou guarantor, up to the specified amount of principal and interest owed on each note.9 Significant for purposes of these appeals, the amounts awarded SEPH on its breach- of-contract claims were consistent with the trial court's August 31, 2018, order and, thus, included interest only up to August 21, 2013, and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. On November 20, 2019, the trial court also entered a final judgment in favor of FNB on its breach-of-contract claims against Marine Park and the Marine Park guarantors. The trial court awarded FNB $7,357,119.95 on its breach-of-contract claim against Marine Park. The trial court also awarded FNB certain specified amounts against each of the 16 Marine Park guarantors on its breach-of-contract claim against the Marine Park guarantors, holding each Marine Park guarantor jointly and severally 9There are 23 Bama Bayou guarantors. This Court has not set forth the specific dollar amount of the monetary award entered against each guarantor. Suffice it to say, the awards were substantial, ranging from $1,793,596.31 to $14,544,347.80. 34 1190205, 1190251 liable with Marine Park, and each other, up to the specified amount of principal and interest owed under the note on the Marine Park loan. As was the case with the awards in SEPH's favor, the amounts awarded FNB on its breach-of-contract claims were consistent with the trial court's August 31, 2018, order and, thus, included interest only up to August 21, 2013, and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. SEPH and FNB each timely appealed, challenging the trial court's damages awards on their breach-of-contract claims. See Ex parte Weyerhaeuser, 702 So. 2d at 1228. The appeals were consolidated by this Court. Standard of Review "This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law." Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004). Discussion 35 1190205, 1190251 SEPH and FNB appeal from the trial court's final judgments of November 20, 2019, awarding them damages on their breach-of-contract claims against the borrowers and the guarantors that, pursuant to the trial court's August 31, 2018, order, did not include interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses.10 On October 5, 2015, the trial court entered an order initially finding that, under both Alabama law and the agreements between the parties in these cases, the appropriate remedy upon a finding of wrongful foreclosure was to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place. Following an evidentiary hearing, the trial court, on October 26, 2016, entered an order finding that the foreclosures were wrongful and setting them aside. 10The trial court gave no explanation as to why it determined that SEPH and FNB could not recover interest accrued after August 21, 2013, other than to note that that date was the date the cases were remanded to the trial court following their removal to federal court. 36 1190205, 1190251 On August 31, 2018, the trial court entered an order expressly invoking its equitable powers to fashion a remedy in favor of the borrowers and the guarantors that prohibited SEPH and FNB from recovering interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property- preservation expenses. That order is inconsistent with the trial court's October 5, 2015, order, in which it determined that the sole remedy available upon the finding of wrongful foreclosure was to judicially set aside the foreclosures and to return the parties to their original positions and rights, as if the foreclosure proceedings had not taken place. SEPH and FNB argue that, in its October 5, 2015, order, the trial court determined the sole remedy available pursuant to both the parties' agreements and Alabama law and that the trial court erred in ignoring the parties' unambiguous agreements and the law of this state to fashion its own equitable remedy to relieve the borrowers and the guarantors of their obligations to pay interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. SEPH and FNB expressly 37 1190205, 1190251 state that they are not seeking to reinstate the foreclosures by having the trial court's order setting aside the foreclosures reversed. The borrowers and the guarantors argue on appeal that it would be inequitable for them to pay interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, collection costs, and property-preservation expenses after Vision Bank had wrongfully foreclosed on the loans by submitting unconscionably low credit bids. The borrowers and the guarantors further argue that, because equitable principles provided the basis for setting aside of the wrongful foreclosures, the trial court had the authority to fashion whatever additional equitable relief it deemed necessary. I. The Loan Documents The promissory notes executed in relation to each of the loans made to Bama Bayou and Marine Park required Bama Bayou and Marine Park to repay the principal amount of the loans with interest. The promissory notes also provided that Bama Bayou and Marine Park were obligated to pay reasonable attorney's fee and costs incurred by the lender in collecting on the promissory notes in the event of a default. The promissory notes 38 1190205, 1190251 were secured both by the guaranty agreements and by the mortgages executed in conjunction with the promissory notes. The mortgages also required Bama Bayou and Marine Park to repay the principal amount of the loans with interest and all reasonable attorney's fees and costs incurred by the lender in the event of a foreclosure of any of the mortgages. The mortgages further provided that Bama Bayou and Marine Park were responsible for the payment of all property-preservation expenses, including taxes, insurance premiums, the costs of maintenance and repairs, the costs of security and protection, liens, utility charges, and assessments. Section 2.14 of the mortgages expressly sets forth the remedy to be applied if a foreclosure is found to be wrongful: "Discontinuance of Proceedings - Position of parties, Restored. In case the Lender shall have proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Lender, then and in every such case the Borrower and the Lender shall be restored to their former positions and rights hereunder, and all rights powers and remedies of the Lender shall continue as if no such proceeding had been taken." 39 1190205, 1190251 (Emphasis added.) Section 2.15 of the mortgages further emphasizes that each of the lender's rights, powers, and remedies under the promissory notes, mortgages, and loan documents are cumulative to each other and that the lender is entitled to pursue all of its available remedies under the promissory notes, mortgages, and loan documents. Section 2.15 of the mortgage provides: "Remedies Cumulative. No right, power, or remedy conferred upon or reserved to the Lender by this Mortgage is intended to be exclusive of any other right, power, or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power, and remedy given hereunder, or under the Note, or under the Loan Documents, or now or hereafter existing at law or in equity or by statute." (Emphasis added.) This Court has stated: " A promissory note is a form of contract; therefore, it must be construed under general contract principles. See 11 Am. Jur. 2d Bills and Notes § 2 (1997) ('Bills and notes ... are contracts; accordingly, the fundamental rules governing contract law are applicable to the determination of the legal questions which arise over such instruments.' (footnotes omitted)) .... ' "General contract law requires a court to enforce an unambiguous, lawful contract, as it is written. . . . " ' 40 1190205, 1190251 Dawkins v. Walker, 794 So. 2d 333, 339 (Ala. 2001) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35-36 (Ala. 1998))." Bockman v. WCH, L.L.C., 943 So. 2d 789, 795 (Ala. 2006). Further, "[a] mortgage agreement is construed like any other contract." Tennant v. Chase Home Fin., LLC, 187 So. 3d 117, 1181 (Ala. Civ. App. 2015). "Where a contract, by its terms, is plain and free from ambiguity, there is no room for construction and the contract must be enforced as written." Austin Apparel, Inc. v. Bank of Prattville, 872 So. 2d 158, 165 (Ala. Civ. App. 2003). Section 2.14 of the mortgages operates to govern the rights and responsibilities of the parties if a wrongful foreclosure is set aside, and it requires that, in every such case determined adversely to the lender (i.e., SEPH and FNB), both the borrower (i.e., Bama Bayou and Marine Park) and the lender "shall be restored to their former positions and rights" under the mortgages and "all rights, powers, and remedies of the Lender shall continue as if no such proceeding had been taken." Section 2.14 is unambiguous and leaves no room for the application of other remedies, whether equitable or not, in the case of a wrongful foreclosure. The 41 1190205, 1190251 "rights, powers, remedies" of the lender include its right to accrued interest, late charges, attorney's fees, collection costs, and property- preservation expenses as allowed by the promissory notes, the mortgages, and other loan documents. As stated above, the trial court expressly recognized in its October 5, 2015, order that the mortgages at issue "expressly require" that the foreclosures be set aside as the sole remedy for a wrongful foreclosure. Vision Bank and Bama Bayou and Marine Park decided in the mortgages that the sole remedy for a wrongful foreclosure was to set aside the foreclosure and to return the parties to their former positions and rights under the mortgages and that all rights, powers, and remedies of Vision Bank would continue as if no foreclosure proceeding had taken place, including the right to recover accrued interest, late charges, attorney's fees, collection costs, and property-preservation expenses. Those provisions are clear and unambiguous. Thus, the mortgages must be enforced as written. Bockman, supra, Austin Apparel, supra. The plain language of the mortgages and the promissory notes prohibit the trial court's ruling limiting the amount of interest and late charges SEPH and 42 1190205, 1190251 FNB could recover and disallowing the recovery of attorney's fees, collection costs, and property-preservation expenses. Accordingly, we conclude that the trial court erred in refusing to enforce the unambiguous provisions of the promissory notes and mortgages by entering an award in favor of SEPH and FNB on their breach-of-contract claims that limited their damages awards by including interest accruing only up to August 21, 2013, by including late charges accruing only up to the date of foreclosure, and by not including attorney's fees, collection costs, and property- preservation expenses. II. Alabama Law SEPH and FNB contend that the trial court's ruling that a wrongful foreclosure justifies a release from part of the indebtedness incurred by Bama Bayou and Marine Park is also inconsistent with the law of this state. They contend that the law of this state is in fact consistent with the contractual provisions contained in the mortgages and the promissory notes. In Alabama, the appropriate remedy for a wrongful foreclosure, based upon a finding of an inadequate purchase price at the foreclosure 43 1190205, 1190251 sale, is to have the foreclosure set aside. Breen v. Baldwin Cnty. Fed. Sav. Bank, 567 So. 2d 1329, 1333 (Ala. 1990) (citing Hayden v. Smith, 216 Ala. 428, 113 So. 293 (1927)). When a claim for a wrongful foreclosure has been made, " ' "a court of equity will enjoin a sale or will set it aside if made." ' " Jackson v. Wells Fargo Bank, N.A., 90 So. 3d 168, 171 (Ala. 2012) (quoting Paint Rock Props. v. Shewmake, 393 So. 2d 982, 984 (Ala. 1981), quoting in turn Abel v. Fricks, 219 Ala. 619, 621, 123 So. 17, 18 (1929))(emphasis added). See also First Nat'l Bank of Opp v. Wise, 235 Ala. 124, 126, 177 So. 636, 638 (1937) (holding that, in a wrongful-foreclosure case, the party contesting the foreclosure, if successful, is "entitled to have the sale set aside and annulled"); Ross v. Rogers, 25 So. 3d 1160, 1168 n. 9 (Ala. Civ. App. 2009) ("[W]e are not at all convinced that, even if the amount Ross paid for the Madison County property created 'a presumption of fraud, unfairness, or culpable mismanagement,' ... the appropriate remedy would have been to judicially declare both promissory notes satisfied. The proper remedy appears to be the setting aside of the foreclosure sale ...."), and Harmon v. Dothan Nat'l Bank, 186 Ala. 360, 378, 64 So. 621, 627 (1914) (Mayfield, J., dissenting) ("A mere pretext, a mere sham sale, where the 44 1190205, 1190251 mortgagee both sells and buys (even under his authority so to do) for a mere song, and for the sole and real purpose of depriving the mortgagor of his right to redeem, will not have the desired effect of a real and bona fide foreclosure sale. Courts of law, as well as courts of equity, will treat such pretended sales as they ought to be treated -- as if they had never occurred -- and treat the mortgagee as in possession without foreclosure."). The trial court initially recognized in its October 5, 2015, order that courts of this state have consistently held that setting aside the foreclosure sale was the single appropriate remedy in a wrongful-foreclosure proceeding. Once a foreclosure has been set aside, the law in Alabama restores the parties to their former positions and rights under the mortgage. This Court has explained: "Alabama classifies itself as a 'title' state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee. Lloyd's of London v. Fidelity Securities Corporation, 39 Ala. App. 596, 105 So. 2d 728 (1958); Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So. 2d 105 (1944); Jones v. Butler, 286 Ala. 69, 237 So. 2d 460 (1970). The mortgagor is left with an equity of redemption, but upon payment of the debt, legal title revests in the mortgagor. § 35-10-26, Code 1975. The equity of redemption may be conveyed by the mortgagor, and his grantee secures only an equity of redemption. McDuffie v. Faulk, 214 Ala. 221, 107 So. 45 1190205, 1190251 61 (1926). The payment of a mortgage debt by the purchaser of the equity of redemption invests such purchaser with the legal title. Denman v. Payne, 152 Ala. 342, 44 So. 635 (1907). The equity of redemption in either case, however, is extinguished by a valid foreclosure sale, and the mortgagor or his vendee is left only with the statutory right of redemption. ... McDuffie, supra." Trauner v. Lowrey, 369 So. 2d 531, 534 (Ala. 1979)(emphasis added). The important distinction to be made is that, before a foreclosure, the mortgagor possesses the equity of redemption and that, after a foreclosure sale, the mortgagor has the statutory right of redemption. See also Chess v. Burt, 87 So. 3d 1201, 1207 (Ala. 2011) (holding that foreclosure extinguished the equity of redemption and actuated the statutory right of redemption); and Cotton v. First Nat'l Bank, 228 Ala. 311, 315, 153 So. 225, 229 (1934) (holding that the "foreclosure sale should be set aside and vacated and the foreclosure deed canceled, leaving the complainants the right to enforce the equity of redemption"). Thus, when the trial court set aside the foreclosures, Bama Bayou and Marine Park, as the mortgagors, had their equity of redemption restored, giving them the opportunity to satisfy the indebtedness and to have title to the properties vested in them. Trauner, 369 So. 2d at 534. 46 1190205, 1190251 As the law relates to a mortgagee's possession of property between the date of foreclosure and the date a trial court sets aside a foreclosure, the mortgagee may be liable to a mortgagor for income earned on, and waste to, the property during that period. "It may be well at this point to say that the law is established that one in possession of land as a purchaser at a foreclosure sale, made in strict compliance with the terms of the mortgage, is not a mortgagee in possession, but the absolute owner not chargeable with rent or for waste; but a mortgagee in possession before foreclosure, or after an irregular foreclosure, may be liable for rent and waste, and the purchase by the mortgagee, unless authorized by the mortgage, is such an irregularity as to render him liable for rent and waste. " Hale v. Kinnaird, 200 Ala. 596, 600, 76 So. 954, 958 (1917)(emphasis added) . Although the mortgagee in possession of property following a wrongful foreclosure is liable for rents and waste, the mortgagee is also entitled to receive interest on the mortgage debt -- because the interest continues to accrue on the debt -- during the period between the foreclosure and the time when the mortgage debt is adjudicated. See Smith v. Stringer, 228 Ala. 630, 155 So. 85 (1934) ("Smith II"), De Moville 47 1190205, 1190251 v. Merchants & Farmers Bank of Greene Cnty., 237 Ala. 347, 186 So. 704 (1939). In Smith v. Stringer, 220 Ala. 353, 355, 125 So. 226, 227 (1929)("Smith I"), the plaintiff brought a claim seeking to have the foreclosure of certain real property set aside as invalid, to enforce her equity of redemption, and for an accounting. The trial court determined that the foreclosure, which occurred in August 1925, was invalid and set aside the foreclosure. This Court upheld the trial court's order setting aside the foreclosure. This Court further determined that the defendant mortgagee was considered merely a mortgagee in possession and, as such, was accountable to the plaintiff for certain rents or profits realized during his possession of the property after foreclosure, as well as for any waste or mismanagement of the property caused by his failure to use reasonable care and diligence in dealing with the property. This Court reversed the portion of the trial court's judgment basing its accounting on only rents and profits received by the defendant. Smith I. On remand, the matter was retried, seeking a full accounting of the mortgage debt by including payments for taxes, repairs, and insurance for 48 1190205, 1190251 the property paid by the defendant while in possession of the property but deducting amounts for rents received and for and any waste on the part of the defendant while in possession of the property. In reaching its determination as to the amount of the mortgage debt, the trial court attributed $375 to waste on the part of the defendant, and the defendant appealed. Smith II. On appeal, this Court determined that the $375 attributed by the trial court as waste was too high and lowered that amount to $50. This Court then determined the mortgage debt by factoring in, among other things, the reduced amount for waste and also eight years of accrued interest from the time of the foreclosure in 1925.11 This Court explained: 11It is not entirely clear from the decisions in Smith I and Smith II as to the event that occurred in 1933 that prompted this Court to determine that date to be the cutoff point for the accrual of interest; however, it is safe to assume that the prompting event was the entry of the trial court's judgment from which the appeal was taken in Smith II. What is abundantly clear from Smith II is this Court's determination that interest continued to accrue on the mortgage debt through the entire period of time following the foreclosure of the mortgage up until when the mortgage debt was finally adjudicated. 49 1190205, 1190251 "Complainant purchased the property for $325, $25 cash and assumption of the mortgage $300, prior to the entry of the mortgagee, or any disturbance of the grapevines. ... ".... "... [U]pon a careful review and consideration of the evidence, taken before and after the former appeal, we conclude the court greatly erred in the allowance for waste. It should be and is here reduced to the sum of $50, a sum ample, we think, to cover any influence this vineyard had on the real value of the property. "This, with interest for eight years, $32, added to the balance found on rent account, $73.15, makes aggregate credits on the mortgage debt as of the date of the decree, July 31, 1933, the sum of $155.15. "The mortgage debt, with interest to same date [1925- 1933] was $486. "A decree will be here rendered ascertaining and decreeing a balance due on the mortgage debt of $330.85, with interest from July 31, 1933." Smith II, 228 Ala. at 632, 155 So. at 86 (emphasis added). See also De Moville, 237 Ala. 347, 186 So. 704 (affirming the award of accrued interest from the time of foreclosure in January 1932 through the date of final adjudication of the mortgage debt in June 1937 and determining that a 50 1190205, 1190251 mortgagee in possession is entitled to property-preservation expenses such as taxes, insurance, and repairs). Based on the foregoing, we conclude that the appropriate remedy to be applied upon the finding of a wrongful foreclosure is to set aside the foreclosure and that the trial court erred by limiting SEPH's and FNB's damages on their breach-of-contract claims by allowing postforeclosure interest only from March 20, 2009, until August 21, 2013, and by not allowing their recovery of property-preservation expenses. III. The Guarantors As stated above, the trial court awarded SEPH and FNB certain specified amounts against each of the Bama Bayou guarantors and the Marine Park guarantors on their breach-of-contract claims and held each Bama Bayou guarantor and Marine Park guarantor jointly and severally liable with either Bama Bayou or Marine Park, up to the specified amount of principal and interest owed under each of the promissory notes. The amounts awarded SEPH and FNB were consistent with the trial court's August 31, 2018, order and included interest only up to August 21, 2013, 51 1190205, 1190251 and did not include any late charges after the date of foreclosure, attorney's fees, collection costs, and property-preservation expenses. Pursuant to Section 1 of the guaranty agreements, the guarantors "unconditionally guarantee[d] and promise[d] to pay" any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including principal, interest, costs of collection, and attorney's fees." Section 14 of the guaranty agreements limits the guarantors' liability to (1) an amount equal to a specified portion of the principal; (2) 100% of all interest accrued or accruing on the loan; (3) 100% of all costs and expenses of collection, including a reasonable attorney's fees, relating to the enforcement of the guaranty agreements; and (4) 100% of all other costs and expenses of collection, including a reasonable attorney's fees, relating to all principal, interest, and other charges under the promissory notes and/or relating to any other indebtedness. Further, although the guaranty agreements obligate the guarantors to pay any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including 52 1190205, 1190251 principal, interest, costs of collection, and attorney's fees," the guarantors are not obligated to pay property-preservation expenses. " 'Rules governing the interpretation and construction of contracts are applicable in resolving a question as to the interpretation or construction of a guaranty contract.' Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So. 2d 68, 75 (Ala. 1989)." Barnett Millworks, Inc. v. Guthrie, 974 So. 2d 952, 954 (Ala. 2007). " ' "General contract law requires a court to enforce an unambiguous, lawful contract, as it is written." ' " Bockman, 943 So. 2d at 795 (quoting other cases). The guaranty agreements are plain and unambiguous and must be enforced as written. The guarantors have expressly "guaranteed and promised" to pay unconditionally any and all indebtedness of Bama Bayou or Marine Park arising under the promissory notes and loan agreements, "including principal, interest, costs of collection, and attorney's fees." Because we have determined that the trial court erred in entering awards in favor of SEPH and FNB that did not include interest accrued after August 21, 2013, late charges accrued after the date of foreclosure, attorney's fees, 53 1190205, 1190251 and collection costs, we also hold that the awards entered in favor of SEPH and FNB against the Bama Bayou guarantors and the Marine Park guarantors that likewise did not include interest accrued after August 21, 2013, and the aforementioned fees and expenses is in error. Conclusion We reverse the trial court's judgments entered in these consolidated cases and remand the cases for a determination consistent with this opinion regarding the appropriate damages awards on SEPH's and FNB's breach-of-contract claims. Such awards should account for all accrued interest, late charges, attorney's fees, collection costs, and property- preservation expenses owed to SEPH and FNB.12 1190205 -- REVERSED AND REMANDED WITH INSTRUCTIONS. 1190251 -- REVERSED AND REMANDED WITH INSTRUCTIONS. 12The borrowers and the guarantors ask this Court to remand the cases with instructions to the trial court to clarify or resolve the inconsistencies in its orders. "[T]he law of Alabama is well-settled on this point. In the absence of taking an appeal, an appellee may not cross-assign as error any ruling of the trial court adverse to appellee." McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 24 (Ala. 1986). The borrowers and the guarantors have not filed cross-appeals in these cases. Thus, this Court cannot consider this request. 54 1190205, 1190251 Shaw, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur. Parker, C.J., dissents. Stewart, J., recuses herself. 55	December 31, 2020
7d4c915f-f2ad-49fe-8e46-8089715d5a6d	Ex parte The Water Works and Sewer Board of the City of Anniston.	N/A	1190436	Alabama	Alabama Supreme Court	Rel: December 11, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190436 ____________________ Ex parte The Water Works and Sewer Board of the City of Anniston PETITION FOR WRIT OF MANDAMUS (In re: Betty Milner and Teresa Holiday v. The Water Works and Sewer Board of the City of Anniston) (Calhoun Circuit Court, CV-18-900510) BRYAN, Justice. 1190436 The Water Works and Sewer Board of the City of Anniston ("the Board") petitions this Court for a writ of mandamus directing the Calhoun Circuit Court ("the trial court") to vacate its order entering a partial summary judgment in favor of Betty Milner and Teresa Holiday (hereinafter referred to collectively as "the plaintiffs"). For the reasons set forth herein, we grant the petition. Facts and Procedural History On September 17, 2018, the plaintiffs sued the Board seeking compensatory and punitive damages based on claims of breach of contract, nuisance, continuing trespass, negligence, and wantonness. The plaintiffs alleged that in February 2016 they instructed the Board to cut off water supply to a house they owned; that the plaintiffs "returned to reopen" the house in February 2018 and discovered that the water supply to the house had not been completely cut off; and, that the Board's failure to properly cut off the water supply caused severe damage to the house. The Board filed an answer that included general denials of the plaintiffs' allegations and asserted a number of "affirmative defenses," including that the plaintiffs' injuries were the result of the "intervening and superseding" 2 1190436 actions of an individual or entity other than the Board or anyone under its control. Discovery began on November 1, 2018. On October 24, 2019, the plaintiffs, based on the Board's alleged spoliation of the evidence, filed a motion for a partial summary judgment as to the Board's liability or, in the alternative, to strike all of the Board's defenses to the plaintiffs' claims, alleging that the alleged spoliation prevented them from prosecuting their claims. In support of the motion, the plaintiffs presented evidence indicating that, at the plaintiffs' request, a service technician for the Board, Dale Bryant, placed a "cap and lock device on the cutoff valve attached to the water line which supplied water to the plaintiffs' home" on February 10, 2016. The record indicates that the house was not inhabited for two years after water service was terminated. Cam Stokes, chief executive officer of C. Stokes Construction, a contractor, went to the house on February 24, 2018, to investigate the existence of black mold at the house. Stokes saw the water meter and the cap and lock device, and determined that the water had not been properly cut off. Stokes put his findings in an e-mail dated February 25, 2018, in which he 3 1190436 concluded that a continuous water leak was the source of the damage to the plaintiffs' house and that he "would assume that the water company would be at fault due to the failure to properly shut off [the] main water valve." 1 On February 28, 2018, Milner reported the problem to Wanda Crow, a customer-service supervisor with the Board. Milner provided Crow a copy of Stokes's e-mail that detailed his conclusion that the Board was at fault for the damage to the plaintiffs' house, and, during her deposition, Crow stated that Milner "seemed to be claiming damages" against the Board. In response to Milner's report of water damage, Crow sent Bryant back to the plaintiffs' house to address the complaint the same day; Crow put a "note" in the Board's system that stated: "Please check. It has been locked off since 2/2016. The customer said that the inspector found the meter running and causing water to go under the house. Please give an order back to [Crow]." Bryant stated that, when he returned to the 1The recipient of Stokes's e-mail is not entirely clear from the materials before us, but it appears that the e-mail was sent to one of the plaintiffs. 4 1190436 plaintiffs' house in February 2018 he was not aware of an allegation that the plaintiffs' house had been damaged by any actions of the Board. According to Bryant, there was no water going through the meter and into the pipes when he turned the water off in February 2016 but that there was "just a little" water going through the meter when he returned in February 2018. Bryant recorded in his field notes that the cap and lock device he had used in 2016 to shut off the water line to the plaintiffs' house had been "tampered with" and that "the cap and lock were hanging off [the] cutoff sideways." Bryant removed both the cap and lock device he had used in 2016 and the water meter at the plaintiffs' house and ensured that there was no water running to the plaintiffs' house. Bryant did not keep the cap and lock device or the meter that he removed from the plaintiffs' house. During his deposition in June 2019, Bryant stated that such equipment was either put into use at another residence or was "scrapped." During Bryant's deposition, counsel for the plaintiffs asked the Board to locate the "meter and equipment" the Board used to shut off the water at the plaintiffs' house in 2016. Counsel for the plaintiffs again 5 1190436 requested that the Board "locate" that equipment in a letter to counsel for the Board on July 11, 2019. Counsel for the Board responded that the Board no longer possessed the water meter removed from the house or the cap and lock device that Bryant said was damaged and was also removed from the house. Counsel for the Board informed the plaintiffs' counsel that older water meters contained lead and that the Board was required to follow certain regulations in disposing of those meters, but the Board offered to provide counsel with the same kind of cap and lock device that had been used on the plaintiffs' meter for their inspection. In their October 2019 motion for a partial summary judgment, the plaintiffs argued that the Board was guilty of spoliation of evidence that was necessary to prosecute their claims against the Board. They alleged that the Board knew of a potential claim against the Board when Milner reported the water leak but that it failed to maintain possession of the water meter or the cap and lock device that had allegedly been tampered with by a third party. The plaintiffs argued that the Board's defense was based on an allegation that the cap and lock device had been tampered with by a third party, that it was this third party's action that caused the 6 1190436 water to run to the plaintiffs' house, and that, because the plaintiffs could not inspect the cap and lock device or the water meter, the Board should be sanctioned for its failure to maintain possession of the evidence the plaintiffs needed to rebut the Board's defenses. The plaintiffs moved the trial court for a partial summary judgment finding the Board liable for the plaintiffs' claims or, in the alternative, an order striking all the defenses asserted by the Board. The Board filed a response in opposition to the plaintiffs' motion, which included several attachments to support its argument that the plaintiffs had not demonstrated that it was guilty of spoliation. Included with the Board's opposition was the deposition testimony of Crow in which she stated that she was "sure" that she had not seen the e-mail report from Stokes before the date of her deposition in August 2019. However, Crow also testified that she was not disputing that Milner provided Stokes's e-mail to her on February 28, 2018, when Milner reported the water leak, she just did not recall seeing it when Milner first reported the water leak that day. The Board argued that, although the plaintiffs had filed this lawsuit on September 17, 2018, and although the parties had 7 1190436 almost immediately engaged in discovery, the plaintiffs did not ask the Board for the meter or the cap and lock device until June 26, 2019, during Bryant's deposition. The Board also presented evidence indicating that, at the time Bryant removed the meter and the cap and lock device in 2018, he did not know that the plaintiffs were claiming that the damage to their house was caused by the water not being properly cut off in 2016 and that the meter and the device were disposed of in the regular course of business. They also argued that the plaintiffs' contractor, Stokes, had access to the meter and the cap and lock device for at least four days before the Board knew there was a problem to resolve and that the plaintiffs were aware of the problem with the water meter several days before the Board was notified of the problem. The plaintiffs filed a response, which included additional evidence to support their motion for a partial summary judgment. Specifically, the plaintiffs attached photographs and a video of the water meter and the cap and lock device that were taken by Stokes and his partner, Willie 8 1190436 May, on February 24, 2018,2 when they went to inspect the plaintiffs' house. According to the plaintiffs, the photographs and video clearly showed that "the blue cap covering the cut-off valve was in its proper place and that the lock on that cap was intact." The plaintiffs also attached an affidavit from Hugh Buchanan, who lived near the plaintiffs' house. He stated that, in the spring of 2018, his wife complained about water running into their yard from "up the street" and that, when Buchanan saw someone from the Board at the plaintiffs' house, he went to speak with him. According to Buchanan, the Board employee, whom Buchanan identified as Bryant, "stated that the water department was supposed to have cut off the water to the [plaintiffs' house] but had apparently not cut the water off properly which is why it was still running." 3 The plaintiffs 2The plaintiffs actually state in their response that the photographs and video were taken on August 24, 2018. In light of the fact that they argue that this evidence "directly and profoundly contradicts ... Bryant's testimony" that the cap and lock device were "hanging off the cut off sideways" when he went to the plaintiffs' house on February 28, 2018, it appears that the date in the motion is a typographical error and the plaintiffs are alleging that the photographs and video were taken on February 24, 2018, the day Stokes inspected the plaintiffs' house. 3Buchanan submitted two affidavits. The first is dated November 29, 2018, and generally sets forth the information provided above. The second 9 1190436 argued that this evidence "directly contradicts" Bryant's testimony regarding the condition of the cap and lock device on February 28, 2018. The Board moved to strike the plaintiffs' response and the evidentiary submissions attached to it. After the plaintiffs responded to the Board's motion, the trial court conducted a hearing, and, on January 17, 2020, the trial court entered an order denying the Board's motion to strike the plaintiffs' evidentiary submissions, granting the plaintiffs' motion to strike the Board's defenses,4 and granting the plaintiffs' motion for a partial summary judgment as to the Board's liability to the plaintiffs. The trial court stated that the remaining issue of the plaintiffs' damages "shall be determined at the trial of this case," which would be set by separate order. The Board timely petitioned this Court for a writ of mandamus. affidavit, dated November 19, 2019, specifically identifies Bryant as the Board employee whom Buchanan spoke to in spring 2018. 4The trial court's order states that it granted the plaintiffs' motion to strike the Board's "affirmative defenses." However, given that the plaintiffs moved to strike all of the Board's defenses and that the trial court entered an order establishing the Board's liability to the plaintiffs, we construe the trial court's order as striking all of the Board's defenses, not just its affirmative defenses. 10 1190436 Standard of Review " ' " 'Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' " ' Ex parte Sears, Roebuck & Co., 895 So. 2d 265[, 268] (Ala. 2004) (quoting Ex parte Mardis, 628 So. 2d 605, 606 (Ala. 1993)(quoting in turn Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990))). 'The petitioner bears the burden of proving each of these elements before the writ will issue.' Ex parte Glover, 801 So. 2d 1, 6 (Ala. 2001)(citing Ex parte Consolidated Publ'g Co., 601 So. 2d 423 (Ala. 1992))." Ex parte Vance, 900 So. 2d 394, 397 (Ala. 2004). Analysis In its petition, the Board seeks an order vacating the trial court's January 17, 2020, order striking its defenses and entering a partial summary judgment establishing its liability to the plaintiffs. It is undisputed that the Board has properly invoked the jurisdiction of this Court by filing a timely petition for a writ of mandamus from the trial court's January 17, 2020, order. See Rule 21, Ala. R. App. P. Because the petition comes to this Court in an unusual procedural posture -- from a partial summary judgment on liability in favor of the plaintiffs -- we first 11 1190436 consider whether the Board has demonstrated that it is entitled to the extraordinary relief requested in this petition on the basis that it lacks another adequate remedy. The Board argues that Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), supports its argument that an appeal is not an adequate remedy by which to seek review of the January 17, 2020, order based on the particular circumstances of this case. In Ocwen, this Court recognized certain limited circumstances in which an eventual appeal of a discovery order is not an adequate remedy and review by mandamus is proper. The Board references the third category of discovery orders that this Court, in Ocwen, held are subject to mandamus review: "[W]hen the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal." Ocwen, 872 So. 2d at 813–14.5 5In later cases, this Court summarized the third Ocwen category as permitting mandamus review of discovery orders that "effectively eviscerat[e] 'a party's entire action or defense.' " Ex parte Meadowbrook 12 1190436 It is well settled that "discovery sanctions ... are available when spoliation is charged against an opposing party." Smith v. Atkinson, 771 So. 2d 429, 438 (Ala. 2000). Although the trial court's order entering the partial summary judgment as to liability is not a typical "discovery order," this Court has addressed the issue of spoliation in the context of both a discovery sanction entered pursuant to Rule 37, Ala. R. Civ. P., and a summary judgment as a "sanction" for spoliation. See, e.g., Hartung Com. Props., Inc. v. Buffi's Auto. Equip. & Supply Co., 279 So. 3d 1098 (Ala. 2018) (reversing a summary judgment in favor of the defendant based on the plaintiff's spoliation of the evidence); and Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989) (affirming the dismissal of the plaintiff's action pursuant to Rule 37 based on the plaintiff's failure to respond to a discovery request because the plaintiff discarded the evidence the defendant sought to inspect). Because the entry of a summary judgment on the basis of spoliation is considered a sanction, this Court, unlike in other cases in which it is reviewing a "standard" summary judgment, Ins. Grp., Inc., 987 So. 2d 540, 547 (Ala. 2007). 13 1190436 considers whether the trial court "exceeded its discretion" in entering the summary judgment on the ground of spoliation. See Hartung, 279 So. 3d at 1102-03; and Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So. 2d 84, 88-89 (Ala. 2004). Thus, this Court treats an order entering a summary judgment based on spoliation in a manner similar to an order imposing discovery sanctions for spoliation. Compare Vesta Fire, 901 So. 2d at 89 (holding that, "in determining whether the summary judgments for the defendants were proper on the ground of spoliation of the evidence, we consider whether the trial court exceeded its discretion in entering the summary judgments"), and Iverson, supra (in reviewing an order dismissing the plaintiff's complaint and entering a default judgment against the plaintiff based on spoliation pursuant to Rule 37, this Court stated that "[t]he choice of discovery sanctions is within the trial court's discretion and will not be disturbed on appeal [unless the court exceeded its] discretion"). At the heart of this case is the plaintiffs' request for production for inspection of the cap and lock device and the water meter that the Board removed from the plaintiffs' property and the Board's inability to allow 14 1190436 inspection of those items because it was no longer in possession of either of them. This is akin to a failure of discovery and, even though the plaintiffs did not cite Rule 37 or specifically seek "discovery" sanctions under that rule, their motion for a partial summary judgment sought to impose a sanction on the defendant for its alleged spoliation of the evidence. The trial court agreed and entered an order striking the Board's defenses and establishing the Board's liability to the plaintiffs. These are sanctions specifically contemplated by Rule 37(d), Ala. R. Civ. P., based on a party's failure to comply with a request for production.6 The trial court's order is, in essence, a discovery sanction "effectively precluding a decision on the merits ... so that ... the outcome has been all but determined, and the [Board] would be merely going through the motions of a trial to obtain an appeal." Ocwen, 872 So. 2d at 813-14. Thus, we conclude that the 6"An order to compel discovery is not required in order to bring Rule 37(d) into play. It is enough that a request for inspection or production has been properly served on the party." Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So. 2d 822, 825–26 (Ala. 1991) (citing Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989)). 15 1190436 Board has demonstrated that, under the particular circumstances of this case, an appeal is not an adequate remedy. Accordingly, we now consider whether the Board has demonstrated a clear legal right to an order vacating the trial court's order striking the Board's defenses and establishing the Board's liability to the plaintiffs. As discussed above, to demonstrate a clear legal right to that relief, the Board must demonstrate that the trial court exceeded its discretion in entering a partial summary judgment in favor of the plaintiffs as to the Board's liability. See Story v. RAJ Props., Inc., 909 So. 2d 797, 802 (Ala. 2005) ("In determining whether the summary judgments for the ... defendants were proper on the ground of spoliation of the evidence, we consider whether the trial court exceeded its discretion in entering the summary judgment instead of imposing another, less severe, sanction against [the spoliator]."). In Vesta Fire, a decision reviewing a summary judgment entered based on spoliation, the Court stated that, because a summary judgment was under review, the evidence presented in support of the motion for a summary judgment must be viewed in a light most favorable to the nonmovant. 901 So. 2d at 96. In Story, another decision 16 1190436 reviewing a summary judgment based on spoliation, this Court stated that, when there are disputed issues that go to "whether the sanction of a summary judgment entered on the ground of spoliation of the evidence was appropriate", "[t]hat determination is one for the trial court to make." 909 So. 2d at 802. " 'Spoliation is an attempt by a party to suppress or destroy material evidence favorable to the party's adversary. May v. Moore, 424 So. 2d 596, 603 (Ala. 1982). Proof of spoliation will support an inference of guilt or negligence. May, 424 So. 2d at 603. One can prove spoliation by showing that a party purposefully or wrongfully destroyed [evidence] that the party knew supported the interest of the party's opponent. Id.' "Wal–Mart Stores[, Inc. v. Goodman], 789 So. 2d [166,] 176 [(Ala. 2000)] (concluding that Wal–Mart was not entitled to a new trial based on spoliation because 'nothing in the record show[ed] that [the plaintiff] knew that the [allegedly spoliated evidence] would be a key piece of evidence in her case, and Wal–Mart provided no evidence to show that [the plaintiff] intentionally destroyed [it] in order to inhibit Wal–Mart's case.')." Walker v. City of Huntsville, 62 So. 3d 474, 495 (Ala. 2010). "This Court has applied five factors in analyzing a spoliation-of-the-evidence issue: (1) the importance of the evidence destroyed; (2) the culpability of the offending party; (3) fundamental fairness; (4) alternative sources of the 17 1190436 information obtainable from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than dismissal." Story, 909 So. 2d at 802–03 (citing Vesta Fire, 901 So. 2d at 94–95).7 Although we briefly address each factor listed above, this case turns on the fifth factor -- the possible effectiveness of sanctions less severe than an order striking the Board's defenses and establishing the Board's liability to the plaintiffs. The importance of the evidence destroyed -- the meter and the cap and lock device -- in and of itself, is obvious. That evidence would provide the plaintiffs the best opportunity to prove their claim that the Board never properly cut off the water in 2016 and to rebut the Board's allegation that the cutoff was not effective only because a third party tampered with the cap and lock device. However, this Court has held that the importance of the evidence destroyed "must be evaluated in the context of the importance of the evidence that was preserved or otherwise 7Although the parties have not cited any authority indicating that this Court has considered these five factors in analyzing whether a defendant is subject to a sanction for spoliation, the parties use these factors as a framework for their argument; therefore, we will do the same. 18 1190436 available," Vesta Fire, 901 So. 2d at 95, which implicates the fourth factor set forth above. Although no part of the meter or the cap and lock device was preserved, the materials before us indicate that the plaintiffs did have evidence available to them to support their contention that the Board did not properly cut off the water in 2016, namely, the testimony of their contractor, Stokes, who inspected the water meter four days before the Board was made aware of the issue at the plaintiffs' house. The plaintiffs did not present any evidence indicating that Stokes was unavailable or otherwise unable to testify regarding the condition of the cap and lock device and the water meter when he inspected that equipment on February 24, 2018, before the Board removed the equipment.8 Thus, the 8There is also some indication from the materials before us that the plaintiffs are in possession of photographs and a video of the cap and lock device and the meter that were taken before the Board removed that equipment. See accompanying text and note 2, supra. In their response to the Board's petition for a writ of mandamus, the plaintiffs argue that the photographs and video are not adequate to rebut Bryant's testimony concerning the condition of the cap and lock device on February 28, 2018. Notably, this argument appears to contradict the argument the plaintiffs made to the trial court, i.e., that the photographs and video "directly and profoundly" contradict Bryant's testimony concerning the condition of the cap and lock device. Even if the photographs are not adequate, there is no indication that Stokes is unavailable to offer evidence of the status or 19 1190436 plaintiffs did not demonstrate that there was no alternate source for the information that would have been obtainable from the destroyed evidence. In considering the Board's culpability in failing to preserve the meter or the cap and lock device, the Board argues that there was insufficient evidence that it acted willfully in not preserving the items. "At its most flagrant level, the willfulness component of the culpability factor involves knowledge and appreciation by the spoliator that the evidence being destroyed would be pertinent and materially favor the interest of his opponent in litigation being anticipated by the spoliator. McCleery[ v. McCleery, 200 Ala. 4, 75 So. 316 (1917)]; May[ v. Moore, 424 So. 2d 596 (Ala. 1982)]; Verchot v. General Motors Corp., 812 So. 2d 296 (Ala. 2001). 'When a party maliciously destroys evidence, that is, with the intent to affect the litigation, that party is more culpable for spoliation.' Cooper v. Toshiba Home Tech. Corp., 76 F. Supp. 2d 1269, 1274 (M.D. Ala. 1999). Conversely, willfulness is not shown where the party disposing of an item neither knew nor should have known that the item would be key evidence in the case. Wal–Mart Stores[, Inc. v. Goodman], 789 So. 2d [166,] 176 [(Ala. 2000)] ('[The defendant] provided no evidence to show that [the plaintiff] intentionally destroyed [the item of evidence] in order to inhibit [the defendant's] case.')." Vesta Fire, 901 So. 2d at 95. condition of the cap and lock device and the meter before those items were removed by the Board. 20 1190436 The primary consideration in determining the Board's culpability is whether it knew or should have known that the cap and lock device and the water meter would be key evidence supporting the interests of the plaintiffs in foreseeable litigation by the plaintiffs against the Board. If the Board had no reason to believe there was a threat of litigation at the time it removed the equipment, the Board could not be held culpable. See Russell v. East Alabama Health Care Auth., 192 So. 3d 1170, 1177 (Ala. Civ. App. 2015) (holding that, when there was insufficient evidence that the defendant had knowledge that there was a threat of litigation when it destroyed certain evidence that might have been supportive of the plaintiff's case, there was no basis from which to conclude that the defendant had engaged in spoliation of the evidence). Viewing the evidence before us in a light most favorable to the Board, we conclude that the trial court could have assigned some culpability to the Board. Although Crow did not recall reviewing Stokes's e-mail that detailed his opinion that the Board was at fault for the damage to the plaintiffs' house, Crow did not dispute that Milner provided Stokes's e-mail report to her before Bryant went to the plaintiffs' 21 1190436 house in February 2018. Crow testified that Milner "seemed to be claiming damages" against the Board when Milner first reported the water leak on February 28, 2018. Yet Crow did not convey to Bryant that Milner was attributing responsibility for her damage to the Board, nor did she make any other effort to preserve the equipment that Bryant removed from the plaintiffs' house. Thus, the trial court could have determined that the Board had some degree of culpability for failing to ask Bryant to save the cap and lock device and the meter after he removed them from the plaintiffs' house. However, when the evidence is viewed in the light most favorable to the Board, as it must be, Vesta Fire, 901 So. 2d at 96, the materials before us indicate that neither Crow nor Bryant knew that the plaintiffs would initiate litigation against the Board once it was discovered that, at least from the Board's perspective, the water was running to the plaintiffs' house only because a third party had tampered with the cap and lock device, not because the Board had failed to properly cut off the water in 2016. Accordingly, viewing the evidence in the light most favorable to the Board, any culpability imputed to the Board based on Crow's failure to maintain the equipment removed from the plaintiffs' 22 1190436 house was in a relatively low range on the "continuum of fault." See Vesta Fire, 901 So. 2d at 98. Next, we consider whether notions of fundamental fairness supported the trial court's order establishing the Board's liability to the plaintiffs as a sanction for spoliation. Although we agree that it would be fundamentally unfair to allow the Board to present evidence indicating that a third party had tampered with the cap and lock device if the plaintiffs were wholly unable to rebut that evidence entirely as a result of the Board's conduct, we have already concluded that the plaintiffs failed to demonstrate that there were not adequate alternative sources of information from which they could rebut the Board's evidence in this regard. Moreover, we conclude that the plaintiffs failed to demonstrate that fundamental fairness required the most severe sanction available to the trial court to impose upon the Board. Cf. Hartung, 279 So. 3d at 1105 (noting that, when a plaintiff's action was dismissed based on the plaintiff's spoliation of the evidence, " ' "the sanction of dismissal is the most severe sanction that a court may apply .... Dismissal orders must be carefully scrutinized and the plaintiff's conduct must mandate 23 1190436 dismissal" ' " (quoting Vesta Fire, 901 So. 2d at 95, quoting in turn Iverson, 553 So. 2d at 87)). In cases where the defendant is accused of spoliating the evidence, this Court has repeatedly approved a jury instruction on spoliation, which can include an inference of guilt, when an adequate evidentiary foundation exists from the evidence presented. See Campbell v. Williams, 638 So. 2d 804, 817 (Ala. 1994) (noting that sufficient evidentiary foundation existed to support a jury instruction on spoliation, which allowed for an inference of guilt, when the evidence indicated that the defendant physician in a medical-malpractice action attempted to conceal certain aspects of the decedent's care); Southeast Environmental Infrastructure, L.L.C. v. Rivers, 12 So. 3d 32, 44–45 (Ala. 2008) (noting that sufficient evidentiary foundation existed for a jury instruction on spoliation and holding that, "when there is evidence indicating that a defendant has spoliated essential evidence in a case, it is reasonable for the jury to infer that the defendant did so to prevent anyone from seeing that evidence. Thus, where the evidence shows spoliation, the jury may consider the defendant's spoliation of the evidence as an implied admission of culpability."); and Liberty Nat'l Life Ins. Co. v. 24 1190436 Sanders, 792 So. 2d 1069, 1081 (Ala. 2000) (holding that the plaintiff presented sufficient evidence to support an instruction that allowed the jury to determine whether the evidence supported a reasonable inference of the defendants' " 'guilt, culpability, or awareness' " of their wrongdoing when the evidence indicated that the defendant had falsified evidence to support its defense). In Alabama Power Co. v. Murray, 751 So. 2d 494 (Ala. 1999), the Murrays sued Alabama Power ("APCo") alleging that a massive power surge developed on APCo's power lines, bypassed APCo's "surge arrester," and caused a fire at the Murrays' house. The Murrays alleged that APCo failed to install sufficient surge arresters and that that failure allowed the surge to travel unimpeded to the Murrays' house. Shortly after the fire, engineers with APCo, intending to inspect the surge arrester at issue, dropped the surge arrester and destroyed it. The trial court gave the jury the following spoliation charge from Alabama Pattern Jury Instructions: Civil, 15.13 (2d ed., 1998 cum. supp.): " 'In this case, the [Murrays claim] that the defendant [APCo] is guilty of wrongfully destroying, hiding, concealing, altering, or otherwise wrongfully tampering with [the] 25 1190436 material evidence[, namely, the surge arrester at the Seale Road substation]. If you are reasonably satisfied from the evidence that [APCo] did or attempted to wrongfully destroy, hide, conceal, alter, or otherwise tamper with material evidence, then that fact may be considered as an inference of [APCo's] guilt, culpability, or awareness of the defendant's negligence.' " Alabama Power, 751 So. 2d at 496. After a jury found in favor of the Murrays, APCo argued on appeal that the trial court erred in giving an instruction on spoliation. This Court stated: "In May v. Moore, 424 So. 2d 596 (Ala. 1982), this Court held: " 'Proof may be made concerning a [party's] purposefully and wrongfully destroying a document which he knew was supportive of the interest of his opponent, whether or not an action involving such interest was pending at the time of the destruction. See Gamble, McElroy's Alabama Evidence § 190.05 (3d ed. 1977). Additionally, the spoliation, or attempt to suppress material evidence by a party to a suit, favorable to an adversary, is sufficient foundation for an inference of his guilt or negligence. Southern Home Insurance Co. of the Carolinas v. Boatwright, 231 Ala. 198, 164 So. 102 (1935); see also Gamble, McElroy's Alabama Evidence § 190.02 (3d ed.1977).' "424 So. 2d at 603. 26 1190436 "The Murrays contend that evidence regarding the condition of the surge arrester was vital to their case against APCo. Further, claim the Murrays, APCo knew, when it was removing the surge arrester, that the Murrays' potential claim against it depended, in part, on the condition of the surge arrester; thus, they say, the Seale Road surge arrester was evidence that APCo 'knew was supportive of the interest of [its] opponent[s].' "These contentions, say the Murrays, when viewed in the context of the inconsistent testimony of Jeff Roper and Bill Obert and the statements of the Murrays' neighbors with regard to electrical appliances in their homes that they say were destroyed as a result of the same power surge, provided a sufficient foundation for the jury charge on the doctrine of spoliation. See Campbell v. Williams, 638 So. 2d 804 (Ala. 1994). Alabama Pattern Jury Charge 15.13 requires that the fact-finder be reasonably satisfied from the evidence that spoliation has occurred. The record contains sufficient evidence to support the trial court's giving this charge and allowing the jury to determine whether that evidence also supported a reasonable inference of APCo's 'guilt, culpability, or awareness of [its] negligence.' " Alabama Power, 751 So. 2d at 497. The plaintiffs did not demonstrate below, and they have not demonstrated to this Court, why a similar jury instruction would not be adequate to protect their interests, assuming a proper evidentiary foundation is laid during trial. Although we can conceive a circumstance where it could be proper to strike all defenses of a defendant based on 27 1190436 spoliation of the evidence, in most circumstances, a jury instruction on an inference of guilt would suffice to protect the interest of the plaintiff and the fundamental fairness of the proceedings. See Alabama Power, Campbell, Rivers, and Sanders, supra. In the context of cases involving alleged spoliation of the evidence, this Court has repeatedly recognized " 'a long-established and compelling policy objective of affording litigants a trial on the merits whenever possible.' " Hartung, 279 So. 3d at 1106 (quoting Iverson, 553 So. 2d at 89 and citing Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600 (Ala. 1988), and Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610 (Ala. 1988)). Accordingly, we must conclude that the trial court exceeded its discretion in striking the Board's defenses and entering a partial summary judgment establishing the Board's liability to the plaintiffs based on spoliation. Conclusion The Board has established: a clear legal right to an order directing the trial court to vacate the January 17, 2020, order striking its defenses and establishing its liability to the plaintiffs; the trial court's refusal to 28 1190436 vacate its order; the absence of another adequate remedy; and, the properly invoked jurisdiction of this Court. See Ex parte Vance, 900 So. 2d at 397. Thus, the Board has demonstrated that it is entitled to the writ of mandamus. Accordingly, we grant the petition, issue the writ, and order the trial court to vacate its January 17, 2020, order. PETITION GRANTED; WRIT ISSUED. Bolin, Wise, Sellers, Stewart, and Mitchell, JJ., concur. Shaw, J., concurs in the result. Parker, C.J., and Mendheim, J., dissent. 29 1190436 MENDHEIM, Justice (dissenting). I respectfully dissent. I disagree with the main opinion's conclusion that The Water Works and Sewer Board of the City of Anniston ("the Board") has demonstrated that an appeal is not an adequate remedy in this case. As the main opinion notes: " ' " ' " Mandamus is a drastic and extraordinary writ to be issued only where there is[, among other things,] ... the lack of another adequate remedy ...." ' " Ex parte Sears, Roebuck & Co., 895 So. 2d 265 (Ala. 2004) (quoting Ex parte Mardis, 628 So. 2d 605, 606 (Ala. 1993) (quoting in turn Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990))).' " Ex parte Vance, 900 So. 2d 394, 397 (Ala. 2004). Stated differently, "[i]t is well settled that mandamus is an extraordinary writ to be issued only in situations where other relief is unavailable or inadequate and that it is not a substitute for the appellate process. Continental Oil Co. v. Williams, 370 So. 2d 953 (Ala. 1979)." Ex parte Drill Parts & Serv. Co., 590 So. 2d 252, 253 (Ala. 1991). Ex parte Drill Parts & Service is instructive in determining whether the Board had available to it an adequate remedy. In Ex parte Drill Parts & Service, Joy Manufacturing Company ("JMC") sued Drill Parts & 30 1190436 Service Company ("DP&SC") alleging, among other things, that DP&SC had misappropriated its trade secrets. After the trial court entered a preliminary injunction in favor of JMC, JMC filed a motion for a partial summary judgment as to its misappropriation-of-trade-secrets claim; JMC sought a judgment only as to liability on this one claim. The trial court granted JMC's partial-summary-judgment motion, determining that DP&SC was liable, and set the matter for a hearing as to damages. After the trial court refused to certify the matter for a permissive appeal under Rule 5, Ala. R. App. P., DP&SC petitioned this Court for a writ of mandamus, requesting that this Court set aside the trial court's order. This Court refused to consider DP&SC's mandamus petition, stating, in pertinent part: "We find it unnecessary to determine with respect to this petition whether [the trial court] erred in entering the partial summary judgment in favor of [JMC] on the issue of [DP&SC's] liability for misappropriating trade secrets and setting a hearing for a determination of damages. It is well settled that mandamus is an extraordinary writ to be issued only in situations where other relief is unavailable or inadequate and that it is not a substitute for the appellate process. Continental Oil Co. v. Williams, 370 So. 2d 953 (Ala. 1979). [DP&SC] could not appeal [the trial court's] interlocutory partial summary judgment in favor of [JMC] and 31 1190436 the order setting a hearing for a determination of damages, pursuant to Rule 5, [Ala. R. App. P.]; nevertheless, [DP&SC] ha[s] an adequate remedy by appeal once a final judgment is entered in this case. ... In the present case, after over eight years of litigation, a partial summary judgment, albeit interlocutory in nature, was entered against [DP&SC] on the issue of liability for misappropriating trade secrets; thus, only the question of damages is left to be resolved. With the case in this posture, [DP&SC] ha[s] an adequate remedy by appeal once [the trial court] enters a final judgment. Accordingly, mandamus is not the appropriate means of review in this case." Ex parte Drill Parts & Service, 590 So. 2d at 253-54. In the present case, as in Ex parte Drill Parts & Service, the only issue left to be resolved as to the plaintiffs' claims against the Board is the issue of damages. Mandamus is not the appropriate means of review of the partial summary judgment entered by the circuit court. The Board has available to it an adequate remedy by appeal once the circuit court enters a final judgment in this case. Accordingly, given the posture of this case, I dissent. 32	December 11, 2020
fe56d2fe-c14c-45eb-911d-6bfede838fdf	Ex parte Antwain Jermon Wingard.	N/A	1190558	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1190558 Ex parte Antwain Jermon Wingard. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Antwain Jermon Wingard v. State of Alabama) (Henry Circuit Court: CC-16-115; Criminal Appeals : CR-18-0344). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Bolin, Shaw, and Bryan, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
e6a86f1d-7e7f-42be-8a77-daf74fa54f3a	Ex parte Johnson & Johnson et al.	N/A	1190423	Alabama	Alabama Supreme Court	Rel: December 31, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190423 ____________________ Ex parte Johnson & Johnson et al. PETITION FOR WRIT OF MANDAMUS (In re: DCH Health Care Authority et al. v. Purdue Pharma LP et al.) (Conecuh Circuit Court, 2019-000007) BOLIN, Justice. 1190423 Johnson & Johnson and other pharmaceutical defendants1 in the 1When this petition for a writ of mandamus was filed, the petition was styled "Ex parte Purdue Pharma LP et al." After the underlying case was commenced in the trial court but before the petition was filed, Purdue Pharma and its affiliates declared bankruptcy, and the underlying action against them was automatically stayed. Therefore, Purdue Pharma and its affiliates are not parties to this petition, and this Court has restyled this petition to accurately reflect the parties before it. The petitioners/defendants include Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc., n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc., n/k/a Janssen Pharmaceuticals, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Par Pharmaceutical, Inc.; Par Pharmaceutical Companies, Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Watson Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc.; Amneal Pharmaceuticals, LLC; Noramco, Inc.; Abbott Laboratories; Abbott Laboratories Inc.; Allergan Finance, LLC, f/k/a Actavis, Inc., f/k/a Watson Pharmaceuticals, Inc.; Allergan Sales, LLC; Allergan USA, Inc.; AmerisourceBergen Drug Corporation; H.D. Smith, LLC, f/k/a H.D. Smith Wholesale Drug Co.; Anda, Inc.; Cardinal Health, Inc.; Henry Schein, Inc.; CVS Health Corporation; CVS Pharmacy, Inc.; CVS Indiana, L.L.C.; Rite Aid of Alabama, Inc.; Rite Aid of Maryland, Inc.; Walmart Inc.; Wal-Mart Stores East, LP; The Kroger Co.; Kroger Limited Partnership II; Walgreen Co.; and Walgreen Eastern Co., Inc. According to the complaint, these entities manufacture, market, distribute, and/or dispense opioid medications. Mallinckrodt LLC and SpecGx LLC are not included in this list, although they were named in the complaint. On October 12, 2020, after this petition was filed, those two entities notified this Court that they had declared bankruptcy and that an automatic stay with regard to them applied. Upon receiving that notice, this Court notified the other petitioners/defendants and the respondents/plaintiffs that, unless a party showed cause why this Court should not entertain this petition with the 2 1190423 underlying action filed in the Conecuh Circuit Court petition this Court for a writ of mandamus compelling that court to transfer the underlying action filed against them by DCH Health Care Authority and other plaintiffs2 from Conecuh County to Jefferson County, on the basis that remaining parties, this Court would consider the petition. No party objected. 2The respondents/plaintiffs, who identify themselves as "Alabama hospitals that have been financially damaged by the opioid epidemic in Alabama which was created and maintained by the petitioners," are 17 corporate entities that own or operate 21 hospitals throughout Alabama. The respondents include: DCH Health Care Authority, operating as DCH Regional Medical Center in Tuscaloosa County, as Northport Medical Center in Tuscaloosa County, and as Fayette Medical Center in Fayette County; Healthcare Authority for Baptist Health, doing business as Baptist Medical Center East in Montgomery County, as Baptist Medical Center South in Montgomery County, and as Prattville Baptist Hospital in Autauga County; Medical West Hospital Authority, doing business as Medical West in Jefferson County; Evergreen Medical Center, LLC, doing business as Evergreen Medical Center in Conecuh County; Gilliard Health Services, Inc., doing business as Jackson Medical Center in Clarke County; Crestwood Healthcare, L.P., doing business as Crestwood Medical Center in Madison County; Triad of Alabama, LLC, doing business as Flowers Hospital in Houston County; QHG of Enterprise, Inc., doing business as Medical Center Enterprise in Coffee County; Affinity Hospital, LLC, doing business as Grandview Medical Center in Jefferson County; Gadsden Regional Medical Center, LLC, doing business as Gadsden Regional Medical Center in Etowah County; Foley Hospital Corporation, doing business as South Baldwin Regional Hospital in Baldwin County; Health Care Authority of Clarke County, doing business as Grove Hill Memorial Hospital in Clarke County; BBH PBMC, LLC, operating as 3 1190423 venue in Conecuh County is not proper as to all plaintiffs or, alternatively, on the basis that the convenience of the parties and/or the interest of justice requires it. We deny the petition. Facts and Procedural History On September 19, 2019, the plaintiffs filed a complaint in the Conecuh Circuit Court against numerous defendants that, they aver, manufacture, market, distribute, and/or dispense opioid medications throughout Alabama in a manner that is misleading, unsafe, and has resulted in drug addiction, injury, and/or death to Alabama citizens. The complaint asserts claims of negligence, nuisance, unjust enrichment, fraud and deceit, wantonness, and civil conspiracy.3 The plaintiffs seek both compensatory and punitive damages because, they say, they have Princeton Baptist Medical Center in Jefferson County; BBH WBMC, LLC, operating as Walker Baptist Medical Center in Walker County; BBH SBMC, LLC, operating as Shelby Baptist Medical Center in Shelby County; BBH CBMC, LLC, operating as Citizens Baptist Medical Center in Talladega County; and BBH BMC, LLC, operating as Brookwood Baptist Medical Center in Jefferson County. 3The civil-conspiracy claim is alleged only against the marketing, distributing, and dispensing defendants. The other claims are alleged against all defendants. 4 1190423 incurred and will incur "massive costs by providing uncompensated care as a result of opioid-related conditions." On December 31, 2019, the manufacturer defendants4 filed a motion to transfer the case to Jefferson County because, they said, the doctrine of forum non conveniens required it.5 With regard to the convenience-of- the-parties prong of the doctrine of forum non conveniens, see § 6-3- 21.1(a), Ala. Code 1975, the manufacturer defendants reasoned that, because, they said, 8 of the 17 plaintiffs either have a place of business in Jefferson County or operate hospitals in Jefferson County or adjacent counties, logic dictated that a large percentage of the witnesses for those plaintiffs, i.e., prescribing doctors, hospital administrators, etc., and their evidence are located in or around Jefferson County. Therefore, they 4Those defendants include Janssen Pharmaceuticals, Inc.; Johnson & Johnson; Mallinckrodt LLC; SpecGX LLC; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Par Pharmaceutical, Inc.; Par Pharmaceuticals Companies, Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc; Watson Laboratories, Inc.; Actavis, LLC; and Actavis Pharma, Inc. The motion was filed before Mallinckrodt LLC and SpecGX LLC filed for bankruptcy and the underlying case against them was automatically stayed. 5The manufacturer defendants did not submit any evidence with their motion. 5 1190423 maintained, it would be more convenient for those witnesses for the case to be heard in Jefferson County. They further contended that, because, they said, 11 of the 17 plaintiffs have a principal place of business or operate in counties in north Alabama, those plaintiffs and their witnesses would be inconvenienced by travel of more than 2 ½ hours to Conecuh County. Likewise, they maintained that, because the defendants' principal places of business are outside Alabama and their counsel and witnesses reside outside Alabama, travel to Conecuh County for litigation was also inconvenient for defense witnesses. They urged that, because Jefferson County is more centrally located in the State and is the location of Alabama's largest airport, Jefferson County's geographic location made it a substantially more convenient forum for the plaintiffs, the defendants, and all potential witnesses. With regard to the interest-of-justice prong, the manufacturer defendants contended that transfer of the case to Jefferson County was required because, they said, Jefferson County has a strong "nexus" to the litigation and Conecuh County's connection is tenuous at best. They argued that Conecuh County's connection is weak because only one of the 6 1190423 17 plaintiffs, Gilliard Health Services, Inc., had its principal place of business in Conecuh County;6 that none of the defendants have a principal place of business or office in Conecuh County; that only a fraction of one percent of the alleged conduct giving rise to the action occurred in Conecuh County; and that the plaintiffs did not allege that a "substantial part of the events or omissions giving rise to the claim" even occurred in Conecuh County. The manufacturer defendants argued that, unlike Conecuh County's weak connection to the case, Jefferson County had both a substantially strong nexus to the case and a far greater interest in overseeing its adjudication. They observed that 8 of the 17 plaintiffs had a principal place of business in Jefferson County or adjacent Shelby, Tuscaloosa, and Walker Counties. Citing a Washington Post article, "The Opioid Files: Drilling Into the DEA's Pain Pill Database," dated July 21, 2019, which was also relied upon by the plaintiffs in their complaint, the manufacturer defendants maintained that of the 6Although Gilliard Health Services, Inc., does business as Jackson Medical Center in Clarke County, its principal place of business is in Evergreen, in Conecuh County. 7 1190423 1,703,752,769 prescription opioid pills supplied to Alabama from 2006 to 2012, 247,636,796 of those pills were supplied to Jefferson County -- more than 39 times the amount supplied to Conecuh County. Thus, they reasoned, the interest of justice required transfer of the action because, they said, Jefferson County had a strong connection to the action and Conecuh County had a "negligible connection to this multi-party, complex litigation." On January 6, 2020, the plaintiffs filed a response to the manufacturer defendants' motion for a change of venue. In their response, the plaintiffs noted that the manufacturer defendants had conceded that venue is proper in Conecuh County because the doctrine of forum non conveniens is applicable only when an action is filed in a county in which venue is appropriate.7 The plaintiffs contended that the manufacturer defendants had not met their burden of proving that the convenience of the parties or the 7See Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952, 956 (Ala. 1995)(noting that the doctrine of forum non conveniens "has a field of operation only where an action is commenced in a county in which venue is appropriate"). 8 1190423 interest of justice required transfer of the case from Conecuh County to Jefferson County. The plaintiffs explained that they have hospitals located in multiple counties not in or near Jefferson County and that each of the plaintiffs had "chosen to promote judicial economy and resources by filing one consolidated civil action [in Conecuh County] instead of separate actions [in multiple counties]." The plaintiffs reasoned that, because they decided to join the Conecuh County action, the plaintiffs had selected their forum and that the convenience of the forum for themselves and their witnesses is irrelevant. They further reasoned that the defendants, being foreign corporations with principal places of business, witnesses, and counsel located outside Alabama, will be inconvenienced by having to litigate in any county in Alabama. With respect to the interest-of-justice prong, the plaintiffs maintained that Conecuh County has a strong connection to the case because the data, as pleaded in the complaint, demonstrated that Conecuh County received approximately 475 opioid pills per person while, during the same period, Jefferson County received approximately 376 pills per person. They reasoned that Conecuh County has a strong interest in the case because the data reflected that Conecuh 9 1190423 County is oversaturated with opioid pills. The plaintiffs concluded that, because the manufacturer defendants had submitted no evidence to support their motion for a change of venue and, they said, had failed to establish that Jefferson County is "significantly more convenient" for the parties or that the interest of justice requires transfer of the underlying action, the motion for a change of venue was due to be denied. On January 21, 2020, other defendants joined the manufacturer defendants8 and again moved for a change of venue to the Jefferson 8The defendants listed as filing this motion include Rite Aid of Alabama, Inc.; Rite Aid of Maryland, Inc.; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc., n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc., n/k/a Janssen Pharmaceuticals, Inc.; Johnson & Johnson; Mallinckrodt LLC; SpecGx LLC; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Par Pharmaceutical, Inc.; Par Pharmaceutical Companies, Inc.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Watson Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc.; Amneal Pharmaceuticals LLC; Noramco, Inc.; Abbott Laboratories; Abbott Laboratories, Inc.; Allergan Finance, LLC, f/k/a Actavis, Inc., f/k/a Watson Pharmaceuticals, Inc.; Allergan Sales, LLC; Allergan USA, Inc.; AmerisourceBergen Drug Corporation; H.D. Smith, LLC, f/k/a H.D. Smith Wholesale Drug Co.; Anda, Inc.; Cardinal Health, Inc.; Henry Schein, Inc.; CVS Health Corporation; CVS Pharmacy, Inc.; CVS Indiana, L.L.C.; Walmart Inc.; Wal-Mart Stores East, LP; The Kroger Co.; Kroger Limited Partnership II; Walgreen Co.; and Walgreen Eastern Co., Inc. 10 1190423 Circuit Court, arguing that venue in Conecuh County is not proper as to all plaintiffs but that venue in Jefferson County is proper as to all plaintiffs or, alternatively, that, even if the court concludes that venue is proper in Conecuh County, the doctrine of forum non conveniens, mandates a transfer of this case from Conecuh County to Jefferson County for the convenience of the parties and/or in the interest of justice. The defendants supported their motion with the previously filed manufacturer defendants' motion for a change of venue and an evidentiary submission, which included: • a copy of the Washington Post article "The Opioid Files: Drilling Into the DEA's Pain Pill Data Base," dated July 21, 2019; • fifteen affidavits from defendant corporate representatives and/or corporate counsel stating that the defendants do not have a place of business in Alabama and/or a connection to Conecuh County and that their witnesses primarily reside in states other than Alabama; • a list of 15 top pain-medicine prescribers in Alabama, indicating that 6 prescribers were located in Jefferson County and 3 prescribers were located in Mobile County; • an "Overdose Surveillance Summary" issued by the Alabama Department of Public Health in July 2019; 11 1190423 • a list of Alabama hospitals indicating the location of each hospital; the number of staffed beds, total discharges, and patient days; and the gross patient revenue; • MapQuest Reports indicating that 11 of the 21 represented hospitals are located over 100 miles from the Conecuh County courthouse; • a MapQuest Report indicating that the Birmingham- Shuttlesworth International Airport is located two miles from the Jefferson County courthouse; • lists of the doctors working in the various represented hospitals; • lists of the Jefferson County circuit court judges and their staffs; • copies of the Jefferson Circuit Court's calendars for 2020 and 2021; • a copy of the 2020 combined Monroe Circuit Court and Conecuh Circuit Court calendar; • financial statements for The Healthcare Authority of Baptist Health, an affiliate of UAB Health System (2017- 2019), and for Medical West Hospital Authority, an affiliate of UAB Health System (2016-2018); and • reports indicating the number of hotels in Evergreen (the county seat of Conecuh County) and Birmingham, Alabama. 12 1190423 First, the defendants argued that Conecuh County is not the proper venue for this case because, they said, a substantial portion of the events from which the plaintiffs' claims arise did not occur in Conecuh County. See § 6-3-7(a)(1), Ala. Code 1975 (providing that a plaintiff may bring an action against a corporation "[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred"). They urged that the core theory of the plaintiffs' complaint is that the represented hospitals incurred monetary losses because the hospitals were "compelled to act and treat patients with opioid-related conditions" and that, consequently, the plaintiffs seek reimbursement for the costs of that patient care. The defendants noted that 4 of the 17 plaintiffs involved in the action are located in Jefferson County and that the plaintiffs' complaint indicates that during the same period the number of opioid medications prescribed in Jefferson County was 39 times higher than the amount of opioid medications prescribed in Conecuh County. Additionally, the defendants contended that Jefferson County sustained a greater proportion of the alleged injuries than did Conecuh County because more hospitalization-related events, alleged to have occurred in 13 1190423 association with opioid medications, had been reported in Jefferson County than in Conecuh County. They reasoned that, (1) because the principal office of only 1 of the 17 plaintiffs is located in Conecuh County, (2) because at least 4 hospitals seeking reimbursements for costs expended on alleged opioid-addicted patients are located in or near Jefferson County, and (3) because Jefferson County had received the largest percentage of opioid pills for any county in the state, transfer to Jefferson County, where, they said, a substantial part of the alleged harm occurred, would result in venue being proper for the claims of all the plaintiffs. Next, the defendants maintained that, even if venue was proper in Conecuh County for at least one plaintiff, the plaintiffs had not established all the exception-triggering conditions set forth in § 6-3-7(c), Ala. Code 1975, for venue to be proper as to all the plaintiffs. Specifically, they maintained that the plaintiffs had not asserted or demonstrated: • any right to relief jointly, severally, or arising out of the same transaction or occurrence; • the existence of a substantial number of common questions of law or material fact; 14 1190423 • the predominance of such questions over individualized questions; • that the action can be conducted more efficiently and economically for all parties if conducted jointly than if prosecuted separately; and • that the interest of justice supported the joinder of the plaintiffs as parties. The defendants urged that, if the trial court determined that the plaintiffs had not satisfied the exception-triggering conditions for venue in Conecuh County to be proper as to all plaintiffs but declined to transfer the entire case to Jefferson County, § 6-3-7(c) required the trial court to sever the claims of all the plaintiffs except Gilliard Health Services, whose claims might be maintained properly in Conecuh County, and transfer the rest of the action to Jefferson County where, they said, venue is proper. The defendants further argued that, if the trial court concluded that venue is proper in Conecuh County as to all plaintiffs, application of the doctrine of forum non conveniens required transfer of the case to Jefferson County. With respect to the convenience-of-the-parties prong, the defendants argued that transfer of the case is required because, they said, Jefferson County is significantly more convenient for the parties and 15 1190423 witnesses than is Conecuh County. They maintained that Jefferson County provides easier access to multiple sources of proof, because a majority of the plaintiffs reside or do business in or near Jefferson County. They argued that the submitted affidavits indicated that the defendants and potential defense witnesses providing testimony in any deposition, hearing, or trial resided in states other than Alabama and that Jefferson County, therefore, would be a significantly more convenient venue. For example, several averred: "Given the size, location, frequency of flights, and number of airlines serving the Birmingham International Airport, traveling to Jefferson County, Alabama is significantly more convenient than flying to the Pensacola International Airport Florida and driving to the Circuit Court of Conecuh County, Alabama (approximately 86 miles), or flying to the Montgomery Airport and driving to the Circuit Court of Conecuh County, Alabama (approximately 76 miles). The Circuit Court of Jefferson is located approximately 5 miles from the Birmingham International Airport. Consequently, it would be significantly more convenient for [counsel and defense witnesses] to appear at and/or provide testimony in any deposition." With respect to the interest-of-justice prong, the defendants maintained that transfer of the case was required because, they said, Jefferson County has a strong connection to the case and considerable 16 1190423 judicial resources to conduct a multiparty, complex case, while Conecuh County's connection is weak and its judicial resources limited. To support their contention, the defendants argued that the submitted evidence indicated that 6 of the top 15 pain-medicine prescribers are located in Jefferson County; that, among the hospitals seeking reimbursement, more hospitals and beds are located in Jefferson County; and that more emergency-room visits allegedly related to opioid abuse existed or occurred in Jefferson County than in any other Alabama county. They also argued that the evidence indicated that Jefferson County, with its 27 circuit court judges of which 11 preside exclusively over civil cases, their judicial staffs, and their scheduled 30 civil-jury-trial weeks per year, has more judicial resources for litigating a complex case. They maintained that conducting multiparty, complex litigation would overly burden the judicial resources of Conecuh County, which shares a single circuit court judge with Monroe County, who presides over all types of cases, conducting only two civil-jury-trial weeks per year. Thus, they urged that the convenience of the parties and the interest of justice required transfer of the case to Jefferson County. 17 1190423 On January 28, 2020, the plaintiffs filed a response in opposition to the defendants' January 21, 2020, motion for a change of venue, arguing that venue is proper and appropriate in Conecuh County, pursuant to § 6- 3-7(a)(3), Ala. Code 1975, because plaintiff Gilliard Health Services, an Alabama corporation with its principal place of business in Evergreen, did business by agent in Conecuh County at the time of the accrual of each cause of action. The plaintiffs further maintained that they had satisfied all the exception-triggering conditions of § 6-3-7(c) to make venue in Conecuh County proper for all plaintiffs. They noted that they had specifically pleaded in the complaint: "Venue is proper in this Court pursuant to § 6-3-2 and § 6-3-7 of the Code of Alabama (1975) and Rule 82 of the Alabama Rules of Civil Procedure as some of the acts on which the action is founded occurred in Conecuh County, as the Defendants did business by agent in Conecuh County at the time of the accrual of each cause of action. Venue is proper as the Plaintiffs assert their right to relief jointly, severally, and arising out of the same transactions or occurrences, and the existence of a substantial number of questions of law or material fact common to all plaintiffs not only will arise in the action, but also: (1) that such questions will predominate over individualized questions pertaining to each plaintiff; (2) that this action can be maintained more efficiently and economically for all parties than if prosecuted separately; and 18 1190423 (3) that the interest of justice supports the joinder of the parties as plaintiffs in one action." The plaintiffs argued that all the plaintiffs severally assert the same right to relief and that the right to relief arose out of the same transaction or occurrence -- the defendants' creation of a public nuisance, the opioid epidemic. They further argued that individualized questions, such as how many opioid patients each hospital treated or how much in unreimbursed costs each hospital incurred, are predominated by several overarching questions, including: "Did the defendants create a public nuisance?" and "Did the public nuisance -- the opioid epidemic -- cause the plaintiffs to incur unreimbursed costs for the treatment of opioid-related conditions?" Addressing the defendants' argument that the application of the doctrine of forum non conveniens required that the case be transferred from Conecuh County to Jefferson County, the plaintiffs noted that great deference is given to the plaintiff's selected venue in a forum non conveniens analysis9 and maintained that the defendants had not demonstrated that the convenience of the parties or the interest of justice 9See Ex parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 1994). 19 1190423 required the transfer of the case to Jefferson County. With regard to the convenience-of-the-parties prong of § 6-3-21.1, the plaintiffs maintained that the defendants had not demonstrated that Jefferson County is a "significantly more convenient" venue than Conecuh County. They rejected the defendants' argument that the number of hospitals and their witnesses located in Jefferson County and its adjacent counties shows Jefferson County is a more convenient venue for the parties and witnesses, urging that, "[b]y joining in this lawsuit, these plaintiffs have chosen their forum and have made convenience [with regard to themselves and their witnesses] irrelevant." They also rejected the defendants' argument that venue should be changed to Jefferson County because it is a more convenient forum as a result of its centralized location, reasoning that Montgomery County, also a proper venue and located in the middle of the State, provides a more centralized location. They noted that the defendants are corporations and other business entities, whose representatives and witnesses are located outside Alabama and will be inconvenienced no matter where in Alabama the trial is conducted. They observed that travel from airports located in Pensacola, Montgomery, or 20 1190423 Mobile to Conecuh County would not be more than 86 miles, 76 miles, and 102 miles, respectively. Lastly, the plaintiffs urged that "with 17 plaintiffs located all over the state, a significant number of people are going to be inconvenienced by travel distance no matter where the case is situated," and, consequently, they reasoned that deference should be given to the plaintiffs' chosen venue because "travel distance to court is of minimal significance in a statewide, multi-plaintiff, multi-defendant case such as this one." With respect to the interest-of-justice prong, the plaintiffs maintained that the defendants did not demonstrate that Conecuh County's connection to the case is weak or that Jefferson County is in a better position to adjudicate the case. The plaintiffs contended that their complaint and the evidence submitted by the defendants indicated that "more opioid pills were distributed per capita in Conecuh County [475 opioid pills per person] during the time period 2006-2012 than were distributed in Jefferson County [376 opioid pills per person]." The plaintiffs reasoned that Conecuh County's oversaturation with opioid pills establishes a strong connection between Conecuh County and the 21 1190423 litigation. They further argued that the defendants' reliance on counties adjacent to Jefferson County to establish a strong connection is misplaced, because the "interest of justice only measures the forum county's connection to the lawsuit and the proposed transferee county's connection to the lawsuit." The plaintiffs also disagreed with the defendants' contention that Jefferson County is in a better position to adjudicate the case, arguing that Conecuh County's civil docket is small because fewer civil cases are filed in Conecuh County than in Jefferson County. They reasoned: "The Conecuh Circuit Court does not have a clogged docket, which the court can also judicially notice, and is therefore in a much better position than the busy Jefferson Circuit Court to expeditiously bring this case to trial and try it." On January 30, 2020, the defendants filed a reply in support of their motion for a change of venue to Jefferson County. In their reply, they maintained that the plaintiffs had not met their burden of proving the exception-triggering conditions of § 6-3-7(c) for venue to be proper for all plaintiffs and that, even if venue is proper in Conecuh County as to all the plaintiffs, the plaintiffs did not present any evidence to rebut the 22 1190423 defendants' evidence indicating that Jefferson County is a significantly more convenient forum for the parties and witnesses or that conducting the litigation in Jefferson County better serves the interest of justice. Specifically, the defendants argued that the plaintiffs had failed to establish that all the plaintiffs assert the same right to relief arising out of the same transaction or occurrence to demonstrate that venue is proper in Conecuh County because, they said, each plaintiff asserts an individual right to recover the uncompensated medical costs arising from the alleged opioid-related care it provided to patients; that each plaintiff's right to relief arises out of different transactions, i.e., each hospital's treatment of an addicted patient for some medical problem; and that a multitude of individualized questions underlie the assertion that the right to relief arises out of the defendants' alleged creation of the opioid epidemic. They insisted that the plaintiffs failed to demonstrate that a substantial number of common questions exist or that the common questions will predominate over individualized questions. With regard to the convenience-of-the-parties prong of the forum non conveniens doctrine, the defendants rejected as nonresponsive the 23 1190423 plaintiffs' argument that the locations of the hospitals are irrelevant because the plaintiffs voluntarily joined the case, maintaining that the defendants have a right to defend the case and that those witnesses and their documents lie outside the subpoena power of the Conecuh Circuit Court. They reasoned that because a substantial number of the anticipated witnesses live or work within a few miles of the Jefferson County courthouse and all live within 100 miles of it, Jefferson County is significantly more convenient for the parties and witnesses. In reply to the plaintiffs' interest-of-justice argument, the defendants noted that, because only 1 of the 17 plaintiffs allegedly operates a hospital in Conecuh County and only 1 other plaintiff allegedly has its principal office in Conecuh County, the majority of the hospitals represented in the litigation, including their administrators and prescribing doctors, are located over 100 miles from Conecuh County, and the evidence demonstrated that the number of hospitalizations in Conecuh County alleged to be related to opioids is not substantial. They further reasoned that, in light of the limited contacts of the case with Conecuh County and the fact that Conecuh County had not borne the majority of the alleged 24 1190423 injuries and damage in this case, Conecuh County's interest in hearing this case is not proportionate to the burden and costs associated with adjudicating such a complex, multiparty litigation. The defendants insisted that they had selected Jefferson County as the transferee forum because, unlike Conecuh County, they believed Jefferson County is the only forum where venue is proper for all parties because, they said, Jefferson County is "the center of both Alabama's alleged opioid epidemic and plaintiffs' alleged injuries." On January 31, 2020, the trial court conducted a hearing. At the hearing the defendants argued, among other arguments, that the plaintiffs did not meet the exception-triggering requirements of § 6-3-7(c) for venue to be proper in Conecuh County as to all plaintiffs. Essentially, the defendants argued that the plaintiffs could not satisfy the exception- triggering conditions of § 6-3-7(c) because, they said, the case focuses on debt collection and the oversupply of opioids did not create a common question with regard to the reimbursement for medical expenses related to treating opioid-induced conditions. They further argued that transfer of the case to Jefferson County was required under convenience-of-the- 25 1190423 parties prong of the forum non conveniens statute because Jefferson County provided better access to evidence, including witnesses and documents, in light of the number of plaintiffs located in and near Jefferson County and because Jefferson County, with its airport located approximately two miles from the Jefferson County courthouse, was more convenient for out-of-state witnesses. With regard to the interest-of- justice prong, the defendants argued that Jefferson County has a strong connection to the action while Conecuh County's connection is weak. The defendants observed that 4 of the 21 hospitals seeking reimbursement in the action were located in Jefferson County and that the data provided by the Alabama Department of Public Health for 2017 and 2018 indicated that the number of opioid-overdose-related 911 responses, emergency- department visits, and treatment interventions with naloxone, an opioid- overdose antidote, were substantially higher in Jefferson County than in Conecuh County. The defendants also argued that Jefferson County, with its 11 judges who entertain only civil cases, is better equipped to manage this multiparty, complex case. 26 1190423 The plaintiffs disagreed, maintaining that the defendants did not meet their burden for the transfer of the action because, the plaintiffs said, they did satisfy the exception-triggering conditions of § 6-3-7(c), arguing that the defendants created the opioid epidemic in a myriad of ways and that all the plaintiffs are affected in common ways because they cannot select the patients they treat when those patients arrive in the emergency room. The plaintiffs argued that the damages in this case derive from the defendants' causing people to become addicted to opioids and that treating an opioid-addicted patient is costly. The plaintiffs further maintained that the cause of action is not debt collection -- rather, it is public nuisance, i.e., whether the defendants created a nuisance in the State in each of the plaintiffs' counties. The plaintiffs rejected the defendants' convenience-of-the-parties argument, reminding the court that the plaintiffs had submitted voluntarily to the jurisdiction of the Conecuh Circuit Court and that the majority of the plaintiffs, with the exception of those located in Huntsville, are located in the lower two- thirds of the State. Consequently, they reasoned that Conecuh County is more centrally located and more convenient for a majority of the 27 1190423 witnesses. Additionally, the plaintiffs argued that the interest-of-justice prong did not require a transfer of the case to Jefferson County because Conecuh County has a strong connection to the case in light of data indicating that prescribers had prescribed 93 opioid prescriptions per resident in Conecuh County. They further reminded the court that in 2019 the Jefferson Circuit Court had adjudicated 25,000 cases (7,600 civil claims and 17,000 criminal claims), while the Conecuh Circuit Court had adjudicated 335. The plaintiffs admitted that Jefferson County does have more judges but maintained that additional judges do not correlate to this case being tried sooner. The parties appeared to agree that they did not want the case broken up at this stage in the litigation. The defendants urged the trial court to transfer the entire case to Jefferson County and insisted that piecemeal transfers of the case would be problematic. The defendants emphasized: "In this motion to transfer, we are asking simply that the entire case be kept together, transferred to Jefferson County." 28 1190423 The trial court summarily denied the motions for a change of venue. The defendants petition this Court for a writ of mandamus ordering the transfer of the case to Jefferson County. Standard of Review " ' "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So. 2d 932, 936 (Ala. 1995)." ' 29 1190423 "Ex parte Benton, 226 So. 3d 147, 149–50 (Ala. 2016)(quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998)). " '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, [Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539 (Ala. 2008)], 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)." Ex parte Maynard, Cooper & Gale, P.C., 280 So. 3d 391, 397 (Ala. 2018). Discussion The defendants contend that they have a clear, legal right to have the underlying case transferred from Conecuh County to Jefferson County because, they say, the trial court exceeded its discretion in concluding implicitly that the plaintiffs had satisfied the exception-triggering conditions of § 6-3-7(c), Ala. Code 1975, for venue to be proper as to all 30 1190423 plaintiffs10 and that the defendants did not satisfy their burden of proving that the doctrine of forum non conveniens required transfer of the action. The plaintiffs maintain that they satisfied their burden of establishing that venue is proper in Conecuh County as to all plaintiffs and that the doctrine of forum non conveniens does not mandate transfer of the underlying action. Each argument will be discussed in turn. I. Propriety of venue in Conecuh County as to all plaintiffs under § 6-7-3(c), Ala. Code 1975. The defendants contend that the trial court erred in concluding that venue was proper as to all plaintiffs in Conecuh County because, it says, 16 of the 17 plaintiffs do not have a direct relationship with Conecuh County and the plaintiffs failed to establish the exception-triggering 10In the trial court, the defendants argued that the plaintiffs had not demonstrated that venue in Conecuh County was proper because, they maintained, Gilliard Health Services, the only plaintiff averred in the complaint to have had its principal office at the time the cause of action accrued in Conecuh County, had its principal office in Montgomery County. Before this Court, the defendants state: "Conecuh County is an improper venue for the claims of all but one plaintiff [Gilliard Health Services]." Therefore, the defendants have waived any objection that venue is not proper for at least one plaintiff in Conecuh County, pursuant to § 6-3-7(a)(3). 31 1190423 conditions set forth in § 6-3-7(c) for venue to be proper as to all plaintiffs. Specifically, the defendants maintain that the 17 plaintiffs do not assert the same rights to relief, that the asserted rights do not arise out of the same transaction or occurrence, that common questions of law and fact do not exist because each plaintiff's experience and/or damages are both different and individualized, and that, if common questions exist, the questions are not predominate. Section 6-3-7(c) provides: "(c) Anything to the contrary in Rule 82(c) of the Alabama Rules of Civil Procedure notwithstanding, in any action against a corporation, venue must be proper as to each and every named plaintiff joined in the action, unless the plaintiffs shall establish that they assert any right to relief jointly, severally, or arising out of the same transaction or occurrence and that the existence of a substantial number of questions of law or material fact common to all those persons not only will arise in the action, but also: (1) that such questions will predominate over individualized questions pertaining to each plaintiff; (2) [that] the action can be maintained more efficiently and economically for all parties than if prosecuted separately; and (3) that the interest of justice supports the joinder of the parties as plaintiffs in one action. If venue is improper for any plaintiff joined in the action, then the claim of any such plaintiff shall be severed and transferred to a court where venue is proper. In the event severance and transfer is mandated and venue is appropriate in more than one court, a defendant sued alone or multiple 32 1190423 defendants, by unanimous agreement, shall have the right to select such other court to which the action shall be transferred and, where there are multiple defendants who are unable to agree upon a transferee court, the court in which the action was originally filed may transfer the action to any such other court." (Emphasis added.) Accordingly, to establish that venue is proper in Conecuh County, the plaintiffs have to demonstrate, pursuant to § 6-3-7(c), that 1. the 17 plaintiffs assert a right "to relief jointly, severally, or arising out of the same transaction or occurrence"; 2. a substantial number of questions of law or material fact common to all those persons will arise in the action; 3. the common questions of law or material fact will predominate over individualized questions pertaining to each plaintiff; 4. it is more efficient and economical for all parties that all the plaintiffs' claims are tried together, rather than separately; and 5. joinder of the parties in one action is in the interest of justice. As evidenced throughout the defendants' motions and arguments, the defendants do not dispute that the action can be maintained more efficiently and economically if prosecuted together (condition 4) and that 33 1190423 the interest of justice supports the joinder of the plaintiffs in one action (condition 5). Therefore, only the exception-triggering conditions 1, 2, and 3 are in contention. As an initial matter, the defendants appear to argue that the plaintiffs must establish the exception-triggering conditions by evidence and that the trial court must make specific findings with regard to each of the exception-triggering conditions. The plaintiffs insist that, because venue determinations are made early in the litigation, applying the relevant law to the pleaded facts to determine whether the exception- triggering conditions are met is a better policy and that the trial court may hold implicitly, i.e., by summarily denying a motion for a change of venue, that the plaintiffs satisfy the exception-triggering conditions for venue to be proper. Venue determinations are made at the commencement of trial. See Ex parte Pratt, 815 So. 2d 532, 534 (Ala. 2001). After a defendant challenges the propriety of venue as to all plaintiffs, depending upon the facts pleaded in the complaint, additional evidence may or may not need to be submitted by the plaintiff to establish the exception-triggering 34 1190423 conditions. In Unum Life Insurance Co. of America v. Wright, 897 So. 2d 1059, 1080 (Ala. 2004), this Court, when denying the petitioner's request for a writ of mandamus directing the trial court to transfer the underlying case to another venue, stated: "We cannot say that Judge Smithart exceeded his discretion in concluding in the Wright case, as he implicitly did in denying Unum's challenge to venue, that those questions of law and fact would predominate over any individualized questions." Accordingly, the trial court did not err by failing to make specific findings with regard to each of the exception-triggering conditions in § 6-3-7(c). In Ex parte Flexible Products Co., 915 So. 2d 34 (Ala. 2005), a case in which 1,675 coal miners sued 11 manufacturers and/or distributors of isocyanate, alleging that they had been injured by exposure to isocyanate, this Court examined the propriety of the trial court's refusal to transfer the case. We observed: "[E]ach plaintiff asserts that he or she was harmed as a result of the same occurrence or transaction, i.e., exposure to isocyanate while employed as a coal miner, and each plaintiff asserts a separate, 'several' claim for damages based on personal injury as a result of the occurrence." 35 1190423 915 So. 2d at 53 (footnote omitted). When examining this assertion, this Court noted that it had not found any authority defining the phrase "transaction or occurrence" and then opined: "[T]he broad definition used by the federal courts in analyzing challenges to permissive joinder under Rule 20, Fed. R. Civ. P., substantially identical to Rule 20, Ala. R. Civ. P., is helpful: " 'The first requirement for joinder is that the claims must "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences." Fed. R. Civ. P. 20(a). " 'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974)(citation and internal quotation marks omitted); see also LASA Per L'Industria Del Marmo Societa Per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir.1969). "[L]anguage in a number of decisions suggests that the courts are inclined to find that claims arise out of the same transaction or occurrence when the likelihood of overlapping proof and duplication in testimony indicates that separate trials would result in delay, inconvenience, and added expense to the parties and to the court." 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1653.' "DIRECTV, Inc. v. Barrett, 220 F.R.D. 630, 631–32 (D. An. 2004). See also Jamison v. Purdue Pharma Co., 251 F. Supp. 36 1190423 2d 1315 (S.D. Miss. 2003); and Advamtel, LLC v. AT & T Corp., 105 F. Supp. 2d 507 (E.D. Va. 2000)(noting generally that the 'transaction or occurrence' test rule is designed to permit all reasonably related claims for relief by or against different parties to be tried in single proceeding)." 915 So. 2d at 52 n. 5. Here, each plaintiff asserts that it was harmed, i.e., required to expend unreimbursed funds to treat opioid-related patients because of the defendants' alleged misconduct, as a result of the same occurrence or transaction, i.e., the defendants' creation of the opioid epidemic. Each plaintiff asserts a separate, "several" claim for damages as a result of that occurrence. The likelihood of overlapping proof and duplication in testimony to establish that the defendants' conduct in manufacturing, marketing, distributing, and/or dispensing opioid medications throughout Alabama in a misleading, unsafe manner resulted in drug addiction, injury, and/or death because of the defendants' negligence, wantonness, fraud and deceit, engaging in a civil conspiracy, creation of a nuisance, and unjust enrichment is great. As the plaintiffs reason: "Because all plaintiffs assert the same claims and all plaintiffs rely on the same conduct by defendants, the proof of defendants' conduct for each plaintiff's 37 1190423 cause of action is the same." Thus, each plaintiff asserts a right to relief arising out of the same transaction or occurrence. Additionally, each plaintiff seeks reimbursement for funds expended treating patients with opioid-related illnesses. If the plaintiffs fail to establish that the defendants created a public nuisance -- the opioid epidemic -- then the plaintiffs' claims for damages fail and the litigation ends. Cf. Ex parte Monsanto Co., 794 So. 2d 350, 357 (Ala. 2001)(approving the trial court's " 'plan of action ... to hear, at one proceeding, the evidence relating to liability issues as to all claims and then, if the liability issue was decided adversely to [the defendants], to try each individual plaintiff's causation and damages issues"). Therefore, the trial court did not exceed its discretion in holding implicitly that the plaintiffs established the first exception-triggering condition. Additionally, a review of the complaint indicates that a substantial number of common questions of law and material fact will arise in the action because the elements of the plaintiffs' claims present common questions that will rise and fall on common evidence. As previously observed in Ex parte Flexible Products, supra, this Court noted that each 38 1190423 coal miner asserted a harm as a result of exposure to isocyanate -- a same occurrence or transaction -- and that each coal miner asserted a separate -- several -- claim for damages based on personal injury as a result of that occurrence. In addressing the defendants' argument that " because each plaintiff's claim is factually unique, the trial court exceeded its discretion" in consolidating the cases, we held: "The defendants' emphasis on the factual circumstances of the particular case of each individual plaintiff does not compel the conclusion that there is no common issue, or issues, suitable for resolution through a consolidated trial. In addition to [Ex parte] Monsanto [Co., 794 So. 2d 350 (Ala. 2001)], we note that many courts in similar situations involving exposure to allegedly dangerous substances have recognized the utility and validity of consolidation as a tool for avoiding needlessly duplicative trials. For example, in Owens–Corning Fiberglass Corp. v. James, [646 So. 2d 669 (Ala. 1994),] this Court rejected the defendant's argument that the consolidation of the plaintiffs' claims for damages arising from their alleged exposure to asbestos resulted in confusion of the jury. The Court stated: " 'As the Eleventh Circuit Court of Appeals stated in Hendrix v. Raybestos–Manhattan, Inc., 776 F.2d 1492, 1496 (11th Cir. 1985), "[t]he cases here [involving asbestos litigation] present precisely the kind of tort claims a court should consider consolidating for trial." We conclude, after reviewing the record and the briefs, that there is no basis for holding that the consolidation of these 39 1190423 three cases resulted in a confused jury and a flawed verdict. Instead, it appears that common questions of law and fact existed in these cases, both with respect to initial legal liability and with respect to medical causation, and that the simultaneous trial of these cases furthered the desired goals of Rule 42(a)[, Ala. R. Civ. P.,] by avoiding wasteful relitigation and a duplication of judicial effort. See Hendrix, supra.' "646 So. 2d at 674. ... "We conclude that the defendants have not shown that there is no possibility that the plaintiffs' claims present common issues .... In fact, the trial court's statement of the possibly common issues -- 'the dangers to human health posed by isocyanate exposure, Defendants' knowledge regarding those dangers, the adequacy of Defendants' warnings and Defendants' misrepresentation regarding the safety and their concealments of the known dangers of their products' -- lists aspects of the case that potentially meet the commonality requirement. See, e.g., University Fed. Credit Union v. Grayson, 878 So. 2d 280 (Ala. 2003)(discussing whether alleged misrepresentations in claims brought by the plaintiffs had sufficient commonality to support inclusion in a class for class certification under Rule 23, Ala. R. Civ. P.). For example, if, after the trial of common issues, it is determined that exposure to isocyanate is not harmful to humans, then such a determination would effectively conclude this litigation." 915 So. 2d at 41-42. Likewise, the underlying litigation presents common questions of fact, such as, but not limited to: 40 1190423 • Did the defendants' conduct create a public nuisance, i.e., the opioid epidemic, by engaging in conduct such as, but not limited to, deceptive marketing campaigns to increase the use of opioids? • Did the public nuisance created by the defendants cause the plaintiffs to incur unreimbursed costs for the treatment of opioid-related conditions? And, • Are the defendants liable for negligence, wantonness, or unjust enrichment? If it is determined that the defendants did not create an opioid epidemic, that determination effectively concludes this litigation. Thus, the trial court did not exceed its discretion in concluding implicitly that the plaintiffs satisfied this exception-triggering condition. Lastly, the materials before us indicate that the common questions " ' "arise from a common nucleus of operative facts relevant to the dispute, and those common questions represent a significant aspect of the case which can be resolved for all [plaintiffs] in a single adjudication." ' " Ex parte Flexible Prods. Co., 915 So. 2d at 53 n.6 (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1120 (Ala. 2003), quoting in turn Heartland Commc'ns, Inc. v. Sprint Corp., 161 F.R.D. 111 (D. Kan. 1995))(noting that the definition of "predominance" is mainly discussed 41 1190423 with regard to class-action certifications). Here, common issues of fact and law predominate because they impact every plaintiff's burden regarding its establishment of liability and entitlement to damages. Additionally, although the fraud claims are reliance-based and reliance usually requires individual inquiries in the class-action context, see Compass Bank v. Snow, 823 So. 2d 667, 676-77 (Ala. 2001), in the joinder context, because each plaintiff proves its own case, the individual issues presented in the fraud claims do not spoil the cohesion. Therefore, the trial court did not exceed its discretion in concluding implicitly that at this stage in the litigation common questions of law and material fact will predominate. The materials before us indicate that the plaintiffs established that they had satisfied the exception-triggering conditions for venue to be proper in Conecuh County as to all plaintiffs. Thus, the trial court did not exceed its discretion in this regard, and the defendants are not entitled to a transfer of the underlying action based on application of § 6-3-7(c). II. Right to transfer under § 6-3-21.1(a). 42 1190423 Because the materials before us support the trial court's conclusion that venue is proper in Conecuh County as to all plaintiffs, we turn to the defendants' contention that § 6-3-21.1, Ala. Code 1975, the forum non conveniens statute, mandates a transfer of this action. Section 6-3-21.1(a) provides: "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.) In Ex parte New England Mutual Life Insurance Co., 663 So. 2d at 956, this Court explained that the purpose of the doctrine of forum non conveniens "is to prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience." " ' "A defendant moving for a transfer under § 6–3–21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice." ' Ex parte Southeast Alabama Timber 43 1190423 Harvesting, LLC, 94 So. 3d 371, 373 (Ala. 2012)(quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998))." Ex parte Tyson Chicken, Inc., 291 So. 3d 477, 480 (Ala. 2019). " 'When venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference.' Ex parte Perfection Siding, Inc., 882 So. 2d 307, 312 (Ala. 2003)." Ex parte Burgess, 298 So. 3d 1080, 1083 (Ala. 2020). The forum non conveniens statute is compulsory, see Ex parte Sawyer, 892 So. 2d 898, 905 n. 9 (Ala. 2004), and the inquiry regarding its application depends upon the facts. Ex parte J&W Enters., LLC, 150 So. 3d 190 (Ala. 2017). In Ex parte First Family Financial Services, Inc., 718 So. 2d 658, 661 (Ala. 1998), this Court observed: " 'The United States Supreme Court, in [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)], addressed this issue and discussed the competing private and public interests involved: " ' "Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate 44 1190423 to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcement of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. " ' "Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. ..." 45 1190423 " '330 U.S. [at] 508–09, 67 S.Ct. at 843.' " (Quoting Ex parte Gauntt, 677 So. 2d 204, 221-22 (Ala. 1996)(Maddox, J., dissenting).) Here, the defendants maintain that the doctrine of forum non conveniens requires that the underlying case be transferred from Conecuh County to Jefferson County, because, they say, Conecuh County is an inconvenient forum and the interest of justice requires the transfer. Because the defendants moved for the change of venue, the defendants have the burden of demonstrating "either that [Jefferson] County is a more convenient forum than [Conecuh] County or that having the case heard in [Jefferson] County would more serve the interest of justice." Ex parte Fuller, 955 So. 2d 414, 416 (Ala. 2006). Each argument will be discussed in turn. A. Convenience of the parties. The defendants contend that the underlying action must be transferred to Jefferson County because, they say, Jefferson County is a significantly more convenient forum for the parties and witnesses than is Conecuh County. 46 1190423 In Ex parte Tyson Chicken, this Court addressed the "convenience- of-the-parties" prong of the forum non conveniens statute, stating: "With regard to the 'convenience-of-the-parties' prong of § 6–3–21.1, this Court has recognized that " ' "[a] defendant seeking a transfer based on § 6–3–21.1 has the burden of proving to the satisfaction of the trial court that the defendant's inconvenience and expense in defending the action in the venue selected by the plaintiff are so great that the plaintiff's right to choose the forum is overcome. Ex parte New England Mut. Life, 663 So. 2d [952,] 956 [(Ala. 1995)]; Ex parte Townsend, 589 So. 2d [711,] 715 [(Ala. 1991)]. For a transfer to be justified, the transferee forum must be 'significantly more convenient' than the forum chosen by the plaintiff. Ex parte Townsend, 589 So. 2d at 715. See also[ ] Ex parte Johnson, 638 So. 2d 772, 774 (Ala. 1994)." ' "Ex parte Blair Logistics, LLC, 157 So. 3d 951, 955 (Ala. Civ. App. 2014)(quoting Ex parte Integon Corp., 672 So. 2d 497, 500 (Ala. 1995)(emphasis added)). Thus, a trial court should not grant a motion for a change of venue under the convenience-of-the-parties prong unless the new forum is shown to be 'significantly more convenient' than the forum in which the action was filed. See Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 909 (Ala. 2008). "In cases in which this Court has found that the 'convenience of the parties and witnesses' warrants a transfer of the action, evidence was provided demonstrating that the proposed transferee forum was 'significantly more convenient' 47 1190423 than the transferor forum. Such evidence included affidavits from parties and witnesses stating that the incident underlying the action occurred in the transferee forum, affidavits from the parties stating that they lived in the transferee forum, and evidence indicating that requiring the parties and/or the witnesses to travel to the transferor forum would be a significant burden. See, e.g., Ex parte Kane, 989 So. 2d 509, 511, 512-13 (Ala. 2008)(noting affidavits submitted by the movant in support of the motion for a change of venue in holding that the transferee forum would be a 'substantially more convenient' forum than the transferor forum). In contrast, in cases in which the party moving for the transfer has failed to present evidence demonstrating that the transferee forum is 'significantly more convenient' than the transferor forum, this Court has declined to order a transfer. See, e.g., Ex parte Gentile Co., 221 So. 3d 1066, 1069 (Ala. 2016)(noting that the petitioner failed to present any evidence in support of its motion for a change of venue under the doctrine of forum non conveniens in declining to order a transfer of the case). "... [T]his Court has stated that a party who makes this argument [i.e., that the accessibility of the documentary evidence in its proposed forum is significantly more convenient that the forum selected by the plaintiff] ' " 'must make a showing [with regard to the documentary evidence] on the factors such as volume, necessity, and inconvenience that would support such a claim.' " ' Ex parte Yocum, 963 So. 2d 600, 602 (Ala. 2007) (quoting Ex parte Nichols, 757 So. 2d 374, 378 (Ala. 1999), quoting in turn Ex parte Wiginton, 743 So. 2d 1071, 1076 (Ala. 1999)); see also Ex parte General Nutrition Corp., 855 So. 2d 475, 480 (Ala. 2003), and Ex parte Nichols, 757 So. 2d at 379. This means that the moving party must identify those documents and provide information demonstrating how burdensome it would be for it to move 48 1190423 those documents to the transferor forum. Nichols, 757 So. 2d at 379." 291 So. 3d at 480-81. In Ex parte Tyson Chicken, the parties moving for a change of venue based on the convenience-of-the-parties prong did not present evidence discussing with specificity the nature and the volume of the documentary evidence or the inconvenience of accessing and transporting the documentation to the plaintiff's proposed forum to support its claim. Consequently, this Court held that it could not "consider the location of the documents in determining whether the trial court exceeded its discretion in denying the transfer." 291 So. 3d at 481. Additionally, the Court was not persuaded by the moving parties' argument that the proposed venue would be significantly more convenient for potential witnesses. The Court observed that none of the submitted evidence indicated that potential witnesses who might testify would be significantly inconvenienced by traveling to the plaintiff's chosen venue or demonstrated how the "inconvenience and expense in defending the 49 1190423 action" in the plaintiff's venue was "so great" that the plaintiff's ability to choose the forum was overcome. Applying the law set forth in Ex parte Tyson Chicken, we conclude that the trial court did not exceed its discretion in denying the defendants' motion for a change of venue. The defendants did not clearly identify with specificity the evidence that they maintain will be inaccessible if the underlying action proceeds in Conecuh County. The evidence submitted in support of their motion for a change of venue is speculative and conclusory and does not demonstrate that a majority of the evidence is located in Jefferson County or that it would be inconvenient to present the evidence in Conecuh County. Indeed, none of the affidavits identified specific witnesses who would be deposed or who would testify or explained the testimony the witnesses would provide and its relevance to the litigation. Additionally, the affidavits from corporate representatives and defense counsel submitted by the defendants to establish the inconvenience of conducting litigation in Conecuh County were conclusory and offered little to no insight other than a fact obvious to the trial court and this Court -- it is over 100 miles from the airport in Jefferson County 50 1190423 to the Conecuh County courthouse and only 2 miles from the airport in Jefferson County to the Jefferson County courthouse. Consequently, the submitted evidence does not demonstrate why Jefferson County is significantly more convenient. See Ex parte Preston Hood Chevrolet, 638 So. 2d 842, 845 (Ala. 1994)("[A] defendant cannot assert the inconvenience of its witnesses without making a detailed statement specifying the key witnesses and providing generally statements of the subject matter of their testimony." (emphasis added)). Indeed, the generalities and conclusions presented in the defendants' affidavits would be common to any litigation involving national defendants. Here, the parties are numerous and are located throughout this State and the nation. Venue in the underlying case appears proper in several counties and, regardless of where in this State the underlying case is litigated, some parties will be inconvenienced. In a multiparty case where venue is proper in numerous counties, the burden of demonstrating that a transferee venue is significantly more convenient for the parties and the witnesses is great. The materials before us do not demonstrate that the defendants established that Jefferson County is a significantly 51 1190423 more convenient venue such that it overcomes the deference given to the plaintiffs' selected venue. Therefore, the trial court did not exceed its discretion in refusing to transfer the underlying case, and the defendants have not demonstrated a clear, legal right to transfer of the underlying case based on the convenience of the parties. B. Interest of justice. The defendants maintain that the interest of justice requires transfer of the underlying action to Jefferson County because, they say, Jefferson County has a strong connection to the underlying action and Conecuh County's connection is weak. " '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 plaintiff's forum with the action." Ex parte First Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911 (Ala. 2008).... Further, in examining whether it is in the interest of justice to transfer a case, we consider "the burden of piling court services and 52 1190423 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).... ".... "Our forum non conveniens analysis under the interest-of-justice prong, however, 'has never involved a simple balancing test weighing each county's connection to an action.' Ex parte J & W Enters., LLC, 150 So. 3d 190, 196 (Ala. 2014). Rather, to compel a change of venue under this prong, the underlying action must have both a 'strong' connection to the county to which the transfer is sought and a 'weak' or 'little' connection to the county in which the case is pending, which necessarily depends on the specific facts of each case. Id.; see also Ex parte Elliott, 254 So. 3d 882, 886 (Ala. 2017)('Even accepting Allstate's contention that Montgomery County has a "strong" connection to this action, we note that Allstate must also demonstrate that Lowndes County has a "weak" or "little" connection to the action.')." Ex parte Tyson Chicken, 291 So. 3d at 482-83. Typically, a factor in the strength-of-connection analysis that receives considerable weight but that is not the only factor to be considered is the location of the injury because of 53 1190423 " '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 the 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 Allen, [Ms. 1190276, June 5, 2020] ___ So. 3d ___, ___ (Ala. 2020). However, in litigation that involves plaintiffs from across this State, the location of the injuries may be numerous counties and each of those counties may have a strong connection to the litigation. Therefore, as when considering the convenience of the parties, for the deference given to the plaintiff's selected venue to be overcome in a multiparty, complex case where venue is proper in numerous counties, the burden of demonstrating that the interest of justice requires transfer to the proposed transferee forum is great and the determination must be made on a case-by-case basis. The defendants contend that the submitted evidence demonstrates that many of the plaintiffs' alleged injuries and damages were incurred in Jefferson County because four of the hospitals involved in the litigation operate in Jefferson County; because those four hospitals have a large 54 1190423 patient capacity, had large numbers of hospitalization events related to opioids; and because a significant number of the top opioid prescribers are located in Jefferson County. Thus, the defendants reason that, because a significant amount of the alleged uncompensated costs alleged to have resulted from the opioid epidemic were incurred in Jefferson County, Jefferson County's connection to the litigation is strong. The defendants further argue that the evidence indicates that Conecuh County's connection to the underlying case is weak. They observe that the submitted evidence indicates that only Gilliard Health Services, a corporate entity, has its principal office in Conecuh County and that only Evergreen Medical Center operates in Conecuh County. Consequently, the defendants reason that with only two plaintiffs having any nexus to Conecuh County, its connection to the litigation is weak. Additionally, the defendants insist that the evidence supports a finding that Jefferson County, with its larger number of specialized division judges and greater financial resources, is much better equipped to manage the complexities of this litigation with its 17 plaintiffs, their 21 hospitals, and numerous national defendants, than is Conecuh County's sole circuit judge, who also 55 1190423 presides over Monroe County and handles all matters of circuit court jurisdiction in both counties constituting the circuit. The defendants contend that this litigation will place an extraordinary burden on Conecuh County and its inhabitants and litigants who rely solely on the Conecuh Circuit Court and that that burden substantially outweighs Conecuh County's limited interest in entertaining the litigation. Based on the foregoing, the defendants urge that Jefferson County has a great interest in adjudicating this action and contends that Jefferson County's interest in the underlying case is directly proportionate to the burden it would bear in litigating it. The plaintiffs maintain that Conecuh County's connection is not weak or tenuous in light of the evidence indicating the oversaturation of opioids in Conecuh County, including the significant number of doses of naloxone that have been administered in Conecuh County, and Conecuh County's hospitalization information. Consequently, the plaintiffs insist that the citizens of Conecuh County have an interest in having this action decided in their county. The plaintiffs admit that Jefferson County has more judges than does Conecuh County, but they note that Jefferson County adjudicates significantly more cases. 56 1190423 Additionally, the plaintiffs observe that the trial court was in the best position to determine whether this multiparty, complex litigation would be too burdensome for the Conecuh Circuit Court's judicial resources. After reviewing the arguments and the submitted materials, we conclude the trial court did not exceed its discretion in denying the defendants' motion for a change of venue because the defendants did not satisfy the heavy burden of demonstrating that the interest of justice requires transfer of this multiparty, complex litigation from Conecuh County to Jefferson County. Here, the evidence indicates that both Conecuh County and Jefferson County have strong connections to this litigation. The citizens of Conecuh County have an interest in this litigation, and the trial court was in the best position to determine the burden on Conecuh County's judicial resources that a multiparty, complex litigation like this one will cause. Therefore, the defendants have not demonstrated that they are entitled to mandamus relief in this regard. Conclusion 57 1190423 Based on the foregoing, the defendants have not demonstrated a clear, legal right to transfer of the underlying case from Conecuh County to Jefferson County. Therefore, we deny the petition. PETITION DENIED. Wise, Mendheim, and Stewart, JJ., concur. Parker, C.J., and Bryan, J., concur specially. Shaw and Sellers, JJ., dissent. Mitchell, J., recuses himself. 58 1190423 BRYAN, Justice (concurring specially). A defendant seeking a transfer under the doctrine of forum non conveniens must establish that the transfer is warranted based on either the convenience of the parties or the interest of justice. Ex parte Tyson Chicken, Inc., 291 So. 3d 477, 480 (Ala. 2019). A defendant seeking a transfer based on the interest of justice must establish that the action has both a "weak" or "little" connection to the county where the case is pending and a "strong" connection to the county where the transfer is sought. Id. at 482. In concluding that the interest-of-justice prong was not established in this case, the main opinion states that the Conecuh Circuit Court "was in the best position to determine the burden on Conecuh County's judicial resources that a multiparty, complex litigation like this one will cause." ___ So. 3d at ___ . Insofar as the main opinion may be read as suggesting that a county's ability to handle a complex case is a factor in determining whether the case has a weak (or strong) connection to that county, I note that such a factor does not appear to be relevant in our caselaw. Parker, C.J., concurs. 59 1190423 SHAW, Justice (dissenting). Based on the convenience-of-the-parties prong of the forum non conveniens doctrine found in Ala. Code 1975, § 6-3-21.1(a), I would grant the petition for a writ of mandamus and order this complex, multiparty litigation to be transferred from the Conecuh Circuit Court to the Jefferson Circuit Court. Therefore, I respectfully dissent. 60	December 31, 2020
254da3d4-366f-4cba-9d00-2acf8d4cd8e0	Ex parte K. C.	N/A	1191096	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1191096 Ex parte K. C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: K. C. v. State of Alabama) (Mobile Circuit Court: CC-18-6634.70; Criminal Appeals : CR-19-0344). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Bolin, J. - Parker, C.J., and Sellers, Mendheim, and Stewart, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
55a707ae-7229-421d-be55-52be75f26364	Ex parte Torrey Twane McNabb. PETITION FOR WRIT OF CERTIORARI TO THECOURT OF CRIMINAL APPEALS (In re: Torrey Twane McNabb v. State of Alabama)	N/A	1070429	Alabama	Alabama Supreme Court	REL: 02/22/2008 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, 2007-2008 _________________________ 1070429 _________________________ Ex parte Torrey Twane McNabb PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Torrey Twane McNabb v. State of Alabama) (Montgomery Circuit Court, CC-97-2541.60; Court of Criminal Appeals, CR-05-0509) LYONS, Justice. The petition for the writ of certiorari is denied. 1070429 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 Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. Cobb, C.J., recuses herself.	February 22, 2008
6d580807-8e7d-4ece-a5b7-4df13b468edf	Ex parte Damien Bernard Jones.	N/A	1190926	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1190926 Ex parte Damien Bernard Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Damien Bernard Jones v. State of Alabama) (Mobile Circuit Court: CC19-1569; Criminal Appeals : CR-19-0345). CERTIFICATE OF JUDGMENT WHEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Quashed. No Opinion. Bolin, J. - Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
10cd2857-36ed-4d9f-85f2-e008a1274fd1	Kathleen Hendrix, as administratrix of the Estate of Kenneth Morris Hendrix, deceased v. United Healthcare Insurance Company of the River Valley	N/A	1190107	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA November 20, 2020 1190107 Kathleen Hendrix, as administratrix of the Estate of Kenneth Morris Hendrix, deceased v. United Healthcare Insurance Company of the River Valley (Appeal from Etowah Circuit Court: CV-17-900732). CERTIFICATE OF JUDGMENT W HEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on November 20, 2020: Application Overruled. No Opinion. Sellers, J. - Bolin, Shaw, Bryan, and Mendheim, JJ., concur. Parker, C.J., and W ise, and Stewart, JJ., dissent. Mitchell, J., recuses himself. W HEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on September 18, 2020: Affirmed. Sellers, J. - Bolin and Mendheim, JJ., concur. Shaw and Bryan, JJ., concur in the result. Parker, C.J., and W ise, and Stewart, JJ., dissent. Mitchell, J., recuses himself. NOW , THEREFORE, pursuant to Rule 41, Ala. R . App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R . App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 20th day of Novem ber, 2020. Clerk, Supreme Court of Alabama	November 20, 2020
cb6f6c49-253d-4515-9e7a-5813a25cd190	Ex parte Luther G. Gray, Jr.	N/A	1200098	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200098 Ex parte Luther G. Gray, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Luther G. Gray, Jr. v. State of Alabama) (Jefferson Circuit Court: CC-18-1606, CC-18-1607, CC-18-1608; Criminal Appeals : CR-19-0315). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Mendheim, J. - Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
881e5723-68f9-4614-be03-282805fa7aeb	Alabama v. Two White Hook Wreckers et al.	N/A	1190180	Alabama	Alabama Supreme Court	Rel: December 11, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190180 ____________________ State of Alabama v. Two White Hook Wreckers and Two Red Rollback Wreckers, seized from Gary Lamar Smith, Jr., and Gary Lamar Smith, Sr. Appeal from Mobile Circuit Court (CV-19-902705) PER CURIAM. 1190180 The State of Alabama appeals from a temporary restraining order ("TRO") allowing Gary Lamar Smith, Jr., and SOS Towing, Inc. ("SOS"), the family business owned and operated by Smith, Jr., to recover seized personal property during the pendency of a forfeiture action. We reverse and remand. Smith, Jr., owns SOS, a towing business located in Mobile that he took over from his father, Gary Lamar Smith, Sr. SOS would sometimes tow vehicles for the Mobile Police Department; in September 2019, the Smiths were arrested in Mobile for alleged insurance fraud regarding that work. The City of Mobile alleged that the Smiths had committed fraud by charging insurance companies towing and storage fees that were greater than the maximum fees allowed under a city ordinance. The police seized three tow trucks owned by SOS and a tow truck owned by Smith, Sr., and used by SOS. The State later filed a complaint seeking the forfeiture of the four trucks. Smith, Jr., and SOS moved for a TRO or a preliminary injunction, seeking the return of the tow trucks during the pendency of the forfeiture action. The parties disagreed about whether Alabama's forfeiture statutes 2 1190180 provide the exclusive means of obtaining the return of seized personal property during forfeiture proceedings; that is the key dispute in this case. The State noted that, under § 28-4-287, Ala. Code 1975, a claimant seeking to possess a seized vehicle during a forfeiture proceeding "shall have the right to execute a bond in double the value" of the vehicle to obtain possession of the vehicle. The State argued that this provision is the exclusive means by which Smith, Jr., and SOS may obtain possession of the tow trucks during the forfeiture proceedings. However, Smith, Jr., and SOS disagreed and argued that the trial court could travel outside the statutory remedy by granting injunctive relief under Rule 65, Ala. R. Civ. P. Smith, Jr., testified that SOS needs the tow trucks to stay in business and that the approximate total value of the four tow trucks is $220,000, which would make the statutory bond $440,000. The State stipulated that the total value of the tow trucks is $96,500, which would make the statutory bond $193,000. The trial court concluded that § 28-4-287 does not provide the exclusive means for a claimant to obtain possession of seized property during forfeiture proceedings. Thus, the trial court considered Smith, Jr., 3 1190180 and SOS's arguments and evidence indicating that they are entitled to a TRO under Rule 65 ordering the return to them of the tow trucks. The trial court subsequently issued a TRO, ordering that the tow trucks be returned to Smith, Jr., and SOS during the pendency of the action.1 That is, the trial court determined that Smith Jr., and SOS would suffer immediate and irreparable injury without the entry of the TRO, that they had no adequate remedy at law, that they had at least a reasonable chance of success on the ultimate merits of the forfeiture case, and that the hardship imposed on the State by the TRO would not unreasonably outweigh the benefit accruing to Smith, Jr., and SOS. See Lott v. Eastern Shore Christian Ctr., 908 So. 2d 922, 927 (Ala. 2005) (discussing the elements of a TRO). The trial court concluded that the statutory bond provision does not provide an adequate legal remedy based on the court's finding that Smith, Jr., and SOS could not obtain the statutory bond despite their efforts to do so. The trial court did order Smith, Jr., and SOS to post a $5,000 bond to receive their tow trucks, and they did so. The tow 1Nothing in the record indicates why the tow truck owned by Smith, Sr., was returned to Smith, Jr., and SOS and not Smith, Sr. 4 1190180 trucks were returned pending the forfeiture action, and the State appealed. "The elements required for the issuance of a TRO are the same as the elements required for the issuance of a preliminary injunction." Lott, 908 So. 2d at 927. Accordingly, this Court has reviewed a trial court's decision on a motion for a TRO and a motion for a preliminary injunction in the same manner on appeal. See Miller v. Riley, 37 So. 3d 768, 775 (Ala. 2009). Generally, " '[t]he decision to grant or to deny a preliminary injunction [or TRO] is within the trial court's sound discretion. In reviewing an order granting a preliminary injunction [or TRO], the Court determines whether the trial court exceeded that discretion.' " Holiday Isle, LLC v. Adkins, 12 So. 3d 1173, 1175–76 (Ala. 2008) (quoting SouthTrust Bank of Alabama, N.A. v. Webb–Stiles Co., 931 So. 2d 706, 709 (Ala. 2005)). However, "[t]o the extent that the trial court's issuance of a preliminary injunction [or TRO] is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply. We find the rule applied by the United States Supreme Court in similar situations to be persuasive: 'We review the District Court's 5 1190180 legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion.' Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006) ...." Holiday Isle, 12 So. 3d at 1176. The dispositive issue in this case is whether the statutory double- value bond provision provides the exclusive means for the return of the seized tow trucks to Smith, Jr., and SOS during the pendency of the forfeiture action. If the bond provision provides the exclusive remedy, the injunctive relief granted by the trial court is unavailable. Because that issue presents a question of law, this Court's review is de novo. In 2014, the legislature passed the Alabama Comprehensive Criminal Proceeds Forfeiture Act, § 15-5-60 et seq., Ala. Code 1975. That comprehensive forfeiture act incorporates some preexisting statutory provisions to serve as procedures under the act: "Except as provided otherwise in this article, [i.e., § 15-5-60 through § 15-5-65,] the manner, method, and procedure for the seizure, forfeiture, condemnation, and disposition shall be the same as that set out in Section 20-2-93, [Ala. Code 1975,] and Sections 28-4-286 through 28-4-290, [Ala. Code 1975,] inclusive 6 1190180 ...." § 15-5-63, Ala. Code 1975. One of those incorporated provisions, § 20-2-93(h), Ala. Code 1975, provides, in pertinent part: "Except as specifically provided to the contrary in this section, the procedures for the condemnation and forfeiture of property seized under this section shall be governed by and shall conform to the procedures set out in Sections 28-4-286 through 28-4-290 ...." In turn, § 28-4-287 provides the key passage here: "Whenever a ... vehicle ... is seized ..., the defendant in the proceedings or the claimant of the property shall have the right to execute a bond in double the value of such property ...." The State argues that the double-value bond provision in § 28-4-287 is the exclusive method by which a claimant may obtain seized personal property during the pendency of a forfeiture action. Thus, the State argues, the trial court erred by traveling outside the statutory remedy and entering the TRO ordering the tow trucks to be returned to Smith, Jr., and SOS during the pendency of the action. Conversely, Smith, Jr., and SOS argue that § 28-4-287 does not provide the exclusive means of obtaining seized property and, thus, that the trial court was permitted to enter a TRO under Rule 65. For the reasons explained below, we agree 7 1190180 with the State. Because we find this issue to be dispositive, we pretermit the numerous other issues raised by the State. Rule 81(a), Ala. R. Civ. P., resolves the dispute in this case. Rule 81(a)(12) provides that the Alabama Rules of Civil Procedure apply to forfeiture proceedings "to the extent that the practice in such matters is not provided by statute." See, e.g., Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975) (citing Rule 81(a)(12) in noting that a proceeding to forfeit an automobile was controlled by the Alabama Rules of Civil Procedure insofar as the practice in such a proceeding is not provided by statute). Thus, we must determine whether the double-value bond provision in § 28-4-287 provides for the practice at issue here, i.e., the procedure for obtaining seized personal property during the pendency of a forfeiture action. Although there is not an Alabama decision directly on point, this case is analogous to United States v. Contents of Accounts, 629 F. 3d 601 (6th Cir. 2011), which concerns federal forfeiture law. As the United States Court of Appeals for the Sixth Circuit noted in that decision, federal civil-forfeiture cases are subject to the Supplemental Rules for 8 1190180 Admiralty or Maritime Claims and Asset Forfeiture Actions. Supp. R. A(1)(B), Fed. R. Civ. P. Under Supplemental Rule A(2), Fed. R. Civ. P., the Federal Rules of Civil Procedure also apply to such forfeiture cases "except to the extent they are inconsistent with these Supplemental Rules." Supplemental Rule G(8), Fed. R. Civ. P., incorporates 18 U.S.C. § 983(f) as the means to petition for the release of seized property in a forfeiture case. The court in Contents described the issue presented as one of "first impression": "[W]hether the exercise of preliminary injunctive relief under Rule 65[, Fed. R. Civ. P.,] to order the release of seized property would be 'inconsistent' with the procedure set out in Supplemental Rule G for the release of seized property, namely, a petition for release under § 983(f)." 629 F.3d at 606. The court concluded that there would be a conflict in that situation. The court in Contents noted that § 983(f) provides specific requirements that a claimant must meet to obtain the seized property. The court concluded that § 983(f) and Rule 65 are " 'inconsistent' in that § 983(f) provides relief under much more narrow circumstances than potentially permissible under Rule 65." 629 F.3d at 608. Further, the 9 1190180 court noted that Supplemental Rule G also states that " '[t]o the extent that [Supplemental Rule G] does not address an issue ... the Federal Rules of Civil Procedure also apply.' " Id. Thus, the court observed, "it is only where Rule G does not address an issue that the Civil Rules set the procedure governing forfeiture actions." Id. The court then stated that "[i]t is unclear how Rule G, which specifically invokes § 983(f) as the mechanism to 'Petition to Release Property,' does not 'address' the issue of obtaining the release of seized property." Id. Rule 81(a), similar to the supplemental rules addressed in Contents, provides that the Alabama Rules of Civil Procedure govern forfeiture proceedings "to the extent that the practice in such matters is not provided by statute." Section 28-4-287, similar to the statutory provision in Contents, specifically governs how a claimant may obtain possession of a seized vehicle during the pendency of a forfeiture proceeding: by "execut[ing] a bond in double the value of such property." That simple procedure is very different from the procedure required for obtaining a TRO under Rule 65. Section 28-4-287 plainly "provide[s]" the practice at issue here, i.e., the procedure for obtaining seized personal property 10 1190180 during the pendency of a forfeiture action. Thus, § 28-4-287 provides the exclusive means for obtaining seized personal property during the pendency of a forfeiture action, and injunctive relief under Rule 65 is unavailable as a means for a claimant to obtain such property. Accordingly, we must conclude that the trial court erred by entering a TRO ordering the four tow trucks to be returned to Smith, Jr., and SOS during the pendency of the action. Therefore, we reverse the judgment and we remand the case. REVERSED AND REMANDED. Parker, C.J., and Bolin, Shaw, Sellers, Mendheim, and Mitchell, JJ., concur. Wise, Bryan, and Stewart, JJ., concur specially. 11 1190180 BRYAN, Justice (concurring specially). I concur fully in the main opinion. As the main opinion notes, Rule 81(a)(12), Ala. R. Civ. P., provides that the Alabama Rules of Civil Procedure apply to forfeiture proceedings only "to the extent that the practice in such matters is not provided by statute." I must conclude that the procedural practice here -- the procedure for obtaining possession of seized property during the pendency of a forfeiture action -- is provided for by the double-value bond provision found in § 28-4-287, Ala. Code 1975. Thus, a claimant may not obtain possession of seized property by way of injunctive relief under Rule 65, Ala. R. Civ. P. Therefore, as does the main opinion, I must conclude that the trial court erred in granting injunctive relief in this case. However, I find aspects of this case troubling. SOS Towing, Inc. ("SOS"), is a towing business, and the seizure of the four tow trucks deprived SOS and its owner Gary Lamar Smith, Jr., of an essential part of that business. The double-value bond provision in § 28-4-287 provides Smith, Jr., and SOS a means of obtaining possession of the tow trucks during the pendency of the forfeiture action. However, there is evidence 12 1190180 indicating that the requirement that Smith, Jr., and SOS post a bond in double the total value of the trucks presents a significant hurdle. Smith, Jr., and SOS submitted evidence indicating that their attempts to obtain the statutory bond were unsuccessful. The trial court, in evaluating whether Smith, Jr., and SOS had satisfied the requirements for injunctive relief under Rule 65 (relief that we conclude today is unavailable), found that evidence persuasive. The trial court stated: "Pursuant to the affidavits, [Smith, Jr., and SOS] have attempted to obtain a surety bond with the assistance of E-Z Insurance Agency, Inc., and with Petra Risk Management. The efforts of Petra are not described, but they are reported to have been unsuccessful. E-Z submitted requests to its two in-house providers, Old Republic and Worldwide. These companies declined to issue a surety bond. E-Z also sent requests to an undisclosed number of other companies seeking a bond. One company responded, but it required, in addition to the premium, that [Smith, Jr., and SOS] provide collateral equal to 100% of the bonded value in the form of a letter of credit with an approved bank. [Smith, Jr., and SOS] state they are not able to obtain a letter of credit because they have no income due to the fact that their tow trucks have been taken from them. [They] argue that they are in a 'Catch 22' situation. They cannot get a bond because they don't have their trucks; they cannot get their trucks because they can't get a bond. "At this point the Court is convinced that [Smith, Jr., and SOS] have made bona fide and reasonable efforts to obtain a 13 1190180 surety bond and that they have been unsuccessful in doing so, either because no company is willing to issue the bond, or because the conditions for collateral are impossible to meet. Specifically, the Court is persuaded that the State has taken away [Smith, Jr., and SOS's] ability to generate income, and that therefore [they] cannot meet the underwriting requirements of a bank to obtain the necessary letter of credit." The State submitted the affidavit of its attorney below, W. Christopher McDonough III, and that affidavit may suggest that Smith, Jr., and SOS's situation may not be as dire as the trial court's order indicates. McDonough testified that he contacted Bayside Surety Brokerage, Inc., a local broker that represents 28 sureties. McDonough further testified: "After explaining [the] nature of the underlying action, I inquired about the cost of obtaining a bond in this case. I was informed that the industry standard is $30.00 per $1,000.00 based on creditworthiness and underwriting, but was further advised that applicants with good credit can and do pay less than the industry standard." The parties disputed the total value of the four tow trucks. If the total value of tow trucks is $96,500, as the State stipulated, then the statutory bond would be $193,000. McDonough's affidavit suggests that a $193,000 bond could be obtained for a premium of $5,790 ($193,000 ÷ $1,000 x $30 14 1190180 = $5,790). It is unclear whether Smith, Jr., and SOS are in a position to pay such a premium. The financial burden that Smith Jr., and SOS actually face in obtaining the statutory bond is unclear. However, there is evidence indicating that obtaining the statutory bond presents a considerable challenge for them and that, without the use of the tow trucks, SOS will go out of business. Smith, Jr., testified that "[t]he seizure of the tow trucks has effectively shut down SOS .... Unless the tow trucks are immediately returned, SOS ... will be out of business, and will be forced to permanently close." I question whether the legislature, in passing the bond provision, envisioned a situation in which the existence of a small business was threatened by the business's struggles to recover essential property before a court finally decides the fate of the property in a forfeiture action. It is unclear how the forfeiture case and the criminal case against Smith, Jr., will be resolved; it is possible that Smith, Jr., may ultimately prevail in those cases but nevertheless lose his business if he cannot obtain the necessary statutory bond. 15 1190180 It appears that the tow trucks were seized pursuant to a warrant issued under Rule 3.8, Ala. R. Crim. P. A warrant may be issued under Rule 3.8 if, among other reasons, "there is probable cause to believe that the property sought ... [w]as or is expected to be used as the means of committing or attempting to commit any offense under the laws of the State of Alabama or any political subdivision thereof." That is a relatively light burden on the seizing authority. However, in some cases, the double- value bond provision may create a heavy burden on businesses and business owners trying to recover seized property that is essential to their business, before their case is even adjudicated. The evidence here seems to suggest that this is one of those cases. Although I must conclude that the law requires the result reached by the main opinion, the legislature may want to consider if that is the result it anticipated in adopting the double-value bond provision. Wise and Stewart, JJ., concur. 16	December 11, 2020
77a0f05d-f3be-4498-9860-d32555973233	Regina D. Hannah v. Michael J. Naughton, M.D., Michael J. Naughton, M.D., Ph.D., LLC, Terisa A. Thomas, M.D., and Terisa A. Thomas, M.D., P.C.	N/A	1190216	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1190216 Regina D . Hannah v. Michael J. Naughton, M .D., Michael J. Naughton, M .D., Ph.D., LLC, Terisa A . Thomas, M .D., and Terisa A . Thomas, M .D., P.C. (Appeal from Etowah Circuit Court: CV-07-900185). CERTIFICATE OF JUDGMENT WHEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on December 11, 2020: Application Overruled. No Opinion. Bolin, J. - Parker, C.J., and Sellers, Mendheim, and Stewart, JJ., concur. WHEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on September 25, 2020: Affirmed. Bolin, J. - Parker, C.J., and W ise, Sellers, and Stewart, JJ., concur. NOW , THEREFORE, pursuant to Rule 41, Ala. R . App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R . App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
bdcf3c58-2fa7-4e25-acf6-32d2dd6a576e	In re Estate of Segrest	N/A	1190676	Alabama	Alabama Supreme Court	Rel: December 4, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2020-2021 ____________________ 1190676 ____________________ Robert Segrest, Jr. v. Patricia Segrest, as personal representative of the Estate of Robert C. Segrest, deceased Appeal from Macon Circuit Court (CV-19-007) BOLIN, Justice. 1190676 Robert Segrest, Jr., appeals the Macon Circuit Court's judgment dismissing his petition to contest the validity of the will of Robert C. Segrest.1 We reverse and remand. Facts and Procedural History On November 15, 2018, Robert C. Segrest, a resident of Macon County, executed a will. In his will, Robert bequeathed to his wife, Patricia Segrest, a defeasible life estate in his real property. That bequest was defeasible because Robert provided that should Patricia leave the property for a period of more than 6 months the real property would pass to his son, John Paul Segrest. Robert also left certain personal property, but no real property, to his son, Robert, Jr. Robert died on November 24, 2018. On January 22, 2019, Patricia filed in the Probate Court of Macon County a petition for probate of Robert's will and an accompanying 1Robert, Jr., named as appellees the "Estate of Robert C. Segrest, Patricia Segrest, and John Paul Segrest." We note that John Paul is identified as an "an interested party" in the will contest. However, the only issue before this Court involves the motion to dismiss filed by Patricia, in her capacity as personal representative of Robert C. Segrest's estate. We have restyled the appeal accordingly. 2 1190676 petition for issuance of letters testamentary to herself, as the personal representative appointed in Robert's will. In her petition for probate, she listed as Robert's next of kin: herself, Robert's widow; Robert, Jr., a son; and John Paul Segrest, a son. On March 7, 2019, the probate court admitted Robert's will to probate and granted letters testamentary to Patricia, the personal representative. On April 26, 2019, Robert, Jr., filed in the probate court a "Notice of Intent to file Will Contest." In the notice, Robert, Jr., asserted his intent to contest Robert's will in the circuit court; advised Patricia, as the personal representative of Robert's estate, not to sell or distribute any real property in Robert's estate until further notice; and, provided notice of his intent to contest Robert's will to any bona fide purchasers of the property in Robert's estate. On April 30, 2019, Robert, Jr., filed in the Macon Circuit Court a petition to remove the administration of Robert's estate from the probate court to the circuit court. The petition was captioned and designated as being "In the Circuit Court of Macon, County"; stated the title of the case as "In Re: the Estate of Robert C. Segrest, [Decedent]"; and was accompanied by a filing fee in the amount of $278.00. The clerk 3 1190676 designated the case with circuit court case number, CV-19-007. In the petition for removal, Robert, Jr., alleged that he had a vested interest in the administration of Robert's estate, that no final settlement or proceedings in preparation of a final settlement had occurred in the probate court, and that the circuit court could better handle the administration of Robert's estate. On that same day, the circuit court entered an order removing the estate from the probate court to the circuit court and ordered "the judge of probate to transmit to the circuit court the file and all papers in connection with the probate" of Robert's estate. On May 7, 2019, Robert, Jr., filed in the circuit court a "Petition to Contest Validity of Decedent's Will." The petition was captioned and designated as being "In the Circuit Court of Macon County, Alabama"; stated the title of the case as "In Re: estate of Robert C. Segrest, Decedent"; and set forth the pending circuit court estate-administration case number, CV-19-007. It does not appear that Robert, Jr., paid an additional filing fee when he filed this petition to contest the will. In the petition, Robert, Jr., stated that he was Robert's son and that he brought 4 1190676 the will contest pursuant to § 43-8-199, Ala. Code 1975. Robert, Jr., asserted: "1. [Robert] died in the State of Alabama on 11-24-2018 in Macon County, Alabama. "2. At the time of the [Robert's] death, your petitioner was a resident of the State of Alabama residing in Macon County for more than 6 months preceding [Robert's] death. The other interested parties in this matter are John Paul Segrest (son) and Patricia Segrest (widow), the appointed representative. The 'proponent' is Patricia Segrest. "3. This case [-- the administration of Robert's estate --] was removed to the circuit court on 4-30-2019. "4. The writing purporting to be [Robert's] last will and testament was admitted to probate in the Probate Court of Macon County, Alabama, on March 7, 2019. "5. The will which was admitted to probate court upon which letters testamentary were issued is due to be deemed invalid." (Emphasis added.) Robert, Jr., maintained that the will is invalid because, he said, at the time Robert executed the will Robert was the subject of "much undue influence" by Patricia and lacked testamentary capacity as a result of his failing health and strong medications. The petition was signed by counsel for Robert, Jr. 5 1190676 On May 13, 2020, Robert, Jr., filed a "Petition for Orders to Personal Representative," asking the circuit court to order Patricia, among other things, not to distribute any of the assets in Robert's estate. On June 17, 2020, the circuit court conducted a hearing to address the petition, and on June 19, 2020, the circuit court issued an order, stating that Robert, Jr., was Robert's son and prohibiting Patricia from selling, distributing, or encumbering the assets in Robert's estate. That same day, Patricia filed a motion, entitled "Executor's Motion to Reschedule Hearing." In her motion, Patricia asked that the hearing conducted on June 17, 2019, be "rescheduled." She set forth the following grounds: "1) Letters Testamentary were issued to Patricia Segrest by the Probate Court of Macon County on March 7, 2019. "2) On April 30, 2019, a petition for removal of estate from probate court was filed [in the circuit court] on behalf of [Robert, Jr.], and this Court entered its order the same date removing administration of the estate to circuit court. "3) On May 7, 2019, a petition to contest validity of [Robert's] will was filed ... on behalf of [Robert, Jr.]. "4) On May 13 2019, a petition for orders to personal representative was filed ... on behalf of [Robert, Jr.], and the court entered an order on the same date setting that motion for hearing on June 17, 2019. 6 1190676 "5) Neither Patricia Segrest, as executor of the estate of [Robert], nor [her] counsel were given notice of the setting of the matter for hearing." (Emphasis added.) Patricia also filed a document, entitled "Executor's Motion to Alter, Amend or Vacate Order to Personal Representative Dated June 19, 2019," asking the circuit court to vacate its June 19, 2020, order because, she said, she did not receive notice of the petition and hearing and asking the court to add her, as the personal representative of Robert's estate, as a party to the proceedings removed from the probate court. In her motion, Patricia acknowledged that on May 7, 2019, Robert, Jr., had filed a petition contesting the validity of Robert's will. On June 20, 2019, the circuit court issued an order granting Patricia's motion to vacate the order issued on June 19, 2019, and setting a hearing to address the matter. On July 26, 2019, after conducting a hearing, the circuit court entered an order requiring Patricia to submit an inventory and prohibiting Patricia "from selling, encumbering, or transferring any interests in the real estate along with any and all other 7 1190676 personal property or intangible assets of [Robert's] estate, without prior approval of the court." On July 30, 2019, Robert, Jr., filed a motion to appoint a special process server pursuant to Rule 4(i)(B), Ala. R. Civ. P., to obtain service of process on Patricia and John Paul "in the heretofore filed contest of will." On August 1, 2019, the circuit court appointed a special process server. The circuit court's order showed the title of the case as "Segrest, Robert C. v. Defendant" and set forth the circuit court estate- administration case number, CV-19-007. On September 16, 2019, Patricia, as personal representative of Robert's estate, filed a motion to dismiss the will-contest petition filed by Robert, Jr. In her motion, Patricia argued that, because, she said, Robert, Jr., had not complied with the statutory requirements for filing a will contest after an estate had been admitted to probate, the jurisdiction of the circuit court had not been invoked over the will-contest action and that, therefore, the petition was due to be dismissed. She maintained that, because Robert, Jr., filed his petition after Robert's will had been admitted to probate and because no will contest had been filed in the 8 1190676 probate court, § 43-8-199 provided the only means for commencing a will contest. She then directed the court to § 43-8-199, which provides that, after a will has been admitted to probate, a person can file a complaint in the circuit court in the county in which the will was probated, contesting the validity of a will within six months after the admission of the will in probate court. She asserted that the "petition to contest the validity of the Last Will and Testament of Robert C. Segrest was not filed as a separate proceeding ..., nor was it filed prior to the probate of the will in probate court, and is due to be dismissed." (Emphasis added.) She reasoned that because Robert, Jr., did not file a will-contest action in the circuit court, i.e., initiate a direct, original action, separate from the case administrating Robert's estate, within six months after the admission of Robert's will to probate, the circuit court did not have jurisdiction over the case. She argued: "13.) Subject-matter jurisdiction cannot be waived. In McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017), the Supreme Court of Alabama stated: " 'Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the 9 1190676 appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So. 3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on December 29, 2016, is void and would not support an appeal. MPQ, 78 So. 3d at 394 (" 'A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' " (quoting Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App. 2008))).' "14.) In Steven Christopher Jones v. Tammy Brewster and Jeffery Eugene Brewster, Supreme Court of Alabama, March 15, 2019, [282 So. 3d 854] the Court stated: " 'In a will contest, the subject-matter jurisdiction of both the probate court and the circuit court is statutory and limited. Kaller v. Rigdon, 480 So. 2d 536, 539 (Ala. 1985). In a long line of cases, this Court has held that strict compliance with the statutory language pertaining to a will contest is required to invoke the jurisdiction of the appropriate court.' "15.) The current case pending before the circuit court is a removal of the administration of the estate from the probate court to the circuit court, filed after the will was admitted to probate. There has been no original will contest filed with the circuit court within the six-month period invoking the 10 1190676 statutory subject-matter jurisdiction of the circuit court. The 'contestant' in this case is attempting to invoke the jurisdiction of the circuit court by motion in this case where he has asked the circuit court to administer probate of the will. There has been no original proceeding filed and this Court lacks subject- matter jurisdiction. "16.) This court lacks subject-matter jurisdiction because no original complaint has been filed with the circuit court within the required six-month period as required by statute and is due to be dismissed." On October 15, 2019, Robert, Jr., filed a motion for default judgments against Patricia and John Paul Segrest based on their failure to answer his petition contesting the validity of Robert's will. That motion was also filed in the circuit court estate-administration proceeding, case no. CV-19-007. On October 24, 2019, Patricia filed a response to the motion for a default judgment. That response states: "1. Patricia Segrest was appointed Executor of the Estate of Robert C. Segrest by the Probate Court of Macon County, Alabama, and Letters Testamentary [were] issued on March 7, 2019. "2. The six-month statutory period for filing claims against the estate has expired. 11 1190676 "3. A Petition to Contest the Validity of Decedent’s Will was filed in this proceeding (the administration of the Estate of Robert C. Segrest) on May 7, 2019. No new proceeding was filed within the six-month statutory period. "4. The Executor of the Estate filed a Motion to Dismiss the purported will contest on September 16, 2019, and this Honorable Court scheduled a hearing on all pending motions on December 18, 2019." On November 26, 2019, Robert, Jr., filed a reply, arguing that an original action, separate from the case administering Robert's estate, did not need to be created for the circuit court to have jurisdiction over the will contest. He reasoned that, because the circuit court had already assumed jurisdiction over the entirety of Robert's estate with the entry of its order removing the administration of the estate from the probate court to the circuit court, the filing of a petition contesting Robert's will in the case administering Robert's estate had invoked the circuit court's jurisdiction to determine the validity of the will. In that reply, he asserted: "2. As to the substantive merits of the allegations brought before this court, it appears clearly from the record that the only minute way this court could dismiss this will contest is to say that no type of allegations have been filed in the Circuit Court in conformity with Alabama Code [1975,] § 12 1190676 43-8-199 -- 'Contest in circuit court after admission to probate -- Generally. Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.' "While the motion to dismiss is ambiguous, it seems that the movant is implying that no contest has been filed in the Circuit Court. It could be further assumed arguendo that the movant is saying that only a distinctly separately filed lawsuit in the Circuit Court is the only proper way of filing a will contest. The case was properly removed to the Circuit Court for administration. The movant's motion clearly states that this court has proper jurisdiction of the matter as such. The only semblance of an argument that the movant has is that a separate action was not filed within the 6-month statutory period for filing a will contest. ... "The Alabama statutes are not specifically clear on this point. In the case before this court a verified petition of will contest was indeed filed timely. This the record clearly reflects! The movant is wrongly stating that this court does not have subject matter jurisdiction of this will contest. This is entirely outside of the holding of all the Alabama cases. In this case, a complaint in the form of a verified petition to contest the will was indeed timely filed. It appears that the movant is stating that only a separately filed action under another case number is sufficient to meet requirements of § [43-8-]199. This is simply not the case. ... [T]he Alabama Supreme Court [has] held ' "the filing of a petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court's acquisition of jurisdiction over the administration of the estate pursuant to 13 1190676 § 12-11-41[, Ala. Code 1975]." ' McElroy v. McElroy, 254 So. 3d 872, 876 (Ala. 2017), quoting DuBose [v. Weaver], 68 So. 3d [814,] 822 (Ala. 2011) .... The Court in DuBose further noted that ' "the probate court does not have authority to transfer the administration of an estate to the circuit court; the authority to remove the administration of an estate from the probate court to the circuit court resides in the circuit court," ' McElroy v. McElroy, 254 So. 3d 872, 876 (Ala. 2017), quoting DuBose, 68 So. 3d at 817 n.4. ... The court in the case at bar properly ordered removal and accepted jurisdiction of the case. " In the probate court when a will contest is initiated, no separate case needs to be opened. The statute does not state that. Nor does any such Alabama case hold that. A complaint in the form of the 'Verified Petition' was properly and timely filed in this Circuit Court in which valid jurisdiction existed. The probate court in its original jurisdiction has the right and ability to proceed on the merits of the contest within its own administration. The movant in this case is apparently saying that this court does not have jurisdiction (like the probate court does in its administration) and ability to proceed because a separately filed case has not been filed. This is just not so. "In conclusion, the removal of the administration of the estate from the probate court was properly initiated in the Circuit Court of Macon County, Alabama pursuant to Ala. Code [1975,] § 12-11-41. Accordingly, '[o]nce the administration and settlement of an estate are removed from the probate court, the probate court loses jurisdiction over the estate, and the circuit court obtains and maintains jurisdiction until the settlement of the case.' Oliver v. Johnson, 583 So. 2d 1331, 1332 (Ala. 1991). A complaint in the form of the 'Verified Petition' was properly and timely filed in the circuit court in which valid jurisdiction existed. There is nothing in Alabama law that requires two separate actions be initiated in 14 1190676 the Circuit Court. Thus, the motion to dismiss should be dismissed because the Circuit Court’s jurisdiction was properly invoked by initiating the action in the Circuit Court." (Emphasis added.) On December 20, 2019, after a hearing had been conducted,2 the circuit court entered an order granting Patricia's motion to dismiss the will contest. The circuit court's order provided: "That Patricia Segrest was named the Executor of the Estate of Robert C. Segrest by the probate court of Macon County, Alabama on March 7, 2019. On April 30, 2019, Robert Segrest, Jr., filed a petition to remove the administration of said estate to the circuit court of Macon County, Alabama and this court entered its order granting the removal of the administration to circuit court on the same day. The case was designated case number CV-2019-007. Following the removal of the administration, Robert Segrest, Jr., filed a 'petition to contest validity of decedent's will' in CV-2019-007 on May 7, 2019. "[Patricia] filed her motion to dismiss, arguing that the statutory requirements for contesting the validity of a will had not been strictly followed and that the purported will contest was due to be dismissed. Robert Segrest, Jr., argues that the will contest was properly filed in the instant case because this Court had already assumed jurisdiction over the estate following the removal order. 2The record does not include a transcript of the hearing. 15 1190676 "The applicable statute in this matter is § 43-8-199, Ala. Code 1975. That code section provides as follows: " 'Contest in circuit court after admission to probate -- Generally. Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.' "(Emphasis added.) "In addressing this issue, the Alabama Supreme Court has recently held that 'after a will has been admitted to probate in the probate court, jurisdiction in the circuit court cannot be invoked pursuant to a transfer under § 43-8-198[, Ala. Code 1975].[3] Within six months following the admission 3Section 43-8-198 is entitled "Transfer of contest to circuit court; appeal from judgment of circuit court; certification of judgment, etc., to probate court" and provides: "Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be 16 1190676 of the will to probate, however, a person with an interest in the will may file a will contest directly in the circuit court pursuant to § 43-8-199, Ala. Code 1975 ...' Jones v. Brewster, [282 So. 3d 854 (Ala. 2019)]. "Here, the Last Will and Testament of Robert C. Segrest was admitted to probate on March 7, 2019. The record reflects that no complaint contesting the validity of the will was filed directly in the Circuit Court of Macon County within six months of the admission of the will to probate. "It is therefore ORDERED, ADJUDGED, and DECREED .... "1. That the motion to dismiss purported will contest is hereby GRANTED." (Capitalization in original.) made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within 42 days after the entry of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court." 17 1190676 On April 30, 2020, Robert, Jr., after he had filed a notice of appeal and this Court determined that a final judgment had not been entered,4 filed in the circuit court a motion to reconsider the dismissal of his will- contest petition. The motion showed the title of the case as "In Re: The Estate of Robert C. Segrest, Decedent," and set forth the case no. as CV- 19-007. In his motion, Robert, Jr., argued that a timely, valid will contest was filed in the form of a verified petition within the existing estate- administration case in the circuit court and that, therefore, dismissal was improper. Specifically, he argued: "[Robert, Jr.,] presumes that [Patricia] ... asserts the petition is not a 'separate lawsuit' and [Robert, Jr.,] should have filed a will contest action in addition to the case initiated in May of 2019. ... [Patricia states] that the petition fails as a complaint and that the contest of the will must be dismissed. At no time in any Alabama case, has the Supreme Court or any Civil Appeals Court suggested that § 43-8-199, requires two separate and distinct cases to be filed in the circuit court." On May 1, 2020, the circuit court denied the motion to reconsider. The circuit court also entered an order certifying the judgment as final under Rule 54(b), Ala. R. Civ. P. Robert, Jr., appeals. 4That appeal, case no. 1190372, was ultimately dismissed. 18 1190676 Standard of Review " 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.' "Newman v. Savas, 878 So. 2d 1147, 1148–49 (Ala. 2003). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co. v. Alabama Dep't of Transp., 937 So. 2d 56, 58 (Ala. 2006)[, abrogated on other grounds, Ex parte Moulton, 116 So. 3d 1119 (Ala. 2013)]." Daniel v. Moye, 224 So. 3d 115, 127 (Ala. 2016). Discussion The dispositive question in this appeal is whether the circuit court obtained jurisdiction over the will contest. Robert, Jr., after Robert's will had been admitted to probate and letters testamentary had been issued but before a final settlement of the estate was reached, moved in the circuit court for the removal of the administration of Robert's estate from the probate court to the circuit court, and he subsequently filed a petition 19 1190676 to contest the will in the circuit court case addressing the administration of Robert's estate. To determine the circuit court's jurisdiction in the will contest, we need to examine the commencement of the administration of the estate in the probate court, the removal of the administration of the estate from the probate court to the circuit court, and, crucially, the commencement of the proceeding challenging the validity of the will after the administration of the estate was removed from the probate court to the circuit court. A. Commencement of the administration of an estate in the probate court. Generally, when a person dies, the assets of his or her estate, both real property and personal property, devolve to the proper recipients pursuant to the provisions of § 43-2-830, Ala. Code 1975.5 The 5At a person's death, the decedent's real property devolves in accordance with the decedent's will or, in the absence of testamentary disposition, to the decedent's heirs or their substitutes. See § 43-2-830(a). The decedent's personal property devolves to the personal representative for distribution. See § 43-2-830(b). The decedent's real and personal property are subject to "homestead allowance, exempt property, family allowance, rights of creditors, elective share of the surviving spouse, and to administration." See § 43-2-830(c). 20 1190676 administration of an estate broadly refers to the process of making an inventory of estate assets; collecting, safeguarding, and managing the estate; paying the lawful debts of the decedent, as well as the fees incurred in and the costs of administration; and distributing the remaining property to either the heirs at law in cases of intestacy or beneficiaries taking pursuant to the terms of a valid will in testate proceedings. Put another way, the end game of the administration of an estate is the ultimate distribution of remaining estate assets pursuant to law and guided either by the terms of a decedent's valid will or by the laws of descent and distribution of this State. See § 43-8-1 et seq., Ala. Code 1975. If there is a will, a proceeding to administer the decedent's estate is initiated in the appropriate probate court by a person or entity designated in § 43-8-160, Ala. Code 1975, by a petition to probate the will, followed by the admission of the will to probate, and then by the issuance of letters testamentary from the probate court to the personal representative, who is determined by appointment in the decedent's will, or by law in default thereof. See § 43-2-1 et seq., Ala. Code 1975. In a filing to probate a will, the petitioner identifies the heirs at law of the decedent, as defined by 21 1190676 statute, and any other interested parties, and provides notice to those individuals of his or her actions. See § 43-8-164, Ala. Code 1975. In Knox v. Paull, 95 Ala. 505, 507, 11 So. 156, 157 (1891), this Court explained that the administration of an estate is an in rem proceeding:6 "A proceeding for the probate of a will, whether at common law or under the statute, is in the nature of a proceeding in rem, so that a judgment admitting the instrument to probate as the last will and testament of the decedent, until it is avoided in some mode prescribed by law, establishes, as against the whole world, the instrument as the law of descent and distributions governing the particular estate, unless it contravenes some rule of law or of public policy; and the judgment giving this operation to the instrument can not be collaterally impeached for irregularities which may have intervened in the proceedings after the jurisdiction of the court attached." This Court further explained in McCann v. Ellis, 172 Ala. 60, 69, 55 So. 303, 305 (1911): "It has been uniformly ruled by all English and American cases which we have examined that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in personam; that such proceedings are exclusively to determine the status of the res, and not the rights of the parties. Judgments or decrees as to the status of the res, in 6An action in rem is a proceeding that takes no notice of the owner of the property but determines rights in the property that are conclusive against all the world. 1 Am. Jur. 2d Actions § 29 (2016). 22 1190676 proceedings strictly in rem, are conclusive against all the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to the status, are only conclusive between the parties or privies to the suit." An order of a probate court admitting a will for probate is a final judgment. See Broughton v. Merchants Nat'l Bank, 476 So. 2d 97, 101 (Ala. 1985) (noting that, " '[w]here jurisdiction has attached, a decree of the Probate Court, within its sphere of jurisdiction, is as conclusive as that of any other court of general jurisdiction, and is aided by the same intendments of law' " (quoting White v. Hilbish, 282 Ala. 498, 502, 213 So. 2d 230, 234 (1968))). See also Ex parte Taylor, 252 So. 3d 637, 642 (Ala. 2017), in which we stated: "[A]n order dismissing a petition to probate a will is an appealable order. See Ala. Code 1975, § 12–22–20 ('An appeal lies to the circuit court or Supreme Court from any final decree of the probate court, or from any final judgment, order or decree of the probate judge....'); Smith v. Chism, 262 Ala. 417, 419, 79 So. 2d 45, 47 (1955)(citing the essentially identical predecessor statute to § 12–22–20 and noting that an order admitting a will to probate is an appealable order)." Here, when Patricia submitted by petition Robert's will for probate and an accompanying petition for letters testamentary to be issued to 23 1190676 herself as the appointed personal representative, the preliminary inception of the administration of Robert's estate commenced. The probate court's order admitting Robert's will for probate was issued on March 7, 2019, and constituted a final and appealable judgment. B. Removal of the administration of an estate from the probate court to the circuit court. Generally, probate courts have such jurisdiction as is granted by statute; they do not have equitable jurisdiction.7 Bryars v. Mixon, 292 7By local acts, the probate courts of Jefferson and Mobile Counties have concurrent jurisdiction with the circuit courts of said counties in estate administration. See Act No. 974, Ala. Acts 1961, and Act No. 1144, Ala. Acts 1971, respectively. By local constitutional provision, the probate courts of Shelby, Pickens, Houston, Baldwin, Bibb, Marengo, and Walker Counties have concurrent jurisdiction with the respective circuit courts in those counties. See Act No. 2003-123, Ala. Acts 2003; Amendment No. 836, Ala. Const. 1901, ratified in 2010 (Local Amendments, Pickens County, § 6.10); Act No. 2019-190, Ala. Acts 2019; Act No. 2019-229, Ala. Acts 2019; Act No. 2020-91, Ala. Acts 2020; Act No. 2020-173, Ala. Acts 2020; and Act No. 2020-96, Ala. Acts 2020, respectively. Because the judges of the probate courts in Pickens, Baldwin, Bibb, Marengo, and Walker Counties are not required to be attorneys, the concurrent jurisdiction between the probate courts and the circuit courts in those counties is limited to when an attorney is serving as probate judge. See also Bond v. Pylant, 3 So. 3d 852, 854 n. 3 (Ala. 2008)("The probate courts of Mobile, Jefferson, and Shelby Counties have concurrent jurisdiction with the circuit court to try will contests after a will has been admitted to probate based on local acts."); and Coleman v. Richardson, 421 So. 2d 113 24 1190676 Ala. 657, 699 So. 2d 259 (1974). An interested party, however, can request the removal of the administration of any estate from the probate court to the circuit court, see Kelen v. Brewer, 221 Ala. 445, 129 So. 23 (1930), allowing, in all counties, the introduction of equity principles to the decision-making process during the administration of the pending estate in such estates that have been properly removed to the circuit court. With regard to the process for removing a decedent's estate for administration from a probate court to a circuit court, we note, in general: "The probate court has both original and general jurisdiction over matters relating to the administration of an estate. § 12–13–1, Ala. Code 1975. The circuit court may acquire subject-matter jurisdiction over the administration of an estate if the administration of the estate is properly removed from the probate court to the circuit court pursuant to § 12–11–41[, Ala. Code 1975]. Section 12–11–41 provides: " 'The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, (Ala. 1982)(addressing the concurrent jurisdiction of the Mobile Circuit Court and the Mobile County Probate Court in hearing a will contest after a will has been admitted to probate). Thus, in those counties where the probate court has concurrent jurisdiction with the circuit court, the probate court has equitable jurisdiction. 25 1190676 administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distribute, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.' "In order to effect the removal of an administration of an estate from the probate court to the circuit court pursuant to § 12–11–41, the party seeking to remove the administration of the estate must file in the circuit court -- after the estate has been admitted to probate and letters testamentary or letters of administration issued by the probate court but before final settlement thereof -- a petition asserting that the petitioner is 'such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.' § 12–11–41; Taylor v. Estate of Harper, 164 So. 3d 542 (Ala. 2014); DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011); Ex parte Terry, 957 So. 2d 455 (Ala. 2006); and Ex parte McLendon, 824 So. 2d 700 (Ala. 2001). Once a party seeking to remove the administration of an estate from the probate court to the circuit court has satisfied the pleading requirements of § 12–11–41, the circuit court must enter an order removing the administration of the estate from the probate court to the circuit court. Ex parte McLendon, supra." 26 1190676 Daniel, 224 So. 3d at 128 (footnote omitted; first emphasis added). See also Allen v. Estate of Juddine, 60 So. 3d 852, 856 (Ala. 2010)(Bolin, J., concurring specially)("At the time of removal, the estate res is carried with the estate to the circuit court, which then takes sole jurisdiction of the in rem proceeding."). Thus, the removal of an estate, pursuant to § 12-11- 41, Ala. Code 1975, invokes the circuit court's jurisdiction over the ongoing administration of the estate, i.e., authorizes the circuit court to conduct the administration of the estate pursuant to statute and, in testate proceedings, pursuant to the terms and provisions of the will. The removal of an estate from the probate court does not provide the circuit court with authority to set aside the final, appealable judgment of the probate court admitting the will to probate, see Carpenter v. Carpenter, 200 Ala. 96, 75 So. 472 (1917), nor does it authorize the circuit court to entertain a challenge to the validity of that will unless that challenge is timely made and strictly commenced pursuant to statutory, post- admission-to-probate, contest provisions. See Simpson v. Jones, 460 So. 2d 1282 (Ala. 1984). 27 1190676 In Oliver v. Johnson, 583 So. 2d 1331, 1332 (Ala. 1991), this Court discussed the effect of the removal of the administration of an estate from the probate court to the circuit court and the circuit court's authority, stating: " '[A] probate court ... shall have ... power to grant letters testamentary, and of administration ... provided, that whenever the circuit court has taken jurisdiction of the settlement of any estate, it shall have power to do all things necessary for the settlement of such estate ....' ".... "Once the administration and settlement of an estate are removed from the probate court, the probate court loses jurisdiction over the estate, and the circuit court obtains and maintains jurisdiction [over the estate] until the final settlement of the estate. " '[T]he administration and settlement of a decedent's estate ... is a single and continuous proceeding; and when the administration of an estate is once removed from the probate court into a [circuit court], its jurisdiction becomes exclusive and efficient, and the court must operate to a final settlement governed by its own procedure.' "Hinson v. Naugher, 207 Ala. 592, 593, 93 So. 560, 561 (1922)." 28 1190676 (Some emphasis added.) Accordingly, the removal of the administration of a decedent's estate from the probate court to the circuit court simply substitutes a new tribunal with equitable powers for the former one that may or may not have such powers.8 Bonum v. Brewer, 217 Ala. 52, 114 So. 577 (1927). To invoke the subject-matter jurisdiction of the circuit court over the administration of an estate after the estate has been admitted to probate and letters testamentary or letters of administration issued by the probate court, but before the final settlement of the estate, and, as a basis for the circuit court to quicken its jurisdiction by an order for the removal of the administration of the estate, an interested movant must: 1. File a request in the circuit court for the removal of the administration of the estate from the probate court; 2. Assert that he or she is an "heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed"; and 8As previously noted, the probate courts of Jefferson, Mobile, Shelby, Pickens, Houston, Baldwin, Bibb, Marengo, and Walker Counties have equitable jurisdiction. The rest of the probate courts in this State do not. See supra note 7. 29 1190676 3. Assert that the circuit court can better administer the estate than the probate court. An examination of the petition for removal of the administration of Robert's estate from the probate court to the circuit court indicates that Robert, Jr., satisfied the requirements for petitioning the circuit court for the removal of Robert's estate from the probate court to the circuit court and that the circuit court's removal of the estate for administration from the probate court was proper. Satisfying the first factor, when Robert, Jr., filed his request for removal of the administration of the estate in the circuit court, Robert's will had been admitted to probate and letters testamentary had been issued. Second, although Robert, Jr., did not assert explicitly in his petition for removal his interest in Robert's estate as an "heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed," the petition provided that the petitioner's name was Robert C. Segrest, Jr.; that Robert C. Segrest, Jr., executed the request for removal; and that Robert C. Segrest, Jr., was requesting the removal of the administration of the estate of Robert C. Segrest, decedent, from the probate court to the circuit court. 30 1190676 Additionally, although the circuit court did not have before it the probate- court record when it issued its order of removal, the subsequently transmitted probate-court record includes Patricia's petition to admit Robert's will to probate, in which she identified Robert, Jr., as Robert's son. Therefore, because Robert's pleading, combined with the probate- court record later provided to the circuit court, indicates that Robert, Jr., is an heir at law to Robert's estate, the requirement that Robert, Jr., have an interest in the estate is satisfied. See Ex parte McLendon, 824 So. 2d 700, 704 (Ala. 2001)("We hold, therefore, that once a party seeking to remove the administration of an estate pursuant to § 12–11–41 makes a prima facie showing that she is an 'heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed,' the circuit court must order its removal, subject to retransfer upon a motion by the opponent of the transfer, and a finding by the circuit court that the party effecting removal lacked standing under the statute."); Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696, 698 (1924) ("[I]f in fact the petition is presented by one claiming to be a party in interest named in the statute, when in fact the petitioner had no such interest, it could 31 1190676 hardly be contended the order of removal would ... require the [circuit court] to proceed to administer the estate."). Lastly, Robert, Jr., asserted his belief that the circuit court was in a better position to administer Robert's estate. Because the petition for removal satisfied the requirements for removal of the administration of Robert's estate from the the probate court to the circuit court, the circuit court's removal of the case was proper, and its subject-matter jurisdiction over the administration of Robert's estate was properly invoked. C. Commencement of a circuit- court proceeding contesting the validity of the will after removal of the probate estate to the circuit court. A will-contest proceeding in the circuit court, with its statutory provisions for challenging the validity of a will, combined with the finality of the adjudication of "will or no will," constitutes an in rem proceeding. See § 43-8-200, Ala. Code 1975.9 See also Nesmith v. Vines, 248 Ala. 72, 9Section 43-8-200, Ala. Code 1975, is entitled "Contest in circuit court after admission to probate -- Parties; conclusiveness of judgment" and provides: "In the event a contest of the probate of a will is instituted in the circuit court, as is or may be authorized by 32 1190676 73, 26 So. 2d 265, 266 (1946)("The contest of a will by bill in chancery is a proceeding in rem, entirely of statutory creation, and is limited to determining the validity of the will. The issues are confined to the question of 'will or no will.' "). The United States Court of Appeals for the Fifth Circuit in Mitchell v. Nixon, 200 F.2d 50, 52 (5th Cir. 1952), considering its jurisdiction over a contest of a will that had been admitted for probate, opined: "[T]he provisions of [Title 61,] Section 64 of the Alabama Code [of 1940] [the predecessor to § 43-8-199, Ala. Code 1975,] ... provides that any interested person may contest the validity of a will within six months after its admission to probate, by a bill in equity in the Circuit Court. Section 65 [the predecessor law, all parties interested in the probate of the will, as devisees, legatees or otherwise, as well as those interested in the testator if he had died intestate, as heirs, distributees or next of kin, shall be made parties to the contest; and if there be minors or persons of unsound mind interested in the estate or in the probate of the will, they shall be represented by their legal guardian, if such they have; if they have no such guardian, the court shall appoint an attorney-at-law as guardian ad litem to represent their interest in the contest, and the final judgment in such contest proceedings shall be conclusive as to all matters which were litigated or could have been litigated in such contest; and no further proceedings shall ever be entertained in any courts of this state to probate or contest the probate of such will." 33 1190676 to § 43-8-200, Ala. Code 1975,] further provides that in the event a contest of the probate of a will is instituted in the Circuit Court, all interested parties shall be made parties to the contest; that the final decree in such contest proceedings shall be conclusive, and that thereafter no further proceedings shall ever be entertained in any courts of the state to probate or contest the probate of such will. These statutory provisions demonstrate that the contest of a will subsequent to its probate, is but an extension of the probate proceeding -- a proceeding not inter parties but in rem. McCann v. Ellis, 172 Ala. 6, 55 So. 303 [(1911)]; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885 [(1912)]; Ex parte Walter, 202 Ala. 281, 80 So. 119 [(1918)]; Newman v. Martin, 210 Ala. 485, 98 So. 465 [(1923)]; Nesmith v. Vines, 248 Ala. 72, 26 So. 2d 265 [(1946)]." Thus, in a will-contest proceeding, no one is trying to recover anything from anyone; rather, a will contest is a limited proceeding to determine whether the decedent died testate or intestate. The court's determination of a "will or no will" is a final judgment, subject to appeal, permitting the estate res to be distributed in accordance with the provisions of law and the will, if the contest is denied and the will is determined to be valid. Although a will contest involves a determination independent of the myriad of potential matters considered during the administration of an estate, the decision in a will-contest proceeding is an integral portion of 34 1190676 the judicial road map outlining the orderly administration and final settlement of the estate. Here, Robert, Jr., did not contest Robert's will in the probate court before the will was admitted to probate. Rather, he filed his petition contesting the validity of Robert's will in the circuit court after the will had been admitted to probate and, importantly in this case, after the circuit court had taken subject-matter jurisdiction over the transferred administration of Robert's estate. Thus, § 43-8-199, Ala. Code 1975, is the only applicable contest statute. Section 43-8-199 provides: "Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated." (Emphasis added.) This Court, in the late 19th century, eloquently explained the historical and informative reasons for authorizing a contest of a will that had previously been admitted to probate, stating: 35 1190676 "Those who were served with notice of the proceeding [for the probate of a will], but who did not contest the will in the Probate Court, are not bound by the judgment admitting the instrument to probate, as they would be by an ordinary judgment or decree rendered in a proceeding to which they were made parties by due service of process. Why? Because the statute provides in their favor a special mode of avoiding the effect of the judgment of the Probate Court admitting the instrument to probate. This is the provision: 'Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within five years after the admission of such will to probate in this state, contest the validity of the same by bill in chancery in the district in which such will was probated, or in the district in which a material defendant resides." Code, § 2000. "This statute has existed in this state since the year 1806, having undergone some change in phraseology, but not in meaning. Watson v. Turner, 89 Ala. 220[, 8 So. 2d 20 (1890)]; Aiken's Dig. 450. It seems that the original statute had been in force for a number of years before any provision was made, in the ordinary proceeding for the probate of a will, for notice to parties in interest. The earliest statute we have found which made provision for such notice was enacted in 1821. Toulmin's Dig., 887. It is urged in argument that the provision in the statute of 1806 for a contest by bill in chancery, having been enacted at a time when no notice of the application for probate was required, was intended to afford a remedy for those who had had no notice of the original proceeding for the probate of the will; and that the subsequent statute requiring notice to parties interested in such proceeding did not extend the scope of the remedy by bill in chancery, but still left that remedy for the benefit of those only who had failed to be notified of the proceeding for a probate. This contention involves such a restriction of the scope of a 36 1190676 contest by bill in chancery as would make it merely a new method of taking advantage of the failure to give notice to a party who was entitled to notice when the will was admitted to probate. As has been already stated, for such a mere irregularity in such a case the common law authorized the court granting the probate to set it aside on proper application. Sowell v. Sowell, [40 Ala. 243 (1866)]. The language of the statute does not indicate that the contest of a will by bill in chancery must be based primarily upon a mere irregularity in the original probate. When the statutes were first codified, both the provision for notice to parties in interest in the probate proceedings, and that for a contest of the will by bill in chancery, had long been in force. In view of the fact that there was already another remedy for setting aside a probate, in favor of one who had not received the notice to which he was entitled, it is to be presumed that, if it had been the intention to make the right to contest the will by bill in chancery dependent upon the existence of such mere irregularity in the probate proceeding, such intention would have been manifested in the language of the statute. No such intention is disclosed by the language used. The provision that 'any person interested in any will, who has not contested the same under the provisions of this article, may ... contest the same by bill in chancery,' standing side by side with a provision for notice to all persons interested in the estate, of any application for the probate of a will, clearly implies that the right to contest in chancery is not cut off by the probate of the instrument after notice to the party subsequently desiring to contest. It is perfectly plain that the statutory system of probating and contesting wills contemplates that the widow and next of kin shall have notice of any application for the probate of a will of the decedent, and that, before any instrument is admitted to probate as a last will and testament, all persons interested therein, or in the estate of the decedent if he died intestate, should have an opportunity to contest its 37 1190676 validity in the Probate Court. We think it is equally plain that it was the intention of the statute to afford the further opportunity of contesting the will in the Chancery Court within five years, to any person interested in the will, who either did not have, or did not avail himself of the opportunity to contest it in the Probate Court. "Good reasons may be suggested for affording this additional opportunity to contest the validity of a will which has been regularly admitted to probate after due notice to all parties in interest. The application to prove the will usually follows close upon the death of the testator. The application comes on for hearing as soon as the short prescribed terms of notice have expired. It must frequently happen that persons interested in the proceeding are wholly unable, while it is pending, to inform themselves as to the instrument offered for probate, or of the circumstances attending its execution. Facts affecting its validity may be developed afterwards, and the failure to discover them, or to obtain the evidence to prove them, may have been without the fault or any lack of diligence on the part of those interested in making a contest. In view of such contingencies, there is manifest propriety and justice in allowing a reasonable time after a formal and regular probate, for a contest of the validity of the will by one who did not make a contest in the Probate Court. We have no doubt that this was the intention of the statute." Knox v. Paull, 95 Ala. at 507-10, 11 So. at 157-58. In Carter v. Davis, 275 Ala. 250, 154 So. 2d 9 (1963), this Court noted that the predecessor statute to § 43-8-199 created a new substantive and independent right that is a statutory extension of the 38 1190676 right to contest a will in the probate court. See also Kaplan v. Coleman, 180 Ala. 267, 60 So. 885 (1912)(recognizing that a will contest in the circuit court is but an extension of the right to contest the will in the probate court). Moreover, the exercise of this substantive, independent right does not require that the administration of the estate be removed to the circuit court, a circumstance that, as stated above, is present in the instant proceeding. In Queen v. Harden, 924 So. 2d 712 (Ala. Civ. App. 2005), the contestant filed his will-contest complaint in the circuit court, but did not petition to remove the proceedings from the probate court to the circuit court within six months. The Court of Civil Appeals held that, because the contestant met the statutory requirements of § 43-8-199, the jurisdiction of the circuit court to hear the will contest was properly invoked. In support of its conclusion, the Queen court cited Christian v. Murray, 915 So. 2d 23 (Ala. 2005), which provides that a contestant must strictly comply with § 43-8-199 to invoke the circuit court's jurisdiction over a will contest. Judge Pittman, in his concurring opinion in Queen, emphasized that § 43-8-199 "allows a party to collaterally attack a 39 1190676 decision of a probate court to admit a will to probate by initiating a new proceeding in the appropriate circuit court." 924 So. 2d at 716 (first emphasis added). Under § 43-8-199, a will contest is commenced by the filing of a complaint in the circuit court within the limitations period. In Simpson v. Jones, 460 So. 2d at 1284–85, this Court stated, with regard to commencing a will-contest action under § 43-8-199: "Because will contest jurisdiction is statutorily conferred, proceedings under § 43–8–190 and § 43–8–199 must comply exactly with the terms of the applicable statute. 'It is familiar law in Alabama, the only way to quicken into exercise a statutory and limited jurisdiction is by pursuing the mode prescribed by the statute.' Ex parte Pearson, 241 Ala. 467, 469, 3 So. 2d 5, 6 (1941). Section 43–8–199 mandates that, in order to commence a valid contest of a will already admitted to probate, a person with an interest in the will file a complaint in circuit court and 'quicken' that court's jurisdiction of the contest. "We recognize that § 43–8–199 was enacted to provide an additional opportunity for contesting a will already admitted to probate. Carter v. Davis, 275 Ala. 250, 154 So. 2d 9 (1963). Furthermore, the dismissal of a complaint is not proper if the pleading contains 'even a generalized statement of facts which will support a claim for relief under [Ala. R. Civ. P.] 8' (Dunson v. Friedlander Realty, 369 So. 2d 792, 796 (Ala. 1979)), because '[t]he purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and 40 1190676 to renounce the technicality of procedure.' Crawford v. Crawford, 349 So. 2d 65, 66 (Ala. Civ. App. 1977). See, also, Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 244, 13 L.Ed.2d 152 (1964). "We cannot, however, ignore the ultimate goal of pleadings under the Alabama Rules of Civil Procedure: to provide fair notice to adverse parties of the claim against them and the grounds upon which it rests. Dempsey v. Denman, 442 So. 2d 63 (Ala. 1983); Carter v. Calhoun County Board of Education, 345 So. 2d 1351 (Ala. 1977). The liberality with which the Rules are construed, then, must be balanced against the requisites of fair notice to adverse parties and strict adherence to statutorily prescribed procedures. "Commencement of an action under § 43–8–199 ... is the commencement of a statutory, adversarial proceeding." (Some emphasis added.) In Simpson, the contestant did not comply with the substantive statutory pleading requirements set forth in § 43-8-199 for filing a timely will contest, nor did his pleading create an adversarial proceeding. Specifically, the contestant did not plead that he had an interest in the will, that the will had not been contested earlier, that the will had been admitted previously to probate, or that the pleading alleging the will contest was filed within six months of the probate of the will. Additionally, the contestant failed to identify the adverse parties to be 41 1190676 served with the complaint, which prevented the adverse parties from being informed of the action against them. This Court held that the failure to identify the adverse party "is an indication of the absence of a bona fide intention of immediate service," 460 So. 2d at 1285, and, consequently, the contestant's complaint was not a valid filing that could toll the limitations period for filing the will contest. This Court rejected the contestant's argument that the filing of a complaint alone constituted commencement of the action, reasoning that, if the filing of a complaint without identifying the adverse parties for immediate service constitutes commencement, the fundamental concept of repose within a limitations period would be violated because a contestant could extend the limitations period at will. 460 So. 2d at 1285–86. Although Bullen v. Brown, 535 So. 2d 76 (Ala. 1988), involved a will contest purportedly initiated in the probate court and later removed to the circuit court, the Bullen Court's discussion of § 43-8-199 and what constitutes a complaint that initiates a will contest is instructive. The Court stated: 42 1190676 "Jurisdiction to entertain a will contest is conferred upon both the probate courts and the circuit courts by statute. Forrester v. Putman, 409 So. 2d 773 (Ala.1981). "If a will has been probated, one who has not therefore contested it may do so within six months after it has been probated by filing a complaint in circuit court under § 43–8–199: " 'Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.' "It is clear that will contest jurisdiction, being statutorily conferred, must comply with the statutory language strictly in order to quicken jurisdiction of the appropriate court. Kaller v. Rigdon, 480 So. 2d 536 (Ala. 1985); Ex Parte Stephens, 259 Ala. 361, 66 So. 2d 901 (1953). "How is a will contested under § 43–8–199? Construing a substantially similar predecessor to this statute, this Court stated in Barksdale v. Davis, 114 Ala. 623, 22 So. 17 (1897) (overruled on other grounds, Alexander v. Gibson, 176 Ala. 258, 57 So. 760 (1912)): " 'It is manifest that these provisions [present § 43–8–190 (pre-admission contest) and present § 43–8–199 (post admission contest)] were introduced to change the policy of the law obtaining prior to their adoption, by requiring the contestant, by written procedure, to set forth the grounds upon 43 1190676 which he expects to contest the validity of the proposed will, and to confine the trial, after proof of the due execution of the will, to the issues which his allegations tender. The purpose of the change was that which underlies the law of pleading generally, -- that the parties may be certainly advised of the issues to be tried, and the court enabled to proceed intelligently in adjudicating their rights.... " 'Upon a contest of a will, when fraud or undue influence is relied upon, the burden is upon the contestant to prove it. The opposite party is only required to prove the due execution of the will according to the statute. It is as essential, therefore, that such party be informed, by distinct averments, of the facts constituting the fraud or undue influence, so as to be prepared to meet them, as that such information be so given to any party in any judicial proceeding; hence there can be no well-founded reason for holding that the legislature intended, when it required that the contest be in writing, and set forth the grounds relied on, that only a general statement of such grounds, conveying to the opposite party practically no information of value to him in the preparation of his cause, should be sufficient.' "(Emphasis added.) 114 Ala. at 629–30, 22 So. at 19. In Kaller, 480 So. 2d at 538–39, this Court discussed the requirements under § 43–8–198 for a 'demand' for a transfer at the time the contestant files his initial 'pleading.' That discussion is pertinent here: 44 1190676 " 'Rule 7(a), [Ala. R. Civ. P.], explains the nature of the term "pleading": "There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed." A motion, defined in Rule 7(b), [Ala. R. Civ. P.], as "an application to the court for an order," is not a pleading. Therefore, although he filed motions and papers with regard to the contest, because the proponent did not file a pleading at the same time he filed the motion to transfer, he did not comply with the procedures mandated by the statute. Since the statute was not exactly complied with, the circuit court lacked jurisdiction to try the contest. " '.... " 'The "initial pleading" for the contestant in a will contest is the filing of the contest itself in the probate court. See Summerhill v. Craft, 425 So. 2d 1055 (Ala.1982). This initial pleading is in the nature of a complaint. Hence, the proponent of a will must file an answer as his responsive pleading to that complaint.' " 535 So. 2d at 78-79 (bold emphasis added). The Court in Bullen concluded that the heirs at law did not file a complaint that initiated an adversarial proceeding. The Court noted that, 45 1190676 although the potential contestants informed the probate court in a motion for a continuance that the crucial issue was the validity of the will, they did not attack the validity of the will in the motion and, by failing to do so, did not properly initiate a contest of the will in the probate court. Additionally, when they moved for removal of the administration of the estate from the probate court to the circuit court, they did not attack the validity of the will in a pleading in the circuit court. Therefore, the Court observed that, because no pleading was filed that could be construed as a complaint alleging grounds for a will contest until after the six-month limitations period had expired, the limitations period had not ben tolled. The Bullen Court held that the circuit court did not have jurisdiction over the will contest because the contestants had not filed a proper complaint to contest the will. Additionally, it is worth noting that, in Noe v. Noe, 679 So. 2d 1057 (Ala. Civ. App. 1995), the Court of Civil Appeals rejected the proponent's argument that, because the will-contest complaint filed in the circuit court was a copy of the will-contest complaint filed in the probate court, the statutory requirements of § 43-8-199 were not satisfied. It was only after 46 1190676 the limitations period had expired that the proponent treated the filing in the circuit court as invalid. The Court of Civil Appeals opined: "Such an argument defies common sense and leads to unnecessarily punitive results for will contestants .... The statute does not require that a new or different complaint from the one filed in the probate court be filed in the circuit court so as to invoke jurisdiction pursuant to § 43-8-199." 679 So. 2d at 1058 (footnote omitted). Thus, to invoke the jurisdiction of a circuit court over a proceeding contesting the validity of the will after the will has been admitted to probate, the contestant must file a complaint in the circuit court within six months after the will is admitted to probate and that complaint must: 1. Allege that the contestant has an interest in the will; 2. Allege that the will has not been contested previously under other provisions of the law; 3. Allege that the will has been admitted to probate in Alabama; 4. Set forth grounds for challenging the will; and 5. Initiate an adversarial action by naming adverse parties upon whom service can be made and informing them of the allegations against them. 47 1190676 We now address (1) whether the petition to contest the validity of Robert's will filed by Robert, Jr., satisfies the substantive pleading requirements for a will contest pursuant to § 43-8-199, and, if so, (2) whether the pleading was, from a jurisdictional standpoint, properly filed in the circuit court. Applying the principles set forth in Simpson and Bullen, we conclude that Robert, Jr., satisfied the substantive pleading requirements for setting forth a complaint initiating an adversarial proceeding contesting the validity of Robert's will. First, Robert, Jr., satisfied the requirement that he plead that he is a person interested in the will when he stated in his petition that he is Robert's son. Although he did not plead that he is an heir at law to Robert's estate, as Robert's son, Robert, Jr., has a direct and equitable interest in Robert's estate. See Daniel, 224 So. 3d at 137 (recognizing that to satisfy the " 'any person interested in any will' requirement of § 43-8- 199, ' "a contestant of a will must have some direct legal or equitable interest in the decedent's estate, in privity with him, whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will" ' " (quoting 48 1190676 Evans v. Waddell, 689 So. 2d 23, 27 (Ala. 1997), quoting in turn Braasch v. Worthington, 191 Ala. 210, 213, 67 So. 1003, 1004 (1915))); Carter v. Davis, 275 Ala. 250, 154 So. 2d 9 (1963)(recognizing that a contest, pursuant to § 43-8-199, may be brought by any person who could have contested the will under § 43-8-190 but neglected to do so); and Stephens v. Gary, 565 So. 2d 73 (Ala. 1990)(recognizing § 43-8-199 is available to any person who could take by descent in case of intestacy.) Additionally, the circuit court, at the time Robert, Jr., filed his petition to contest the validity of Robert's will, had jurisdiction over the entire administration of Robert's estate10 and had before it the probate-court record that included Patricia's petition for the probate of Robert's will, listing Robert, Jr., as Robert's next of kin. Therefore, although Robert, Jr., did not plead 10We recognize that § 12-11-41.1, Ala. Code 1975, authorizes the circuit court to remand the administration of any estate that has been transferred to the circuit court by the probate court pursuant to § 12-11-41 when the circuit court finds that the removal was not proper; when the circuit court has issued a final order on all contested matters before it in the administration of the estate and the time for an appeal of the order has expired without an appeal being filed or, if an appeal has been filed, after the final adjudication of the appeal; or when all the interested parties request remand of the administration of the estate to the probate court. 49 1190676 specifically that he was an interested party, that defect was cured by facts evidenced in the record before the circuit court and did not foreclose the circuit court from obtaining jurisdiction over the will contest. We note that in Evans v. Waddell, 689 So. 2d 23 (Ala. 1997), this Court held that a complaint asserting will-contest claims that identified familial and business relationships between parties and set out the contestants' allegations against the will proponents and other defendants but did not describe how each, or any, of the contestants had a legal interest in will did not allege, as statutorily required, that any of the contestants had an interest in the will being contested. We observe, however, that the circuit court in Evans did not have the probate-court record before it and that, consequently, dismissal of the action was proper because it was not clear whether any of the contestants could have taken by descent and distribution in case of intestacy. Unlike the circuit court in Evans, the circuit court in this case had before it Patricia's assertion in her petition for probate of Robert's will that Robert, Jr., was Robert's next of kin. This assertion by Patricia establishes Robert's standing in the 50 1190676 circuit court to contest the validity of Robert's will and adequately distinguishes this case from Evans. Second, Robert, Jr., did not allege that Robert's will had not been contested previously. However, the circuit court had before it the entire contents of the probate-court record from which the circuit court could conclude that the will had not been contested previously. See Daniel, 224 So. 2d at 137-38. Indeed, the probate-court file included an earlier pleading filed by Robert, Jr., in the probate court providing notice of his intent to file a will contest in the circuit court. Because nothing in the record indicated that a previous contest had been filed regarding Robert's will, the absence of an express statement that Robert's will had not been contested previously did not prevent the circuit court from obtaining jurisdiction over the will contest. Third, regarding the requirement that the pleading allege that the will being contested has been admitted to probate in Alabama, Robert, Jr., satisfied this requirement by pleading: "The writing purporting to be [Robert's] last will and testament was admitted to probate in the Probate Court of Macon County, Alabama, on March 7, 2019." 51 1190676 As to the fourth requirement, Robert, Jr., set forth as grounds with factual assertions for challenging the will that Patricia exerted undue influence over Robert and that Robert lacked testamentary capacity when Robert executed the will. Therefore, Robert, Jr., satisfied the requirement that the pleading set forth grounds for the will contest. Fifth, a reading of the verified petition to contest the will indicates unequivocally that Robert, Jr., was initiating an adversarial proceeding. In Crawford v. Walter, 202 Ala. 235, 80 So. 73 (1918), this Court held that the designation of plaintiff and defendant are not required in a will contest. Here, the verified petition identifies Patricia and John Paul as other interested parties and specifically names Patricia as the proponent of the will. Additionally, in setting forth his grounds contesting the validity of the will, Robert, Jr., alleges specific conduct by Patricia that he says alienated Robert from Robert, Jr. Admittedly, the petition does not request that Patricia and John Paul be served with the petition. However, Patricia, in several of her pleadings in the circuit court, admits knowledge of the filing of a will contest by Robert, Jr. Furthermore, Robert, Jr., after filing his petition to contest the validity of Robert's will, did request the 52 1190676 circuit court to order service of the petition by a special process server. Therefore, the record does not support a finding that Robert, Jr., engaged in deception or delay. Considering the language in the petition to contest the validity of Robert's will and the record, it can be fairly inferred that Patricia had notice of the claims against her and the grounds upon which they rested. Thus, the circuit court's jurisdiction was not impeded in this regard. Balancing the requirement that a pleading provide fair notice to adverse parties and strict adherence to statutory pleading requirements against the liberality with which pleadings must be construed, we conclude that the petition to contest the validity of Robert's will constituted a complaint that satisfied the substantive pleading requirements of § 43-8-199.11 Therefore, the circuit court's jurisdiction was not impaired or impeded by a defect in the pleading. 11It appears that, when the petition to contest the validity of Robert's will was filed, it was identified improperly in the docketing system as a motion. However, the case-action summary and the averments by Patricia in several of her pleadings acknowledge that a will contest had been filed. 53 1190676 We now address the requirement in § 43-8-199 that the complaint be timely "filed" in the circuit court to invoke that court's jurisdiction. In Jones v. Brewster, 282 So. 3d 854 (Ala. 2019), this Court observed that, to satisfy the requirements for initiating a will contest in the circuit court under § 43-8-199, the complaint: (1) must be filed within six months of the admission of the will to probate and (2) must be filed directly in the circuit court. In this case, Patricia does not contest that Robert, Jr., filed his petition contesting the validity of Robert's will within the six-month limitations period. Robert, Jr., did not aver specifically in his petition that his petition was filed within six months of when the will was admitted for probate and in the same county in which the will was admitted to probate. However, the record indicates that Robert's will was admitted for probate in Macon County on March 7, 2019, and that Robert, Jr., filed his will- contest petition in the Macon Circuit Court on May 7, 2019. Accordingly, we conclude that this statutory requirement is fulfilled. Daniel, supra. 54 1190676 Patricia does, however, contend that Robert, Jr., did not file his will- contest complaint properly in the circuit court. Specifically, she insists that § 43-8-199 requires that an original action, separate and independent of the case administering Robert's estate, must be created to invoke the circuit court's jurisdiction over the will contest. In Queen, supra, the Court of Civil Appeals addressed the circuit court's jurisdiction over a will contest, pursuant to § 43-8-199, when the administration of the estate remains in the probate court. Unequivocally, in situations in which the administration of an estate remains in the jurisdiction of the probate court, the filing of a will-contest complaint in the circuit court accompanied by a filing fee creates an original, independent action and invokes the circuit court's limited jurisdiction over the will contest.12 Our caselaw, however, is not clear with regard to the circumstances presented here, i.e., the invocation of the circuit court's jurisdiction to 12In Opinion of the Clerk, No. 55, 49 So. 3d 1170, 1172 (Ala. 2009), the clerk of the Supreme Court opined that Rule 7, Ala. R. Jud. Admin., requires a filing fee for miscellaneous filings that create an original case, i.e., a filing that presents " ' "a state of facts which furnishes occasion for the exercise of jurisdiction of a court of justice." ' " 55 1190676 entertain a will contest filed in the circuit court after the circuit court has, by the removal from the probate court and transfer of the complete and entire administration of the estate, already obtained jurisdiction over all aspects of the administration of the estate. In other words, the question becomes: When the administration of an estate has been removed to the circuit court, properly invoking the circuit court's general jurisdiction over the estate, and subsequently a timely will contest is filed in the circuit court, can the circuit court's jurisdiction over the will contest be invoked by the filing of a complaint within the existing proceeding administering the estate? As previously observed, the administration of an estate and the contest of a will are both in rem proceedings. See Knox, supra, and Nesmith, supra. However, unlike the administration of an estate, the commencement of a will contest is the commencement of an adversarial proceeding. Simpson, supra. The proper filing of a § 43-8-199 will-contest complaint, in and of itself, invokes the circuit court's limited jurisdiction to consider the merits of the contest to the purported will and to render a final decision to an interested party who has not previously contested the 56 1190676 will as to whether the will is valid. It requires the adjudication of a single issue -- the validity vel non of the will -- making the proceeding a crucial component, when raised, to the circuit court's proper administration of the estate. Indeed, the determination of the validity of the will directly impacts both the administration of the testator's estate and the ultimate distribution of the estate res. Thus, a will contest filed in the circuit court, after the administration of the estate has already been removed properly to the circuit court, and the circuit court has therefore acquired jurisdiction over the in rem estate proceeding, is an integral part and parcel of the overall administration of the estate that is currently pending in the circuit court and falls within the umbrella of the circuit court's subject-matter jurisdiction over the estate. It is this "symbiotic" relationship between an estate-administration proceeding and a will contest that makes it logical that, after the case administering the estate has been removed properly from the probate court to the circuit court, a will-contest complaint filed in the circuit court, pursuant to § 43-8-199, may be initiated by either (1) a contest within the case administering the estate or (2) an original action, separate and independent of the case 57 1190676 administering the estate, should the contestant so choose. It is the removal of the administration of the estate to the circuit court before the will contest is filed in the circuit court that distinguishes this case from other cases that imply that a will contest must be a separate action. Therefore, we hold that, after the administration a decedent's estate has been removed to the circuit court, the circuit court's jurisdiction over a will contest filed pursuant to § 43-8-199 may be invoked by filing a complaint with the circuit clerk as an original action, separate and independent of the proceeding administering the estate,13 or, as herein, by filing the complaint with the circuit clerk as an adversarial proceeding when the circuit court has previously acquired subject-matter jurisdiction over the administration of the testator's estate through its removal from the probate court pursuant to § 12-11-41.14 To hold otherwise would place 13If the contestant chooses to create an original, independent action by filing the complaint separate from the administration of the estate, the contestant's complaint must be accompanied by a filing fee. See Rule 7, Ala. R. Jud. Admin. 14If the contestant chooses to file the will contest within the case administering the estate, the decision, as previously noted, rests within the administration of the estate and does not require a filing fee. See Opinion of the Clerk, No. 55, 49 So. 3d 1170 (Ala. 2009)(holding that a filing fee was required when a contempt motion was filed alleging that a 58 1190676 form over substance and thwart judicial economy, in addition to ignoring Rule 1(c), Ala. R. Civ. P., which mandates that the "rules shall be administered to secure the just, speedy and inexpensive determination of every action." Our holding today is in accord with will contests filed in the probate court in cases administering estates in those counties where the probate court is vested with equity jurisdiction, i.e., where a post-admission-to- probate will contest may also be filed in the same probate-court proceeding that is administering the estate. Here, the filing of a properly pleaded complaint by Robert, Jr., contesting Robert's purported will in the circuit court's case administering Robert's estate invoked the circuit court's jurisdiction to entertain the will contest. The circuit court erred in dismissing the will contest. Conclusion In this case, the administration of Robert's estate had been removed properly from the probate court to the circuit court. Therefore, the party had violated a portion of a final judgment, because the issues raised in the contempt motion were not a consideration in the original decision). 59 1190676 pendency of Robert's estate in the circuit court, in conjunction with the filing of the will contest in the case administering Robert's estate, invoked the circuit court's jurisdiction to determine the validity of Robert's will. Accordingly, the judgment of the circuit court is reversed, and this case is remanded for proceedings consistent with this opinion. REVERSED AND REMANDED. Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur. Sellers, J., concurs specially. 60 1190676 SELLERS, Justice (concurring specially). I concur in the main opinion. I agree that the Macon Circuit Court erred in dismissing the will contest filed by Robert Segrest, Jr., based on the circuit court's conclusion that Robert, Jr., was required to initiate a separate will-contest proceeding in the circuit court, even though the circuit court had acquired jurisdiction over the administration of the estate of Robert C. Segrest. When a circuit court issues an order removing an estate administration from the probate court, the circuit court acquires jurisdiction over the entire estate-administration process. During that process, numerous actions may be taken by various parties, including matters as simple as filing a claim for estate assets or as complicated as litigating a will contest. In my view, to promote efficiency and judicial economy, the better practice is to file will contests as part of the administration of the estate in the circuit court. I especially concur with the holding of the main opinion that the language of § 43-8-199, Ala. Code 1975, does not require the commencement of a new action to initiate a will contest after the administration of an estate has been removed to the circuit court. Rather, a will contest filed after an estate is removed can, 61 1190676 and in my view should, be commenced by the filing of a pleading, appropriately titled, in the same action in which the estate is being administered.15 15That said, I agree with the main opinion that a will contestant may, if he or she chooses to do so, initiate the will contest by the filing of a complaint in a new action, independent of the administration of the estate, in the circuit court. 62	December 4, 2020
054528b1-5d2d-40ba-b8e4-981952b52367	Ex parte J.W.	N/A	1200087	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA December 11, 2020 1200087 Ex parte J.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: J.W. v. Jefferson County Department of Human Resources) (Jefferson Juvenile Court: JU-17-1738.03; Civil Appeals : 2190388). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on December 11, 2020: Writ Denied. No Opinion. Parker, C.J. - Bolin, Sellers, Mendheim, and Stewart, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 11th day of Decem ber, 2020. Clerk, Supreme Court of Alabama	December 11, 2020
8874c391-2cf9-438f-ad8b-fd8460fbbceb	Ex parte Joseph H. Huffman.	N/A	1190782	Alabama	Alabama Supreme Court	IN THE SUPREME COURT OF ALABAMA November 13, 2020 1190782 Ex parte Joseph H. Huffman. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Joseph H. Huffman v. State of Alabama) (Autauga Circuit Court: CC-18-98; Criminal Appeals : CR-18-0925). CERTIFICATE OF JUDGMENT WHEREAS, the petition for writ of certiorari in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below was entered in this cause on November 13, 2020: Writ Denied. No Opinion. Mitchell, J. - Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY ORDERED that this Court's judgment in this cause is certified on this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s) of record in said Court. W itness my hand this 13th day of Novem ber, 2020. Clerk, Supreme Court of Alabama	November 13, 2020

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