Supreme Court of Alabama Slip Opinions

General Information

The Supreme Court generally releases opinions on Fridays. This page contains links to the full text of each opinion released this month, plus a list of all the cases decided each week, whether or not an opinion was released. If the case summary interests you, click on the name of the case and you should see the full text of the opinion, which you can save to your computer.

Elsewhere, we have included opinions and summaries of cases from the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals, and the United States Court of Appeals for the Eleventh Circuit.

February 6

Decisions Announced by the Supreme Court of Alabama on Friday, February 6, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Briarcliff Nursing Home, Inc. v. Turcotte, Nos. 1012193 & 1012195 (Ala. Feb. 6, 2004)
Summary: arbitration; wrongful death; Briarcliff Nursing Home, Inc., d/b/a Integrated Health Services at Briarcliff, and James Anthony Clements, the defendants in actions pending in the Shelby Circuit Court, appeal the denial of their motions to compel the plaintiffs David Turcotte, executor of the estate of Noella Turcotte, deceased, and Kyra L. Woodman, administratrix of the estate of Sarah Carter, deceased, to arbitrate their wrongful-death claims. The appeals were consolidated because they raise identical issues. Turcotte and Woodman separately sued Briarcliff and Clements for the alleged wrongful deaths of Noella Turcotte and Sarah Carter while Noella and Sarah were residents at a nursing home owned and operated by Briarcliff. Clements was the administrator of the nursing home at the time of Noella's and Sarah's deaths. (Briarcliff and Clements are hereinafter collectively referred to as "Briarcliff.") Briarcliff moved to compel arbitration on the ground that agents for Noella and Sarah had signed admission contracts that contained an arbitration provision. Turcotte and Woodman opposed the motions to compel arbitration on the grounds that neither of them, in their capacities as executor and administratrix, respectively, of the deceased estates had signed or had otherwise entered into the admission contracts and that the "fiduciary parties" who signed the admission contracts for Noella and Sarah while they were alive could not contractually affect the then nonexistent wrongful-death claims. Turcotte and Woodman also argued that the arbitration provision was a part of a contract of adhesion and was unconscionable. Turcotte and Woodman argued that, because the arbitration provision provides that disputes shall be resolved by arbitration administered by the National Health Lawyers Association ("NHLA"), this "dispute resolution procedure is 'unreasonably favorable' to the industry and 'is oppressive, one-sided [and] patently unfair' to the typical, aged nursing home resident." The admission contract relating to Noella is signed by David Turcotte in his capacity as "Fiduciary Party," and the admission contract relating to Sarah is signed by Kyra Woodman in her capacities as "Fiduciary Party" and "Attorney-In-Fact under [a] validly executed power of attorney." The trial court denied Briarcliff's motions to compel arbitration. Briarcliff appeals, arguing that Turcotte and Woodman must arbitrate their wrongful-death claims because Noella and Sarah, through their agents, signed the admission contracts containing the arbitration provision. HOLDING: The Supreme Court reversed. The Court noted that Noella's and Sarah's personal representatives are seeking to impose duties that arise from the admission contracts, but they also seek to avoid the arbitration provisions of the same contracts under which they seek recovery. Therefore, the Court held that Turcotte, as executor of Noella's estate, and Woodman, as administratrix of Sarah's estate, are bound by the arbitration provisions contained in the admission contracts. The Court noted that Noella and Sarah could not have commenced an action against Briarcliff for its wrongful acts because they agreed to arbitrate those claims against Briarcliff; therefore, their executor and administratrix, respectively, may not commence such an action. The Court held that Turcotte and Woodman have not established that the NHLA is biased in conducting its arbitration proceedings. Therefore, the Court concluded that Turcotte and Woodman did not establish that the terms of the arbitration provision grossly favor Briarcliff. The Court also concluded that Turcotte and Woodman did not demonstrate "an absence of a meaningful choice," and did not demonstrate that Briarcliff had overwhelming bargaining power.

Mobile Airport Auth. v. HealthSTRATEGIES, Inc., No. 1020376 (Ala. Feb. 6, 2004)
Summary: (on application for rehearing; withdrawing and substituting the original opinion released Oct. 3, 2003) stop-loss insurance; claims of unjust enrichment, money had and received, and quasi-contract, among others; waiver; The Mobile Airport Authority ("MAA") offers health-insurance coverage to its employees and certain dependants of its employees through its self-funded employee health-care plan. MAA bears all of the risks and financial obligations associated with funding benefits under its health-insurance plan. MAA sought to acquire a stop-loss insurance policy to limit its financial exposure under its health-insurance plan. Stop-loss insurance "protects a self-insured employer from catastrophic losses or unusually large health costs of covered employees." MAA directed HealthSTRATEGIES, its third-party administrator ("TPA"), to obtain stop-loss insurance for it. HealthSTRATEGIES chose a product offered by Pan American Life Insurance Company ("PALIC"). PALIC did not provide stop-loss policies directly to those entities seeking such insurance. Instead, its stop-loss policies were issued by managing general underwriters, who were directly authorized to issue such policies. The particular managing general underwriter that dealt with HealthSTRATEGIES in procuring stop-loss insurance for MAA was Sympson & Associates, Inc. ("SAI"). PALIC provided SAI with the forms necessary to issue its insurance policies, including applications for stop-loss insurance policies. Therefore, HealthSTRATEGIES, later replaced as TPA by Bluebonnet Administrators of Jackson, Mississippi ("Bluebonnet"), acted as agent for MAA, and SAI acted as agent for the insurer, PALIC. HealthSTRATEGIES sent an application to MAA for a PALIC stop-loss insurance policy. The blanks on the application, which was drafted by PALIC, had been completed by Anthony Allen of HealthSTRATEGIES. MAA's representative signed the application, entitled "Application to Pan American Life Insurance Company for Aggregate and Specific Excess Loss Insurance" ("the application"), and submitted it to PALIC. The trial court entered a summary judgment for the appellees and denied MAA's motion for a partial summary judgment. On June 28, 2001, MAA sued HealthSTRATEGIES, SAI, and PALIC in the Mobile Circuit Court. Including the claims alleged in MAA's second amended complaint filed on June 22, 2002, MAA alleges equitable claims of unjust enrichment, money had and received, and quasi-contract against all the appellees; various tort claims against all the appellees; and a breach-of-contract claim against HealthSTRATEGIES. On May 31, 2002, PALIC and SAI filed motions for a summary judgment; HealthSTRATEGIES did the same on June 14, 2002. On September 30, 2002, MAA filed a motion for a partial summary judgment against all the appellees with respect to its equitable claims. On October 17, 2002, the trial court granted the appellees' motions for a summary judgment and denied MAA's motion for a partial summary judgment. MAA appealed. HOLDING: The Supreme Court affirmed. The Court held that Acceptance of MAA's application for stop-loss insurance was clear from PALIC's receipt of premiums; from the assignment of a policy number to MAA; and from the letters sent from SAI to HealthSTRATEGIES, which used terms such as "coverage," "mid-contract," and "cancellation" when describing the relationship with MAA. The Court held that the trial court did not err in concluding that the actions of PALIC and SAI evidenced acceptance and also a waiver of the statement in the "Conditions Precedent" portion of the application that receipt of a premium does not constitute acceptance of liability. The Court said that it cannot allow MAA to escape and even obtain a refund of its obligation under an agreement –– a return of its premiums –– in this situation, and that it would not allow an insurance company to escape its coverage liability in the converse situation. The Court held that even if, as MAA argues, the submission by the insured of the medical-disclosure statement is a condition precedent so that failure to submit it "would render the policy void and worthless," PALIC and SAI waived the option of denying a claim on that basis.

Alabama Dep't of Transportation v. Land Energy, Ltd., No. 1020393 (Ala. Feb. 6, 2004)
Summary: real estate; inverse-condemnation action; taking; mineral rights; jury instructions; materials used at mediation presented as evidence; law of the case; Land Energy, Ltd. ("LE"), brought an inverse-condemnation action against the Alabama Department of Transportation ("ADOT"). ADOT needed to acquire certain rights in various parcels of privately owned property to complete a highway project known as Corridor X, designed to link Birmingham, Alabama, and Memphis, Tennessee. The parcel involved in this case contains approximately 120 acres and is located in Marion County, Alabama. The "Pearce Estate" owned the surface of the land; LE, an investment group that owns property consisting of both surface land and mineral rights, owned the mineral estate to the 120 acres. LE's mineral estate, which the parties stipulated contains 374,000 tons of surface coal, is the subject of this dispute. ADOT hired Dr. Henry McCarl, a licensed geologist and the owner of a geological consulting firm, to investigate whether the recovery of the coal contained within LE's mineral estate was economically feasible. Dr. McCarl went to the area, took measurements and studied data contained in various "drill logs," and then reported that there was coal under the surface but that it was not economically recoverable. Based on that report, ADOT elected to acquire only the surface rights to a portion of the property owned by the Pearce Estate, specifically the surface rights to 34.08 acres of the 120-acre tract, through a condemnation action filed September 23, 1999, forgoing any attempt to condemn LE's mineral estate. ADOT ultimately paid the Pearce Estate $31,000 for the condemned surface acreage. LE was aware of the proposed Corridor X, but did not know the route ADOT had planned for it. ADOT had obtained permission from Howard Graham, LE's property manager, some four or five years before the September 1999 condemnation action, "to go on" or "cross" the Pearce Estate's land to conduct core-drilling operations. ADOT never informed LE of the results of those drilling operations or that the condemnation action had been instituted. The first time LE became aware that Corridor X would cross a portion of the 120-acre tract was when Graham and John Oliver, an owner of LE, were touring the property in February 2000 and saw construction of the highway underway. LE then asked ADOT if it could get permission for a mining company to remove the coal on the property before the highway was completed. That request was refused. The case proceeded to a jury trial. ADOT moved for judgment as a matter of law ("JML") at the close of LE's case and again at the close of all of the evidence. The trial judge denied both motions. The only disputed issues presented to the jury were whether by condemning the 34.08 acres ADOT had "taken" LE's coal reserves, i.e., (1) whether those reserves were economically recoverable, (2) whether the surface owner would have consented to surface mining, and, (3) if there was a taking, what compensation LE was due based on the value of those reserves. The jury found ADOT liable for inverse condemnation and awarded LE $650,000 in compensatory damages; the court entered a judgment on the verdict. Pursuant to Rule 50, Ala.R.Civ.P., ADOT renewed its motion for a JML and moved, alternatively, for a new trial; LE responded to ADOT's motion, and also filed a motion to have the trial court take judicial notice of certain deeds in its chain of title to the condemned property. In an order entered November 8, 2002, the trial court declined to take judicial notice of the requested documents to the extent requested by LE and denied ADOT's renewed motion for a JML or for a new trial. ADOT appealed and argued that it did not "take" LE's mineral estate, and, therefore, that its motion for a JML should have been granted, or, alternatively, that a new trial should be ordered because the trial court erred in various evidentiary rulings allowing or disallowing certain testimony or evidence. HOLDING: The Supreme Court affirmed. The Court noted that ADOT objected to the portion of the charge paraphrasing Ala. Code §18-1A-32(a), solely on the ground that a consideration of that Code section "should not enter into the damages in this case and [that the court's paraphrasing of it] unfairly prejudice[d] the state in that respect." Therefore, the Court held that ADOT cannot now be heard to say that that portion of the charge was prejudicial as to the separate issue whether there had been a taking. The Court further noted that ADOT did not explain how it was prejudiced as a result of the trial court's giving this charge. The Court held that the trial court did not err in instructing the jury that it might find that a taking had occurred if it found that ADOT "by its acquisition of the surface above the mineral estate of [LE] improperly prohibited [LE] from being able to recover its coal." The Court held that, under the law of the case (as set out in the jury charges not objected to or to which no valid objection was made), it was within the province of the jury to determine whether there had been a "taking," which could be found to have occurred if the jury concluded that ADOT had "improperly prohibited [LE] from being able to recover its own coal." The Court held that the jury was presented with testimony from several qualified witnesses to the effect that the condemnation of the 34.08 acres of road right-of-way, combined with the resulting statutory ban on mining operations within 100 feet of the outside right-of-way line, completely "landlocked" the remaining acreage of the 120-acre tract for mining purposes, rendering the 374,000 tons of coal reserves valueless. The Court held that it was not error to admit in evidence certain tables prepared by Dr. McCarl and used at the mediation, which ADOT argued were inadmissible because they were prepared solely for use at the mediation, because it is not clear that the tables were prepared solely for the mediation.

Jones v. Kennedy, No. 1021265 (Ala. Feb. 6, 2004)
Summary: employment; termination; Fair Dismissal Act, Ala. Code §36-26-100 ("the FDA"); immunity; Gwenevere L. Jones was a nonprobationary employee of Bishop State Community College ("BSCC") as the term "employee" is defined in Ala. Code §36-26-100. She was notified on July 9, 2002, that her employment was being terminated effective July 31, 2002. Calculated from the date of that notification, the 60-day period established by §36-26-106 within which the employee-review panel must hold an initial hearing on the matter expired on September 7, 2002. Dr. Yvonne Kennedy's reason for terminating Jones's employment was immoral conduct; her employment was terminated following an audit-investigation and a preliminary hearing regarding missing cash from the campus bookstore. Jones, as the clerk of the bookstore, was responsible for the cash. On July 24, 2002, by hand-delivered letter, Jones timely appealed her dismissal, demanding a hearing by a three-person employee-review panel under the FDA. Dr. Kennedy had 60 days from the date of Jones's termination within which to ensure that the employee-review panel held a hearing on Jones's dismissal. Jones sent additional letters on July 30, 2002, and August 19, 2002, requesting the name of the attorney who would handle the matter for Dr. Kennedy and reminding Dr. Kennedy of the 60-day time limit in §36-26-106. On August 26, 2002, 33 days after receiving Jones's letter appealing her termination, Willie Huntley, the attorney for Dr. Kennedy, contacted Jones. On August 27, 2002, pursuant to the procedure set out in §36-26-105, Huntley and Jones made their respective selections of individuals to serve on the three-person employee-review panel. Because the parties could not agree on the third member, Huntley, on August 28, 2002, 10 days before the 60-day period expired, sent a letter to the Mobile County Probate Court seeking the names of three individuals to fill the third position on the employee-review panel. On September 5, 2002, 8 days later and 2 days before the 60-day period under the FDA was to expire, the probate court provided a list. Huntley received the list on September 7, 2002. Jones notified Huntley on September 10, 2002, that the time the FDA provided within which a hearing could be held had expired and that by law her termination should be considered to have been abandoned and her employment reinstated. Huntley made a "strike" from the list on September 13, 2002, 6 days after the 60-day period had expired; Jones made her "strike" on September 18, 2002. John D. Lilly, Jr., became the third member of the employee-review panel, and on September 27, 2002, Jones's attorney sent a letter instructing the three members of the employee-review panel to establish a date for the hearing within 10 days, pursuant to §36-26-106. On October 18, 2002, both parties were notified that John D. Lilly, Jr., would not be able to serve because of a sudden and unexpected illness. On October 21, 2002, Jones requested Huntley to resubmit a request to the Mobile County Probate Court for a second list of three names of individuals to serve on the employee-review panel. Huntley made the request to the probate court on October 25, 2002. The probate judge prepared and presented the new list on November 7, 2002. Jones wrote letters on November 20 and November 27, 2002, requesting that Dr. Kennedy make her "strike" from the second list sent by the probate judge. On December 18, 2002, Jones sued Dr. Kennedy, in her official capacity as president of BSCC, alleging that Dr. Kennedy had violated Jones's constitutional right by failing to carry out her obligations in the selection of the employee-review panel. Further, Jones alleged that she was entitled to immediate reinstatement of her employment with backpay, including interest, and benefits. In the alternative, she also sought a writ of mandamus compelling Dr. Kennedy to reinstate her to her position, with full backpay and benefits. Huntley made a "strike" from the second list on January 15, 2003. On January 23, 2003, Dr. Kennedy filed a motion to dismiss or, in the alternative, for a judgment on the pleadings on the basis of State-agent immunity. On January 27, 2003, Jones made her strike from the second list. A hearing pursuant to the FDA had not been held or scheduled as of February 28, 2003, when Jones filed a motion for a summary judgment. On April 1, 2003, the trial court denied Jones's summary-judgment motion and granted Dr. Kennedy's motion, which, because the trial court considered matters outside the pleadings, had been converted to a motion for a summary judgment. Jones appealed the summary judgment for Dr. Kennedy. HOLDING: The Supreme Court reversed. The Court held that all of Jones's actions in the appeal process were timely, and no responsibility for the delays can be attributed to her. The Court held that much, if not all, of the delay was the result of Dr. Kennedy's slow response to Jones's appeal. The Court also concluded that the probate court was not the primary cause of the delay. The Court held that the trial court properly rejected Dr. Kennedy's immunity argument because this action was not a tort action but was brought by Jones to compel Dr. Kennedy to perform a legal duty -- to reinstate Jones's employment -- and for the court to declare Jones's rights under the FDA.

Ex parte Lee, No. 1021971 (Ala. Feb. 6, 2004)
Summary: The Supreme Court denied the petition for writ of certiorari without opinion, but the Court noted that in denying the petition for the writ of certiorari, the Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion.

Ex parte Davis, No. 1030391 (Ala. Feb. 6, 2004)
Summary: criminal; petition for postconviction relief under Rule 32, Ala. R. Crim. P.; the effective date of an amendment to Rule 32, Ala. R. Crim. P., reducing the time in which a defendant can file a postconviction petition; This case presents the same issue as Ex parte Garner, No. 1030309 (Ala. Jan. 27, 2003). In light of Garner, the Supreme Court summarily granted the petition for writ of certiorari without allowing the respondent to file a brief and reversed the Court of Criminal Appeals' affirmance of the denial of the petitioner's petition for postconviction relief under Rule 32.

Ex parte Dierking, No. 1030469 (Ala. Feb. 6, 2004)
Summary: criminal; petition for postconviction relief under Rule 32, Ala. R. Crim. P.; the effective date of an amendment to Rule 32, Ala. R. Crim. P., reducing the time in which a defendant can file a postconviction petition; This case presents the same issue as Ex parte Garner, No. 1030309 (Ala. Jan. 27, 2003). In light of Garner, the Supreme Court summarily granted the petition for writ of certiorari without allowing the respondent to file a brief and reversed the Court of Criminal Appeals' affirmance of the denial of the petitioner's petition for postconviction relief under Rule 32.

February 13

Decisions Announced by the Supreme Court of Alabama on Friday, February 13, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

American Gen. Life & Accident Ins. Co. v. Underwood, No. 1020337 (Ala. Feb. 13, 2004)
Summary: race discrimination in life insurance premiums; 20-year rule of repose; claims of unjust enrichment, money had and received, fraud, suppression, conversion, and outrage; Between 1947 and 1978, the plaintiff James T. Underwood purchased industrial life insurance policies from The Independent Life & Accident Insurance Company ("Independent Life"), insuring himself, his wife, and their children. The premium rate for each policy was set when the policy was issued. The plaintiff began paying the premiums for each policy contemporaneously with its issuance. All of the Underwood insureds were black. Independent Life charged higher premiums for industrial life policies insuring blacks than it did for industrial life policies insuring whites. Consequently, the plaintiff paid higher premiums for the policies than he would have paid had he and his family been white. Independent Life merged into American General Life and Accident Insurance Company ("American General") in 1997. Independent Life and, after 1997, American General retained the rate books specifying higher premiums for industrial life policies insuring blacks and periodically reviewed them to respond to questionnaires and surveys from state departments of insurance and the National Association of Insurance Commissioners ("NAIC"). In January 1988, NAIC inquired in a written survey whether Independent Life had ever used race as a basis for differentiating in the premiums it charged for life insurance. An Independent Life vice president researched the rate books and interviewed employees to respond to this survey question. The vice president determined that Independent Life had used race as a basis for differentiating in the premiums it charged for life insurance. Thus, he prepared a draft response answering the survey question in the affirmative. The vice president submitted the draft response to an Independent Life senior vice president for his review. The senior vice president instructed the vice president to "try to find a way to avoid Yes answers." The vice president responded that the "only way I know [how to avoid yes answers] is just [to] lie & [to] hide [the 19]45 R[ate] B[ook]." Ultimately, in response to the survey Independent Life stated that it had not used race as a basis for differentiating in the premiums it charged for life insurance. The plaintiff testified that he did not learn until the year 2000 that Independent Life had used race as a basis for charging premiums on the policies he had purchased. In September 2000, over 20 years after the plaintiff had begun paying the premiums on these policies, he sued American General, as the successor of Independent Life, for unjust enrichment, money had and received, fraud, suppression, conversion, and outrage. American General moved for a summary judgment on the ground, among others, that the 20-year rule of repose barred the plaintiff's claims. The trial court held that the rule of repose did not bar the plaintiff's claims. On this rationale, the trial court denied the motion for a summary judgment and reserved ruling on the other grounds raised by American General. On motion by American General, the trial court certified the denial of the summary judgment for an interlocutory appeal under Rule 5, Ala.R.App.P. HOLDING: The Supreme Court reversed the order denying summary judgment and remanded the case to the trial court with instructions to enter a summary judgment for American General. The Court held that the rule of repose began running on each claim arising from the purchase of a particular policy as soon as the plaintiff paid the first premium for the policy because that payment supplied the last essential element necessary for all essential elements of the particular claim to coexist so that the plaintiff could file suit. Because the plaintiff paid the first premium for each policy more than 20 years before he commenced this lawsuit against American General, the Court held that the rule of repose barred his claims before he commenced this lawsuit.

Dennis v. Northcutt, No. 1021266 (Ala. Feb. 13, 2004)
Summary: legal malpractice; statute of limitations; In February 1998, Gregory Dennis retained attorney Walter Northcutt to represent him in a legal-malpractice action against the law firm Meelheim and Rea, P.C. Northcutt represented Dennis in his suit against Meelheim and Rea; however, on September 9, 1999, Northcutt moved to withdraw as counsel, stating that he and Dennis were no longer able to work together and that it would be in Dennis's best interest to be represented by another attorney. On February 17, 2000, the trial court granted Northcutt's motion. Dennis thereafter proceeded pro se in his action against Meelheim and Rea; however, the case was dismissed on December 7, 2000. On February 14, 2002, Dennis filed the present legal-malpractice action against Northcutt. Dennis's complaint alleged that Northcutt's negligence and fraud was the reason his action against Meelheim and Rea was dismissed. Northcutt, arguing that the two-year statute of limitations for legal-malpractice actions applies and that Dennis did not file his action within the statutory limitations period, moved for a summary judgment. Northcutt argued in his summary-judgment motion that, because he did not work on Dennis's case after he filed the motion to withdraw on September 9, 1999, and because Dennis has not specifically alleged that he committed any negligent acts after that date, any negligent acts he might have committed necessarily occurred before September 9, 1999. The trial court granted Northcutt's motion and entered a summary judgment in his favor. Dennis appealed, arguing that his action was filed within the two-year limitations period. HOLDING: The Supreme Court reversed the summary judgment and held that Dennis filed his legal-malpractice action against Northcutt within the statute of limitations. The Court noted that Ala. Code §6-5-574(a) allows an action to be commenced "within six months from the date [the cause of action was discovered]." The Court noted that Dennis alleges that, because of Northcutt's misrepresentations, he did not become aware of Northcutt's wrongful conduct until November 2001, when he received a response to a complaint concerning Northcutt that he had filed with the Alabama State Bar. The Court held that because Dennis received that response in November 2001, the plain language of §6-5-574(a) gave Dennis six months from November 2001 in which to file a legal-malpractice action against Northcutt, and his February 14 complaint was filed within that six-month period and was therefore timely.

Generali US Branch v. The Boyd School, Inc., No. 1021393 (Ala. Feb. 13, 2004)
Summary: insurance coverage; The Boyd School, Inc. ("the School") is a residential institution for boys with learning and behavioral problems. Its facilities include a group home for older boys. The residents of the group home are supervised by houseparents. In April 1999, Joe Ingram and his wife, Kelly, were the houseparents during the week, and Joe's brother, John Ingram, and his wife, Amy, were the houseparents during the weekends. John and Amy have a young daughter, Victoria ("Torey"), who was at the group home on Friday, April 23, 1999. Joe and Kelly were keeping Torey while John and Amy went home to pack clothes in preparation for their weekend-houseparent duty. While Joe and Kelly were keeping Torey, a group-home resident telephoned from a nearby restaurant where he worked, telling the person who answered the telephone that he needed his Social Security card, which was in his wallet at the home. Joe decided he would take the wallet to the resident at the restaurant. As Joe prepared to leave the group home in his personal automobile, two residents asked to ride with him, and Joe allowed them to do so. As Joe was placing his nine-month-old son in the car, Torey came out of the house and asked if she could go with him. Joe told Torey that she could not go, and he instructed her to go back inside the group home. Joe finished putting his son into the car, and he did not see Torey; he assumed she had followed his direction and gone back inside. In moving his automobile from the parking space, Joe first backed up and then moved forward. As he moved forward, he heard a noise beneath the automobile. Joe stopped, opened his door, and looked beneath the vehicle, where he found Torey. Torey suffered serious injuries as the result of the accident. At the time of the accident, a comprehensive general liability insurance policy issued by Generali US Branch ("Generali") to the School was in effect. The liability coverage of the policy provided, in pertinent part, that "[Generali] will pay on behalf of the [School] all sums which the [School] shall become legally obligated to pay as damages because of ... bodily injury ... to which this insurance applies, ... and [Generali] shall have the right and duty to defend any suit against the [School] seeking damages on account of such bodily injury." The liability coverage was subject to certain exclusions, including an automobile exclusion. The automobile exclusion was subject to a parking exception, which provided: "[B]ut this exclusion does not apply to the parking of an automobile on premises owned by, rented to or controlled by the named insured or the ways immediately adjoining, if such automobile is not owned by or rented or loaned to any insured." The policy included an endorsement modifying the liability coverage with respect to the operation of any school. Specifically, the endorsement included a transportation-of-pupils exclusion. Amy, acting individually and as Torey's mother and next friend, and John sued the School. They alleged that the accident resulted from Joe's negligence or wantonness while he was acting within the line and scope of his employment by the School. The complaint sought both compensatory and punitive damages. The School later sued Generali, seeking, in pertinent part, a declaration that Generali was obligated by the general liability policy it issued to the School "to defend and indemnify the [School] ... with respect to the ... underlying motor vehicle accident and civil action." Generali filed an answer, asserting in its answer a counterclaim. Generali alleged that the policy provided the School no coverage with respect to the accident, relying upon the automobile exclusion. Shortly thereafter, the School filed a motion for a summary judgment, contending that coverage for the accident existed under the parking exception to the automobile exclusion. In response to the School's motion, Generali filed its own motion for a summary judgment, contending that the transportation-of-pupils exclusion precluded coverage and that the parking exception to the automobile exclusion was inapplicable. The trial court held hearings on the summary-judgment motions on February 18 and March 17, 2003. On March 17, Generali filed a motion to amend its answer and counterclaim to add statements that it was relying upon the transportation-of-pupils exclusion. The School objected to the motion, arguing it was untimely. Generali's motion to amend remained pending until April 7; on that day, the trial court granted the School's motion for a summary judgment, denied Generali's motion for a summary judgment, and entered conflicting orders concerning Generali's motion to amend. In its summary-judgment order, the trial court "declare[d] that [the School] has liability coverage under the policy issued to it by Generali ... for the claims asserted against [the School] in the underlying civil action [brought by the Ingrams], and Generali ... is obligated under the policy to defend and indemnify [the School] against these claims." HOLDING: The Supreme Court affirmed. The Court held that the transportation-of-pupils exclusion does not apply under the undisputed facts of this case. The Court held that, although two students were in Joe's automobile at the time of the accident, the underlying claim did not arise "[w]ith respect to the transportation of [those] students." The Court noted that Joe has not been accused of breaching any duty he owed to the students; instead, he has been accused of breaching duties owed by him to his young niece. The Court further concluded that Joe's automobile had not been loaned to the School at the time of the accident. The Court held that where nothing more than an employee's use of his own vehicle in furtherance of his employer's business has been shown, a loan of the vehicle to the employer has not been established. The Court concluded that that the accident arose from the parking of an automobile on the School's premises and that, therefore, the parking exception provides coverage under the facts of this case.

Owens v. Coosa Valley Health Care, Inc., No. 1021978 (Ala. Feb. 13, 2004)
Summary: arbitration; nursing homes; unconscionability; interstate commerce; nonsignatory; Elma Tucker was admitted to the Coosa Valley Health Care Nursing Home ("the nursing home"), which is owned and operated by Coosa Valley Health Care, Inc. ("Coosa Valley"), following her two-week hospitalization for heart failure. She was to undergo 21 days of rehabilitation at the nursing home. Tucker signed no admission papers; rather, Tucker's admission to the nursing home was handled by her daughter, Linda Owens, who signed the relevant admission documents as Tucker's guardian and sponsor. One of those documents was an arbitration agreement. The agreement states that it is "between Coosa Valley Health Care, Inc. ... and the undersigned Patient, Guardian and Sponsor (hereinafter known as 'Patient')." Tucker is designated on the signature page as the "Patient"; Owens is designated on the signature page as both "Guardian" and "Sponsor"; and the agreement states that "[t]he meaning of 'Patient' shall include Patient and his, her or their sponsors, guardians, heirs, executors, successors, and assigns." Elma Tucker subsequently sued Coosa Valley, alleging that Coosa Valley negligently and wantonly failed to provide adequate care at the nursing home. Following Tucker's death, Owens, as administrator of Tucker's estate, was substituted as the plaintiff. Elma Tucker subsequently sued Coosa Valley, alleging that Coosa Valley negligently and wantonly failed to provide adequate care at the nursing home. Following Tucker's death, Owens, as administrator of Tucker's estate, was substituted as the plaintiff. HOLDING: The Supreme Court affirmed. The Court held that Coosa Valley met its burden of proving the existence of a contract between Coosa Valley and Tucker calling for arbitration. The Court held that Coosa Valley's providing nursing-home care to Tucker involves interstate commerce under the Federal Arbitration Act. The Court held that Owens provides no basis on which to find that the agreement contained terms that are grossly favorable to Coosa Valley or that Coosa Valley had overwhelming bargaining power. The Court declined to adopt a per se rule that would find unconscionable any arbitration agreement involving a nursing home and an elderly patient in poor health. The Court held that 42 U.S.C. §1396r(c)(5)(A)(iii) does not prohibit the nursing home from requiring admittees whose fees are paid by Medicare or Medicaid to sign an arbitration agreement. Because the Court held that Owens's claims are due to be arbitrated, it also held that the trial court did not err in staying discovery of Tucker's medical records.

Ex parte Parks, No. 1030444 (Ala. Feb. 13, 2004)
Summary: The Supreme Court denied the petition for the writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

Ex parte Hutcherson, No. 1030306 (Ala. Feb. 13, 2004)
Summary: criminal; deadline for filing a Rule 32 petition for post-conviction relief; The Supreme Court denied the petition for writ of certiorari without opinion. Justice Johnstone wrote a concurring opinion.

February 20

Decisions Announced by the Supreme Court of Alabama on Friday, February 20, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Liberty Nat'l Life Ins. Co. v. Turcotte, Nos. 1020911 & 1021032 (Ala. Feb. 20, 2004)
Summary: statute of limitations; fraud and suppression; reasonable reliance; judgment as a matter of law; law of the case; On March 19, 1996, Charles Ingram sued Liberty National Life Insurance Company ("Liberty National") alleging fraud, suppression, deceit, wantonness, and conversion in regard to an insurance policy he purchased from Liberty National. The claims arose out of Ingram's purchase of a "LifePlus" policy, which Ingram says he understood would be paid up in 10 years, at which time he would no longer be required to pay premiums on the policy. Ingram alleged that, in August 1985, Liberty National's agent, Jerry Cook, convinced him to buy a $15,000 policy covering the life of his daughter. Ingram alleged that Cook suppressed the fact that the interest rate of 9.75% used to arrive at the 10-year period was not a guaranteed rate of interest. Ingram alleged that Cook represented to him that the policy he was considering was similar to an investment, that it had a fixed interest rate of 9.75%, and that if Ingram paid the premiums for 10 years he would not have to pay any more premiums on the policy. Ingram agreed to buy the policy and Cook delivered the policy in August 1985. At that time, Cook again explained the policy to Ingram, using tables that illustrated the projected and guaranteed values of the policy. Although the table reflected both projected and guaranteed values, Ingram alleges that Cook discussed with him only the projected values and that Ingram did know that the values they were discussing were the projected -- not the guaranteed -- values. Ingram admitted that he did not read the policy and that he would not have purchased the policy if he had read it. The life insurance policy at issue is an excess-interest whole-life policy. The policy was not designed to be a vanishing-premium policy; instead, it was designed to provide the same benefits as an ordinary whole-life policy. The policy is interest sensitive; however, it guarantees a rate of at least 4%. It reflected guaranteed and projected cash values. The guaranteed cash value was based on the 4% guaranteed accumulation interest rate; the projected value was based on a 9.75% accumulation interest rate. The insured has the option of purchasing paid-up insurance with the cash value of the policy. If the insured does not choose this option, the policy matures when the insured reaches age 100. The first page of the policy clearly states, in bold capital letters: "READ YOUR POLICY CAREFULLY." The first page also provides that an insured may cancel the policy and receive a full refund of any premiums paid within 10 days of receipt of the policy. Page 3 contains a benefit and premium schedule. The word "life" is written under the "years payable" column. Also, page 3-A contains a table of interest rates, which provides that the guaranteed accumulation interest rate on the LifePlus policy is 4%. The policy also contains a table of guaranteed and projected values. This table indicates that when the insured reaches age 62, the monthly income from the policy based on the 4% guaranteed accumulation interest rate is $19.92, and the projected monthly income from the policy based on the 9.75% accumulation interest rate is $250.69. Liberty National mailed Ingram yearly reports regarding his policy. The first report indicated that the interest rate had dropped from 9.75% to 7%. The reports Ingram received in 1987, 1988, 1989, and 1990 reflected an interest rate for those years of 8%. Ingram received a report every year thereafter, and the interest rates reflected in those reports varied from 5% to 8%. In August 1995, Ingram received the yearly report on his policy from Liberty National. Liberty National had changed the form of the report; it now included a statement that the premiums were payable for the life of the policy. After reading this statement, Ingram telephoned Liberty National. In response to Ingram's telephone call, Liberty National sent two agents to Ingram's house to discuss the policy with him. Ingram alleges that the agents represented to him that they would "take care of it" and that Ingram did not have to continue paying premiums on the policy. Ingram did not hear from the Liberty National agents again. In March 1996, Ingram sued Liberty National. Liberty National moved for a summary judgment, arguing that Ingram's claims were barred by the statute of limitations. The trial court denied Liberty National's motion as to the fraud and suppression claims and granted the motion as to the remaining claims. At trial, Liberty National moved for a judgment as a matter of law both at the close of Ingram's case and at the close of all the evidence. The trial court denied both motions. The jury returned a verdict for Ingram, awarding him $200,000 in compensatory damages and $3,000,000 in punitive damages. Liberty National renewed its motion for a judgment as a matter of law, and alternatively moved for a new trial or for a remittitur. The trial court denied Liberty National's motion for a judgment as a matter of law or a new trial, but remitted the compensatory-damages award to $60,000 and the punitive-damages award to $180,000. Liberty National appealed. Ingram cross-appealed, requesting that the Supreme Court reinstate the jury's $3,200,000 verdict. HOLDING: The Supreme Court reversed and rendered a judgment in favor of Liberty National. The Court held that Ingram's claims are barred by the applicable statute of limitations, and that even if they were not Ingram failed to demonstrate that he reasonably relied on Liberty National's alleged representations to him regarding the insurance policy or that Liberty National suppressed a material fact. The Court noted that although this action was filed before it decided Foremost Insurance Co. v. Parham, 693 So.2d 409 (Ala. 1997), and reversed the "justifiable reliance" standard in favor of the "reasonable reliance" standard, Ingram requested that the trial court charge the jury on the reasonable-reliance standard. Therefore, the Court held that the reasonable-reliance standard became the law of the case. The Court also held that the post-Foremost standard for determining when the statute of limitation began to run became the law of the case because Liberty National requested and received a jury instruction on the post-Foremost standard for determining when the statute of limitations began to run, and Ingram did not object to this charge. The Court held that Ingram was capable of reading the policy and the yearly reports and that Ingram did not reasonably rely on Cook's representation. The Court further held that Ingram received several documents from Liberty National that contained the allegedly suppressed information and that, therefore, Ingram did not establish that Liberty National suppressed a material fact.

Salter v. Hamiter, No. 1021358 (Ala. Feb. 20, 2004)
Summary: real estate; wills and estates; Frank T. Salter first met Mary Ellen Knowles in the early 1960s; the two became business associates and good friends. They engaged in many business ventures together in which Knowles acted as the bookkeeper. In October 1966, Knowles gave Salter power of attorney over all of her assets. On March 13, 1967, Knowles executed a will leaving everything she owned to Salter. At some point after she had executed the will, Knowles deeded all of the real property she owned in Conecuh County and Covington County, totaling approximately 1,000 acres. Knowles executed three deeds in November 1967. After executing the deeds, Knowles presented them to her attorney and told him that it was her desire to transfer title of the described properties to Salter, and she wanted to know if the deeds "looked alright." According to her attorney, Knowles, not wanting any trouble with her family, also asked her attorney what would happen if the deeds were not recorded until after her death. Her attorney explained to Knowles the consequences of not recording the deeds and further explained that "delivery" of the deeds to the grantee was an essential element for the conveyance of real property. A couple of months after Knowles met with her attorney to discuss the deeds, she was admitted to the hospital to undergo some tests. While at the hospital, she telephoned her attorney and asked him to come to the hospital to witness her delivery of the deeds to Salter and to make sure that the delivery of the deeds was a "good delivery." When Salter and Knowles's attorney arrived at the hospital, Knowles retrieved the deeds from her purse and handed them to Salter. Once Salter had the deeds in his hand, Knowles's attorney advised her that what had just transpired was "a sufficient delivery of the deeds." Knowles requested at this time that Salter not record the deeds until after her death. Salter retained physical possession of the deeds. After the delivery of the deeds, Salter managed the timber property on the lands conveyed to him by the deeds, possessed keys to all of the gates located on the properties, and hunted on the properties. The properties remained in Knowles's name for purposes of ad valorem tax assessments; however, the invoices for those taxes were mailed to one of two businesses operated jointly by Salter and Knowles -- Salter Truck and Tractor and Salter and Knowles's Brooklyn farming operation -- and many of the invoices were paid from one of the joint business bank accounts maintained by Salter and Knowles. In September 1985, Knowles executed another will; the will contained no reference to the real property located in Conecuh County and Covington County. During the consultation with her attorney in preparation for drafting this will, Knowles told her attorney that she had already deeded most of her property to Salter and that she was aware that she did not have title to any of the real property she had previously conveyed to Salter. All three deeds remained in the exclusive possession and control of Salter until Salter recorded them several days after Knowles's death on May 28, 2000. In October 2000, the representatives of Knowles's estate, Harold Hamiter and Gillis Ralls ("the Hamiter appellees"), filed the present action seeking to have the three deeds declared void because, they argued, (1) the deeds were not properly delivered, (2) the deeds violated the statute of wills, and (3) Salter was barred by the doctrine of laches because he had failed to assert his claim to ownership within 20 years of the date of the execution of the three deeds. The complaint was subsequently amended to assert additional claims based upon the rule of repose and the Statute of Frauds. After conducting a bench trial, the trial court on April 25, 2003, declared all three deeds void. The trial court specifically found (1) that the three deeds "were intended to be the equivalent of a will" and that, "as a will, none of the three deeds [met] the requirements of the statute of wills"; (2) that "there was no intent by Knowles to vest title, ownership and control of her lands in Salter at the time of the purported delivery of the deeds at issue"; and (3) that "Salter's lack of action until after the death of Knowles [indicated] lack of present acceptance of the delivery." HOLDING: The Supreme Court reversed the trial court's judgment declaring void the three warranty deeds conveying such properties, and it rendered a declaratory judgment recognizing Salter's title. The Court held that the trial court erred to the extent it based its finding that the documents were invalid on noncompliance with the statute of wills. The Court held that the trial court erred in its conclusion that the deeds were neither validly delivered to Salter nor accepted by him. The Court held that the fact that Salter did not record the deeds until after Knowles's death does not defeat the undisputed evidence of his acceptance of the deeds. The Court held that the trial court erred in its finding that the doctrine of laches and the rule of repose render the deeds void.

Ex parte Jackson, No. 1021472 (Ala. Feb. 20, 2004)
Summary: criminal; search and seizure; roadblock-type stop; The Mobile Housing Authority entered into a contract with the Mobile County Sheriff under which the sheriff's office is permitted to enter housing areas governed by the housing authority at the request of the housing authority and performs such policing activities as rolling patrols, foot patrols, community policing, and safety checkpoints to establish some sort of "police presence." In accordance with that contract, the Mobile County Sheriff's office entered the R.V. Taylor housing project in Mobile on the evening of May 10, 2001, to set up what they called a "safety checkpoint" at a major intersection in the housing community. A captain in the sheriff's office made the decision to set up the roadblock-type stop. The officers checked driver's licenses, automobile insurance documentation, and vehicle "safety devices," e.g., seat belts, child restraints, etc., at the roadblock-type stop. They put in place seven marked sheriff's office vehicles at the intersection and stopped every vehicle that came through the intersection. They followed guidelines established by the sheriff's office while conducting the roadblock-type stop; those guidelines required that they perform no random searches and that the officers' activities be supervised by superior officers in the sheriff's department. An officer stopped Hayden Jerome Jackson's vehicle at the roadblock. The officer discovered marijuana and two rolls of cash on Jackson's person; a larger quantity of marijuana in the console between the driver's seat and the passenger's seat; hidden under the tire cover in the trunk of Jackson's vehicle was an "Old Navy" store shopping bag that contained more marijuana, scales, and numerous plastic sandwich bags. At trial, Jackson filed a motion to suppress the marijuana found on his person and in his vehicle on the basis that the roadblock-type stop was an unreasonable seizure that violated the Fourth Amendment to the United States Constitution. The State contended, and the trial court agreed, that the roadblock-type stop was conducted solely to check driver's licenses and safety devices. A Mobile County jury convicted Jackson of first-degree unlawful possession of marijuana. After his conviction for first-degree unlawful possession of marijuana, Jackson filed a motion for a new trial, which the trial court denied. The Court of Criminal Appeals affirmed Jackson's conviction and sentence without an opinion. HOLDING: The Supreme Court affirmed. The Court held that the roadblock-type stop was a valid stop that did not violate the United States Constitution.

February 27

Decisions Announced by the Supreme Court of Alabama on Friday, February 27, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Robbins v. Sanders, No. 1021505 (Ala. Feb. 27, 2004)
Summary: corporations; breach of fiduciary duty; squeeze-out/oppression of minority shareholders; shareholder-derivative claims; Ala. R. Civ. P. 15(b); trial court's entering of an order substantially identical to the order drafted by the lawyer for one of the parties; survival of tort claims; statute of limitations; In 1988, James Bailey and his wife, Mary Bailey, owned approximately 53 acres of real property in Birmingham. This property was mortgaged to SouthTrust Bank for $400,000; an individual had a second mortgage on the property in the amount of $50,000. The Baileys generated income by using a part of the land as a landfill. An underground fire developed on the portion of the property used as a landfill, In May 1988, the Jefferson Circuit Court ordered the Baileys to close the landfill and to extinguish the fire. At the time that order was issued, James Bailey was 83 years old and Mary was 77 years old. Pete M. Robbins approached the Baileys and offered his help in extinguishing the fire. On May 13, 1988, James Bailey, Mary Bailey, Robbins, and Otis Skinner entered into an agreement, which provided that Robbins and Skinner would extinguish the fire for cost plus 20%, secured by a lien. Skinner backed out of the agreement. On June 1, 1988, James Bailey, Mary Bailey, and Robbins entered into another agreement. The June 1 agreement provided that Robbins would extinguish the underground fire. In addition, the June 1 agreement provided that the parties would form a corporation to acquire the 53 acres owned by the Baileys; that the corporation would assume the mortgage indebtedness owed by the Baileys secured by the property and attempt to have the Baileys released from personal liability for the amounts owed on the 53 acres or that Robbins would assume personal liability on the mortgage debt; that the corporation would issue 1,000 shares of stock, and Robbins would receive 500 of those shares, and James Bailey and Mary Bailey would each receive 250 shares for their contribution to the corporation of the 53 acres of land. The June 1, 1988, agreement further provided that the corporation was to be a subchapter-S corporation and that profits in an amount of not less than 50% of the corporation's profits were to be distributed to the shareholders pro rata according to their stock ownership. The agreement provided that no salaries were to be paid to Robbins for two years. After that two-year period, any salaries paid to stockholders would require approval by all of the stockholders. Additionally, after the corporation began making sufficient income to cover the monthly mortgage payments on the property, James Bailey was to receive $1,250 per month for three years. Robbins extinguished the fire in approximately 21 days. He kept no records of the costs and expenses he incurred in extinguishing the fire, but he estimated that it cost him less than $25,000. Pursuant to the June 1, 1988, agreement, Corridor Enterprises, Inc., was formed in October 1988. Robbins failed to make the necessary election for treatment as a subchapter-S corporation. Robbins served as president and director of Corridor Enterprises from the date of its incorporation. No formal corporate action was ever taken to establish a salary for Robbins. The only business Corridor Enterprises conducted at the time of its incorporation was the rental of various buildings on its property; the rental income was the sole source of income for Corridor Enterprises. In June 1989, Robbins began considering the possibility of entering into the landfill business again and dumping materials on the property owned by Corridor Enterprises. On October 24, 1991, the Baileys and Robbins entered into a stock-purchase agreement. In this agreement, the Baileys agreed to sell their stock in Corridor Enterprises to Robbins for $500 per share; the Baileys also agreed not to sell their stock to a third party so long as Robbins purchased their stock at the rate of at least two shares per month. James Bailey died on February 9, 1997. Mary Bailey died on April 27, 1997. Terrill Sanders was appointed as administrator of both Mary Bailey's estate and James Bailey's estate. Sanders, in his role as administrator of the estates, made a written request upon the attorney representing Corridor Enterprises, Richard Carmody, for an accounting and an inspection of the corporate books and records. Sanders received no response to this request. Sanders filed a complaint against Robbins in the Jefferson Circuit Court on behalf of the estate of Mary Bailey. In that complaint, Sanders requested that Robbins and Corridor Enterprises be ordered to provide an accounting for the period 1991 through the date the complaint was filed, so that Sanders could determine the amount of profits of Corridor Enterprises that were owed to Mary Bailey's estate. On October 29, 1998, the trial court entered an order compelling Robbins to allow an inspection of the books and records of Corridor Enterprises. According to the corporation's certified public accountant, Kenneth Tate, only one tax return had been prepared for Corridor Enterprises (for the year 1992) at the time of the trial court's October 29, 1998, order. After reviewing the corporate documents and records produced by Robbins, Sanders amended the plaintiffs' complaint to allege breach of fiduciary duty; squeeze-out/oppression of minority shareholders; and refusal to allow access to the corporation's books and records. On behalf of the minority shareholders of Corridor Enterprises, Sanders also alleged shareholder-derivative claims alleging breach of fiduciary duty, self-dealing, conversion of corporate assets, waste of corporate assets, and mismanagement. Sanders requested an accounting and judicial dissolution of the corporation, pursuant to Ala. Code §10-2B-14.30. The books and records of Corridor Enterprises revealed that, from 1991 to 2001, Corridor Enterprises had rental income totaling $367,600.75, and that, during that same period, Robbins received $258,768.57 in compensation from Corridor Enterprises. Robbins testified that he paid himself whatever was available, that the amount varied, and that the amount was not based upon any particular standard. Robbins paid himself as compensation for the period 1991 to 2001 70% of the gross income of Corridor Enterprises despite the fact that the shareholders had taken no action to approve any compensation for him. There was also evidence of numerous acts of substantial corporate wrongdoing by Robbins. After the bench trial, the trial court entered a judgment in favor of the Bailey estates on the individual claims and in favor of the corporation on the shareholder-derivative claims. The trial court awarded $3,269,125.91 in compensatory damages and $750,000 in punitive damages. Robbins filed a motion for a new trial, a motion for a remittitur, a motion to alter, amend, or vacate the judgment, and a motion seeking the recusal of the trial judge. The trial court denied those motions. HOLDING: The Supreme Court reversed in part and remanded. The Court held that because Robbins did not object to the opening statement on the basis that the relief requested there exceeded that requested in the complaint, he cannot now be heard to say that he assumed the evidence of damages was being offered solely in furtherance of his narrow reading of the issues raised in the complaint, excusing him from the necessity of objecting as the evidence was offered. The Court held that Robbins was not denied due process of law by the trial court's entering an order substantially identical to the order drafted by the lawyer for the estates. The Court did not read the complaint as stating tort claims on behalf of James and Mary Bailey individually, noting that such claims would have been extinguished upon their deaths. Instead, the Court read the complaint as asserting those claims on behalf of the estates of James Bailey and Mary Bailey. Therefore, the Court held that Ala. Code §6-5-462 does not bar the tort claims brought by those estates. However, because components of the damages awards described in the trial court's order related to activities that occurred before the decedents died, those damages are not recoverable to the extent that those damages arise from tort injuries sustained by the individual decedents before their deaths and for which no action was commenced during their respective lives. As such, the Court remanded for a new determination of damages. The Court held that because each award of damages was made jointly to the corporation and to the minority shareholders, the manner in which the trial court structured its damages award is improper. The Court noted that because it is remanding this cause to the trial court for reconsideration of the damages, the amount of compensatory damages or punitive damages, or both, may change on remand. As such, the Court declined to consider the arguments concerning excessiveness of damages.

Ex parte Peterson, No. 1021913 (Ala. Feb. 27, 2004)
Summary: criminal; double jeopardy; For the factual background of this case, see Peterson v. State, 842 So.2d 734 (Ala. Crim. App. 2001) ("Peterson I"), and Ex parte Peterson, No. CR-02-0874, (Ala. Crim. App. Aug. 1, 2003) ("Peterson II"). This case arises out of the murder, in which Charles Peterson and other individuals participated, of "Eddie Allen, the manager of a Burger King fast-food restaurant." In 1995, a grand jury returned a one-count, capital-murder indictment against Peterson for the intentional murder of Allen during the course of a robbery. In May 1997, pursuant to a blind plea agreement, Peterson's indictment was amended to charge, and he pleaded guilty to, (1) felony murder and (2) first-degree robbery. He was sentenced to 30 years' imprisonment and 20 years' imprisonment, respectively; the sentences were to be served consecutively. In July 2000, Peterson filed a Rule 32, Ala.R.Crim.P., petition challenging his robbery conviction. Specifically, he contended that he was indicted for murder made capital because he committed it during the course of a robbery. He further asserted that he was convicted of first-degree robbery and felony murder, for which the underlying offense was robbery. Therefore, he argued, his conviction for both felony murder and the underlying offense of robbery violated the constitutional guarantees against double jeopardy. The Court of Criminal Appeals remanded the case for further factual findings, stating that "if [Peterson's] convictions for both felony-murder and first-degree robbery were based on the same robbery, his convictions for both offenses violate double jeopardy principles." On remand, the State conceded "that the felony-murder conviction and the robbery conviction were both based upon the same robbery and ... that, based on [the remand instructions], the circuit court must set aside the robbery conviction and sentence." The State also convened a grand jury, which, on March 8, 2002, returned a three-count indictment against Peterson, charging (1) capital murder during the course of a robbery, (2) capital murder during the course of a burglary, and (3) conspiracy to commit robbery. The State then moved to set aside both the felony-murder conviction and the robbery conviction and to nol-pros the original one-count capital-murder indictment. Peterson objected to the dismissal of the felony-murder conviction, and moved to dismiss the March 2002 indictment. The trial court granted the State's motions and denied Peterson's motion. Peterson petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to dismiss the March 2002 capital-murder indictment and to reinstate his felony-murder conviction. The Court of Criminal Appeals denied the petition. Peterson filed a petition for writ of mandamus with the Supreme Court seeking the same relief. HOLDING: The Supreme Court granted the petition. The Court held that there was no basis on which to set aside his felony-murder conviction and that any prosecution under the March 2002 indictment violates the principle of double jeopardy. The Court held that it is beyond cavil that felony murder is an offense contemplated in the 1995 capital-murder indictment because felony murder is a lesser-included offense of the capital offense of intentional murder committed during the course of a robbery. The Court held that because the guilty plea to felony murder was a valid plea, jeopardy attached to the felony-murder conviction, prohibiting any further prosecution of Peterson for the murder of Eddie Allen.

Ex parte State of Alabama (In re: Crawford v. State), No. 1022032 (Ala. Feb. 27, 2004)
Summary: The Supreme Court quashed the petition for the writ of certiorari, but the Court stated that 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.

Ex parte Privett, No. 1030065 (Ala. Feb. 27, 2004)
Summary: mandamus; Royce Privett, a state inmate serving time for two counts of sodomy and four counts of unlawful sexual conduct, filed in the Montgomery Circuit Court what he calls an action for a declaratory judgment, seeking to have a statute declared unconstitutional. That case, no. CV-00-3070, was assigned to Judge Charles Price. The attorney general waived the right to participate in Privett's action and argued that Privett's action was essentially a petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. Judge Price then transferred the case file to the Elmore Circuit Court on July 2, 2001, and the clerk's office of the Elmore Circuit Court accepted delivery of Privett's case file on July 5, 2001. Subsequently, the Elmore Circuit Court transferred Privett's case to the Blount Circuit Court on August 19, 2001, which is the court in which Privett was convicted. The clerk's office of the Blount Circuit Court assigned Privett's case to Judge Robert E. Austin and placed the case on the active docket as case number CV-01-223. Later in August 2001, Judge Austin recused himself from Privett's case and requested that the Administrative Office of Courts ("AOC") appoint a special judge outside of the Blount Circuit to hear Privett's case. On November 28, 2001, the AOC appointed Judge William H. Rhea of the Etowah Circuit Court to preside over Privett's case in the Blount Circuit Court and issued an order to that effect. Privett filed a petition requesting that the Supreme Court issue a writ of mandamus instructing Judge Price to respond to Privett's action. HOLDING: The Supreme Court denied the petition. The Court held that Privett does not have a clear legal right to the order sought, and there is no imperative duty upon the respondent, Judge Price, to perform. The Court noted that Judge Price is no longer assigned to Privett's case and that he no longer has custody of Privett's case file. Therefore, the Court held that Judge Price no longer has any duties or responsibilities regarding Privett or his case.

Ex parte Clayton, No. 1030068 (Ala. Feb. 27, 2004)
Summary: criminal; collateral estoppel; double jeopardy; This case arises from an incident that occurred on March 14, 2002, at the Hueytown residence of Marlin and Brenda Myrick. Marlin, Brenda, and Doyes Dickey, their neighbor, after dining together at a restaurant, returned to the Myrick residence in an automobile; Marlin was driving. After parking the automobile in his driveway, Marlin got out of the vehicle through the driver's door, while Brenda and Dickey got out on the passenger side. Brenda and Dickey were immediately approached by a person with a pistol, who robbed Brenda of her purse and its contents. On the other side of the vehicle, another armed assailant robbed Marlin of his wallet. The robbers fled from the scene. On April 11, 2002, Brenda and Dickey viewed a lineup and identified Keith Lanier Clayton as the person who had taken Brenda's purse. Subsequently, two indictments for first-degree robbery were returned against Clayton. In case no. CC-02-876, Clayton was charged with the first-degree robbery of Doyes Dickey. In case no. CC-02-877, the subject of this petition, Clayton was charged with the first-degree robbery of Brenda Myrick. In April 2003, Clayton was tried for the alleged robbery of Dickey and was acquitted of that charge by the jury's not-guilty verdict. After his acquittal in case no. CC-02-876, Clayton promptly filed a motion to dismiss the indictment in case no. CC-02-877, alleging "that the State is collaterally estopped from prosecuting [him] again based on his previous acquittal of the identical charge during the same transaction involving the same victims." Clayton contended he could not be tried for the robbery of Brenda Myrick, because, he argued, "the single rationally conceivable issue in dispute" in case no. CC-02-876 was his identity as the perpetrator of the robbery of Dickey and Brenda Myrick and the jury in that case had acquitted him. The trial court, without explanation, denied Clayton's motion to dismiss the indictment. Clayton filed a petition for writ of mandamus directing the trial court to grant his motion to dismiss. HOLDING: The Supreme Court denied the petition. The Court held that the jury could rationally have found that Dickey was not a victim of a robbery during the incident upon which the indictment in case no. CC-02-876 was based and that there was a "rationally conceivable issue in dispute before the jury" other than whether the accused had been the robber. Therefore, the Court held that the prosecution of Clayton for the robbery of Brenda Myrick is permissible.

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