author: SEE, Justice. STUART, Justice

text:
    Ex parte William Felix VERZONE. (In re William Felix Verzone v. State of Alabama).
    1011820.
    Supreme Court of Alabama.
    April 25, 2003.
    James M. Byrd, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Robin Blevins Scales and Stephanie N. Morman, asst, attys. gen., for respondent.
   SEE, Justice.

The Mobile Circuit Court convicted William Felix Verzone of first-degree armed robbery, committed while the manager of a gasoline service station was making a night deposit at an AmSouth Bank branch. The trial court sentenced him to 20 years in prison; the sentence was split so that he was to serve 3 years in detention and 5 years on supervised probation.

The evidence presented at trial showed the following. Juliann Bradford picked up her sister Melanie Frazier after Frazier’s shift at the Pilot Service Center, a gasoline service station and convenience store. Frazier and Bradford went to the Am-South Bank to deposit that day’s receipts, and Bradford got out of the car holding the deposit bag. An armed man wearing a ski mask ran up to Bradford, pointed a gun at her, and demanded the money. Bradford gave the man the deposit bag; he jumped into a Mazda Protege automobile and fled. Bradford and Frazier followed the Mazda in their car while Bradford telephoned emergency 911 on her cellular telephone. After they lost sight of the Mazda, Bradford and Frazier went back to the Pilot Service Center and telephoned the police, who arrived shortly after the call to interview them.

Suspicion fell on William Verzone, Kali Verzone, Carl Bailey, and Debra Jones. All four were arrested for the robbery the same night it occurred. The testimony of William Verzone’s codefendants suggested that he helped plan and direct the robbery and that he aided in hiding evidence after the robbery. The evidence indicates that it was Carl Bailey, wearing a ski mask, who drove up to the AmSouth Bank in a Mazda automobile, robbed Bradford at gunpoint, got back into the Mazda, and fled.

Bailey testified that he and Debra Jones lived in William Verzone and Kali Ver-zone’s home. Bailey testified that William Verzone suggested that they rob the Pilot Service Center and that he agreed to do so to pay Verzone for debts he owed him for drugs Verzone had supplied to Bailey. Bailey stated that Verzone gave him a cellular telephone so that Bailey and Ver-zone could communicate about the robbery. Bailey stated that Verzone followed Frazier and Bradford from the Pilot Service Center to the bank, and that Verzone telephoned Bailey to tell him when the women got to the bank and to describe their car. Nowhere in the record, however, is there any evidence presented by the State indicating that police found a cellular telephone that had been used during the robbery, or that the police had verified Bailey’s story by checking telephone records. Nor does the record contain any-evidence presented indicating that Verzone was in the vicinity of the bank when Bailey carried out the robbery.

Bailey also testified that after the robbery, Verzone told him to hide the getaway car behind Verzone’s automobile body shop. Bailey worked in the same building in which Verzone’s body shop did business, and the State in its brief to this Court points to no evidence to corroborate the assertion that Verzone instructed Bailey to hide the getaway car there. Bailey also claims that Verzone gave him the gun used and the clothes worn during the robbery. Verzone acknowledged that the gun (which was found in the laundry room of the house Verzone shared with Bailey) belonged to him, but he denied giving it to Bailey for the robbery. There is no evidence indicating that the clothes Bailey was wearing during the robbery (which were found in a shed behind the house) were not Bailey’s.

The admitted involvement of Verzone’s wife Kali weakens the corroborative implication of the gun. Kali formerly worked at the Pilot Service Center, and thus had inside information about how the service station handled its deposits. Frazier testified that the night of the robbery, she received a telephone call from Kali, who was trying to determine when Frazier was going to leave the service station. Frazier testified that Kali had never telephoned her at work before that night.

Kali testified at trial regarding her involvement in the robbery. Kali admitted telephoning Frazier to try to determine when Frazier would be making the deposit. She also admitted that she had disposed of the cheeks taken during the robbery, and she directed police to a ditch where the checks, wadded into a ball and wrapped with duct tape, were found. Kali also told police where they could find the clothes Bailey was wearing during the robbery when investigators came to the Ver-zones’ house to investigate Kali’s telephone call to Frazier at the service station. Also, after all of the other defendants had been taken by police to the police station, Kali told the investigators that they could find the money stolen from the service station hidden in a pillowcase on her bed. The police found the money there.

Verzone appealed his conviction on these facts, arguing that the evidence at trial presented a fatal variance between his conviction and his indictment in that the indictment charged him with the first-degree armed robbery of Melanie Frazier, while the evidence at trial showed that Juliann Bradford had been robbed at gunpoint. Verzone also argued that the evidence at trial was not sufficient to convict him because, he says, the only evidence against him was the uncorroborated testimony of his accomplices.

The Court of Criminal Appeals affirmed Verzone’s conviction in an unpublished memorandum, finding that the indictment sufficiently apprized Verzone with a reasonable degree of certainty of the nature of the accusation against him, citing Moore v. State, 659 So.2d 205, 208 (Ala.Crim.App.1994). See Verzone v. State (No. CR-01-0698, May 24, 2002), 860 So.2d 918 (Ala.Crim.App.2002)(table). The Court of Criminal Appeals also found that the independent evidence against Verzone sufficiently corroborated his code-fendants’ testimony against him to support his conviction. Verzone petitioned this Court, and we granted certiorari review to consider the merits of Verzone’s arguments. We reverse and remand.

Verzone argues that the Court of Criminal Appeals’ decision in his case conflicts with Ex parte A.T.M., 804 So.2d 171 (Ala.2000), and Ex parte Hightower, 443 So.2d 1272 (Ala.1983), because, he says, the explanations of the fatal variances in those cases are analogous to the variance in his case; thus, he asserts, the Court of Criminal Appeals’ decision in his case is in error.

Verzone quotes Ex parte A.T.M. for the following holding:

“[T]he evidence affirmatively proved that T.R. was not the alleged victim Kamatra R., and the record contains no evidence that A.T.M. sexually abused any Kamatra R. Because the State could seek to indict A.T.M. for the sexual abuse of T.R. on the basis of T.R.’s testimony, allowing the State to produce the same evidence — the testimony of T.R. — to prove the sexual abuse of ‘Ka-matra R.’ by A.T.M. would be ‘substantially injurious’ to A.T.M.”

804 So.2d at 173-74. He also cites Ex parte Hamm, 564 So.2d 469, 471 (Ala.1990), for the following holding:

“A variance in the form of the offense charged in the indictment and the proof presented at trial is fatal if the proof offered by the State is of a different crime, or of the same crime, but under a set of facts different from those set out in the indictment. Ex parte Hightower, 443 Solid 1272, 1274 (Ala.1983).”

In Verzone’s case, his indictment alleged as follows:

“[Verzone] did in the course of committing a theft of property to-wit: lawful United States currency and/or checks, the property of Pilot Service Center, use or threaten the imminent use of force against the person of Melanie Frazier, with intent to compel acquiescence to the taking of or escaping with the property, while the said William Verzone or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41(a)(1) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

While the Court of Criminal Appeals upheld Verzone’s conviction under the theory that Verzone’s indictment sufficiently informed him of the charges he faced so that he could mount a defense, this Court, in Ex parte A.T.M., quoted Rupert v. State, 45 Ala.App. 84, 86, 224 So.2d 921, 922 (1969), for the proposition that “ ‘to be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge.’ ” 804 So.2d at 173.

The State argues that Pilot Service Center was the true owner of the money, that Pilot Service Center was mentioned in the indictment, and that, therefore, Verzone was properly informed of the charges against him. In support of this argument, the State cites McKeithen v. State, 480 So.2d 36, 38 (Ala.Crim.App.1985):

“ ‘There is no requirement in establishing a prima facie case of robbery that the property stolen belong to the robbery victim.... There is no material variance between an indictment which charges that the property taken was the personal property of a named individual and proof showing that the property belonged to another....’”

Quoting Raines v. State, 429 So.2d 1104, 1106 (Ala.Crim.App.1982). However, the McKeithen case did not hold that a variance in the identity of the robbery victim was not a material variance; instead, it held that the fact that the property stolen did not actually belong to the person from whom it was stolen was not a material variance.

The State’s emphasis on the ownership of the property is misplaced, because Verzone was not charged with theft of property. Instead, he was charged with robbery, which is a crime against the person; it does not require that a theft be accomplished for the elements of robbery to be established.

Section 15-8-90, Ala.Code 1975, provides: “An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.” Section 15-8-91 continues: “If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time.... ” These statutes suggest that where there is a material variance, such as incorrectly describing a person (such as the victim) in the indictment, an amendment of the indictment is appropriate for a valid prosecution.

In this case, the State made no attempt to amend or dismiss the indictment charging the armed robbery of Melanie Frazier and to reindict Verzone under a new indictment properly charging him with the armed robbery of Juliann Bradford. The State’s failure to do so resulted in a fatal variance between Verzone’s indictment and the proof presented at trial, and Verzone’s conviction under the original indictment is therefore void.

We are persuaded that indicting Ver-zone for the armed robbery of Frazier, when the evidence at trial indicated that Bradford was the robbery victim, “expose[d] him to the danger of a second trial on the same charge” for the robbery of Juliann Bradford. Ex parte A.T.M., 804 So.2d at 173. We therefore reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

HOUSTON, J., concurs in the result.

STUART, J., dissents.

STUART, Justice

(dissenting).

I agree with the majority’s conclusion that the Court of Criminal Appeals did not adequately address and resolve the issue Verzone presents. I also agree that the State’s offered resolution of the issue is, likewise, unsatisfactory. However, I respectfully disagree with the majority’s conclusion that “a fatal variance between Ver-zone’s indictment and the proof presented at trial,” 868 So.2d at 402-03, existed, resulting in a void conviction. Specifically, I maintain that Melanie Frazier was also a victim of the robbery. Thus, I reject the majority’s conclusion that the State presented evidence indicating that a different crime from the one charged in the indictment was committed.

The majority properly notes that this Court stated in Ex parte A.T.M., 804 So.2d 171, 173 (Ala.2000), that “ ‘to be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge’ ” (quoting Rupert v. State, 45 Ala. App. 84, 86, 224 So.2d 921, 922 (1969)). The majority reasons that because robbery is a crime against the person and because Juliann Bradford was in actual physical possession of the money when it was taken, she — and not Frazier — was the only victim of the robbery and consequently the indictment is fatally defective. I disagree.

This Court stated in Ex parte ATM.:

‘The State has the burden of proving that the person named in the indictment as being the victim of the offense was, in fact, the victim.’ Sockwell v. State, 675 So.2d 4, 21 (Ala.Crim.App.1993). ‘To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge.’ Rupert v. State, 45 Ala.App. 84, 86, 224 So.2d 921, 922 (1969); Helms v. State, 40 Ala.App. 622, 624, 121 So.2d 104 (1960). ‘The purpose of the [fatal variance] rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results.’ Vaughn v. State, 236 Ala. 442, [445,] 183 So. 428, 430 (1938). In House v. State, 380 So.2d 940, 942-43 (Ala.1979), this Court adopted the fatal variance rule as stated in 42 C.J.S. Indictments and In-formations § 265 (1944):
“ ‘ “Where it is necessary to state the name of a third person as a part of the description of the offense, the name must be correctly stated and a material variance is fatal.... The modern rule, however, is that it is a question of identity; and where the identity of the person named in the indictment with the one named in the evidence is established, or where the inaccuracy is not misleading or substantially injurious to accused, the variance is not fatal.” ’ (Citations to Alabama cases omitted.)”

804 So.2d at 173 (emphasis added).

In Ex parte A.T.M., this Court held that because the victim, who testified at trial that she had been sexually abused by A.T.M., was not the victim named in the indictment, a fatal variance existed between the evidence produced at trial and the charge in the indictment. Clearly, the variance was substantially injurious to A.T.M.; he was defending at trial a charge different from the offense charged in the indictment.

Robbery is an offense against both the person and the property. Section 13A-8-41(a)(1), Ala.Code 1975, provides:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 [robbery in the third degree] and he:
“(1) Is armed with a deadly weapon or dangerous instrument.... ”

Section 13A-8-43 provides:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

(Emphasis added.) Thus, a victim in a robbery is either the owner of the property or any person present at the time force is used to facilitate the taking of the property.

The indictment charging Verzone states that Verzone

“did in the course of committing a theft of property to-wit: lawful United States currency and/or checks, the property of Pilot Service Center, use or threaten the imminent use of force against the person of Melanie Frazier, with intent to compel acquiescence to the taking of or escaping with the property, while the said William Verzone or another participant was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41(a)(l) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

This indictment carefully tracks the language of §§ 13A-8-41(a)(l) and 13A-8-43(a)(2), Ala.Code 1975. As the object of the prepositional phrase within the phrase “the person of the owner” in § 13A-8-43(a)(2) the State substituted for “the owner” the name of the person who was in constructive possession of the property and was present at the time force was used — “Melanie Frazier.”

The evidence established that Frazier was an employee of the business that owned the money and that she was entrusted with taking the money to the night depository at closing. Thus, Frazier had constructive possession of the money at the time Carl Bailey, Verzone’s accomplice, approached Bradford. Frazier was present while Bailey took the money and fled.

If Frazier had not feared for her life and for Bradford’s life, she would have taken steps to prevent the robbery. Thus, Frazier fits the definition of a “victim” of a robbery.

Verzone’s argument, reduced to its essence, is that only one person can be the victim of a robbery. I disagree. As the California Court of Appeals has held:

“ ‘When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals. All must be placed in fear or forced to unwillingly give up possession. To the extent that any threat may provoke resistance, and thus increase • the possibility of actual physical injury, a threat accompanied by a taking of property from the victims’ possession is even more likely to provoke resistance. We view the central element of the crime of robbery as the force or fear applied to the individual victim in order to deprive him of his property. Accordingly, ... force or fear is applied to two victims in joint possession of property.’ ”

People v. Clay, 153 Cal.App.3d 433, 459, 200 Cal.Rptr. 269, 281 (1984)(quoting People v. Ramos, 30 Cal.3d 553, 589, 180 Cal. Rptr. 266, 286-87, 639 P.2d 908, 928-29 (1982), rev’d on other grounds, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)). Indeed, the Court of Criminal Appeals followed the same rationale in Woods v. State, 55 Ala.App. 450, 316 So.2d 698 (Ala.Crim.App.1975), when it held that both the pharmacist who had actual possession of the drugs and the salesclerk who had a gun pointed in her back were victims of the robbery.

In Hill v. State, 145 Ala. 58, 40 So. 654 (1906), this Court stated:

“Blackstone defines robbery to be ‘the felonious and forcible taking from the
person of another goods or money to any value by violence or putting him in fear.’ And all of the authors, while departing in some respects from the language used by Mr. Blackstone, contain in their definition the same ingredients, and none of which contemplates a taking from a bare possession, but provide that the taking should be from the person.
“A man might have the possession of a thing, yet it might not be upon his person, or under his direct personal control. Mr. Bishop, in his work on Criminal Law (volume 2, §§ 1177, 1178), in discussing what may be deemed the ‘person,’ says: ‘Since robbery is an offense as well against the person as the property, the taking must be, in the language of the law, from the person. The meaning of this legal phrase is, not that the taking must necessarily be from the achual contact of the body, but if it is from under the personal protection that will suffice. Within this doctrine, the person may be deemed to protect all things belonging to the individual, within a distance not easily defined over which the influence of the personal presence extends.’ ”

145 Ala. at 58, 40 So. at 654-55.

In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), this Court, discussing common-law robbery, stated:

“ ‘The authorities are well-nigh uniform to the position that the violence or putting in fear which is an essential element of the crime of robbery must precede or be concomitant with the act by which the offender acquires the possession of the property. The offense is against both the person and against the property. In so far as it is against the person, it consists in personal violence or personal intimidation.’
‘Where the property was in the control, custody, and protection of the person from whom it is alleged to have been taken, it is not necessary to sustain a conviction of robbery, that it should have been in actual physical contact with his person.’

273 Ala. at 550-51, 142 So.2d at 870-71 (emphasis added).

Here, the facts present one robber taking from two victims. Bradford was in actual possession of the money; Frazier was in constructive possession of the money. The money taken was under the personal protection of Frazier. Bradford and Frazier both were put in fear for their lives during the taking. Thus, both Frazier and Bradford were victims of the robbery, and the naming of either or both as victims in the indictment was appropriate.

Verzone was informed of the charge against him and was able to prepare his defense. Additionally, he was not exposed to the danger of a second trial on the same charge because there was only one taking of property. No fatal variance occurred in this case.

      . Kali was apparently allowed to remain at home because the investigating officer did not want to expose her four-month-old child to the unusually cold night air.

      . In his brief to this Court, Verzone says this language is from Ex parte Hightower, but it is actually a quotation from Ex parte Hamm citing Ex parte Hightower.

      . See § 13A-8-41, Ala.Code 1975 (''[a] person commits the crime of robbery in the first degree if he violates Section 13A-8-43 [robbery in the third degree] and he: (1) Is armed with a deadly weapon....”). See also the annotations to this Code section, under III.B., "Taking,” which state: "The present robbery statutes do not require a 'taking' of property, ... [so that] the indictment need not allege an actual theft to constitute the offense. Grace v. State, 431 So.2d 1331 (Ala.Crim.App.1982).”

      . Because we hold that the Court of Criminal Appeals erred in affirming Verzone's conviction, we need not address his other argument that his conviction should be reversed because it was based solely on the uncorroborated testimony of his codefendants.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    William Felix VERZONE v. STATE of Alabama.
    CR-01-0698.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    James M. Byrd, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court’s opinion in Ex parte Verzone, 868 So.2d 399 (Ala.2003), we reverse the appellant’s conviction and remand this case to the trial court for proceedings that are consistent with that opinion. We note that, based on Ex parte Wood, 564 So.2d 860 (Ala.1990), and State v. Saxton, 724 So.2d 77 (Ala.Crim.App.1998), it appears that the State may, if it so chooses, rein-dict the appellant for the first-degree robbery of Juliann Bradford.

REVERSED AND REMANDED.

McMILLAN, PH., and COBB, SHAW, and WISE, JJ., concur.


author:
HOUSTON, Justice.
     JOHNSTONE, Justice
      LYONS, Justice

text:
    A.L. PARRISH et al. v. BLAZER FINANCIAL SERVICES, INC., et al.
    1010002.
    Supreme Court of Alabama.
    May 30, 2003.

      Jerry O. Lorant of Lorant & Associates, P.C., Birmingham, for appellants.
    John R. Chiles of Burr & Forman, LLP, Birmingham, for appellees.
   HOUSTON, Justice.

This appeal involves, among other things, certain disclosure requirements of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), as they relate to “check-in-the-mail” loan programs. A.L. Parrish appeals from the Jefferson Circuit Court’s summary judgment on Parrish’s TILA claims and from that court’s order decertifying the class. We affirm.

I. Facts

The procedural history of this case, initiated by Parrish in 1992, has been somewhat tortured; most of that history is not relevant here. We limit our focus to the facts necessary to resolve the narrow issues before us. Those facts, which are generally undisputed, are as follows.

Blazer Financial Services, Inc., and Great Western Financial Corporation (hereinafter referred to collectively as “Blazer”) mailed loan solicitations to some of its customers in what became known as Blazer’s “check-in-the-mail” (“CIM”) program. Customers included on the CIM mailing list would receive from Blazer a solicitation letter; at the bottom of the letter was a detachable check. The letter, which displayed Blazer Financial’s logo and address at the top, instructed the recipient to read the text printed on the reverse side of the letter under the heading “Loan Agreement and Federal Disclosure Statement” (“the loan agreement”).

When a customer cashes the check, a Blazer representative contacts the customer to confirm the loan and notifies them of the date that the check clears Blazer’s bank. Additionally, within 30 days of the date the check is cashed, Blazer mails the customer a follow-up TILA disclosure form and a payment book that specifies the starting date of the loan.

Parrish received the CIM solicitation letter and the attached check; he cashed the check, thereby becoming a debtor to Blazer. Parrish eventually defaulted on this loan. Later, Parrish sued Blazer, asserting violations of the TILA, as well as other claims that have since been dismissed.

On Parrish’s motion, the trial court certified the action as a class action, naming as class members approximately 11,000 individuals who had obtained loans through Blazer’s CIM program. Subsequently, Blazer filed counterclaims against many of the class members who, like Parrish, were in default on their loans.

After much procedural wrangling, the trial court granted Blazer’s motion for a summary judgment as to all of Parrish’s claims and granted Blazer’s motion to de-certify the class. This appeal followed.

II. Analysis

Parrish raises two issues on appeal. First, Parrish argues that the trial court erred in entering a summary judgment on his claims alleging that Blazer had violated the TILA by failing to make proper disclosures and by failing to provide Parrish with a duplicate copy of the legal obligations arising out of his loan. Second, Parrish contends that the trial court erred in decertifying the class.

We review a summary judgment de novo and in accordance with the following principles:

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“... Ala.Code 1975, § 12-21-12, mandates that the [nonmovant] meet [its] burden by ‘substantial evidence.’ Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

However, we review a trial court’s decision to decertify a class by determining whether the trial court, in reaching that decision, exceeded its discretion. Lackey v. Central Bank of the South, 710 So.2d 419, 421 (Ala.1998)

A. Parrish’s TILA claims

“The [TILA] has the broad purpose of promoting ‘the informed use of credit’ by assuring ‘meaningful disclosure of credit terms’ to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (quoting 15 U.S.C. § 1601). Because the TILA is a “consumer protection statute which ... is remedial in nature,” its disclosure requirements are to be “construed liberally in order to best serve Congress’ intent.” Ellis v. General Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir.1998). In order to carry out its intent to assure “meaningful disclosure,” Congress has empowered the Board of Governors of the Federal Reserve System to

“prescribe regulations to carry out the purposes of [the TILA].... [T]hese regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of [the TILA], to prevent circumvention or evasion thereof, or to facilitate compliance therewith.”

15 U.S.C. § 1604(a). The implementing regulation for the TILA is known as “Regulation Z” (12 C.F.R. § 226), and the Board’s official interpretations of the TILA and Regulation Z are dispositive unless they are “demonstrably irrational.” Milhollin, 444 U.S. at 565-68, 100 S.Ct. 790.

1. “Date of loan” and “due date” information

Parrish claims that the CIM program violates the TILA because, he contends, the loan agreement — the only document in the hands of the customer after the customer cashes the check attached to the solicitation letter — does not disclose the date of the loan or when the payments on the loan are due. We disagree.

With regard to most consumer-credit transactions such as the CIM program, the TILA requires the disclosure of “[t]he number, amount, and due dates or period of payments scheduled to repay the total of payments.” 15 U.S.C. § 1638(a)(6) (emphasis added). Additionally, Regulation Z requires disclosure of the “timing of payments scheduled to repay the obligation.” 12 C.F.R. § 226.18(g).

The loan agreement provided:

“The DATE OF THE LOAN shall be and FINANCE CHARGES SHALL BEGIN TO ACCRUE the date the check (Note) is paid by Creditor’s bank. FIRST PAYMENT DUE DATE is one month after the Date of the Loan.”

(Capitalization original.) Parrish contends that this language is insufficient as disclosure under the TILA because it does not provide the exact date the loan commenced and the date the first and subsequent payments are due.

Blazer responds by arguing that Regulation Z, as it read at the time Parrish received the solicitation materials for the CIM program, allowed for “delayed disclosure” of the date of the loan in situations where the loan is commenced without direct, “face-to-face” solicitation:

“(g) Mail or telephone orders — delay in disclosures. If a creditor receives a purchase order or a request for an extension of credit by mail, telephone, or any other written or electronic communication without face-to-face or direct telephone solicitation, the creditor may delay the disclosures until the due date of the first payment, if the following information for representative amounts or ranges of credit is made available in written form to the consumer or to the public before the actual purchase order or request:
“(1) The cash price or the principal loan amount.
“(2) The total sale price.
“(3) The finance charge.
“(4) The annual percentage rate, and if the rate may increase after consummation, the following disclosures:
“(i) The circumstances under which the rate may increase.
“(ii) Any limitations on the increase, “(in) The effect of an increase.
“(5) The terms of repayment.”

12 C.F.R. § 226.17(g) (1990)(emphasis added).

Blazer argues that the CIM program qualifies as a written request for a loan (given the fact that the loan is initiated by the customer’s signing and cashing the check, without face-to-face communication with a representative of Blazer), and that it made delayed disclosures by 1) telephoning CIM program customers to notify them of the date their check cleared Blazer’s bank, and 2) mailing letters to its customers within 30 days of the check’s clearance to confirm that date. Blazer contends that it would not be possible to give a specific payment-due date in the loan agreement because Blazer cannot, given the nature of the CIM program, be certain when a customer will cash the check.

Blazer’s contention that the disclosures made through its CIM program are proper under 12 C.F.R. § 226.17(g) appears to be consistent with the Federal Reserve Board’s own interpretation of that regulation:

“Section 226.17(g) allows creditors to defer TILA disclosures when a consumer makes a credit purchase or requests credit by mail, telephone, or any other written or ‘electronic communication’ without face-to-face or direct solicitation by the creditor. The deferral rule predates online or Internet banking; the term ‘electronic communication’ included credit requests by telegraph transmissions and facsimiles. The rationale underlying the deferral is that creditors cannot provide transaction-specific disclosures in written form as required by the regulation at the time of the consumer’s purchase or request. In such cases, creditors may delay providing disclosures until the first payment due date, provided certain information has been ‘made available in written form’ before the consumer’s request.
“The interim final rule provides as did the 1999 proposal that creditors offering loan products by electronic communication (for example, those offered on the Internet) may not delay providing disclosures under § 226.17(g). The difficulties in providing disclosures for credit requests by mail or telephone are not present for credit requests received by e-mail or through the Internet. Thus, specific disclosures must be provided before transactions are consummated using electronic communication as defined in § 226.36. The language has been revised from the proposal to clarify that the deferral rule in § 226.17(g) remains available to creditors offering loan products by facsimile machine (as well as mail and telephone) without face-to-face or direct telephone solicitation.”

Truth in Lending, 66 Fed.Reg. 17,329, 17,-333 (March 30, 2001) (to be codified at 12 C.F.R. pt. 226) (emphasis added).

“Section 226.17(g) allows credit to be offered via mail, telephone, or other electronic means and full TILA disclosures to be deferred as long as a certain number of disclosures are ‘made available in written form.’ The rationale underlying the deferral is that, in some instances, the creditor cannot provide disclosures in the form required by the regulation because of the lack of face to face or direct interaction with the consumer. Because loan products offered by electronic communication (for example, those offered on the Internet) do not appear to pose the same difficulty, the Board believes that this deferral should not apply to electronic disclosures. The Board believes that permitting a deferral would not effectuate the purpose of the TILA to provide consumers with information about credit terms prior to being obligated. Thus, the proposed rule provides that specific disclosures must be provided before consummation of the transaction.”

Truth in Lending, 63 Fed.Reg. 14,548, 14,-549-50 (March 25, 1998) (to be codified at 12 C.F.R. pt. 226) (emphasis added); see also Truth in Lending, 64 Fed.Reg. 49,722, 49,726 (Sept. 14, 1999) (to be codified at 12 C.F.R. pt. 226).

Additionally, the Board’s interpretation of § 226.18(g), which, as noted above, requires the disclosure of the “timing of payments,” appears to specifically address and approve of CIM loan programs such as Blazer’s:

“Timing of payments, i. General rule. Section 226.18(g) requires creditors to disclose the timing of payments. To meet this requirement, creditors may list all of the payment due dates. They also have the option of specifying the ‘period of payments’ scheduled to repay the obligation. As a general rule, creditors that choose this option must disclose the payment intervals or frequency, such as ‘monthly’ or ‘bi-weekly,’ and the calendar date that the beginning payment is due. For example, a creditor may disclose that payments are due ‘monthly beginning on July 1, 1998.’ This information, when combined with the number of payments, is necessary to define the repayment period and enable a consumer to determine all of the payment due dates.
“ii. Exception. In a limited number of circumstances, the beginning-payment date is unknown and difficult to determine at the time disclosures are made. For example, a consumer may become obligated on a credit contract that contemplates the delayed disbursement of funds based on a contingent event, such as the completion of home repairs. Disclosures may also accompany loan checks that are sent by mail, in which case the initial disbursement and repayment dates are solely within the consumer’s control. In such cases, if the beginning-payment date is unknown the creditor may use an estimated date and label the disclosure as an estimate pursuant to § 226.17(c). Alternatively, the disclosure may refer to the occurrence of a particular event, for example, by disclosing that the beginning payment is due ’SO days after the first loan disbursement.’ This information also may be included with an estimated date to explain the basis for the creditor’s estimate. See Comment 17(a)(1)-5(iii).”

Comment 18(g)4.,' 12 C.F.R. pt. 226, Supp. 1, Subpart C — Closed-End Credit (emphasis added); see also Truth in Lending, 63 Fed.Reg. 16,669, 16,673 (April 6, 1998) (to be codified at 12 C.F.R. pt. 226) (discussing revisions to Comment 18(g)4.).

Even under a liberal construction of the provisions of the TILA we cannot hold that the disclosures included in Blazer’s CIM program were insufficient under the TILA. Under § 226.17(g) of Regulation Z and the Board’s interpretations of that regulation, Blazer’s delayed disclosure of the specific date of the commencement of the loan (i.e., when the check is paid by Blazer’s bank) was proper. Furthermore, the “due date” provision in the loan agreement provided:

“The DATE OF THE LOAN, shall be and FINANCE CHARGES SHALL BEGIN TO ACCRUE, the date the check (Note) is paid by Creditor’s bank. FIRST PAYMENT DUE DATE is one month after the Date of the Loan.”

(Capitalization original.) This provision is consistent with the Board’s interpretation of 12 C.F.R. § 226.18(g) that “disclosure may refer to the occurrence of a particular event, for example, by disclosing that the beginning payment is due ‘30 days after the first loan disbursement.’ ” See Clay v. Johnson, 264 F.3d 744, 747-49 (7th Cir.2001) (discussing Comment 18(g)4. and the elimination of the “prohibition on disclosing the beginning payment date by referring to a specified event”).

2. Alleged failure to provide a copy of written disclosures

Parrish also claims that Blazer violated the requirement of the TILA that disclosures “reflecting] the terms of the legal obligation between the parties” are to be given to Parrish “in a form that [Parrish] may keep.” 12 C.F.R. § 226.17(a)(1), (c)(1). Specifically, Parrish contends that he did not reeeivé a duplicate copy of his signed promissory note, i.e., the signed check Parrish cashed. We find this contention to be without merit.

The reverse side of the check attached to the solicitation letter sent to Parrish provides lines for á signature and a date, a sentence cautioning the customer to “thoroughly read the contract before you sign it,” and the following information:

“AMOUNT FINANCED.$ 1,029.62
FINANCE CHARGE.$ 446.38
TOTAL OF PAYMENTS.$ 1,476.00
ANNUAL PERCENTAGE RATE. 25.11 %
“Repayable in 36 monthly installments of $41.00 each, beginning 30 days from date of loan and then on the same day of each succeeding month until paid.
“In consideration of monies received as a loan, the undersigned jointly and severally promise(s) to pay to Creditor the Total of payments in monthly installments as shown above and further agree(s) to terms and conditions set forth in the accompanying Loan Agreement and Disclosure Statement (‘Agreement’), the provisions of which Agreement are incorporated herein.
“NOTICE TO CONSUMER: BY SIGNING AND DEPOSITING (OR CASHING) THIS, YOU HAVE AGREED TO REPAY MONIES AS STATED. DO NOT SIGN THIS BEFORE YOU READ IT AND THE AGREEMENT, OR IF EITHER CONTAINS ANY BLANK SPACES.
“The undersigned acknowledges receipt of a copy both of this instrument (‘Note’) and the Agreement.”

(Capitalization original.)

Directly above the check, however, this very language (minus the signature line and date line and the cautionary sentence) is repeated below the words “BORROWER’S COPY OF NOTE.” Therefore, Parrish’s argument is actually reduced to the claim that the TILA requires Blazer to provide Parrish with a copy of the note with Parrish’s signature. However, neither § 226.17(a)(1) nor § 226.17(c)(1) requires Blazer to provide Parrish with a duplicate copy of the signed note; rather, those provisions require Blazer only to provide Parrish with a copy of the terms of the legal obligation between them, which, as shown above, Blazer has done.

Based on the above, we hold that Parrish has not presented substantial evidence tending to show that Blazer violated the TILA. Because there is no genuine issue of material fact, and because Blazer is entitled to a judgment as a matter of law, summary judgment was appropriate.

B. Class decertification

Parrish also argues that the trial court erred in decertifying the class. As stated above, the issue is whether the trial court exceeded its discretion in decertifying the class. We hold that the trial court did not exceed its discretion.

The class, of which Parrish was the named representative, was certified under Rule 23(b)(3), Ala. R. Civ. P., and purported to include approximately 11,000 members who had participated in the CIM program. In granting Blazer’s motion to decertify, the trial court explained its rationale as follows:

“The Plaintiff acknowledged in [his] briefs and oral argument that claims for actual damages under TILA should not be certified as a class because developments in the caselaw, such as Turner v. Beneficial Corporation, [242 F.3d 1023] (11th Cir., Feb.22, 2001), required individual proof of the causal link between the violation and those damages. However, Plaintiff [has] continued to insist that ... statutory damage[s] under TILA could properly be pursued as a class action because the class members need not present individual proof in order to establish the violation or their right to recovery. Nevertheless, the Court is convinced that the unique nature of the Plaintiffs TILA claim here is such that it would be inappropriate to attempt to try this case as a class action even for statutory damages.
“The Defendants’ [counterclaims] superimposed upon the TILA claims would create the result that individual proof of claims would predominate over class claims and destroy the manageability of the class. See, e.g., Heaven v. Trust Company Bank, 118 F.3d 735, 738 [ (11th Cir.1997) ].
“Secondly, Plaintiff has relied extensively in the presentation of TILA claims on argumentation that disclosures made on the loan document were not understandable to class members because of their poverty, lack of sophistication, and lack of education. Even if that be the case, it cannot realistically be assumed that all members of the class fit that personal profile, and individual fact-finding would be necessary to identify those persons to whom Plaintiffs arguments would be applicable. The individualization of the claims would in turn make the trial of this action as a class unmanageable.
“Thirdly, Plaintiff [has] argued that language contained in the loan agreement [that] permitted the lender to stop payment on the check if the borrower had obtained a loan from Blazer within the prior sixty (60) days was a source of confusion and itself constituted a Truth-in-Lending Act violation. Yet, because of changes in the form promissory note used, this claim was only available to the Plaintiff Armetha Parrish and not to any other members of the class. Therefore, as to at least a certain portion of the Truth-in-Lending Act claims, Mr. Parrish’s claims were not typical of those of the class.
“Finally, the Court is aware that the statutory damage[s] recoveries for individuals seeking to vindicate their own rights under TILA are potentially as high as $1,000, plus attorney’s fees and costs. By contrast, the portion of each class member’s recovery participating in a pro rata distribution of a class action recovery would be only a small fraction of that amount. This results from the fact that 15 U.S.C. § 1640 establishes a maximum statutory damage[s] recovery for the class equal to the lesser of 1% of the net worth of the lender, or $500,000. The class which was certified in this case includes thousands of class members and, even assuming that the largest possible class recovery were obtained, each class member would receive an extremely small recovery, certainly less than $1 per class member. Given the disparity between the potential recovery as an individual and that as class member, the Court is of the opinion that a class action is not a superior method of adjudicating these disputes as to any class member as required under [Rule 23(b)(3), Ala. R. Civ. P.]
“This Court is aware that other Courts have certified class actions for statutory damages under the Truth-in-Lending Act, while others have declined certification. As the Court understands the matter, it has considerable discretion as to whether or not a class action would provide a superior method of adjudicating the Truth-in-Lending Act claims. It is the opinion of this Court that it would not.
“The Court admits to being influenced in its decision to some degree by the fact that it has concluded that summary judgment must be granted in favor of the Defendant. If the case remained certified as a TILA class action, and summary judgment is granted, then all borrowers under this [CIM] program will be barred from all potential claims under TILA. In exchange for the potential of recovering less than $1 in damages, these individuals will experience the extinguishment of this class which, because of unique circumstances or the choice of different legal theories by their counsel, could be litigated successfully. This Court believes that it is the fair and more appropriate thing to allow the pursuit of potential claims which might be based on currently unknown and unexplored factual distinctions or arguments.”

Class certification under Rule 23(b)(3) is not appropriate when class treatment of an action is not “superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3), Ala. R. Civ. P.; see Compass Bank v. Snow, 823 So.2d 667 (Ala.2001). In this respect, we note that Parrish’s argument that the class should not have been decertified must be premised on Parrish’s argument that the summary judgment as to Parrish’s TILA claim was not appropriate, because if it were not so premised Parrish would be acting, as the trial court noted, to the severe detriment of the remaining class members. While we also find the trial court’s other reasons for decertification persuasive, we hold that, because the summary judgment was appropriate, class treatment was not superior to individual litigation by the class members; therefore the trial court did not exceed its discretion in decertifying the class.

III. Conclusion

For the reasons stated above, the trial court’s judgment is affirmed.

AFFIRMED.

MOORE, C.J., and WOODALL, J., concur.

JOHNSTONE, J., concurs in part, concurs in the rationale in part, and concurs in the judgment.

LYONS, J., concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice

(concurring in part, concurring in the rationale in part, and concurring in the judgment).

I concur fully in the rationale and judgment affirming the summary judgment. But for one exception, I also concur in the rationale and judgment affirming the de-certification of the class. The exception is that I do not agree with the main opinion insofar as it finds persuasive that part of the rationale of the trial court, quoted in the main opinion, to the effect that the defendants’ counterclaims against some defaulting class members “would create the result that individual proof of claims would predominate over class claims and destroy the manageability of the class.”

LYONS, Justice

(concurring in the rationale in part and concurring in the judgment).

I concur in the main opinion’s rationale for affirming the summary judgment entered in favor of Blazer on Parish’s claims under the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. I concur in the result as to its affirmance of the trial court’s order decertifying the class action.

The trial court’s order decertifying the class discusses considerations related to the class prerequisites of manageability, typicality, and superiority. The trial court’s order then recites concerns over the fairness of allowing a summary judgment to be entered against the entire class. The trial court expressed concern over the result applicable to individual members of the class whose claims would be extinguished by the entry of a summary judgment, and yet whose claims, “because of unique circumstances or the choice of different legal theories by their counsel, could be litigated successfully.” I reject this basis for decertification unless the trial court can conclude that the named plaintiffs and their counsel are incapable of representing the class adequately. In other words, absent a showing of inadequacy of representation, a class should not be decertified simply to avoid an adjudication on the merits adverse to the entire class.

I therefore concur only in the result as to that portion of the main opinion holding that, “because the summary judgment was appropriate, class treatment was not superior to individual litigation by the class members.” I concur in the result (a) because I do not find that the trial court exceeded its discretion in decertifying the class on grounds unrelated to the entry of the summary judgment against the named plaintiffs and (b) because Blazer, by contending on appeal that the trial court did not err in decertifying the class, cannot assert error as to that aspect of the trial court’s order justifying decertification on grounds related to the entry of a summary judgment against the named plaintiffs.

      . This case was originally assigned to a different Justice; it was reassigned to Justice Houston on March 19, 2003.

      . The trial court had initially certified this action as a class action and named Parrish as the class representative.

      . Since this action was filed in 1992, Blazer has changed the language of its "Loan Agreement and Federal Disclosure Statement”; however, when we refer to the "loan agreement” we are referring to the loan agreement received by Parrish that provides the basis for this action.

      . This appeal does not challenge the rationality of any of the Board’s interpretations of the TILA or of Regulation Z.

      . Transactions under an "open-end credit plan” are exempted from this rule. 15 U.S.C. § 1638(a).

      .The current version of Regulation Z also allows for delayed disclosure; the differences between the current version and its predecessor are minor. The current version reads, in pertinent part, as follows:
      "If a creditor receives a purchase order or a request for an extension of credit by mail, telephone, or facsimile machine without face-to-face or direct telephone solicitation, the creditor may delay the disclosures until the due date of the first payment, if the following information for representative amounts or ranges of credit is made available. ...”
      12 C.F.R. § 226.17(g)(emphasis added).

      . Parrish does not contend that he was not provided the information required by 12 C.F.R. § 226.17(g)(l)-(5).

      . We find the following cases cited by Parrish in support of his argument factually distinguishable and therefore unpersuasive: Shepeard v. Quality Siding & Window Factory, Inc., 730 F.Supp. 1295, 1300-02 (D.Del.1990) (finding a TILA violation where no payment-due dates were given in a lien contract and where no effort was made to invoke-the "delayed disclosure” provisions of § 226.17(g)); In re Black, 411 F.Supp. 749, 750-51 (S.D.Ohio 1975) (involving documents that gave no indication what part of the month payments would begin to be due and involving a lender who did not use "delayed disclosure”); In re Dangler, 75 B.R. 931, 934 (Bankr.E.D.Pa.1987) (finding a TILA violation where payments were to be made monthly, but there was no disclosure as to what month payments would begin).

      . In fact, the Board has interpreted § 226.17(a)(1) as allowing TILA disclosures to be placed on "a separate sheet of paper” from the credit contract. Comment 17(a)(l)2., 12 C.F.R. pt. 226, Supp. 1, Subpart C — Closed-End Credit.

      . Rule 23(b), Ala. R. Civ. P., provides:
      "An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

      "(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
      Rule 23(a), Ala. R. Civ. P., provides:
      "One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."


author: MADDOX, Retired Justice. LYONS, Justice

text:
    Catherine R. WILKERSON v. Lamondeze JOHNSON.
    1020329.
    Supreme Court of Alabama.
    May 30, 2003.

      Mark C. Wolfe and J. Knox Boteler III of Moore & Wolfe, P.C., Mobile, for appellant.
    Cooper C. Thurber and Brandy B. Osborne of Lyons, Pipes & Cook, P.C., Mobile, for appellee.
   MADDOX, Retired Justice.

This case arises out of an automobile accident that occurred at an intersection in the City of Mobile. The trial judge entered a summary judgment for the defendant, and the sole question presented on this appeal is whether the plaintiff presented substantial evidence creating a genuine issue of material fact as to whether the defendant’s negligence caused the accident. We believe that she did; therefore, we reverse the summary judgment and remand the case.

Facts

Lamondeze Johnson, in his motion for a summary judgment filed in the action brought against him by Catherine Wilkerson, included what he described as a “Narrative of Undisputed Facts.” That narrative reads, in pertinent part, as follows:

“This case involves an automobile accident which occurred on January 30, 2001 at the intersection of Dauphin Island Parkway (‘DIP’) and McVay Drive, in Mobile County, Alabama.... [Wilkerson] claims [Johnson] was negligent....
“[Wilkerson] was driving southbound on DIP and came to a complete stop at a red light at this intersection. [Wilkerson] was in the first position at the red light.... [Johnson] was making a left-hand turn from the turning lane on northbound DIP onto McVay Drive....
“It is undisputed that [Johnson] had the right-of-way because he proceeded into the intersection on a green arrow. In fact, [Wilkerson] watched four or five cars make the left-hand turn in front of [Johnson].... After [Johnson] was a significant distance into the intersection, his signal changed from a green arrow to yellow.... Because this is a very busy intersection, it is not unusual for traffic making this left-hand turn off of DIP onto McVay to back up into the intersection for a short period.... On this occasion [Johnson] was not able to clear the intersection completely prior to [Wilkerson’s] signal turning from red to green.... Instead of waiting for the intersection to clear of traffic which had the right-of-way, [Wilkerson] failed to keep a proper lookout and drove into the passenger rear side of [Johnson’s] vehicle....
“[Wilkerson] failed to allow the intersection to clear of traffic which had the right-of-way prior to proceeding forward. She claims she did not see [Johnson] because her view was obstructed by the car next to her.... The accident report reflects, however that her view was not obstructed.... Further, the photographs attached hereto as Exhibit 5 [Exhibit 5 is not attached to this opinion] indicate it would be nearly impossible for [Wilkerson’s] view of the intersection to be obstructed, as this is a very large intersection with a significant distance between [Wilkerson’s] stopping point at the white line and [Johnson’s] pattern of travel onto McVay Drive.
“[Wilkerson] further claims that as soon as she saw [Johnson], she slammed on her brakes but her car began to skid.... The accident report reflects that [Wilkerson] was traveling approximately 35 miles per hour at the time of the collision.... [Wilkerson], therefore, took off from the red light at a high rate of speed because she admitted she was completely stopped prior to the collision .... Also it is undisputed that the roadway was dry....”

Wilkerson argues that the facts are in dispute, and in her brief on appeal states, in part, the following:

“In the case presently before this Court Lamondeze Johnson claimed he had the right of way to make a left turn and had driven across the white line marking the intersection of Dauphin Island Parkway and McVay Drive under a yellow traffic signal before the collision .... In opposition to this contention, Catherine Wilkerson claimed she entered the intersection, as did the vehicle to her left, upon her traffic signal turning green.... As Catherine Wilkerson entered into the intersection, the vehicle to her left slammed on its brakes.... Within a split second Catherine Wilkerson saw [the Johnson] vehicle coming from the left to the immediate front of her vehicle.... She braked, but skidded into the rear, passenger side of Lamon-deze Johnson’s vehicle....
“Reviewing the evidence in a light most favorable to the non-movant, it was clear there was sufficient evidence to defeat the summary judgment motion. Just as was noted in Kirk [v. Griffin, 667 So.2d 1378 (Ala.Civ.App.1995),] and Allen [v. Hill, 758 So.2d 574 (Ala.Civ.App.1999)], the parties before this Court have a different story as to how the accident occurred. Lamondeze Johnson claimed Catherine Wilkerson hit him as he had the right-of-way, entering the intersection under a yellow light.... Catherine Wilkerson, claimed she, as well as another vehicle, entered the intersection under a green light.... Given the fact the investigating police officer indicated the traffic signals were functioning properly at the time of the collision[,] coupled with the fact Catherine Wilkerson and Lamondeze Johnson could not both enter the intersection legally as they described, an inference can be made, by reviewing the evidence in a light most favorable to the non-movant, that Lamondeze Johnson ran through a red lighted traffic signal while attempting to make a left turn in front of Catherine Wilkerson.... As a result of this inference, the trial court erred in entering summary judgment in favor of Lamondeze Johnson.”

(Wilkerson’s brief, pp. 4-5.)

Analysis

We first state the scope of our review of a summary judgment. In Densmore v. Jefferson County, 813 So.2d 844, 848 (Ala. 2001), this Court, citing earlier cases, stated:

“[W]hen reviewing a ruling on a motion for a summary judgment, this Court applies the same standard the trial court used in determining whether the evidence before the court made out a genuine issue of material fact. 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. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur ance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

In his brief on appeal, Johnson argues that “[n]egligenee of both parties, or absence of negligence” of both parties “precludes recovery by either party,” and that “[rjecov-ery may only be had where one party to an automobile accident is guilty of actionable negligence and the other is not,” citing Winfrey v. Witherspoon’s, Inc., 260 Ala. 371, 71 So.2d 37 (1954); A.B.C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946).

Although evidence was presented in support of the motion for a summary judgment from which a fact-finder might infer that Johnson was not negligent or that Wilkerson was guilty of contributory negligence, we believe that a summary judgment was inappropriate in this case. See Hilburn v. Shirley, 437 So.2d 1252 (Ala.1983). In Hilbum, the plaintiff injured his back when he jumped out of his tractor-trailer rig following an accident. The trial court had granted the defendant’s motion for a summary judgment; this Court held that issues relating to the cause of the accident and the issue whether the truck driver’s jumping out of his vehicle immediately following the collision was the natural and normal response flowing from the defendant’s alleged negligence presented questions for the jury, precluding a summary judgment.

The following cases all involve a collision in an intersection in which the trial court entered a summary judgment. In Nelson v. Meadows, 684 So.2d 145 (Ala.Civ.App.1996), a passenger in a northbound vehicle was injured in a collision at an intersection with a southbound vehicle as the northbound vehicle attempted to make a left turn. The administrator of the estate of the passenger in the northbound vehicle who was killed in the collision brought an action against the drivers of both vehicles and the city, which had contracted with the State to maintain the State-controlled intersection and to report any changes that might require adjustments in the intersection: The Court of Civil Appeals held that a fact issue existed as to (1) whether the southbound driver had been negligent; (2) whether the city’s assumption of a contractual duty to inform the State created a duty owed by the city to the passenger; and (3) whether the city had breached its duty to inform the State of changes in the conditions and whether that breach, if any, was the proximate cause of accident. In Barker v. Towns, 747 So.2d 907 (Ala.Civ.App.1999), a guest passenger brought a personal-injury action against a pickup truck driver’s estate and others arising out of an accident with a logging truck. The trial court granted the motion for a summary judgment filed by the driver’s estate. The Court of Civil Appeals held that genuine issues of material fact existed as to whether the driver saw the truck approaching before he entered the intersection and whether the driver stopped at the stop sign, precluding a summary judgment for driver’s estate on the guest passenger’s personal-injury claim on the ground that there was no evidence of wantonness. But in Hughes v. Anderson, 682 So.2d 463 (Ala.Civ.App.1995), a passenger was injured in a collision at an intersection; the collision occurred while a friend was driving the passenger to a medical appointment in an automobile owned by the passenger. The passenger sued her friend, alleging wantonness, and her friend moved for a summary judgment, which the trial court granted. The Court of Civil Appeals reversed the summary judgment, 682 So.2d 463, and the friend petitioned for a writ of certiorari. This Court held that the friend’s conduct, although possibly negligent in making the left turn that resulted in the collision, did not constitute wanton misconduct so as to allow a recovery under Alabama’s guest statute. Ex parte Anderson, 682 So.2d 467 (Ala.1996). Cf. Berry v. Fife, 590 So.2d 884 (Ala. 1991)(in an action for wantonness, evidence indicating that the driver, who heard a gunshot, ducked below the dashboard, pressed on the accelerator, and knowingly entered an intersection against a red light presented an issue of fact as to whether the driver had acted with reckless disregard for the rights and safety of others, thus precluding a summary judgment).

Based on the foregoing, we conclude that the trial judge erred in entering a summary judgment in favor of Johnson. We reverse that judgment and remand the case.

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.

REVERSED AND REMANDED.

JOHNSTONE and WOODALL, JJ., concur.

LYONS, J., concurs specially.

MOORE, C.J., and HOUSTON, J., concur in the result.

LYONS, Justice

(concurring specially).

Lamondeze Johnson does not cite a single case involving motor vehicles colliding at an intersection in which this Court affirmed a summary judgment for the defendant. Johnson, who was traveling north before he began making his left turn, testified that the green arrow for the left-turn lane changed to yellow after he was a significant distance into the intersection in attempting to make a left turn. Wilkerson, who was traveling south, testified that she did not enter the intersection until her signal turned from red to green. Wilkerson further testified that she did not see Johnson’s vehicle because her view was obstructed by the car to the left of her vehicle, which was traveling in the same direction as she was. According to Wilkerson, that car also elected to enter the intersection when the signal turned green; Wilkerson says that ear avoided colliding with Johnson only because the driver of that vehicle slammed on its brakes. Wilkerson, in the far right lane, then collided with Johnson.

Johnson asks us to disregard Wilkerson’s testimony that her view was obstructed based upon photographs indicating that it would be “nearly impossible” for her view to be obstructed. Johnson also asks us to overlook her testimony concerning the vehicle next to her based upon the fact that the accident report reflects otherwise. From there, Johnson argues that we should conclude as a matter of law that Wilkerson failed to keep a proper lookout. A logical inference from circumstances surrounding the actions of the car next to Wilkerson is that it entered the intersection without seeing another car trying to make the left turn and then Johnson tried to follow the ears that had already made it through the intersection ahead of him and entered the intersection at a point when his green arrow had already turned yellow or red. The foregoing inference in support of the view favorable to Wilkerson, while subject to contrary inferences, is supported by substantial evidence. In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light 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).

Finally, in order to affirm a summary judgment in favor of Johnson, we would be required to resolve in favor of Johnson challenges to Johnson’s credibility when he said the arrow was green when he began his turn and challenges to Wilkerson’s credibility when she described the sudden appearance of Johnson in the intersection. As we noted in Dixon v. Board of Water & Sewer Comm’rs of the City of Mobile, 865 So.2d 1161, 1166 n. 2 (Ala.2003), “It goes without saying that ‘ “ ‘a court may not determine the credibility of witnesses on a motion for summary judgment.’ ” ’ ”


author: STUART, Justice.

text:
    Dr. Juan RONDEROS and Coastal Neurological Institute, P.A. v. Myrtle ROWELL, as administratrix of the estate of Richard Larry Rowell, deceased.
    1020080.
    Supreme Court of Alabama.
    June 6, 2003.

      Norman E. Waldrop, Jr., and Richard W. Franklin of Armbrecht Jackson, LLP, Mobile, for appellants.
    James A. Yance, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for appellee.
   STUART, Justice.

Dr. Juan Ronderos and Coastal Neurological Institute, P.A., appeal by permission from the trial court’s denial of their motion for a summary judgment in a medical-malpractice action filed by Myrtle Ro-well, as administratrix of the estate of Richard Larry Rowell, deceased. See Rule 5, Ala. R.App. P. The general issue on appeal is whether the trial court properly denied Coastal Neurological and Dr. Ronderos’s motion for a summary judgment. The specific issue presented is whether Mrs. Rowell’s proffered expert, Dr. John Regan, is a “similarly situated health care provider,” within the meaning of § 6 — 5—548(b) or (c), Ala.Code 19Y5, whichever is applicable, and thus qualified to testify as an expert against Dr. Ronde-ros.

If Dr. Regan is a similarly situated health-care provider under either of those subsections, then he is competent to testify, and the trial court properly denied Coastal Neurological and Dr. Ronderos’s motion for a summary judgment. If Dr. Regan is not a similarly situated healthcare provider under either of those subsections, then Dr. Regan is not competent to testify as an expert, and the trial court should have granted Coastal Neurological and Dr. Ronderos’s motion for a summary judgment, because Mrs. Rowell has proffered no other expert to testify as to the alleged breach of the standard of care. Another issue presented for our consideration is whether subsection (b) or subsection (c) of § 6-5-548 applies in determining whether Dr. Regan is a similarly situated health-care provider.

We find that the trial court did not exceed its discretion in finding that § 6-5-548(b) was the applicable subsection and in finding that Dr. Regan was a similarly situated health-care provider, within the meaning of § 6 — 5—548(b). Thus, Dr. Re-gan is qualified to testify as an expert against Dr. Ronderos; the trial court properly denied Coastal Neurological and Dr. Ronderos’s motion for a summary judgment. We affirm.

Background,

The evidence establishes the following facts:

Richard Larry Rowell sustained an on-the-job injury to his back, and he sought medical treatment for the injury. Mr. Ro-well was referred to a neurosurgeon at Coastal Neurological for surgery. Dr. Ronderos, a board-eligible neurosurgeon employed by Coastal Neurological, ultimately treated Mr. Rowell.

After examining Mr. Rowell, Dr. Ronde-ros determined that Mr. Rowell had two surgical options: a thoracoscopic diskec-tomy (a closed procedure) or a thoracoto-my (an open procedure). Dr. Ronderos asserts that he explained the anticipated risks and benefits of each procedure, including the fact that approximately 25% of closed procedures are converted to open procedures during the surgery. Mr. Ro-well elected the thoracoscopic diskectomy (the closed procedure).

On February 10, 1998, Dr. Ronderos performed a thoracoscopic diskectomy on Mr. Rowell. On February 12, 1998, Dr. Ronderos performed another thoracoscopic diskectomy on Mr. Rowell. Approximately five hours into this second surgery, Dr. Ronderos decided to convert the surgery from the closed procedure to the open procedure.

Two hours into the open procedure, Mr. Rowell went into cardiac arrest. He could not be resuscitated, and he died during surgery.

Mr. Rowell’s wife, Myrtle Rowell, as the administratrix of Mr. Rowell’s estate, filed this medical-malpractice action. She alleges that Coastal Neurological and Dr. Ronderos negligently failed to provide reasonably proper and adequate medical care and treatment to Mr. Rowell by

“(a) negligently failing to properly obtain informed consent prior to the February 10, 1998 and February 12, 1998 surgeries;
“(b) negligently performing a thoraco-scopic thoracic-diskectomy on February 10,1998;
“(c) negligently performing a thoraco-scopic thoracic-diskectomy on February 12,1998;
“(d) negligent monitoring and treatment of blood loss and/or decreased volume status during the February 12, 1998, surgery;
“(e) negligent conversion of thoraco-scopic T 11-12 diskectomy on February 12, 1998 into an open thoracotomy in a patient with signs and symptoms of a decreased blood volume status; and/or
“(f) negligent failure to timely and properly resuscitate Mr. Rowell.”

Mrs. Rowell presented Dr. John Regan as her only expert witness. Dr. Regan is an orthopedic surgeon. At the time of Mr. Rowell’s surgeries, Dr. Ronderos was not a board-certified neurosurgeon; however, he became board-certified in neurosurgery in May 1998, three months after Mr. Rowell’s surgeries. Thus, although Dr. Ronderos was not board-certified when he performed the surgeries on Mr. Rowell, he was board-certified when this action was filed.

Dr. Ronderos and Coastal Neurological moved for a summary judgment, asserting, among other things, that Dr. Regan was not a similarly situated health-care provider as required by § 6-5-548, Ala.Code 1975, and, thus, that Dr. Regan was not competent to testify against Dr. Ronderos as an expert in this medical-malpractice action. The trial court denied Coastal Neurological and Dr. Ronderos’s motion and certified the issue for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P. We granted Dr. Ronderos and Coastal Neurological permission to appeal from the trial court’s ruling on this specific issue.

Discussion

The plaintiff in a medical-malpractice action must prove by substantial evidence that the defendant health-care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health-care providers in the same general line of practice ordinarily have and exercise in a like case. § 6-5-548(a), Ala. Code 1975. To meet this burden, a plaintiff ordinarily must present expert medical testimony; however, that testimony must be from a “similarly situated health care provider.” See § 6~5-548(e), Ala.Code 1975; Leonard v. Providence Hosp., 590 So.2d 906 (Ala.1991).

Section 6-5-548, Ala.Code 1975, provides two alternative definitions of a “similarly situated health care provider,” depending upon whether the defendant health-care provider is a “specialist” or a “nonspecialist.” See § 6-5-548(b) and (c), Ala.Code 1975. Section 6-5-548(b) defines a “similarly situated health care provider” if the defendant is not a specialist. It provides:

“(b) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not .hold himself or herself out as a specialist, a ‘similarly situated health care provider’ is one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(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.”

Subsection (c) defines a “similarly situated health care provider” if the defendant is a specialist. It provides:

“(c) Notwithstanding any provision of the Alabama Rules of Evidence to the contrary, if the1 health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical specialty, and holds himself or herself out as a specialist, a ‘similarly situated health care provider’ is one who meets all of the following requirements:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same specialty.
“(3) Is certified by an appropriate American board in the same specialty.
“(4) Has practiced in this specialty during the year preceding the date that the alleged, breach of the standard of care occurred.”

In order to determine whether subsection (b) or (c) is applicable to Dr. Regan, we must first determine whether Dr. Ronde-ros qualifies as a “specialist.”'

When Must the Defendant Health-Care Provider Obtain Certification to Trigger the Application of § 6-5-5U8(c) to an Expert Witness?

Coastal Neurological and Dr. Ronderos assert that, although Dr. Ronderos was not board-certified at the time of the alleged malpractice, he was board-certified at the time Mrs. Rowell filed this action. Coastal Neurological and Dr. Ronderos argue that the requirement in § 6 — 5—548(c) that the defendant health-care provider be certified by an appropriate American board does not mean the defendant must be certified at thé time the cause of action accrued, but only that the health-care provider must be certified when the plaintiff files the complaint. Because Dr. Ronderos was board-certified in neurosurgery at the time Mrs. Rowell filed her action, Coastal Neurological and Dr. Ronderos argue that Dr. Ronderos meets all of the criteria for a “specialist” listed in § 6-5-548(e). Thus, they argue, Dr. Regan should not be allowed to testify against Dr. Ronderos because only a board-certified- neurosurgeon is competent to testify as an expert witness against Dr. Ronderos in this action. We disagree.

Coastal Neurological and Dr. Ronderos’s creative interpretation of § 6-5-548(c) cannot be correct. Under that interpretation, credentials obtained by the defendant health-care provider after the date of the alleged malpractice would influence the testimony given at trial and would influence the determination of the standard of care the defendant is alleged to have breached. The date of the alleged breach is the date on which the defendant acted and the date on which the defendant made the decisions that allegedly breached the applicable standard of care. It is this standard of care to which the medical expert will be testifying in a medical-malpractice action. Thus, it is the defendant’s training, experience, and credentials, as they exist on the date of the alleged breach, that must be considered in determining who may testify against the defendant health-care provider as a similarly situated health-care provider. The reference to a “similarly situated” health-care provider refers to someone situated similarly to the defendant at the time of the alleged breach — not to someone situated similarly to the defendant at whatever time the action happens to be filed.

We find support for this construction of § 6-5-548(c) in another section of that statute. In 1996, the Legislature amended § 6-5-548(e) to read:

“(e) The purpose of this section is to establish a relative standard of care for health care providers. 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 or she is a ‘similarly situated health care provider’ as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.”

(Emphasis added.)

In subsection (e), the Legislature refers to certification by a board in a “specialty” and then refers to practicing “that specialty at the time of the alleged breach of the standard of care.” We find it evident in this language that the appropriate date on which to determine whether a defendant health-care provider is a “specialist,” for purposes of § 6-5-548(c), is the date on which the alleged breach occurred.

Moreover, it would be patently unfair, both to the plaintiff and to the defendant health-care provider, to apply at trial a standard of care based on circumstances occurring after the alleged malpractice rather than a standard of care based on circumstances existing on the date of the alleged malpractice. That is exactly the scenario we would be creating if we considered certifications received by a defendant health-care provider after the date of the alleged act of malpractice in determining who is a similarly situated health-care provider for purposes of testifying in a medical-malpractice action. We conclude that, under § 6-5-548(c), it is the defendant’s credentials on the date of the alleged breach that must be considered in determining who may testify against the defendant as a similarly situated health-care provider.

Dr. Ronderos was not board-certified on the dates of Mr. Rowell’s surgeries in this case. For that reason, Dr. Ronde-ros cannot be considered a specialist, within the meaning of § 6-5-548(c), at the time he allegedly breached the applicable standard of care in this case. Accordingly, the applicable subsection of § 6-5-548, Ala. Code 1975, in this case is subsection (b), which applies to health-care providers who are not specialists.

Application of § 6-5-548(b)

To be considered a similarly situated health-care provider under § 6-5-548(b), a physician must meet the following requirements:

“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(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.”

Dr. Regan meets all of these requirements. He is licensed as a physician in several states, including California and Texas. Therefore, he meets the requirement of subsection § 6 — 5—548(b)(1). Dr. Regan helped develop the thoracoscopic disk procedure in the United States — the same procedure Dr. Ronderos performed on Mr. Rowell. Dr. Regan testified during deposition that both orthopedic surgeons and neurosurgeons perform this procedure — he referred to them both as “spine surgeons”; he testified that he teaches both orthopedists and neurosurgeons to perform this procedure and that “they are both taught to utilize and trained to utilize the same basic standards of care in doing this surgery.” Dr. Ronderos’s own expert, Dr. Curtis Dickman, testified that the standard of care is the same whether an orthopedic surgeon or a neurosurgeon performs a thoracoscopic diskectomy.

We find that Dr. Regan’s experience and training meet the requirements of the “same discipline or school of practice” required by § 6-5-548(b)(2). See Dowdy v. Lewis, 612 So.2d 1149 (Ala.1992) (physician who taught in the field of practice at issue in a medical-malpractice case was deemed to be an expert in that field of practice); Rodgers v. Adams, 657 So.2d 838 (Ala.1995) (prosthodontist was a similarly situated health-care provider as to a general dentist who was not board-certified; both the prosthodontist and the general dentist were qualified to perform the procedure in question^ and the prosthodontist testified that, in the year preceding the defendant’s alleged breach of the standard of care, he performed some general dentistry in his work); Olsen v. Rich, 657 So.2d 875 (Ala.1995) (vascular, cardiac, pulmonary, and esophageal surgeon was a similarly situated health-care provider in a case alleging medical negligence against a cardiologist involving a procedure with which the surgeon was very familiar); Dempsey v. Phelps, 700 So.2d 1340 (Ala.1997) (cardiovascular thoracic surgeon was a similarly situated health-care provider with respect to defendant orthopedic surgeon, who was not board-certified in area in which he allegedly breached the standard of care; cardiovascular thoracic surgeon was at least as qualified as the defendant in the field of the alleged breach). Dr. Regan meets the requirements of § 6-5-548(b)(2).

Finally, Dr. Regan testified that he was performing this surgery in 1998, that he performed it often, and that he had been doing so for some years before 1998. In addition, Dr. Regan is one of the editors of a textbook entitled Atlas of Endoscopic Spine Surgery, which was published in 1996. He has published over 20 articles in medical journals and has edited or written 14 articles or chapters in different textbooks dealing with the subject of thoraco-scopic spine surgery. For these reasons, Dr. Regan meets the requirements of subsection § 6 — 5—548(b) (3).

The evidence before us indicates that Dr. Regan has sufficient knowledge and training to testify as an expert regarding the standard of care applicable in this case. As we noted in Rodgers v. Adams, supra:

“The Medical Liability Act does not require that the defendant health care provider and the expert witness have identical training, experience, or types of practice, or even the same specialties. To be ‘similarly situated, an expert witness must be able to testify about the standard of care alleged to have been breached in the procedure that is involved in the case. For example, if the parties were reversed in this case, so that the prosthodontist, Dr. Ramus, was the defendant and the general dentist, Dr. Adams, was the expert, we would reach the same result. Dr. Adams would be allowed to testify because the standard of care alleged to have been breached involved general dentistry and not prosthodonties; section 6-5-548(b) would apply in that reversed situation. Also, a general surgeon would be qualified to testify that an orthopedic surgeon breached the standard of care if the procedure was common to both disciplines, as is the case here. Specifically, if the incident involved an alleged negligent suturing of an incision, a general surgeon would be qualified to testify that an orthopedic surgeon had breached the standard.”

657 So.2d at 842 (emphasis omitted; emphasis added; citations omitted). We conclude that Dr. Regan has the training and experience to testify to the standard of care applicable to the procedure in question. That is all that is required by § 6-5 — 548(b), Ala.Code 1975.

Conclusion

Dr. Regan is competent to testify against Dr. Ronderos in this case, pursuant to § 6 — 5—548(b), Ala.Code 1975, as a similarly situated health-care provider. We affirm the trial court’s denial of the motion for a summary judgment filed by Dr. Ronderos and Coastal Neurological.

AFFIRMED.

MOORE, C.J., and BROWN, HARWOOD, and WOODALL, JJ., concur.

      . "Thoracoscopic” refers to an endoscopic surgical procedure performed in the thoracic spine area. "Endoscopic” is a more general term that refers to the use of a scope inside the body.

      . In their petition for permission to appeal, Coastal Neurological and Dr. Ronderos argued that § 6-5-548(b), Ala.Code 1975, was ambiguous because it was written in the negative and that the parties and the trial court did not know how properly to apply the subsection to the issue whether Dr. Regan was competent to testify as an expert witness against Dr. Ronderos. This Court considered that issue in deciding whether to grant Coastal Neurological and Dr. Ronderos's request for a permissive appeal. However, Coastal Neurological and Dr. Ronderos do not address this issue in the briefs filed with this Court on appeal. Therefore, we assume they have abandoned the issue.

      . Dr. Dickman conducts training workshops in thoracoscopic procedures for thoracic surgeons, orthopedic surgeons, and neurosurgeons. Dr. Dickman testified that he teaches all the surgeons at his workshop the same techniques.

      . Coastal Neurological and Dr. Ronderos argue that the issue raised by Mrs. Rowell’s complaint is whether Dr. Ronderos properly monitored Mr. Rowell’s blood loss rather than a technical issue regarding spinal surgery. If this is the issue, would not all surgeons have the same standard of care in monitoring their patients and reporting vital signs to the anesthesiologists and certified registered-nurse anesthetists? Whether the issue relates to a failure to monitor blood loss or a surgical question, we conclude that Dr. Regan, as a similarly situated health-care provider, is competent to testify.