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.

September 5

Decisions Announced by the Supreme Court of Alabama on Friday, September 5, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Jones v. Alfa Mut. Ins. Co., No. 1010565 (Ala. Sept. 5, 2003)
Summary: insurance; bad faith; statute of limitations; On October 6, 1995, under an Alfa farmowner's insurance policy ("the policy"), the Joneses submitted to Alfa a claim for wind damage inflicted by Hurricane Opal on their home, garage, and barn earlier that month. On December 3, 1998, after Alfa had paid only parts of the claim, the Joneses sued Alfa for breach of contract; bad faith; negligent hiring and supervision of employees and agents; negligent or wanton inspection of the Joneses' damaged property; misrepresentation grounded on alleged misrepresentations by Bradshaw, an Alfa adjuster; misrepresentation grounded on alleged misrepresentations by Wendell Sanders ("Sanders"), an Alfa agent; suppression; tortious cancellation of the policy; and conspiracy. In the same case, the Joneses sued Bradshaw; Engineer Jones, an independent structural engineer engaged by Alfa; and Jones Associates, Engineer Jones's corporation, for negligently or wantonly inspecting the Joneses' damaged property. The defendants moved for dismissal under Rule 12(b)(6), Ala. R. Civ. P. They contended that the applicable statutory periods of limitations had expired before the Joneses filed their lawsuit. The trial court considered only the pleadings and did not treat the Rule 12(b)(6) motion as a summary-judgment motion. The trial court dismissed only the claims for bad faith and negligent hiring and supervision. The Joneses do not appeal the dismissal of their claim for negligent hiring and supervision but do appeal the dismissal of their claim for bad faith. The defendants moved for summary judgment on the remaining claims. The trial court entered summary judgments for all of the defendants on all of the remaining claims, and the Joneses appeal these summary judgments on all of these claims. HOLDING: The Supreme Court reversed the Rule 12 (b)(6) dismissal of the Joneses' bad faith claim against Alfa. The Court affirmed the summary judgments for Bradshaw, Engineer Jones, and Jones Associates. The Court held that the Joneses' claims for negligent or wanton inspection, suppression, misrepresentation, and conspiracy were subject to summary judgment because one or more essential elements of each of those claims lacked supporting substantial evidence, and the defendants' motions for summary judgment aptly challenged these evidentiary failures. Thus, the Court affirmed the summary judgments on those claims.

Huntsville Utilities v. Consolidated Constr. Co., No. 1020195 (Ala. Sept. 5, 2003)
Summary: (on application for rehearing; withdrawing and substituting the opinion of May 23, 2003) arbitration; interstate commerce; The Court reversed its previous decision that affirmed the denial of a motion to compel arbitration -- that is, it is now reversing the trial court's denial of a motion to compel arbitration. The change in its previous decision is based on the U.S. Supreme Court's decision in Citizens Bank v. Alafabco, Inc., 123 S. Ct. 2037 (2003).

Hudson v. Outlet Rental Car Sales, Inc., No. 1020231 (Ala. Sept. 5, 2003)
Summary: arbitration; fraud in the factum; C.T. Hudson sued Outlet Rental Car Sales, Inc. ("Outlet"), and others, asserting various claims stemming from Hudson's acquisition of a used truck from Outlet. Hudson argued that Outlet committed fraud in the factum in that he was deceived as to the true nature of what he signed: he actually signed a lease contract when he thought he was signing a purchase contract. The trial court granted Outlet's motion to compel arbitration. HOLDING: The Supreme Court reversed. The Court held that Hudson's fraud- in-the-factum claim is to be resolved by the trial court because fraud-in-the-factum claims test the "very existence of a contract" and are not subject to arbitration.

Ex parte Evans, No. 1020381 (Ala. Sept. 5, 2003)
Summary: domestic relations; grounds for divorce; adultery; need for hearing on Rule 59 motion; In 2001, after 22 years of marriage, David J. Evans ("the husband") and Carol R. Evans ("the wife") were divorced by the Marshall Circuit Court, following the presentation of ore tenus evidence. The wife alleged that the husband was engaged in "an open adulterous affair." Also, the complaint alleged "a complete incompatibility of temperament ... between the parties" and "an irretrievable breakdown of the marriage." In her demand for judgment, the wife sought relief in the form of a "divorce ... on the grounds of adultery." In his answer, the husband admitted "a relationship with a third party." Also, he admitted "a complete incompatibility of temperament" and "an irretrievable breakdown of the marriage," and in his counterclaim he sought a judgment of divorce on those grounds. On May 23, 2001, the trial court entered a final judgment of divorce. The judgment did not mention the husband's adultery, and it did not specify any ground for the divorce. The other terms of the judgment are not relevant to our review of this matter. On June 22, 2001, the wife filed a Rule 59 motion, requesting that the trial court "set a hearing in this matter." In that motion, the wife alleged, in pertinent part, that the trial court had exceeded its discretion "by failing to state the grounds for divorce as being the adulterous conduct of the [husband]," and by failing to award her a larger share of the marital property and a larger amount of periodic alimony. The trial court did not schedule a hearing on the wife's Rule 59 motion. Instead, on July 17, 2001, the trial court entered an amended judgment of divorce, which differed very little from its earlier judgment, and in only one relevant respect. The amended judgment added a ground for the divorce, stating that the husband and the wife "are forever divorced from each other for and on account of irretrievable breakdown of the marriage." From that amended judgment of divorce, the wife appealed. The Court of Civil Appeals affirmed the judgment of the trial court, without opinion. HOLDING: The Supreme Court reversed. The Court held that it is apparent that the trial court erred in failing to grant a hearing on the wife's Rule 59 motion. The Court further concluded that the trial court's error in not granting a hearing on the wife's Rule 59 motion was not harmless, because it found "probable merit" in the wife's contention that the trial court should have granted the divorce on the ground of adultery and should have considered the husband's adultery in dividing the marital property and making its award of alimony.

Moore v. John Hancock Life Ins. Co., No. 1020405 (Ala. Sept. 5, 2003)
Summary: standing; trusts; insurance; John A. Moore and Susan L. Moore married in 1972. They had two children, J. Ryan Moore and Barbara Ann Moore. On April 27, 1999, John and Susan were divorced. Susan has remarried and is now known as Susan Moore Davis. On April 26, 1984, John created the John A. Moore Family Trust ("the Trust"). The Trust designated Susan as its trustee. By its terms, the Trust was created for the benefit of Susan, as John's wife, and Ryan and Barbara Ann, as John's children. Susan, as the trustee, was given broad rights with respect to any insurance policies forming any part of the trust estate. Also, the Trust included a provision addressing the possibility that John and Susan might divorce, providing that "upon the date that such divorce decree becomes final, Grantor's wife, if then serving as a Trustee hereunder, shall no longer remain as Trustee, but, on the contrary, shall be required to resign forthwith and to transfer, deliver and pay over all assets included in the trust to the successor Trustee named herein." In 1987, John Hancock issued a policy of life insurance, designating John as the insured. The policy was issued to Susan, as trustee of the Trust, and, in that same capacity, Susan was designated the owner and sole beneficiary of the policy. Beginning in 1990, John, by his own admission, obtained loan proceeds from John Hancock by signing Susan's name to the necessary loan-request forms. John admittedly used the loan proceeds to pay his personal financial obligations, after intercepting the loan checks, which were payable to Susan, as trustee of the Trust. John and Susan were divorced in April 1999. After the divorce, John continued to obtain loan proceeds from the policy for his personal use by signing Susan's name, as trustee, to the necessary loan-request forms. In March 1999, International Oil stopped paying the premiums on the John Hancock policy. As a result, the policy's cash value began to diminish by virtue of the fact that the cash was being used to pay the premiums. John decided in early 2000 to cash surrender the John Hancock life insurance policy. However, under the terms of both the Trust and the John Hancock policy, only Susan, acting in her capacities as trustee of the Trust and as owner of the policy, was entitled to surrender the policy for cash. Barbara Ann and Ryan were aware of John's plans to obtain the cash-surrender proceeds and to use them to pay his personal financial obligations and living expenses. Neither of the adult children objected to John's plans. John and John Hancock agree that Susan initially agreed to obtain the cash-surrender benefits for John, as both he and their children had requested. However, they also agree that Susan changed her mind, deciding, instead, to surrender the policy for cash for her personal benefit. On February 14, 2000, Susan, as owner of the policy, signed the cash-surrender form, requesting that John Hancock make its check payable to "Policy/Contract Owner" and that it mail the check to her at a new address. John Hancock received Susan's cash-surrender form on February 16, 2000. On February 18, John Hancock issued its check for the cash-surrender value of the policy. The check was payable to "Susan L. Moore, Trustee," and was mailed to Susan at the new address. John had attempted to prevent Susan's cash surrender of the policy. On February 15, 2000, a former John Hancock agent, at John's request, had an employee telephone John Hancock to notify it that there was a "dispute" over the ownership of the policy. On February 16, 2000, the former agent faxed copies of the Trust and the divorce judgment to John Hancock. On December 6, 2000, John, Ryan, and Barbara Ann filed a complaint against John Hancock and Susan, in which they "sought compensatory and punitive damages against John Hancock and [Susan] for the wrongful cash surrender of [the] life insurance policy insuring the life of John A. Moore and held in trust for J. Ryan Moore and Barbara Ann Moore." The complaint stated claims alleging negligence, wantonness, conversion, fraudulent misrepresentation, breach of contract, bad faith, fraudulent suppression, and conspiracy. John Hancock filed a motion for a summary judgment, which, after oral arguments and the submission of briefs, the trial court granted on August 15, 2002, stating, in part, that the "[p]laintiffs lack standing to bring this action against John Hancock." The trial court later made the summary judgment for John Hancock final, pursuant to Ala.R.Civ.P. 54(b). HOLDING: The Supreme Court vacated the summary judgment and dismissed the appeal. The Court noted that John conceded in the trial court that he has no standing to sue John Hancock and that when a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. The Court held that the absence of subject-matter jurisdiction renders void any judgment entered in the action, and a void judgment will not support an appeal. The Court also concluded that the other plaintiffs lacked standing.

BE&K, Inc. v. Baker, No. 1020594 (Ala. Sept. 5, 2003)
Summary: appellate procedure; permissive appeal; BE&K, Inc., BE&K Properties, Inc., Polar Real Estate Corporation, and Polar Property Development, Inc. (hereinafter referred to collectively as "the counterclaim defendants"), appeal, pursuant to Ala. R. App. P. 5, from the trial court's interlocutory order denying their motions for judgment on the pleadings. In its Rule 5(a) certification, the trial court identified what, in its opinion, is the "controlling question of law" in this case: "Specifically, the issue presented is whether the claims asserted in the counterclaim relate back as to [the counterclaim defendants] under Ala. Code § 6-8-84." The Supreme Court granted permission to appeal. HOLDING: The Supreme Court dismissed the appeal without prejudice. The Court stated that under the undisputed facts, the trial court has not identified "a controlling question of law," and that §6-8-84 is irrelevant to any consideration of the compulsory counterclaims asserted by the Baker defendants. The Court noted that, on appeal, the counterclaim defendants sought to redefine the issue presented for review, effectively abandoning the issue stated by the trial court.

SouthTrust Bank v. Copeland One, L.L.C., No. 1020727 (Ala. Sept. 5, 2003)
Summary: interpretation of a lease agreement; ambiguity; This case involves the interpretation of a provision in a lease between SouthTrust Bank ("SouthTrust") and Copeland One, L.L.C. ("Copeland One"). The lease, drafted by SouthTrust, provided for a freestanding automated teller machine ("ATM") to be operated by SouthTrust on property owned by Copeland One (the "ATM lease"). The trial court determined that the provision in the ATM lease was ambiguous and entered a judgment for Copeland One. HOLDING: The Supreme Court affirmed. The Court held that because SouthTrust drafted the ATM lease, any ambiguity in that lease must be construed against it.

Ex parte J.C., No. 1020824 (Ala. Sept. 5, 2003)
Summary: criminal; youthful offender; constructive possession; trafficking in marijuana; The petitioner, J.C., was convicted as a youthful offender of trafficking in marijuana and possession of drug paraphernalia. Leslie Woodall, an Alcoholic Beverage Control Board agent who participated in the search, testified that, during the search, he could smell marijuana throughout the house. However, all the marijuana found during the search, which totaled more than 17 pounds, was found in the father's bedroom. Leslie Woodall, an Alcoholic Beverage Control Board agent who participated in the search, testified that, during the search, he could smell marijuana throughout the house. However, all the marijuana found during the search, which totaled more than 17 pounds, was found in the father's bedroom. The trial judge stated that, even though all 17 pounds of marijuana was found in the father's bedroom, the strong odor of marijuana in the house and the paraphernalia and marijuana seeds found in J.C.'s bedroom satisfied the judge beyond a reasonable doubt that J.C. knew the marijuana was in the house. Accordingly, the trial court found J.C. guilty of trafficking in marijuana. He was sentenced to three years' imprisonment on the trafficking charge and to one year's imprisonment on the drug-paraphernalia charge. The trial court suspended the sentences and ordered J.C. to attend a disciplinary-rehabilitation program, to be followed by three years of probation. The Court of Criminal Appeals affirmed both convictions by an unpublished memorandum. HOLDING: The Supreme Court reversed. The Court held that the evidence presented at trial was not legally sufficient to show that J.C. constructively possessed the marijuana found in his father's bedroom.

Ex parte Sawyer, No. 1020897 (Ala. Sept. 5, 2003)
Summary: immunity; state-agent immunity; qualified immunity; In September 1999, Edna Moseley, a resident at the Mary Starke Harper Geriatric Center at Bryce Hospital in Tuscaloosa, was injured when she was attacked by another patient. Joyce Marsh, in her capacity as Edna Moseley's guardian, sued the Alabama Department of Mental Health and Mental Retardation ("DMHMR") and Kathy Sawyer, commissioner of DMHMR, in her individual and official capacities, seeking damages, injunctive relief, and declaratory relief. Marsh alleged that Sawyer had negligently or intentionally violated the policies and procedures of DMHMR by refusing to provide Marsh with information regarding the assault; that Sawyer's actions violated Moseley's civil rights under 42 U.S.C. § 1983; that Sawyer had negligently failed to correct the pattern of abuse of patients by workers at Bryce Hospital; and that Sawyer had failed to perform numerous legal duties and ministerial acts to protect mental-health patients at Bryce Hospital. The trial court dismissed the claims against Sawyer in her official capacity, but it denied her motion for a summary judgment as to claims against her in her individual capacity. Sawyer filed this petition for a writ of mandamus directing Judge Price to dismiss the claims asserted against her in her individual capacity. HOLDING: The Supreme Court concluded that Sawyer is protected under the doctrine of State-agent immunity because the actions for which Marsh is seeking to hold her liable occurred while she was acting as the commissioner of DMHMR. The Court concluded that there is insufficient evidence indicating that Sawyer acted "willfully, maliciously, fraudulently, [or] in bad faith" in discharging her duties. The Court further concluded that Sawyer was engaged in a discretionary function and that nothing in the record indicates that Sawyer did not believe her actions at the time were lawful in light of the law and the information she possessed at that time. The Court therefore granted the writ of mandamus and directed the trial court to enter a summary judgment in favor of Sawyer on the claims against her in her individual capacity.

Watts v. Sentry Ins., No. 1020995 (Ala. Sept. 5, 2003)
Summary: uninsured/underinsured-motorist insurance; workers' compensation; Michael Raymond Watts was driving a motor vehicle owned by his employer, Johnson Controls, Inc., when the vehicle was struck by a utility trailer that had come loose from a vehicle driven by William J. Rupe and owned by Rupe's employer, Dwight's Lawn & Garden Equipment, Inc., d/b/a A & D Distributors; the utility trailer was owned by Dwight's Lawn & Garden Equipment, Inc. The accident occurred while Watts was acting within the line and scope of his employment. Watts fractured his right tibia and injured his left knee, shoulders, and back in the accident. Watts received from his employer, Johnson Controls, workers' compensation benefits and expenses for medical and surgical treatment under Ala. Code §25-5-77. Watts sued Rupe and others, including Sentry Insurance ("Sentry") (but not Johnson Controls), to recover compensatory damages and punitive damages as a result of the accident. Watts alleged that he was insured by, or was the beneficiary of, policies of motor-vehicle insurance issued by Sentry, pursuant to which Sentry was to provide Watts protection against bodily injury caused by an uninsured/underinsured-motorist in consideration of a premium paid to Sentry by Watts's employer, Johnson Controls. Watts alleged that the injuries and damage he suffered were proximately caused by the negligent or wanton conduct of Rupe, an underinsured motorist, and that Sentry had failed to pay Watts benefits under the policy. Sentry moved for a summary judgment, alleging that Watts was an employee of Johnson Controls; that Watts was operating a vehicle owned by Johnson Controls within the line and scope of his employment at the time of the accident; that Watts was injured as a result of that accident; that Watts and Johnson Controls were subject to the provisions of the Alabama Workers' Compensation Act; that Watts had made a claim for and received workers' compensation benefits from Johnson Controls; that Sentry is the underinsured-motorist carrier for Johnson Controls, but not its workers' compensation carrier; and that Watts sued Sentry (Johnson Controls' underinsured-motorist carrier) seeking underinsured-motorist benefits after he had filed a workers' compensation claim to recover benefits from Johnson Controls' workers' compensation carrier. The trial court entered summary judgment in favor of Sentry. HOLDING: The Supreme Court reversed. The Court held that an employee who is receiving workers' compensation benefits from his employer for injuries he sustained in a motor-vehicle accident that occurred while the employee was driving a vehicle belonging to the employer can recover underinsured-motorist benefits from the employer's automobile liability insurer (which is not the employer's workers' compensation insurer), if the employee's injuries were proximately caused by the negligence or wantonness of an underinsured driver, who was not a co-employee, but subject to the employer's right to reimbursement for the compensation paid on account of the employee's injury to the extent of the employee's recovery of damages against the third-party tortfeasor. The Court held that nothing in the Alabama Code or Alabama caselaw shelters Sentry from its liability for underinsured- motorist coverage under the facts of this case.

Clement Contracting Group, Inc. v. Coating Sys., L.L.C., No. 1021337 (Ala. Sept. 5, 2003)
Summary: arbitration; Clement Contracting Group, Inc. is a general contractor. Coating Systems, L.L.C. is a painting subcontractor. According to Coating Systems' articles of organization, Mark Underwood is the sole member and the manager of the company. In February 2000, Clement and Coating Systems entered into a contract pursuant to which Coating Systems would be responsible for painting a building Clement was constructing. Underwood signed the contract with Clement, writing the word "member" under his signature. A dispute arose concerning the work performed by Coating Systems and the amount of payment due under the contract, and Clement initiated arbitration proceedings against Coating Systems and Underwood pursuant to an arbitration clause in the contract. Clement sought to have Coating Systems and Underwood held liable for breach of the contract. Coating Systems and Underwood then filed a complaint for a judgment declaring the parties' rights under the arbitration provision in the contract and an ex parte motion to stay the arbitration proceedings while the declaratory-judgment action was pending. They also asked the trial court to find that Underwood "is not personally liable and individually subject to the arbitration clause of said [contract] and that the dispute and arbitration is between Clement and Coating Systems." The trial court issued an order granting Coating Systems and Underwood's motion to stay the arbitration proceedings pending a resolution of the declaratory-judgment action. Clement then filed a motion to compel arbitration, a motion to dissolve the stay, and a motion for a summary judgment in the declaratory-judgment action. In response to Clement's motions, Coating Systems and Underwood filed a motion for a summary judgment. Clement filed a response and a brief in opposition to Coating Systems and Underwood's motion for a summary judgment. After a hearing on the motions, the trial court denied Clement's motions for a summary judgment and to compel arbitration. The trial court also entered a summary judgment in favor of Coating Systems and Underwood, concluding that "Underwood is not subject to arbitration in his individual capacity." The trial court further stated that "arbitration may proceed between [Clement] and [Coating Systems]." Clement appealed. HOLDING: The Supreme Court affirmed.

September 12

Decisions Announced by the Supreme Court of Alabama on Friday, September 12, 2003
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. Green, No. 1011798 (Ala. Sept. 12, 2003)
Summary: fraud; reasonable reliance; Andy Green and Bonnie Green ("the Greens") sued Alfa Life Insurance Corporation ("Alfa") alleging fraud, suppression, and negligent or wanton failure to procure insurance. The claims arose out of the Greens' purchase of a $500,000 whole-life insurance policy on Bonnie Green's life. The Greens voluntarily dismissed their negligence and wantonness claims. On December 14, 2001, the jury returned a verdict for the Greens, awarding them $300,000 in compensatory damages and $3,000,000 in punitive damages. On motion of Alfa, the trial court reduced the punitive-damages award to $900,000 in accordance with Ala. Code §6-11-21. On January 14, 2002, Alfa filed a posttrial motion for a judgment as a matter of law, or, alternatively, for a new trial and a motion seeking a remittitur. The trial court denied all of Alfa's motions. HOLDING: The Supreme Court reversed. The Court held that the Greens failed to demonstrate that their reliance on Alfa's representations to them regarding a whole-life insurance policy was reasonable.

Zaden v. Elkus, No. 1012149 (Ala. Sept. 12, 2003)
Summary: discovery; relevancy; existence of insurance; medical malpractice; Helen Zaden sued Dr. Richard Elkus, an orthopedic surgeon, asserting claims of medical malpractice based on an injury she allegedly suffered during the course of a surgical procedure performed by Dr. Elkus. A jury rendered a verdict in favor of Dr. Elkus and the trial court entered a judgment on that verdict. The dispositive issues presented in this case are whether the trial court improperly refused to allow Zaden discovery from a potential witness, who later testified at trial, concerning a possible bias on the part of some of the physicians who had treated Zaden, assuming that the physicians had been provided with attorneys hired by Dr. Elkus's medical-liability insurer, and whether the ex parte interviews Dr. Elkus's attorneys conducted with certain of Zaden's treating physicians were improper. Zaden contends that the trial court committed reversible error by preventing her from conducting discovery of the existence of liability insurance for the purpose of showing that Dr. Elkus's medical-liability insurer was providing lawyers to her treating physicians who were deposed, thereby raising an inference of witness bias. HOLDING: The Supreme Court affirmed. The Court held that two questions Zaden argues Dr. O'Neal should have been compelled to answer are not "relevant" because they sought to explore a possible overlap of professional liability carriers for Dr. O'Neal and Dr. Elkus. Those two questions were: "Do you know whether or not your liability insurance is the same as the company that represents Mr. Elkus?" and "Do you know who your insurance is with?" Those questions would not lead to "other evidence that will be admissible," because, even assuming that it might have been shown that Dr. O'Neal and Dr. Elkus both had liability insurance and that it was with the same insurance carrier, that information would not have been admissible at trial. The Court also noted that the record is devoid of any information showing that that Dr. O'Neal and Dr. Elkus were covered by the same liability insurance carrier. The Court noted that the three remaining questions posed to Dr. O'Neal -- (1) "Did you hire the gentleman here –- the lawyer here, that's representing you today?"; (2) "Are you the person that's going to pay the lawyer that's with you here today, Doctor?"; and (3) "How did you come to meet the gentleman, the lawyer here, that's representing you here today?" – do not directly raise an insurance issue. However, the Court noted that it had no basis for assessing error, if any, in the trial court's refusal to require Dr. O'Neal to answer those questions because Zaden did not make any preverdict offer of proof concerning her expected answers to the questions, nor did she attempt to develop any evidence concerning those questions in connection with her motion for a new trial.

Washington v. Bill Heard Chevrolet, Inc., No. 1020285 (Ala. Sept. 12, 2003)
Summary: arbitration; dismissal; Floyd Washington sued Bill Heard Chevrolet, Inc. for fraud and sued Chevy Chase Bank, FSB for declaratory relief. With regard to Chevy Chase Bank, he claimed that a retail installment contract as forged by someone and not sighed by him. The trial court granted a motion to compel arbitration as to Bill Heard Chevrolet and dismissed the claim by the plaintiff for a judgment declaring the "forged" third retail installment sale contract void and unenforceable. HOLDING: The Supreme Court reversed the dismissal of the claim for declaratory relief against Chevy Chase Bank. The Court concluded that the complaint does state a justiciable controversy, and the trial court committed reversible error in entering the Rule 12(b)(6) dismissal. The Court noted that, according to the allegations of the complaint, the balloon payment of the third retail installment sale contract exceeds the balloon payment of the second; and, for aught that appears in the complaint, the third retail installment sale contract does not relieve the plaintiff from the obligations of the second. The Court noted that, for aught that appears, the plaintiff will be bound to pay both retail installment sale contracts unless the trial court declares the third void as a forgery, as the complaint alleges it is, or unless the trial court otherwise addresses the apparent existence of the two putative contracts. Therefore, the Court concluded that within the allegations of the complaint, the plaintiff may prove that he will suffer real harm in the absence of a declaratory judgment. The Court affirmed the order granting the motion of Bill Heard Chevrolet to compel the plaintiff to arbitrate his claims against that company.

Avis Rent A Car Sys., Inc. v. Heilman, No. 1020667 (Ala. Sept. 12, 2003)
Summary: class action; claims of breach of contract, unjust enrichment, and conspiracy; Cindy Wiegel Heilman and Rosalind Davis Meyer each rented automobiles from Avis or licensees of Avis at the airports in Birmingham and Montgomery, respectively, and paid, in addition to a fee for a rental period, charges described in their "transaction" documents as (1) an "8% tax recovery surcharge" ("the surcharge"), and (2) a 10% "concession fee recoupment" ("the recoupment"). When Heilman and Meyer took possession of their rented vehicles, they each received a "rental document," stating that they would be charged, among other things, "10.00% CONCESSION FEE RECOUP [line break] TAX: .000% [line break] 8% TAX RECOVERY SURCH." Heilman and Meyer each signed her respective rental document. The rental document was accompanied by a "rental jacket," containing a list of "rental terms and conditions." It stated, in part, "I'll pay all sales, use, rental, and excise taxes, including tax-related surcharges." Finally, upon the return of each car, the renter received a "return record." The return record listed the itemized charges, including the surcharge and the recoupment. Heilman was subsequently reimbursed by her employer, Douglas Stewart Company, Inc. ("Stewart"), for the cost of the rental. On March 13, 2000, Heilman and Meyer sued Avis and the licensees on behalf of themselves and "all others similarly situated," alleging that the surcharge and the recoupment were unauthorized by law and that they had been assessed in violation of the terms of the transaction documents. They sought compensatory and punitive damages under several theories, including breach of contract, fraud, suppression, and misrepresentation. The complaint also contained a conspiracy count. On July 30, 2002, Heilman and Meyer moved to certify the action as a class action, pursuant to Rule 23(b)(3). On December 17, 2002, the trial court entered an order certifying a class on the breach of contract, unjust enrichment, and conspiracy claims. The trial court declined to certify the fraud-based claims for class treatment. Avis and the licensees appealed, contending that the trial court's analysis and holding fail to satisfy the Rule 23 requirements of class certification. HOLDING: The Supreme Court held that the trial court erred in certifying the unjust-enrichment claim and the conspiracy claim for class-action treatment. The Court held that the trial court also erred in including in the class corporations and "corporate travelers." To that extent, the Court vacated the class-certification order. The Court held that the trial court did not err, however, in certifying for class-action treatment the breach-of-contract claims of the "individual renters." To that extent, the Court affirmed the class-certification order.

Tyson Foods, Inc. v. McCollum, No. 1020829 (Ala. Sept. 12, 2003)
Summary: workers' compensation; retaliatory discharge; Martha McCollum began work on July 29, 1997, at a chicken processing plant owned and operated by Hudson Foods, Inc. Tyson Foods acquired Hudson Foods in January 1998. On July 21, 1998 (almost one year after McCollum started working for Hudson Foods and six months after Tyson acquired Hudson Foods), McCollum sustained an on-the-job injury to her finger while working a sealing machine on a bag line conveyor. Tyson paid for all of the medical expenses McCollum incurred as a result of this injury, and McCollum received $3,100 in workers' compensation benefits related to this injury. McCollum returned to work in September 1998, but, because of her injury, she was physically unable to perform her job on the bag line conveyor. Tyson placed her in a different job, allowing her to work in its laundry room where she was able to undergo physical therapy three times a day for her finger. As she felt able, McCollum would help out in the laundry room by hanging smocks worn by the employees while they worked. About a month after McCollum returned to work, a Tyson nurse told McCollum that McCollum's doctors felt that she was ready to return to regular work and asked her if she would be willing to try to do so. McCollum agreed, and Tyson placed her in the marinated raw breaded ("MRB") department, where her job was to check chicken that had been processed into "fingers" on a conveyor belt. McCollum remained in this job for only three or four days, because the work, where the chicken products were conveyed on the belt at a fast speed, made her dizzy. McCollum informed Jerry Phillips, Tyson's human resources manager, that she could not perform the work because it made her dizzy. McCollum testified that Phillips told her that Tyson did not have any other type of work that McCollum could perform, so Phillips suspended McCollum without pay for three days. McCollum also testified that she was asked to present a doctor's excuse, and that she later presented one stating that she could not work on fast-moving production lines involving small products. McCollum also testified that three days after her meeting with Phillips, Tyson's nurse told her that Phillips did not understand the situation and to come back to work on Monday. After McCollum presented the doctor's excuse, Tyson placed her in the position McCollum had requested -- a checker on the bag line in the MRB department. McCollum did not suffer from dizziness on this line because the bags on the line were large. Her duties in this new position involved checking to make sure that the bags were correctly sealed and coded, and, like her prior position, it was in a cold-work environment. Twelve other employees worked on this line with McCollum. McCollum testified that up until her assignment as a checker on the MRB line, no one at Tyson had harassed or mistreated her in any way. After working on the MRB line for a time, McCollum decided to try a job in the debone department. She tried the job but did not like it because she could not operate the machine well with one hand and because it was colder in the debone department than it was in the MRB department. She requested to be, and was, returned to her job in the MRB department. On March 10, 2000 (approximately 18 months after she had returned to work following the injury for which she received workers' compensation benefits and approximately 20 months after she had filed her claim for those benefits), while working on the evening shift, she became sick; she was sneezing and coughing, and she had a temperature. The illness had nothing to do with the 1998 injury to her hand for which she had received workers' compensation benefits. McCollum went to the clinic at the plant and saw the nurse. After she saw the nurse, McCollum told her supervisor, Joe Carroll, that she was ill and needed to go home. Carroll told her that he needed to get David Smith, a processing superintendent, but before going to get Smith, Carroll moved McCollum down the line away from any blowing air. McCollum moved, but told Carroll that moving away from the blowing air would not help because she was already sick. Carroll left to find Smith, and Smith then came up and stood next to McCollum on the line. McCollum testified that she told Smith that she was ill, advised him that she had seen the plant nurse, and informed him that she needed to go home. Smith would not authorize her leaving and told her that if she left, it would be an unauthorized leave. McCollum replied: "Do you mean I'm fired?" Smith answered: "Yes, you will lose your job if you leave." At this point, the power in the entire plant went off as the result of a thunderstorm, and Smith left McCollum. Smith testified that before leaving McCollum to go check on the power outage, Smith told her, "Wait just a minute." However, McCollum did not wait; rather, she told Carroll what Smith had said and advised him that she was sick and was going home. Carroll replied "okay," and McCollum left. When Smith returned 25 to 30 minutes later after checking on the power outage, he learned that McCollum had left. Smith then filled out a separation notification form, which stated that McCollum had "walked off the job." He checked the block indicating that she was "not eligible for rehire," and he described the circumstances on this form as follows: "Martha [McCollum] walked off of her job and left." It is undisputed that Smith was aware that McCollum had previously sustained an injury at work, but he claimed that he was unaware that she had instituted or maintained an action or had even filed a claim for workers' compensation benefits. McCollum testified that she returned to Tyson on March 17, 2000, to pick up her paycheck. A Tyson employee presented her with an exit-interview form and instructed her to fill it out to indicate that she had quit her employment. She adamantly refused to sign this statement because she claimed that she had not quit, but that she had been fired. She was then asked to complete the form by stating the reason for the cessation of her employment. She wrote on the form that she was fired for asking to leave work because she was sick. She presented the form to Cindy Light, an assistant personnel manager, and Light stated that "there's something wrong" and she requested that McCollum wait a few minutes while Light spoke with Jerry Phillips, Tyson's human resources manager. McCollum then met with Phillips and Jeanette Masters, a union representative who happened to be in the plant at the time. Phillips inquired about the circumstances leading to the termination of McCollum's employment. She explained the circumstances to him, and Phillips stated that Smith, McCollum's supervisor, did not have the authority to fire McCollum, that he should not have terminated her, and that terminating her was the wrong thing to do. McCollum replied that she did not want to work at Tyson because she was frightened of the harassment she claimed to have experienced while she was employed at Tyson. Phillips asked her to return to work, requesting that she take a few days to think about it and that she then advise him of her decision. She telephoned several days later to advise him that she would not return because she was afraid to do so. After a trial on McCollum's retaliatory discharge claim against Tyson, the trial court entered a judgment against Tyson and in favor of McCollum. Tyson moved for judgment as a matter of law, and that motion was denied. HOLDING: The Supreme Court reversed, holding that the trial court erred in denying Tyson's postjudgment motion for a judgment as a matter of law.

Ex parte First Alabama Bank, No. 1020855 (Ala. Sept. 12, 2003)
Summary: judicial estoppel; Donald Vincent sued First Alabama Bank, now known as Regions Bank ("the Bank") and his wife, alleging negligence, breach of contract, conversion, and wantonness claims. Vincent alleged that he had rented two safe deposit boxes from the bank and had placed $500,000 in cash and certificates of deposit in the boxes. However, he claims that when he opened the boxes on November 21, 1991, the boxes were empty. Vincent alleges that Betty Jo Vincent, his wife, gained unauthorized access to the boxes and removed the money. The case was tried to a jury but later reversed on appeal by the Court of Civil Appeals on the grounds that the trial court erroneously excluded evidence that should have been admitted. On remand, the Bank filed a motion for summary judgment asserting, among other things, that Vincent's claims were barred by the doctrine of judicial estoppel because he had, according to the Bank, represented under oath in previous bankruptcy proceedings and in divorce litigation with a former wife, Billie Vincent, that he did not have the $500,000 that he claimed Betty Vincent had removed from the safety-deposit boxes at the Bank. In September 2001, the trial court entered a summary judgment in favor of the Bank and Betty Vincent. In its summary-judgment order, the trial court relied primarily upon the doctrine of judicial estoppel, although it also cited a release as an alternative ground. The Court of Civil Appeals reversed. The Supreme Court granted certiorari review to consider the issue of judicial estoppel only. HOLDING: The Supreme Court reversed the Court of Civil Appeals (i.e., it affirmed the trial court's summary judgment on grounds of judicial estoppel). The Court held that the argument based on judicial estoppel was not waived because the Bank had asserted the defense of "estoppel" in its answer. The Court reevaluated the propriety of limitations upon the availability of the doctrine of judicial estoppel found in some of its earlier cases, and it held that reliance and privity are components that fit easily under the heading of equitable estoppel, but should not be essential elements of the doctrine of judicial estoppel. The Court noted that application of the strict standards endorsed in earlier cases would require it to reject the Bank's defense of judicial estoppel on two grounds -- want of involvement of the Bank in the antecedent litigation and absence of reliance on the part of the Bank upon the result in the previous litigation -- but noted that such a result in this case is simply offensive because Vincent would be permitted to have it both ways, successfully denying ownership of an asset in the earlier proceedings and seeking its recovery in this proceeding. Thus, the Court "embrace[d] the factors set forth in New Hampshire v. Maine[, 532 U.S. 742 (2001),] and join[ed] the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel. The Court expressly overruled Porter v. Jolly, 564 So. 2d 434 (Ala. 1990), and cases consistent with Porter that have not heretofore been sub silentio overruled.

Capitol Chevrolet & Imports, Inc. v. Payne, No. 1021027 (Ala. Sept. 12, 2003)
Summary: arbitration; scope of the arbitration agreement; claims of fraud and conversion; Jean A. Payne, purchased a used 1997 Cadillac Catera automobile from Capitol Chevrolet & Imports, Inc. Capitol financed the purchase of the Catera, and both Payne and Capitol signed a "Retail Installment Sale Contract" and an accompanying arbitration agreement. In September 2002, Payne sued Capitol and a Capitol salesperson, Jason Golden, alleging fraud and conversion. According to Payne's complaint, approximately one month after she purchased the Catera, she returned the Catera to Capitol in reliance on Golden's representation that Capitol had a willing buyer for the vehicle. Payne relinquished possession of the Catera to Capitol and stopped making payments on the car. Payne alleged that Golden, while acting in the line and scope of his employment with Capitol, misrepresented to her that Capitol had a buyer for the Catera, and that, when Payne relinquished the Catera to Capitol in reliance on that misrepresentation, Golden converted the Catera for his personal use. Payne's complaint alleged that, as a result of the misrepresentation, she lost the use of her vehicle, suffered severe mental anguish, and suffered an adverse credit rating once she stopped making payments on the Catera. Capitol moved to compel arbitration based on the arbitration agreement Payne signed when she purchased the Catera. Payne, however, argued that her claims, which alleged fraud and conversion, were outside the scope of the arbitration agreement. The trial court agreed with Payne and denied the motion to compel arbitration. HOLDING: The Supreme Court affirmed. The Court concluded that a fair reading of the arbitration agreement signed by Payne and Capitol leads to the conclusion that the agreement covers only disputes that more closely relate to the initial purchase and financing of the Catera, and the negotiations and sale of other services incident to the initial sale of the Catera.

Ex parte Troncalli Chrysler Plymouth Dodge, Inc., No. 1021135 (Ala. Sept. 12, 2003)
Summary: personal jurisdiction; David J. Case sued Troncalli Chrysler Plymouth Dodge, Inc. ("Troncalli") and Alexander Dodge Chrysler Plymouth, Inc. asserting claims of (1) "conspiracy to commit fraud," (2) bad faith, (3) misrepresentation, (4) deceit, and (5) breach of contract. Troncalli filed a "Special Appearance for the Purpose of Alleging Lack of Personal Jurisdiction." Troncalli alleged that it "had no contact with the State of Alabama in this transaction," and moved to dismiss the complaint on that ground. Troncalli subsequently supported the motion with a brief and the affidavit of Ryan Troncalli, its general manager. Case filed a response to the motion to dismiss and an "Alternative Motion to Continue to Allow the [Case] to Conduct Limited Discovery." On March 3, 2003, the trial court denied the motion to dismiss. Troncalli then filed a petition for writ of mandamus, asking the Supreme Court to direct the trial court to vacate its order denying Troncalli's motion to dismiss the complaint and to direct the trial court to grant its motion to dismiss for lack of personal jurisdiction. HOLDING: The Supreme Court granted the petition. The Court held that a "computer database locator," which, Case contended allowed other Chrysler dealers to know Troncalli's inventory for the purposes of making a sale to their customers, was not an act made by Troncalli purposefully directed to Alabama entities. The Court held that the allegations of Case's complaint do not support a colorable claim of general jurisdiction, and he was therefore not entitled to discovery.

September 19

Decisions Announced by the Supreme Court of Alabama on Friday, September 19, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., No. 1010070 (Ala. Sept. 19, 20
Summary: Commerce Clause; taxation; The State of Alabama levies excise taxes on wine under the Alabama Table Wine Act, Ala. Code §28-7-1 et seq. It formerly levied excise taxes under the Alabama Native Farm Winery Act, Ala. Code §28-6-1 et seq. Historically, all wine sold in Alabama was taxed under the general taxation provisions in Ala. Code §28-3-200 et seq. In 1979, the Legislature passed the Native Farm Winery Act, which levied an excise tax of $.05 per gallon on all native farm wine sold in Alabama or dispensed as free samples at a native farm winery. Ala. Code §28-6-4(b). The Native Farm Winery Act also exempted native farm wine from all other taxes, including those levied under Ala. Code §28-3-200 et seq. Ala. Code §28-6-4(b). In 1980, the Legislature enacted the Alabama Table Wine Act. The Table Wine Act levied an excise tax of $.45 per liter on all table wine "sold to [a] wholesale licensee or [the Board], to be collected from the purchaser by the [Board] or by a licensed retailer." Ala. Code §28-7-16. The Table Wine Act stated that "the tax levied is in fact a levy on the consumer." Ala. Code §28-7-16(b). The Table Wine Act repealed all other taxes on wine, but it did not repeal the tax-exemption provision in the Native Farm Winery Act. Ala. Code §28-7-24. In March 2001, Henri-Duval Winery, L.L.C. ("Duval"), sued the Board, alleging that §28-7-16 imposed an unconstitutional excise tax on wine moving in interstate commerce in violation of the Commerce Clause. Duval argued that Alabama's table-wine tax scheme discriminated against wine produced outside Alabama because it exempted from the excise tax Alabama native farm wine. Duval sought a declaration that §28-7-16 was unconstitutional. Duval also sought injunctive relief, a refund of wrongfully collected taxes, and certification of a class composed of all producers, manufacturers, importers, and distributors of table wine to participate in any damages award. The Board filed a counterclaim stating that the excise-tax provisions of the Table Wine Act do not discriminate against foreign wine, and arguing that if the trial court found Alabama's excise-tax scheme for table wine unconstitutional, the trial court should uphold the excise tax in the Table Wine Act, §28-7-16, and instead find the tax exemption in the Native Farm Winery Act, §28-6-1 et seq., unconstitutional. Duval moved for a partial summary judgment on the issue whether §28-7-16 violated the Commerce Clause and was therefore unconstitutional. The trial court granted Duval's motion and held that the excise tax in §28-7-16 was discriminatory and unconstitutional; that the Native Farm Winery Act, §28-6-1 et seq., is not subject to the Commerce Clause because it regulates intrastate commerce; and that the Board lacked standing to contest the constitutionality of the Native Farm Winery Act. The trial court certified that summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P., and ordered that all taxes collected pending the appeal of its decision be placed in escrow. HOLDING: The Supreme Court reversed. The Court held because Duval challenged the constitutionality of Alabama's table-wine excise tax, and because the State has an interest in preserving the integrity of its regulatory framework for the sale and taxation of wine, the Board has standing to bring a counterclaim challenging the constitutionality of the tax exemption for native farm wine enacted in the Native Farm Winery Act. The Court reversed the trial court's finding that §28-7-16 is unconstitutional because it found that §28-7-16, standing alone, merely enacts a nondiscriminatory excise tax on table wine. The Court held that Alabama's scheme of taxation for table wine embodied in the Table Wine Act read together with the Native Farm Winery Act violates the Commerce Clause. The Court further held that it would have been proper for the trial court to cure the constitutional defect in the tax scheme by striking only the tax-exemption provision in §28-6-4.

Wooten v. Ivey, Nos. 1011384 & 1011385 (Ala. Sept. 19, 2003)
Summary: nuisance; right to trial by jury; claims for damages and equitable relief; On September 7, 1999, Toney Ivey, Brenda Ivey, and Casey Ivey sued Jeffrey Wootten, Marty Wootten, and Gold Kist, Inc. (hereinafter collectively referred to as "the defendants"), alleging that their land had been damaged as a result of the defendants' operation of a hog farm near the Iveys' property. The Iveys alleged, among other things, that the defendants' operation of the hog farm created a nuisance, and they sought money damages, injunctive relief, and attorney fees. The Iveys' complaint included a general demand for a jury trial. On January 31, 2000, the complaint was amended to add 16 plaintiffs who also claimed to have suffered damage from residing in close proximity to the defendants' hog farm. On October 2, 2000, a jury trial was conducted and the trial court submitted the nuisance claim and the request for money damages to the jury for deliberation. On October 2, 2000, a jury trial was conducted and the trial court submitted the nuisance claim and the request for money damages to the jury for deliberation. On October 12, 2000, the jury returned a verdict in favor of the defendants as to each plaintiff's claim for nuisance. Based on the jury's verdict, the trial court, on October 13, 2000, entered a judgment in favor of each of the defendants and against all of the plaintiffs as to the nuisance claim seeking money damages. The trial court amended its October 13, 2000, judgment to add the following statement: "This [October 13, 2000] judgment shall be, and is hereby, deemed a judgment on the damage[s] claims only, and not a judgment on the claims for equitable relief asserted in this case." The court stated that it would determine whether equitable relief was warranted in this case by considering the evidence presented at trial, "together with such other evidence as may be presented by the parties at the hearing hereinafter scheduled." The court explicitly stated that the October 13, 2000, order was not a final order and scheduled an additional hearing to allow the plaintiffs to again attempt to prove to the trial court that the defendants' hog-farming operation constitutes a nuisance. The trial court then conducted hearings at which additional evidence was presented that had not been presented at trial. The trial court then appointed a special master to monitor the operation of the defendants' hog farm, and the judge and the special master made personal visits to the hog farm. On January 9, 2002, the trial court entered a judgment on the plaintiffs' claim for injunctive relief, finding that the defendants' hog farm constituted a nuisance and enjoining, as of April 1, 2002, the defendants from restocking their hog farm until the defendants submitted an odor-management plan to the trial court and received court approval of the plan. HOLDING: The Supreme Court reversed. The Court held that the trial court correctly submitted the issues of the existence of a nuisance and money damages to the jury; however, once the jury decided that the hog farm did not constitute a nuisance, the trial court erred in entering an order enjoining the defendants from restocking their hog farm pending the submission and approval of an odor-management plan.

Onzell v. Howorth, No. 1012339 (Ala. Sept. 19, 2003)
Summary: medical malpractice; lack of consent; informed consent; negligence; summary judgment; Onzell V. Cain sued Dr. Graham L. Howorth, a board-certified orthopedic surgeon, and his professional corporation, Graham L. Howorth, M.D., P.C., on various claims of medical malpractice arising from a hip-replacement operation Dr. Howorth performed on Cain. Cain was working as a nurse's aide at Coosa Valley Medical Center when she fell and sustained "a fracture of the left femoral neck displaced." She was taken to the emergency room of that hospital and given her choice of two doctors; she chose Dr. Howorth because "he did the majority of the surgery there." On December 30, 1997, he performed a bipolar hip arthroplasty on her. In a post-hospitalization clinic note, dated October 6, 1998, Dr. Howorth stated that Cain reported that she was still experiencing pain and that he "had discussed with her that the only alternative with her at this point would be to revise her total hip arthroplasty and [he did] not feel that this need[ed] to be performed." On November 30, 1998, because of continued pain in her hip, Cain sought a second opinion from Dr. Featheringill, who informed her that she had not undergone a total hip arthroplasty (hereinafter "THA"), which she alleges she thought she had undergone, but rather she had undergone a bipolar hip arthroplasty (hereinafter "BHA"). On February 17, 1999, Dr. Featheringill performed surgery on Cain and revised the BHA Dr. Howorth had performed on her left hip, converting it to a THA. Dr. Featheringill recorded in his "report of operation" that "[t]here was no acetabulum cartilage present. Whether this had been reamed from the previous procedure or whether it had just worn away, was uncertain." Cain asserts that Dr. Howorth advised her that she needed to undergo a THA and he recommended only that procedure to her. Dr. Howorth filed a motion for a summary judgment, supporting it with his deposition testimony and affidavit. In his affidavit, Dr. Howorth refuted every claim asserted against him in Cain's complaint. Cain filed a response to Dr. Howorth's motion, and attached the affidavit of Dr. Steven Nehmer, a board-certified orthopedic surgeon and her expert witness; Dr. Howorth's deposition testimony, as well as her own; his office notes concerning her; the hospital records for her admission and the surgery by Dr. Howorth; and office and hospital medical records of Dr. John Featheringill, another orthopedic surgeon. On August 19, 2002, the trial court entered summary judgments for Dr. Howorth as to all claims. HOLDING: The Supreme Court held that Cain did not assert any claims for lack of informed consent. The Court noted that nowhere in Cain's complaint, her other submissions to the trial court, or her deposition testimony did she ever contend that she had consented to a BHA but that her consent to that procedure was not informed. Rather, she adamantly insisted throughout that the only procedure identified and recommended to her by Dr. Howorth, and the only procedure she consented to, was a THA. The Court held that a lack-of-consent claim explicitly pleaded and argued does not embrace the separate concept of "lack of informed consent," the latter requiring averment and proof that the doctor failed to inform the patient of the "significant perils," or "all material risks," associated with the procedure for which consent was given. The Court concluded that Cain presented substantial evidence indicating that she did not consent to a BHA, but consented only to a THA. Thus, the Court reversed the summary judgment on the lack-of-consent claim. The Court further concluded that Cain established by substantial evidence genuine issues of material fact as to all elements of her claim that Dr. Howorth negligently or wantonly performed a BHA. Therefore, the Court reversed the summary judgment as to that claim. However, the Court held that the issue of fact created as to the claim of negligent or wanton performance of a BHA does not supply substantial evidence supportive of the alternative theory that he negligently performed an attempted THA but then abandoned that attempt and completed a BHA. The Court held that the trial court did not err in entering a summary judgment in favor of Dr. Howorth as to Cain's claim that he had negligently or wantonly performed a THA. The Court held that because none of the other claims pleaded by Cain were brought forward in her briefs, they were waived.

Liberty Nat'l Life Ins. Co. v. University of Ala. Health Servs. Found., P.C., No. 1012346 (Ala. Sept
Summary: standing; insurance; joinder of necessary parties; prima facie tort; declaratory judgment; immunity; Liberty National Life Insurance Company ("Liberty National") sued the University of Alabama Health Services Foundation, P.C., University of Alabama at Birmingham Hospital, and UAB Health System (hereinafter collectively referred to as "UAB"). Liberty National's complaint presented claims alleging "prima facie tort"; violation of Ala. Code §22-21-7; intentional interference with Liberty National's "contractual and/or business relationships" with its insureds; and a claim seeking a declaratory judgment under the Alabama Declaratory Judgment Act ("the Act"). Liberty National alleged that UAB's billing statements to its patients who are also Liberty National policyholders often contain charges for various services that exceed the amounts UAB has accepted or will accept as full payment for those services; thus, Liberty National claims that UAB causes it to pay its policyholders amounts in reimbursements for services performed by UAB that exceed what UAB accepts as full satisfaction of those services. Liberty National sought an injunction to prevent UAB from continuing its allegedly improper billing practice, an award of compensatory and punitive damages, and a judgment declaring that UAB's billing practices violated Ala. Code §22-21-7. UAB filed a motion to dismiss. In its motion UAB asserted that the "Board of Trustees of the University of Alabama for its Division, University Hospital" was the correct designation for the defendant designated in Liberty National's complaint as "University of Alabama at Birmingham Hospital." This defendant is referred to hereinafter as "UAB Hospital." UAB asserted lack of subject-matter jurisdiction arising from Liberty National's lack of standing to bring any of the claims except the claim alleging intentional interference with contractual and/or business relationships; failure to state a claim upon which relief could be granted as to the prima facie tort claim and the claim asserting a violation of §22-21-7; failure to join policyholders as necessary parties; and UAB Hospital's immunity from Liberty National's claims against it by virtue of Ala. Const. art. I, § 14. The trial court granted UAB's motion to dismiss the case, on the ground that the court lacked jurisdiction over the action because Liberty National lacked standing to bring it. HOLDING: The Supreme Court affirmed the trial judge's judgment insofar as it found that Liberty National lacked standing to bring the claim for violation of Ala. Code §22-21-7. The Court held, however, that given the broad standard used to determine standing, it cannot conclude that there is no possible situation in which Liberty National might show the requisite injury as to its other claims. The Court concluded that the subject policyholders have a legally protected interest that will be affected by the outcome of Liberty National's asserted claims, that if those policyholders are not joined in this action and are not bound by its outcome, the issue whether Liberty National may reduce the amount of cancer benefits it provides those policyholders under its cancer policies, in the event of an outcome favorable to Liberty National, could be subject to relitigation by a policyholder, potentially resulting in an outcome inconsistent with the outcome of this case. Accordingly, the Court concluded that the group of Liberty National policyholders composed of persons who have primary health insurance coverage of the sort discussed are necessary parties within the meaning of Rule 19(a), Ala.R.Civ.P. The Court noted that the record is devoid of information sufficient to inform it as to the feasibility of joinder of the affected Liberty National policyholders, so it held that the trial court would have to conduct further proceedings to develop that information and make a finding as to the feasibility of joinder. The Court declined to determine whether a claim for prima facie tort should be a recognized cause of action in Alabama. The Court noted that while UAB Hospital is protected by the doctrine of sovereign immunity from Liberty National's claims against it, the UAB Health Services Foundation is a nonprofit, independent professional corporation that, in part, attends to the billing for UAB Hospital, and the complaint, the parties submissions to the trial court, and the briefs submitted to the Supreme Court do not state what type of entity UAB Health System is or the purpose it serves. Accordingly, the Court concluded that because the Health Services Foundation and the UAB Health System are entities separate and distinct from UAB Hospital and have not been shown to qualify for sovereign immunity, they are not protected by that doctrine.

Aldridge v. Olive, No. 1020443 (Ala. Sept. 19, 2003)
Summary: breach of contract; incidental damages; specific performance; real estate; Sometime in December 1999, Randall E. Aldridge entered into an oral agreement with Richard E. Olive; pursuant to that agreement Olive was to sell Aldridge a mobile home and 4.86 acres of real property on which the mobile home was located. The purchase price of the mobile home and the real property was $110,000. Under the terms of the oral agreement, Olive was to receive $18,762.13 as a down payment, and Aldridge was to assume a promissory note Olive had executed to First Southern Bank, which was secured by a mortgage on the 4.86 acres, and, in addition, to assume a second promissory note Olive had executed to AmSouth Bank, secured by a security interest in the mobile home. Aldridge sued Olive on February 14, 2001, seeking specific performance of the oral agreement, and in his complaint he sought incidental damages, including lost profits, he claimed he suffered as a direct result of Olive's failure to perform. Aldridge claimed that he was purchasing the 4.86 acres to establish a retail sales lot in a joint venture with SouthTrust Bank in order to sell mobile homes that SouthTrust Bank had repossessed. One of Aldridge's main arguments in the trial court and on appeal is that he is entitled to recover incidental damages for the harm he allegedly suffered because Olive refused to timely schedule a closing date. After a trial, the trial court rendered a judgment in favor of Aldridge and the other plaintiffs on March 21, 2002, in which it granted specific performance of the oral agreement and also at that time awarded incidental damages of $80,000. But on April 29, 2002, Olive filed a motion for relief from judgment and asked the trial court for additional time to submit additional argument, which the trial court granted. On July 29, 2002, after Olive had submitted his additional argument, the trial court entered an amended judgment, again granting specific performance; in this order, however, it denied the plaintiffs any incidental damages. HOLDING: The Supreme Court affirmed. The Court held that a trial court, so long as it does not exceed its discretion, has the power to determine whether to award incidental damages when it orders specific performance of a real-estate sales contract.

Birmingham Bd. of Educ. v. Boyd, No. 1020990 (Ala. Sept. 19, 2003)
Summary: justiciable controversy; Fair Dismissal Act; due process; Dorothy Boyd is a school-bus driver for the Birmingham Board of Education ("the Board"). On August 13, 2002, the Board proposed to terminate Boyd's employment because she was no longer insurable on account of extensive traffic violations and minor accidents. On October 8, 2002, Boyd filed a complaint in the Jefferson Circuit Court seeking a declaratory judgment, damages for breach of contract, and injunctive relief. Specifically, Boyd alleged that the Board failed to give her proper notice of her rights regarding the proposed termination. Boyd also alleged that the Board's termination policy violated Ala. Code §§36-26-103 and -104, a part of the Fair Dismissal Act; the Alabama Constitution of 1901; and the due-process requirements discussed in Allen v. Bessemer State Technical College, 703 So.2d 383 (Ala. 1997). The Board filed a motion to dismiss Boyd's complaint. In the motion, the Board asserted that Boyd had failed to exhaust all of her administrative remedies under the Fair Dismissal Act. Further, the Board stated that its termination policy (policy no. 3121) conformed with the due-process requirements of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), and that the due-process requirements articulated in Allen were inapplicable in this case. On October 29, 2002, the date set for the Board's administrative hearing, the trial court granted a preliminary injunction mandating that the Board conduct Boyd's termination hearing in compliance with several specific procedural requirements. The Board canceled the hearing and subsequently filed a motion for a summary judgment and a motion to dissolve the preliminary injunction, or, alternatively, to clarify the injunction. In its summary-judgment motion, the Board reasserted its claims that its procedures in terminating Boyd were adequate and lawful. Further, the Board stated that it could have proceeded with Boyd's termination hearing without violating the injunction, but that it refrained from doing so to obtain clarification about the requirements of the injunction. The trial court denied the Board's motions, stating that the Board's termination policy was ambiguous and inadequate according to the requirements set out in Allen. Four months after it denied the Board's summary-judgment motion, the trial court entered an order making the preliminary injunction permanent. Throughout this litigation, Boyd has been suspended with pay; her termination was never effectuated. HOLDING: The Supreme Court dismissed the appeal because the case does not present a justiciable controversy.

Serra Toyota, Inc. v. Johnson, No. 1021051 (Ala. Sept. 19, 2003)
Summary: arbitration; interstate commerce; unconscionability; Rebecca Johnson purchased a used 1999 Toyota Avalon automobile and a used 1992 Toyota Camry automobile from Serra Toyota. Johnson executed a contract entitled a "Retail Buyers Order" in connection with the purchase of each vehicle. Those contracts contained identical arbitration agreements. She later sued Serra Toyota and the salesman employed by Serra Toyota. Serra Toyota, later joined by its salesman, moved to compel arbitration, supporting its motion with an affidavit from its finance manager that discussed the various connections to interstate commerce of the transaction with Johnson. In response to the motion to compel arbitration, Johnson filed only a brief; she did not submit any evidence. She stated in her brief that she and both defendants were all Alabama residents. She argued that she should not be compelled to arbitrate her claims against Serra Toyota and the salesman because, she argued, her transactions did not have a substantial effect on interstate commerce. She also argued that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("the FAA"), "does not preempt state contract defenses" and that the arbitration provision in the contracts she signed was unconscionable because, she says, she did not have a meaningful choice, the arbitration agreements did not meet the basic elements of a contract, the American Arbitration Association is biased in favor of institutions that form its client base, and the arbitration clause is "buried" in the documents she signed. The trial court concluded that the vehicles were sold to Johnson in "a strictly intrastate transaction" and that "[f]or an intrastate transaction to 'involve' interstate commerce within the meaning of the FAA, the defendants must have introduced evidence proving that the plaintiff's purchase of the vehicle involved a transaction that substantially affected interstate commerce." Based on that conclusion, the trial court denied the motion to compel arbitration. HOLDING: The Supreme Court reversed. The Court held that under Citizens Bank v. Alafabco, Inc., 123 S.Ct. 2037, 2040 (2003), the transaction sufficiently involved interstate commerce. The Court further held that because Johnson did not submit evidence in support of her argument that the arbitration agreements are unconscionable, she did not preserve that argument for appellate review.

Chunn v. Whisenant, No. 1021180 (Ala. Sept. 19, 2003)
Summary: equitable lien on improvements made to real estate by lessee; In 1991, Kathryn Whisenant owned a building in Huntsville, in which an adult lounge had operated for several years. By an instrument dated August 1, 1991, Whisenant agreed to lease the property to Betty Chunn for six months. Chunn began operating an "adult cabaret" on the premises, known as "Chick's Lounge." By its terms, the lease expired on January 31, 1992; it was never renewed in writing. However, Chunn continued to operate the lounge under an oral arrangement ("the arrangement") until 1997. On April 13, 1997, the property was damaged by a fire. Because the property was uninsured and unusable in its damaged state, Chunn and Whisenant discussed the future of the arrangement. When Whisenant indicated that she did not intend to repair the building, they discussed whether Chunn could pay for the repairs. Whisenant also said that if she ever sold the property, she would give Chunn the "first opportunity to buy it." Chunn paid $42,514 for repairs to the building. In June 1997, the lounge reopened and continued in operation for the next four years. By an instrument dated August 24, 2001, Whisenant agreed to sell the property to Ernestine Morrow and her husband, Don Morrow, for $119,270. It is undisputed that Whisenant never offered to sell the property to Chunn for that price. According to the unrefuted testimony, at or about the time of the offer to the Morrows, Whisenant offered to sell the property to Chunn for $179,000. Chunn declined the offer and did not discover the substance of the offer to the Morrows until after the sale. Subsequently, in October 2001, discussions occurred between the Morrows and Chunn regarding the future of Chick's Lounge. At that time, according to Don Morrow's deposition, he proposed to Chunn that she sell him "her equipment," including poker machines, a cooler, tables and chairs, and liquor. He presented Chunn with an instrument, styled "Agreement for Purchase and Sale of Assets" ("the Agreement"), pursuant to which he agreed to buy the equipment for $19,000. Morrow told her that if she did not sign the Agreement, she would have to remove her equipment from the premises. During the discussion, Chunn asked Morrow about the $42,514 she had invested in the premises. Morrow told her that he "didn't know anything about that, [and that] she would have to take that up with [Whisenant]." Chunn did ask Whisenant to reimburse her for the improvements, and Whisenant refused to pay her anything, stating: "I didn't tell you to put it in there, you done it on your own." Chunn and Don Morrow signed the Agreement on October 15, 2001. On February 7, 2002, Chunn sued Whisenant and Don Morrow. The complaint, as last amended, named as defendants Whisenant; Don Morrow and Ernestine Morrow; and River Valley Properties, Inc., which, it was alleged, was owned by the Morrows and had some interest in the property. The complaint contained claims against Whisenant alleging (1) fraud, (2) misrepresentation, (3) breach of contract, (4) a quasi-contract theory of recovery, (5) "interference with contractual or business relations," and (6) promissory estoppel. It contained claims against Ernestine Morrow alleging breach of contract, and against Don Morrow and Ernestine Morrow alleging (1) breach of fiduciary duty and (2) "interference with contractual or business relations." It sought various species of equitable relief, including (1) an "equitable lien against the premises," (2) damages in quantum meruit, and (3) annulment of the sale of the premises to the Morrows. On August 29, 2002, Chunn moved for a summary judgment on her breach-of-contract and promissory-estoppel claims against Whisenant. On November 18, 2002, Don Morrow and Ernestine Morrow moved for a summary judgment as to Chunn's claims against them and River Valley Properties. On February 25, 2003, Whisenant moved for a summary judgment. Whisenant's motion challenged specifically only the breach-of-contract claim, asserting that the claim was barred by the Statute of Frauds, Ala. Code §8-9-2. On February 28, 2003, the trial court -- citing only the Agreement -- granted the motions of the Morrows and Whisenant and denied the motion of Chunn. HOLDING: The Supreme Court stated that it cannot reach the conclusion that Morrow purchased the right to assert an equitable lien against property owned by him because the purchase of such a right would have been in essence a "release," and the Agreement does not purport to be a "release." The Court noted that Whisenant's promise to give Chunn the "first opportunity to buy" the property was not a "lease" in any sense, but a "right of first refusal" in the form of a side agreement. It was supported by consideration independent of the lease, namely, Chunn's promise to repair the real estate. Thus, the Court held that the Agreement has no effect on claims arising out of the alleged breach of the right of first refusal and that the trial court erred in relying on the Agreement as a basis for its summary judgment. The Court reversed the summary judgment in favor of Whisenant, and remanded the case for further proceedings. The Court noted, however, that Chunn made no argument and cited no authority in support of any of her claims against the Morrows or River Valley Properties. Thus, the Court deemed as abandoned any challenge to the summary judgment in favor of the Morrows and River Valley Properties. The summary judgment in favor of Don Morrow, Ernestine Morrow, and River Valley Properties was, therefore, affirmed.

Hyche Landfill, LLC v. Winston County, No. 1021192 (Ala. Sept. 19, 2003)
Summary: denial of application to expand landfill service area; On June 4, 1999, Hyche Landfill, LLC ("Hyche") filed with the Commission, pursuant to Ala. Code §22-27-48, a request for "local approval" to expand its landfill service area ("the application"). At that time, Hyche was operating a facility in Winston County known as the Hyche Construction and Demolition Landfill ("the landfill"), pursuant to local approval and a permit issued in 1997 by the Alabama Department of Environmental Management ("ADEM"). The 1997 permit allowed Hyche to process at the landfill construction and demolition waste originating in Franklin, Marion, and Winston Counties. The application sought local approval of a proposed expansion of Hyche's service area to include "all counties that are touched by a 40-mile radius from the [landfill]." The proposed expansion encompassed the counties of Blount, Colbert, Cullman, Fayette, Franklin, Jefferson, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, Walker, and Winston. The Commission conducted a duly noticed public hearing on the proposed expansion on July 27, 1999. On August 9, 1999, the Commission considered the application at a regularly scheduled meeting. Members of the public opposed to the application attended both the hearing and the meeting. At the close of the regular meeting, the Commission rejected the application. Two of the three commissioners, Hayes and Humphries, had voted against the application; Hood had abstained. The commissioners stated no reasons for denying the application. On November 9, 1999, Hyche sued Winston County, the Winston County Commission, and the three individual members of the Commission, namely, Roger Hayes, its chairman, and Commissioners Jeff Hood and Quinton Humphries, in their representative capacities (Winston County, the Commission, and its members are hereinafter referred to collectively as "the County"). The complaint alleged, among other things, that in denying the application, the County failed to comply with Ala. Code §22-27-48(a). Hyche sought an injunction against "further violations" of that Code section, and an order compelling the County to "approve the requested expansion to the [l]andfill's service area." The parties agreed to submit the case for final resolution on "stipulations and [documentary] evidence in lieu of [a] trial." On March 14, 2003, the trial court entered a final judgment affirming the denial of the application. In its judgment, the trial court stated: "To strictly conform with [§22-27-48(a)], the Winston County Commission shall within ten (10) days supplement its minutes of August 9, 1999, to set forth the reason(s) for the denial of the [application]." HOLDING: The Supreme Court affirmed. The Court held that the Commission, which denied the application on August 9, 1999, did not "fail to act," within the meaning of §22-27-48(a).

September 26

Decisions Announced by the Supreme Court of Alabama on Friday, September 26, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decisions.

Bradley v. Miller, No. 1012133 (Ala. Sept. 26, 2003)
Summary: medical malpractice; expert testimony; proximate cause; summary judgment; While pregnant, Chrissy Tagert Bradley ("Chrissy") suffered preeclampsia, a pregnancy disorder, which killed the fetus on May 23, 1999. To recover for the death of the fetus, Chrissy and her husband, Michael Bradley, sued Rebecca Miller, M.D. ("Dr. Miller"), Chrissy's obstetrician. The plaintiffs contended that Dr. Miller, a third-year-resident physician in obstetrics and gynecology ("OB/GYN") at the University of South Alabama ("USA"), breached the standard of care by: (1) failing to classify Chrissy's pregnancy as a high-risk pregnancy; (2) failing to ensure that the administrative staff of the USA Center Street OB/GYN Clinic, where Dr. Miller treated Chrissy, did not cancel Chrissy's May 6, 1999, appointment with Dr. Miller; (3) failing to "seek out" the results of an ultrasound performed on April 28, 1999, showing that the fetus was experiencing growth retardation; and (4) failing to diagnose that the onset of Chrissy's preeclampsia was impending. In moving for summary judgment, Dr. Miller contended that the plaintiffs could not produce the expert medical testimony regarding proximate cause required of plaintiffs to withstand summary judgment in a medical malpractice case because the evidentiary foundation for such expert medical testimony did not exist. Dr. Miller contended that the evidentiary foundation did not exist because: (1) the evidence established only that Chrissy did not suffer from preeclampsia when Dr. Miller saw her for the last time on April 15, 1999 and that Chrissy was suffering from preeclampsia when she was next seen by a physician on May 23, the day the child died, and (2) no evidence established when the onset of Chrissy's preeclampsia began or whether the onset was gradual or sudden. Dr. Miller contended that this state of the evidence foreclosed any expert medical opinion except mere speculation that the fetus probably would have been saved in the absence of the alleged breaches of the standard of care by Dr. Miller. The trial court granted summary judgment in favor of Dr. Miller. HOLDING: The Supreme Court affirmed. The Court held that the opinion of the plaintiffs' medical expert regarding proximate cause lacked an evidentiary foundation and, therefore, failed to meet the plaintiffs' burden of production.

Brown v. City of Huntsville, No. 1012183 (Ala. Sept. 26, 2003)
Summary: provision of water service; The plaintiff, Rex B. Brown, appealed a judgment declaring that the defendants City of Huntsville and Huntsville Utilities (collectively "the Utility") owed no obligation to provide water service to Brown's property outside the Huntsville city limits unless the property was annexed into the city. Brown proposed to develop a subdivision outside the Huntsville city limits. After the Utility denied Brown's request to provide water service to the subdivision unless the property was annexed into the city, Brown sued the Utility for a declaration that the Utility owed an unconditional obligation to provide water service to the proposed subdivision. Following a bench trial, the trial court ruled in favor of the Utility. HOLDING: The Supreme Court affirmed, holding that trial court did not err in holding that the Utility did not discriminate against Brown or act unreasonably in conditioning provision of water service to Brown's property on annexation of Brown's property into the city.

Ex parte State of Alabama (In re: Marshall v. State), No. 1012217 (Ala. Sept. 26, 2003)
Summary: criminal; postjudgment relief; Gary Lewis Marshall was convicted of murder and sentenced to life in prison. Marshall filed his first Rule 32 petition in the Hale Circuit Court on April 21, 1998. The circuit court dismissed Marshall's petition. Marshall claims that he never received notice of the circuit court's dismissal of this petition and that he discovered that his Rule 32 petition had been denied after the time for taking an appeal had passed. Marshall appealed the dismissal of his Rule 32 petition, arguing that his failure to appeal was through no fault of his own; the Court of Criminal Appeals dismissed his appeal as untimely, without an opinion. On June 6, 2001, Marshall filed his second Rule 32 petition. The circuit court dismissed the petition (1) because the petition was not filed within the two-year limitations period established in Rule 32.2(c), Ala.R.Crim.P., as that rule then provided; and (2) because it was a successive petition, presenting grounds previously presented in Marshall's first Rule 32 petition. Marshall appealed the dismissal of his second Rule 32 petition to the Court of Criminal Appeals. On appeal, he argued that, through no fault of his own, he had never received notice of the dismissal of his first Rule 32 petition and learned of that dismissal only through a family member sometime in November 2000, well beyond the time for taking an appeal. He alleged that the circuit court did not send him a copy of the order dismissing the petition and that his counsel rendered ineffective assistance by failing to inform him that his first Rule 32 petition had been dismissed. The Court of Criminal Appeals concluded "that Marshall was not informed of the dismissal of his first Rule 32 petition," a contention it says "neither the State nor the circuit court disputed," and held that Marshall was entitled to an out-of-time appeal, as requested in his second Rule 32 petition. The Supreme Court granted the petition for writ of certiorari filed by the State to consider the State's argument that the Court of Criminal Appeals' decision conflicts with Ex parte Weeks, 611 So. 2d 259 (Ala. 1992), and Ex parte Johnson, 806 So. 2d 1195 (Ala. 2001), and to clarify the holding in Ex parte Fountain, 842 So. 2d 726 (Ala. 2001). HOLDING: The Supreme Court reversed the Court of Criminal Appeals. The Court explained that if it were to hold that Marshall may properly request an out-of-time appeal in a Rule 32 petition, it would be, first, amending Rule 32 to provide a ground for relief that the rule does not currently provide and, second, acting contrary to its holdings in Ex parte Weeks, 611 So. 2d 259 (Ala. 1992), and Ex parte Johnson, 806 So. 2d 1195 (Ala. 2001), that mandamus is the only remedy in such a case. In other words, recognizing that a successive Rule 32 petition may be the vehicle for requesting an out-of-time appeal from the denial of a previous Rule 32 petition would create "another adequate legal remedy," ostensibly one "in addition" to a writ of mandamus.

University Federal Credit Union v. Grayson, No. 1020042 (Ala. Sept. 26, 2003)
Summary: class action; class certification; Madalene Grayson is an employee of the University of Alabama at Birmingham, where she works as an administrative associate in the biology department. Grayson is also a member of the University Federal Credit Union ("UFCU") and has maintained various accounts with UFCU since 1985. Among other things, UFCU offers its members loans for the purchase of automobiles. Since 1984, UFCU has required, in connection with "direct" automobile loans, a one-time charge of $2.50. This charge was used to cover internal administrative expenses incurred in maintaining the borrower's file and in ensuring the vehicle's title was correct. Before 1993, this charge was disclosed on the promissory notes evidencing the loans as a "prepaid finance charge." Subsequently, UFCU changed the form of the promissory note and denoted the $2.50 charge as a "filing fee." The promissory note did not explain the nature of this charge. Grayson obtained automobile loans from UFCU in 1990, 1992, 1993, and 1998. With each loan, Grayson paid the $2.50 charge. On March 30, 2001, Grayson sued UFCU seeking certification of her action as a class action under Rule 23, Ala.R.Civ.P., and asserting numerous claims: breach of contract, breach of fiduciary duty, fraud, malicious conversion, deceit, deceptive trade practices, and negligence/negligent supervision. Specifically, the complaint alleged that UFCU wrongfully charged Grayson and other members of the credit union the $2.50 fee because, the complaint alleged, the fee was not used to file anything. Additionally, Grayson alleged that UFCU's method of deducting automobile loan payments from members' accounts was improper. Grayson thus sought certification of two different classes: one made up of UFCU members who had paid the $2.50 charge, and the other made up of customers enrolled in the biweekly payroll-deduction plan. On August 27, 2002, the trial court issued its class-certification order. Although the trial court denied certification for Grayson's payroll-deduction class, it did certify the following Rule 23(b)(3) class: "Those members [of UFCU] who have made automobile loans with the defendant and who were charged, in connection with those loans, a $2.50 filing fee." UFCU appealed. HOLDING: The Supreme Court reversed. The Court held that, because Grayson failed to produce evidence indicating that the common issues predominate over the individual issues with regard to the element of reliance, the trial court exceeded its discretion in certifying the fraud claim for class-action treatment. The Court held that, because Grayson presented no evidence indicating that UFCU had a duty to disclose and failed to prove that the putative class members were induced by UFCU to act, the trial court exceeded its discretion in certifying the fraudulent suppression claim for class-action treatment. With regard to the breach-of-fiduciary duty claim, the Court found that Grayson presented no evidence to indicate that UFCU owed the putative class members a fiduciary duty, that individualized determinations would be required as to each class member as to the nature of each member's relationship with UFCU, and that such individualized questions outweigh and predominate over common questions, thus making the breach-of-fiduciary-duty claim improper for class certification under Rule 23(b)(3). With regard to certification of Grayson's negligent-supervision claim, the Court held that because the alleged wrongs underlying Grayson's negligent-supervision claim (i.e., fraud, suppression, breach of fiduciary duty) would require individualized determinations, the negligent-supervision claim likewise is unsuited for class-action certification. With regard to Grayson's breach-of-contract claim, the Court held that the trial court exceeded its discretion by certifying a Rule 23(b)(3) class action without first determining the "threshold issue" whether the promissory note, and in particular the term "filing fee," is ambiguous. The Court directed that on remand the trial court should determine what effect the ambiguity has on whether class certification is appropriate. With regard to Grayson's malicious-conversion claim, the Court held that, because Grayson did not claim that UFCU's charging the $2.50 "filing fee" amounted to a conversion, the trial court exceeded its discretion in certifying that claim for class-action treatment.

Akins Funeral Home, Inc. v. Miller, Nos. 1020198 & 1020224 (Ala. Sept. 26, 2003)
Summary: expert testimony; excessive damages; body switch/misidentification with cremation of wrong body; Nineteen-year-old Matthew Miller ("Matt") and two others were killed in an automobile accident that occurred on February 20, 2000. All three bodies were transported to the Kilgore-Green Funeral Home in Jasper. The Miller family decided to use Akins Funeral Home, Inc. ("Akins"), to handle Matt's funeral, and at the request of the family, Doil Akins traveled to Jasper and retrieved what had been identified as Matt's body; the body, however, was the body of Johnny Russell, who was also killed in the accident. The Russell family arranged with Kilgore-Green to cremate Russell's body, although it was in fact Matt's body that was cremated. That night, Akins embalmed the body of Johnny Russell. On February 21, 2000, Megan, Teresa, and other members of the Miller family went to Akins Funeral Home to make the arrangements for Matt's funeral. At the funeral home they met with Raymond Vernon, the funeral director, and Teresa signed a contract. The evidence presented at trial by the plaintiffs, including the testimony of Teresa; Randy Calhoun, Matt's uncle; Tommy Miller; and Colburn, indicated that before the family left the funeral home, Teresa asked to view her son's body; Vernon told her that, until one-half of the funeral expenses were paid, she could not see the body and the body would not be delivered to the church for the funeral. Evidence presented by the Millers indicated that Akins ultimately agreed to deliver the body to the church for the funeral where checks would be collected from various relatives to pay one-half of the funeral expenses. Vernon disputed the evidence presented by the Millers regarding what took place at the funeral home. He testified that no member of the immediate family asked to view the body, that he did not deny family members the privilege of viewing the body, and that he would have delivered the body to the church for the funeral regardless of whether the funeral expenses had been paid. The funeral was scheduled to take place the evening of February 21, 2000, at the Thorptown Holiness Church, and Vernon transported the body to the church. With approximately 400 mourners present, the casket was opened, and Teresa viewed the body for the first time. It was at that time that all present realized that a mistake had been made and that the body in the casket was not Matt's body. Vernon returned to Akins Funeral Home with the body, and telephoned Kilgore-Green Funeral Home. During that telephone conversation Vernon learned that Matt's body had been cremated that afternoon. Teresa and Megan each sued Akins, alleging negligence and wantonness, the tort of outrage, breach of contract, trespass, and abuse of a corpse. In support of their claims, the Millers presented testimony regarding the traumatic effect the unintentional cremation of Matt's body had upon them. Evidence was also presented to show the religious and moral objections to cremation Matt and his family shared. At the conclusion of the trial, Megan's case was submitted to the jury on the counts alleging negligence, wantonness, and the tort of outrage. Teresa's case was submitted to the jury on the counts alleging breach of contract, negligence and wantonness, and the tort of outrage. The jury returned a verdict against Akins and in favor of both plaintiffs. The jury assessed compensatory damages at $450,000 and punitive damages at $150,000, for a total of $600,000 in Megan's case; in Teresa's case, the jury assessed compensatory damages of $200,000 and punitive damages of $150,000, for a total of $350,000. In each case, Akins filed a motion for a new trial and a motion to remit the punitive damages; those motions were denied. HOLDING: The Supreme Court affirmed. The Court held that the trial court did not err in admitting the expert testimony of the plaintiff's expert who was a grief counselor. The Court held that the trial court did not err in refusing to order a remittitur of compensatory damages. The Court further held that the trial court did not err in refusing to remit the punitive-damages awards. It should be noted that it appears Akins did not challenge on appeal the sufficiency of the evidence supporting any of the causes of action or claims on which the verdict's correctness could be questioned.

Hart v. Pugh, No. 1020300 (Ala. Sept. 26, 2003)
Summary: fraudulent transfer of property; conspiracy to defraud; On December 19, 1992, several years before Donald A. Hart and Kay Allen Hart married, Donald and Donald's mother, Johnnie Ruth Brown, acquired lots 101 and 102 in Bear Point Estates in Orange Beach, Alabama (hereinafter referred to as "the Bear Point property"), as joint tenants with a right of survivorship. On October 20, 1997, Donald and Kay were divorced by a judgment entered by the Mobile Circuit Court. Under the terms of the divorce judgment, Donald was obligated to make various monthly payments to Kay; among those were child support and mortgage payments on the marital residence. Donald was also required to execute "limited warranty deeds" to Kay conveying to her a one-half interest in real property located at 16501 Highway 9, Marlow, Alabama (hereinafter referred to as "the Fish River property"), as well as a one-half interest in real property located in Coden, Alabama, both of which were to be owned by Donald and Kay after the divorce as a joint tenancies with a right of survivorship. Donald was responsible for any indebtedness on those properties and for paying all taxes and insurance associated with them. Donald was to "retain, free and clear of any further claim or interest of [Kay] or her estate, all bank accounts, money market accounts, investment accounts, retirement accounts and real estate owned and maintained by [Donald] individually or jointly with his mother, except as otherwise provided herein." The divorce judgment further stated: "All property received or retained by either party in this Agreement whether or not such property is specifically mentioned herein, shall be and remain the separate property of the party receiving or retaining that property and that property shall be free from any claim by the other or his estate." About three months after the divorce, on or about January 27, 1998, Donald sold the Fish River property in its entirety without Kay's knowledge or consent, in violation of the divorce judgment. Also in violation of the divorce judgment, Donald failed to pay child support and to make mortgage payments on the martial home. On February 11, 1998, Donald executed a power of attorney in favor of Brown, which granted her the authority to, among other things, sell property owned by Donald. Two days later, on February 13, 1998, Kay filed a motion seeking to hold Donald in contempt for failing to pay child support, failing to make the mortgage payments, and selling the Fish River property. On that same day, Brown, acting on her own behalf and on behalf of Donald pursuant to the authority granted to her by the power of attorney, deeded the Bear Point property to Verlon J. Pugh, reserving to herself a life estate in the property. The consideration stated in the deed was $10 and other good and valuable consideration. The total of the respective appraised values of the two lots constituting the Bear Point property, as shown by an appraisal by the Baldwin County revenue commissioner, was $80,400. The deed conveying the Bear Point property to Pugh listed both Donald and Brown as the grantors. Brown signed the deed both on her own behalf and as Donald's attorney in fact. Brown later claimed that she conveyed the Bear Point property to Pugh in exchange for 10 acres of land in Robertsdale, Alabama, and $6,000. It was not until April 14, 1998, that Pugh executed a deed for the 10 acres in Robertsdale, naming Brown as the only grantee. The appraised value of that property as of a May 22, 2000, appraisal report, was $28,000. Also, it was not until May 5, 1998, that Pugh issued a check for $6,000, payable to Brown. That check was never negotiated. On May 18, 1998, Kay obtained a judgment in the amount of $15,111 in her contempt action against Donald, representing the child-support arrearage, past due mortgage payments, her one-half interest in the sale of the Fish River property, costs, and attorney fees. Subsequently, Kay sued Donald, Brown, and Pugh, asserting claims of fraudulent transfer of property and conspiracy to defraud. The trial court granted summary judgments in favor of Pugh and Brown. Kay appealed only the judgment in favor of Pugh. HOLDING: The Supreme Court affirmed. The Court noted that Kay has not presented any evidence to show that Donald participated in Brown's decision to transfer the Bear Point property to Pugh. Accordingly, the Court stated that it could not conclude that this case is distinguishable from Folmar & Associates, LLP v. Holberg, 776 So.2d 112 (Ala. 2000), because the evidence indicated that Donald directed his attorney in fact, Brown, to transfer the property.

Ex parte USX Corp., No. 1020684 (Ala. Sept. 26, 2003)
Summary: workers' compensation; carpal tunnel syndrome; evidentiary standard; The Supreme Court granted certiorari review in this case to determine whether the burden of proof for all carpal-tunnel-syndrome claims is clear and convincing evidence. The Court held that clear and convincing evidence is not the required burden of proof in all carpal-tunnel-syndrome claims. The Court held that the clear-and-convincing-evidence burden of proof shall apply to injuries resulting from gradual deterioration or cumulative physical stress disorders and that the burden of proof that should apply depends upon whether the injury was caused by a traumatic accident or by a gradual deterioration or cumulative stress. The Court held that if the trial court determines that the injury is not caused by gradual deterioration or cumulative stress but rather by a one-time acute trauma, or accident, the proper burden of proof is the preponderance of the evidence. The Court recognized that the majority of carpal tunnel injuries are caused by gradual deterioration or repetitive motion and, thus, that the clear-and-convincing-evidence burden of proof will apply. However, the Court stated that it cannot ignore the medical possibility, as evidenced by the testimony in this case, that in some cases it is medically possible for carpal tunnel syndrome to result from a one-time acute trauma.

City of Foley Bd. of Adjustments v. H & S S. Graphics Sys., Inc., No. 1020730 (Ala. Sept. 26, 2003)
Summary: zoning; billboards; H & S Southern Graphics Systems, Inc. ("Southern Graphics"), a company that owns advertising billboard structures, appealed from a decision of the City of Foley Board of Adjustments and Appeals ("the Board") holding that changes Southern Graphics had made in two of its billboards located along the Foley Beach Express, a toll road in Baldwin County, violated an ordinance of the City of Foley. The case was tried before a jury, and at the close of Southern Graphics' case-in-chief, the Board moved for a judgment as a matter of law; it renewed the motion at the close of all the evidence. The trial court denied both motions. The jury returned a verdict for Southern Graphics, and the trial court entered a judgment on that verdict. HOLDING: The Supreme Court reversed. The Court held that it is clear that the changes Southern Graphics made to the billboard structures violate the restriction in the ordinance that a sign could not be "[a]ltered, changed or moved in any manner that increases its size, shape, location, angle, or height," because the the signs were altered or changed to increase their size.

Newman v. Savas, No. 1021189 (Ala. Sept. 26, 2003)
Summary: probate; will contest; subject-matter jurisdiction; In October 1990, attorney Chris Peters prepared a will for Joseph E. Kennedy and witnessed Kennedy's execution of the will. Subsequently, the original will was lost or misplaced, and upon Kennedy's death on April 16, 2001, the original will remained lost. In July 2001, Anna Belle Newman, the general administrator for Mobile County, filed a petition in the Probate Court for Mobile County to probate a copy of Kennedy's lost will. In November 2001, Helen Kennedy Savas, Kennedy's daughter and his only natural heir, filed a will contest, alleging that the will presented for probate was invalid and that it did not reflect the true intentions of Kennedy. On December 21, 2001, the probate judge admitted the lost will to probate. On January 23, 2002, Savas filed a motion for a new trial, or, in the alternative, for a judgment as a matter of law in the probate court. Subsequently, the probate court granted Savas's motion for a new trial, and, upon notice that the probate court had granted the motion, Savas filed, on February 14, 2002, an amended complaint contesting the will and a motion to transfer the will contest to the Mobile Circuit Court. In response, Newman filed an objection to the motion to transfer, alleging that removal to the circuit court was untimely because it was made posttrial. On April 19, 2002, the probate court issued an order denying Newman's motion to alter, amend, or vacate the order of the probate court granting the new trial. The April 19 order also granted Savas's motion to transfer the will contest to the circuit court. In the circuit court, Newman filed a motion to dismiss for lack of subject-matter jurisdiction and asked that the contest be remanded to the probate court. Savas then filed a response to the motion to dismiss; the trial court summarily denied the motion; and the parties then each filed a motion for a summary judgment. After a hearing on the competing summary-judgment motions, the circuit court, in March 2003, entered an order granting Savas's summary-judgment motion and denying Newman's summary-judgment motion. Newman appealed. HOLDING: The Supreme Court reversed. The Court concluded that the circuit court did not have subject-matter jurisdiction. The Court concluded that Savas was required to demand the transfer of the will contest when she filed her initial pleading. The Court stated that because Savas did not file a petition for removal with the initial notice of the will contest, she did not follow the procedural requirements of § 43-8-198 "exactly," and because the procedure was not explicitly followed, a petition for removal filed later in the action would have been untimely. Thus, because Savas did not follow the statutory requirements for removing a will contest to the circuit court, the circuit court did not have jurisdiction over the will contest.

Ex parte Buford, No. 1021372 (Ala. Sept. 26, 2003)
Summary: The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition for the writ of certiorari, it did not wish to be understood as approving all the language, reasoning, or statements of law in the Court of Civil Appeals' opinion.

Slip Opinions Main Menu | Return to Supreme Court Main Menu