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.

May 7

Decisions Announced by the Supreme Court of Alabama on Friday, May 7, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Alfa Life Ins. Corp. v. Jackson, No. 1001854 & 1002002 (Ala. May 7, 2004)
Summary: insurance; fraud; justifiable reliance; excessiveness of punitive damages; excessiveness of compensatory damages; mental anguish; ripeness; Between 1981 and 1992, Henry and Magnolia Jackson, a married couple, relied exclusively on Rickey English ("English"), an Alfa Life Insurance Corporation ("Alfa") agent, to advise them about insurance and to sell them the insurance they needed. Between 1981 and 1992, English sold the plaintiffs insurance on their lives, their automobiles, and their mobile home. Despite having a 10th-grade education, Henry Jackson cannot read. Although Magnolia Jackson has a high school education and an ability to read, she does not understand insurance policies. Following the birth of the plaintiffs' younger daughter, Hillary, Magnolia Jackson went to English's office in October 1992 to inquire about life insurance on Hillary. According to Magnolia, English told her that he would sell her an insurance policy that would be paid up in fifteen years and that she would get a letter in the mail explaining about the fifteen year pay-up. In fact, in October 1992, Alfa did not have any policies that would pay up in 15 years. Relying on English's representation that the new Alfa policies would pay up in 15 years, the plaintiffs took out new Alfa life insurance policies on their own lives and on their daughters' lives. The schedule of benefits on page three of each policy listed the maturity date of each policy. The listed maturity dates were September 22, 2046, for the policy insuring the life of Henry Jackson; October 19, 2050, for the policy insuring the life of Magnolia Jackson; October 19, 2073, for the policy insuring the life of Shantell Jackson; and October 19, 2087, for the policy insuring the life of Hillary Jackson. Magnolia Jackson did not know what "flexible premium adjustable life insurance" was. Each policy notified the plaintiffs of their right to cancel the policy within 10 days and to receive a refund of the initial premium they had paid on the policy. Each policy also contained this provision: "Entire Contract. This policy and the copy of the application attached to it is the entire contract. ..." The plaintiffs paid premiums on all four of these policies. None of the new policies provided that payment of the specified premium for 15 years would pay up the policies. When Magnolia Jackson did not receive the expected letter from Alfa confirming that the policies would pay up in 15 years, she wrote a letter to Alfa. In pertinent part, the letter stated that English had told Magnolia Jackson when she took out the policies that "these policies would be paid up in 15 years." In response, Alfa district manager Hardy Bryan met with the plaintiffs on August 10, 1995. Bryan told the plaintiffs that the four policies Alfa issued in 1992 would not pay up in 15 years. Further, Bryan told the plaintiffs that each of the four policies would lapse before the end of the estimated life span of the person whose life was insured by it unless the plaintiffs increased the amount of the premiums they were paying on each policy. Alfa then moved to dismiss the claims against Alfa on the ground that the plaintiffs' putative dismissal of the claims against English with prejudice had foreclosed the plaintiffs from further prosecuting their claims against Alfa. However, the trial court denied the Alfa motion to dismiss, and the claims against Alfa proceeded to trial. At the close of all the evidence, Alfa moved for a judgment as a matter of law. The trial court denied the motion and submitted the case to the jury. The trial court entered an order on the case action summary dismissing the claims against English without prejudice the day after the trial. The jury returned a general verdict awarding the plaintiffs $500,000 in compensatory damages and $5,000,000 in punitive damages. Alfa renewed its motion for a judgment as a matter of law, which the trial court had denied at the close of all the evidence, and moved, in the alternative, for a new trial or a remittitur. After conducting a BMW/Hammond/Green Oil hearing, the trial court denied Alfa a judgment as a matter of law, a new trial, or a remittitur of the compensatory-damages award. However, the trial court remitted the punitive-damages award from $5,000,000 to $1,500,000 to achieve a ratio of punitive damages to compensatory damages of three to one and allocated a portion of this reduced punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division. Alfa appealed the denial of a judgment as a matter of law and the denial of a remittitur of the compensatory-damages award. Claiming that the trial court should have reduced the punitive-damages award to an amount less than $1,500,000, Alfa also appealed the remittitur of the punitive-damages award. Claiming that the trial court should not have reduced the punitive-damages award, the plaintiffs cross-appeal the remittitur of the punitive-damages award. The plaintiffs also cross-appeal the allocation of a portion of the reduced punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division. HOLDING: The Supreme Court concluded that the trial court correctly denied Alfa a judgment as a matter of law. However, the Court concluded that the trial court erred in denying Alfa a remittitur of the compensatory-damages award, erred in not reducing the punitive-damages award enough to satisfy constitutional limits, and erred in allocating a portion of the punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division. Accordingly, the Court reverse the judgment insofar as it allocates a portion of the punitive-damages award to the Alabama Civil Justice Foundation, Consumer Protection Division, and, in all other respects, affirm the judgment on the condition that the plaintiffs accept a reduction of the compensatory-damages award to $100,000 and a reduction of the punitive-damages award to $300,000. The Court distinguished this case from a "vanishing premium" case, explaining that the allegation that the insurance would be "paid up" was not an allegation of a "vanishing premium." The Court stated that the absence of a dismissal with prejudice of the claims against English deprives Alfa of the main premise of its argument that it is entitled to judgment as a matter of law on the ground that the plaintiffs' putative dismissal with prejudice of the claims against English foreclosed the plaintiffs' claims against Alfa. Given the plaintiffs' particular education, knowledge, and ability to read and to understand life insurance policies and given the plaintiffs' relationship of trust with English, the Court stated that it cannot hold, as a matter of law, that the plaintiffs "closed [their] eyes to avoid the discovery of the truth."

Chapman v. Smith, No. 1011863 (Ala. May 7, 2004)
Summary: medical malpractice; expert testimony; applicable standard of care; Linda P. Smith sued Lucy Gravlee Chapman, M.D.; Anesthesiology & Pain Medicine, P.C.; and HealthSouth Medical Center, Inc. (hereinafter collectively referred to as "the appellants") alleging medical malpractice based on Dr. Chapman's allegedly negligent administration of a cervical epidural injection performed on July 20, 1994. Linda's husband, Jimmy Joe Smith, also sued the appellants, stating a derivative claim of loss of consortium. The case went to trial. The Smiths presented the testimony of their daughter; they then attempted to present testimony of their two proffered expert witnesses, Dr. Pawan Grover and Dr. William Kendall. The appellants objected to their testimony on the basis that neither Dr. Grover nor Dr. Kendall was qualified to testify at trial. The trial court ruled that Dr. Pawan Grover is not qualified to testify as an expert in this case because he was not board-certified in anesthesiology in the year preceding the event which gives rise to the cause of action in this case. The trial court granted the motion of the appellants that, as a matter of law, Dr. Kendall has not established the standard of care as to the use of fluoroscopy in cervical epidural steroid injections. Thus, the trial court entered a judgment as a matter of law in favor of the appellants and against the Smiths. The Smiths filed a motion to alter, amend, or vacate the trial court's judgment. The trial court entered an order providing that Dr. Pawan Grover met the criteria of Alabama Code §6-5-548(c) and, therefore, was a similarly situated health care provider competent to give expert testimony. The trial court ruled that its failure to allow Dr. Pawan Grover to testify was fatal to the Smiths' claim. Thus, the trial court granted the motion for new trial. HOLDING: The Supreme Court affirmed in part and reversed in part. The Court held that the trial court acted within its discretion in ruling that Dr. Grover was qualified to testify against Dr. Chapman as to the standard of care that Dr. Chapman should have exercised in this case. However, the Court held that the trial court exceeded its discretion in finding that Dr. Kendall was qualified to testify against Dr. Chapman concerning the applicable standard of care. Therefore, the Supreme Court affirmed the trial court's order granting the Smiths' motion to alter, amend, or vacate its judgment and setting the case for a new trial insofar as it held that Dr. Grover was qualified to testify against Dr. Chapman, and the Court reversed the order insofar as it held that Dr. Kendall was qualified to testify against Dr. Chapman. The Court remand the case for further proceedings.

Ex parte Sawyer, No. 1020888 (Ala. May 7, 2004)
Summary: venue; forum non conveniens; The Lurleen B. Wallace Developmental Center ("the Wallace Center"), which is operated by the Department of Mental Health and Mental Retardation ("DMHMR") and located in Morgan County, provides long-term habilitation services and treatment for persons who suffer from mental retardation; it employs physicians and nurses to provide health-care services to those persons. At the time of her death, Katie Robinson was a resident at the Wallace Center. She suffered from eating disorders and required supervision while she ate and digested her food. Those eating disorders included her willingness to eat anything, even if it was not edible or digestible (pica disorder), and her tendency to regurgitate her food, which often caused her to choke and necessitated assistance to clear her throat. On August 20, 1999, Katie Robinson died after choking on her food. J.C. Robinson ("Robinson"), as administrator of the estate of Katie Robinson, brought a wrongful-death action against Kathy Sawyer, the commissioner of the DMHMR, and others. Although J.C. Robinson is not a resident of Montgomery County and none of the actions complained of in this case occurred in Montgomery County, Robinson filed the action in Montgomery County because Sawyer is a State officer who resides in Montgomery County. The defendants moved on the basis of Ala. Code §6-5-546, a part of the Alabama Medical Liability Act of 1987, Ala. Code §6-5-540 et seq. ("AMLA"), or, in the alternative, on the basis of Ala. Code §6-3-21.1 the forum non conveniens statute, to transfer this action from Montgomery County to Morgan County, the county in which most of the incidents that allegedly led to Katie Robinson's death occurred and the county where all the defendants except Sawyer reside. The trial court denied the motion. The defendants petitioned the Supreme Court for a writ of mandamus directing the trial court to transfer the action to Morgan County. HOLDING: The Supreme Court granted the petition and issue the writ. The Court held that the AMLA does not apply in the present case because the Wallace Center is not a "health care provider" as that term is defined in §6-5-542. The Court held that the defendants have established the existence of an appropriate venue in Morgan County and have established that a transfer to that venue is necessary "for the convenience of parties and witnesses, or in the interest of justice." Thus, the Court held that the trial court exceeded its discretion in denying the defendants' motion pursuant to §6-3-21.1 to transfer the case to Morgan County.

Ex parte Sawyer, No. 1021194 (Ala. May 7, 2004)
Summary: venue; forum non conveniens; On August 8, 2000, Cynthia Ruth Shirley, a 55-year-old mentally retarded resident of the Lurleen B. Wallace Developmental Center ("the Wallace Center"), had an altercation with an employee of the Wallace Center. During the altercation, she fell and struck her head on a metal table. As a result of the fall, she suffered severe injuries to her brain. The day after the fall, Shirley was transported to Huntsville Hospital in Madison County, where she died eight days later from a brain hemorrhage. Laura Percer, as administratrix of the estate of Cynthia Ruth Shirley, brought a wrongful-death action against the Alabama Department of Mental Health and Mental Retardation ("DMHMR"); Kathy Sawyer, commissioner of DMHMR; James Finch, director of the Lurleen B. Wallace Developmental Center ("the Wallace Center"); and several fictitiously named defendants. Although Percer is not a resident of Montgomery County and none of the actions complained of in this case occurred in Montgomery County, Percer filed the action in Montgomery County because Sawyer is an officer of the State who resides in Montgomery County. The defendants moved on the basis of Ala. Code §6-5-546, a part of the Alabama Medical Liability Act of 1987, Ala. Code §6-5-540 et seq. ("AMLA"), or, in the alternative, on the basis of Ala. Code §6-3-21.1, the forum non conveniens statute, to transfer this action from Montgomery County to Morgan County, the county in which most of the incidents that allegedly led to Shirley's death occurred and the county in which all of the defendants except Sawyer reside. The trial court denied the motion. The defendants petition this Court for a writ of mandamus directing the trial court to transfer the action to Morgan County. HOLDING: On the basis of Ex parte Sawyer, No. 1020888 (Ala. May 7, 2004) (summarized above), the Supreme Court granted the petition and issued the writ.

DaimlerChrysler Corp. v. Morrow, No. 1021866 & 1021977 (Ala. May 7, 2004)
Summary: breach of express and implied warranties; fraudulent suppression; This dispute arose following David Morrow's purchase from Akin Ford/ Chrysler, Inc. of Winder, Georgia ("Akin"), of a Dodge Ram 3500 pickup truck ("the truck") manufactured by DaimlerChrysler Corporation ("Chrysler"). Morrow purchased the truck on March 27, 1997, for use in his "less than truckload freight" business. Specifically, that business involved the hauling of commercial signs on a trailer that was to be pulled by the truck. Morrow had several trailers, ranging in length from 16 feet to approximately 40 feet. When he purchased the truck, Morrow received a written warranty from Chrysler. The warranty provided, in pertinent part, that it "cover[ed] the cost of all parts and labor needed to repair any defective item on [the] truck -- that is, defective in material, workmanship, or factory preparation." The warranty began when Morrow took delivery of the truck and expired at 36 months or 36,000 miles, whichever occurred first. In early May 1997, Morrow began noticing that the truck exhibited a bucking and jerking sensation when you were driving around 55 miles per hour. According to Morrow, the problem was "intermittent," and occurred only when he was pulling his approximately 40-foot trailer. On June 17, 1997, after he had driven the truck 18,331 miles, Morrow took it to Akin, complaining of the jerking and bucking. Akin was not able to fix the problem on that occasion. Before he had driven the truck 36,000 miles and within the three-year warranty period, Morrow again contacted Akin, because the truck continued to buck and jerk. In an attempt to resolve the problem, Akin offered to replace the truck with a new truck covered by a new warranty. However, Morrow rejected that offer, because, as he put it, there was "no guarantee that a new Dodge truck would not do the same thing as the one [he] already owned." Morrow continued to use the truck in his business until approximately April 1998. By that time, the truck had been driven more than 100,000 miles. He then began to rent a tractor-trailer rig to use in his sign-hauling business. Subsequently, Morrow used the truck on two or three additional business trips; he primarily used the truck as his personal vehicle. By March 2003, when the case was tried, Morrow had driven the truck approximately 248,000 miles. On October 27, 1998, Morrow sued Chrysler and Akin. Morrow's complaint included a claim against Chrysler alleging a breach of express warranty, a claim against Akin alleging a breach of an implied warranty of merchantability, and a claim against both Chrysler and Akin alleging fraudulent suppression. Also, Morrow sought attorney fees under § 8-20-8, Ala. Code 1975, a part of the Motor Vehicle Franchise Act, § 8-20-1 et seq, Ala. Code 1975 ("the Act"). After considerable discovery, Chrysler and Akin filed a motion for a summary judgment, which the trial court granted with respect to Morrow's fraudulent-suppression claim. Ultimately, the case was tried before a jury. Chrysler and Akin timely filed a motion for a judgment as a matter of law ("JML"), which the trial court denied. The case was submitted to the jury on Morrow's claims that Chrysler had breached its express warranty and that Akin had breached the implied warranty of merchantability. The jury returned a general verdict in the amount of $93,500 against Chrysler and Akin. After Chrysler and Akin renewed their motion for a JML and, alternatively, moved for a new trial. Also, Morrow moved for an award of attorney fees under the Act. On June 27, 2003, the trial court denied Chrysler and Akin's post judgment motions and granted Morrow's motion, awarding $120,540 in attorney fees. Chrysler and Akin appealed, and Morrow cross-appealed. Chrysler and Akin contend the trial court erred in denying their motion for a JML made after the return of the verdict. Morrow contends the trial court erred in entering a summary judgment for Chrysler and Akin with respect to his fraudulent-suppression claim. HOLDING: The Supreme Court affirmed in part and reversed in part. The Court held that Morrow's extensive use of the truck since its delivery precludes Morrow's claim that the truck was not fit for the ordinary purposes for which such trucks are used. Therefore, the Court held that the trial court erred in denying Akin's renewed motion for a JML with respect to Morrow's breach-of-implied-warranty claim. The Court held that that Chrysler's express warranty did not fail of its essential purpose, because it is undisputed that Chrysler, within a few months after the jerking and bucking began, and before the truck had been driven 36,000 miles, offered to replace the truck with a new truck covered by a new warranty, an offer that Morrow rejected. Thus, the Court reversed the judgment in favor of Morrow and against Chrysler and Akin. With regard to the fraudulent-suppression claim, the Court held that Morrow failed to demonstrate that Chrysler and Akin had a duty to disclose certain similar problems that had occurred in other Dodge Ram trucks like his. Thus, the Court affirmed the summary judgment in favor of Chrysler and Akin on the fraudulent-suppression claim.

Ex parte State of Alabama (In re: Cockrell v. State), No. 1021997 (Ala. May 7, 2004)
Summary: criminal; attempted murder; transferred intent; Following a previous disagreement over the theft of some money from Carlos Ivey's car, Christopher Cockrell was seen hiding in some bushes next to the neighborhood grocery store. Ivey pulled up in his car to a stop sign close to the store. Cockrell, following Ivey's car, ran from the bushes down the street. Cockrell fired several shots into Ivey's car. One of the shots struck 12-year-old Jerome Fails, who was standing on his grandmother's front porch eating a sucker, in the head. Although Jerome survived, he suffered severe brain damage and [is] unable to move or talk. Cockrell was charged with the attempted murder of Jerome Fails, the unintended victim. Cockrell was not charged with the attempted murder of Carlos Ivey, the intended victim. The jury found Cockrell guilty of attempted murder, and the trial court sentenced Cockrell to life imprisonment. Cockrell appealed his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals reversed Cockrell's conviction, holding that there was insufficient evidence to support a conviction of attempted murder as to Fails because there was no evidence indicating that Cockrell intended to murder Fails. The Court of Criminal Appeals rejected the State's argument that the doctrine of transferred intent applied to Cockrell's case; that court stated that the doctrine was usually reserved for crimes of general, as opposed to specific, intent, e.g., assault. According to the Court of Criminal Appeals, attempted murder is a specific-intent crime, and a conviction for attempted murder cannot be obtained unless the accused intended to murder the person who was actually harmed. The Court of Criminal Appeals remanded the case to the trial court for that court to sentence Cockrell for the offense of first-degree assault with a deadly weapon, a lesser offense included within the offense of attempted murder. HOLDING: The Supreme Court affirmed the Court of Criminal Appeals' reversal of the trial court. The Court noted that Cockrell does not dispute that the doctrine of transferred intent applies to a murder charge. Cockrell concedes that he intended to murder Ivey. However, the issue to be decided is whether the doctrine of transferred intent is applicable to an attempted-murder charge. The Court concluded that the statute defining "attempt" does not clearly evince a legislative intent to apply the doctrine of transferred intent -- applicable only to the completed crime of murder -- to punish as attempted murder the consequences of an unintended, nonfatal result. The Court noted that to hold otherwise would be to rewrite the attempt statute so as to imbue an attempt with not only the intent to commit the specific offense attempted, but also such other intent as would be imputed to a defendant by operation of law only upon consummation of the offense solely by reason of harboring the specific intent necessary to commit such offense. Likewise, the Court noted that a contrary holding would ignore the fact that an attempt is complete upon the doing of "any overt act towards the commission of the offense," an act that of necessity always precedes the event required to bring into play the doctrine of transferred intent -- the death of an innocent bystander.

Smith v. AmSouth Bank, Inc., No. 1022090 (Ala. May 7, 2004)
Summary: (plurality opinion) banking; negligence; Melvin Smith is a wholesale automotive dealer doing business out of his home in Wilsonville. He incorporated "Specialty Motor Cars, Inc." in 1976, but dissolved the corporation in 1980. He never re-incorporated, nor did he register "Specialty Motor Cars" as a tradename with the Alabama Secretary of State. However, Smith resumed his wholesale automotive operation under the name "Specialty Motor Cars." He conducts business solely with automobile dealers, not with the general public. In December 1998, Smith hired Chuck Utsey to buy and sell vehicles on Smith's behalf. The agreement between Smith and Utsey worked as follows. Utsey was to locate vehicles for Smith to purchase; Smith would then approve the purchase and provide Utsey with the funds to purchase the vehicle from an account at SouthTrust Bank ("Smith's SouthTrust account"). After purchasing the vehicle, Utsey would obtain a bill of sale in the name of "Specialty Motor Cars," take possession of the vehicle, and sell the vehicle once he found a purchaser. Utsey was given the authority to receive, endorse, and deposit checks in Smith's SouthTrust account on behalf of "Specialty Motor Cars." On September 1, 1999, Utsey, his wife, and his lawyer formed JCU, Inc. ("JCU"). Smith had no knowledge that Utsey had formed that corporation. In early September 1999, Utsey opened a corporate checking account at a Selma branch of AmSouth Bank in the name of "JCU, Inc. d/b/a Specialty Motor Cars." To document the validity of the account, Utsey presented AmSouth with the articles of incorporation of JCU, an occupational license in the joint names of "JCU, Inc." and "Specialty Motor Cars," and the corporate name registration for "JCU, Inc." AmSouth provides its employees with "The Platform Edge Manual," a guide to various banking functions, including opening new accounts. The manual includes articles of incorporation among the acceptable forms of identification for opening a new account. It lists occupational licenses and corporate name registrations as unacceptable forms of identification for that purpose. When Utsey opened the corporate checking account, AmSouth completed an "Account Package" form, upon which was printed the following requirement: "If this account is a corporation or an organization account, it is agreed that the Certified copy of Resolution of the Board of Directors shall be a part of the applicable customer agreement for the account noted below." Utsey did not have a certified copy of a resolution, yet AmSouth nevertheless opened the account. After he opened the account at AmSouth, Utsey occasionally deposited checks made out to "Specialty Motor Cars" in his AmSouth account rather than in Smith's SouthTrust account. AmSouth tellers would sometimes give Utsey cash back when he made these deposits. Over time, Smith's debt in his SouthTrust line of credit grew to approximately $266,000, and Smith realized that Utsey had been appropriating Smith's funds to his own use. On January 22, 2001, Smith sued Utsey, JCU, and AmSouth. Against Utsey and JCU, he alleged that they converted his funds; against AmSouth, Smith made three claims: that AmSouth negligently opened the account, that it negligently accepted checks presented by Utsey, and that it converted Smith's funds. All parties filed answers denying liability. However, Utsey and JCU never responded to any further motions or pleadings. Consequently, the trial court entered a partial summary judgment in favor of Smith with respect to his claims against Utsey and JCU. AmSouth filed a motion for a summary judgment as to Smith's complaint. The trial court entered a summary judgment in favor of AmSouth on all counts. Smith appealed. HOLDING: The Supreme Court affirmed. The plurality opinion held that AmSouth owed no duty to protect Smith from wrongful acts committed by Utsey. The plurality opinion held that Smith had no relationship with AmSouth Bank, in either his individual or his professional capacity. The plurality opinion also held that Smith failed to present substantial evidence of foreseeability, the focus of the traditional special-circumstances test. The plurality opinion further found that Smith entrusted Utsey with sufficient responsibility to place this situation within the purview of Ala. Code §7-3-405(b). However, the plurality opinion concluded that Smith has failed to produce substantial evidence indicating that AmSouth violated its duty to act in a commercially reasonable manner when it accepted certain checks from Utsey for deposit.

Alabama Envtl. Council, Inc. v. Alabama Public Serv. Comm'n, No. 1030046 (Ala. May 7, 2004)
Summary: appellate jurisdiction; utility rates; standing to appeal; Alabama Power Company ("Alabama Power") filed a proposed residential rate rider ("Rate Rider RE") with the Alabama Public Service Commission ("the Commission"), pursuant to Ala. Code §37-1-81(a). The proposed Rate Rider RE gives residential customers of Alabama Power the option of paying an additional amount on their bills, which amount will be used to purchase renewable energy, defined in Rate Rider RE as energy from "sources such as biomass, landfill methane, solar, wind and hydro." Subsequently, the Commission established Informal Docket No. U-4485 to consider Rate Rider RE. Southern Alliance for Clean Energy, Inc. ("SACE"), filed a petition to intervene in Informal Docket No. U-4485, asserting that SACE had members who are Alabama Power customers and who would be among the most likely of Alabama Power's customers to pay the additional amount to be used to purchase energy through Rate Rider RE. Alabama Power filed an objection to SACE's petition. The legal division of the Commission prepared a memorandum dated May 2, 2003, addressed to the commissioners and directors of the Commission recommending that the commissioners approve Rate Rider RE and deny SACE's petition to intervene on the ground that, among other things, SACE lacked standing to intervene. The attorney general requested that the Commission "issue a procedural schedule for interested persons and entities to participate in the decision of when an entity is 'affected' by a Public Service Commission order," out of a concern that the Commission's decision regarding the issue of standing would have some precedential importance. The Commission met and unanimously voted to accept the recommendation of its legal division to approve the proposed Rate Rider RE and to deny SACE's petition to intervene. That same day, Alabama Environmental Council, Inc. ("AEC"), filed a petition to intervene. The Commission entered an order (1) approving Rate Rider RE, (2) denying SACE's petition to intervene, (3) denying AEC's petition to intervene on the basis that the petition was untimely, and (4) granting the attorney general's petition to intervene, stating that the Commission would establish a separate proceeding addressing the Commission's interpretation and implementation of Ala. Code §37-1-87, which allows intervention only by entities "affected" by a proceeding before the Commission. In its order, the Commission ruled, with regard to SACE's and AEC's petitions to intervene: (1) that SACE did not demonstrate that it or its members would be "affected" -- as that term is used in Ala. Code §37-1-87 -- by the Commission's order concerning Rate Rider RE, and (2) that AEC's petition to intervene was untimely. SACE and AEC appealed the denial of their petitions to intervene. HOLDING: The Supreme Court dismissed the appeal because it held that SACE and AEC are neither "parties" nor "intervenors" under Ala. Code §37-1-141 and thus lack standing to appeal.

Packaging Acquisition Corp. v. Hicks, No. 1030148 (Ala. May 7, 2004)
Summary: standing; Packaging Acquisition Corporation ("PAC"), a Georgia corporation engaged in the business of flexible packaging, purchased the sellers' business, AMPAC, Inc., also engaged in flexible packaging, and the assets of the business. The sellers and two acquisition companies, Printmasters Acquisition Corporation and AMPAC Acquisition Corporation, executed the purchase agreement. PAC was the sole shareholder in both acquisition companies. PAC was not a signatory to the purchase agreement; however, the indemnity clause in Article 14 of the agreement provided that the sellers would hold harmless the purchasers and its officers, directors, shareholders, employees, and agents from all losses. After the purchase was completed, PAC combined some of the assets of the sellers' business with its own to form another business, PacOne, Inc. The acquisition companies eventually defaulted on their obligations to the sellers, and shortly after the default, the acquisition companies and PacOne filed a petition in bankruptcy. The sellers sued PAC, alleging that PAC had committed several torts, including misrepresentation of material facts; interference with an existing business; breach of contract; and breach of fiduciary duties. PAC filed a counterclaim against the sellers alleging breach of a warranty as to the purchase agreement and a misrepresentation of material facts by the sellers to the acquisition companies. The sellers filed a motion to dismiss PAC's counterclaim in which they argued that PAC did not have standing to assert the counterclaim because PAC no longer held shareholder status of the acquisition companies, which were bankrupt. PAC argued that it was not asserting its counterclaim by virtue of its status as a shareholder, but for its own personal losses as a third-party beneficiary under the purchase agreement between the sellers and the acquisition companies. The trial court dismissed PAC's counterclaim, with prejudice, on the basis that PAC lacked standing to assert it. The trial court reasoned that PAC's status as a shareholder in the acquisition companies was extinguished through the bankruptcy proceedings. The trial court entered an order pursuant to Rule 54(b), Ala.R.Civ.P., certifying as final its order dismissing PAC's counterclaim for lack of standing. PAC appeals. In addition to the issue of the propriety of the dismissal of the counterclaim, PAC also challenged on appeal the trial court's ruling on the issue of the enforceability of the forum-selection clause contained in the purchase agreement. HOLDING; The Supreme Court reversed. First, the Court held that the issue concerning the forum-selection clause was not before it because the trial court did not certify its ruling on the forum-selection-clause issue as final pursuant to Rule 54(b). The Court further held that although PAC lost its status as a shareholder of the acquisition companies when those companies were declared bankrupt, it did not lose its standing to sue the sellers as a third-party beneficiary under the purchase agreement.

Ex parte State of Alabama (In re: Pruitt v. State), No. 1030328 (Ala. May 7, 2004)
Summary: criminal; driving under the influence; waiver; felony; indictment; was indicted for two counts of driving under the influence ("DUI"). Count one of the indictment charged Pruitt with the offense of "unlawfully operat[ing] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while under the influence of alcohol and having been convicted of three prior offenses of driving under the influence, in violation of [§] 32-5A-191(a)(2) of the Code of Alabama." The second count of the indictment charged Pruitt with the offense of having "unlawfully operate[d] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while there was 0.08% or more of alcohol by weight in his blood, in violation of [§] 32-5A-191(a)(1) of the Code of Alabama." During Pruitt's jury trial, the prosecutor stated that he was "electing to proceed under the .08 charge that [Pruitt] was charged with in the alternative." The State admitted into evidence during the course of the trial Pruitt's three prior DUI convictions, and Pruitt did not object to the admission of that evidence.. The jury convicted Pruitt of DUI as charged in count two of the indictment, and the trial court sentenced him as a felon to one year and a day based upon his three prior DUI convictions. The sentence was subject to suspension after Pruitt served 90 days in jail. Pruitt was also ordered to attend a class for DUI offenders and to bear the costs of the class and the court costs. Pruitt appealed his conviction to the Court of Criminal Appeals. The Court of Criminal Appeals held that because count two of the indictment contained no reference to Ala. Code §32-5A-191(h), which makes a fourth or subsequent conviction for DUI a felony and because Pruitt was not on notice that he was being charged with a felony, the trial court could not have convicted him of felony DUI. Thus, the Court of Criminal Appeals remanded the case for the trial court to vacate Pruitt's conviction for felony DUI and to adjudge him guilty of a misdemeanor DUI in accordance with count two of the indictment. HOLDING: The Supreme Court reversed the Court of Criminal Appeals. The Court held that the indictment gave Pruitt appropriate notice that he was being charged with a violation of §32-5A-191(a)(1). The Court held that Pruitt waived his right to object on appeal to the application of the enhancement statute to his case because he did not object at trial.

Ex parte Barrows, No. 1030359 (Ala. May 7, 2004)
Summary: filing of pleadings; circuit court jurisdiction over a will contest; Jamie Kay Shields Barrows, as executrix of the will of James Edward Shields, petitioned the St. Clair Probate Court to probate James Edward Shields's will. On February 10, 2003, the probate court admitted the will to probate and issued letters testamentary to Barrows. On July 30, 2003, James Shields, Jr. ("Shields Jr.") filed a complaint in the probate court, contesting the will. On July 31, 2003, the probate court, ex mero motu, transferred the will contest to the circuit court. On July 31, 2003, pursuant to the probate court's order, the chief clerk of the probate court filed the will-contest complaint and a copy of the probate court's transfer order with the circuit court clerk. On August 4, 2003, counsel for Shields Jr. filed in the circuit court a copy of the will-contest complaint that had been filed in the probate court. The word "probate" was marked out and the word "circuit" was inserted in its place in the style. Counsel also submitted with the complaint a circuit court cover sheet. The circuit court docket fee for the filing of the complaint was not submitted until August 11, 2003. Barrows moved to dismiss the will contest filed by Shields Jr. The circuit court denied that motion. Barrows petitioned the Supreme Court for a writ of mandamus directing the circuit court to set aside its order denying the motion to dismiss on the basis that the circuit court never acquired jurisdiction over the will contest. HOLDING: The Supreme Court denied the petition for writ of mandamus. The Court held that the filing in the circuit court of a copy of the will-contest complaint filed in the probate court with the word "probate" marked out and the word "circuit" inserted in its place in the style and a circuit court cover sheet constituted an independent filing in the circuit court of the documents originally filed in and transferred from the probate court. Therefore, the Court held that he properly invoked the limited jurisdiction of the circuit court to entertain the will contest. The Court held that because August 10, 2003, was a Sunday, the filing fee was filed timely on Monday, August 11, 2003, within six months after the will had been admitted to probate.

Ex parte Blankenship, No. 1030484 (Ala. May 7, 2004)
Summary: immunity; Lavone P. Higginbotham, individually and as the personal representative of the estate of Charles E. Higginbotham, deceased, sued Talladega County Deputy Sheriff Jason Lowell Blankenship and the Talladega County Commission ("the County") seeking damages for personal injuries arising out of an automobile accident involving a vehicle driven by Charles E. Higginbotham and a vehicle driven by Deputy Blankenship. The complaint alleged that "Defendant, Jason Lowell Blankenship, is ... a Deputy Sheriff with the Talladega County Sheriff's Department" and that at the time of the accident he was "performing his duties as a Deputy Sheriff." Deputy Blankenship and the County filed a joint motion to dismiss on the ground, among others, that they were "entitled to absolute immunity." The trial court denied the motion. Deputy Blankenship petitioned the Supreme Court for a writ of mandamus directing the Talladega Circuit Court to dismiss the action. HOLDING: The Supreme Court granted the petition. The Court held that because it is alleged in the complaint and admitted in the answer that Deputy Blankenship was acting in the line and scope of his duties at the time of the accident, Deputy Blankenship is entitled to immunity under Article I, § 14 of the Alabama Constitution. The Court declined the invitation by Higginbotham to disregard the allegation that Deputy Blankenship was performing his duties as a Deputy Sheriff' at the time of the accident.

May 14

Decisions Announced by the Supreme Court of Alabama on Friday, May 14, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Employees of the Montgomery County Sheriff's Dep't v. Marshall, No. 1011694 (Ala. May 14, 2004)
Summary: employment; overtime compensation; immunity; The Sheriff of Montgomery County appoints the persons who are employed at the Montgomery County jail and directs them in their work, but the Commission pays those persons with county funds. Under Ala. Act No. 2280, the Montgomery City-County Personnel Board ("the Personnel Board") promulgated and published rules and regulations. These rules and regulations included the pay plan applicable to all merit system employees paid by the Commission. Thus, these rules and regulations, including the pay plan, applied to persons who worked at the jail. Rule VIII of the rules and regulations of the Personnel Board governed the overtime compensation due persons who worked at the jail. In January 2000, the sheriff changed the shifts for jailers and supervisors at the jail from 8 hours to 12 hours each. However, the sheriff restored the shifts from 12 hours to 8 hours each in June 2002. Jailers or supervisors at the Montgomery County Detention Facility ("the jail") sued Sheriff D.T. Marshall, the sheriff of Montgomery County and the Montgomery County Commission in federal court. The plaintiffs claimed they were owed overtime compensation by the sheriff and the Commission. The plaintiffs asserted claims for violation of the Fair Labor Standards Act ("FLSA") and for breach of contract. Concluding that the Eleventh Amendment to the United States Constitution immunized the sheriff against liability under the FLSA, the federal court dismissed the FLSA claims against the sheriff with prejudice. Concluding that the Commission was not the plaintiffs' "employer" under the FLSA, the federal court likewise dismissed the FLSA claims against the Commission with prejudice. The federal court dismissed the breach-of-contract claims against both the sheriff and the Commission without prejudice. The plaintiffs then brought the present lawsuit against the sheriff "in his official and/or individual capacity as Sheriff of Montgomery County, Alabama" and against the Commission in the Montgomery Circuit Court. The plaintiffs asserted claims against the sheriff and the Commission on these theories: (1) breach of contract grounded on the alleged nonpayment of compensation for overtime, (2) quantum meruit grounded on the alleged nonpayment of compensation for overtime, (3) breach of contract grounded on an increase in the duration of the plaintiffs' shifts from 8 hours to 12 hours, (4) "retaliation" grounded on the increase in the plaintiffs' shifts, and (5) "discrimination" grounded on the increase in the plaintiffs' shifts. The plaintiffs sought monetary and injunctive relief. The sheriff, "in his official capacity as Sheriff of Montgomery County, Alabama" only and the Commission moved for summary judgments. In moving for summary judgment, the sheriff not only challenged the merits of the plaintiffs' claims but also asserted the affirmative defense of State immunity. The Commission challenged the merits of the plaintiffs' claims. The trial court entered summary judgment for the sheriff on all of the plaintiffs' claims. Although the sheriff had moved for summary judgment in only his official capacity, the summary judgment for the sheriff was not limited to the claims against the sheriff in his official capacity. The trial court entered summary judgment for the Commission on all of the plaintiffs' claims except the plaintiffs' claims for breach of contract and quantum meruit grounded on the alleged nonpayment of compensation for overtime. The order granting the sheriff's summary-judgment motion held that State immunity immunized the sheriff from liability for money damages on the claims for: (1) breach of contract grounded on the alleged nonpayment of compensation for overtime, (2) quantum meruit grounded on the alleged nonpayment of compensation for overtime, and (3) breach of contract grounded on the increase in the length of the plaintiffs' shifts. On the ground that the sheriff's evidence had shifted the burden to the plaintiffs to produce substantial evidence establishing a genuine issue of material fact and the plaintiffs had not met that burden of production, the summary-judgment order further held that the sheriff was entitled to summary judgment on all of the plaintiffs' claims insofar as they sought injunctive relief and on the plaintiffs' claims for "retaliation" and "discrimination" insofar as they sought money damages. The order certifying the summary judgment for the sheriff as a final judgment pursuant to Rule 54(b) stated that "the Court finds there is no just reason for delay and further directs that a judgment be entered pursuant to Rule 54(b), with respect to the complete grant of immunity to Defendant the Montgomery County Sheriff on all the Plaintiffs' claims." The plaintiffs appealed only the judgment for the sheriff. HOLDING: The Supreme Court affirmed the summary judgment for the sheriff in his individual capacity on all of the plaintiffs' claims. The Court also affirmed the summary judgment for the sheriff in his official capacity on all of the plaintiffs' claims insofar as they sought money damages. The Court also affirmed the summary judgment for the sheriff in his official capacity on the plaintiffs' claims for injunctive relief for breach of contract and quantum meruit grounded on alleged nonpayment of overtime compensation. The Court dismissed as moot the plaintiffs' appeal insofar as it seeks review of the summary judgment for the sheriff in his official capacity on the plaintiffs' claims for injunctive relief for breach of contract, "retaliation," and "discrimination" grounded on the increase in shift hours. The Court held that, since the sheriff's motion did not challenge the plaintiffs' claims against the sheriff in his individual capacity, the motion did not meet the initial burden of the sheriff in his individual capacity -- the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment. The Court held that State immunity immunizes the sheriff in his official capacity from liability for money damages. The Court noted that the law obliges the Commission to pay the plaintiffs' compensation from county funds and does not oblige the State or the sheriff to pay the plaintiffs' compensation from State funds. Consequently, the Court held that the plaintiffs failed to establish that payment of overtime compensation is a ministerial act the sheriff can be compelled to perform.

U-Haul Co. of Ala., Inc. v. Johnson, No. 1021726 (Ala. May 14, 2004)
Summary: class action; class certification; consideration of defenses; voluntary payment doctrine; U-Haul International, Inc. rents various types of vehicles and equipment to customers, not only through its freestanding rental centers, but also through independent dealers who operate other businesses in addition to their U-Haul rental dealerships. Jim's Auto Service was such an independent dealer in Woodstock who was described as a "manual dealer," that is, the U-Haul rental transactions at Jim's Auto were handled manually; Jim's Auto was not computerized. Its employees completed each U-Haul contract by hand and calculated the taxes that applied to each rental transaction. On December 10, 1998, Andrew McBride Johnson rented a U-Haul trailer from Jim's Auto. Jim's Auto taxed Johnson's trailer rental using a sales-tax rate rather than the proper rental-tax rate, resulting in an overcharge of $3.36. Johnson paid the amount charged. Johnson became suspicious as to why he was charged sales tax on a rental transaction. He then consulted his brother, who is an attorney. Johnson's brother advised him that a sales-tax rate should not have been charged on the rental transaction. On December 16, 1998, Johnson returned to Jim's Auto and rented a U-Haul truck. Jim's Auto again charged a sales tax instead of rental tax on the rental of the U-Haul truck, resulting in an overcharge of $6.39. Despite what he had learned from his brother, Johnson again paid the amount charged by Jim's Auto because, he said, Jim's Auto was convenient and close to his place of work. On December 17, 1998, Johnson filed the complaint in this case. He initially sued U-Haul Company of Alabama, Inc. ("U-Haul Alabama") and Jim's Auto. He later amended his complaint to add U-Haul International, Inc. (U-Haul Alabama, U-Haul International, and Jim's Auto are sometimes collectively referred to as "the U-Haul defendants"). Johnson alleged, on behalf of himself and a purported class of similarly situated persons, claims of breach of contract, fraudulent misrepresentation, suppression, negligent or wanton supervision and training, conversion, and conspiracy. All of the claims were based upon U-Haul customers' having been charged a sales-tax rate on U-Haul rentals instead of a rental-tax rate. Johnson contended that U-Haul International retained any amount a customer paid for taxes that exceeded the appropriate rental tax the U-Haul defendants remitted to the proper authorities. Shortly after the complaint was filed, Jim's Auto changed its system for U-Haul transactions from a manual system to U-Haul's computerized "C.A.R.D." system. At the time of the change, Jim's Auto had been a manual dealer for seven months. A U-Haul dealer on the C.A.R.D. system is not required to manually calculate the appropriate tax due on the transactions–-the tax is calculated by computer. U-Haul's tax department programs each C.A.R.D. computer with the proper rental-tax rate. Today, every U-Haul dealer in Alabama is on the computerized system. Shortly after the complaint was filed, Jim's Auto changed its system for U-Haul transactions from a manual system to U-Haul's computerized "C.A.R.D." system. During the seven months in which Jim's Auto was operating as a manual dealer, it entered into approximately 118 rental contracts for U-Haul equipment. In all of those transactions, the sales-tax rate of 9% was used to calculate the taxes due from the customer, rather than the rental-tax rate. The rental contracts used by U-Haul dealers are standardized forms; the line for applicable taxes is labeled "sales tax." U-Haul of Alabama states that it passes rental taxes through to its customers on the line on the contract labeled "sales tax" because that is the line provided on its standardized contracts, which are used nationwide, for calculating the tax due. The U-Haul defendants say that the contract uses the term "sales tax" because in almost every other state a sales tax is charged on rental transactions. Johnson moved in June 2002 to certify a class. On June 3, 2003, the trial court entered an order certifying a class only as to Johnson's breach-of-contract claim. The order did not address the U-Haul defendants' recently asserted voluntary-payment-doctrine defense. On August 20, 2003, the trial court amended its order to narrow the definition of the certified class to only those persons who rented and paid sales tax so renting at any time within the six years prior to filing of the complaint. HOLDING: The Supreme Court vacated the class certification order and remanded the case for further proceedings. The Court concluded that the trial court exceeded its discretion in certifying a class without addressing the question of the effect upon its certification of the U-Haul defendants' voluntary-payment defense. The Court remanded the case to allow the trial court to conduct such further proceedings as may be necessary to consider the effect on the issue of class certification of the U-Haul defendants' assertion of the voluntary-payment defense. The Court stated that, on remand, the trial court may consider whether the U-Haul defendants are entitled to assert the defense by reason of having a colorable claim to the disputed amounts, and/or whether the conduct of the U-Haul defendants violates public policy as established by the Legislature so that a public-policy exception to the voluntary-payment doctrine applies in this case. The Court wrote that, should the trial court conclude that the defense of voluntary payment is indeed available, the trial court must then consider, in addition to all other relevant considerations, the U-Haul defendants' objections to class certification based upon typicality and adequacy of representation by reason of Johnson's two separate transactions in determining whether to certify a class.

Alabama Agricultural & Mechanical Univ. v. Jones, No. 1021960 (Ala. May 14, 2004)
Summary: immunity; Statute of Frauds; employment; Early in the 1994-95 academic year, while Dr. Jeanette Jones was the vice president for research and development for Alabama Agricultural and Mechanical University ("A&M"), Dr. David Henson, who was then president of A&M, allegedly made an oral promise to Dr. Jones to increase her salary by approximately $10,000. More specifically, her salary was to be raised in two steps -- one step that academic year (1994-95), and the second step the following year (1995-96) -- ending up with a salary of approximately $90,000 per year. In September 1994, Dr. Henson initiated the first step by submitting a directive to the vice president for business and finance, who, in turn, passed the directive to the director of the department of human resources and personnel. Thus, Dr. Jones received the first step of her raise, which was evidenced by a "Personnel Action Form," signed by Dr. Henson on September 16, 1994, effective from October 1, 1994, to September 30, 1995. However, Dr. Henson resigned as president of the University in August 1995, and, by a letter dated September 5, 1996, his successor, Dr. John Gibson, notified Dr. Jones that her employment as Vice President for Research and Development would terminate on September 30, 1996, although she continued to be employed as a biology professor. Dr. Jones never received the second step of the salary increase. On June 8, 1998, Dr. Jones filed a grievance with the grievance committee for A&M ("the committee"). The committee recommended that Dr. Jones receive payment of the 1995 adjustment if it should be found that the board of trustees approved consecutive year payments, because she had served as Vice-President during a second year. Dr. Gibson declined Dr. Jones's request for the salary increase. On June 14, 2000, Dr. Jones sued A&M, as well as Dr. Gibson and 11 members of its board of trustees (hereinafter referred to collectively as "the University"). Her complaint, as last amended, contained a breach-of-contract claim, alleging that the University had adopted a salary schedule that "form[ed] a part of Jones's employment contract with the [University]," and that the University had breached the contract "by wrongfully failing to award Jones the second half of the salary increase." She sought "specific performance and/or injunctive relief ..., including but not limited to orders directing [the University] to increase [her] salary in accordance with the second half of the salary increase, and reimburse Jones for failure to award the salary increase in the past, and/or to award back pay." Dr. Jones's complaint also sought a judgment declaring that she was "entitled to an increase in her salary in accordance with the salary increase," and to "an award of back pay for failure of [the University] to award the salary increase." Finally, her complaint sought a writ of mandamus, directing the University to "increase her salary in accordance with the salary increase," and to "award back pay." The University answered the complaint, asserting affirmative defenses, including sovereign immunity and the Statute of Frauds. The case was tried without a jury. The trial court determined that the University was "required to increase [Dr. Jones's] annual salary by an amount of $4,955.00 annually, beginning with the 1998-99 academic year." Notwithstanding its previous conclusion that no damages could be awarded for breach of contract, the court awarded Dr. Jones back pay. The case was tried without a jury. The trial court determined that the University was "required to increase [Dr. Jones's] annual salary by an amount of $4,955.00 annually, beginning with the 1998-99 academic year." Notwithstanding its previous conclusion that no damages could be awarded for breach of contract, the court awarded Dr. Jones back pay. More specifically, it ordered the University to "pay to [Dr. Jones] an amount equal to the compensation she would have received from the beginning of the 1998-99 academic year until the date of [its] order if [she] had received a raise of $4,995.00 for the 1998-99 academic year, and continuing to the [date of the order]." The award was to be augmented by "all cost of living increases provided to [A&M] employees," plus prejudgment interest. The trial court also ordered the University "to immediately raise [Dr. Jones's] annual compensation in the amount of $4,995.00, plus any cost of living increase from 1998." Thus, the trial court ordered both retrospective and prospective relief. The University appealed. HOLDING: The Supreme Court reversed. The Court held that, on its face, the promise of the second step of the raise was incapable of performance within one year of the making of the promise. The Court noted that Dr. Jones would not, indeed could not, receive any part of the second-step salary increase until she had been paid for one year under the first step. Thus, the Court concluded that unless Dr. Jones could demonstrate that the oral promise falls within an exception to the Statute of Frauds, she could not recover from the University. The Court also held that because the prospective relief awarded by the trial court was based on a portion of the contract that was manifestly executory, that portion of the judgment was barred, as a matter of law, by the Statute of Frauds. However, the Court concluded that it need not determine whether the Statute of Frauds also barred the retrospective relief awarded, because it held that that portion of the judgment was barred by sovereign immunity. The Court expressly overruled Ex parte Hirsch, 592 So.2d 597 (Ala. 1991), to the extent it sanctioned a claim for damages arising out of a breach of contract involving unliquidated claims against the State, and the Court also overruled Breazeale v. Board of Trustees of Univ. of South Alabama, 575 So.2d 1126 (Ala. Civ. App. 1991). The Court held that a writ of mandamus will issue to compel payment only of such claims as are liquidated, and that mandamus will not lie to compel the University to agree with Dr. Jones's version of disputed facts.

Ex parte Medical Licensure Comm'n of Ala., No. 1022156 (Ala. May 14, 2004)
Summary: medical license revocation; substantial evidence; discovery; due process; The Medical Licensure Commission of Alabama ("the Commission") revoked the medical license of Oscar D. Almeida, Jr., based upon testimony of several of his former patients that he had engaged in sexual misconduct while he was rendering professional services. The Commission heard testimony from three former patients of Almeida's who had filed complaints against him with the Board. It was on their testimony that the Commission based its findings of fact. The first patient testified that Almeida conducted an improper vaginal examination and that after the exam, when no chaperone was present in the examining room, he kissed her. This same patient testified that on another visit when they met in his private office, they engaged in open-mouth kissing and fondling. He attempted to remove her undergarments and when she resisted, he unbuckled his pants, which the patient interpreted as a request that she perform oral sex. The second patient testified that not only had the vaginal examinations conducted by Almeida been inappropriate, but he had also "come on" to her in the form of winking and smiling at her and making comments regarding her looks during his medical examinations of her. The third patient testified that Almeida had engaged in sexual misconduct in the form of flirting with her during her examinations. This third patient also testified that Almeida had asked her to meet him at various places and had invited her to go on a trip with him, during which they could participate in a "threesome." In addition to these three former patients who had filed complaints against Almeida, the Commission heard testimony from a fourth former patient who provided explicit details of an improper vaginal examination Almeida had performed on her. The fourth patient's testimony that she left the office very upset after the improper examination was corroborated by one of Almeida's former employees who was working the front desk on the day of the incident. The Commission also heard testimony from two expert witnesses. Gene Abel, M.D., a psychiatrist who had been practicing for 15 years at that time and a nationally recognized expert in the area of sexual misconduct by professional persons, evaluated Almeida over a three-day period and interviewed four of Almeida's former patients who had filed complaints regarding Almeida's conduct. Dr. Abel concluded that Almeida crossed well-recognized sexual boundary lines in treating those patients and that Almeida should undergo treatment. Kimberly Ackerson, Ph.D., a psychologist who had practiced for seven and one-half years at the time of her testimony, testified for Almeida. She acknowledged that she is not an expert in the field of deviant sexual behavior and that her evaluation of Almeida for sexual misconduct in his professional capacity is the first one she had ever performed. Dr. Ackerson testified that she accepted Almeida's statements as true and that she rejected the complaining witnesses' allegations without interviewing those witnesses. Based upon the evidence presented at the hearing, the Commission found that Almeida had engaged in unprofessional conduct and that he had had "sexual contact" with a patient. Based upon those findings, the Commission revoked Almeida's license to practice medicine in Alabama. Thereafter, Almeida filed in the Montgomery Circuit Court a notice of appeal and a motion to stay the revocation order or, in the alternative, a motion for a preliminary hearing on the motion to stay. The circuit court granted the motion to stay and subsequently reversed the Commission's order, stating that the Commission did not have "substantial evidence" before it to justify revoking Almeida's medical license. The circuit court also found that the Commission's refusal to order the Board to produce written statements of the complaining witnesses taken by the Board's attorney deprived Almeida of due process of law. The Commission appealed to the Court of Civil Appeals, which affirmed the circuit court's judgment, without an opinion. HOLDING: The Supreme Court reversed the Court of Civil Appeals. The Court held that the Commission's decision to revoke Almeida's license was supported by substantial evidence. The Court also held that the Commission did not deny Almeida due process by failing to require the Board to produce written statements taken by the Board's attorney during the investigation of reports by those persons who had complained of Almeida's conduct and who ultimately filed complaints against him.

General Motors Acceptance Corp. v. Massey, No. 1030209 (Ala. May 14, 2004)
Summary: class action; class certification; consideration of counterclaims and defenses; This action arises out of a class-action complaint filed on December 14, 1993 -- as amended on June 8, 1995 -- in which Donald Massey and Judy Jennings sued General Motors Acceptance Corporation ("General Motors"); Motors Insurance Corporation ("MIC"), a subsidiary of General Motors; and MIC Property and Casualty Corporation ("MICPAC"), a subsidiary of MIC (hereinafter collectively referred to as "GMAC") and alleged that General Motors had improperly "force-placed" collateral protection insurance ("CPI") against their accounts with GMAC. Massey and Jennings each executed a retail installment contract for the purchase of an automobile to be financed by General Motors. Each contract provided for the placement by General Motors of CPI coverage in the event the buyer failed or refused to insure the financed vehicle. Massey and Jennings failed to maintain physical damage insurance on their vehicles, and General Motors purchased CPI for their vehicles. General Motors paid MIC $771 for single-interest coverage on Jennings's vehicle, and added that amount, plus $190 in "finance charges," to the balance General Motors claimed under Jennings's retail installment contract. Similarly, General Motors purchased CPI from MICPAC for Massey's vehicle. The amount of insurance purchased in each case was based on the amount of the outstanding loan balance. MIC and MICPAC, however, were obligated to pay claims based on the lesser of (1) the cost of repair, (2) the actual cash value of the vehicle, or (3) the outstanding loan balance. Massey paid no portion of his CPI premium. Subsequently, his vehicle was totally destroyed in an accident with a third party, and General Motors canceled the policy as of the accident date. At Massey's request, General Motors took possession of the vehicle, and MICPAC paid General Motors $5,946.16, based on Massey's outstanding account balance. General Motors applied the payment to Massey's account, leaving an alleged $635.70 deficiency, a portion of which was the unpaid CPI premium. Massey and Jennings averred that GMAC "routinely overcharged [them] and [the putative] class members for [CPI]" in two ways. First, they alleged that the CPI was merely "phantom insurance coverage." Massey and Jennings averred that GMAC "charged them for additional insurance coverages which protected one or more of the defendants, but which provided no protection for the plaintiffs or class members." They describe this "additional coverage" as a "kickback" to General Motors or MIC in the form of a "commission" or "administrative fee," which is never "credited to the account of the plaintiffs or class members." They sought damages under various theories, including (1) breach of contract, (2) wrongful repossession, (3) breach of fiduciary duty, and (4) violation of Ala. Code §5-19-20 and certain "State Banking Regulations." General Motors filed a "conditional" class-wide counterclaim, averring that "[a]fter any potential certification of this case as a class action, those potential class members will be in default and/or will have become in default of their individual payment obligations pursuant to the Retail Installment Sales Contract and/or Promissory Note that each one had signed and which contract and/or Promissory Note has been assigned to [General Motors]" and demanding "the principal sums owing by each of them to [General Motors], plus all accrued interest, plus attorney's fees and costs of this action." General Motors also filed a counterclaim against Massey specifically, seeking recovery of the alleged deficiency of "$635.70, plus all accrued interest, plus attorney's fees and costs." On September 15, 1995, the trial court certified a class consisting of all individuals who entered into credit agreements with General Motors, who have had CPI force placed against their accounts with General Motors, who were residents of Alabama at the time CPI was force placed and who were charged for force-placed insurance at any time between the date six years before the filing of the complaint and September 1, 1995. On January 14, 2003, GMAC moved to decertify the class, arguing that since the date of certification, "class-action law in Alabama has undergone a metamorphosis," requiring a more "rigorous" and "demanding" analysis. On October 8, 2003, the trial court -- without addressing the counterclaims or defenses -- amended the September 15, 1995, certification order. GMAC appealed from that order." HOLDING: The Supreme Court vacated the class-certification order. The Court noted that a class-certification order that does not consider compulsory counterclaims does not reflect a "rigorous analysis" of the Rule 23 factors. The Court held that the trial court has no discretion to omit consideration -- and discussion -- of counterclaims and relevant defenses. The Court directed the trial court on remand to analyze and address the counterclaims and defenses.

Turner v. West Ridge Apartments, Inc., No. 1030441 (Ala. May 14, 2004)
Summary: corporate law; right of first refusal; On July 28, 1993, Ralph Sanders, Earl Sanders, and John Turner executed and filed the articles of incorporation of West Ridge Apartments, Inc. ("West Ridge"). The articles of incorporation authorized the company to distribute 1,000 shares of stock valued at one dollar per share; however, the three incorporators elected to distribute only 300 shares and to divide those shares equally among themselves. Thus, each incorporator received 100 shares of stock in West Ridge. Seven years after incorporation, West Ridge adopted bylaws for the corporation; those bylaws provided, among other things, that an insurance policy would be issued on the life of each of the original incorporators and that one-half of the face value of each policy would be made payable to the insured's named beneficiary and one-half of the face value of the policy would be made payable to the corporation. The bylaws also provided that the corporation would have the right of first refusal upon the sale or exchange of any shares of the stock of the corporation. At the time of John Turner's death on August 21, 1995, Tivica Turner and West Ridge were the named co-beneficiaries on the insurance policy issued in accordance with West Ridge's bylaws. Pursuant to the terms of the policy, the insurance company distributed one-half of the value of the policy to Tivica and one-half to West Ridge. West Ridge filed an action asking for a declaration of its rights and those of Tivica under the bylaws. Tivica filed an answer, and the case was set for a bench trial. The trial court, after reciting that it had reviewed the pleadings, the memoranda of law, and the arguments of counsel, found that the previously effectuated equal division of the proceeds of the life insurance policy was appropriate. The trial court also ordered Tivica, pursuant to the terms of the stock-option provision in the bylaws, to convey to West Ridge 100 shares of the capital stock issued in the name of her deceased father. Tivica appealed the trial court's judgment, contending that the bylaws call for West Ridge to pay over its share of the proceeds of the life insurance on her father to her, as executrix, in exchange for the 100 shares of stock formerly held by her father and now an asset of his estate. Tivica avers that she is the sole heir of her father's estate; she appeals in her capacity as executrix of her father's estate. West Ridge, thereafter, filed a motion to dismiss Tivica's appeal. In the motion, West Ridge alleges that Tivica failed to meet her burden of ensuring that the record contained sufficient evidence to warrant a reversal, given that Tivica did not include in the record a transcript or a statement of the evidence in lieu of the transcript pursuant to Rule 10(d), Ala.R.App.P. West Ridge contends that without that statement in lieu of a transcript the Supreme Court has no choice but to affirm the trial court's judgment. HOLDING: The Supreme Court reversed. The Court denied the motion to dismiss the appeal, noting that the trial court did not hold a hearing at which ore tenus evidence was presented and from which a transcript or a statement in lieu of a transcript, as contemplated by Rule 10(d), could have been produced. The Court concluded that because article 6, §2, is the only provision that addresses the right of first refusal and the death of a shareholder and because the parties do not contend that any other provision of the bylaws has any bearing on the determination of this issue, this provision exclusively defines West Ridge's rights. The Court held that the unambiguous language of article 6, §2, plainly provides that West Ridge, upon electing to exercise its right of first refusal, must use its share of the proceeds from the insurance policy to retire the stock owned by the deceased or incapacitated shareholder.

Knox v. Western World Ins. Co., No. 1030582 (Ala. May 14, 2004)
Summary: insurance; declaratory judgment; whether a tort claimant may bring a claim for declaratory relief against a tortfeasor's liability insurance company before a final judgment determining the tortfeasor's liability has been entered in the case; Isaac Knox III and Timothy Kirk Bowman, an employee of Youngblood Trucking Company ("Youngblood Trucking"), were involved in a motor-vehicle accident on October 5, 2002. At the time of the accident, Bowman was driving a vehicle owned by Youngblood Trucking. As a result of the accident, Adrianne Knox, the sister of Isaac Knox III and a passenger in his car at the time of the accident, was killed. Isaac Knox III suffered severe permanent and disabling injuries from the wreck. Isaac Knox III and his father Isaac Knox, Jr., as the personal representative of the estate of Adrianne Knox, sued Bowman; Youngblood Trucking; Youngblood Coal Sales, LLC; and Hobart Randy Youngblood and Teresa Youngblood alleging negligence and wantonness. The Knoxes also brought a claim alleging fraud and deceit against Youngblood Trucking, Hobart Randy Youngblood, and Teresa Youngblood; a breach-of-contract claim against Youngblood Trucking; and a negligent- or wanton-retention claim against Youngblood Coal Sales, LLC. The Knoxes amended their complaint to add Western World Insurance Company ("Western World"), the insurance carrier for Youngblood Trucking, as a defendant and to seek a declaration of the rights and obligations of the parties with respect to "the nature, amount, and extent of liability insurance available from all liability carriers who have or may have coverage for any of the [claims alleged in the pending action]." Western World filed a motion to dismiss the Knoxes' declaratory-judgment claim; the trial court granted that motion on September 25, 2003. The Knoxes thereafter filed a motion to vacate the trial court's order dismissing the Knoxes' claim for declaratory relief against Western World. On December 4, 2003, the Knoxes filed a "motion for severance of claims and for final judgment" in which they asked the trial court to "enter an order severing the plaintiffs' claims against [Western World]" and "to make the order denying plaintiffs' motion to vacate the judgment dismissing plaintiffs' complaint for declaratory relief final." In response, on December 11, 2003, the trial court denied the Knoxes' motion to vacate and severed the Knoxes' claim for declaratory relief. The trial court stated in its December 11 order, "The order denying plaintiff's motion to vacate and dismissing the claim for declaratory relief against [Western World] is made final under Rule 54(b)." This appeal followed. HOLDING: The Supreme Court affirmed. The Court held that a tort claimant may not bring a claim for declaratory relief against a tortfeasor's liability insurance company before a final judgment determining the tortfeasor's liability has been entered in the case. The Court held that Ala. Code §27-23-1 and §27-23-2, which provide that an insurer's liability does not become absolute until a loss occurs and preclude an injured party from bringing an action against an insurer before the injured party has recovered a final judgment against the insured. The Court noted that, nevertheless, the Knoxes do have a right, pursuant to Rule 26(b)(2), Ala.R.Civ.P., to discover the existence and contents of the insurance contract between Youngblood Trucking and Western World.

Ex parte McGhee, No. 1030939 (Ala. May 14, 2004)
Summary: The Supreme Court denied the petition for the writ of certiorari without opinion. However, in denying the petition for the writ of certiorari, the Court stated that 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 W.T.M., No. 1030983 (Ala. May 14, 2004)
Summary: The Supreme Court denied the petition for the writ of certiorari without opinion. However, in denying the petition for the writ of certiorari, the Court stated that it does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

May 17

Opinion of the Justices, No. 381 (Ala. May 17, 2004)
Summary: advisory opinion; Governor Bob Riley requested an advisory opinion as to whether the swap agreements House Bill 817 authorizes the State and certain Authorities (1) to enter into would violate state constitutional provisions prohibiting the creation of new debt by the State. The Justices answered the question in the negative. The Court noted that Section 213 of the Constitution prohibits the creation of new debt, but explicitly permits the State to call old bonds and to "refund" the underlying debt by issuing new bonds. The Court noted that the State owes interest at a fixed rate on the bonds it issues, that market principles dictate that the State should refund a series of bonds if interest rates decline, and that over time the lower interest costs resulting from refunding State-issued bonds at a lower rate could save the State significant sums of money. The Court noted that House Bill 817 is intended to enable the State to achieve a similar result in a shorter period. It allows the State, under certain favorable market conditions, to enter into an interest rate "swap agreement."

May 18

Decisions Announced by the Supreme Court of Alabama on Tuesday, May 18, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Alabama Republican Party v. McGinley, No. 1031166 (Ala. May 18, 2004)
Summary: election law; On April 2, 2004, Kelly McGinley filed a qualifying form with the Alabama Republican Party ("the Party") to qualify as a candidate for Place 1 on the State Board of Education. The form was properly filled out and timely submitted. Among other things, the form requires a potential candidate to certify as follows: "I am a Republican and am in accord with, and endorse, the principles and policies of the Republican Party." On April 4, just before midnight, the members of the Party's steering committee -- who also constitute the members of the Party's candidate committee -- received an e-mail from Clay Barclay, a member of the Mobile County Republican executive committee, raising certain objections to McGinley's qualifications to run for office as a Republican; specifically, the objections were to her loyalty to the Republican Party. The e-mail indicated that several Republican constituents who live in State School Board District One (the district in which McGinley was attempting to run as a candidate) had complained about McGinley's candidacy and had indicated that they were concerned because, according to the constituents, McGinley was listed on various Web sites as being a member of the Constitution Party and because she had articles and links on her own Web site that were anti-President George W. Bush, anti-Republican, and pro-Constitution Party. The e-mail stated that the constituents had requested that the candidate committee consider this information when reviewing McGinley's qualifications to run for office as a Republican. On the morning of April 5, the chairman of the Alabama Republican Party, Marty Connors, telephoned Jim Zeigler, an attorney who had filed McGinley's qualifying papers, and informed him that when the candidate committee met on April 7, it would consider a challenge to McGinley's qualifications. Connors testified that he informed Zeigler of the general complaints in the April 4 e-mail and that he informed Zeigler that he and McGinley could come to the meeting and would have the opportunity to testify. Later that evening, Zeigler telephoned McGinley and informed her that her candidacy was being challenged. McGinley testified that, at that time, she did not know why her candidacy was being challenged and that she discovered all of the bases for the challenge only after the publication of certain newspaper articles and during the court proceedings below. On the morning of April 6, McGinley, Zeigler, Chris Brown, the Party's executive director, and Barclay appeared as guests on a Birmingham radio talk show. McGinley testified that during that show she stated that she had not seen the charges against her and that she had not been invited to the hearing. McGinley also testified that during the show Brown and Barclay alleged that McGinley's disqualification as a candidate was being considered because, he alleged, she did not support the "Party line," did not support President Bush, and was supporting the Constitution Party. That same day, shortly after the radio talk show had ended, Brown faxed a letter to McGinley and Zeigler; that letter stated: "Let this serve as a formal notification that the Alabama Republican Party will hold a Candidate Committee to verify your qualification to run for School Board (Place 1) on the Republican Party ticket. You will have the opportunity to speak on behalf of yourself at the Committee meeting being held at Alabama Republican Party Headquarters on April 7th at 6 p.m. Chairman Marty Conners also gave verbal notice of the Committee meeting to your attorney, Jim Zeigler, on Monday, April 5th at 9:30 a.m." At 10:29 a.m. on April 7, Zeigler, identifying himself as "Attorney for Kelly McGinley," e-mailed to the members of the candidate committee McGinley's lengthy response, prepared by Zeigler, to the challenge to McGinley's qualifications. The e-mail indicated that McGinley had "twice been promised a copy of the allegations against her, but sadly they had not been furnished." The response detailed McGinley's history as a lifelong Republican and a continued supporter of Republican candidates, and stated that her admittedly strong critiques of, in her view, many liberal tendencies in the Party were based upon her status as an "outspoken 'conservative Christian.'" Among other things, the response also addressed her admiration for, and certain of her articles concerning, the platform of the Constitution Party (but adamantly claims that she has neither joined that party nor quit the Republican Party); and claimed that she completely endorses the true Republican platform and wishes to see the Party "repent and come back to its platform." The response also contained a motion to dismiss the challenge to McGinley's candidacy based on, among other things, inadequate notice of the hearing and the failure of the Party to provide a copy of the allegations contained in the April 4 e-mail. On the afternoon of April 7, Elizabeth Perry, executive assistant to Marty Connors, informed McGinley and Zeigler that if it was not possible for them to appear personally at the hearing, they could participate by telephone. At 6:00 p.m. on April 7, the candidate committee met and considered the challenge to McGinley's candidacy along with the challenges to two other candidates. After discussing the issues referenced in the April 4 e-mail and Zeigler's response, the committee voted unanimously, by a vote of 20-0, to disqualify McGinley so that her name would not appear on the primary ballot. Later that evening, McGinley was notified of her disqualification. The next day, the Party filed an amendment to its earlier certification with the secretary of state, removing McGinley's name from the ballot. On April 19, three days before the deadline for delivering absentee ballots and other materials to the absentee-election managers, McGinley filed this lawsuit challenging her disqualification. Following two hearings, the Montgomery Circuit Court held that in disqualifying McGinley the Party had violated McGinley's constitutional right to substantive due process under the Fourteenth Amendment to the United States Constitution, because it found that the Party had failed to demonstrate a "clearly articulated [P]arty rule" that McGinley had violated that would result in her disqualification and that it thereby had acted in an arbitrary manner. The circuit court ordered that McGinley's name be restored to the June 1, 2004, Party primary ballot and that the Party and the election officials count and certify votes cast for McGinley in that election. The Party appealed. HOLDING: The Supreme Court reversed. The Court held that to be successful, McGinley must produce evidence indicating that this system and its resultant deprivation was "for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis," and the Court concluded that she did not make such a showing. The Court held that McGinley's substantive due-process claim must fail because 1) it is undisputed that there is no explicit statutory or constitutional requirement that the Party list detailed rules governing the possible disqualification of candidates to test whether the candidates are "in accord with, and endorse, the principles and policies of the Republican Party," and 2) there is no evidence indicating that the candidate committee system used by the Party or the decision reached by that committee in this case is "arbitrary," "pretextual," "conscience-shocking" or without any rational connection to the Party's objectives and statutory discretion. The Court held that the State Executive Committee of a political party has full right, power and authority to fix and prescribe the political and other qualifications of its own members and to determine who shall be entitled and qualified to be candidates in primary elections.

May 21

Decisions Announced by the Supreme Court of Alabama on Friday, May 21, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

SCI Ala. Funeral Servs., Inc. v. Beauchamp, No. 1012184 (Ala. May 21, 2004)
Summary: The Supreme Court affirmed without opinion. Justice See wrote an opinion concurring in part and dissenting in part.

Cleveland v. Seaman Timber Co., Nos. 1021353 & 1021422 (Ala. May 21, 2004)
Summary: The Supreme Court affirmed without opinion. Justice See wrote a concurring opinion.

May 28

Decisions Announced by the Supreme Court of Alabama on Friday, May 28, 2004
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Ex parte Baker, No. 1000999 (Ala. May 28, 2004)
Summary: criminal; capital murder; admissibility of evidence of prior incidents of violence against victim; hearsay; Bobby Baker, Jr., was indicted for assault in the first degree; discharging a weapon into an occupied dwelling; and capital murder in intentionally murdering Tracy Baker in the course of kidnapping her. At the trial, the trial court admitted evidence of six prior incidents of domestic violence purportedly committed by Baker against his wife, the homicide victim. The jury convicted Baker. After a sentencing hearing, in a 10 to 2 vote, the jury returned an advisory verdict of death for the capital murder. The trial court sentenced Baker to death on the capital-murder conviction, to life imprisonment on the first-degree-assault conviction, and to life imprisonment on the conviction for discharging a weapon into an occupied dwelling. Baker appealed his convictions and sentences, and the Court of Criminal Appeals affirmed. HOLDING: The Supreme Court reversed. The Court first recognize the admissibility, for a limited purpose, of a police officer's testimony that Tracy had said that "she was afraid [the defendant] was going to kill her," as "[a] statement of the declarant's then existing sate of mind" although not as a statement that the defendant would, in fact, kill her. The Court held that the evidence of six prior incidents of domestic violence purportedly committed by Baker was inadmissible hearsay.

Brackin v. Trimmier Law Firm, No. 1021005 (Ala. May 28, 2004)
Summary: defamation; Legal Services Liability Act; agency; conditional privilege; negligence; In April 1999, an audit of Family Security Credit Union ("FSCU") identified apparent improprieties in the files at FSCU related to a former employee of FSCU, Mitchell Smith. As a result of finding these apparent improprieties, Alabama Credit Union Administration ("ACUA") issued to FSCU a "Document of Resolution," referred to as a "DOR." This DOR directed FSCU's supervisory committee to "engage an outside firm to confirm the entries listed in the supplemental facts section of this report and any other related activity discovered during the review." The "supplemental facts section" of the DOR referred to potential lending violations and other improprieties by Smith. The DOR also instructed FSCU to "provide your findings to the Alabama Credit Union Administration, ACUA, and National Credit Union Administration, NCUA." FSCU retained Steve Trimmier, the senior partner with the Trimmer Law Firm, to conduct the investigation. The Trimmier Law Firm was FSCU's legal counsel. In turn, the Trimmier Law Firm retained Jo Lynn Rutledge, a certified public accountant employed with the Alabama Credit Union League ("ACUL") as the director of its auditing department, to conduct the investigation of Smith's activities at FSCU. Karen Brackin was the manager of lending, marketing, and human resources at FSCU, second in command only to Ron Fields, the president at FSCU. It was undisputed that, at various times throughout her employment with FSCU, Brackin had advised Fields when certain loan officers were not following the policies, procedures, or recommended lending practices of FSCU. Fields acknowledged that Brackin initially discovered and reported to him the violations and improprieties involving Smith. Rutledge spent September 8, 9, and 10, 1999, at FSCU. Fields, Brackin, and several other FSCU employees were attending an out-of-state conference during that time. On September 9, while reviewing computer reports at FSCU, Rutledge noticed that the due dates on several loans originated by Smith had been "advanced." The computer reports indicated that John Salter and Ann McMillan were the loans officers who had entered the new due dates into the computer. Rutledge questioned Salter and McMillan; they both explained that Brackin had instructed them to change the due dates and that she did so often. At that point, Salter suggested that Rutledge speak with Rolanda Johnson, another FSCU employee, about Brackin. By the end of the day on September 10, Rutledge had spoken to FSCU employees John Salter, Ann McMillan, Rolanda Johnson, Tanya Drain, Bobby Chitwood, Dennis Smith, and Debra McCaghren concerning Brackin. Rutledge claimed that "[a]s I spoke to one, they referred me to another with issues related to Karen Brackin." Rutledge instructed the employees to reduce their statements to writing. Those writings were unsworn. Rutledge testified that she "felt an urgency" to discuss with someone the statements made to her about Brackin. When she could not reach Steve Trimmier, she contacted Lloyd Moore, the senior examiner with the ACUA, to discuss what she had been told by the FSCU employees. She did not attempt to contact any member of the FSCU supervisory committee, although that was her usual reporting procedure. Rutledge then prepared a written summary of the information she learned about Brackin during her audit of FSCU. Brackin spoke with Trimmier on Wednesday, September 15. On that same day, ACUA administrator Glen Latham contacted Fields and instructed Fields to suspend Brackin from her employment immediately, pending a full investigation. Fields notified Brackin that she was suspended as of September 15, 1999; he was instructed to, and did, take her office keys from her. Brackin claims that Fields did not inform her of the reason for her suspension; she also claims that he did not provide her with an opportunity to respond to the charges made against her. Rutledge provided the Trimmier Law Firm with a copy of her written report; she denies providing anyone else with her report. She claims that she spoke only with Lloyd Moore and with Steve Trimmier regarding Brackin. On September 16 and 17, Latham, Moore, Steve Trimmier, and Rutledge met with Earnestine McDonald, chairperson of FSCU's board of directors; Ken Livingston, chairperson of FSCU's supervisory committee; and Fields at FSCU's office in Decatur. At these meetings, they questioned approximately a dozen FSCU employees about the information the employees had provided to Rutledge. During this same time period, Brackin's office was searched; several of the missing loan files were located in her office. At least one of those loan files contained unexecuted loan documents relating to loans made to Brackin's relatives. On December 2, 1999, the ACUA notified Brackin and her attorney that a hearing would be held to determine whether FSCU should be required to establish special reserves regarding its loan activity and to determine whether Brackin should be prohibited from further participation in the affairs of the credit union. On December 14, the hearing was held. Brackin and her counsel refused to attend the hearing, asserting that they had been provided inadequate notice of the allegations against Brackin and the documents to be used in support of those allegations. As a result of this hearing, Latham directed FSCU to prohibit Brackin from participating in any of FSCU's affairs; Latham also directed FSCU to proceed with the filing of its claim with its fidelity insurer. Brackin's employment was officially terminated on December 24, 1999. Brackin did not appeal Latham's order as allowed under Ala. Code §5-17-8(k). Brackin sued FSCU, Fields (both in his individual capacity and in his capacity as the president of FSCU), the ACUL, and Rutledge (both in her individual capacity and as an agent of the ACUL). Brackin later added the Trimmier Law Firm as a defendant. All of the defendants filed motions for a summary judgment. The only claims that survived the defendants' summary-judgment motions were Brackin's defamation claims against FSCU (based on certain statements made by Brackin's co-employees to Rutledge during the September 8, 9, and 10, 1999, investigation of Smith); Brackin's claim that the ACUL, acting by and through its agent, Rutledge, defamed her as a result of certain statements made at the December 14, 1999, hearing; and Brackin's claim that FSCU and Fields negligently failed to monitor FSCU's employees and negligently failed to apply its rules, policies, regulations, or procedures to prevent its employees from using each other's approval codes in loan transactions and credit-collection transactions. Those remaining claims went to trial. At the close of Brackin's case-in-chief, the trial court entered judgments as a matter of law for the ACUL and Rutledge on the defamation claims asserted against them. The trial court also entered a judgment as a matter of law for FSCU and Fields on Brackin's negligence claim. The trial court also entered a judgment as a matter of law for FSCU on Brackin's defamation claim as to the statements made by all of the FSCU employees except those made by John Salter and Charles Cushing and portions of Rolanda Johnson's statement and Bobby Chitwood's statement. After a lengthy trial, the trial court submitted to the jury Brackin's defamation claim against FSCU based on the statements of the remaining employees. The jury returned a verdict in favor of Brackin, awarding her $800,000 in compensatory damages and $200,000 in punitive damages. On February 10, 2003, the trial court entered its judgment on the verdict. Brackin appealed the summary judgment entered on her claims against the Trimmier Law Firm, the ACUL, and Rutledge (case no. 1021005). FSCU appealed from the judgment entered on the jury verdict (case no. 1021593).HOLDING: The Supreme Court affirmed the summary judgments challenged by Brackin and reversed the judgment in her favor. The Court held that Brackin failed to establish that FSCU published the statements to a third party. The Court held that the statements made by FSCU employees to Rutledge, FSCU's agent, during her investigation fall within the parameters of the "no-publication" rule. The Court also found that Rutledge's communication to Moore, the senior examiner with the ACUA, was protected by a conditional privilege. The Court noted that Brackin did not cite any authority for the proposition that Rutledge owed Brackin a duty to avoid uncovering damaging information about her while performing the investigation, and the Court found no evidence of a breach of any duty owed to Brackin. The Court further held that an attorney-client relationship is an essential element of a claim under the Legal Services Liability Act and that, in support of its motion for a summary judgment, the Trimmier Law Firm submitted undisputed evidence that it had never entered into an attorney-client relationship with Brackin.

Ex parte Ted's Game Enterprises, No. 1021125 (Ala. May 28, 2004)
Summary: lotteries; gambling; Ala. Const. art. IV, § 65; Ted's Game Enterprises ("Ted's) maintains that the plain language of Ala. Const. art. IV, § 65, and prior caselaw allow the Legislature to promulgate laws authorizing and regulating gambling devices in which chance predominates over skill in determining the outcome. Ted's also maintains that coin-operated amusement machines are protected from the criminal gambling statutes of Ala. Code §§13A-12-20 through 13A-12-75, by Ala. Code §13A-12-76, commonly referred to as the "Chuck E. Cheese Law." Specifically, Ted's argues that §13A-12-76 exempts certain "bona fide coin-operated amusement machines" from the criminal gambling statutes. The phrase "bona fide coin-operated amusement machines" is defined, in part, as "every machine of any kind or character used by the public to provide amusement or entertainment ... the result of whose operation depends in whole or in part upon the skill of the player ....". Thus, Ted's argues that as long as coin-operated amusement machines involve "some skill" in their operation, they meet this qualification under §13A-12-76. The first issue presented in this case is whether Ala. Const. art. IV, § 65, prohibits the Legislature from authorizing or legalizing coin-operated amusement machines as to which "some skill" influences "in whole or in part" the result obtained by the operation of the machines. The second issue presented in this case is whether Ala. Code §13A-12-76, may, without contravening Ala. Const. art. IV, § 65, be applied so as to legalize games or activities in which skill does not predominate over chance in determining the outcome. HOLDING: The Supreme Court held that Article IV, § 65, means what it says, and prohibits the Legislature from authorizing "lotteries or gift enterprises" that involve games or devices in which chance predominates the outcome of the game, even if "some skill" is involved. The Court held that §13A-12-76 may not, without contravening Art. IV, § 65, of the Alabama Constitution, be applied so as to legalize games or activities in which skill does not predominate over chance in determining the outcome. The Court affirmed the judgment of the Court of Civil Appeals.

Memberworks, Inc. v. Yance, No. 1021460 (Ala. May 28, 2004)
Summary: arbitration; existence of a contract calling for arbitration; James Yance telephoned a toll-free number to order a knife he had seen advertised on television. After placing his order, the telephone operator offered Yance a free 30-day trial membership in the Leisure Advantage program, a discount club operated by Memberworks that provides shopping and travel discounts to its members. In the telephone conversation, the operator stated: "[A]fter thirty days, the service is extended to a full year for just $7.00 a month billed annually in advance to the credit card you are using today. Now, if you decide the program is not for you, just call the toll-free number in your kit in the first 30 days and you won't be billed ...." Memberworks enrolled Yance in the Leisure Advantage program and sent him the Leisure Advantage membership kit. Included in the membership kit was a document titled "Terms of Membership and Membership Agreement" ("the membership agreement"). That document stated in relevant part that "[a]ny dispute arising between You and Us will be resolved by submission to arbitration in Fairfield County, State of Connecticut in accordance with the rules of the American Arbitration Association then in effect." Yance did not cancel his membership in the Leisure Advantage program within the 30-day trial period. Accordingly, on August 18, 2000, Memberworks billed his credit card $84 for one year's membership in the program. In May 2001, Memberworks mailed Yance information about renewing his account for the next year. The mailing contained a notice that Yance's membership in the Leisure Advantage program would be renewed unless he canceled within 30 days. Yance took no action and, on June 18, 2001, Memberworks billed his credit card $99.95 for another year's membership. One year later, in May 2002, Memberworks mailed Yance another renewal notice telling him his account would be renewed if he did not cancel within 30 days. Yance did not cancel and, on June 19, 2002, Memberworks billed his credit card for $119.95. On June 21, 2002, after his wife noticed the Memberworks charge on the credit-card statement, Yance dialed the Memberworks telephone number listed on the statement to investigate the charge. After Yance complained that he had never authorized his participation in the program, Memberworks refunded him all three years' payments. At no time during the period Yance was enrolled in the Leisure Advantage program did he ever use it. On July 2, 2002, Yance sued Memberworks in the Mobile Circuit Court. Memberworks moved the trial court to compel arbitration pursuant to the arbitration provision contained in the membership agreement. After a hearing, the trial court denied Memberworks' motion, holding that Memberworks had failed to meet its burden of proving the existence of a contract calling for arbitration. HOLDING: The Supreme Court reversed. The Court held that the evidence is sufficient to establish the existence of a contract between Memberworks and Yance. The Court noted that while Memberworks may have billed Yance's credit card for the annual membership fee, it was Yance who paid his credit-card bill for two years without any question as to the legitimacy of the charge, and that those actions manifested his assent to abide by the terms of the arbitration agreement of which he received notice when he joined the program.

Ex parte Murray, No. 1021915 (Ala. May 28, 2004)
Summary: criminal; double jeopardy; This case arises out of the murder, in which Karys Dontricia Murray 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 indictment against Murray charging him with murder made capital because Allen was killed during the course of a robbery. In 1997, pursuant to a plea agreement, Murray's indictment was amended to charge, and he pleaded guilty to, (1) felony murder and (2) first-degree robbery. As part of the plea agreement, Murray waived his right to appeal. On June 16, 1997, the trial court sentenced Murray, consistently with the plea agreement, to life imprisonment on each conviction, the two sentences to be served consecutively. Having waived his right to appeal, Murray simply began to serve his sentences. He never filed a Rule 32, Ala. R. Crim. P., petition challenging either conviction. However, despite Murray's inaction, the State convened a grand jury, which, on March 8, 2002, returned a three-count indictment against Murray, charging (1) murder made capital because it was committed during the course of a robbery, (2) murder made capital because it was committed during the course of a burglary, and (3) conspiracy to commit robbery. The State then moved to vacate Murray's conviction and sentence for first-degree robbery, to reinstate the original one-count indictment charging capital murder, and, then, to nol-pros that indictment. Murray moved to dismiss the March 2002 indictment. The trial court granted the State's motions and denied Murray's motion. Murray petitioned the Supreme Court for a writ of mandamus directing the trial court to dismiss the 2002 indictment, to reinstate his conviction and sentence for felony murder, and to vacate his conviction and sentence for first-degree robbery. HOLDING: The Supreme Court granted the petition for writ of mandamus. The Court held that for the reasons explained in Ex parte Peterson, No. 1021913 (Ala. Feb. 27, 2004), a case involving the reindictment of one of Murray's codefendants under similar circumstances, Murray's contention is correct. The Court directed the trial court to dismiss the March 2002 indictment against Murray and to reinstate his conviction and sentence for felony murder.

Ex parte Gavin, No. 1030368 (Ala. May 28, 2004)
Summary: criminal; The Supreme Court denied the petition for writ of certiorari without opinion. Justice Johnstone wrote a dissenting opinion.

Ex parte Smith, No. 1030431 (Ala. May 28, 2004)
Summary: The Supreme Court quashed the petition for writ of certiorari without opinion. Justice Lyons wrote a dissenting opinion.

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