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Opinions Issued by the Alabama Supreme Court

ARBITRATION/APPELLATE RULES
Jenks v. Harris, No. 1050687 (Ala. Mar. 14, 2008)
OPINION BY: Smith
VOTE: 5-0

In September of 1998, Shane Jenks and Kelly Jenks (“Jenks”) entered into a contract with Richard Dukes Homes, LLC (“Dukes Homes”) for the construction of a home. The contract contained an arbitration agreement. In 1999, Dukes Homes entered into an agreement with Madison Residential Developers, Inc. (“MRD”) in which MRD agreed to complete the construction of the Jenks’ home. Shortly thereafter, Mark Harris, an employee of MRD, met with the Jenks to discuss certain matters relating to the construction project. Subsequently, Duke Homes and MRD stopped working on the house, and the Jenks hired another contractor to complete the work. Portions of the work on the house performed by subcontractors hired by MRD had to be completely replaced. In September of 2001, the Jenks filed a complaint naming Dukes Homes, Richard Dukes (Dukes Homes chief manager), and Mark Harris as defendants. The complaint alleged that the house contained numerous defects and, among other things, that defendants made numerous intentional and negligent misrepresentations. Harris filed an answer. Dukes Homes and Richard Dukes filed a motion to compel arbitration, and the Jenks subsequently filed a demand for arbitration with the American Arbitration Association (“AAA”). Harris sent a letter to the AAA indicating that he was not personally involved in the construction of the house and that MRD was not subject to the arbitration clause in the contract because it was not a party to the contract. The arbitration subsequently took place, and the arbitrator rendered an award in favor of the Jenks and against Dukes Homes and Richard Dukes in the amount of $60,000, and against Mark Harris and Harris Homes in the amount of $60,000. Thereafter, Harris and Harris Homes initiated an action in the trial court seeking to have the trial court set aside and vacate the arbitration award. At a hearing, Harris testified to his very limited involvement with the Jenks’ home, and the trial court granted the motion to set aside the arbitration award against Harris and Harris Homes. The Jenks and Harris stipulated that Harris Homes should be dismissed because they did not exist at the time material to the case; however, the Jenks appealed with respect to the trial court’s judgment on setting aside the arbitration award against Harris. Harris argued that he was not subject to arbitration because he was not a party to the contract. The Supreme Court determined that under Alabama Rule of Appellate Procedure 4(d), Harris’ failure to appeal the trial court’s motion to compel within 42 days of the trial court’s original grant of the Jenks’ Motion to Compel Arbitration barred his post-award attempt to challenge that decision. Harris also argued that the arbitrator manifestly disregarded the law when he held Harris liable for the acts of his employer, MRD, and erred in holding him liable even though he allegedly had nothing to do with the construction of the house. Harris claimed that he was simply a laborer, rather than a president or administrator. The Court held that in order to vacate an arbitration award, the party seeking to vacate must establish that (1) the arbitrators know of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to that case. The Court held that Harris did not meet his “heavy burden” of establishing that the arbitrator manifestly disregarded the law in finding Harris personably liable. Therefore, the Court reversed the trial court’s order vacating the arbitration award against Harris and rendered a judgment in favor of the Jenks.

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ELEVENTH AMENDMENT IMMUNITY/QUALIFIED IMMUNITY
Ex parte Madison Cty. Bd. of Educ., No. 1061715 (Ala. Mar. 14, 2008)
OPINION BY: Stuart; Justice Stuart, who wrote the main opinion, also wrote a special concurrence; Justice Murdock wrote an opinion concurring in part and concurring in the result.
VOTE: 8-0-1

The Madison County Board of Education and Jim Nash, personnel director for the Board, filed a petition for a writ of mandamus asking the Alabama Supreme Court to direct the circuit court judge to enter summary judgment for them on the plaintiff’s federal § 1983 claim. The federal claim arose from the Board and Nash’s alleged insufficient response to the minor plaintiff’s claim she was raped by her physical education teacher during the fall of 2002, while she was in fifth grade. The teacher had been investigated for inappropriate conduct on five separate occasions during a sixteen year period before this alleged rape occurred. As the first step in its analysis, the Court held that whether the parties are immune from liability under § 1983 is determined by federal law. The Court reviewed the Board and Nash’s arguments for immunity separately. First, with respect to the County Board of Education, the Court relied on the Eleventh Circuit case of Stewart v. Baldwin County Board of Education, 908 F.2d 1499 (11th Cir. 1990), which held that a board of education is not an arm of the state for purposes of §1983, and therefore is not entitled to Eleventh Amendment immunity. Therefore, the Court denied the Board’s petition for the writ of mandamus. The Court then turned to Nash and his argument that he was entitled to summary judgment on the plaintiff’s § 1983 claim on qualified immunity grounds. “Government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court determined that the minor child had a constitutional right to “bodily integrity” – being safe from sexual abuse - and that the teacher’s actions may have violated this right. The Court then examined whether the minor plaintiff could establish that Nash – the personnel director - acted with “deliberate indifference” to the violation of her constitutional right to bodily integrity. In this analysis the Court again followed Eleventh Circuit law. In order to establish that Nash acted with “deliberate indifference,” the plaintiff must show that Nash (1) was objectively aware of a risk of serious harm; (2) recklessly disregarded the risk of harm; and (3) this conduct was more than merely negligent. The plaintiff argued that Nash had notice of the harm because of the multiple complaints against the teacher, but took no action to recommend termination. Because the plaintiff alleged Nash should be individually liable for a constitutional injury caused by someone else (the teacher), her claim rested on “supervisor liability”. Under § 1983, supervisor liability can attach when there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation – such as when there is a history of widespread abuse placing the supervisor on notice of the need to correct the alleged deprivation, and the supervisor fails to act. Relying on cases with similar fact patterns from other federal circuits, the Court held that because the teacher’s previous complaints were sporadic over a sixteen year period, Nash’s failure to act, while possibly negligent, did not amount to deliberate indifference. Therefore, the Court held that Nash established a clear legal right to the dismissal of the § 1983 claim against him on the basis of qualified immunity.

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JURISDICTION OF THE ALABAMA STATE BAR
Ex parte Alabama State Bar, No. 1061743 (Ala. Mar. 14, 2008)
OPINION BY: Bolin; Justice Lyons wrote a dissenting opinion in which Cobb, Smith and Murdock joined; Justice Murdock wrote a dissenting opinion.
VOTE: 5-4

The Alabama State Bar petitioned the Supreme Court of Alabama for a writ of mandamus directing the Board of Disciplinary Appeals of the Alabama State Bar to enter an order reversing its decision finding that the Disciplinary Board of the Alabama State Bar was divested of its jurisdiction to discipline Stuart Craig Dubose after Dubose assumed the bench as an incumbent circuit court judge for the First Judicial Circuit. The Supreme Court of Alabama denied the State Bar's petition for the writ. Dubose's proceeding before the Disciplinary Board arose out of the construction of a last will and testament and subsequent disputes related to the same, all of which occurred before he assumed office as a circuit judge. The Alabama State Bar received an anonymous complaint alleging that Dubose violated multiple sections of the Alabama Rules of Professional Conduct related to the will and subsequent disputes. Dubose agreed to plead guilty and the Bar and Dubose agreed on punishment, but the Alabama Supreme Court reversed, finding the punishment insufficient. As a result, Dubose assumed the office of circuit judge before the allegations of the anonymous complaint were resolved. Shortly after assuming office, Dubose moved the Disciplinary Board for a summary judgment on the complaint against him, arguing that the Board was divested of its jurisdiction to discipline him once he became a circuit judge. The Disciplinary Board denied Dubose's motion. On appeal, the Board of Disciplinary Appeals granted Dubose's petition for a writ of mandamus finding that the Disciplinary Board did not have jurisdiction to continue the disciplinary proceedings against Dubose once he became a circuit judge. A divided Supreme Court of Alabama agreed, determining that Rule 1(a)(3) of the Alabama Rules of Disciplinary Procedure controls Dubose's situation: "Former Judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the . . . Disciplinary Board of the Alabama State Bar for misconduct that occurred . . . before they became judges . . ." It is clear from this language that the State Bar does not currently have jurisdiction to discipline Dubose so long as he is serving as a circuit judge. However, at such time when Dubose becomes a "former judge" and is no longer serving in a judicial capacity, the State Bar would then regain jurisdiction to discipline Dubose for those acts of misconduct that occurred before he became a judge. Therefore, Dubose is entitled to have the disciplinary proceedings initiated against him by the State Bar stayed until such time as he is no longer serving in his capacity as circuit judge. Justice Lyons wrote a strong dissent, in which he urged the immediate amendment of Rule 1 of the Alabama Rules of Disciplinary Procedure “to protect the public from judges who were unethical lawyers and relieve this Court from the absurd consequences of its own rules.”

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PERSONAL JURISDICTION
J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, No. 1051732 (Ala. Mar. 14, 2008)
OPINION BY: Bolin, J.
VOTE: 5-0

Plaintiff J.C. Duke & Associates General Contractors, Inc. is a general contractor who sued a sub-contractor, Clements-West Construction, Inc. (“CWC”), and two of its officers, Terry Clements and Myrita West, for the alleged overpayment of certain funds related to the renovation of a high school in Mobile County. In the complaint, plaintiff alleged that CWC was an alter ego or mere instrumentality of the individual defendants. West, a resident of Florida, filed a motion to dismiss for lack of personal jurisdiction, which was granted by the trial court. West attached an affidavit to the motion stating that she was not a resident of Alabama, did not have contacts with Alabama, and had not traveled to Alabama for any purpose related to the allegations in the complaint. The Court acknowledged the general rule that personal jurisdiction over an individual corporate officer cannot be predicated upon jurisdiction over the corporation. However, the Court cited Ex parte Puccio, 923 So. 2d 1069, 1072 (Ala. 2005), for the proposition that if a corporation is the alter ego of an individual, the corporation’s actions may be imputed to that individual and used as a basis to establish personal jurisdiction over the individual. In this instance, West offered no evidence in her affidavit to counter plaintiff’s allegation in the complaint that CWC was an alter ego or mere instrumentality of the individual defendants. Therefore, the trial court erred in granting the motion to dismiss. The judgment was reversed and the cause was remanded for proceedings consistent with the opinion.

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FINAL JUDGMENT/APPEAL
Crutcher v. Williams, No. 1050883 (Ala. Mar. 14, 2008)
OPINION BY: Cobb
VOTE: 5-0

Defendant Colie E. Crutcher, Jr., M.D. (“Dr. Crutcher”), appealed the Sumter County Circuit Court’s purported judgment against him in a medical malpractice suit. Plaintiff Iola Williams alleged medical negligence and the tort of outrage against Dr. Crutcher. Her suit also included claims against the City of York Healthcare Authority d/b/a Hill Hospital ("Hill Hospital"), alleging medical negligence, the tort of outrage, negligence, and negligent hiring/supervision of Dr. Crutcher and other Hill Hospital staff. Hill Hospital filed a cross-claim, seeking indemnity from Dr. Crutcher in the event it was found liable. Before submitting the case to the jury, the trial court dismissed all of Williams' claims "except negligence," and instructed the jury on Williams' medical-negligence claims against Dr. Crutcher and Hill Hospital. Next, the trial court instructed the jury not to concern itself with Hill Hospital’s cross-claim during initial deliberations, as the cross-claim would be dependent on the verdict. The jury returned a verdict for Williams against both Dr. Crutcher and Hill Hospital. The trial court then submitted written questions to the jury to determine the extent to which liability was attributed to Dr. Crutcher solely in his capacity as an agent for Hill Hospital. The jury stated that it found Dr. Crutcher had acted as an agent of Hill Hospital, but that the verdict against the hospital was also due to the hospital’s own acts of negligence. However, the trial court’s order did not address Hill Hospital’s indemnity claim against Dr. Crutcher, nor did it direct entry of a final judgment certifying fewer than all claims, as mandated by Ala.R.Civ.P. 54(b). The post judgment motions filed by both Dr. Crutcher and Hill Hospital were denied. On appeal, the Supreme Court addressed the issue of whether the trial court’s Order was final, and therefore whether it had jurisdiction. Williams argued that the judgment on her behalf was final because the cross-claim became moot as a result of the jury finding Hill Hospital itself negligent, rather than attributing liability solely on the basis of Dr. Crutcher’s acts as an agent. The Court rejected this argument due to Williams’ failure to reference appropriate cites in the record, as required by Ala.R.App.P. 28. Likewise, Williams’ argument that the trial court made an error which should be corrected as set forth in Ala.R.Civ.P. 60(a) was rejected, as the error in this instance was not merely clerical in nature. Thus, the Court remanded the case as outlined in Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609-10 (Ala. 1984), requiring the trial court to either make the order a final judgment in accordance with Ala. R. Civ. P. 54(b), or adjudicate Hill Hospital's cross-claim against Dr. Crutcher.

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Opinion Issued by the Eleventh Circuit Court of Appeals

FLSA/INTERVENTION
Fox, et al v. Tyson Foods, Inc., No. 07-11852 (11th Cir. Mar. 12, 2008)
PANEL: Hull, Pryor and Moore (District Judge, sitting by designation)
OPINION BY: Pryor

Fox and ten other employees filed an action in 1999 against Tyson for compensation under the FLSA for time spent donning and doffing safety and sanitary gear. The district court denied Plaintiffs' motion for class certification, and in 2007, 161 former Tyson employees - whose claims had been dismissed without prejudice as a result of the denial of class certification - moved to intervene in the Fox action. The district court denied that motion, and petitioners filed an interlocutory appeal of the denial. Separately, the U.S. Department of Labor filed an action against Tyson relating to compensation for donning and doffing. Petitioners relied on three arguments on appeal: 1) the district court erred in finding that Tyson had no single, company-wide donning and doffing compensation policy, 2) the district court erred in denying intervention of right, and 3) the district court abused its discretion by denying permissive intervention. The Court of Appeals exercised pendent appellate jurisdiction to examine the first issue and found that the district court had not clearly erred because the record contained substantial evidence that compensation for donning and doffing varied both among and within Tyson plants. The court rejected Petitioners' second argument because any resolution of the Fox action, which involved no single company-wide policy, would either have no stare decisis effect on later action by the petitioners, or would have minimal persuasive effect. Therefore, the petitioners' ability to protect their interests would not be harmed in a way that would justify granting intervention of right. Additionally, the court rejected petitioners' attempt to argue that Armstrong mandates granting intervention of right as a means of preserving the tolling of the limitations period after the denial of class certification. Finally, the court found that the district court had not abused its discretion in denying permissive intervention because the Fox action had been filed several years earlier and Tyson would need at least an additional year to depose the 161 petitioners. Because the district court did not clearly err in denying intervention of right and did not clearly abuse its discretion in denying permissive intervention, the court dismissed the appeal for lack of jurisdiction.

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