author: MADDOX, Retired Justice.

text:
    James A. STABLER, Jr. v. CITY OF MOBILE and Curtis Robinson.
    1010944.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      Michael P. Windom of Windom & Tobi-as, L.L.C., Mobile, for appellant.
    Jacqueline M. McConaha of Atchison, Crosby, Saad & Beebe, P.C., Mobile, for appellee City of Mobile.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellee Curtis Robinson.
   MADDOX, Retired Justice.

This appeal presents two questions: (1) Whether the trial court erred in dismissing the plaintiffs claim alleging the tort of outrage; and (2) Whether the trial court erred in finding that the plaintiffs action against the municipal defendants was due to be dismissed because the plaintiff did not file with the City of Mobile a notice of his claim within the time allowed by law.

Facts and Procedural History

The plaintiff James A. Stabler, Jr., was employed by the City of Mobile as a police officer. His supervisor was the defendant Curtis Robinson, a sergeant with the Mobile Police Department. While he was employed by the City of Mobile in its police department, Stabler applied to the Baldwin County Sheriffs Department for a job as a deputy sheriff. It is undisputed that, on April 28, 1999, Robinson wrote and signed a letter, written on “Mobile Police Department” letterhead, to Chief Larry Milstead, of the Baldwin County Sheriffs Department, in which he stated:

“Please accept this as a confidential letter of reference regarding an applicant your department is considering hiring as a Deputy Sheriff. This applicant is James Arthur Stabler, Jr. He is currently a member of the Mobile Police Department and I am his immediate supervisor. I have supervised Officer Stabler for 1-1/2 years. During this period I have had the opportunity to rate and observe his job performance. Officer Stabler has a number of weaknesses and I feel obligated to bring them to your attention: First, Officer Stabler has problems following rules, procedures and regulations; he has a record that reflects an abuse of sick time, which kept him off from work on the night shift; he has a rash of citizen complaints filed against him on his demeanor and excessive force and 1 currently pending for investigation. Recently, he was the center of a racial incident with a black officer and disciplinary actions are pending. He also has a problem with truthfulness; and he is not dependable or trustworthy. In addition, I have found his overall job performance to be inept; and he has displayed a bad attitude that reflects prejudicialness [sic] against minorities.
“In my professional opinion, Officer Stabler is not qualified for the position of Deputy Sheriff and I hope your department considers the above stated facts in making your decision.
“Sincerely,
“/s/ Sgt Curtis Robinson
“Sergeant Curtis Robinson
“Mobile Police Department”

Stabler attached a copy of this letter to his complaint.

The record shows that the Mobile Police Department investigated Robinson’s actions in writing the letter and that Robinson was suspended without pay for a period of 10 consecutive workdays. Robinson appealed that ruling to the Mobile County Personnel Board, and in an order dated November 18, 1999, the personnel board found that Robinson had violated police department rules and procedures, but determined that Robinson’s discipline was too severe, and reduced his suspension to three workdays.

On October 22, 1999, Stabler filed a “charge of discrimination” with the Equal Employment Opportunity Commission (“EEOC”). Where asked on the charge-of-discrimination form to name “the employer, labor organization, employment agency, apprenticeship committee, state or local government agency who discriminated against me” he named the City of Mobile, the Mobile Police Department, and Sgt. Curtis Robinson. In his charge of discrimination, he claimed that he “[had] been discriminated against by Sgt. Robinson and the Police Department because of my race and retaliatory action [has] been taken against me.” After averring that “[t]he abusive and hostile work environment has been so pervasive, it has altered the conditions of my employment,” Stabler stated the following in his charge of discrimination regarding the subject matter of this lawsuit:

“I had decided to leave the Police Department and applied for a position with the Baldwin County Sheriffs Department, the county in which I reside. That job would have entitled me to more pay, a take home car, better retirement benefits, and generally better working conditions. Based upon my test scores and job performance[,] I should have gotten the position. However, the attached letter of April 28, 1999, written by Sgt. Curtis Robinson on Mobile Police Department letterhead and sent to the Baldwin County Sheriffs Department, caused the opening to be withdrawn. Sgt. Robinson slandered and libeled my reputation. The letter of April 28, 1999, was unfounded, full of inaccuracies and outrageous. There was an investigation as a result of this letter written by Sgt. Robinson and the Police Department has taken little or no action to correct this problem and assure it will not occur in the future. This is not the first such incident involving Sgt. Robinson that has not been addressed or handled by the Department. I have been singled out by Sgt. Robinson, he has solicited complaints against me, and I have been subjected to racial comments and attitudes on an on-going basis. I have been the subject of ridicule, intimidation and insult. The actions of the Police Department and Sgt. Robinson have been devastating to my career and have violated my rights under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991.”

Based upon the foregoing facts, Stabler, on April 13, 2001, sued his supervisor, Sgt. Robinson, the City of Mobile, and the City of Mobile Police Department. In Count I of his complaint, which consisted of three counts, Stabler alleged that the April 28, 1999, letter was written by Robinson in his capacity as Stabler’s supervisor and that the letter contained false and defamatory statements. He also alleged that “the Defendants knew, or should have known, of said falsity and/or acted with reckless disregard of whether or not it was false.” He further alleged that “[t]he sending of the letter was malicious, wanton, and/or negligent conduct on the part of the defendants.”

Count II of Stabler’s complaint alleged the tort of outrage, specifically alleging that “[t]he actions by all Defendants were extreme and outrageous,” and that “as a proximate result of the Defendants’ outrageous conduct, he ha[d] suffered severe mental anguish, humiliation, damage to [his] reputation, loss of position, and monetary damages and benefits.”

Count III of Stabler’s complaint alleged that “[a]s an employer, the Defendants, City of Mobile and/or the City of Mobile Police Department, owed a duty to the Plaintiff to adequately supervise and monitor the actions of the Defendant, Curtis Robinson,” and that “[t]he Defendants, City of Mobile and/or the City of Mobile Police Department, breached the aforesaid duties owed to the Plaintiff by failing to use reasonable care in adequately supervising and monitoring the actions of the Defendant, Curtis Robinson, all of which resulted in damage to the Plaintiff.”

On May 11, 2001, the City of Mobile and the City of Mobile Police Department (hereinafter referred to collectively as “the City defendants”) filed a motion to dismiss. In the motion the City defendants alleged that Stabler had failed to comply with the provisions of §§ 11-47-23 and 11-47-192, Ala.Code 1975, as amended, because he did not file a sworn statement of claim with the City within six months of the injury alleged in the complaint. The City defendants attached to their motion an affidavit by the city clerk, who stated that she was the custodian of “all records contained in the City of Mobile, Alabama Clerk’s Office.” She stated that the records in her office included all notices of claims submitted to the City of Mobile. She further stated in her affidavit that she had searched for any record showing that Stabler had filed a statement of claim arising out of the incident alleged in this action, and that the only record of the claim she found was the complaint Stabler filed in this case.

Robinson filed an answer to the complaint, which he later amended, and he subsequently filed a motion for a partial summary judgment. In his summary-judgment motion, he alleged (1) that “[a]s to plaintiffs punitive damages claim in Count One (libel), plaintiff failed to comply with the required prerequisites to recovery of punitive damages as mandated by Alabama Code § 6-5-186”; (2) that “[a]s to plaintiffs claim in Count Two (outrage), the allegations made by plaintiff are insufficient as a matter of law to support an outrage claim”; and (3) that “[a]s to plaintiffs claim in Count Three (negligent supervision), the claim is directed at defendants City of Mobile and/or City of Mobile Police Department and Sergeant Robinson for the alleged negligent supervision of Sergeant Robinson,” and that “Sergeant Robinson cannot be held liable for negligently supervising himself.”

Stabler filed a response to the City defendants’ motion to dismiss, in which he acknowledged that the City defendants were basing their motion to dismiss on his failure to comply with the provisions of §§ 11-47-23 and 11-47-192, Ala.Code 1975, the six-month claim statutes. Stabler does not dispute that he did not file a statement of claim as set forth in the statutes, but he states that “in the case of Diemert v. City of Mobile, 474 So.2d 663 (Ala.1985), [this Court] held that the filing of a complaint or lawsuit within six months satisfied the statutory claims requirement.” Stabler claimed that his filing of a charge of discrimination with the EEOC on October 22, 1999, was within the six-month period specified in the statutes and that that filing satisfied the statutory-claims requirement.

On February 1, 2002, the trial court, noting that it had heard oral arguments on the City defendants’ motion to dismiss and had considered the pleadings, the evidence submitted, and the applicable law, granted the motion. The court, after finding that there was no just reason for delay, made the order of dismissal final pursuant to Rule 54(b), Ala. R. Civ. P.

In the order of dismissal, the trial court amended its previous order entered on November 27, 2001, relating to Robinson’s motion for a partial summary judgment and stated, regarding Count I of the complaint: “There is no evidence before the Court of a demand for retraction as required by § 6-5-186, Code of Alabama, for recovery of punitive damages and the claim for punitive damages is dismissed.” In entering the partial summary judgment for Robinson, the trial court further stated, relating to Count II, which alleged that Robinson was guilty of the tort of outrage:

“While the letter in question may have been libelous, the conduct described in the complaint and in the evidentiary submission is not ‘so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency.’ American Road Service v. Inmon, 394 So.2d [361] (Ala.1980). See, also, Rice v. United Ins. Co. of Am., 465 So.2d [1100] (Ala.1984).”

The trial judge also stated in his amended order that he had considered “Count Three claiming damages for the alleged negligent failure of Defendant’s employer to adequately supervise and monitor [Robinson],” and that he determined that Count III “states no claim against [Robinson] and is dismissed.” Stabler appeals from the order dismissing the City defendants and the partial summary judgment for Robinson, naming as the appellees the City of Mobile and Robinson.

I.

Stabler first argues that the trial court erred in entering a summary judgment for Robinson on Stabler’s tort-of-outrage claim. The standard of review this Court applies to a trial court’s ruling on a motion for a summary judgment has been frequently stated, most recently in Lacy v. Mini Warehouse World, 835 So.2d 154 (Ala.2002):

“ ‘ “When reviewing a ruling on a motion for a summary judgment, this Court applies the same standard that the trial court used ‘in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).... In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the fight most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992).”
‘City of Orange Beach v. Duggan, 788 So.2d 146, 149 (Ala.2000).’
“Watkins v. Board of Managers of Birmingham Ret. & Relief Sys., 802 So.2d 190, 193 (Ala.2001).”

835 So.2d at 156.

Stabler contends that the trial court erred in entering a summary judgment for Robinson because, he says, Robinson presented no evidence in support of the summary-judgment motion on the tort-of-outrage claim. In essence, Stabler argues that Robinson did not establish that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law as to that claim. Robinson, in his motion for a partial summary judgment stated that “[a]s to plaintiffs claim in Count Two (outrage), the allegations made by the plaintiff are insufficient as a matter of law to support an outrage claim.”

Robinson, in his brief to the trial court in support of his motion for a partial summary judgment argued that “[o]nly the most egregious of circumstances will support a claim of outrage,” and cited Callens v. Jefferson County Nursing Home, 769 So.2d 273 (Ala.2000). Robinson renews his argument and relies on Callens to support his position on appeal. In that case, this Court stated:

“Callens, in her individual capacity, argues that the trial court erred in entering the summary judgment for the defendants on her claim alleging intentional infliction of emotional distress— the tort of outrage. In order to prevail on this claim, Callens must prove (1) that the defendants either intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from their conduct; (2) that the defendants’ conduct was extreme and outrageous; and (3) that the defendants’ conduct caused emotional distress so severe that no reasonable person could be expected to endure it. American Road Serv. Co. v. Inmon, 394 So.2d 361 (Ala.1980); Jackson v. Alabama Power Co., 630 So.2d 439 (Ala.1993). This Court has recognized the tort of outrage in three areas: (1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment. See Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041 (Ala.1993). This Court has limited the outrage cause of action to egregious circumstances. Although we in no way condone the defendants’ alleged conduct, we conclude, after reviewing the evidence in a light most favorable to Cal-lens, that their alleged behavior was not so extreme as to reach the level necessary to constitute the tort of outrage. We affirm the summary judgment as it relates to Callens’s tort-of-outrage claim.”

769 So.2d at 281.

Stabler, in his response to Robinson’s summary-judgment motion, attached his own affidavit, a brief, and a copy of the order of the personnel board, dated November 18, 1999. In that order the board stated that it had “carefully considered all of the material evidence adduced at the hearing including all of the documentary evidence made a matter of record,” and concluded, in part, that “Sergeant Robinson’s conduct was highly inappropriate in writing the letter to the Baldwin County Sheriffs Department on Police Department stationery,” and that “[t]his was clearly in violation of the Police Department Rules, Regulations and Practices.”

In its order, the personnel board did find that “Sergeant Robinson’s conduct [was] a violation of Section 1.06.05 con-eerning criticism of Officer Stabler and of 1.16.02 dealing with revealing confidential information of an officer.” The board further found that “[b]y writing a letter on Police Department stationery one could assume this represented the official position of the Mobile Police Department and could place the police department and the Appointing Authority subject to legal liability.” The board also found that

“Sergeant Robinson took it upon himself to write the letter to Chief Larry Mil-stead of the Baldwin County Sheriffs Department concerning James Arthur Stabler, Jr. and much of the letter specifically and directly criticized Officer Stabler and his work ethic. His letter states that Officer Stabler has a number of weaknesses which he feels obligated to bring to Chief Milstead’s attention. He is critical of him in several other areas. He concludes the letter by stating it is his opinion that Officer Stabler is not qualified for the position of Deputy Sheriff in Baldwin County. As was pointed out in the hearing there were a number of inconsistencies and untruths contained in his letter.”

After determining that disciplining Sgt. Robinson for writing the letter would not violate Robinson’s constitutional right of free speech, the board found that “[a] fair reading of the letter written by Sergeant Robinson leads to the conclusion that the letter was to attack and criticize Officer Stabler” and that “[t]o contend otherwise is simply to defy commonsense in the plain language of the letter.”

The board then concluded:

“It is the opinion of this Board that the Police Department should take appropriate measures to clarify the guidelines and rules so that instances which gave rise to this hearing do not occur in the future. It is the responsibility of police officers to enforce and uphold the law and not to violate it. Police officers are expected to be role models. They should be the epitome of good citizens. This Board challenges Sgt. Robinson to avoid such future action and to strive to become a better officer. To avoid any misunderstanding in the future should Officer Robinson desire to make recommendations concerning fellow officers then this should be done through channels and in accordance with the rules of the department.
“While the Board finds that the City has met the burden of proof cast upon it, the Board is also of the opinion that the penalty imposed upon this employee is too severe, and believes that the penalty should be modified.”

The board also found that

“the action of suspension heretofore imposed on this employee, Sergeant Curtis Robinson, be, and the same is hereby modified and altered from suspension from active duty without pay for a period of ten (10) consecutive working days, to suspension from active duty without pay for a period of three (3) consecutive working days, and that [Robinson] thereafter receive all back pay and other emoluments of his position for the remainder of his suspension in the amount of seven (7) work days.”

The trial judge, in an amended written order, after stating that he had considered Count II of the complaint, which sought damages for the tort of outrage, stated:

“While the letter in question may have been libelous, the conduct described in the complaint and in the evidentiary submission is not ‘so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency.’ American Road Service v. Inmon, 394 So.2d [361] (Ala.1980). See, also, Rice v. United Ins. Co. of Am., 465 So.2d [1100] (Ala.1984). Judgment is entered for defendant on this claim.”

We conclude, as did the trial court, and as this Court concluded in Callens, that Sgt. Robinson’s behavior in writing the letter was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” American Road Serv. Co. v. Inmon, 394 So.2d 361, 368 (Ala.1980). In reaching this conclusion, we note that the personnel board, although finding that the purpose of Sgt. Robinson’s letter “was to attack and criticize Officer Stabler,” nevertheless concluded that “the penalty imposed upon this employee [was] too severe,” and modified the suspension from 10 days to 3 days. The board then “challenged Sgt. Robinson to avoid such future action and to strive to become a better officer,” and admonished him that “[t]o avoid any misunderstanding in the future should [he] desire to make recommendations concerning fellow officers then this should be done through channels and in accordance with the rules of the department.”

The trial judge did not err in entering a summary judgment for Robinson on the tort-of-outrage claim; therefore, we affirm the trial court’s judgment on this issue.

II.

The next issue we address is whether the trial court erred in granting the motion to dismiss filed by the City defendants. Although styled as a motion to dismiss, the motion was accompanied by the affidavit of Glenda Morgan, and Stabler, in his response to the motion, attached a copy of the charge of discrimination he had filed with the EEOC. In Robinson v. Benton, 842 So.2d 631 (Ala.2002), this Court stated:

“While the trial court granted what Benton had styled as a motion to strike and to dismiss, the record shows that, in addition to the pleadings, Robinson filed with the trial court Benton’s affidavit in the estate proceeding, and the trial, court considered the affidavit before entering the dismissal. Thus, his motion to strike and dismiss was converted to a motion for a summary judgment and our standard of review is not the standard applicable to a grant of a motion to dismiss, but rather the standard of review applicable to a summary judgment.
“ “WThen matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977). “Once matters outside the pleadings are considered, the requirements of Rule 56, [Ala. R. Civ. P.], become operable and the ‘moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.’ C. Wright & A. Miller, Federal Practice & Procedure, Civil, § 1366 at 681 (1969).” Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986).’
“Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997).”

842 So.2d at 634. The appropriate standard of review of the trial court’s ruling on the motion to dismiss in this case is the standard used to review a ruling on a motion for a summary judgment. See Lacy v. Mini Warehouse World, supra.

Paragraphs two and six of the City defendants’ motion to dismiss state:

“2. Plaintiff has failed to comply with § 11-47-23 and § 11-47-192, Code of Alabama 1975, as amended, because Plaintiff did not file a sworn statement of claim with the City within six (6) months of the injury alleged in his Complaint, April 28, 1999. As set forth in the Affidavit of City Clerk Glenda Morgan, attached hereto as Exhibit ‘A,’ Plaintiff filed no claim with the office of the City Clerk until the filing of this suit, which was received in her office on April 27, 2001, almost two (2) years thereafter.
“6. These statutes [§§ 11-47-23 and 11-47-192] require dismissal of tort claims against the City and its Police Department, which is a department of the City and not a separate entity.”

Section 11-47-23, Ala.Code 1975, provides:

“All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”

Section 11-47-192, Ala.Code 1975, provides:

“No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed.”

On appeal, Stabler argues that “[t]he purpose of making a statutory claim is not to satisfy the niceties of legal pleading but to furnish the City with sufficient physical details of an accident to enable them to investigate the claim and settle with the Claimant if it deems such action appropriate.” (Stabler’s brief, pp. 13-14.) He argues that the filing of the charge of discrimination with the EEOC served that purpose. Stabler cites, in support of this argument, Cox v. City of Birmingham, 518 So.2d 1262 (Ala.1987). He also states that “strict compliance with notice statutes is no longer required under Alabama law,” and that the law “now only requires substantial compliance with the statutes,” citing Ex parte City of Huntsville, 456 So.2d 72 (Ala.1984). (Stabler’s brief, p. 14.) He contends that the reasoning in Diemert v. City of Mobile, 474 So.2d 663 (Ala.1985), should apply in this case. In Diemert, this Court stated, “it must be remembered that at the time City of Anniston [v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963)] was written, strict compliance with the notice statutes was required. As Ex parte City of Huntsville and the cases upon which it relied show, strict compliance is no longer required.” 474 So.2d at 666.

Stabler’s primary argument is that he substantially complied with the notice requirements of the statutes when he filed the EEOC charge of discrimination on October 22, 1999, in which he set out the manner in which his injury occurred; the day, the time, and the place the incident occurred; and the damage he suffered. He states in his brief on appeal (1) that the “EEOC Charge of Discrimination was directed against the City Defendants and Defendant Robinson”; (2) that “[t]he Charge of Discrimination ... was filed within six months of the defamatory letter written by Defendant Robinson in his capacity as an officer for the City Of Mobile Police Department”; (3) that “Hollowing the filing of the EEOC claim, mediation between the City Of Mobile Police Department and Plaintiff Stabler was held”; (4) that “[a]ll parties were present at the mediation”; and (5) that “the mediation did not provide resolution of the case” and he subsequently filed this suit. (Stabler’s brief, p. 14.) In support of his argument, he cites Diemert, supra, where this Court, overruling Eason v. City of Huntsville, 347 So.2d 1321 (Ala.1977), and Ex parte City of Huntsville, 456 So.2d 72 (Ala.1984), held that if a suit on a claim against a city is commenced within the six-month period prescribed § 11-47-23, Ala.Code 1975, it is a sufficient presentment of a claim under § 11-47-192, Ala.Code 1975. 474 So.2d at 666. The City defendants, in their brief to this Court, recognize that this Court, in Diemert and its progeny, held that the filing of a lawsuit within six months of the date of a claim’s accrual constitutes substantial compliance with the municipal notice-of-claim statutes. The City defendants candidly admit that the decision this Court reached in Diemert “was an eminently logical conclusion in light of those statutes’ purposes, and reflected a fair balancing of a claimant’s right to pursue his claims without being thwarted by hyper-technical statutory requirements, with the legislature’s purposes in creating a statutory scheme allowing for suits against municipalities with certain specified limitations.” (City defendants’ brief, p. 17.) But the City defendants state that a lawsuit must contain claims for relief in accordance with Rule 8, Ala. R. Civ. P., and must list the claims or causes of action a city must evaluate and either settle or defend. They also argue that the action must be served on a city as provided for in Rule 5, Ala. R. Civ. P., and that “[a]l-though the complaint need not be sworn to and signed by the plaintiff himself, it must be signed by his attorney in accordance with Rule 11 of the Alabama Rules of Civil Procedure.” Id. In summary, the City defendants argue that a properly drafted complaint, by its very nature, would provide the same type of information required by the notice-of-claim statutes, and, therefore, constitutes compliance with those statutes if the complaint is filed within the six-month time period, but that the EEOC charge of discrimination “is not the same as a complaint served on a municipality in a state court lawsuit, alleging state law tort claims” and therefore the filing of such a charge does not satisfy the statutes. (City defendants’ brief, pp. 17-18.)

Does the filing of an EEOC claim satisfy the requirements of the notice-of-claim statutes? The City defendants state that it does not, and although they admit that they were unable to find any Alabama case directly on point on the issue, they argue that several federal cases, some decided by federal district courts in Alabama, hold that the filing of such a claim does not constitute compliance with a municipal notice-of-claim statute. We have examined the cases they cite and find them to be persuasive.

In Oaks v. City of Fairhope, 515 F.Supp. 1004 (S.D.Ala.1981), the plaintiff brought claims under Title VII of the Civil Rights Act, giving rise to the assumption that she had previously filed an EEOC charge, which is required before a Title VII claim can be brought in federal court, although this is not made clear in the opinion. In Oaks, the court held that the plaintiffs attempt to join the City of Fairhope in her state-law defamation claim was barred by her failure to comply with the provisions of § 11-47-23. Oaks, 515 F.Supp. at 1049. The Court stated: “Oaks neither filed a claim with the city clerk of Fairhope nor brought an action within six months of the conduct upon which her defamation claim is based,” and that Oaks’s “failure to timely file either a claim as required by the foregoing statute or a lawsuit means that her defamation claim is barred by the time limitations of Section 11-47-23.” Id. See also Patrick v. City of Florala, 793 F.Supp. 301 (M.D.Ala.1992), in which the plaintiff had filed a Title VII claim and was allowed to proceed in federal court on this claim; however, his state-law tort claim for tortious interference with his employment contract was dismissed because he did not file a sworn statement of claim with the municipality within six months. Patrick, 793 F.Supp. at 304. As was true in Oaks, the opinion in Patrick does not indicate whether the plaintiff claimed that the filing of an EEOC claim constituted substantial compliance with the notice-of-elaim statutes, as Stabler claims here.

A federal district court in New York, however, has squarely addressed the issue presented by the facts of this case. In Meckenberg v. New York City Off-Track Betting, 42 F.Supp.2d 359 (S.D.N.Y.1999), a white female employee sued her employer, New York City Off-Track Betting, alleging gender and race discrimination under Title VII and Tit. 42 U.S.C. § 1983; she also included state-law claims alleging outrage and breach of contract. Meckenberg, 42 F.Supp.2d at 384, 385. The court held that the employee’s state-law claims were barred because she had not served her employer, the public gaming entity, with a notice of claim as required by state statutes, which provided that a claimant seeking to maintain an action for damages must file a notice of claim or the claim would be dismissed. Id. The district court held that the notice-of-claim statute “specifies a particular form of notice and manner of service,” and that “[t]hese requirements are not satisfied by the inclusion of state claims in either a [New York State Division of Human Rights] complaint or an EEOC charge.” 42 F.Supp.2d at 384. In Meckenberg, the court cited another federal district court case from New York, McNeil v. Aguilos, 831 F.Supp. 1079 (S.D.N.Y.1993), which also held that state notice-of-claim requirements were not fulfilled by the filing of an EEOC charge. Id.

In the case before us, the charge of discrimination was filed with EEOC based on allegations of discrimination that occurred, according to what appears on the face of the charge, in “February 1998,” for “continuing action.” Stabler’s action states the date of the accrual of his cause of action as April 28, 1999, the date of Robinson’s letter. Although many of the factual allegations attached to Stabler’s EEOC charge of discrimination include some of the same allegations made in Stabler’s complaint, the charge of discrimination was sent not to the City of Mobile, as was the complaint in Diemert, on which Stabler relies so heavily, but to the EEOC. In fact, we have checked the original record in the Diemert case, see Ex parte City of Dothan Personnel Board, 831 So.2d 1 (Ala.2002), and the record clearly shows that a copy of the summons and complaint that contained a wrongful-death claim on a death that occurred on April 13, 1980, was served on the city clerk on August 1,1980.

The facts of this case are materially different from those of Diemert. In this case, Stabler’s alleged injury occurred on April 28, 1999, and as stated in the affidavit of Glenda Morgan, city clerk for the City of Mobile, Stabler filed no claim with the office of the city clerk until this action was filed, notice of which was received in her office on April 27, 2001, almost two years after the alleged injury occurred.

Whether the filing of an EEOC claim is sufficient to comply with the notice-of-claim statutes apparently has not been addressed in any case by an Alabama court, but we have found some federal district court cases in addition to those cited by the City defendants that address that issue.

Judge Propst, in Fomby v. City of Calera, 575 F.Supp. 221 (N.D.Ala.1983), quoted from this Court’s opinion in Parton v. City of Huntsville, 362 So.2d 898 (Ala.1978), and stated:

“A brief analysis of Alabama cases does not indicate any reason consistent with federal policy for distinguishing between § 1983 suits against municipalities and other ‘persons.’ In Parton v. City of Huntsville, 362 So.2d 898 (Ala.1978), the Supreme Court of Alabama stated: We are constrained to hold that Alabama’s statutory scheme is to create liability in limited circumstances, and that the notice requirements of Sections 11-47-23 and — 192 are integral parts of that scheme.... The limitations upon this right, when uniformly and equally applied are constitutional.’ 362 So.2d at 900-901 (emphasis added). Alabama has held that in the absence of statute, its local governments would be absolutely immune from suit. The abolition of municipal immunity in Alabama in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), was based upon statutory construction. Eason v. City of Huntsville, 347 So.2d 1321 (Ala.1977). Under Alabama law, § 11-47-23 is a condition imposed on parties who would otherwise be subject to the defense of immunity. ‘In short, the Alabama legislature created a conditional right to sue in limited circumstances.’ Parton, supra, at 900.”

575 F.Supp. at 225.

Although Alabama courts have not required strict compliance with the notice-of-claim statutes, Alabama courts have refused to accept actual knowledge of a potential claim as a substitute for compliance with the notice-of-claim statutes. Large v. City of Birmingham, 547 So.2d 457, 458 (Ala.1989). There, a firefighter sued the City of Birmingham to recover for injuries he allegedly had received during the course of his employment. The trial court dismissed the City as a defendant, and he appealed. This Court held:

“Appellant further argues that the City had actual notice of the incident, and that actual notice rendered strict compliance with § 11-47-23 unnecessary. Appellant, in addition to filing an accident report, did communicate, cooperate, and maintain contact, with the City. However, the required notice must be served upon the authorized representative of the City, in this case, the city clerk, and disclosure to any other division or supervisor cannot be treated as notice for the purposes of instituting a claim. Moreover, in filing an accident report and receiving treatment, appellant did not express an intention to sue. Therefore, actual notice cannot be allowed to replace the statutory formal notice-of-claim requirement. Mere knowledge of the incident resulting in injury does not satisfy the objectives of the notice-of-claim statute.
“Citing City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), appellant argues that the noncompliance with § 11-47-23 should be excused under an estoppel theory. Weldon can be distinguished factually from the case sub judice. In Weldon, an adjuster contacted the injured party on behalf of the city on numerous occasions during the six-month period and assured the injured party that the claim had been perfected and that no further action was required. This Court held that the city, through its adjuster, had actively misled the injured party and had done things that caused an injured citizen to rely, to believe, to act, and to change his position in such a way that he would suffer injury if such a defense (failure to timely present the notice of claim) were allowed to bar a recovery.
“Appellant asserts no course of conduct by the City in the instant case that induced reliance and caused him to change his position to his detriment or prejudice. Appellant did not receive any assurances or promises from an adjuster or any other person representing the City. We reject the contention that requesting information, maintaining contact, and giving directions regarding treatment are tantamount to the assurances received in Weldon.”

547 So.2d at 458-59.

III.

Based on the foregoing, the judgment of the trial court in favor of the City defendants is due to be affirmed. We are also of the opinion that the trial court did not err in entering the partial summary judgment in favor of Robinson. Consequently, the trial court’s judgment is due to be affirmed.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12 — 18—10(e), Ala.Code 1975.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, HARWOOD, and STUART, JJ„ concur.

      . The City of Mobile, in its brief on appeal, states that the City appealed the personnel board’s decision to the circuit court, which reinstated the 10-day suspension, but that the Court of Civil Appeals reversed the judgment of the circuit court. Although our attention has not been directed to the record where these facts appear, we do note that the Court of Civil Appeals, in Mobile County Personnel Board v. City of Mobile, 833 So.2d 641 (Ala.Civ.App.2002), held that the personnel board’s decision to reduce Sgt. Robinson's suspension was supported by substantial evidence, and the court reversed the trial court's judgment and remanded the cause to the trial court.

      . In his charge of discrimination, Stabler stated that he was a white male and that Sgt. Robinson was a black male.

      . The City of Mobile Police Department was not named as an appellee in Stabler's notice of appeal.

      . Apparently, Sections 1.06.05 and 1.16.02 are in the police department’s internal rules.

      . The trial judge, in his amended order, dated February 1, 2002, considered the City defendants’ motion to dismiss and Robinson’s motion for a partial summary judgment. In his amended order, the trial judge amended an order he had entered on November 27, 2001, as to Robinson, and made the amended order final pursuant to the provisions of Rule 54(b), Ala. R. Civ. P.

      . The trial judge, in his amended written order, after stating that he had considered "Count Three claiming damages for the alleged negligent failure of [Robinson’s] employer to adequately supervise and monitor [Robinson],” concluded that "[t]his Count states no claim against [Robinson] and is dismissed.” On appeal, Stabler does not argue that the trial court erred in dismissing Count Three as to Robinson.

      . In Patrick, the Court stated:
      "Patrick's final claim, charging the defendants with tortious interference with his employment contract, arises solely under state law. Therefore, this claim is subject to the Alabama notification requirement. Patrick does not allege that he complied with the statute by filing a sworn statement with the city within six months of the date his cause of action accrued, nor does he raise any challenge to the applicability of this 'condition precedent' to his state law tort claim. Therefore, the court will dismiss this claim.”
      793 F.Supp. at 304 (footnote omitted). Footnote 8, omitted from the portion of Patrick quoted above, reads as follows:
      "The Alabama Supreme Court has held that a plaintiff may meet the requirements of this provision by filing suit within the six month period, even if no sworn complaint is filed with the city. Diemert v. City of Mobile, 474 So.2d 663 (Ala.1985). However, Patrick does not allege that his suit was filed within the six-month period nor does that appear to be the case. Patrick filed the complaint in this case on October 2, 1991-Although he does not identify the precise date of his discharge, it apparently occurred sometime after a special council meeting held on April 6, 1990 — almost one and a half years prior to the initiation of this action.”
      793 F.Supp. at 304.

      . The holding is as follows:
      "Even were the court to find that Meck-enberg’s state claims had substantive weight sufficient to defeat summary judgment, the claims are nevertheless barred due to her failure to serve OTB [Off-Track Betting] with a notice of claim as required under § 618 and § 619(6) of the N.Y. Rae.,. Pari-Mut. Wag. and Breed. Law. Under § 618 and § 619(6), a plaintiff seeking to maintain an action 'for damages’ against OTB or an employee of OTB must file a notice of claim or her claims will be dismissed. See also Kelly v. New York City Off-Track Betting, [Ms. No. 89, Civ. 5984], (S.D.N.Y. April 2, 1991) (Martin, J.)[unpublished]; McNeil v. Aguilos, 831 F.Supp. 1079, 1085 (S.D.N.Y.1993) (Soto-mayor, J.) (compliance with state notice of claim requirements condition precedent to tort action). Meckenberg argues that the inclusion of state claims in a plaintiffs complaint with the New York State Division of Human Rights (‘NYSDHR’) or charge with the EEOC may serve as notice under § 618. However, § 618 specifies a particular form of notice and manner of service. These requirements are not satisfied by the inclusion of state claims in either a NYSDHR complaint or an EEOC charge. See, e.g., McNeil, 831 F.Supp. at 1085 n. 5 (particular state notice requirements not fulfilled by EEOC filing). While a plaintiff may be given permission to file a late notice of claim pursuant to N.Y.Gen.Mun.Law § 50-e(5), such discretion is within the exclusive province of state courts.”
      42 F.Supp.2d at 384-85.

      . The city clerk in Diemert prepared an affidavit, in which he stated that a sworn statement of claim relating to the state-law claim was filed in his office, but that "the claim was not received by his office until May 20, 1981.” The record in the Diemert case, however, clearly shows that the summons and complaint in that case were served on the city clerk on August 1, 1980, and that the alleged wrongful-death occurred on April 13, 1980.


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    John C. WETTERHAN v. VESTA INSURANCE GROUP, INC.
    1010780.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      Jonathan H. Waller and Miles Clayborn Williams of Campbell, Waller & Loper, L.L.C., Birmingham, for appellant.
    Will Hill Tankersley, Jr., and Spencer M. Taylor of Balch & Bingham, L.L.P., Birmingham, for appellee.
   HOUSTON, Justice.

In Wetterhan v. Vesta Insurance Group, Inc., 797 So.2d 430, 432 (Ala.2001), this Court reversed a summary judgment for Vesta and remanded the case, writing:

“Being terminated without cause was a condition to [Wetterhan’s] -being allowed to exercise [his] stock options. The evidence puts in dispute the question whether [Wetterhan was] terminated without cause. [Wetterhan] presented substantial evidence to defeat Vesta’s motion for summary judgment. Consequently, the summary judgment in favor of Vesta is reversed and this cause is remanded for further proceedings consistent with this opinion.”

The trial court properly interpreted our reversal of the summary judgment as being limited to John Wetterhan’s breach-of-contract claim.

The trial court, on remand, conducted a four-day trial, three days of which were devoted to witness testimony. At the conclusion of the third day, the trial court held a charge conference; at that conference a special interrogatory, which the trial court announced it would give to the jury, was discussed. Wetterhan did not object to this special interrogatory at the charge conference, but he stated to the court: “I think Your Honor just correctly stated the issue in the special interrogatories referring to terminated without cause.... I just think the Court has correctly phrased the issue in the interrogatories when asked in terms of terminating without cause.” The day after the charge conference, the parties presented their arguments regarding the special interrogatory to the jury, and the trial court thoroughly instructed the jury on the special interrogatory. After the jury retired to begin its deliberations, the following transpired:

“Plaintiff’s Counsel: ... Plaintiff objects to the charge, the repeated charge, that the jury must find that Wetterhan was terminated in order for him to recover. And we also, in light of the jury’s [sic] charge, object to the post-special interrogatory form for the reasons I will now state.
“The Court: Now, counsel, you had those and you did not object to them beforehand to let me rule on the objection.”

The plaintiffs attorney argued and the parties made other objections to the court’s charge to the jury. The following then transpired:

“Plaintiffs Counsel: Judge, I specially do not waive an objection to the special interrogatory. I want to make clear that specifically—
“The Court: ... You had the interrogatory in front of you. You did not raise an objection at that point. The purpose of raising the objection at that point is to give the trial judge the opportunity to rule upon it. You didn’t do that. And by not waiving [sic] by a matter of law you did waive it. All right. That’s it. You’ve got your objections on the record. Let’s go off, and that’s the end of it.”

Rule 49(c), Ala. R. Civ. P., provides, in pertinent part:

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”

The trial court submitted the special interrogatory to comply with the mandate of this Court.

In Wetterhan, this Court held: “The evidence puts in dispute the question whether [Wetterhan was] terminated without cause.” 797 So.2d at 432. The special interrogatory addressed that specific factual issue:

“SPECIAL INTERROGATORY
‘You are hereby directed to answer the following question after you have fully considered all of the evidence relating to your answer and the applicable rules of law as explained to you by the Court.
“QUESTION: Was the Plaintiff, John C. Wetterhan, ‘terminated without cause’ as that term is used in the stock option plans so that he is entitled to exercise stock options which were not vested on the date of his termination?
“ANSWER:
“_ 1. Plaintiff, John C. Wet-terhan, was ‘terminated without cause’ by his employer and he may exercise the stock options.
“_ 2. Plaintiff, John C. Wet-terhan, was not ‘terminated without cause’ by his employer and he may not exercise the stock options.”

Rule 49(d), Ala. R. Civ. P., provides:

“In no event shall the procedures of subdivision (b) or (c) of this rule be utilized unless the court, within a reasonable time before final arguments are made to the jury, provides to the attorneys for all parties a copy of the written questions or interrogatories, as the case may be, to be submitted to the jury.”

The court provided Wetterhan’s attorney a copy of the special interrogatory the day before the parties made their closing arguments, and the parties argued in regard to this interrogatory.

The trial court did not err in holding that Wetterhan had waived any objection he had to submitting the special interrogatory to the jury. See Rule 51, Ala R. Civ. P.; Norfolk Southern Ry. v. Bradley, 772 So.2d 1147, 1153 (Ala.2000).

The jury found that Wetterhan was not terminated without cause by his employer; therefore, Wetterhan could not exercise the stock options. There was substantial evidence to support this finding, and this finding was not contrary to the great weight of the evidence.

This Court has considered the other issues presented by Wetterhan and has found those issues, except one, to be beyond the mandate of this Court in Wetterhan. The sole exception is the Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge.

The trial court required each side to give race-neutral reasons for every strike. Both sides did so. Wetterhan, on appeal, contends that the explanations for two of Vesta’s peremptory strikes were a sham and pretext for discrimination. These were the strikes of the only venire-members — white or African-American— who stated that their husbands were disabled and were “on disability.” At the time of voir dire, Pierre Gramlich was a plaintiff, and he was suffering from congestive heart failure and was on a list awaiting a heart transplant. Vesta contended that these two jurors were struck because Vesta believed they could be swayed by sympathy for Gramlich. The trial court did not err in holding that this was a race-neutral reason. Olsen v. Rich, 657 So.2d 875, 878 (Ala.1995); Meads v. RPM Pizza, Inc., 689 So.2d 1352 (Ala.1994). Vesta’s concern over the plaintiffs taking advantage of the jurors’ sympathy for someone who was disabled was not a fanciful concern — Gramlich’s poor health was made known to the jury in the plaintiffs’ opening statement and by Gramlich’s testimony.

AFFIRMED.

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

      . There were two appellants in Wetterhan: John Wetterhan and Pierre Gramlich. Before the appeal in the case at issue, Gramlich settled his claims against Vesta.

      . See note 1.


author: WOODALL, Justice. MOORE, Chief Justice

text:
    Ex parte Tarus HALL. (In re State of Alabama v. Tarus Hall).
    1010573.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Barry E. Teague, Montgomery, for petitioner.

      William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for respondent.
   On Application for Rehearing

WOODALL, Justice.

The opinion of June 14, 2002, is withdrawn, and the following is substituted therefor.

Tarus Hall filed this petition for a writ of mandamus or, in the alternative, a writ of habeas corpus after the Montgomery Circuit Court, without a hearing, denied his request to be released on bail. We grant the petition in part and deny it in part.

I.

On September 5, 2001, Tarus Hall was arrested pursuant to a warrant charging him with murder, an offense made capital because the murder was committed during a robbery in the first degree. See § 13A-5 — 40(a)(2), Ala.Code 1975. After his arrest, Hall was placed in the Montgomery County detention facility.

On October 5, 2001, Hall filed a motion to be released on bail; in his motion he requested a hearing. The State filed no response to the motion. On October 18, 2001, without a hearing, the trial court denied the motion.

Hall filed a petition for a writ of habeas corpus in the Court of Criminal Appeals. In response to that petition, the State submitted voluminous evidentiary materials, none of which had been submitted to the trial court. The Court of Criminal Appeals denied Hall’s petition, without an opinion, on December 7, 2001. Ex parte Hall (No. CR-01-0278), — So.2d - (Ala.Crim.App.2001)(table). Hall then filed his petition in this Court.

While this petition for writ of mandamus was under submission to this Court, a Montgomery County grand jury returned an eight-count indictment against Hall, including one count charging Hall with capital murder. Hall remains in the Montgomery County detention facility, and no bail hearing has been held.

The State has responded to Hall’s petition, admitting that “the [trial] court denied bail apparently without conducting a hearing.” However, relying upon the evi-dentiary materials first submitted to the Court of Criminal Appeals, the State argues that Hall is not entitled to bail, because “the proof is evident” that Hall is guilty of capital murder.

In his petition, Hall has requested that this Court determine a reasonable bail for him or, in the alternative, that this Court direct the trial court to schedule a “hearing and thereafter set bail for [him] forthwith.” In response, the State argues that “if this Court determines that [Hall] might be entitled to bail ... .this Court [should] direct the [trial] court to conduct a bail hearing where the facts can be further developed, a bail amount can be set, and restrictions on bail can be imposed.”

II.

Hall contends that he is entitled to reasonable bail because, he says, the evidence against him is weak. The issue raised by such a contention was discussed thoroughly by the Court of Criminal Appeals in Ex parte Landers, 690 So.2d 537, 538 (Ala.Crim.App.1997):

“The petitioner contends that he is entitled to reasonable bail because, he says, the evidence against him is weak.
“According to Article I, § 16, Alabama Constitution of 1901, a person charged with an offense defined as capital by statute may be denied bail.
“ ‘That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall [not] in any case be required.’

“(Emphasis added.) See also Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975); Ex parte Carlisle, 57 Ala.App. 216, 326 So.2d 775, cert. denied, 295 Ala. 396, 326 So.2d 776 (1976); Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979).

“In Burks v. State, 600 So.2d 374 (Ala.Cr.App.), on return to remand, 600 So.2d 387 (Ala.Cr.App.1991), this court addressed the issue whether a person accused of a capital offense is entitled to bail when he alleges that the proof was not evident. This court in Burks stated:

“ ‘The appellant argues that he was entitled to reasonable bond because the proof was not evident nor the presumption great that he was guilty of the capital offense. See Ex parte Bynum, 294 Ala. 78, 82, 312 So.2d 52, 55 (1975). However, “ ‘[w]here one is imprisoned [for a capital offense] by virtue of an indictment he is presumed to be guilty in the highest degree, and to be entitled to bail as of right, must overcome this presumption by proof.’ ” Livingston v. State, 40 Ala.App. 376, 377, 116 So.2d 396, 397 (1959).’

“600 So.2d at 381.

“This court in Burks based its ruling on the Court of Appeals’ holding in Livingston v. State, 40 Ala.App. 376, 116 So.2d 396 (1959), where the court, ruling on the correctness of the trial court’s actions in denying bail in a first degree murder case, stated the following:

“‘The question with which we are presented is whether or not in this state of the record we would be justified in disturbing the judgment of the lower court who saw and heard the witnesses testify and whose conclusion must be accorded a presumption of correctness.
“‘Further, an additional presumption arises from the indictment. “Where one is imprisoned by virtue of an indictment he is presumed to be guilty in the highest degree, and to be entitled to bad as of right, must overcome this presumption by proof. Rogers v. State, 30 Ala.App. 226, 4 So.2d 266 [ (1941) ]; Deaver v. State, 24 Ala.App. 377, 135 So. 604 [(1931)].” Holmes v. State, 39 Ala.App. 422, 102 So.2d 673 [ (1958) ].’

40 Ala.App. at 377, 116 So.2d at 397.”

It is well established that a person accused by indictment of a capital offense must overcome the presumption of his guilt by proof, in order to be entitled to bail. By denying, without a hearing, Hall’s motion to be released on bail, the trial court denied him the opportunity to offer the proof necessary to overcome that presumption. See State ex rel. Smith v. Lowe, 204 Ala. 288, 289, 85 So. 707, 708 (1920)(when “the prisoner is indicted for a capital felony, ... the right to bail ... is to be determined on habeas corpus, on the hearing of which the state and the accused are entitled as of right to have the witnesses heard”).

Although the trial court did not conduct a hearing, the State has attempted to cure that procedural deficiency by submitting evidentiary materials, first to the Court of Criminal Appeals and then to this Court. However, a proper record must be developed in the trial court, before such evidence can be considered by an appellate court. See Holman v. Williams, 256 Ala. 157, 53 So.2d 751 (1951). See also § 15-13-3(a), Ala.Code 1975 (“A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death if the [trial] court is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punishable capitally_”) (emphasis added).

III.

For the foregoing reasons, Hall is entitled to a hearing on his motion to set bail. Therefore, we grant the petition to the extent that we direct the trial court to set aside its order of October 18, 2001, and to schedule a bail hearing. All other relief sought by Hall in his petition is denied.

OPINION OF JUNE 14, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur with the majority’s judgment insofar as it denies some of the relief sought by Tarus Hall. However, I respectfully dissent from the majority’s decision to issue a writ of mandamus to “direct the trial court to set aside its order of October 18, 2001, and to schedule a bail hearing.” 844 So.2d at 574.

I believe the majority’s opinion in this case purports to extend to Tarus Hall a right to a bail hearing that is not given him in the Alabama Constitution. Article I, § 16, Ala. Const, of 1901, provides, in pertinent part, that “all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” (Emphasis added.) The constitutional provision makes no mention of a bail hearing, or the right to such a hearing. Thus, the text of the applicable constitutional provision does not support the majority opinion.

The majority opinion begins its analysis with the correct premise that “a person accused by indictment of a capital offense must overcome the presumption of his guilt by proof, in order to be entitled to bail.” 844 So.2d at 573. The majority errs, however, in concluding that the trial court’s denial of a bail hearing “denied [Hall] the opportunity to offer the proof necessary to overcome that presumption.” 844 So.2d at 573. The majority errs in so concluding because, like all capital defendants seeking to be released on bail, Hall could have “overcome the presumption of his guilt” by proof in his motion to set bond. The trial court, however, did not consider a bail hearing to be necessary and, based on the district attorney’s evidence and Hall’s attempts to rebut that evidence in his motion, it denied Hall’s request for bail.

The majority’s new judicially mandated requirement that a bail hearing be conducted in all capital cases is both extra-constitutional and unnecessary.


author: MOORE, Chief Justice. LYONS, Justice HARWOOD, Justice HOUSTON, Justice

text:
    Ex parte ORKIN EXTERMINATING CO., INC. (In re Phillip Junkin and Debra Junkin v. Orkin Exterminating Co., Inc., et al.)
    1010533.
    Supreme Court of Alabama.
    Sept. 6, 2002.

      Michael L. Bell, Stephen J. Rowe, and William O.L. Hutchinson of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner.
    Thomas F. Campbell, Bert J. Miaño, and Raymond L. Bronner of Campbell & Baker, L.L.P., Birmingham, for respondents.
   MOORE, Chief Justice.

PETITION DENIED.

WOODALL, J., concurs.

LYONS, JOHNSTONE, and HARWOOD, JJ., concur specially.

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

LYONS, Justice

(concurring specially).

Phillip and Debra Junkin sued Orkin Exterminating Co., Inc., in the Tuscaloosa Circuit Court on August 10, 2001. Phillip is a member of a class of Orkin customers certified by the Houston Circuit Court on November 17, 1997, in an action styled Cutler v. Orkin Exterminating Co., case no. CV-96-184. In its order certifying a class, the trial court in Cutler narrowed the scope of the action to claims alleging economic loss only. The trial court ordered that notice of the right to decline to participate in the class action by opting out be given to all class members by mail and publication.

The JunMns’ separate action against Or-kin in the Tuscaloosa Circuit Court seeks compensatory and punitive damages arising out of the same relationship with Or-kin. The scope of relief claimed in this proceeding goes far beyond the economic-loss claims to which the Cutler litigation has been confined.

Orkin filed a motion for abatement of the Tuscaloosa County action, relying upon § 6-5-440, Ala. Code 1975, which provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

The trial court denied the motion. Orkin has filed a petition for a writ of mandamus directing the trial court to abate those proceedings.

Orkin has not made a copy of the notice mailed to members of the class in Cutler a part of the materials in this proceeding. According to the materials before us, Phillip was mailed a copy of the notice, and notice was also given by publication. We also do not have before us any specimens of the published notice. I am constrained to concur to deny the petition as to Phillip because Orkin has failed to show that it has a clear legal right to the extraordinary writ. See Ex parte Maxwell, 812 So.2d 333, 334-35 (Ala.2001).

Without the materials dealing with the notice before us, we are left to speculate as to the content of the notice. While it is unlikely that the notice deviated from the requirements set forth by the trial court and that Orkin overlooked the discrepancy, the writ would lose its extraordinary status if we accommodated petitioners by making favorable assumptions about the content of critical documents not before us.

I also concur to deny the petition as to Debra. We have no basis on which to conclude that she was mailed a copy of the notice, nor do we know the contents of any publication she might have seen.

I express no opinion concerning the propriety of the trial court’s order denying Orkin’s motion for abatement of the Tuscaloosa County action based upon § 6-5-440, Ala.Code 1975.

JOHNSTONE, J., concurs.

HARWOOD, Justice

(concurring specially).

I concur in the denial of the petition for a writ of mandamus. Critical to my decision in that regard is the fact that nowhere in the materials submitted by petitioner, i.e., the text of, and the exhibits attached to, (1) the petition for the writ of mandamus filed by Orkin Exterminating Co., Inc.; (2) “Plaintiffs Answer and Brief in Opposition to Defendants’ Petition for Writ of Mandamus”; and (3) “Orkin Exterminating Co., Inc.’s Reply Brief in Support of its Petition for Writ of Mandamus,” are we informed as to the text, or the content, of the notices provided to the eligible class members. The trial judge made the following specific observation and directive in his “Order Granting Class Certification”:

“If a potential class member in Alabama has actual unreimbursed physical damages claims against Orkin, he or she is very likely going to opt out of the Class here certified. Any mailed form of the Class Notice which is approved by the Court shall advise Orkin customers as to the limitations on the recovery herein sought.”

The “Notice” section of the order directed class counsel to submit to the court “a proposed form of mailed notice of the pen-dency of this class action; a summary notice for publication purposes; a proposed notice plan for dissemination of class notice; and a proposed notice order.”

Included as an exhibit to Orkin’s reply brief is a copy of the trial court’s “Order Directing Class Notice” dated February 5, 1998. In that order the court stated that it had determined that it was appropriate to approve a submitted form to be mailed to the class members and a “summary published notice”; the order further stated that class counsel were “authorized and directed to disseminate mailed and published notice as soon as practical.” This order does not provide any information concerning the content of any of those notices. In its order granting class certification, the trial court noted that “[t]he Plaintiffs have emphasized at the class hearing that they sue on behalf of Alabama customers only for the economic losses in respect to the contract charges (including interest thereon), and not for the individualized home structural physical damage claims.” The court then stated in the conclusion section of its order that “[ejxcluded from the Class are ... (g) the claims for damages of any Class member that are based on the amount of physical damage or loss to their homes or structures from Termite infestation.”

Orkin attaches as an exhibit to its petition the affidavit of a paralegal working for Orkin’s counsel, advising that “[following the end of the opt-out ... I looked through all of the opt-out forms filed with the clerk of the aforesaid court and did not find a form containing any of the following names: Phillip Junkin, Debra Junkin.” Orkin attaches as an exhibit to its reply brief the affidavit of another paralegal, employed by lead counsel for the plaintiffs, attesting that she “was involved in assembling the envelopes and class action notice for mailing” and that the notice “was inserted into in the envelopes, labeled, sorted for mailing, and taken over to the main downtown Birmingham post office for mailing.” Orkin asserts in the reply brief that “[t]he list of approximately 48,000 names and mailing addresses included plaintiff Phillip Junkin’s name and address,” attaching as an exhibit a page purported to represent “Class List, p. 1431,” and on which is listed the name of Phillip Junkin and the address of “15326 Tierce Lake Road, Northport, AL 35475.” Apparently, notice was sent only to Phillip Junkin and not his wife and coplaintiff, Debra Junkin.

Given that we do not know what the mailed notice sent to Phillip Junkin advised him concerning the nature of the class and the nature of the included, as well as excluded, claims, and that we do not know what it stated in compliance with the trial judge’s order that it should “advise Orkin customers as to the limitations on the recovery herein sought” and their rights to opt out, I cannot conclude that Phillip Junkin’s failure to opt out of the class action represented his intent to forgo his “actual unreimbursed physical damages claims against Orkin.” Moreover, I certainly cannot conclude that Debra Junkin is prosecuting a second “same” action, inasmuch as a class notice was sent only to Phillip Junkin. In other words, I cannot agree that Orkin has sustained the burden it bears in petitioning for the writ of mandamus, of showing that there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 52 (1999). See also Ex parte Bailey, 814 So.2d 867 (Ala.2001).

JOHNSTONE, J., concurs.

HOUSTON, Justice

(dissenting).

Alabama Code 1975, § 6-5-440, provides that a party may not prosecute two actions in the courts of this State at the same time for the same cause and against the same party. Junkin v. Orkin Exterminating Co. (CV-2001-1038, Tuscaloosa Circuit Court), and Cutler v. Orkin Exterminating Co. (CV-96-184, Houston Circuit Court), contain the same parties and arise out of the same nucleus of operative facts. (See Orkin’s petition for writ of mandamus, pp. 9-10; Equity Res. Mgmt. Co. v. Vinson, 723 So.2d 634 (Ala.1998); Smith v. Scott Paper Co., 620 So.2d. 976 (Ala.1993); Crutcher v. Wynn, 591 So.2d 453, 454 (Ala.1991), quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990).) Therefore, because the pendency of the first action (Cutler v. Orkin) is a good defense to this subsequently filed action (Ex parte University of South Alabama Foundation, 788 So.2d 161 (Ala.2000), and Ex parte Speedee Cash of Alabama, Inc., 806 So.2d 389 (Ala.2001)), this subsequently filed action must be dismissed pursuant to Alabama Code 1975, § 6-5-440.

I would grant the petition and issue the writ of mandamus. Therefore, I must dissent.

BROWN, J., concurs.