author: MYERS, J.,

text:
    Kenneth Wayne DUNLAP, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00393-COA.
    Court of Appeals of Mississippi.
    Sept. 28, 2004.

      Eileen M. Maher, Natchez, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
    Before KING, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Kenneth Wayne Dunlap was convicted by a jury for the sale of cocaine, a schedule II controlled substance, in violation of Mississippi Code Annotated Section 41-29-139(a)(l) (Rev.2001). The Circuit Court of Adams County sentenced him, as a habitual offender, to serve thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Dunlap raises the following issue on appeal.

ISSUE PRESENTED

I. Did the circuit court err by denying Dunlap’s motion for a directed verdict and motion for a new trial because the jury verdict was against the overwhelming weight of the evidence?

STATEMENT OF FACTS

¶ 2. The record reflects that on January 16, 2002, Danny Britt, a confidential informant working with the Adams County Sheriffs Department, met officers at a pre-determined location to prepare for a drug purchase. Before Britt left to purchase drugs, he and his car were thoroughly searched for money and drugs by the police. Britt did not have any money or drugs at that time. Britt’s vehicle was equipped with video and audio recorders, and he was given money to purchase the controlled substances for police.

¶ 3. While driving through a neighborhood in Natchez, Mississippi, Britt spotted Dunlap whom he knew by last name only. According to Britt, he pulled his vehicle over and spoke with Dunlap. He asked Dunlap for $20 worth of crack cocaine. Dunlap asked Britt if he was associated with law enforcement. Britt said he was not. Dunlap told Britt to make the block. When Britt returned, he gave Dunlap $20 in exchange for the drugs. Shortly thereafter, Britt met police and gave them the drugs he purchased from Dunlap. The substance purchased from Dunlap was sent to the Mississippi State Crime Laboratory in Jackson and was determined to be cocaine.

¶ 4. On June 29, 2002, Dunlap was indicted by a grand jury as a habitual offender on one count of sale of a schedule II controlled substance, cocaine, within 1,500 feet of a school in violation of Mississippi Code Annotated Sections 41-29-139(a)(l) and 41-29-142 (Rev.2001). On November 20, 2002, Dunlap was convicted of sale of a controlled substance and sentenced as a habitual offender to serve thirty years in the custody of the Mississippi Department of Corrections. Dunlap motioned the circuit court for a new trial which was denied. Dunlap timely perfected his appeal to this Court.

LEGAL ANALYSIS

I. DID THE CIRCUIT COURT ERR BY DENYING DUNLAP’S MOTION FOR A DIRECTED VERDICT AND MOTION FOR A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 5. Dunlap raises an issue which encompasses two entirely different legal standards, a motion for directed verdict and a motion for a new trial. A motion for directed verdict challenges the sufficiency of the evidence. Grihim v. State, 760 So.2d 865, 866(¶ 6) (Miss.Ct.App.2000). However, a motion for a new trial falls within a lower standard of review than does a directed verdict. Whitten v. Cox, 799 So.2d 1, 12 (¶ 26) (Miss.2000). A new trial motion challenges the weight of the evidence. Id. Although Dunlap raises both standards on appeal, a review of the trial transcript reveals that Dunlap never motioned the trial court for a directed verdict. The only motions Dunlap made at trial were a motion for a mistrial and a motion to dismiss based on the State’s failure to disclose the past criminal history of Britt, the confidential informant. As such, we will consider only Dunlap’s post-trial motion for a new trial.

¶ 6. To discern whether the jury verdict is against the weight of the evidence, we must “accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Smith v. State, 800 So.2d 535, 537(¶ 4) (Miss.Ct.App.2001) (quoting Crawford v. State, 754 So.2d 1211, 1222 (¶ 30) (Miss.2000)). In order to mandate a new trial, the verdict must be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction ‘unconscionable injustice.’ ” Id. (quoting Crawford, 754 So.2d at 1222 (¶30)).

¶ 7. At trial, Dunlap’s primary defense was that he knew Britt was an informant from seeing him at the jail, so Dunlap knew not to sell drugs to Britt. Dunlap admitted at trial that he approached Britt’s car, as shown on the videotape, but he denies ever making the sale. On appeal, Dunlap raises numerous arguments to support his contention that the circuit court erred by denying his motion for a new trial. All of the arguments relate to the credibility of certain witnesses. Dunlap contends that Britt lied to him about working for law enforcement which directly affects Britt’s credibility. Both Dunlap and Britt testified that Dunlap asked Britt if he worked for law enforcement. Britt replied that he did not. Britt’s actions were not improper. In Tanner v. State, 566 So.2d 1246, 1249 (Miss.1990), our supreme court stated, “Law enforcement must be allowed to use undercover agents who lie about their identity and their interests. We accept that these must rely on confidential informants for needed information, and that the authorities may pay these informants under arrangements which may provide incentives for abuse.” (citing Williams v. State, 463 So.2d 1064, 1068-69 (Miss.1985)).

¶ 8. Dunlap also argues that Britt’s credibility was questioned when he could not specifically identify the location of the sale. This contention by Dunlap is without merit. The trial transcript reveals that Britt testified that the sale occurred in the Maryland Heights subdivision of Natchez around 3:00 or 4:00 p.m. on January 16, 2002. Dunlap argues that Britt was discredited by admitting that he had a prior criminal record for obscene phone calls and marijuana possession. The final issue Dunlap raises regarding Britt’s credibility is that Britt was paid by law enforcement to make drug sales. Britt testified that he was paid $120 for each sale he made.

¶ 9. Dunlap argues that Deputy Karl Pree was discredited by changing the date of the sale on the arrest warrant. Pree explained his oversight during his testimony. He stated that when he entered the information into his computer, he had the wrong date; however, his error was disclosed to the judge issuing the warrant and the matter was resolved. The warrant now shows the date of January 16, 2002, the date on which Pree and Britt testified the sale occurred. Dunlap testified that he approached Britt’s car on November 23, 2001, not January 16, 2002.

¶ 10. The credibility of witnesses is a question of fact for the jury. Cousar v. State, 855 So.2d 993, 997 (¶ 11) (Miss.2003). The jury members are charged with weighing the conflicting evidence of witnesses and are permitted to resolve the conflicts they hear in the testimony. Kingston v. State, 846 So.2d 1023, 1026 (¶ 11) (Miss.2003). They may choose to believe or disbelieve, and accept or reject testimony of any witness. Conflicting testimony creates a factual dispute for the jury’s resolution. Id.

¶ 11. The jury heard the testimony of Deputy Pree and Danny Britt who stated that on January 16, 2002, Dunlap sold cocaine to Britt. The videotape recorded from Britt’s car was introduced into evidence. Dunlap admitted that he approached Britt’s car, but denied the sale. Dunlap further admitted that was him on the videotape. The conflicting evidence was for the jury to resolve. Reviewing the above evidence and the appropriate standard of review for a new trial motion, we can find no error. In addition, we fail to see where an unconscionable injustice has occurred because of the verdict.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF SALE OF A SCHEDULE II CONTROLLED SUBSTANCE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Monroe M. THOMAS. (In re Monroe M. Thomas v. Lynda Flowers, as conservator of the estate of John M. Thomas).
    1002029.
    Supreme Court of Alabama.
    Feb. 8, 2002.
    Robert H. Smith of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for petitioner.
    Nancy S. Pitman, Dothan, for respondent.
   LYONS, Justice.

Monroe M. Thomas, the sole surviving sibling of John M. Thomas, removed to the Houston Circuit Court proceedings concerning the administration of the conserva-torship estate of John Thomas arising from the appointment of Lynda Flowers as conservator of John Thomas’s estate. John Thomas was incapacitated and suffering from a terminal illness. He died intestate one week after Flowers was appointed as conservator. (John Thomas will sometimes be referred to hereinafter as “the decedent.”)

Facts

On October 4, 2000, the Houston County Probate Court granted Flowers’s petition to serve as conservator of John Thomas’s estate. At that time John Thomas was an incapacitated person suffering from a terminal illness. On October 6, Flowers, in accordance with an order of the probate court, took into the conservatorship joint checking accounts and certificates of deposit totaling approximately $806,606 held with the right of survivorship in the names of John Thomas and Monroe Thomas. Flowers also claims to have seized $277,705.22 from a revocable trust established by the decedent; Monroe Thomas was the named beneficiary to whom the trust proceeds were payable on the decedent’s death. Flowers also took into the conservatorship certificates of deposit in the decedent’s name alone totaling $300,000. On the same day, October 6, 2000, Flowers wrote herself a check in the amount of $34,607.78 from the conservator-ship funds as an anticipated fee for serving as conservator.

The decedent died intestate on October 11, 2000, just one week after Flowers had been appointed conservator. Flowers then petitioned for final settlement of the conservatorship. Thomas objected to this final settlement on December 8, 2000, claiming ownership of the joint accounts and certificates of deposit by right of sur-vivorship. On January 11, 2001, after a hearing, the probate court terminated the conservatorship and ordered k final settlement. Two hours later, also on January 11, Thomas filed a motion in the probate court purporting to “transfer” the conservator-ship to the circuit court. On January 19, the probate court denied Thomas’s “motion to transfer” the conservatorship to the circuit court “for failure to properly file.”

On January 22, Thomas filed a sworn petition in the circuit court, seeking to have the conservatorship removed to the Houston Circuit Court. Monroe Thomas attached to his petition an affidavit in which he claimed that Flowers had taken into the conservatorship estate accounts jointly held by the decedent and Monroe Thomas, and that only a court with equity jurisdiction could properly dispose of the matter. While this removal petition was pending in the circuit court, the probate court entered an “Order of Final Termination of Conservatorship” on January 26. In this order, the probate pourt completed settlement of the conservatorship, ordered compensation for the decedent’s caretaker in the amount of $20,875, ordered compensation for Flowers as conservator in the amount of $36,000, and ordered compensation for Howard Green, Thomas’s guardian ad litem, in the amount of $1,008.75. On January 30, the circuit court entered an order removing the final settlement to the circuit court. On February 1, the probate court ordered Flowers to deliver all funds from the conservatorship to the probate court for immediate transfer into the intestate estate of the decedent. Flowers delivered these funds to the probate court, and the probate court transferred them to the decedent’s estate on February 5, 2001.

On February 6, after the conservator and the guardian ad litem objected to the removal of the conservatorship proceeding, the circuit court, without a hearing, rescinded the removal on the grounds of “untimely and improper filing.” On February 22, Thomas filed a Rule 59(e), Ala. R. Civ. P., motion in circuit court to alter, amend, or vacate the order rescinding the removal. The circuit court denied that motion on April 17. On May 29, Thomas appealed to this Court from the denial of his motion to alter, amend, or vacate the order rescinding the removal. We transferred the case to the Court of Civil Appeals. On March 9, 2001, Thomas appealed to the circuit court from the probate court’s January 26 order terminating the conservatorship.

Flowers filed in the Court of Civil Appeals a motion to dismiss, claiming that the appeal to that court was an appeal from the same final judgment of the probate court and concerned the same issues as Thomas’s appeal to the Houston Circuit Court from the probate court’s January 26 final termination of the conservatorship. That appeal was pending in the Houston Circuit Court when Thomas appealed to this Court. On July 10, 2001, on Flowers’s motion, the Court of Civil Appeals dismissed the appeal, without an opinion. Monroe v. Thomas, (No. 2000921) 841 So.2d 323 (Ala.Civ.App.2001) (table). We reverse the judgment of the Court of Civil Appeals and remand.

Discussion

Thomas, in an abundance of caution, appealed from the probate court’s final termination of the conservatorship after the circuit court had rescinded its order removing the conservatorship proceedings on grounds of untimeliness. An appeal is the proper method by which to seek review of a circuit court’s order rescinding its order of removal. Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942). Thomas concedes that should he be successful in removing the action, there would be no need for an appeal from the probate court. Moreover, such appeals from the probate court to the circuit court would be prohibited under this Court’s holding in Fuller v. Jackson, 519 So.2d 936, 938 (Ala.1988).

Further, if the removal was indeed timely, then subsequent proceedings in the probate court conflict with the circuit court’s jurisdiction. In Ex parte McLendon, 824 So.2d 700, 705 (Ala.2001), this Court held that where one has made a prima facie showing that he is entitled to removal of the administration of an estate, the probate court must transfer the cause to the circuit court. The appropriate method by which to challenge the removal is a motion filed in the circuit court to retransfer the cause to the probate court. See also Ex parte Nelson, 644 So.2d 1266, 1267 (Ala.1994), Jarrell v. Farmers Nat’l Bank of Opelika, 253 Ala. 119, 43 So.2d 116, 120 (1949), and Jacobs v. Murphy, 245 Ala. 260, 262, 16 So.2d 859, 862 (1944). The conservatorship can be before only one court at a time. Anthony v. Anthony, 221 Ala. 221, 128 So. 440, 441 (1930), McCraw v. Cooper, 215 Ala. 51, 52, 108 So. 850, 851 (1926).

The Court of Civil Appeals erred in dismissing Thomas’s appeal on the ground asserted in Flowers’s motion. The cause is remanded to the Court of Civil Appeals for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.


author: LYONS, Justice. MOORE, Chief Justice

text:
    SEARS TERMITE & PEST CONTROL, INC. v. Abby ROBINSON.
    1020304.
    Supreme Court of Alabama.
    May 23, 2003.
    M. Pemble Delashmet and J. Robert Turnipseed of Bowron, Latta & Wasden, P.C., Mobile, for appellant.
    David M. Cowan of Mann, Cowan & Potter, P.C., Birmingham, for appellee.
   LYONS, Justice.

Sears Termite & Pest Control, Inc. (“Sears Termite”), appeals from the trial court’s order denying its motion to compel arbitration. We reverse and remand.

On May 31, 1997, after a sales presentation by Kenneth Davis and Larry Brown, Abby Robinson agreed to purchase termite-inspection and treatment services from Sears Termite for her home in Tuskegee. Robinson signed a contract entitled a “Subterranean Termite Control Residential Customer Agreement” (“the service contract”). Robinson says that during their sales presentation, Davis and Brown represented to her that Sears Termite would perform an initial termite inspection and treatment; that Sears Termite would re-treat and repair her home if it were damaged by termites; that her home would be a “termite free island” if the treatment was performed; that the treatment would act as a “fortress against termites”; and that the service contract was like insurance against termite damage. Pursuant to the service contract, Sears Termite’s technicians were to perform annual inspections of Robinson’s home using products that would prevent termite infestations.

The service contract provided, in pertinent part, as follows:

“COVERAGE: For a period of one year, beginning on the Effective Date shown above, Sears Termite & Pest Control (‘Sears’) agrees to provide the necessary service and treatment for the control of Subterranean Termites for the Covered Premises for the sum of $2140.00_ In addition, Sears warrants that it will perform any further retreatment it finds necessary, free of charge for the initial and renewal terms of this Agreement subject to the Conditions of Coverage found on the reverse side. This Agreement covers Subterranean Termites only.
“REPAIR: Subject to the Conditions of Coverage found on the reverse side, if Subterranean termite damage occurs in or on the Covered Premises, or its contents, while this Agreement is in effect, then Sears will be responsible for the reasonable cost of repairs, as determined by Sears. No payment will be made by Sears unless Sears has been given the opportunity to inspect the Covered Premises and the area requiring repair prior to the start of any repairs.
“REINSPECTION: So long as this Agreement is in effect, Sears will reinspect the Covered Premises in conjunction with renewal or upon reasonable request of owner.”

The “Conditions of Coverage” referenced in the paragraphs quoted above were printed on the reverse side of the service contract. Those conditions stated, in pertinent part, as follows:

“5. The liability of Sears for repairs under this Agreement shall not exceed, in the aggregate and over the entire term of this Agreement[,] including any extensions and renewals, the sum of $250,000. In no event shall Sears be responsible for repairs or redecoration in areas not directly affected by or in the immediate vicinity of termite damage or for indirect expenses or consequential damages relating to the existence of termites or termite damage.
“10. The Customer and Sears agree that any controversy or claim between them arising out of or relating to the interpretation, performance or breach of any provision of this agreement shall be settled exclusively by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. In no event shall either party be liable to the other for indirect, special or consequential damages or loss of anticipated profits.”

In June 2001, Robinson discovered that her home was infested with and had been damaged by termites. After she discovered the damage, she filed a claim with Sears Termite to have the damage repaired. She says, however, that Sears Termite never responded to her claim and never repaired the damage. Robinson sued Sears Termite and Sears Termite employees Davis, Brown, and Bobby Rivers. She alleged breach of contract; bad-faith refusal to pay her claim; negligent, reckless, or wanton misrepresentations; negligent and/or wanton failure to properly treat and/or inspect her home; intentional or reckless fraud; and suppression.

Sears Termite moved to compel arbitration of Robinson’s claims. In support of its motion, Sears Termite filed the affidavit of Scott Gilman, its vice president of operations, who authenticated a copy of the service contract between Robinson and Sears Termite, and the affidavit of Tommy D. Brewer, its director of finance, who provided information about the interstate nature of the operations of Sears Termite. Robinson filed an objection to Sears Termite’s motion, but did not offer any evidence. In her objection, Robinson alleged that Sears Termite failed to demonstrate that the transaction made the basis of her complaint had a substantial effect upon interstate commerce. In her brief to this Court, however, Robinson says that at the time she filed her objection, she had not received a copy of Brewer’s affidavit, and she now acknowledges that the transaction did substantially affect interstate commerce. Robinson also argued that the arbitration provision contained in paragraph 10 of the “Conditions of Coverage” was void because it disclaimed liability for “indirect, special or consequential damages or loss of anticipated profits,” and, she argued, it was therefore contrary to public policy and was unconscionable. Finally, Robinson points out that her signature is on the front page of the service contract and the arbitration agreement is on the reverse; she says: “While the front page of the agreement does mention the reverse side of the agreement, it does not indicate that the provisions on the back side of the agreement are to be included in the agreement Ms. Robinson actually signed.”

The trial court denied Sears Termite’s motion to compel arbitration. The trial court’s order states:

“Defendant[ ] in the above-styled cause [has] filed a motion to compel arbitration. A part of the plaintiffs objection to arbitration concerns the limitation in the arbitration provision of the contract which prohibits the imposition of damages for mental anguish or other consequential damages by the arbitrator. But for that limitation [of consequential damages] it would appear that the arbitration agreement should be enforceable. However, since the agreement prospectively eliminates an element of damage[s] which may or may not arise during the course of the contract the court is of the opinion that the arbitration agreement is unconscionable and is therefore unenforceable.”

(Emphasis added.) Sears Termite appealed from that order.

Sears Termite argues that the trial court erred when it concluded that the entire arbitration provision was unconscionable solely on the basis of the language that precluded either party’s recovery for “indirect, special or consequential damages or loss of anticipated profits.” Sears Termite acknowledges that this Court has held that a provision in an arbitration agreement prohibiting an arbitrator from awarding punitive damages is void because it violates the public policy of this State. Ex parte Thicklin, 824 So.2d 723 (Ala.2002); Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237 (Ala.2001), cert. denied, 535 U.S. 986, 122 S.Ct. 1536, 152 L.Ed.2d 464 (2002). Sears Termite says that the service contract at issue here does not mention punitive damages, and furthermore, it argues, this Court has held that the entity with the authority to express public policy is the Legislature, not the judiciary. Sears Termite maintains that a contractual prohibition against awarding punitive damages violates a specific statute (§ 6-11-20, Ala.Code 1975), but that the Legislature has not enacted a statute limiting or disclaiming consequential or indirect damages.

Sears Termite also argues that in the context of consumer goods the Legislature has determined that disclaimers of consequential and indirect damages are valid and enforceable. It relies for that argument upon this Court’s recent decision in Leonard v. Terminix Int’l Co., 854 So.2d 529 (Ala.2002), in which we stated that “[i]n Alabama, limitations on damages that may be recovered are not, per se, against public policy.” 854 So.2d at 534. Because Leonard involved an identical disclaimer of consequential damages, Sears Termite argues that Leonard is dispositive of this case.

Robinson argues that this Court erred in looking to the provisions of Alabama’s Uniform Commercial Code (“UCC”) in deciding Leonard. Robinson relies upon § 2-28-10.1, a statute contained in the portion of the Code of Alabama 1975 that regulates entomological work. Section 2-28-10.1(a) provides:

“The commissioner [of the Department of Agriculture and Industries] with the approval of the State Board of Agriculture and Industries may promulgate rules and regulations which require any applicant for a permit to perform professional work or services to provide evidence of his ability to properly indemnify persons damaged in any manner by the use or application of pesticides. The amount and form of indemnification required shall be determined by rules and regulations promulgated by the commissioner with the approval of the State Board of Agriculture and Industries.”

Robinson argues in her brief to this Court that the limitation on damages in the arbitration provision is directly at odds with the foregoing statute, and that § 2-28-10.1 demonstrates the Legislature’s “desire ... that persons who are damaged in any way be fully and properly indemnified for damages caused by companies providing termite service.” In response, Sears Termite argues in its brief to this Court that § 2-28-10.1 pertains only to the commissioner’s authority to promulgate regulations requiring a company providing termite eradication services to provide evidence indicating that it possesses the financial resources to cover damage claims made by its customers, and that “this provision does not suggest a broad, public policy statement of the legislature that mandates all customers be able to sue termite companies for unlimited mental anguish or other consequential damages.”

In Ex parte Thicklin, 824 So.2d 723 (Ala.2002), this Court addressed its authority with relation to the enforceability of contractual provisions. In Thicklin we stated:

“This Court has limited authority to deal with the enforceability of contract terms. It can nullify or reform a contract on the basis of fraud; it can also nullify or reform a contract to eliminate any unconscionable provisions or terms that violate public policy. As previously noted, a contract provision that violates public policy can be subsumed under the theory of substantive unconscionability. See Ex parte Foster [, 758 So.2d 516 (Ala.1999) ]. However, § 43 of the Constitution of Alabama of 1901 mandates the separation of judicial power from legislative power and condemns the usurpation of the power of one branch of government by the other. The authority to declare public policy is reserved to the Legislature, subject to limits imposed by the Constitution. Rogers v. City of Mobile, 277 Ala. 261, 281, 169 So.2d 282, 302 (1964). We must therefore weigh the claim that a contractual provision immunizing a party from liability for punitive damages is unconscionable in light of the public policy of this State as expressed by the Legislature or by its people in the Constitution.”

824 So.2d at 732. We weigh Robinson’s claim that the contractual provision restricting the recovery of consequential damages is unconscionable against the same backdrop of the public policy of the State as expressed by the Legislature or by the people in the Constitution and in light of caselaw setting forth the parameters for finding a contract unconscionable.

Turning to Robinson’s contention that the Legislature, in enacting § 2-28-10.1, intended that an individual or an entity that applies pesticides be liable for the full measure of damages caused by those pesticides, we find that the statute does not support such a conclusion. Section 2-28-10.1 provides that the Commissioner of the Department of Agriculture and Industries “may” promulgate rules and regulations requiring an applicant for a permit to apply pesticides to demonstrate its ability to indemnify persons damaged in any manner by the use or application of pesticides. The statute goes on to state that the amount of indemnification required “shall be determined by rules and regulations.” Presumably, the commissioner may, but is not required to, promulgate rules requiring demonstration of a pesticide applicator’s financial ability and, if the commissioner takes such action, the commissioner must determine the amount of indemnification required. Robinson does not provide us with a citation to the Alabama Administrative Code that would inform us whether the commissioner has taken such action, and our independent research has failed to yield any indication that the commissioner has taken such action. However, for all that appears, should the commissioner elect to promulgate such rules, it would be within the commissioner’s authority to fix an amount substantially less than the $250,000 maximum established by Sears Termite in the service contract for other than consequential damages. In light of the range of discretion afforded the commissioner, we cannot conclude from the statute that the Legislature has announced a public policy in favor of providing a remedy for consequential damages for injuries sustained as a result of the application of pesticides.

We note that other jurisdictions have declined to apply the provisions of the UCC to contracts involving the application of pesticides. See Insul-Mark Midwest, Inc. v. Modern Materials, Inc., 612 N.E.2d 550, 556 (Ind.1993) (“Similarly, courts in various jurisdictions have held that arrangements for application of pesticides and herbicides are predominantly service transactions. Abelman v. Velsicol Chemical Corp., 15 U.C.C. Rep. Serv.2d (Callaghan) 93 ... (Md.Cir.Ct.1991); Grossman v. Aerial Farm Serv., 384 N.W.2d 488 (Minn.Ct.App.1986); Missouri Farmers Ass’n v. McBee, 787 S.W.2d 756 (Mo.Ct.App.1990).”). Therefore, while the provisions of the UCC may not be directly applicable to the transaction before us, in deciding this case we find it noteworthy that the Legislature has endorsed the validity of limitations on the recovery of consequential damages so long as they are not unconscionable. See § 7-2-719(3), Ala. Code 1975. While Robinson has a right to a remedy guaranteed by Art. I, § 13, Ala. Const, of 1901, we have not been furnished with any authority suggesting that a limitation on the right to recover consequential damages violates Art. I, § 13. That § 7-2-719(3), with its safety valve in the form of a remedy if the limitation is unconscionable, and Art. I, § 13, have coexisted peacefully for almost 40 years stands as strong, albeit mute, evidence of the lack of any constitutional infirmity of that provision.

We are therefore left only with the question whether the $250,000 limitation in the service contract on damages, in conjunction with the prohibition on the recovery for consequential damages, is unconscionable. In Harold Allen’s Mobile Home Factory Outlet, Inc. v. Butler, 825 So.2d 779 (Ala.2002), we addressed unconscionability as follows:

“In Layne v. Gamer, 612 So.2d 404, 408 (Ala.1992), this Court stated:
“ “While it is true that a court may rescind a contract, or a portion of a contract, for unconscionability, “[r]e-scission of a contract for unconsciona-bility is an extraordinary remedy usually reserved for the protection of the unsophisticated and uneducated.” Marshall v. Mercury Finance Co., 550 So.2d 1026, 1028 (Ala.Civ.App.1989), quoting E & W Building Material Co. v. American Savings & Loan Ass’n, 648 F.Supp. 289, 291 (M.D.Ala.1986); and see Wilson v. World Omni Leasing, Inc., 540 So.2d 713 (Ala.1989).
“ ‘An unconscionable contract or contractual provision is defined as a contract or provision “such as no man in his sense and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Lloyd v. Service Corp. of Alabama, 453 So.2d 735, 739 (Ala.1984), quoting Hume v. United States, 132 U.S. 406, 410, 10 S.Ct. 134, 136, 33 L.Ed. 393 (1889).’ “

825 So.2d at 783 (emphasis added in Harold Allen’s Mobile Home Outlet).

The contractual provision in the service contract here caps recovery for damage to a residence as a result of pesticide treatment for termites at $250,000, excluding liability for “indirect expenses or consequential damages relating to the existence of termites or termite damage.” In light of the foregoing standard, especially the definition of an unconscionable provision as one that no man in his sense and not under delusion would make and that no honest and fair man would accept, we simply cannot conclude that the limitation on recoverable damages in the service contract is unconscionable.

Robinson’s final argument asserts that the conditions of coverage on the reverse side of the service contract, where the contractual limitation of recoverable damages is found, are not binding on her. Robinson relies upon Thermo-Sav, Inc. v. Bozeman, 782 So.2d 241, 243 (Ala.2000), in which we held that “the ‘Governing Lav^ provision, which contained the arbitration clause, was not a part of the contract because there was no indication on the front of the contract that additional provisions appeared on the back of the contract and that those additional provisions were a part of the contract.” In Thermo-Sav we noted that “[t]he front of the contract contains no language indicating that additional terms appear on the reverse side of the contract or directing the contracting party’s attention to those additional terms.” 782 So.2d at 243. Thermo-Sav is distinguishable, because the conditions of coverage that appear on the reverse side of Robinson’s service contract are referred to three times on the front page.

We therefore reverse the order of the trial court denying arbitration and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I must dissent from the majority’s decision to reverse the trial court’s order denying the motion to compel arbitration in this case. The question addressed in the majority opinion — whether an arbitration provision is void for disclaiming indirect and consequential damages — is a secondary issue that need not be reached in this case. Congress has not declared the regulation of pest control companies to be an activity that “involves [interstate] commerce.” 9 U.S.C. § 2. The Federal Arbitration Act does not negate the provisions of § 8-1-41(3), Ala.Code 1975, which prohibits the specific enforcement of predispute arbitration agreements in contracts. See my dissent in Selma Medical Center v. Fontenot, 824 So.2d 668, 676 (Ala.2002) (Moore, C.J., dissenting). We are entitled to “affirm the trial court if its ruling is correct on any valid ground or rationale, even one rejected or not considered by the trial court.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999). Thus, in my view, the trial court’s denial of the defendant’s motion to compel arbitration should be affirmed because federal law is not controlling in this case.

      . According to the trial court’s docket sheet, Bobby Rivers was served with the complaint, but he has not entered an appearance in the case. Larry Brown and Kenneth Davis have never been served. The employees are not parties to this appeal.

      . Robinson argues initially that this Court does not have jurisdiction to hear the appeal because, she says, the appeal is from an interlocutory order. An order denying a motion to compel arbitration has long been an exception to the general rule that interlocutory orders are not appealable. See, e.g., Ex parte Smith, 736 So.2d 604 (Ala.1999). As of October 1, 2001, ''[a]n order granting or denying a motion to compel arbitration is appealable as a matter of right.” Rule 4(d), Ala. R.App. P.

      . In relying on Leonard, Sears Termite notes in its brief to this Court that the defendant in Leonard "concede[d] that the contract in [that] case says nothing of punitive damages.” 854 So.2d at 534. In its brief to this Court, Sears Termite states that it “has made the same concession to the trial court that this disclaimer of consequential [damages] has no bearing on punitive damages.”

      . "Entomological work” is defined as "[r]e-ceiving fees for advice or prescriptions for the control or eradication of any insect pest or rodent or for actual spraying, dusting, fumigating, or any other methods used for the control or eradication of any insect pest or rodent.” § 2-28-1(1).


author: PER CURIAM. SEE, Justice

text:
    SPRINGHILL HOSPITALS, INC., and Randall Quinley v. Teresa DIXON.
    1011120.
    Supreme Court of Alabama.
    June 27, 2003.
    D. Scott Wright, Philip H. Partridge, and Thomas H. Nolan, Jr., of Brown, Hud-gens, P.C., Mobile, for appellants.
    J. Patrick Courtney III, Mobile; and Sidney W. Jackson III, Mobile, for appel-lee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1), (a)(2)(B), and (a)(2)(F), Ala. R.App. P.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

SEE, BROWN, and STUART, JJ., dissent.

SEE, Justice

(dissenting).

I respectfully dissent from the majority’s affirmance of the trial court’s judgment against Springhill Hospitals, Inc., and Randall Quinley (hereinafter referred to collectively as “Springhill”) under the Alabama Medical Liability Act, § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”). The trial court entered its judgment after finding, in part, that the two expert witnesses who testified on Teresa Dixon’s behalf were “similarly situated health care providers” as that term is defined in the AMLA and, therefore, were qualified to provide expert-opinion testimony. Based on the standard of care allegedly breached in this case and the work experience of the two expert witnesses, I disagree.

I.

On June 11, 1998, Teresa Dixon was admitted to Springhill Memorial Hospital, a hospital owned by Springhill Hospitals, Inc., for a lumbar laminectomy — the removal of a herniated disk. Dixon underwent surgery based on the recommendation of her orthopedic surgeon, Dr. Suanne White-Spunner. Dixon had injured her back while working as a registered nurse, and she had been unable to work. Dixon testified that Dr. White-Spunner told her there was a 90-percent probability that the surgery would allow her to return to her nursing job.

During Dixon’s surgery, Dr. White-Spunner encountered excessive bleeding at the incision site and, in response, asked Quinley, the circulating surgical nurse, to obtain some epinephrine to help to control the bleeding. Dr. White-Spunner told Quinley that she did not know the proper dose and directed him to find out what the proper dose would be. Quinley never checked with any of the hospital resources available to him. He simply returned with a bottle of epinephrine in a 1:1,000 concentration and asked Dr. White-Spunner whether that dose was what she wanted. Quinley then diluted the concentration containing epinephrine with an equal amount of saline solution.

Dr. White-Spunner injected the epinephrine solution near the incision site. Upon receiving the dose of epinephrine, Dixon went into cardiac arrest; the operating-room staff then used a defibrillator to return Dixon’s heart to a normal rhythm. As a result of those complications, Dr. White-Spunner could not complete the surgery; she had to perform an emergency closure of Dixon’s back. Dixon has not undergone back surgery or returned to her nursing job since this incident.

Dixon brought a medical-malpractice action against Springhill Hospitals and Quinley, alleging that Quinley had negligently and/or wantonly administered an overdose of epinephrine. The AMLA required that Dixon present expert-opinion evidence regarding the standard of care Quinley allegedly breached in administering the epinephrine during the June 11, 1998, surgery. Dixon, in her capacity as a registered nurse, and Dick Navarro, R.N., served as Dixon’s expert witnesses during the jury trial. Dixon and Navarro each testified that a nurse, no matter what the hospital setting, must administer drugs to patients in accordance with what is known in the practice of nursing as the “five Rs” — right patient, right drug, right dose, right time, and right route.

The jury returned a verdict for Dixon, awarding her $175,000 in past compensatory damages, $62,000 in future compénsate-ry damages, and $845,000 in punitive damages. Subsequently, Springhill moved for a judgment as a matter of law, or, alternatively, for a new trial or a remittitur, arguing, in part, that the trial court erred in permitting the expert testimony of Dixon and Navarro because, it said, they were not “similarly situated health care providers” within the meaning of the AMLA. The trial court denied the motion.

II.

On appeal, Springhill argues that the trial court erred in allowing Dixon and Navarro to provide expert testimony as to the standard of care allegedly breached by Quinley. Springhill argues that Dixon and Navarro were not qualified to provide expert testimony because, it says, they are not “similarly situated health care providers.” “[Wjhether a witness is qualified to render expert testimony is a question traditionally left to the sound discretion of the trial court.” Bell v. Hart, 516 So.2d 562, 569 (Ala.1987). The trial court’s determination regarding the qualifications of a proffered expert witness will not be disturbed absent a showing that the trial court has exceeded its discretion. Id.

“A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he is a ‘similarly situated health care provider ....’” § 6-5-548(e), Ala.Code 1975. In determining whether an expert is a “similarly situated health care provider,” the trial court must answer the following three questions:

“(1) What is the standard of care alleged to have been breached? (2) Is the defendant ‘health care provider’ a specialist in the discipline or school of practice of the standard of care that the court has previously determined is alleged to have been breached? (3) Does the proffered expert qualify as a ‘similarly situated health care provider’ under the subsection determined in the second step to apply?”

Medlin v. Crosby, 583 So.2d 1290, 1293 (Ala.1991).

Dixon alleged that Quinley breached the applicable standard of care when he retrieved and prepared a potentially fatal dose of epinephrine for Dr. White-Spun-ner’s use during Dixon’s back surgery. Therefore, the standard of care alleged to have been breached is the standard of care that a nurse must follow when preparing a drug for a doctor’s use during surgery.

The next question is whether Quinley is a specialist in the discipline or school of practice covering the alleged breach. Medlin, 583 So.2d at 1294. The alleged breach in this case occurred while Quinley was practicing as a surgical nurse. Therefore, in this case, the discipline or school of practice in which the alleged breach occurred was surgical, or operating-room, nursing.

The facts do not indicate that Quinley is a specialist in the practice of surgical nursing. In order to be considered a specialist, the health-care provider must “(1) [be] board certified] as a specialist in the spe-ciality at issue; (2) [be] train[ed] and experience^] in the speciality at issue; and (3) hold[ ] himself out as a specialist in the speciality at issue.” Medlin, 583 So.2d at 1296 (emphasis added). Because he does not hold surgical-nursing or similar certification recognized by the American Board of Nursing Specialties, Quinley is not a specialist in surgical nursing.

The only question remaining, therefore, is whether Dixon and Navarro are “similarly situated” to Quinley. Because Quin-ley is not a specialist in surgical nursing, § 6 — 5—548(b), Ala.Code 1975, applies. That section defines a “similarly situated health care provider” as one who:

“(1) Is licensed by the appropriate regulatory board or agency of this or some other state; and
“(2) Is trained and experienced in the same discipline or school of practice; and
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.”

It is undisputed that Dixon and Navarro are registered nurses with nursing licenses issued by the State of Alabama. Neither Dixon nor Navarro, however, has surgical-nursing experience. Although both Dixon and Navarro’s work experience is varied, neither one has ever worked in a surgical setting or in an operating room as a circulating nurse. Because they are not experienced in surgical nursing, the discipline or school of practice in which the alleged breach occurred, neither Dixon nor Navarro may be considered similarly situated to Quinley. Therefore, neither Dixon nor Navarro was qualified to provide expert testimony as to the applicable standard of care Quinley is alleged to have breached.

III.

Because Dixon and Navarro are not experienced in the same discipline or school of practice in which the alleged breach occurred, and, therefore, were not qualified to give expert testimony as to the applicable standard of care in this case, I would reverse the trial court’s order denying Springhill’s motion for a new trial. See Mihelic v. Sullivan, 686 So.2d 1130 (Ala.1996) (defendant was entitled to a new trial because the trial court erred in permitting a medical expert to testify to matters beyond her qualifications).

      . Springhill made a motion in limine to strike Dixon's and Navarro's proposed expert testimony. The trial court denied the motion. Springhill renewed its objection at trial, thereby preserving the issue for appellate review.

      . Apart from Dixon’s and Navarro's testimony, the record does not contain any qualified testimony that the five Rs apply to operating-room nurses.

      . Springhill's witness, Susan Alford, R.N., called during Dixon's case-in-chief, did offer qualified testimony of another standard of care applicable to Quinley that Quinley may have violated.


text:
    EAST ALABAMA BEHAVIORAL MEDICINE, P.C. v. Phillip CHANCEY and Beth Chancey.
    1020828.
    Supreme Court of Alabama.
    Oct. 10, 2003.
    Rehearing Denied Dec. 12, 2003.

      Michael K. Wright, George E. Newton II, and Benjamin D. McAninch of Starnes & Atchison, LLP, Birmingham; and John Peter Crook McCall of Starnes & Atchi-son, LLP, Mobile, for appellant.
    Randy Myers of Richard Jordan, Randy Myers, and Ben Locklar, P.C., Montgomery; and Frank H. Hawthorne, Jr., of Hawthorne & Hawthorne, LLC, Montgomery, for appellees.
   LYONS, Justice.

East Alabama Behavioral Medicine, P.C. (“East Alabama”), appeals from an order denying its postjudgment motion for a judgment as a matter of law (“JML”), or, alternatively, for a new trial or a remitti-tur. We reverse and render a judgment for East Alabama.

In August 1996, Phillip Chancey sought treatment from East Alabama for depression, anxiety, and panic attacks. Dr. Kimberly Whitchard was Phillip’s treating psychologist. On December 23, 1996, Whitchard and Phillip met for drinks at a local restaurant following a therapy session. While at the restaurant, the two expressed romantic feelings for each other. According to East Alabama, Whitch-ard informed Phillip that same night that if she and Phillip engaged in a personal relationship she would need to terminate their psychologist-patient relationship. The Chanceys assert that the psychologist-patient relationship between Phillip and Whitchard did not end until December 26, 1996. Nonetheless, Phillip never objected to the termination of the professional relationship, and it is undisputed that that relationship ended no later than December 26, 1996.

On December 28, 1996, Phillip sent messages to the pager Whitchard used in conjunction with her work at East Alabama, expressing his love for her. Somehow, the messages were faxed to East Alabama on December 30. Upon receiving these messages, the administrators of East Alabama, Ed Sweeney and Joe Beacham, learned about Phillip’s infatuation with Whitchard and confronted Whitchard about the matter. Sweeney and Beacham instructed Whitchard to end all contact, both personal and professional, with Phillip. Furthermore, Sweeney and Beacham prepared a letter for Whitchard to send to Phillip informing him that Whitchard would no longer be his psychologist and that, if he wished to continue treatment at East Alabama, Phillip’s case would be assigned to Eddie Lancaster. Phillip declined further treatment and never returned to East Alabama. Whitchard testified at trial that Sweeney and Beacham told her during her meeting with them on December 30, 1996, to change Phillip’s medical records to make it appear as though he had expressed feelings for her during a treatment session and that she had then discussed the limits of a therapeutic relationship with him. Sweeney and Beacham conceded that Phillip’s medical records had been altered, but denied that they instructed Whitchard to do so.

By mid-January 1997, approximately three weeks after the termination of their professional relationship, Phillip and Whitchard were sexually involved. A friend of Beth Chancey, Phillip’s wife, saw Whitchard and Phillip together, and she told Beth. Beth then asked Phillip to leave the marital home. At that time, Whitch-ard, who was also married, told her husband that she was leaving him for Phillip. On January 18, 1997, Whitchard met with Beacham and Sweeney at Beacham’s home to tell them that she and Phillip were still involved in a personal relationship and that she was resigning from her position at East Alabama. Shortly after Whitchard’s resignation, Phillip ended the affair and sought treatment from another physician. In March 1997, after the affair had ended, Whitchard returned to East Alabama and requested that she be rehired. Sweeney and Beacham agreed to rehire Whitchard under the condition that she undergo a psychiatric evaluation and, if necessary, psychiatric treatment. Also, if she was rehired, Whitchard would be restricted to treating only female patients.

Phillip and Beth Chancey sued Whitch-ard and East Alabama alleging negligent or wanton hiring, training, and supervision; negligent or wanton counseling; negligent or wanton “abandonment”; and negligence or wantonness per se; Beth Chancey alleged loss of consortium. The first amended complaint reasserted the original causes of action. East Alabama filed a motion for a summary judgment. The Chanceys, in response to East Alabama’s motion for a summary judgment, conceded that the entire basis for East Alabama’s liability was the doctrine of re-spondeat superior and the agency relationship that existed between Whitchard and East Alabama. The trial court granted East Alabama’s motion for a summary judgment as to the claims asserting negligent hiring and supervision. The Chan-ceys then filed a second amended complaint alleging the alteration or destruction of medical records.

The Chanceys entered into a pro tanto settlement with Whitchard, settling all their claims against her for $5,000. The case against East Alabama on the remaining claims against it proceeded to a jury trial. At the close of the Chanceys’ case, East Alabama moved for a preverdict JML, which the trial court denied. The jury returned a verdict in favor of the Chanceys awarding them $1 each in compensatory damages and a total of $495,000 in punitive damages. East Alabama then filed a postjudgment motion for a JML, or, alternatively, for a new trial, or a remitti-tur, primarily asserting that the issues of vicarious liability, ratification, and abandonment should not have been submitted to the jury because, as a matter of law, East Alabama cannot be held liable for Whitchard’s tortious conduct. The trial court denied the motion. East Alabama contends that the trial court erred in refusing to grant its motions for a JML. We agree.

I. Vicarious Liability Under the Doctrine of Respondeat Superior

The law in Alabama is well settled that an employer is not liable for the intentional acts of its employee unless the acts were committed within the scope of the employee’s employment or were done to further the interests of the employer. Joyner v. AAA Cooper Transp., 477 So.2d 364, 365 (Ala.1985). East Alabama argues that the trial court should not have submitted the issue of vicarious liability to the jury because, as a matter of law, Whitch-ard’s actions were beyond her scope of employment. Further, East Alabama argues that under Alabama law, sexual misconduct by an employee is never vicariously attributable to the employer. The Chanceys contend that East Alabama is liable under the theory of respondeat superior because, they say, Whitchard failed to inform Phillip about “transference phenomenon” when he first expressed romantic feelings for Whitchard. During her trial testimony, Whitchard defined “transference” as “a social construct that describes when a patient has feelings based on past, family, social, etc., etc., experiences that they project on a therapist.” The Chanceys argue that the duty to inform Phillip of the existence of such a phenomenon was within the scope of Whitchard’s employment.

In Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970), this Court articulated the test by which to determine whether an employer should by held liable for the actions of an employee:

‘The test is the service in which the employee is engaged. The rule which has been approved for determining whether certain conduct of an employee is within the line and scope of his employment is substantially that if an employee is engaged to perform a certain service, whatever he does to that end, or in furtherance of the employment, is deemed by law to be an act done within the scope of the employment. ...’
“The conduct of the employee, to come within the rule, must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment.”

285 Ala. at 401, 232 So.2d at 642-43 (citations omitted).

This Court discussed this test and how it relates to an employee’s sexual misconduct in Doe v. Swift, 570 So.2d 1209 (Ala.1990). The plaintiff in Swift had been sexually assaulted by a psychologist employed by a State-run hospital. Subsequently, the plaintiff won a judgment against the psychologist in a federal court. The State refused to pay the judgment out of the State Employees’ Liability Trust Fund because it believed that the psychologist’s actions were outside of the scope of his employment. The plaintiff filed an action in state court, seeking to compel the payment of the judgment from the Fund. The trial court entered a summary judgment for the defendants, and the plaintiff appealed. This Court affirmed the summary judgment, holding that the sexual misconduct was wholly outside of the scope of the employment because it was not done in furtherance of the employer’s business, but rather it was done for the psychologist’s personal gratification. Swift, 570 So.2d at 1213.

The instant case is similar to Swift. Whitchard’s affair with Phillip was not a function of her employment at East Alabama. Furthermore, East Alabama had nothing to gain from the affair. It is undisputed that East Alabama instructed Whitchard to end her relationship with Phillip immediately upon Sweeney and Beacham’s accidental discovery of Phillip’s infatuation with Whitchard.

The Chanceys presented evidence acknowledging that Whitchard’s actions were personal to her and were not condoned by her profession. The Chanceys’ expert witness, Dr. Barry Burkhardt, testified that “[Whitchard] didn’t take care of [Phillip]. In fact, what she did instead was form a personal relationship with him, and in the context of that personal relationship, gratified [her] needs at the expense of Mr. Chancey’s well-being.” Whitchard’s affair with Phillip was not undertaken to further East Alabama’s business of providing psychiatric treatment to its patients; rather, it was done to satisfy Whitchard’s personal needs. Under Alabama law, an employer is not liable under the doctrine of respon-deat superior when the employee acts for his or her own personal gain and not in furtherance of the employer’s business; therefore, East Alabama should not be held liable for the actions of Whitchard. See Swift, 570 So.2d at 1213; Solmica, 285 Ala. at 401, 232 So.2d at 642-43.

Relying upon Simmons v. United States, 805 F.2d 1363 (9th Cir.1986), the Chanceys assert that East Alabama should be held liable because Whitchard failed to explain the theory of transference to Phillip. In Simmons, the United States Court of Appeals for the Ninth Circuit held that the federal government was liable for the sexual misconduct of a psychiatrist employed by the Indian Health Service, a federal agency. The psychiatrist had been treating the patient for five years when she expressed her feelings of attraction for him. The psychiatrist encouraged her to act upon these feelings, and he failed to inform her about transference phenomenon. Simmons, however, does not govern this case. In Simmons, the Ninth Circuit applied what it considered to be the law of the State of Washington regarding vicarious liability, citing a case involving an automobile collision. However, in Swift, we listed Simmons among cases that stood for the proposition that “ ‘sexual acts can be in the line and scope of one’s employment.’ ” 570 So.2d at 1212. This Court then stated, “We are not persuaded by the holdings in these cases.”

A Washington court has subsequently criticized Simmons. See Thompson v. Everett Clinic, 71 Wash.App. 548, 553, 860 P.2d 1054, 1058 (1993). After noting that the court in Simmons had held that an employer could be liable for a sexual relationship conducted in conjunction with other acts within the scope of the employee’s duties, the Thompson court rejected that holding and stated:

“We hold the better view to be that of Kuehn [v. White, 24 Wash.App. 274, 600 P.2d 679 (1979) ], which states:
“ ‘Where the servant’s intentionally tortious or criminal acts are not performed in furtherance of the master’s business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant’s wrongful acts or the means for carrying them out.’
“(Emphasis added [in Thompson ].) Kuehn, 24 Wash.App. at 278, 600 P.2d 679. This rule sets forth that a tort committed by an agent, even if committed while engaged in the employment of the principal, is not attributable to the principal if it emanated from a wholly personal motive of the agent and was done to gratify solely personal objectives or desires of the agent.”

71 WashApp. at 553, 860 P.2d at 1058. Several other federal and state courts, in addition to the Washington court, have distinguished or declined to follow the holding in Simmons. See K.E.S. v. United States, 38 F.3d 1027 (8th Cir.1994); Mansfield v. Watson, 990 F.2d 1258 (9th Cir.1993); Reed v. Barnes, 986 F.2d 1428 (10th Cir.1993); Lopez v. United States, 998 F.Supp. 1239 (D.N.M.1998); Benavidez v. United States, 998 F.Supp. 1225 (D.N.M.1997); Shirley v. United States, 832 F.Supp. 1324 (D.Minn.1993); Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y.1991); Wood v. United States, 760 F.Supp. 952 (D.Mass.1991); John R. v. Oakland Unified Sch. Dist., 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948 (1989); Doe v. Madison Ctr. Hosp., 652 N.E.2d 101 (Ind.App.1995); P.W.P. v. L.S., 266 Kan. 417, 969 P.2d 896 (1998); Gray v. Johnson & Johnson Med., 14 Mass. L. Rptr. 9 (2001) (not reported in N.E.2d); Bratton v. Calkins, 73 Wash. App. 492, 870 P.2d 981 (1994); Washington Ins. Guar. Ass’n v. Hicks, 49 Wash.App. 623, 744 P.2d 625 (1987).

Alabama has also carved out an exception to vicarious liability that precludes recovery from an employer when the employee acts on wholly personal motives that would not “reasonably further” the employer’s business. Prosser v. Glass, 481 So.2d 365, 368 (Ala.1985). Alabama courts, as well as other courts, have held that sexual misconduct is personal to the employee and is outside of the scope of employment. See Andrews v. United States, 732 F.2d 366 (4th Cir.1984)(holding that the seduction of a patient by a physician’s assistant was outside of the scope of the assistant’s employment); Joyner, 477 So.2d 364 (holding that a manager’s attempt to force other employees to perform sexual acts was not in furtherance of the company’s business); Great Atl. & Pac. Tea Co. v. Lantrip, 26 Ala.App. 79, 153 So. 296 (1934) (holding that a store clerk’s sexual advances toward a customer were entirely personal).

Particularly instructive on the absence of a basis for vicarious liability on the part of East Alabama is Perkins v. Dean, 570 So.2d 1217 (Ala.1990). In Perkins, Roberta Perkins and her husband sought individual and family counseling from Northwest Alabama Regional Mental Health Center (“Northwest”), and Almus Larry Dean was assigned to counsel them. During one of the sessions, Perkins told Dean that she wanted to have an affair with him. Dean explained transference phenomenon to her, but he told her to “check back with me [Dean] later and we’ll see how it is between my wife and [me] and you and your husband.” 570 So.2d at 1218. Dean later resigned from Northwest, but he continued to have contact with the Perkinses. Three months after Dean’s resignation, he and Perkins began a sexual affair. After the affair ended, the Perkinses filed a malpractice action against Dean and Northwest. This Court held that because the sexual relationship occurred after the professional relationship between Dean and Perkins had ended, there was no basis on which to sustain a malpractice claim against Northwest. See Perkins, 570 So.2d at 1219 (“When Dean had sex with Roberta Perkins, he was not employed by or associated with Northwest in such a way that a master/servant relationship existed (Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1938), as cited in Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661, 662 (5th Cir.1964) (applying Alabama law)), nor did the intercourse take place within the line or scope of Dean’s employment with Northwest.”). Because the affair between Dean and Perkins was deemed purely social and not within Dean’s scope of employment with Northwest, Northwest could not be held vicariously liable for any actions taken by Dean in engaging in the sexual relationship. Likewise, the Chanceys’ allegations concerning sexual activity occurring after the professional relationship between Whitch-ard and Phillip had ended cannot serve as the basis for vicarious liability on the part of East Alabama, because those actions did not occur within the scope of Whitchard’s employment with East Alabama.

We therefore reject the Chanceys’ contention that Whitchard’s failure to inform Phillip about transference phenomenon fell within the scope of Whitchard’s employment.

II. Vicarious Liability Under the Doctrine of Ratification

In addition to vicarious liability under the doctrine of respondeat superior, an employer can also be held liable for the unlawful acts of its employee if the employer ratifies those acts. Potts v. BE & K Constr. Co., 604 So.2d 398, 400 (Ala.1992). An employer ratifies an act when 1) it expressly adopts the employee’s behavior or 2) it implicitly approves the behavior. Potts, 604 So.2d at 400. Furthermore, “[a]n employer’s failure to stop the tortious conduct after it learns of the conduct will support an inference that the employer tolerated the conduct.” Id. Acquiescence or ratification requires full knowledge or means of knowledge of all material facts. American Nat’l Bank & Trust Co. v. Powell, 235 Ala. 236, 245, 178 So. 21, 29 (1937); Van Heuvel v. Roberts, 221 Ala. 83, 87, 127 So. 506, 509 (1930). An employer cannot be said to have ratified an employee’s conduct when the employer, upon learning of an employee’s conduct, which was not in the scope of the employee’s employment, gives instructions calculated to prevent a recurrence. Joyner, 477 So.2d at 365 (after an employee’s homosexual advances to another employee were reported to the employer, the employer conducted an investigation and informed the offending employee that if another complaint of this nature came to the employer’s attention the offending employee would be laid off and a full-scale investigation conducted).

The Chanceys argue that East Alabama ratified Whitchard’s conduct by ordering that Phillip’s medical records be altered, failing to terminate Whitchard’s employment, and instructing Whitchard to refer Phillip to Lancaster, who they say is an unqualified counselor. The Chanceys offer this theory of ratification without citation to authority. These activities all occurred before East Alabama became fully knowledgeable as to Whitchard’s conduct. Indeed, East Alabama was ignorant of the all of the facts because the events made the basis of this action, occurring in January 1997, had not yet taken place.

While the falsification of medical records is inexcusable, it cannot serve as evidence that East Alabama ratified Whitchard’s subsequent conduct, which was taken contrary to the instructions given Whitchard by East Alabama. When East Alabama allegedly instructed Whitchard to change Phillip’s records, all Sweeney and Beae-ham knew was that Phillip and Whitchard had met for drinks and that Whitchard had terminated or was in the process of terminating the psychologist-patient relationship between her and Phillip. It is undisputed that when Sweeney and Beac-ham learned of Whitchard’s social relationship with Phillip, they instructed her to end both the professional relationship and the social relationship. East Alabama had no knowledge at the time the records were falsified that Whitchard and Phillip would thereafter have sexual relations, that Phillip’s wife would thereafter ask him to leave their home, and that Whitchard would leave her husband as a result of her affair with Phillip. Ratification requires full knowledge of the facts. American Nat’l, 235 Ala. at 245, 178 So. at 29; Van Heuvel, 221 Ala. at 87, 127 So. at 509. The Chan-ceys offered no evidence indicating that East Alabama failed to stop the subsequent tortious conduct of Whitchard after it learned of the infatuation. To the contrary, Sweeney and Beacham instructed Whitchard to end the relationship. Likewise, no ratification was shown in Joyner when the employer warned the employee against repeating the conduct made the basis of the action. 477 So.2d at 365. In Joyner, the record reflected that no subsequent misdeed occurred, while here, the subsequent misdeeds were contrary to East Alabama’s express instructions. We do not address the question whether the falsification served as ratification of only those acts that occurred before December 30, 1996, because the complaint is not so narrowly framed.

The Chanceys claim that Whitch-ard should have been fired, on December 30 before she resigned, when Sweeney and Beacham received the faxed messages from Phillip expressing his love for Whitchard and that the failure to fire her at that time constitutes ratification. The Chanceys contend that East Alabama has a “zero tolerance” rule that requires termination of a therapist’s employment if the therapist forms a personal relationship with his or her patient. According to the Chanceys, however, Phillip was no longer Whitchard’s patient as of December 26, 1996. Therefore, even if we assume that the zero tolerance policy required Whiteh-ard’s termination, notwithstanding assurances from her that the therapist-patient relationship had been ended, the same problem as to East Alabama’s lack of full knowledge of events that had not yet occurred prevents its failure to terminate Whitchard on December 30, 1996, from serving as evidence of ratification. Moreover, insistence in this case on immediate termination to prevent evidence of ratification conflicts with this Court’s holding in Joyner. Again, we do not address the question whether the failure to terminate on December 30, 1996, served as ratification of only those acts that occurred before December 30, 1996, because the complaint is not so narrowly framed.

The Chanceys also argue that East Alabama’s later rehiring of Whitch-ard ratified Whitchard’s conduct. Whitch-ard was rehired months after her relationship with Phillip had ended, and stringent conditions were imposed on her continued employment with East Alabama. Whitch-ard had to undergo a psychiatric evaluation and psychiatric treatment, if necessary, to ensure that she was fit to practice psychology again. East Alabama also limited Whitchard’s practice to the treatment of females only. While this action took place after East Alabama had full knowledge of Whitchard’s conduct, the stringent limitations placed on Whitchard’s rehire do not constitute substantial evidence of ratification of her previous conduct.

The doctrine of ratification cannot form the basis for liability on the part of East Alabama.

III. Bases for Direct Liability of East Alabama

The Chanceys argue that East Alabama is directly liable because East Alabama revised Phillip’s medical records to make it appear that he was at fault in engaging in the relationship with Whitch-ard, referred him to an unqualified and incompetent therapist, and allowed Whitchard to make the referral. The only authority the Chanceys cite for the proposition that where a principal participates in the tort to such extent that he may be considered a joint tortfeasor, liability, whether grounded in negligence or willful conduct, is joint and several is Courtesy Ford Sales, Inc. v. Clark, 425 So.2d 1075 (Ala.1983).

Before reaching the merits of this argument, we point out that in response to East Alabama’s motion for a summary judgment filed before the filing of the second amended complaint, the Chanceys conceded that the entire basis for East Alabama’s liability was the doctrine of re-spondeat superior and the existence of an agency relationship between Whitchard and East Alabama. The Chanceys contend that the subsequently filed second amended complaint contained a count charging abandonment. However, that count was set forth in the complaint that was before the trial court when the Chan-ceys made their concession. Further, the case was not tried on the basis of direct liability on the part of East Alabama because the jury was instructed that East Alabama could not be liable to the Chan-ceys if they found that Whitchard was not acting within the line and scope of her employment. Nevertheless, we address the merits of the Chanceys’ claim that East Alabama was directly liable.

Returning to Courtesy Ford, we note that the authority for the proposition as to the liability of a joint tortfeasor for the conduct of other tortfeasors traces back to Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958). In Liberty National, this Court also recognized a rule of causation applicable to cases involving multiple tortfeasors, stating:

“The many decisions of this court dealing with negligence as the proximate cause, when some agency has intervened and has been the immediate cause of the injury, hold the party guilty of negligence in the first instance is not responsible, unless at the time of the original negligence the act of the agency could have been reasonably foreseen. If the act of the intervening agency could have been reasonably foreseen the causal chain is not broken. But if the injury results from an independent, intervening, efficient cause, not reasonably to be anticipated, to wit, the act of a third person, the negligence shown, if any, is not the proximate cause of the injury.”

267 Ala. at 187, 100 So.2d at 711 (emphasis added). Assuming that abandonment of treatment would serve as a sufficient basis for tortious conduct on East Alabama’s part, we would have to conclude that the subsequent sequence of events, including Whitchard’s disregard of East Alabama’s express instructions, an event that East Alabama should not reasonably have anticipated, constitutes, as a matter of law, an intervening efficient cause. At most, East Alabama was a civil conspirator that withdrew before commission of the misconduct made the basis of this action and therefore cannot be held responsible for the wrongful acts of its former co-conspirator. See National Park Bank of New York v. Louisville & N.R.R., 199 Ala. 192, 198, 74 So. 69, 72 (1917).

The Chanceys’ contention that abandonment affords a basis for the direct liability of East Alabama is flawed for another reason also related to causation. At trial, the Chanceys presented evidence from an expert witness, who testified that the failure to refer a patient in need of treatment to a competent professional constitutes an abandonment of the patient. This theory was not disputed by East Alabama. However, East Alabama argued that the abandonment theory is inapplicable in this instance because Phillip, who had no knowledge of Lancaster’s credentials or lack thereof, simply declined further treatment from East Alabama.

To recover damages in a medical-malpractice action, the plaintiff must establish the traditional elements of negligence. The plaintiff must present expert evidence regarding the physician’s standard of care and the physician’s breach of that standard. Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002). Furthermore, the plaintiff must show a causal connection between an injury suffered and the physician’s actions. McAfee v. Baptist Med. Ctr., 641 So.2d 265, 269 (Ala.1994). The Chanceys failed to prove how East Alabama’s alleged abandonment caused them any injury. In fact, Beth testified that Phillip had no intention of returning to East Alabama for treatment. Moreover, Phillip was under the care and treatment of another physician within three weeks of December 30, 1996. Phillip’s rejection of further treatment by East Alabama precludes a showing of a causal connection between the argued faulty referral and any injury suffered by the Chanceys.

Therefore, assuming the Chanceys’ claim for direct liability against East Alabama is properly before us, we conclude that it fails as a matter of law.

TV. Conclusion

The Chanceys failed to prove that Whitchard was acting within the line and scope of her employment when she engaged in a sexual relationship with Phillip Chancey, failed to prove that East Alabama ratified Whitchard’s conduct made the basis of this action, and either did not assert in the trial court a claim of direct liability of East Alabama or, if they did assert such a claim, failed to prove such a claim as a matter of law. The trial court erred in denying East Alabama’s motion for a JML; therefore, we reverse the trial court’s judgment and render a judgment in favor of East Alabama.

REVERSED AND JUDGMENT RENDERED.

HOUSTON, SEE, JOHNSTONE, and WOODALL, JJ., concur.

      . The plaintiff in Swift also alleged in her complaint that the psychologist’s actions were " 'wholly personal,' and not done 'in further-anee of his employment,’ but solely 'to gratify his own feelings.’ ” 570 So.2d at 1212.

      . While the Chanceys contend that East Alabama is liable based on facts they say the jury could have found to constitute East Alabama's abandonment of Phillip as a patient, this argument is not offered as justification for East Alabama's liability under the doctrine of re-spondeat superior.