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.

November 7

Decisions Announced by the Supreme Court of Alabama on Friday, November 7, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decision.

Harrelson v. R.J., No. 1012233 (Ala. Nov. 7, 2003)
Summary: assault and battery; the tort of outrage; punitive damages; R.J. allowed her 15-year-old daughter, J.B., to spend the night with J.B.'s 15-year-old friend, M.B., after the two had returned from a weekend ROTC meet. At that time, M.B. lived with her mother and with her stepfather, Anthony Harrelson. Later that night, M.B.'s mother and Anthony went to a nightclub to celebrate Anthony's birthday, leaving M.B. and J.B. alone in the house. The girls spent the evening watching television, talking on the telephone, and using the computer. Eventually, they went to sleep in M.B.'s bed, which was positioned under the window in her bedroom. M.B. testified that she always locked her bedroom door before going to sleep at night, and that when she and J.B. went to sleep, her bedroom door was locked. In the early morning hours of March 15, 1999, M.B. and J.B. were awakened when Anthony tapped on M.B.'s bedroom window. Anthony told M.B. that he and her mother were locked out of the house. Apparently, M.B.'s mother was very intoxicated and had become ill in the car on the way home. M.B. got up and unlocked one of the doors for Anthony and her mother. M.B. went back to her bedroom, locked the door, and she and J.B. fell asleep. A short time later, the girls were awakened again when Anthony tapped on the window. M.B. opened the window, and Anthony began talking with them. Anthony gave them a wine cooler through the window and M.B. and J.B. drank it. J.B. testified that while Anthony was talking to her through the window, she could tell that he had been drinking because she could smell alcohol and because he was talking and acting differently than he normally did. She said that Anthony told her that she was "hot," and she believed that he was flirting with her. M.B. testified that she did not know what to think about Anthony's demeanor toward J.B., but that the conversation made her uncomfortable. During the course of the conversation with Anthony, M.B. and J.B. each left the bedroom to go to the bathroom. J.B. was the last one to come back into the bedroom, and she did not lock the door. After the girls finished the wine cooler, they passed the empty bottle back through the window to Anthony, who threw it into a nearby field. Anthony left to feed his pet wolves, and the girls closed the window and went back to sleep. J.B. testified that she was awakened a short while later by Anthony, who was standing over her and touching her. After Anthony left, J.B. and M.B. both got out of bed. When J.B. told M.B. what Anthony had done, both girls started crying. They did not sleep for the rest of the night. The next day at school, J.B. told one of her teachers what had happened. The teacher insisted that J.B. inform the principal and assistant principal; she did so and the principal and assistant principal then contacted the Department of Human Resources ("DHR"). The State brought criminal charges against Anthony Harrelson. He was tried and convicted of sexual abuse in the second degree, a Class A misdemeanor. R.J., individually and as mother and next friend of J.B., sued the Harrelsons. In her complaint, R.J. alleged assault and battery and the intentional infliction of emotional distress, i.e., the tort of outrage, against Anthony, negligence against M.B.'s mother, and loss of services of a child against Anthony and M.B.'s mother. The case was tried before a jury. At the close of the evidence, the trial court entered a judgment as a matter of law in favor of both defendants as to R.J.'s claim for loss of services of a child and in favor of M.B.'s mother as to R.J.'s negligence claim. M.B.'s mother was then dismissed from the action. The assault-and-battery and tort-of-outrage claims were then submitted to the jury. The jury returned a verdict in favor of R.J. on both counts. The jury awarded R.J. $5,000 compensatory damages and $25,000 punitive damages on the assault-and-battery claim. The jury awarded R.J. $10,000 compensatory damages and $50,000 punitive damages on the tort-of-outrage claim. HOLDING: The Supreme Court affirmed. The Court held that, despite Anthony's contentions, R.J. presented substantial evidence from which a jury could find that J.B. suffered severe emotional distress as a result of Anthony's conduct. The Court held that the punitive damages award was justified because Anthony's conduct was extremely reprehensible, the punitive damages in this case were five times the relatively low compensatory-damages award, Anthony's behavior is punishable by criminal statutes in the State of Alabama, and the record does not support Anthony's allegations that the punitive-damages awards against him "will result in complete financial devastation for which there can be no relief."

Cashion v. Torbert, No. 1020886 (Ala. Nov. 7, 2003)
Summary: estate administration; insolvent estate; attorney fees; The appeal of a related case involving the same parties was decided in Cashion v. Torbert, No. 1020449 (Ala. Aug. 29, 2003). This appeal arises out of the same "fairly convoluted procedural history." Mary Dixon Torbert, an attorney in Montgomery, served during Dot Smith's life as the court-appointed conservator of her estate, and, upon final settlement of that conservatorship, was awarded an attorney's fee of $15,298.75. After Ms. Smith died, Torbert filed a claim against her estate, of which Cashion was the successor executrix, for her attorney-fee award as conservator. Cashion subsequently determined that the estate was insolvent and filed a report of insolvency with Reese McKinney, Jr., Judge of Probate of Montgomery County. She listed the total assets of the estate as $18,511.46. In her report of insolvency, Cashion itemized the claims had been filed against the estate, indicating as to each claim the subsection in Ala. Code §43-2-371 to which Cashion believed it should be assigned. Additionally, Cashion requested reimbursement of expenses incurred by her and her predecessor executrix in the amount of $1,800, and payment of "attorneys fees of approximately $4,000.00 to date." Cashion asserted that the $5,800 represented by those two items was due to be paid as a debt under §43-2-371(2), representing "fees and charges of administration." On January 18, 2002, Judge McKinney issued a "Decree of Insolvency," declaring the estate insolvent and ordering "that Amanda Linn Cashion, as executrix, appear and make a statement of her administration for final settlement of said estate on the 25th day of February, 2002, at 1:30 o'clock p.m." The hearing was held as scheduled on February 25, and Judge McKinney heard Cashion's statement of her administration of the estate "and any objections to same." On March 5, Judge McKinney issued his "Order on Final Settlement," in which he found, "upon consideration of all the evidence, testimony, and briefs," that the available assets of the estate amounted to $18,511.46, and that they should be disbursed to satisfy certain claims and expenses of the estate, including Torbert's claim, reduced from the $15,298.75 awarded by Judge McCooey to $15,286.11." In his March 5 order, Judge McKinney further declared that Torbert would "be responsible for paying outstanding debts that were incurred under the Conservatorship of Dot C. Smith (Treasure [Chest] Antiques $2,070.00 and [Green] $478.79) from the funds she will receive from this Estate ...." The order also directed payment of the bill of Hamilton Funeral Home, the expenses incurred by Cashion and her predecessor executrix in the amount of $1,800, and court costs in the amount of $414.50. Thus, the aggregate amount of the claims and court costs approved was $18,511.46, exactly matching the funds available for payment of claims and expenses. No mention was made of the claims of South Haven Health & Rehabilitation ("South Haven"), American Pharmaceutical Services, and Alabama Gas Company. Although in the report of insolvency Cashion characterized the $4,000 component of her $5,800 claim as "attorney fees," in her brief in support of the report of insolvency she clarified the $5,800 claim as one being made on behalf of herself and the predecessor executrix "under Ala. Code §43-2-371(2), for $5,800 for fees and charges that accrued for the administration of the Estate." On July 11, 2002, Cashion filed in the circuit court formal objections to the claims against the estate filed by Alabama Gas Company, Green, Treasure Chest, and Torbert. On August 9, Torbert moved to strike all of the objections, contending that Ala. Code §43-2-747 required such obligations to be presented to, and resolved by, the probate court and that, therefore, they could not be presented for the first time in the circuit court, because the circuit court's review was not de novo but was limited to the record from the probate court. Cashion argued that, under Ala. Code §43-2-747 she had six months after the estate was declared insolvent to file an objection, but that Judge McKinney had "prematurely" entered the final settlement order, leaving her with no choice but to file the objections in the circuit court. On December 5, 2002, Judge Shashy granted Torbert's motion to strike Cashion's objections and affirmed Judge McKinney's order on final settlement. HOLDING: The Supreme Court held that the probate court erred in disallowing entirely Cashion's claim for compensation for the services she rendered to the estate, but the Court held that the maximum allowable amount of compensation was $925.58. The Court found no reversible error with respect to Judge McKinney's classification of Torbert's claim. The Court affirmed as to most of the other issues raised.

Dickinson v. Land Developers Constr. Co., Nos. 1021276 & 1021277 (Ala. Nov. 7, 2003)
Summary: statute of limitations; discovery rule; claims of breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability arising from the construction of a house; claims of breach of contract, fraud, negligence, and negligence per se arising out of termite damage to a house; Douglas and Barbara Dickinson and Land Developers Construction Company, Inc. entered into a contract for the construction of a house. Cook's Pest Control, Inc. issued the Dickinsons a "Subterranean Termite Control Damage Replacement Guarantee" for this house on February 25, 1993. This guarantee was effective for one year and was renewable annually. Pursuant to this guarantee, Cook's provided an initial inspection and pretreatment of the Dickinsons' house against termites and conducted annual inspections thereafter. Those annual inspections checked, among other things, the moisture level of the house. The Dickinsons moved into their house on December 20, 1993. Shortly after moving in, the Dickinsons began to notice a number of problems with their house. In early January 1994, the Dickinsons provided Land Developers with a "punch list" of items that needed to be completed. On October 2, 1994, the Dickinsons sent Land Developers another list of items that still needed to be addressed. Six to nine months after moving into their residence, the Dickinsons discovered seals on certain of the windows were broken. On November 17, 1994, the Dickinsons' architect prepared a list of problems with the French doors in the house. In early 1995, the Dickinsons documented a leak in their "pool bath." On May 1, 1995, the Dickinsons wrote a letter to Land Developers stating that they would like Land Developers to address the noted problems as soon as possible and listing seven areas of concern with the house. On May 13, 1995, the Dickinsons sent a memorandum to Land Developers concerning cracks in the driveway and a water leak under their driveway and asking when it would address the previously noted problems. The inspection report prepared by Cook's in 1995 noted that there was some water seepage in the crawl space under the house and that some wood material was "below grade," i.e., below the ground level. However, the reports prepared by Cook's in 1996 through 2000 failed to note any water seepage; the 1996 report stated that everything "Looks good!" Furthermore, the 1996, 1998, and 1999 reports prepared by Cook's concurred with the 1995 report in stating that there was wood in the Dickinsons' house that was below the outside grade level, but the 1994, 1997, and 2000 reports indicated that there was no wood below the outside grade level. On April 26, 1996, the Dickinsons sent Land Developers a letter by certified mail; the letter outlined 11 residual problems with the house. Land Developers never responded to this letter. On October 30, 1999, the Dickinsons sent another letter via certified mail to Land Developers requesting that it fix several problems with the house. After Land Developers failed to respond to the October 30, 1999, letter, the Dickinsons hired a structural engineer, Joel Wehrman, to inspect their house. In his report, Wehrman found that there was a separation between the brick veneer and the doorframes of the French doors at the rear of the house. Wehrman opined that the separation was caused by the rotting of the wooden basement wall, which had resulted from the use of untreated wood in constructing the basement wall. Wehrman stated that the decay of the belowground wooden wall was inevitable. Wehrman also found that the use of the wooden wall resulted in a lack of lateral support for the house and could contribute to the separation of the superstructure from the foundation. In addition, Wehrman found that the driveway, walkway, and patio were cracking. Wehrman stated that this resulted from their having been constructed on fill soils, which had settled since construction. At Wehrman's suggestion, and with his oversight, the Dickinsons began the demolition and reconstruction of part of their house in February 2000. The cost of the demolition and reconstruction was $731,833.50. Before the demolition and reconstruction, no termite activity was reported and the moisture-content levels measured by Cook's in its annual inspections were never at or above 20% (a level of 20% or above would have indicated a greater chance of wood decay and insect infestation). During the demolition and reconstruction of the Dickinsons' house, however, Cook's discovered termite activity in the belowground wooden wall, which was located at the rear of the house. After being informed by Cook's of the termite infestation, the Dickinsons hired a termite consultant to inspect their home. This consultant observed the termite infestation in the rear of the house and, after evaluating Cook's pretreatment of the Dickinsons' house, concluded that Cook's should have applied 600 to 700 gallons of the insecticide Dursban to the Dickinsons' house. The records maintained by Cook's reflect that it applied only 444 gallons of Dursban. On December 21, 1999, following receipt of the Wehrman report, the Dickinsons sued Land Developers in the Shelby Circuit Court, seeking damages for breach of contract, fraud, mental anguish and emotional distress, negligent and/or wanton inspection, breach of the warranty of habitability, and breach of the implied warranty of merchantability arising from the construction of the Dickinsons' house. On October 27, 2000, the Dickinsons sued Cook's in the same court, seeking damages for breach of contract, fraud, negligence, and negligence per se arising out of termite damage to their house. The actions were consolidated following a motion filed by the Dickinsons. Land Developers and Cook's both filed motions for a summary judgment; the trial court granted both motions, holding that the Dickinsons' claims against Land Developers and Cook's were time-barred. HOLDING: The Supreme Court noted that the Dickinsons discovered a number of problems with their house at an early stage, including roof leaks, problems with the French doors and window seals, a leaking pool bath, water damage in parts of their home, and cracks in and moisture on the driveway. The Court held that insofar as the Dickinsons' claims against Land Developers arise out of these problems, they are barred by the two-year statutory limitations period of Ala. Code §6-5-221. The Court held that Land Developers failed to show that the problems the Dickinsons experienced with their house shortly after construction was completed would cause a reasonable person to discover the existence of the rotten belowground wooden wall or the allegedly improperly compacted fill soil. The Court held that the question of when the Dickinsons should have discovered the serious structural defects in their house, such as the rotten belowground wall and the allegedly improperly compacted fill soil, may not be decided as a matter of law, and a jury question exists as to when the Dickinsons discovered facts sufficient to maintain their claims against Land Developers. The Court affirmed the summary judgment in favor of Cook's.

Randall v. Water Works & Sewer Bd. of the City of Birmingham, No. 1021289 (Ala. Nov. 7, 2003)
Summary: municipal referendum; jurisdiction; standing; ripeness; On or about October 2, 2002, a group of electors in the City of Birmingham (hereinafter referred to collectively as the "electors") filed with Michael F. Bolin, the probate judge for Jefferson County, a "Petition for Ordinance to Reclaim the Water Works Assets for the City of Birmingham." The electors requested that the probate judge certify their petition and submit the proposed ordinance to the Birmingham City Council for adoption by initiative or by referendum election. The electors filed their petition pursuant to the authority purportedly granted by Act No. 294, Ala. Acts 1965. The purpose of the proposed ordinance was "to implement a plan to satisfy and redeem the debt of the Water Works and Sewer Board of the City of Birmingham in order to administer more effectively such systems and use the surplus revenues therefrom for needed improvements in city schools and other projects." In order to accomplish this purpose, the ordinance authorized the City of Birmingham to redeem the debts of the Water Works and Sewer Board of the City of Birmingham ("the Board") and to cause the dissolution of the Board by operation of law, which would then vest title to the assets of the Board in the City. At the time the electors submitted their petition, the outstanding indebtedness of the Board was $550 million. The ordinance submitted by the electors would appoint David A. Sullivan as a special attorney for the City and would grant him virtually unlimited authority to accomplish the purpose of the ordinance. In addition, the proposed ordinance requires the mayor and all employees, consultants, and attorneys for the City to assist and cooperate with Sullivan and to pay "all invoices for actual expenses incurred and provid[e] all information and assistance as requested by Mr. Sullivan." Under the ordinance, Sullivan was to be compensated for his services as special attorney for the City on a contingent basis, depending upon whether the City successfully reclaimed the Board's assets. If the City was successful in its effort to take over the Board's assets, Sullivan would receive $350 per hour for the hours he worked or 3% of the dollar amount of the bonds issued, whichever was greater. Because the Board's outstanding debt is $550 million, Sullivan stood to earn a contingent fee of at least $16.5 million if the purpose of the ordinance was accomplished. The probate judge determined that the petition, as amended, contained the signatures of a sufficient number of qualified electors. Judge Bolin indicated that he intended to certify the petition and submit the proposed ordinance to the Birmingham City Council unless and until a court of competent jurisdiction instructed him otherwise. Before the probate judge could certify the petition and order that the proposed ordinance be submitted to the Birmingham City Council for consideration, the Board filed a declaratory-judgment action in the Jefferson Circuit Court. In its declaratory-judgment action, the Board alleged (1) that Act No. 294, under the authority of which the ordinance was presented, no longer applied to the City of Birmingham; (2) that Act No. 294 was unconstitutional; (3) that the action contemplated by the proposed ordinance was beyond the authority of the Birmingham City Council; (4) that the proposed ordinance was invalid on its face; (5) that the proposed ordinance improperly delegated to Sullivan, the special attorney, the legislative authority of the Birmingham City Council; (6) that the actions contemplated by the proposed ordinance would violate the Board's contractual obligations; (7) that the proposed ordinance contained subjects that were improper for initiative ordinances; and (8) that the proposed ordinance was overbroad, vague, and ambiguous. In addition to seeking declaratory relief, the Board sought a temporary restraining order and a permanent injunction preventing the probate judge from certifying the petition for consideration by the Birmingham City Council. The trial court entered a temporary restraining order prohibiting Judge Bolin from certifying the petition and from presenting the proposed ordinance to the Birmingham City Council. Shortly after the issuance of the temporary restraining order, the electors moved to intervene in the Jefferson Circuit Court action as defendants; the trial court granted their motion. The trial court also granted the City's motion to intervene as a defendant. The Board and the electors filed motions for a summary judgment. On December 13, 2002, the trial court held a hearing on the motions. On February 5, 2003, the trial court entered a summary judgment for the Board, finding that the proposed ordinance "unlawfully and unreasonably delegates the power of the City. The Court finds that the ordinance is void and is not to be certified." The trial court then dissolved the temporary restraining order directed at Judge Bolin, finding no further need for the restraining order. On appeal, the electors argued that the Jefferson Circuit Court lacked jurisdiction to hear the Board's declaratory-judgment action because (1) the issue whether the Board's debt might be paid in full by the issuance of refunding bonds pursuant to the ordinance is a mere possibility and therefore is not ripe for judicial resolution; thus, no case or controversy exists; (2) the Board failed to allege that it would be injured by the City Council's consideration of the proposed ordinance and, therefore, the Board lacked standing to obtain a judicial ruling on the proposed ordinance; and (3) pursuant to Act No. 294, the probate court, not the circuit court, has been specially designated to resolve claims regarding proposed ordinances like this one. HOLDING: The Supreme Court affirmed. The Court concluded that in its complaint the Board alleged an actual controversy even though the proposed ordinance had not yet been adopted or enacted. The Court held that the circuit court had subject-matter jurisdiction of this action because the Alabama Constitution grants the circuit courts of this state general jurisdiction over all cases except as may be limited by law and it found no statutory limitation in this case. The Court also held that all necessary parties were present. The Court held that the Board had standing. The Court held that the proposed ordinance is invalid, but for a different reason from the trial court. The Court noted that the ordinance proposed to place David A. Sullivan, a special attorney, in control of the waterworks system. Thus, the Court held that the ordinance proposed to transfer to Sullivan those powers that by virtue of Ala. Code §11-50-230 et seq. have been squarely placed in the hands of the board of directors of the waterworks system. The Court therefore held that the proposed ordinance conflicted with §11-50-230 et seq. and is invalid.

Ex parte Perfection Siding, Inc., Nos. 1021363 & 1021369 (Ala. Nov. 7, 2003)
Summary: venue; doing business by agent; Chris Sealy filed a complaint in the Hale Circuit Court, seeking damages for injuries he sustained in a fall from the roof of a building in Tuscaloosa County. Sealy alleges that he sustained his injuries while he was an employee of Perfection Siding, Inc. ("Perfection"), which, at the time of Sealy's fall, was performing subcontracting work for Bill Lunsford Construction, Inc. Sealy sued Perfection and Lunsford Construction, as well as Dennis Hall and Russ Lewis (Sealy's supervisors at Perfection), seeking damages based on negligence and negligent hiring or contracting. Sealy also sought damages from the petitioners for intentionally failing to provide a safe workplace, and Sealy sought workers' compensation benefits from Perfection. The defendants moved to transfer the case to Tuscaloosa County, either because venue in Hale County was improper or, in the alternative, because the doctrine of forum non conveniens mandated a transfer to Tuscaloosa County. The trial court denied the motions. Perfection, Hall, and Lewis (the "petitioners") filed petitions for writ of mandamus. HOLDING: The Supreme Court denied the petitions. The Court noted that because the petitioners are all residents of Tuscaloosa County and a substantial part of the events giving rise to the claim occurred in Tuscaloosa County, which is also where the principal office of Perfection is located, venue was proper in Tuscaloosa County. However, the Court noted that because Sealy resided in Hale County when the cause of action arose, venue would be proper in Hale County under Ala. Code §6-3-7(a)(3) if Perfection "does business by agent" currently in Hale County. The Court noted that although of the approximately 1,000 jobs Perfection performs annually, only two or three were located in Hale County in the year Sealy sustained his injuries. However, the Court held that the trial judge could have determined that Perfection was doing business in Hale County in the present, not the past, primarily because Perfection's work there was performed within the same calendar year as Sealy sustained his injuries. The Court found it meaningful that Perfection actually performed services in Hale County. The Court also held that Tuscaloosa County was not shown to be significantly more convenient than Hale County.

Elizabeth Homes, L.L.C. v. Gantt, No. 1021661 (Ala. Nov. 7, 2003)
Summary: arbitration; interstate commerce: Elizabeth Homes, L.L.C. is in the business of constructing single-family, semicustom residential structures. Customers of Elizabeth Homes select a design from the house plans available; according to Elizabeth Homes, the customers are then allowed to modify those plans to meet their individual needs and tastes. Roy G. Gantt and Patty R. Gantt are residents of Elmore County. On or about March 7, 2001, they contracted with Elizabeth Homes for the construction of an "Ambassadore" style house on property the Gantts owned in Wetumpka. The Gantts agreed to pay Elizabeth Homes $76,500 for the construction of the house. The Gantts entered into a purchase agreement with Elizabeth Homes; that agreement contained an arbitration agreement. Elizabeth Homes completed the Gantts' house in December 2001. In June 2002, the Gantts notified Elizabeth Homes of numerous defects and deficiencies in the house. On January 16, 2003, the Gantts sued Elizabeth Homes, James D. Flanagan, and Carl Smith in the Elmore Circuit Court, alleging breach of warranty, negligence and/or wantonness, fraudulent misrepresentation, breach of contract, breach of an implied warranty of habitability, unjust enrichment, and breach of implied duties of good faith and fair dealing. Elizabeth Homes filed a motion seeking to enforce the Gantts' agreement to arbitrate "any and all disputes arising under" the purchase agreement. The Gantts' only argument to the trial court was that the transaction did not meet the interstate-commerce requirement. The trial court denied Elizabeth Homes' motion. HOLDING: The Supreme Court reversed. The Court held that Elizabeth Homes also established that the transaction at issue – the construction and sale of the Gantts' house – involved interstate commerce.

Ex parte Perry, No. 1022093 (Ala. Nov. 7, 2003)
Summary: The Supreme Court denied the petition for writ of certiorari without opinion, but the Court stated that in denying the petition, it did not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

Ex parte Anonymous, No. 1030172 (Ala. Nov. 7, 2003)
Summary: (plurality opinion) abortion; minor; judicial bypass for parental consent; An unemancipated 16-year-old girl (the "minor") filed a petition on October 8, 2003, pursuant to the Parental Consent Act, Ala. Code §26-21-1 et seq. ("the Act"); when she filed the petition she was approximately eight weeks pregnant. The trial court appointed separate guardians ad litem for the minor and for the baby. The trial court conducted a hearing at which the minor testified on direct examination by her attorney, was cross-examined by the guardian ad litem for the baby, and answered questions posed by the trial court. After hearing the evidence, the trial court entered an order concluding as follows: "Based on the evidence and its observation of the petitioner, the Court cannot find that she is mature enough and well-informed enough to make this decision on her own. Taking into consideration the risks involved and her lack of understanding or even knowledge of all of them, the Court cannot find that the granting of this petition is in her best interest." HOLDING: The Supreme Court reversed. The plurality opinion concluded that the trial court's findings are conclusory and therefore fail to state grounds essential to meaningful appellate review. The Court remanded the case, and the plurality opinion directed the trial court to detail sufficiently the basis for appropriate findings and immediately to conduct such further proceedings, to include taking additional testimony or admitting further evidence, that may be necessary in order to do so. The plurality opinion directed that the trial court should submit its findings to the Supreme Court by 5:00 p.m. on Thursday, November 13, 2003.

November 13

In the Matter of Roy S. Moore, Chief Justice of the Supreme Court of Alabama
Summary: The Court of the Judiciary removed Chief Justice Moore from office because of his refusal to comply with a federal court order to remove his "Ten Commandments monument" from the state judicial building. (Final judgment available only in PDF format.)

November 14

Decisions Announced by the Supreme Court of Alabama on Friday, November 14, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decision.

Ex parte Sears Roebuck & Co., No. 1020251 (Ala. Nov. 14, 2003)
Summary: discovery; The underlying dispute in this case involves a workplace injury a Sears Roebuck and Co. employee, Sonya Salter, suffered on December 1, 2000. On October 3, 2001, Salter sued Sears Roebuck and Co., and its employees Debbie McCarley, Frank Blankenship, and Larry Collins (hereinafter collectively "Sears"), alleging fraud, concealment, misrepresentation, intentional infliction of emotional distress, and suppression arising from the injury to her right foot. Sears denied Salter's claims and moved for a summary judgment. The trial court entered a scheduling order that provided that all discovery in Salter's action was to be completed by March 31, 2002. On March 23, 2002, Salter served Sears with interrogatories and requests for the production of documents. On April 26, 2002, Sears responded to Salter's discovery requests, objecting to the production of certain documents. Salter moved to compel Sears to produce the documents. On May 10, 2002, the trial court denied Sears's summary-judgment motion and granted Salter's motion to compel. On May 17, Sears moved the trial court to certify its denial of Sears's summary-judgment motion for an interlocutory appeal pursuant to Rule 5, Ala.R.App.P. On May 20, Salter moved pursuant to Rule 37, Ala.R.Civ.P., to enforce the trial court's discovery order, and on May 24, Sears moved for a protective order. On May 31, the trial court certified its denial of Sears's summary-judgment motion for an interlocutory appeal, stayed the proceedings in the case except for discovery, denied Sears's motion for a protective order, and ordered Sears to provide Salter with the requested discovery within 10 days. Sears sought permission for an interlocutory appeal of the denial of its summary-judgment motion with the Supreme Court, but did not provide Salter with any of the requested documents pursuant to the trial court's discovery order. On June 19, 2002, Salter again moved to compel production of the documents. On June 26, the trial court entered an order explaining that it did not stay discovery in its May 31, 2002, order. The trial court ordered Sears to provide Salter the requested discovery by July 1, 2002, and warned that it would sanction Sears by striking its pleadings if Sears failed to comply with the order. On July 1, 2002, Sears filed with this Court an earlier petition for a writ of mandamus seeking protection from the discovery order. Sears also moved the trial court for a stay of discovery while its mandamus petition was pending. On July 19, 2002, the Supreme Court denied Sears's petition for permission to take an interlocutory appeal, finding that the trial court's certification failed to include a statement of the controlling issue of law, and it also denied Sears's mandamus petition. On July 25, 2002, Sears moved the trial court to amend its May 31 order to include a proper statement of the controlling issue of law, and to recertify its order for an interlocutory appeal. On August 26, the trial court denied Sears's motion to recertify its order. The trial court also struck Sears's "pleadings as they relate to the fraud claims of [Salter]" as a sanction, because Sears had failed to comply with the July 1, 2002, discovery deadline. Sears moved the trial court to reconsider the sanction it had imposed for Sears's violation of its discovery order. The trial court conducted a hearing on the issue. On October 1, 2002, the trial court denied Sears's motion to reconsider the discovery sanction. Sears now petitions the Supreme Court for a writ of mandamus ordering the trial court to vacate its order striking Sears's pleadings as to Salter's fraud claims. HOLDING: The Supreme Court denied the petition. The Court held that because Sears failed to comply with the trial court's June 26, 2002, order to provide Salter with the requested discovery by July 1, the trial court judge was well within his discretion to sanction Sears for discovery abuse. The Court left it to the trial court to clarify what aspect of the "pleadings" it intended to strike.

November 21

Decisions Announced by the Supreme Court of Alabama on Friday, November 21, 2003
Summary: A list of all decisions released, including those without opinion, and a list of the attorneys in the reported decision.

Dunning v. New England Life Ins. Co., No. 1011927 (Ala. Nov. 21, 2003)
Summary: standing; insurance; fraud and breach-of-contract claims; appellate procedure; notice of appeal; filing of original; standing to appeal; In 1985 and 1992, Hammer, Inc., a construction company located in Monroeville, entered into "supplemental income agreements" with three key employees, George Dunning, Gerald Salter, and Dennis Coleman. The agreements provide retirement and/or death benefits for each of the employees. Hammer was solely responsible for funding the promised benefits. The employees received the benefits if they remained employed by the company through the retirement date specified in the agreements or died while employed by the company. Hammer purchased a life insurance policy on each of the three employees to fund its anticipated obligations under the supplemental income agreements. Hammer purchased the insurance from New England Mutual Life Insurance Company ("New England Mutual") through its agent, Spencer Tatum d/b/a Tatum & Associates. Hammer--not the employees--was the owner and beneficiary of the life insurance policies. Article 7 of each of the supplemental income agreements specifically permitted this type of funding arrangement. Hammer receives annual statements from New England Mutual showing the value of each policy. Since 1991, the value of each policy has been lower than anticipated and the policies would not fund Hammer's obligations to its employees under the supplemental income agreements. Hammer is aware of the under-performance of the life insurance policies and acknowledges that it is still obligated to honor the agreements with its employees. Hammer, however, has no current obligation under the agreements because none of the employees' benefits has vested, that is, none of the employees has retired or died. After learning that the life insurance policies were not performing at a level that would fully fund their promised benefits, the employees sued Hammer, Tatum, New England Life Insurance Company, and Metropolitan Life Insurance Company (hereinafter we refer to New England Life Insurance Company and Metropolitan Life Insurance Company collectively as "New England"), alleging fraud, suppression, and breach of contract. New England and Tatum moved for a summary judgment, arguing that the employees' claims are not ripe for adjudication, or, alternatively, that their claims are barred by the statute of limitations or are preempted under ERISA. On May 6, 2002, the trial court entered a summary judgment in favor of New England and Tatum, finding that the employees' claims were not ripe for adjudication. Following the issuance of that order, the employees dismissed their claims against Hammer without prejudice. On June 17, 2002, Sidney W. Jackson III, counsel for the employees, telephoned Milton Coxwell, Jr., an attorney practicing in Monroeville, and asked him to file with the Monroe Circuit Court clerk a copy of the employees' notice of appeal from the summary judgment for New England and Tatum because, Jackson said, he had no way of getting the notice of appeal to Monroeville that day. Coxwell agreed, and Jackson faxed a copy of the notice of appeal to Coxwell. Coxwell delivered the faxed copy of the notice of appeal to the circuit court clerk. Jackson never forwarded the original notice of appeal to the clerk. The appeal was docketed in the Supreme Court on July 16, 2002. On July 25, 2002, New England and Tatum moved to dismiss the appeal, arguing that the employees failed to file a proper and timely notice of appeal. The Supreme Court granted the motion to dismiss. The employees moved for reconsideration of the dismissal, asking the Court to set aside its order of dismissal and to reinstate their appeal. The Court did so; however, it instructed the parties to brief the issue of the effectiveness of facsimile filings together with the substantive issues presented on appeal. HOLDING: The Supreme Court vacated the trial court's judgment and dismissed the appeal. The Court held that a copy of an original notice of appeal, timely filed, is sufficient to invoke the jurisdiction of an appellate court under Ala.R.App.P. 3. The Court noted that the employees did not file their notice of appeal by faxing it to an agent of the Monroe Circuit Court clerk. Instead, a local attorney filed a copy of their notice of appeal in person. The copy of the notice of appeal had been produced by a fax machine in the local attorney's office; it had not been transmitted to the clerk's office by fax machine. Therefore, the Court noted that the issue presented in this case is not whether the filing of a notice of appeal by facsimile transmission is permissible; instead, it is whether a timely filed copy of a notice of appeal is acceptable under the Alabama Rules of Appellate Procedure if that copy was produced by a facsimile transmission. The Court held that neither the Alabama Rules of Appellate Procedure nor the Alabama Rules of Civil Procedure requires that a notice of appeal bear an original, penned signature. The Court held that the employees lacked standing to sue on the alleged underperformance of the life insurance policies because they are strangers to the contract on which their claims are based. The Court held that, similarly, the employees have no standing to complain about the alleged fraudulent behavior in connection with the execution of the contracts on New England Mutual's part. Because the employees lack standing, the Court held that the trial court did not have jurisdiction over their claims.

Wal-Mart Stores, Inc. v. Hepp, No. 1012237 (Ala. Nov. 21, 2003)
Summary: workers' compensation; retaliatory discharge; collateral estoppel; Peter Gregory Hepp was employed at a Wal-Mart discount department store as a manager in the "tire and lube express" service center. In November 1996, Hepp injured his back while on the job. He underwent back surgery and in November 1997 filed an action against Wal-Mart seeking workers' compensation benefits. On June 8, 1998, the trial court approved a settlement agreement between Wal-Mart and Hepp. Also on June 8, 1998, Randy Baggett, a district manager for Wal-Mart, received a report that Hepp had been dispensing freon without charging a fee for the service. Baggett investigated the claim, and learned that Hepp had dispensed freon into his personal vehicle and a vehicle belonging to an acquaintance. Hepp had not charged for the service and had not prepared service orders for the vehicles; Wal-Mart required that a service order be prepared for each vehicle brought in for servicing. On June 10, 1998, Hepp was terminated for violating the following policies: "(1) performing work (i.e. dispensing freon) at the Riverchase [tire and lube express service center], which ... was not allowed, (2) failing to write up a service report on a vehicle for which he provided service[,] and (3) performing service on a personal vehicle." Hepp filed for unemployment-compensation benefits with the Department of Industrial Relations ("DIR") on June 28, 1998. On July 21, 1998, DIR denied Hepp benefits. Hepp appealed the denial to the appeals tribunal, as provided by Ala. Code 1975, § 25-4-91 and § 25-4-92, alleging that he was terminated because he had filed a workers' compensation claim against Wal-Mart, which had recently been settled. A hearing was held on Hepp's appeal. Both Hepp and a representative from Wal-Mart participated in the hearing. On August 14, 1998, the appeals referee determined that Hepp had been discharged for "misconduct connected with his work," pursuant to Ala. Code 1975, § 25-4-78(3)(c), because Hepp had violated Wal-Mart's policy. The referee then held that Hepp was disqualified from receiving full benefits and was entitled to only reduced benefits under that Code section. Hepp did not appeal this decision. After Hepp's hearing before the referee, but before the referee issued his decision, Hepp filed a complaint in the Shelby Circuit Court, seeking to reopen his 1997 workers' compensation case to consider vocational disability. He later amended his complaint to allege that Wal-Mart had discharged him in retaliation for his filing a workers' compensation action, in violation of Ala. Code §25-5-11.1. Wal-Mart moved for a summary judgment on the retaliatory-discharge claim, arguing that Hepp is barred by the doctrine of collateral estoppel from relitigating the reason underlying his termination, which, Wal-Mart argued, the appeals referee had already determined was "misconduct connected with his work." The trial court denied Wal-Mart's motion, but certified its order for an interlocutory appeal under Rule 5, Ala.R.App.P. HOLDING: The Supreme Court reversed. The Court held that the doctrine of collateral estoppel bars Hepp from arguing in this case that he was terminated for some reason other than "misconduct connected with his work," which was the reason the referee had determined Hepp was terminated. Thus, the Court held that Hepp cannot establish a prima facie case of retaliatory discharge.

Kingvision Pay-Per-View, Ltd. v. Ayers, No. 1012384 (Ala. Nov. 21, 2003)
Summary: denial of motion to vacate a default judgment; the validity of a purported appearance by an attorney on behalf of a party; Kingvision Pay-Per-View, Ltd. ("Kingvision"), a Delaware corporation headquartered in Florida and the owner of the exclusive right to broadcast the June 28, 1997, fight between Evander Holyfield and Mike Tyson, employed Coral Springs, Florida attorneys Scott Salomon and Barry Mittelberg (collectively "Salomon & Mittelberg") to pursue claims against the plaintiff Lester Ayers and others in Alabama for the unlicenced interception of the broadcast. Salomon & Mittelberg, in turn, employed Andrew Nelms ("Nelms"), a Montgomery attorney, to act as Alabama counsel for Kingvision in the pursuit of these claims. Before filing a lawsuit against the plaintiff, Salomon & Mittelberg attempted to collect money from the plaintiff by means of telephone calls and letters. In response to the collection efforts of Salomon & Mittelberg, the plaintiff sued Kingvision for invasion of privacy and felonious injury, in the Bessemer Division of the Jefferson County Circuit Court in November 1997. The plaintiff served Kingvision by sending the summons and complaint by certified mail to Salomon & Mittelberg rather than by serving either Kingvision itself or CT Corporation, the registered agent of Kingvision for service of process. Salomon & Mittelberg, on behalf of Kingvision, moved the circuit court for additional time to respond to the plaintiff's complaint. The motion stated that "Defendant was served with the instant action seeking damages on or about December 5, 1997." The motion did not assert that the service of process on Kingvision was insufficient. After Salomon & Mittelberg obtained additional time to respond to the complaint, Nelms, on behalf of Kingvision, simultaneously filed both a Rule 12(b), Ala. R. Civ. P., motion to dismiss and an answer. The Rule 12(b) motion sought dismissal of the plaintiff's complaint on the grounds that the "complaint ... fail[ed] to state a claim ... upon which relief [could] be granted" and that the plaintiff's claims were "barred by personal jurisdiction." The motion did not assert that the service of process on Kingvision was insufficient. Similarly, while the answer asserted that the trial court "lack[ed] ... jurisdiction," it did not assert that the service of process on Kingvision was insufficient. After the trial court denied the motion to dismiss, Salomon & Mittelberg and Nelms filed a separate lawsuit against the plaintiff for recovery of damages for the unauthorized interception of the broadcast, in the United States District Court for the Northern District of Alabama. Subsequently, Nelms amended the answer of Kingvision in the plaintiff's state court lawsuit to assert a statute of limitations defense that Nelms had omitted from the original answer. This amended answer, like the previously filed Rule 12(b) motion and the original answer, failed to assert that the service of process on Kingvision was insufficient. In the summer of 2000, Nelms withdrew as attorney of record for Kingvision in the plaintiff's lawsuit. Salomon & Mittelberg then employed Birmingham attorney James Ward ("Ward") and his law firm, Corley, Moncus & Ward, P.C. ("Corley"), to defend Kingvision against the plaintiff's claims. Corley, on behalf of Kingvision, deposed the plaintiff in October 2000. In December 2000, Ward and Corley, withdrawing as attorneys of record for Kingvision, requested that the trial court send copies of the order granting their motion to withdraw and send future notices to Kingvision in care of Salomon & Mittelberg. The trial court called the plaintiff's lawsuit for trial on September 24, 2001. When Kingvision failed to appear, the trial court entered a default against Kingvision. In December 2001, after the plaintiff presented evidence of damages, the trial court entered a default judgment against Kingvision in the amount of $65,000. In July 2002, Kingvision moved the trial court under Rule 60(b), Ala. R. Civ. P., to vacate the default judgment because, Kingvision said, the default judgment was void and Kingvision had a meritorious defense to the plaintiff's claims. Kingvision asserted that the default judgment was void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in personam jurisdiction over Kingvision. Kingvision did not assert that the trial court lacked in personam jurisdiction because of a lack of contacts between Kingvision and the State of Alabama or because of any reason other than the insufficiency of the service of process on Kingvision. In support of the Rule 60(b) motion, Kingvision submitted an affidavit from Donna K. Westrich. The trial court heard the Rule 60(b) motion of Kingvision without ruling on either the plaintiff's motion to strike Westrich's affidavit and to compel her deposition. Nelms and Ward testified at the hearing that they were employed by Salomon & Mittelberg, that all of their communications were with Salomon & Mittelberg, and that they had not communicated directly with Kingvision. Nelms opined that Salomon & Mittelberg had apparent authority to act as a general agent for Kingvision in the collection of monies owed Kingvision for the unlicenced interception of the broadcast of the Holyfield-Tyson fight. The trial court held that Salomon & Mittelberg P.A. had a dual role, that of attorney for Kingvision and collection agent in the State of Alabama. The trial court held that their failure to answer the complaint and the subsequent entry of default against them on September 24, 2001, is not due to be set aside. HOLDING: The Supreme Court affirmed. The Court noted that Ala. Code §34-3-22 provides that "the court may at any stage of the proceedings, upon proof [that an attorney has appeared for a party without authority], relieve the party for whom the attorney has assumed to appear from the consequences of [the attorney's] acts," and that "[a]n appearance in a suit by an attorney of the proper court, is presumed to be authorized," with the burden of proof on the party denying the authority. The Court noted that the only evidence Kingvision presented that was relevant to the issue of Nelms's authority was Westrich's affidavit, which failed to refute effectively Nelms's authority to file these pleadings.

Young v. Pimperl, No. 1020323 (Ala. Nov. 21, 2003)
Summary: contract for sale of real estate; Lehman Harvey Young, Mary Rebecca Orton Newcomber, Howard Franklin Young, Jr., Evelyn Alice Hollar Young, and Virginia Caroline Young Martin (hereinafter collectively referred to as "the landowners") each owned an undivided 1/5 interest in a 20-acre parcel of property located in Baldwin County. John Pimperl and his wife Judy Pimperl discussed with each of the landowners the possibility of the Pimperls' purchasing the land. When the Pimperls reached what they believed to be an agreement with the landowners as to a fair price for the land, the Pimperls mailed each of the landowners a quitclaim deed, along with a purchase agreement, to be executed and mailed back to the Pimperls. Lehman, Mary, Evelyn, and Virginia each executed a copy of the purchase agreement and the quitclaim deed each had received and mailed the documents back to the Pimperls. The Pimperls then contacted Howard and inquired as to why he had not executed his purchase agreement and quitclaim deed. Howard told the Pimperls that he believed that the property was worth more than the price reflected in the purchase agreement as the sales price and that, consequently, he did not intend to execute the purchase agreement and deed. The Pimperls recorded the deeds they had received from Lehman, Mary, Evelyn, and Virginia, and sent them each a check in the amount of $2,300, representing 1/5 of the purchase price of the entire property. The Pimperls also sent Virginia an additional $1,000 as reimbursement for funds she had expended to redeem the land from a tax sale. The next month, Lehman, Mary, and Evelyn returned to the Pimperls the checks they had received for $2,300 with letters stating that they no longer intended to sell their interests in the land to the Pimperls. The Pimperls filed an action in the Baldwin Circuit Court, seeking a declaration of ownership of the property interests of Lehman, Mary, and Evelyn, and seeking a partition of the land and a sale against Howard. The defendants answered the complaint and filed a counterclaim, seeking a declaration that the purchase agreements and quitclaim deeds containing their signatures are a nullity and vaguely alleging "misrepresentation." After a bench trial, the trial court entered an order finding that the purchase agreements and quitclaim deeds executed by Lehman, Mary, and Evelyn were binding contracts for the sale of their undivided interests in the land. The court then ordered the Pimperls to pay Lehman, Mary, and Evelyn $2,300 each for their interests in the land. The court further found "by stipulation of the parties that the deed [from] Virginia Carolyn Young Martin is a valid conveyance of her fractional interest in the property subject to the complaint." The court then determined that the Pimperls were entitled to purchase the remaining 1/5 undivided interest from Howard. The court appointed a licensed appraiser to perform a valuation of the remaining 1/5 interest to serve as the basis for a purchase price. The Pimperls then had 30 days from the date of the valuation in which to pay to Howard the purchase price as set by the court-appointed appraiser. Lehman, Mary, and Evelyn (hereinafter collectively referred to as "the appellants") appealed the trial court's order finding that their execution of the purchase agreements and deeds constituted binding contracts with the Pimperls for the sale of their interests in the land. HOLDING: The Supreme Court reversed. The Court held that when the terms of the purchase agreement are read as a whole and each word is given its ordinary, plain, and natural meaning, it is clear that the purchase agreement requires the participation of all of the landowners for the sale of the land to occur. The Court held that because fewer than all five of the landowners agreed to sell their interests and to execute the purchase agreement and quitclaim deeds, there is no binding contract for the sale of the land.

Harbor Village Home Center, Inc. v. Thomas, No. 1020392 (Ala. Nov. 21, 2003)
Summary: arbitration; merger clauses; Curtis Thomas purchased from Harbor Village a new mobile home manufactured by Buccaneer Homes of Alabama, Inc. In connection with the purchase, Thomas and Harbor Village executed three different documents, each of which contained an arbitration provision: a document entitled "Retail Installment Contract, Security Agreement, Waiver of Trial by Jury, and Agreement to Arbitration or Reference or Trial by Judge Alone" ("the retail contract"); a document entitled "Acknowledgment and Agreement" ("the acknowledgment"), which Buccaneer also executed; and a document entitled "Agreement for Binding Arbitration and Waiver of Jury Trial" ("the freestanding arbitration agreement"). After purchasing the mobile home, Thomas discovered numerous alleged defects. He then sued Buccaneer and Harbor Village in the Washington Circuit Court, alleging fraud, breach of express and implied warranties, and violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. The complaint also alleged a negligence claim against Harbor Village. Buccaneer and Harbor Village moved to compel arbitration. Thomas filed a brief in opposition to their motions to compel arbitration. Specifically, Harbor Village asked the circuit court to enter an order "compelling the parties to the controversy to submit all claims and causes of action in this present case to binding arbitration before the American Arbitration Association ...." Harbor Village also included with its motion copies of the arbitration provisions and a supporting affidavit. Thomas filed a response to Buccaneer's motion only, but filed a motion to strike the affidavit filed in support of Harbor Village's motion. Thomas also sent a letter to the trial court arguing that even if the court compelled arbitration, arbitration did not have to be conducted under the Commercial Arbitration Rules of the American Arbitration Association (hereinafter "the AAA rules"). On August 27, 2002, the trial court issued an order in response to the motions to compel arbitration filed by Buccaneer and Harbor Village stating that Curtis Thomas is entitled to a jury trial against Buccaneer for the express warranty claims and the claims brought pursuant to the Magnuson-Moss Warranty Act and that the other claims between the parties, including the implied warranty claims, are due to be arbitrated pursuant to the terms of the agreements for arbitration. Harbor Village appealed. Harbor Village claims that the trial court, in ordering that the arbitrator be selected by "the seller with the consent of the buyer and selected and agreed upon by both the buyer and seller," erroneously compelled arbitration under the freestanding arbitration agreement. Harbor Village argues that the trial court should have instead compelled arbitration under the retail contract and the acknowledgment, which call for arbitration under the AAA rules. Those rules, Harbor Village argues, set out a procedure for selecting an arbitrator different from the procedure found in the freestanding arbitration agreement. Buccaneer did not appeal, and Thomas did not cross-appeal. HOLDING: The Supreme Court reversed. The Court held that the retail contract is the only fully integrated agreement between Harbor Village and Thomas because the retail contract contains all of the terms necessary to the contract, including a description of the mobile home, the identities and signatures of the parties, the price of the mobile home and the terms of the financing, the assignment, and an arbitration provision, plus the retail contract contains a merger clause. The Court concluded that the acknowledgment, despite the fact that it contains a merger clause, is not the final and complete agreement of the parties.

Edward D. Jones & Co. v. Wehby, No. 1020689 (Ala. Nov. 21, 2003)
Summary: arbitration; interstate commerce; John Herbert Wehby sued Jefferson Bruce McKittrick, his former business partner, alleging fraud and breach of contract. Wehby later amended his complaint to include claims of breach of fiduciary duty and suppression against Edward D. Jones & Co., LP, d/b/a Edward Jones, and its agent, Frank Preziuso (hereinafter collectively "Jones"). In March 2000, Wehby and McKittrick formed a general partnership, J&J Com, to manage specific investment accounts located at AmSouth Bank in Jefferson County, Alabama, and at Edward D. Jones & Co. in Cleveland, Ohio. Wehby's complaint alleges that McKittrick engaged in trading not authorized under the partnership agreement, resulting in losses to the partnership of approximately $385,000. Wehby sought $500,000 in compensatory, consequential, and incidental damages, as well as costs, attorney fees, and interest on the debt. McKittrick failed to answer Wehby's complaint, and the trial court entered a default judgment against McKittrick in the amount of $500,000. Edward D. Jones & Co. and J&J Com had previously entered into a customer account agreement that addressed the partnership account the parties maintained with Edward D. Jones & Co. This agreement contained an arbitration provision. Jones moved the court to dismiss the action by Wehby and the partnership and to compel arbitration. The trial court denied Jones's motions to dismiss and to compel arbitration. HOLDING: The Supreme Court reversed. The Court held that the transaction at issue in this case between Jones and Wehby involves interstate commerce.

Ex parte Alloy Wheels Int'l, Ltd., No. 1020778 (Ala. Nov. 21, 2003)
Summary: personal jurisdiction; Katherine Victoria Vance was killed in the rollover wreck of her 1998 Land Rover Discovery sport-utility vehicle. Katherine's mother, Sue Vance, as the personal representative of Katherine's estate, sued a number of defendants, and eventually added Alloy Wheels International, Ltd. as a defendant, for Katherine's wrongful death. The plaintiff alleged product liability claims and Alabama Extended Manufacturer's Liability Doctrine claims against the defendants. The plaintiff specifically alleged that Alloy Wheels had defectively designed and manufactured the aluminum alloy wheels on Katherine's Land Rover and that a crack in at least one of the wheels caused the fatal wreck. Answering the amended complaint, Alloy Wheels asserted, among other defenses, the lack of personal jurisdiction. Thereafter, Alloy Wheels moved for a summary judgment on the ground that the trial court lacked personal jurisdiction over Alloy Wheels. Alloy Wheels relied on the allegations of the complaint and on two affidavits of Paul Merritt, the operations director of Alloy Wheels in the United Kingdom. The trial court denied that motion. Alloy Wheels filed a petition for writ of mandamus. HOLDING: The Supreme Court granted the writ of mandamus and directed the trial court to grant Alloy Wheels' motion for summary judgment. The Court found that the plaintiff had not submitted substantial evidence that Alloy Wheels "purposefully directed" any action "at the forum State [other] than the mere act of placing a product in the stream of commerce" and that no evidence establishes sufficient minimum contacts between Alloy Wheels and the State of Alabama.

Conference Am., Inc. v. Telecommunications Cooperative Network, Inc., No. 1021047 (Ala. Nov. 21, 20
Summary: contracts; assignability; jury misconduct; Conference America, Inc. is an Alabama corporation that provides conference-call services. In 1995, Conference America was selected by Telecommunications Cooperative Network of New York, Inc. ("Old TCN"), a not-for-profit membership cooperative that assisted nonprofit entities in using telecommunications services, to provide conference-call services to members of Old TCN. In 1997, Conference America and Old TCN entered into an agreement ("the 1997 agreement") pursuant to which Conference America would pay Old TCN a 24% commission on the services Conference America provided to members of Old TCN. The term of the 1997 agreement extended from January 27, 1997, through December 31, 2000. The 1997 agreement was silent as to whether the agreement was assignable. By early 1998, Old TCN was having financial difficulties and was close to filing a petition for involuntary bankruptcy. Around that time, David Altshuler, who had served as vice chairman on the board of directors of Old TCN through July 1997, formed a for-profit corporation named Telecommunications Management, Inc. ("TMI"). Pursuant to a management agreement between Old TCN and TMI, Altshuler, as president of TMI, took over the management of Old TCN. In July 1998, TMI changed its name to Telecommunications Cooperative Network, Inc. ("New TCN"). In September 1998, the assets of Old TCN – including its name, its goodwill, and the 1997 agreement -- were transferred or assigned to New TCN and Old TCN was subsequently dissolved. New TCN is a for-profit corporation, run by Altshuler as its sole officer and director. Conference America claims to have had no knowledge of the transfer of assets of Old TCN to New TCN, of the dissolution of Old TCN, or of the creation of New TCN. After New TCN acquired the assets of Old TCN, Conference America continued to provide services and to remit commissions to New TCN pursuant to its 1997 agreement with Old TCN. In December 1998, Conference America executed another agreement ("the 1998 agreement") virtually identical to the 1997 agreement that, among other things, extended the term of the 1997 agreement through September 30, 2002. The 1998 agreement referred to "TCN"; it did not distinguish between "Old" TCN and "New" TCN. According to Conference America, New TCN held itself out as being the same company as the dissolved Old TCN. Subsequently, the relationship between Conference America and New TCN became strained. Conference America sued New TCN, Altshuler, Chris Lipscomb, and others, seeking, among other things, 1) damages for fraud, breach of contract, repudiation of contract, and moneys paid by mistake under a void assignment of the 1997 agreement, and 2) declaratory and injunctive relief. New TCN and Lipscomb each filed a counterclaim. Following the trial, however, the only claims that went to the jury were Conference America's breach-of-contract and fraud claims, New TCN's counterclaim alleging breach of contract and repudiation of contract, and Lipscomb's counterclaim alleging breach of contract. The trial court granted New TCN's motion for a judgment as a matter of law as to Conference America's claim that it was entitled to moneys paid to New TCN by mistake because, it argued, the 1997 agreement was unassignable. The jury returned a verdict for New TCN and Lipscomb on Conference America's breach-of-contract and fraud claims and on their counterclaims. The jury awarded damages on the counterclaims in the amounts of $1,007,499.97, and $1,000 to New TCN and Lipscomb, respectively. The trial court entered a judgment on this verdict. Following the verdict, Conference America discovered that a juror had given erroneous answers in his questionnaire and on voir dire examination. It confirmed this fact through investigation and memorialized its discovery and initial investigation in a letter to the Court dated November 8, 2002, enclosing its investigative material. On November 22, 2002, Conference America filed motions for a judgment as a matter of law, a new trial, and to alter, amend, or vacate the judgment, asserting, among other things, juror misconduct and the alleged unassignability of the 1997 agreement. The trial court denied Conference America's postjudgment motions. HOLDING: The Supreme Court held that that the trial court's rulings based on the assignability of the 1997 agreement were correct. However, the Court held that the juror misconduct warrants a new trial. The Court also held that the trial court's resolution of the equitable claims in this case is unaffected by any juror misconduct and its judgment as to those claims is affirmed. The Court held that the trial court did not err in denying Conference America's motion for judgment as a matter of law regarding New TCN's counterclaims.

Pittman v. United Toll Sys., LLC, No. 1021188 (Ala. Nov. 21, 2003)
Summary: automobile accident; negligence; wantonness; assumption of the risk; summary judgment; Gayle Pittman sued United Toll Systems, LLC ("United Toll"), State Farm Mutual Automobile Insurance Company ("State Farm"), and certain fictitiously named defendants, seeking to recover damages for injuries she sustained in an automobile accident that occurred on the approach to a toll bridge operated by United Toll. The accident was caused by a chain reaction set in motion by icy conditions on the bridge. Pittman alleged negligence and wantonness against United Toll and alleged breach of contract as to both State Farm and United Toll. United Toll moved for a summary judgment on all pending claims against it on the sole basis of the defense of assumption of the risk. Pittman responded and the trial court, after hearing oral arguments on the motion, entered a summary judgment for United Toll on all claims without stating its rationale. Pittman filed a motion to alter, amend, or vacate the trial court's judgment; the court denied that motion. Pittman appealed. Pittman argues that the trial court erred in entering a summary judgment for United Toll because, she says, in response to its summary-judgment motion she presented substantial evidence creating genuine issues of material fact (1) as to whether she had actual knowledge and appreciation of the danger of ice on the bridge and (2) as to whether she voluntarily proceeded onto the approach to the bridge with an understanding that there was ice on the bridge. HOLDING: The Supreme Court reversed as to the summary judgment on the negligence and wantonness claims. The Court held that no evidence was presented to indicate Pittman's "actual awareness" that there was ice on the bridge before the driver of the truck lost control of it. The Court also concluded that Pittman did not voluntarily proceed with knowledge of the danger posed by ice on the bridge. Therefore, the Court held that there exist genuine issues of material fact to be resolved by the fact-finder as to whether Pittman assumed the risk. The Court noted that Pittman did not challenge the summary judgment on the breach-of-contract claim.

Ex parte Leasecomm Corp., Nos. 1021281 & 1021308 (Ala. Nov. 21, 2003)
Summary: outbound forum-selection clause; Aaron Cobb filed a putative class action against Galaxy Mall, Inc. , a Utah company, and MicroFinancial, Inc., and its subsidiary, Leasecomm Corporation, both Massachusetts companies (the Massachusetts companies will hereinafter be collectively referred to as "Leasecomm"). The complaint sought compensatory and punitive damages "in an amount not to exceed $74,000 per class member." Recovery was sought on theories of (1) breach of contract, (2) fraud, (3) fraudulent suppression, (4) conspiracy, (5) theft by deception, (6) conversion, and (7) violation of statutory usury laws. Galaxy Mall filed a "Motion to Enforce Forum Selection Clause." The motion was based on a clause on the reverse side of the order form provided by Galaxy Mall and signed by Cobb, which provided: "[T]he parties agree that any and all disputes arising out of this transaction ... shall be resolved in the courts of the State of Utah in the County of Utah or the United States District Court for the State of Utah." Leasecomm had filed a similar motion based on a forum-selection clause in the lease agreement entered into between Leasecomm and Cobb; that clause provided: "The Parties hereby ... consent and submit to the exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts and expressly agree to such exclusive forum for the bringing of any suit, action or other proceeding arising out of their obligations hereunder, and expressly waive any objection to venue in any such Courts ...." The trial court denied the motions, stating: "[E]nforcement of either forum selection clause would be unreasonable under the circumstances because the clauses effectively deny [Cobb] and remaining Alabama customers ... their day in court." The trial court held that enforcement of the outbound forum-selection clauses would be "seriously inconvenient," and "unreasonable under the circumstances." Glaxy Mall and Leasecomm filed petitions for writs of mandamus challenging the trial court's ruling. HOLDING: The Supreme Court denied the petitions for writ of mandamus. The Court noted that Galaxy Mall and Leasecomm anticipate the splitting of Cobb's claims for separate trials against Galaxy Mall and Leasecomm in Utah and Massachusetts, respectively. The Court also noted that Alabama has a strong policy against splitting causes of action or claims. The Court further noted that where a plaintiff's suit is truly broader than the forum selection clause and the structure of the complaint is not an attempt to avoid the forum selection clause, enforcement of the forum selection clause would be unreasonable. The Court concluded that the claims against Galaxy Mall and Leasecomm are inextricably intertwined. The Court held that under the circumstances of this case, it cannot conclude that the trial court exceeded its discretion in denying the petitioners' motions.

Ex parte Jackson, No. 1021330 (Ala. Nov. 21, 2003)
Summary: tenure; dismissal of public school teacher; Lucy Jackson was a teacher at Howard Elementary School in Mobile. The principal at Howard Elementary recommended that Jackson's employment be terminated, and the Mobile County School Board voted 4-0 to terminate her employment. Jackson appealed her termination to the Alabama State Tenure Commission ("the Commission"). As part of discovery during her appeal, she requested all documents that would be presented against her at the Commission's hearing. She was timely provided with those documents and with summaries of the testimony that would be presented against her at the hearing. Many of the documents came from her personnel file -- to which all public-school teachers have access upon request. However, some of the documents had been retained outside her personnel file; Jackson was unaware of the existence of those documents until the documents were provided to her pursuant to her discovery request. After the hearing, the Commission upheld the decision of the school board to terminate Jackson's employment. Jackson petitioned the Mobile Circuit Court for a writ of mandamus ordering the Commission to reverse its decision. The circuit court issued the writ, holding that Jackson was not properly notified of the grounds of her termination. The Commission appealed to the Court of Civil Appeals, which reversed the judgment of the trial court issuing the writ. HOLDING: The Supreme Court affirmed the Court of Civil Appeals. The Court rejected Jackson's argument that certain records were unlawfully "retained," because their retention anywhere outside her "personnel file" was inconsistent with Ala. Code §16-22-14. The Court held that even assuming that the retention of the records violates §16-22-14, Jackson's argument lacks merit, because she asserts no recognizable injury stemming from this alleged violation.

Ex parte Horton Family Housing, Inc., No. 1021679 (Ala. Nov. 21, 2003)
Summary: discovery; arbitration; Sabrina Burton and John Burton ordered a manufactured home from Horton Family Housing, Inc. Mrs. Burton appears to have handled all aspects of the transaction. The Burtons specially ordered linoleum for the bedroom floor and a large Palladian window. Horton processed special order homes such as the Burtons' only after financing was approved through GreenPoint Credit, L.L.C., a financing company. On December 12, 2001, GreenPoint Credit informed Horton that it had approved the financing for the Burtons' home, stating on the application Mrs. Burton had submitted: "all conditions have been met." Kim Temple, an employee of Horton, then informed Mrs. Burton that her credit application had been approved. Mrs. Burton signed three documents to complete the transaction: a buyer's order form, an installment sales contract/security agreement, and a separate arbitration agreement. The installment sales contract/security agreement also contained an arbitration provision that contained the following language, which did not appear in the separate arbitration agreement: "Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s)." When the manufactured home was complete, Horton delivered it to the Burtons' property. However, Horton was unable to place the home on its designated site because the property had not been adequately prepared. After its unsuccessful attempt at delivery, Horton returned the home to its place of business. At some point after delivery of the manufactured home was attempted, GreenPoint Credit informed both parties that it could not confirm Mrs. Burton's income and thus that it was withdrawing its approval of the loan. The Burtons filed this action in the Elmore Circuit Court claiming fraudulent misrepresentation, fraud by forgery, failure to disclose, conversion, negligence, wantonness, negligent delivery and removal, and wanton delivery and removal. Horton and Temple filed an answer and a motion to dismiss, or, alternatively, to compel arbitration. The Burtons immediately filed notice of their intent to serve a subpoena on GreenPoint Credit and noticed the taking of the deposition of Horton's president, Trey Horton. At this point, Horton and Temple filed a motion for a protective order to halt discovery, which the trial court initially denied on June 25, 2003. Horton and Temple subsequently filed a petition for a writ of mandamus. The day Horton and Temple filed the petition, the trial court issued a protective order "as to issues beyond the substance of the existence of the sales/financing agreement." HOLDING: The Supreme Court denied the petition. The Court held that whether GreenPoint Credit extended financing to the Burtons is central to this dispute, and the Burtons are entitled to conduct limited discovery on matters related to the financing. The Court stated that on June 25, the trial judge denied Horton and Temple's motion for a protective order, which would have placed some limit on discovery, and that in so deciding, the judge exceeded his discretion. The Court stated that if the order had stood, the trial court would have committed reversible error. However, on July 9, the judge issued a protective order which appropriately limited the Burtons' discovery to whether financing had been approved; if it had been approved, when; and if and when financing was later withdrawn. The Court stated that if the trial court permits discovery beyond those bounds, Horton and Temple are free to again petition for mandamus relief.

Ex parte Town of Valley Grande, Alabama, No. 1021744 (Ala. Nov. 21, 2003)
Summary: municipal incorporation; appellate procedure; On December 13, 2002, residents of the Valley Grande community who were inhabitants, property owners, and qualified electors filed a petition for incorporation of the community of Valley Grande in the Dallas County Probate Court. On December 16, 2002, the probate court held a hearing and after reviewing the petition and the evidence granted the petition to incorporate and ordered an election on the question of whether to incorporate the Town of Valley Grande, Alabama. The election was held on January 9, 2003. On January 8, 2003, Rita M. Lett and Tamara Duncan Smith filed a petition in the Dallas Probate Court seeking to vacate the probate court's order granting the petition to incorporate and ordering an election. The probate court, on that same day, entered an order allowing the January 9 election to proceed, and it agreed to address the matters raised in Lett and Smith's petition to vacate after the election. On January 9, 2003, the election on the incorporation question was held. The results of that election were 821 votes for incorporation and 90 votes against incorporation. Election inspectors certified the election results and their certificate was filed with the probate court on January 11, 2003. On January 16, 2003, the probate court held a hearing on Lett and Smith's petition to vacate and on several other objections raised by Lett and Smith, including allegations that the metes and bounds description in the petition for incorporation was incorrect, that some parties who signed the petition were not residents, and that absentee ballots had not been provided for the election. On January 30, 2003, the probate court issued an order rejecting Lett and Smith's objections. Specifically, in its order the probate court found that the description of the property to be incorporated included with the petition for incorporation was an accurate description by metes and bounds of the area proposed to be incorporated and that it met the statutory requirements as interpreted by Alabama Supreme Court caselaw; that Lett and Smith's challenge with regard to the alleged failure to provide absentee ballots was meritless, in light of Ala. Code §11-41-1 et seq.; and that the statutory and jurisdictional requirements in effect on the date the petition for incorporation was filed had been met and that, therefore, the jurisdiction of the probate court was properly invoked. On January 31, 2003, Smith and Lett filed a petition for a writ of mandamus and prohibition in the Dallas Circuit Court, asking that court to direct the probate court to vacate its order granting the petition to incorporate and setting the date for the incorporation election and to issue a writ prohibiting the probate judge from certifying and recording the results of the election. On February 3, 2003, the probate court entered an order of incorporation for the Town of Valley Grande. On July 7, 2003, the persons who petitioned for an order of incorporation for the Town of Valley Grande (hereinafter "the Valley Grande citizens") filed in the circuit court a motion to dismiss Lett and Smith's petition for the writ of mandamus. In its motion, the Valley Grande citizens argued that the circuit court did not have jurisdiction to entertain Smith and Lett's petition because, it said, the probate court's order of incorporation, entered on February 3, 2003, constituted a final judgment, and the only remedy available to Lett and Smith was by an appeal. On July 15, 2003, the circuit court denied the motion to dismiss filed by the Valley Grande citizens. On July 18, 2003, the Valley Grande citizens filed a petition for a writ of mandamus with the Supreme Court. In its petition, the Valley Grande citizens argued that the circuit court should have dismissed Lett and Smith's petition for the writ of mandamus because, it said, Smith and Lett's proper means of review of the probate court's order was by an appeal. HOLDING: The Supreme Court granted the petition. The Court held that Lett and Smith had an adequate remedy by appeal; accordingly, a petition for a writ of mandamus filed in the circuit court was not the appropriate means of review in this case. The Court directed the circuit court to dismiss Lett and Smith's petition for a writ of mandamus and prohibition.

Ex parte B.D.S., No. 1021936 (Ala. Nov. 21, 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, the Court does not not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

Ex parte B.D.S., No. 1021936 (Ala. Nov. 21, 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, the Court does not not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

Ex parte B.D.S., No. 1021939 (Ala. Nov. 21, 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, the Court does not not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion.

November 26

Decision Announced by the Supreme Court of Alabama on Wednesday, November 26, 2003
Summary: The decision released and a list of the attorneys in the reported decision.

State Farm Mut. Auto. Ins. Co. v. Harris, No. 1020609 (Ala. Nov. 26, 2003)
Summary: uninsured/underinsured motorist insurance; stacking; definition of "relative"; Bo Harris was driving a Chevrolet S-10 truck owned by his father. Bo's father had given Bo permission to operate the truck. On that same date, Fate Foley III was operating an automobile owned by his wife, Lana Foley. Foley failed to stop at a stop sign, and the automobile he was driving collided with the truck being driven by Bo Harris. It is undisputed that Foley's negligence and/or wantonness caused the accident, and that, as a result of the accident, Bo Harris suffered serious injuries. It is also undisputed that Fate Foley and Lana Foley were uninsured motorists, as that term is defined by Alabama law. At the time of the accident, State Farm insured Hugh Harris's Chevrolet S-10 truck under policy number D26 9897-F09-01. That policy was in effect on the date of the accident. In separate policies, State Farm also insured four other vehicles owned by Hugh Harris; those policies were also in effect on the date of the accident. In the policies issued to Hugh Harris, "relative" was originally defined to mean "a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school." In a later endorsement, State Farm amended the definition of "relative" to read: "a person related to you or your spouse by blood, marriage or adoption who lives primarily with you. It includes your unmarried and unemancipated child away at school." Donna Robinson, as mother and next friend of Bo Harris, sued Fate Foley and Lana Foley. Robinson alleged that Fate Foley had negligently or wantonly operated the vehicle he was driving. Robinson also alleged that Lana Foley had negligently or wantonly entrusted her vehicle to Fate Foley. Robinson sought to recover compensation for Bo Harris's medical expenses, his permanent injuries, and his pain and suffering. She also sought punitive damages. State Farm filed a motion to intervene in the case. The trial court granted the motion, and State Farm answered Robinson's complaint. State Farm deposited with the clerk of the circuit court the sum of $25,000, which State Farm alleged was the maximum Bo Harris was entitled to recover under the uninsured-motorist coverage available under Hugh Harris's policy with State Farm insuring the Chevrolet S-10 truck. This amount represented the limits of the uninsured-motorist coverage provided under State Farm automobile policy D26 9897-F09-01, the policy issued on the Chevrolet S-10 pick-up truck being operated by Bo Harris at the time of the accident. State Farm subsequently sought a partial summary judgment, relying on Bo Harris's deposition testimony in which he stated that he lived primarily with his mother. State Farm argued that because Bo Harris did not live primarily with his father, he did not meet the definition of "relative" contained in the insurance policies issued to Hugh Harris. State Farm argued that because Bo Harris did not fall within any definition of "insured," he was not entitled to stack the uninsured-motorist coverage available under the insurance policies issued by State Farm on Hugh Harris's four other vehicles. Robinson opposed this motion and filed her own motion for a partial summary judgment, arguing, on various grounds, that Bo Harris was entitled to stack the coverage available under those policies. Bo Harris'sfather and mother were divorced, and they had joint custody of Bo. Hisfather lived in Stapleton and his mother lived in Daphne. In depositiontestimony included in the record, Bo Harris testified that he was livingwith his mother at the time of the accident. The trial court subsequently denied State Farm's motion for a partial summary judgment and granted Robinson's motion for partial summary judgment, holding that Bo Harris was entitled to stack the uninsured-motorist coverage available under his father's five State Farm insurance policies. On November 6, 2000, Robinson's claims alleging negligence and wantonness as to Fate Foley were tried before a jury. The jury returned a verdict in favor of Bo Harris in the amount of $121,800 in compensatory damages and $7,000 in punitive damages. On November 7, 2002, the trial court entered a judgment on that verdict. On November 15, 2002, State Farm filed its postjudgment motion styled as a "Motion for Reduction in Judgment Amount." In that motion, State Farm again argued that, because Bo Harris did not live primarily with Hugh Harris, he could not meet the definition of an "insured." State Farm argued that Bo Harris was therefore entitled to recover uninsured-motorist benefits under only the insurance policy applicable to Hugh Harris's Chevrolet S-10 truck and that he was not entitled to stack the uninsured-motorist coverage available under the four other State Farm policies issued to Hugh Harris. For these reasons, State Farm requested that the trial court reduce the judgment to $25,000. The trial court denied the motion. HOLDING: The Supreme Court reversed. The Court concluded that the trial court erred in finding that Bo Harris was a "relative," as that term is defined in the State Farm insurance policies. The Court held that because Bo Harris did not fall within the definition of the term "relative" or under any other definition of "insured," he was not entitled to stack the uninsured-motorist coverage available in the insurance policies issued to Hugh Harris by State Farm.

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