author: JOHNSTONE, Justice.

text:
    AMSOUTH BANK v. Beulah H. LOONEY.
    1020839.
    Supreme Court of Alabama.
    Dec. 19, 2003.

      Larry B. Childs and Randall D. Quarles of Walston, Wells, Anderson & Bains, LLP, Birmingham; and James S. Witcher III and C. William Gladden of Hand Aren-dall, LLC, Birmingham, for appellant.
    Jon B. Terry of Bains & Terry, Bessemer, for appellee.
   JOHNSTONE, Justice.

The defendant AmSouth Bank appeals the order of the trial court denying the motion of AmSouth to compel the plaintiff Beulah H. Looney to arbitrate her claims against AmSouth. We reverse and remand with instructions.

Looney, a customer of AmSouth, sued AmSouth and its employee Helen Kendrick for invasion of privacy and intentional infliction of emotional distress for disclosing information about Looney’s Am-South bank accounts to certain persons. Relying on arbitration agreements contained in the “Customer Agreements” between Looney and AmSouth, AmSouth moved to compel arbitration. In support of the motion AmSouth submitted an affidavit by its Senior Vice President Cynthia Rogers, copies of the “account package forms” signed by Looney, and copies of the “Customer Agreements” on Looney’s Am-South accounts.

Rogers states facts in her affidavit that establish her competency to testify to all the facts stated in the affidavit. Rogers’s affidavit further states facts establishing that, over a period of years, Looney maintained three accounts with AmSouth; that, in establishing or maintaining each account, Looney signed at least one document accepting the terms and acknowledging receipt of a “Customer Agreement” with AmSouth; and that the “Customer Agreement” contains an arbitration agreement. Rogers’s affidavit authenticates and supplies as attachments the documents signed by Looney and the documents incorporated by the ones signed by Looney, including the “Customer Agreement” containing the arbitration agreement. The terms of the arbitration agreement establish, and Looney does not deny, that her claims against AmSouth are within the ambit of the arbitration agreement. Rogers’s affidavit states further facts to prove a nexus between Looney’s AmSouth accounts and interstate commerce sufficient for the Federal Arbitration Act (“FAA”) to apply to the arbitration agreement.

Responding to the arbitration motion, Looney did not attack the grounds asserted by AmSouth to invoke arbitration but, instead, requested production of these documents:

“1. All account cards or documents reflecting the creation of any checking, savings, C.D., or other form of depository account created by the Plaintiff and/or any member of the Plaintiffs family with AmSouth Bank at any time in the last twenty-five years next preceding the date hereof.
“2. A copy of all letters, or other correspondence sent to the Plaintiff between January 1, 1998 through the date of this request that in any way reflects sending of any documents or other correspondence to her concerning her accounts being maintained by her at Am-South Bank.
“3. A copy of all documents entitled Customer Agreement for Depository Accounts that have been executed or signed by Beulah Looney, the Plaintiff herein.
“4. To produce for copying and inspection a copy of all Customer Agreement Forms utilized by AmSouth Bank since January 1, 1998 through the date of this request.
“5. A copy of all Customer Agreements utilized by AmSouth Bank between January 1, 1970 through the date of this request.
“6. To produce each and every document maintained by you that in any way shows or avers that the Plaintiff herein signed and acknowledged [a] Customer Agreement with AmSouth Bank that contains an Arbitration Agreement.”

Looney moved to defer a ruling on the motion to compel arbitration long enough for Looney to obtain the requested documents to prepare defenses to the arbitration motion. To support her request for documents, Looney submitted an affidavit stating:

“1. I, Beulah H. Looney, am the Plaintiff in the above styled action.
“2. I have filed this suit because [AmSouth] and a former employee, contrary to [AmSouth’s] privacy policy, evaded [sic] my account for information and disbursed [sic] it to others causing me much mental pain and anguish and embarrassment.
“3. AmSouth Bank has averred that this [dispute] is subject to arbitration.
“4. I have had accounts with Am-South Bank since 1979.
“5. At that time, there was no Arbitration Agreement and I have never signed one.
“6. Furthermore, I never recall seeing any documents in dealing with Am-South Bank that contained an Arbitration Agreement. I have certainly never signed any documents containing an Arbitration Agreement and did not know what arbitration was until this cause was filed and [AmSouth] responded compelling arbitration.
“7. In fact, the only new activity I have had with AmSouth Bank was in 1999 and that was simply taking my deceased husband’s name off the accounts and adding one or more of my children’s name to accounts and/or shifting money into new accounts with my children.
“8. I also have concerns that one of the documents AmSouth Bank is seeking to enforce is the document that was not even created until sometime after December of 1999.
“9. The other document in support of their motion contains an Arbitration Agreement [that] has no date printed thereon so it is not clear where that document was created and how in the world I would have been provided a copy of the same.
“10. That is why we have asked for discovery to determine the exact events surrounding how and when I would have obtained, seen, or been allowed to know about an Arbitration Agreement being entered.
“11. The information I have requested would help in that regard.
“12. In light of cases recently issued by the Alabama Supreme Court shown to me by my attorney, I am aware that the Supreme Court has said that all documents delivered or claimed to have been delivered to individuals by which one party seeks to enforce arbitration must be both conspicuous and/or signed and agreed to leads me to request the information in discovery that I have now sought.”

AmSouth filed an objection to the request for discovery and a motion to strike the affidavit by Looney. Citing Ex parte Greenstreet, 806 So.2d 1203 (Ala.2001) (hereinafter “Greenstreet I ”), AmSouth argued that, because Looney had not stated any facts to demonstrate any defense to the arbitration agreement, her request for discovery should be denied and her affidavit should be stricken.

The trial court granted the request by Looney for discovery of the requested documents, denied the motion by AmSouth to strike the affidavit by Looney, and denied the motion by AmSouth to compel Looney to arbitrate her claims:

“The Plaintiffs motion to produce to AmSouth Bank the subject of this motion to compel is granted under ARCP 37(a) and they are given 30 days in which to produce the materials without objection or claim of privilege. The Court is aware that this may go to some issue subject to arbitration but it shall determine if in fact this account is subject to arbitration. AmSouth Bank’s motion to strike the affidavit of the Plaintiff is denied. Motion to compel arbitration and to stay is denied at this time.”

Thereafter, AmSouth filed a “Motion to Amend and Clarify” this order on the ground that the trial court had ordered discovery on the arbitration issue yet had denied the motion to compel arbitration. AmSouth filed its appeal of the order before the trial court ruled on the motion to clarify.

Looney, the appellee before us, argues that the order of the trial court granting the discovery request and denying the motion to compel arbitration is not a final, appealable order. Looney argues also that this order is not reviewable by a petition for a writ of mandamus, if this Court should decide to treat this appeal as a petition for a writ of mandamus. The essence of these arguments by Looney is that the trial judge exercised his discretion to order discovery and, Looney says, to defer a ruling on the arbitration motion. However, contrary to Looney’s contention, the trial judge did not defer his ruling on the arbitration motion pending discovery. The record shows that the trial judge denied the motion to compel arbitration.

Rule 4(d), Ala. R.App. P., governs appellate review of orders granting or denying motions to compel arbitration. That rule provides:

“An order granting or denying a motion to compel arbitration is appealable as a matter of right, and any appeal from such an order must be taken within 42 days (6 weeks) of the date of the entry of the order.... ”

The Court Comment to Rule 4(d) reads:

“Before the adoption of Rule 4(d), review of an order granting a motion to compel arbitration was by a petition for a writ of mandamus, while review of an order denying a motion to compel arbitration was by appeal. Rule 4(d) provides that review of either the grant or the denial of a motion to compel arbitration is by appeal.”

AmSouth has properly followed Rule 4(d) in filing an appeal of the order of the trial court denying the motion to compel arbitration. Indeed, the denial of the motion to compel confronted AmSouth with the mutually exclusive choices of either appealing the denial or losing any right to compel arbitration.

AmSouth claims that it has proved the existence of a valid agreement to arbitrate in a transaction involving interstate commerce. Thus, AmSouth argues that the FAA governs this dispute and requires Looney to arbitrate her claims against AmSouth. AmSouth claims that Looney did not present a valid defense to arbitration and did not deny that

“(1) she signed documents expressly incorporating the Customer Agreement, (2) the Customer Agreement contained the arbitration provision and (B) she received copies of the Customer Agreement in November 1999 and a revision in December 1999.”

(AmSouth Bank’s brief, p. 17.)

Looney does not seek to avoid arbitration by arguing that the interstate commerce criterion necessary for the application of the FAA is not satisfied. Looney does, however, seek to avoid arbitration by arguing for the first time on appeal that AmSouth waived its right to arbitration by answering the complaint and initiating discovery. Because Looney did not argue waiver to the trial court, we cannot address this argument. Landers v. O’Neal Steel, Inc., 564 So.2d 925, 926 (Ala.1990) (“This Court will not review an issue raised for the first time on appeal.”). This opinion will address only whether the trial court erred in denying the motion to compel arbitration while simultaneously ordering discovery on the issue of arbitration.

In Greenstreet I, this Court recognized a plaintiffs right to discovery to prove a defense to arbitration:

“Greenstreet moved to compel arbitration of every claim asserted against it by Hyde. Rather than responding to the merits of the motion to compel, Hyde sought discovery on the issue of contract defenses applicable to the entire agreement, as well as discovery on those contract defenses applicable solely to the arbitration agreement. The trial court allowed discovery, but only on those contract defenses applicable to the arbitration agreement, obviously deferring its consideration of the motion to compel arbitration until limited discovery had been completed.
“In First Family Financial Services [v. Jackson, 786 So.2d 1121 (Ala.2000)], this Court addressed a claim substantially similar to the one presented to the trial court in the instant case. In First Family Financial Services, the defendant moved to compel arbitration, and Jackson, the plaintiff, sought discovery to prove that the arbitration agreement was unconscionable. However, Jackson presented no evidence in opposition to the motion to compel arbitration. The trial court denied the motion to compel arbitration; this Court reversed.
“Justice Lyons, writing for the Court, stated:
“ ‘The problem in this case is that Jackson did not present the substantial evidence [necessary to support a finding that an arbitration clause is unconscionable], but seeks the opportunity to create a record containing such evidence. Jackson asked for an opportunity to conduct discovery, but he offered no evidence whatever in opposition to First Family’s motion to compel arbitration. Discovery is not necessary in order for a party to present evidence, such as the party’s affidavit detailing the facts about which he has knowledge, or a compilation of information regarding the number of finance companies that will not make consumer loans without the borrower’s signing an arbitration clause or agreement. We recently addressed a similar question in Fleetwood Enterprises, Inc. v. Bruno, 784 So.2d 277 (Ala.2000). In that case, the plaintiff had requested an eviden-tiary hearing, but had submitted no evidence opposing the defendant’s motion to compel arbitration. Justice Lyons, in a special concurrence in Fleetwood Enterprises, wrote:
“ ‘ “It is,well settled that a motion to compel arbitration is analogous to a motion for summary judgment. After a motion to compel arbitration has been made and supported, the burden is on the nonmovant to present evidence indicating that the supposed arbitration agreement is not valid or does not apply to the dispute in question.
“ ‘ “None of [the plaintiff] Bruno’s three responses to the motions to compel arbitration was supported by any evidentiary material. Bruno’s requests for an evidentiary hearing, standing alone, are not the equivalent of submission of evidence. We do not permit a party to defeat an opposing party’s motion for summary judgment simply by requesting an evidentiary hearing.... We cannot justify disparate procedural treatment based simply on the fact that the underlying facts of this case may, if properly presented, demonstrate unconsciona-bility of an arbitration agreement.”
“ ‘784 So.2d at 281-82 (Lyons, J., concurring specially) (citations and footnotes omitted).’
“First Family Fin. Servs., 786 So.2d at 1130. Because Jackson offered no evidence in opposition to First Family’s motion to compel arbitration, we held in First Family Financial Services that the trial court had erred in denying the defendant’s motion to compel arbitration. Id.
“However, as previously noted, the application by analogy of the practice under Rule 56, Ala. R. Civ. P., dealing with motions for summary judgment, to motions to compel arbitration, is not a perfect fit. Under certain circumstances, the evidence necessary to challenge the enforceability of an arbitration provision may be exclusively within the other party’s possession. Under those circumstances, the party opposing arbitration will be unable or virtually unable to obtain the necessary evidence except through discovery. Thus, if, before allowing that party to conduct discovery, this Court requires that party to present substantial evidence of the defenses to arbitration that party expects to uncover during discovery, such a requirement could well eliminate the very defenses recognized by federal law (and hence by Alabama law) as legitimate defenses against a properly supported motion to compel arbitration. Such a result would be untenable.
“We are mindful that discovery is not a tool by which a party may annoy, embarrass, or unduly burden the opposing party. Rule 26, Ala. R. Civ. P. While a showing of good cause is not ordinarily required in order to justify discovery in a civil action, in a case ostensibly subject to arbitration, as established by a properly supported motion to compel, to require a party to present some degree of factual specificity as to the necessity of the discovery does not impose an unreasonable burden. However, to require, without exception, that a plaintiff present substantial evidence of what she expects to find during discovery on the issue whether the agreement to arbitrate is enforceable, before allowing her to conduct that discovery, seems unreasonably harsh.
“... We hold that once a moving party has satisfied its burden of production by making a prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce, the burden of persuasion shifts to the party opposing arbitration. If that party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.
“Additionally, if the party opposing a properly supported motion to compel arbitration desires discovery, that party must present a factually based predicate before a right to conduct discovery regarding matters that could invalidate the agreement to arbitrate arises. See Ex parte Dickinson, 711 So.2d 984 (Ala.1998); Premiere Auto. Group v. Welch, 794 So.2d 1078 (Ala.2001); and Ex parte Jim Burke Auto., Inc., 776 So.2d 118 (Ala.2000). At a minimum, a party opposing a properly supported motion to compel arbitration and seeking discovery on issues that could invalidate the arbitration agreement must provide an affidavit describing the circumstances that are within its knowledge and that are relevant to its claimed defenses to arbitration.”

Greenstreet I, 806 So.2d at 1207-09 (some emphasis omitted; some emphasis added); and see Ex parte Greenstreet, Inc., 806 So.2d 1212 (Ala.2001).

By submitting to the trial court her own affidavit, the plaintiff Looney has attempted to comply with the requirement of Greenstreet I that a party opposing arbitration and seeking discovery on the arbitration issue must provide the court with some factual basis for the discovery the party seeks. Looney, however, does not state in her affidavit or in any other materials presented to the trial court why the documents she seeks would invalidate the documents incorporating by reference or containing the arbitration agreement invoked by AmSouth.

Furthermore, AmSouth apparently has already supplied most of the discovery sought by Looney. The documents were authenticated and supplied by Rogers’s affidavit and have been included in the record before us. The documents signed by Looney are dated. Looney’s mention of the date or absence of a date on two other documents reveals that she already has those documents. Looney does not challenge the genuineness of any of these copies.

While Looney’s affidavit denies that she has ever signed or even seen an arbitration agreement with AmSouth, her affidavit does not deny that she has signed documents which incorporated the arbitration agreement by reference and that acknowledged her receipt of the arbitration agreement. These signed documents are sufficient to bind her to the terms of the arbitration agreement. Because Looney has not articulated any defense to the arbitration agreement or any facts to demonstrate that her discovery of account documents, other than those already in the record before us, is necessary for her to present a defense to the arbitration agreement, the trial court erred in granting her request for discovery.

In any event, when a trial court orders, as it did in this case, limited discovery on any arbitration issue, the trial court cannot then, pending the discovery, deny the motion to compel arbitration, without precipitating a probable appeal and a likely reversal, as in this case. Such a denial of a motion to compel arbitration immediately puts the movant to the choice of either timely filing a Rule 4(d), Ala. R.App. P., appeal or losing any right later to enforce the arbitration agreement. Upon such an appeal, if the party opposing arbitration has not yet made a record before the trial court sufficient to demonstrate either that the FAA is inapplicable or that the arbitration agreement is invalid or inapplicable — that is, a record sufficient to demonstrate to us that the denial of the motion to compel arbitration is justified— then our only recourse is to reverse the denial, as we must in the case now before us. Moreover, if, as in this case, the party opposing arbitration has not made a record before the trial court sufficient to support the discovery order accompanying the premature denial of the motion to compel arbitration, then our reversal of the denial must be accompanied, as this one hereby is, with an instruction that the trial court not only vacate the denial but also enter an order granting the motion to compel.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOUSTON, LYONS, BROWN, and WOODALL, JJ., concur.

      . Defendant Helen Kendrick did not move to compel arbitration. She is not a party to this appeal.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    DCH HEALTHCARE AUTHORITY d/b/a DCH Regional Medical Center v. Mary K. DUCKWORTH, as personal representative of Dee Duckworth, deceased.
    1020913.
    Supreme Court of Alabama.
    Dec. 19, 2003.

      James J. Jenkins and Terri Olive Tompkins of Phelps, Jenkins, Gibson & Fowler, L.L.P., Tuscaloosa, for appellant.
    Stephen D. Heninger of Heninger, Burge, Vargo & Davis, LLP, Birmingham, for appellee.
   WOODALL, Justice.

This appeal challenges a judgment entered on a jury verdict against DCH Healthcare Authority d/b/a DCH Regional Medical Center (“the Center”) in favor of Mary K. Duckworth, as personal representative of her husband, Dee Duckworth, deceased, in Mrs. Duckworth’s medical-malpractice action against the Center. We reverse and render a judgment for the Center.

According to the undisputed facts, 83-year-old Dee Duckworth went to the Center on October 9, 1999, to pick up Mary Duckworth, a patient at the Center, who was being discharged that day. After arriving at the Center, however, Mr. Duck-worth fell on an escalator and struck his head. He was taken to the emergency department at 10:24 a.m. Mrs. Duckworth was notified of the accident and joined him at the emergency department.

At 10:59 a.m., Dr. Malcolm Nelson, the emergency-department physician, examined Mr. Duckworth and ordered an X-ray examination, which began at 12:36 p.m. For approximately 45 minutes preceding the X-ray examination, Mr. Duckworth waited in the hallway of the radiology department. While he was waiting, he developed a headache and nausea. He vomited during and after the X-ray examination.

At 1:17 p.m., Dr. Nelson ordered a computerized tomography scan (“CT scan”), which was performed at 1:54 p.m. At 2:00 p.m., the radiology department notified emergency-department personnel that Mr. Duckworth had a subdural hematoma. At approximately 2:15 p.m., Mr. Duckworth was relocated to the critical-care unit, and neurosurgeon Dr. Moses Jones was called to relieve the hemorrhage. Dr. Jones arrived at the Center at approximately 3:15 p.m. Surgery began at 4:40 p.m. and was completed at 6:00 p.m. Mr. Duckworth remained hospitalized until October 22, 1999, when he died as a result of the injuries he sustained in the fall on October 9.

Subsequently, Mrs. Duckworth sued the Center, alleging that Dr. Nelson and the other emergency-department personnel “caused or negligently allowed [Mr. Duck-worth] to go without proper and timely evaluation, monitoring, care, and treatment for a potential closed-head injury, and failed to timely and properly address, observe and report changes in his condition.” The complaint further alleged that as a consequence of the alleged negligence, Mr. Duckworth “was caused to worsen with a cerebral bleed and he was so injured that he died.”

During the trial of the case, the Center moved for a judgment as a matter of law (“JML”) at the close of Mrs. Duckworth’s evidence, and, again, at the close of all the evidence. As a ground for the motions, the Center asserted that Mrs. Duckworth failed to present substantial evidence of causation by expert testimony. The trial court denied the motions, and a jury awarded Mrs. Duckworth $350,000. The Center filed a postverdict motion for a JML. That motion was overruled by operation of law, pursuant to Ala. R. Civ. P. 59.1, and the Center appealed.

The standard of review of a motion for a JML is well established:

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992).... A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999).

Mrs. Duckworth’s theory of the case is that the Center’s diagnosis of her husband’s condition and its treatment was dilatory. More specifically, she complains of the failure of emergency-department personnel to respond timely and appropriately to her husband’s visibly deteriorating condition “over a three (3) hour period.” Mrs. Duckworth’s brief, at 23. She contends that “this inferior care ... adversely affected [his] condition,” namely, the subdural hematoma, from which he subsequently died.

“To prove liability in a medical malpractice case, the plaintiff is required to show that the 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.” Parker v. Collins, 605 So.2d 824, 826 (Ala.1992). “There must be more than the mere possibility that the negligence complained of caused the injury; rather, there must be evidence that the negligence complained of probably caused the injury.” Id.

As to causation in a dilatory-diagnosis-and-treatment case such as this one, “an action ‘may properly be submitted to the jury where there is evidence that prompt diagnosis and treatment would have placed the patient in a better position than she was in as a result of inferior medical care.’ ” Shanes v. Kiser, 729 So.2d 319, 320-21 (Ala.1999) (quoting Parker, 605 So.2d at 827) (emphasis added). “It is not necessary to establish that prompt care could have prevented the injury or death of the patient; rather, the plaintiff must produce evidence to show that her condition was adversely affected by the alleged negligence.” Parker, 605 So.2d at 827 (emphasis added). Unless “the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation,” causation in a medical-malpractice case must be established through expert testimony. Cain v. Howorth, 877 So.2d 566, 576 (Ala.2003); see also Bradley v. Miller, 878 So.2d 262 (Ala.2003); Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987 (Ala.2002).

The Center contends that Mrs. Duck-worth failed to present substantial evidence — by the requisite expert testimony- — -that the outcome of this case would have been different had the acts or omissions of which she complains not occurred. We agree.

Mrs. Duckworth’s only expert medical testimony on the element of proximate cause was the videotaped deposition of Dr. Jones, who performed the surgery on Mr. Duckworth. His testimony as to proximate cause included the following:

“Q. [Counsel for the Center:] Well, now, given ... the fact that the record does show that you were involved with Mr. Duckworth as early as 3:15 [p.m.], and anesthesia was begun at 4:05 [p.m.], surgery was at 4:40 [p.m.], can you tell us, doctor, to a reasonable degree of medical certainty if the fact that Mr. Duckworth had vomited some time between 12:36 [p.m.] and 12:55 [p.m.] for the first time, and a CT scan was not obtained until around [2:00 p.m.], would that have made any difference in this ultimate outcome?
“A. [Dr. Jones:] I don’t think so. / don’t think it has [any] impact whatsoever. Mr. Duckworth was taken to the operating room pretty much expeditiously after finding out what was going on with him.
“Q. Well, now, prior to that, though, would it have made any difference if you had gotten there any earlier?
“A. No. No.
“Q. In your opinion, in your medical opinion, doctor, to a reasonable degree of certainty, would Mr. Duck-worth’s outcome have been what it was?
“A. Certainly. I see nothing about this course of events that tells me we could have corrected anything here by a time factor. You can always go back and say, well, is there some other management approach you could have taken, and it’s a second guess. But, then, every time you try one of these other things, you can find other complications that could have or might have ar[isen]. So, sure, I don’t see anything different to change.”

(Emphasis added.)

Mrs. Duckworth refers to other portions of Dr. Jones’s testimony in support of her argument that a more expeditious “diagnosis and treatment” would have placed her husband in a “better position than [he] was in as a result,” Shanes, 729 So.2d at 321, of the two- or three-hour diagnostic period of which she complains. Specifically, she states:

“Dr. Jones said it would be reasonable to expect that this patient’s hematoma was smaller at the time he was being left in the hallway two (2) hours earlier than he saw him. Dr. Jones recognized that the timing of diagnosis and evacuation of this bleed has an effect on outcome. He also agreed with Dr. Nelson that a delay in diagnosis would ‘adversely affect’ the patient’s condition.”

Mrs. Duckworth’s brief, at 23 (citations to the record omitted). Dr. Jones’s actual testimony in that connection is as follows:

“Q. [Mrs. Duckworth’s counsel:] The timing within which a surgeon can evacuate a hematoma like Mr. Duckworth had has some effect on the likelihood of a good outcome, doesn’t it?
“A. [Dr. Jones:] Certainly.
“Q. You want to get to it as soon as possible?
“A. That’s always the ideal, yes.
“Q. Regardless of whether it’s an elderly patient or an adolescent?
“A. That’s correct.
“Q. When you say that subdural hema-tomas like Mr. Duckworth suffered from are known to have an 80% mortality rate, timing of surgical intervention and relieving the pressure has an effect on improving the likelihood of a better outcome?
“A. That’s correct. Certainly, if you operate on it next week as opposed to today, that makes a big, big difference.
“Q. Well, and hours can make a difference, can’t it.
“A. All the studies show — well, I shouldn’t say all the studies, but the standard of — by head-injury studies, put it that way, have shown that you basically have a major change in mortality based on an eight-hour window after discovery of the subdural. Now that’s not necessarily after the injury.
“A. Because you don’t have a precise time when the bleeding started....
“Q. Doctor, with this patient, taking in consideration specifically with a history of this fall and injury to his head on the escalator and his resulting course, can you tell us, in your opinion, when his hematoma began to form in the subdural region?
“A. I have no clue. I can’t-1 can only tell you where it was at the time when we did the CT [scan].
“Q. Would you expect that the subdural hematoma that you encountered and which you described as being large would have been smaller or less involved with bleeding two hours earlier?
“A. I would expect so, but I have no way of knowing that.
“Q. I mean, scientifically, as a neurosurgeon, you would expect that probability?
“A. I think that’s a reasonable expectation, yeah. I think that you could possibly say that it was smaller two hours earlier than it was at the time I saw him.
“Q. But if I’m understanding your specialty and your practice correctly, physicians like yourself, who are trained to deal with these intracra-nial bleeds, want to evacuate the bleed at the earliest time to reduce the harm?
“A. Right. And we have to have a window of opportunity to do that and that’s why I said that the usual considered window of opportunity, and this is not an absolute. Obviously, you don’t sit around and wait for eight hours to occur. But if you can get a subdural hemato-ma evacuated within that basically eight-hour window, the statistics show that those people survive better.
“Q. [Dr. Nelson] had told us [in] his deposition when he was asked, generally, with a subdural bleed like Mr. Duckworth had, any delay in diagnosis can adversely affect a person’s condition, and he said: “Yes, sir.’ Would you agree with that in general?
“A. Yes. I think we’ve already said that.”

(Emphasis added.)

Conspicuously absent from this testimony is any opinion as to how — or whether— the two- or three-hour diagnostic, or preoperative, period of which Mrs. Duckworth complains probably affected the outcome of this case. On the contrary, Dr. Jones testified that there was an optimum period of eight hours between diagnosis and surgery. The hematoma was discovered at 2:00 p.m. and removed by 6:00 p.m. Even computing the time from 10:24 a.m., when Duckworth arrived at the emergency room, until the hematoma was evacuated, only 7]é hours occurred before the surgery — within the optimum treatment period Dr. Jones described. Although Dr. Jones conceded that the hematoma “could possibly [have been] smaller two hours earlier,” he did not explain how an increase in size would have adversely affected Mr. Duckworth’s ultimate condition. He agreed with the general proposition that a “delay in diagnosis [could ] adversely affect a person’s condition,” not that it did so in this case.

Indeed, Dr. Jones’s testimony is functionally identical to the testimony held to be insufficient in McAfee v. Baptist Medical Center, 641 So.2d 265 (Ala.1994). McAfee involved the consolidated appeals of two medical-malpractice plaintiffs. One plaintiff was Martin McAfee, a child who “developed bacterial meningitis and suffered permanent brain damage and vision impairment” as a result of the alleged malpractice. 641 So.2d at 266. The other plaintiff was Brenda Roberts, who developed breast cancer, which she alleged the defendants failed to discover. Id. McAfee alleged that Baptist Medical Center and others (collectively referred to as “Baptist Medical”) “failed to recognize, appreciate, and treat [his] bacterial infection in a timely manner, ... [resulting] in a worsening of [his] condition.” Id. Similarly, Roberts alleged that Life Diagnostic Radiology and others “fail[ed] to properly evaluate [a] lump ... found in [her] right breast ... [resulting] in a one-year delay of treatment and ... an unnecessary worsening of her condition.” Id. In each case, the trial court granted the defendants’ summary-judgment motions. This Court affirmed the summary judgments, explaining:

“We have carefully studied the record in each of the cases before us and in both cases we conclude that the defendants made a prima facie showing that they were entitled to a judgment as a matter of law on the issue of causation by producing evidence that their actions did not cause the patient’s condition to worsen. In neither case did the plaintiffs submit substantial evidence that the patient’s condition worsened as a direct result of the actions of the defendant physicians.
“In the first case, the baby, Martin McAfee, contracted meningitis from bacteria. He was treated by Dr. Rodney Dorand. Dr. Dorand, a board certified neonatologist, submitted an affidavit stating that he was familiar with the degree of care, skill, and diligence normally exercised by physicians practicing neonatology in 1990, and that, in his opinionj nothing he did or did not do in his care and treatment of Martin McAf-ee probably caused or contributed to cause any injury. The affidavit of the plaintiffs’ expert, Dr. 0. Carter Snead III, offered a conjectural observation that, generally, the sooner the onset of treatment, the better the expected result. There is no evidence that the actions of Dr. Dorand or those of Dr. Gillis Payne, who first saw the baby, probably caused the poor outcome. In the second case, the plaintiffs submitted affidavits stating, generally, that ‘time is of the essence’ in treating breast cancer, and that patients loho receive earlier treatment obtain a better result. There was no expert testimony to rebut the testimony submitted by the defendants indicating that the metastasis to the lymph nodes probably occurred in the early stages before the cancer could be diagnosed. The affidavits of the plaintiffs’ experts did not rise to the level of substantial evidence that the actions of the defendants probably caused Brenda Roberts’s injuries.”

641 So.2d at 267-68 (emphasis added).

The general statements proffered by McAfee and Roberts — that “time [was] of the essence,” and that “the sooner the onset of treatment, the better the expected result” — essentially mirror the statements made by Dr. Jones — as soon as possible is “always the ideal,” and “any delay in diagnosis can adversely affect a person’s condition.” Like the testimony in McAfee, Dr. Jones’s opinion does not constitute substantial evidence that the two- or three-hour delay of which Mrs. Duckworth complains probably adversely affected Mr. Duckworth’s response to treatment.

The expert testimony presented in the cases cited by Mrs. Duckworth is clearly distinguishable. Travis v. Scott, 667 So.2d 674, 678 (Ala.1995) (plaintiffs expert testified that if surgery had been performed on the decedent two days after she was admitted to the hospital, rather than eight days after admission, she “probably would have survived”); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 803 (Ala.1994) (plaintiffs expert testified that the challenged delay in treating the plaintiffs meningitis infection “caus[ed]” or “contributed to the neurological damage that occurred”); Parker v. Collins, 605 So.2d at 826 (breast-cancer patient’s experts were “80% certain” that cancer invaded the lymph nodes, necessitating a “mastectomy and [a] course of chemotherapy and radiation treatments,” because of the defendant-doctor’s failure timely to diagnose a lump in the plaintiffs breast).

Because Mrs. Duckworth failed to present substantial evidence of medical causation, the trial court erred in denying the Center’s motion for a JML. The judgment in favor of Mrs. Duckworth is, therefore, reversed, and a judgment is rendered in favor of the Center.

REVERSED AND JUDGMENT RENDERED.

HOUSTON, LYONS, BROWN, and JOHNSTONE, JJ., concur.

      . Dr. Jones also stated that "[a] person over 70 years of age with an acute subdural hema-toma probably has an 80 percent morality rate,” and that the ''risk” of death "in the elderly” in such cases was "very, very high.”


author: LYONS, Justice.

text:
    SCOTT BRIDGE COMPANY v. Michael WRIGHT.
    1021705.
    Supreme Court of Alabama.
    Dec. 19, 2003.

      Arnold W. Umbach III and Colin R. Stockton of Bradley Arant Rose & White, LLP, Birmingham; and Stanley A. Martin, Opelika, for appellant.
    Clay Hornsby of Morris, Haynes & Hornsby, Birmingham, for appellee.
   LYONS, Justice.

Scott Bridge Company appeals, pursuant to Rule 5, Ala. R.App. P., from the trial court’s order denying its motion for a summary judgment in a retaliatory-discharge action filed against it by Michael Wright. We reverse the trial court’s order and render a judgment for Scott Bridge Company.

I. Facts and Procedural History

Scott Bridge Company hired Michael Wright on June 26, 1997, as a carpenter on a bridge-construction project in Georgia. When he was hired, Wright was a resident of Georgia. Wright claims that he suffered an on-the-job injury on March 18, 1998, while working on a bridge project in Augusta, Georgia. On or about September 28, 1998, Wright filed a claim for benefits with the Georgia State Board of Workers’ Compensation. Wright never sought benefits under the Alabama Workers’ Compensation Act. In October 1998, Scott Bridge assigned Wright to work at its office in Opelika, where he remained employed until he was discharged on April 21, 2000.

Wright sued Scott Bridge in the Chambers Circuit Court on April 19, 2002, alleging that he was discharged in retaliation for having filed a claim for workers’ compensation benefits. The action was transferred to the Lee Circuit Court. Scott Bridge filed a motion for a summary judgment on the ground that the prohibition set forth in § 25-5-11.1, Ala.Code 1975, against terminating an employee solely because the employee has filed a workers’ compensation claim does not apply to employees asserting claims under the workers’ compensation laws of any other state. The trial court denied the motion, citing the existence of genuine issues as to material fact.

Scott Bridge then filed a motion asking the trial court to alter or amend the order, or, in the alternative, to certify the order for permissive appeal pursuant to Rule 5, Ala. R.App. P. The trial court entered an order stating that the ease involved

“a controlling question of law as to which there is a substantial ground for difference of opinion, specifically whether Ala.Code § 25-5-11.1 recognizes a claim for retaliatory discharge where the plaintiff never sought workers’ compensation benefits in Alabama, but rather sought workers’ compensation benefits in Georgia pursuant to an injury occurring when the plaintiff worked and lived in Georgia.”

The trial court then amended that order, finding expressly that “Plaintiff never sought workers’ compensation benefits in Alabama, but claims only that he sought workers’ compensation benefits in Georgia.” Continuing, the trial court observed that “Alabama law may recognize a claim for retaliatory discharge, pursuant to Ala. Code § 25-5-11.1, based on the facts alleged by Plaintiff.” Scott Bridge then filed with this Court a petition for permission to appeal pursuant to Rule 5, Ala. R.App. P. We granted the petition.

II. Standard of Revieiu

This Court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001).

III. The Scope of the Remedy

This Court has repeatedly embraced the rule that an employee at will may be discharged for any reason, including a “wrong” reason, or for no reason. For a recent example of our reiteration of this long-standing rule, see Coca-Cola Bottling Co. Consolidated v. Hollander, 885 So.2d 125 (Ala.2003), and the cases cited therein.

Section 25-5-11.1 provides, in pertinent part:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter .... ”

(Emphasis added.) This statutory provision prohibiting retaliatory discharge was enacted in response to this Court’s 5-4 decision in Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala.1984), where the Court acknowledged the employment at-will doctrine and refused to recognize an exception in a case in which an employee maintained that his discharge from employment was the result of his having filed a workers’ compensation claim. In Meeks, this Court referred to Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980), in which the Court had refused to recognize an exception to the at-will doctrine for an employee who alleged that he had been fired because he had missed work to serve on a grand jury. After Bender Ship Repair was released, as the opinion in Meeks points out, the Legislature enacted § 12-16-8.1, Ala.Code 1975, creating a remedy for an employee who was discharged for serving on a jury. Section 12-16-8.1(a) provides as follows:

“No employer in this state may discharge any employee solely because he serves on any jury empanelled under any state or federal statute; provided, however, that the employee reports for work on his next regularly scheduled hour after being dismissed from any jury.”

(Emphasis added.) The Legislature accepted this not-so-subtle hint in Meeks as to the proper course of action and enacted § 25-5-11.1.

Section 25-5-11.1 quite plainly creates a remedy where an employee has been discharged solely for instituting or maintaining an action for workers’ compensation benefits “under this chapter.” Wright urges us to apply the oft-cited rule of construction requiring that we construe workers’ compensation statutes liberally in favor of the employee in order to achieve the beneficent purposes of the workers’ compensation laws so as to, in effect, read the phrase “under this chapter” out of the statute. This we cannot do. We recently reiterated in Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003), the settled principle that “ ‘[cjourts must liberally construe the workers’ compensation law “to effectuate its beneficent purposes,” although such a construction must be one that the language of the statute “fairly and reasonably” supports.’ ” (Quoting Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985).) In Hollander, supra, we referred to § 25-5-11.1 as a “narrow exception” to the general rule that an employment contract is terminable at will by either party, “forbidding employers from terminating an at-will employee solely because that employee sought workers’ compensation benefits.” 885 So.2d at 129.

Wright refers us to McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299 (Ala.1991), in which this Court held that the word “action,” as used in § 25-5-11.1, included a claim as well as a judicial proceeding. Wright urges this example of a construction consistent with the beneficent purposes of the Workers’ Compensation Act as authority for disregarding the phrase “under this chapter.” Suffice it to say that it is quite a leap from liberally construing one word in § 25-5-11.1 to completely writing three words out of the statute. This Court simply cannot ignore words in a statute except where “it is ‘certain that the legislature could not possibly have intended the words to be in the statute, and that the rejection of them serves merely as a correction of careless language.’ ” Ex parte Jackson, 625 So.2d 425, 428 (Ala.1992). We are not here presented with such a case.

The Legislature is quite capable of drafting an exception to the at-will rule that is sufficiently broad to provide a cause of action for retaliatory discharge for conduct on the part of an employer arising from the employee’s involvement with the workers’ compensation laws of other states. See, e.g., the aforementioned statute prohibiting retaliatory discharge based upon an employee’s being required to serve on a jury “empanelled under any state or federal statute.” See § 12-16-8.1(a), quoted in full ante (emphasis added). The case for modifying § 25-5-11.1 to embrace claims arising from an employee’s discharge in Alabama as a result of the employee’s asserting rights conferred by the workers’ compensation laws of another state should be made in the Legislature.

TV. Conclusion

We reverse the trial court’s order denying Scott Bridge’s motion for a summary judgment and render a judgment in favor of Scott Bridge.

REVERSED AND JUDGMENT RENDERED.

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

      . Under the Georgia workers' compensation act, Wright has no remedy in Georgia for a retaliatory discharge for filing a workers' compensation claim. See Evans v. Bibb Co., 178 Ga.App. 139, 140, 342 S.E.2d 484, 486 (1986), in which the Georgia court, in a decision quite similar to Meelcs, held that the General Assembly was the appropriate forum for any change in Georgia law. No such change has been made in the ensuing years.

      . For an example of a statute clearly achieving the result desired by Wright, see a Louisiana statute concerning retaliatory discharge, La.Rev.Stat. 23:1361(B), which provides, in pertinent part:
      "No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States."

      (Emphasis added.)


author: SEE, Justice. LYONS, Justice

text:
    Ray GORE v. ALABAMA DEPARTMENT OF PUBLIC SAFETY et al.
    1020722.
    Supreme Court of Alabama.
    Dec. 19, 2003.

      Russell J. Watson of Ball, Koons & Watson, Bay Minette, for appellant.
    Jack M. Curtis, Department of Public Safety.
   SEE, Justice.

Ray Gore, the plaintiff in an action against the Alabama Department of Public Safety and one of its employees, Sgt. Charles J. Alexander (hereinafter collectively the “Department”), appeals from the judgment of the Baldwin Circuit Court dismissing his claims in part and the subsequent summary judgment in favor of the Department disposing of the remaining claims. We affirm in part; reverse in part; and remand.

On November 2, 2001, Gore was stopped by an Alabama State Trooper for speeding on 1-65 near Bay Minette. During that traffic stop, the trooper discovered approximately $115,000 in United States currency in Gore’s possession. Suspecting that the currency may have been the product of criminal activity, the trooper confiscated it, along with Gore’s- cellular telephone and various personal documents. Gore was neither arrested nor taken into custody as a result of the traffic stop. The cash was subsequently transferred to the Federal Drug Enforcement Administration (“DEA”), which instituted forfeiture proceedings.

Gore has not been charged with any crime, offense, or violation, other than a warning citation he received for speeding. He has since sought the return of the currency and personal items from the Department; however, the Department has refused to return them, stating that an investigation is ongoing and that the return of potential evidence could jeopardize that investigation. On March 21, 2002, Gore sued the Department in the Baldwin Circuit Court alleging conversion and seeking a judgment declaring that the seizure of the money and personal items was wrongful.

The Department moved to dismiss the complaint, alleging that Gore failed to state a claim upon which relief could be granted and that the trial court lacked subject-matter jurisdiction over the matter. On May 21, 2002, the trial court granted the motion as to the currency, which was in the possession of the DEA, but denied the motion as to the personal property, over which the Department maintained control. On October 1, 2002, the Department moved for a summary judgment on Gore’s remaining claims relating to the cellular telephone and the personal documents. The trial court granted that motion on December 12, 2002. Gore filed a motion to vacate the summary judgment, which the trial court denied, and on January 31, 2003, he timely filed a notice of appeal to this Court.

I.

Gore raises two arguments on appeal. He first argues that the trial court erred in dismissing his claim against the Department regarding the $115,000 in currency that was seized. Second, he argues that the trial court erred in entering a summary judgment for the Department on his claim regarding the seizure of his cellular telephone and personal documents. Because the trial court considered materials outside the pleadings in ruling on the Department’s motion to dismiss, the standard of review for both claims is the same: that standard applicable to reviewing a summary judgment. Fraley v. Brown, 460 So.2d 1267, 1268 (Ala.1984). We have previously explained that standard as follows:

“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).”

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

II.

Gore’s first claim is that the trial court erred in dismissing his claims regarding the $115,000 in seized currency, because, he argues, regardless of whether the trial court had in rem jurisdiction over the currency, it had personal jurisdiction over all the parties and subject-matter jurisdiction to decide if the conduct was wrongful. The Department argues that the trial court’s judgment was proper (1) because, it argues, the Department is immune from suit under the doctrine of sovereign immunity, and (2) because the $115,000 was in the possession of the DEA and the trial court therefore lacked jurisdiction to address the status of the $115,000.

The Department argues that Gore’s action is barred by the principle of sovereign immunity, as expressed in § 14, Ala. Const.1901, which provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” As this Court has noted, “[t]he wall of immunity erected by § 14 is nearly impregnable.”. Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). However, there is an exception for actions brought to compel State officials to perform ministerial acts. Id. (citing Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479 (1942)). If the Department did not have the authority to retain Gore’s property, then the return of that property could be compelled as a ministerial act. See Lightfoot v. Floyd, 667 So.2d 56, 65 (Ala.1995). However, this exception to the doctrine of sovereign immunity is of no help to Gore’s claim because he is not seeking the return of his currency; instead, he is seeking a judgment declaring that the seizure of the currency was wrongful and he is seeking $115,000 in damages for the conversion. The doctrine of sovereign immunity acts as a jurisdictional bar to such actions, and the trial court, therefore, properly dismissed Gore’s claim.

Gore’s second argument is that the trial court erred in entering a summary judgment for the Department on his claim regarding the seizure and retention of his cellular telephone and personal documents. The Department again asserts the defense of sovereign immunity. However, that doctrine is inapplicable to this claim because Gore is seeking the physical return of the seized items, not damages for their conversion. As was discussed above, there is an exception to sovereign immunity for actions brought to compel State officials to perform ministerial acts, and if the Department does not have the authority to retain Gore’s property, then the return of the property can be compelled as a ministerial act. Gore’s claim regarding the cellular telephone and the personal documents, therefore, falls within this exception, and we must accordingly decide the issue on its merits.

The Department alleges that under the authority of Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 306, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the government has the right to seize and hold evidence for the purposes of proving a crime. It further maintains that an investigation into the cellular telephone and personal documents is ongoing and that, “Mr. Gore is not entitled to their return until a final decision has been made by the appropriate authorities as to the criminal prosecution of Mr. Gore.” Gore distinguishes his case from Hayden, arguing that the property seized in his case was not seized in conjunction with an arrest or a search warrant, and that 16 months after the property was seized (now over 24 months) charges have yet to be filed against him.

Interestingly, neither party has cited Lightfoot, which is this Court’s most recent opinion addressing the extent of the State’s power to retain seized evidence. In Lightfoot, the campus police at Alabama A & M received an anonymous tip that a drug transaction involving a gray automobile and a maroon automobile was taking place behind a dormitory on campus. When the police arrived, they found Reginald Lightfoot and another person sitting in a maroon Ford Mustang automobile. Upon searching them, the police discovered $2,158 in cash on Lightfoot, but no contraband on either party. Neither Lightfoot nor the other person was arrested, but the police seized both the cash and the Ford Mustang.

Lightfoot was never charged with any crime; nonetheless, the money was held for approximately 24 months and the car was held for approximately 15-18 months. As in the case before us, the police in Lightfoot alleged that the money and car were held for so long because they were part of an ongoing criminal investigation. This Court stated:

“Regarding the investigation rationale, we are aware of no basis of authority, and none has been argued, that could justify retaining custody of the money for nearly two years because of an investigation of the money, of Mr. Lightfoot, or of his acquaintances. The investigation rationale might support the initial retention of the car because of Mr. Lightfoot’s inconsistent statements regarding the ownership of the car. That issue, however, was capable of resolution and, indeed, was resolved months before [the police investigator’s] release of the car to the F.B.I. At one point in his testimony, [the police investigator] refers to an ‘investigative hold’ on the money and the car. We have not been cited any authority supporting such a police procedure under the circumstances of this case. If the procedure does exist, the hold certainly would have to be temporary and based upon objectively identifiable criteria. Thus, an investigation of the property or of its owner does not, on the facts of this case, establish any basis of authority to retain custody of the money or the car for the length of time that the items were held.”

Lightfoot, 667 So.2d at 65 (footnote omitted).

In the present case, Gore’s cellular telephone and personal documents have been held by the Department for even longer than the Alabama A & M police held Lightfoot’s money and car. As Lightfoot makes clear, the retention of a citizen’s property for that length of time may not be justified solely by the law-enforcement agency’s assurance that an investigation is ongoing. Gore has, therefore, established a genuine issue of material fact as to whether the Department has wrongfully withheld his cellular telephone and personal documents. For that reason, the summary judgment entered in favor of the Department regarding the cellular telephone and personal documents is reversed.

III.

Because the trial court’s decision to dismiss Gore’s claims regarding the $115,000 was proper, we affirm that order; however, because there is a genuine issue of material fact as to whether the Department is entitled to continue to hold Gore’s cellular telephone and his personal documents, we reverse the summary judgment on the claims relating to the documents and the telephone and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

LYONS, J., concurs in the result in part and dissents in part.

LYONS, Justice

(concurring in the result in part and dissenting in part).

Insofar as the main opinion affirms the trial court’s dismissal of Gore’s claim against the Alabama Department of Public Safety for a declaratory judgment and damages in connection with the conversion of the currency, I concur in the result.

Gore named the Alabama Department of Public Safety and Sgt. Charles J. Alexander as defendants. The complaint says Sgt. Alexander is an agent of the State and that he was acting under color of state law when he seized the currency. The main opinion correctly treats the claim against Sgt. Alexander as an action against him in his official capacity only. Hence, this action is in all respects an action against the State of Alabama.

Gore’s claim is in reality an action against the State for money damages and is therefore barred by § 14 of the Constitution of Alabama of 1901. See Lyons v. River Road Constr., Inc., 858 So.2d 257 (Ala.2003) (dredging subcontractor’s action against the director of the Alabama State Port Authority in his official capacity was an action for damages, not a declaratory-judgment action, and, thus, was barred by the doctrine of State immunity).

Insofar as the main opinion reverses the trial court’s dismissal of Gore’s claim for conversion of the cellular telephone and the personal documents, I must respectfully dissent. In fact, Gore is seeking the return of those items. His claim, therefore, is in the nature of detinue for recovery of the property in specie. In his statement of facts in his brief to this Court, he states, “the documents and cell phone remain!] in the possession of the department.” Gore’s brief, p. 5. Thus, this claim is an action in detinue against the State of Alabama.

The main opinion relies upon Lightfoot v. Floyd, 667 So.2d 56 (Ala.1995). The plaintiffs claims against the various parties in their official capacities in Lightfoot were dismissed. Thus, the state-law claims against the defendant in Lightfoot named him in his individual capacity only. Consequently, Lightfoot, with its discussion of the dichotomy between ministerial and discretionary acts in the context of qualified immunity for a State agent sued in his individual capacity, is not on point. Likewise, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is not on point, because it relates to claims grounded upon violations of the United States Constitution; in this proceeding, the claims are grounded solely on state law.

Gore has not directed our attention to any statute obligating the Department or Sgt. Alexander, in his official capacity, to return the disputed property to him. Absent a contract right or statute requiring return of the property, Gore cannot evade the immunity from suit conferred by § 14. See Lyons v. River Road Constr., Inc. I would affirm the trial court’s summary judgment in favor of Gore on Gore’s claim against the State of Alabama for recovery of his cellular telephone and personal documents.

      . Gore asserts that the seizure was effectuated by Sgt. Charles Alexander; however, the Department claims that the items were actually taken by Trooper Chad Chandler and that Sgt. Alexander is merely the case agent assigned to investigate the incident.

      . Sgt. Alexander has been sued in his official capacity only. Therefore, he is entitled to the same sovereign immunity (and subject to the same exceptions) as the Department of Public Safety.

      . Similarly, the doctrine of sovereign immunity might not apply to the $115,000 Gore seeks to recover if he were attempting to replevy the seized cash instead of seeking damages for conversion. However, such an action would also have been due to be dismissed because 21 U.S.C. § 881(c) and 28 U.S.C. § 1355(a) give the federal district courts original jurisdiction in all federal forfeiture actions. See Edney v. City of Montgomery, 960 F.Supp. 270 (M.D.Ala.1997) (holding that the United States’ adoption of a state’s seizure of currency has the same effect as if the United States had originally seized the currency).

      . In Lightfoot, the police also claimed that they had retained the items for forfeiture pursuant to § 20-2-93, Ala.Code 1975. While the Department has not made that argument in this case, this Court in Lightfoot noted that where items had been seized “without process,” forfeiture proceedings instituted more than approximately a month after seizure were not "instituted promptly” and were therefore ineffectual. Lightfoot, 667 So.2d at 66.

      . As previously noted, Gore contends that the Department of Public Safety holds the items whose return he is seeking. Thus, Sgt. Alexander, in his individual capacity, is incapable of returning these items.


author:
STUART, Justice.
      JOHNSTONE, Justice

text:
    Deborah MOORE v. STATE FARM AUTOMOBILE INSURANCE COMPANY and Clay Carpenter.
    1021725.
    Supreme Court of Alabama.
    Dec. 19, 2003.
    R. Gordon Pate of Pate, Lloyd & Co-chrun, LLP, Birmingham, for appellant.
    Mark D. Hess of London & Yancey, L.L.C., Birmingham; and Hugh C. Harris of Bland, Harris & McClellan, P.C., Cull-man, for appellees.
   STUART, Justice.

AFFIRMED. NO OPINION.

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

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

JOHNSTONE, J., concurs in part and dissents in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in affirming the partial summary judgment in favor of Clay Carpenter individually on all claims against him and in affirming the partial summary judgment in favor of State Farm on the fraud and outrage claims against it; but I respectfully dissent from affirming the partial summary judgment in favor of State Farm on the breach of contract claim and the bad faith claim against it.


author: MURDOCK, Judge.

text:
    Donald J. VINCENT v. FIRST ALABAMA BANK and Betty Vincent.
    2010117 and 2010118.
    Court of Civil Appeals of Alabama.
    Dec. 20, 2002.
    Rehearing Denied Feb. 7, 2003.

      William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant.
    R. Cooper Shattuck and Jane L. Cala-musa of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for appellee First Alabama Bank.
   MURDOCK, Judge.

Donald J. Vincent (“Vincent”) appeals from a summary judgment entered by the Tuscaloosa Circuit Court in favor of First Alabama Bank (“the bank”) and Betty Vincent following a remand by this court. In Vincent v. First Alabama Bank, 770 So.2d 86 (Ala.Civ.App.1998) (“Vincent /”), we set forth the procedural history giving rise to those previous appeals:

“Donald Vincent sued First Alabama Bank and Betty Jo Vincent, his wife, alleging negligence, breach of contract, conversion, and wantonness claims. Vincent alleged that he had rented two safe deposit boxes from the bank and had placed $500,000 in cash and certificates of deposit in the boxes. However, he claims that when he opened the boxes on November 21, 1991, the boxes were empty. Vincent alleges that Betty Jo Vincent, his wife, gained unauthorized access to the boxes and removed the money. The bank filed a cross-claim against the wife.
“A jury returned a verdict in favor of Vincent against the bank on the negligence claims and against the wife on the conversion claim, awarding him $10,000 in damages. The jury found in favor of the bank on Vincent’s breach of contract and wantonness claims. The jury found in favor of the bank on its cross-claim against the wife and awarded it $10,000. Thereafter, Vincent filed a motion for a new trial and the bank renewed its earlier motion for a judgment as a matter of law. The trial court denied both motions. Vincent and the bank appealed.”

770 So.2d at 88. In Vincent I, this court affirmed the trial court’s denial of Vincent’s new-trial motion, which had asserted that that court had improperly refused to admit certain evidence; we also affirmed the trial court’s denial of the bank’s renewed motion for a JML (see Rule 50(b), Ala. R. Civ. P.), which had asserted, among other things, that a release appearing on the form that Vincent had signed when he closed the safety-deposit boxes barred his claims against the bank as a matter of law.

Vincent subsequently sought certiorari review of our affirmance in Vincent I of the trial court’s denial of his new-trial motion. In Ex parte Vincent, 770 So.2d 92 (Ala.1999) (“Vincent II ”), the Alabama Supreme Court reversed this court’s judgment affirming of the trial court’s denial of Vincent’s new-trial motion, concluding that a ledger that had been kept by Betty Vincent should have been admitted into evidence. 770 So.2d at 96. The Supreme Court remanded the cause to this court “for further proceedings consistent with [its] opinion.” Id. On remand from the Supreme Court, this court reversed the trial court’s order denying Vincent’s new-trial motion, stating that the cause was “remanded for a new trial.” Vincent v. First Alabama Bank, 770 So.2d 97 (Ala.Civ.App.2000) (“Vincent III ”).

In January 2001, after the cause had been remanded to the trial court for a new trial, the circuit judge who had presided over the original trial left office. In August 2001, the bank filed a motion for a summary judgment. As one of its bases for that motion, the bank asserted that Vincent had released the bank from liability, citing the release addressed by this court in Vincent I. The bank also asserted that Vincent’s claims were barred by the doctrine of judicial estoppel because he had, according to the bank, represented under oath in previous bankruptcy proceedings and in divorce litigation with a former wife, Billie Vincent, that he did not have the $500,000 that he claimed Betty Vincent had removed from the safety-deposit boxes at the bank. The bank’s summary-judgment motion was supported by, among other things, excerpts from Vincent’s transcribed deposition testimony and from the transcript of his testimony at the original trial. Vincent responded by asserting, among other things, that a summary judgment based upon the release would be inconsistent with our holding in Vincent I, that a defense based upon judicial estoppel could not properly be asserted at that time, and that judicial estoppel was inapplicable under the facts of the case.

In September 2001, the successor circuit judge entered a summary judgment in favor of the bank and Betty Vincent. In its summary-judgment order, the trial court relied primarily upon the doctrine of judicial estoppel, although it also cited the release as an alternative ground. Vincent appealed to the Alabama Supreme Court, filing two notices of appeal, one as to the bank and one as to Betty Vincent; that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975. The appeals have been consolidated for purposes of writing our opinion.

Under Alabama law “the party moving for a summary judgment ‘has the burden of showing the absence of any genuine issue as to all material facts, which, under the applicable principles of substantive law, entitle it to a judgment as a matter of law.’ ” Garrison v. Alabama Power Co., 807 So.2d 567, 569 (Ala.Civ.App.2001) (quoting Fox v. Title Guar. & Abstract Co., 337 So.2d 1300, 1303 (Ala.1976)). We must therefore consider whether, under the applicable principles of Alabama law, the trial court’s summary judgment was proper.

One of the two alternative grounds invoked by the trial court as authority for entering the summary judgment was the release executed by Vincent when he surrendered the keys to the safety-deposit boxes. However, in Vincent I, this court held that the trial court properly denied motions for judgment as a matter of law during and after the trial that squarely presented an issue whether the release was ambiguous. The two judges of this court who joined the lead opinion in Vincent I as to this issue were of the view that “more than one reasonable meaning of the document ha[d] emerged, thereby creating an ambiguity in the document.” 770 So.2d at 91. Although Presiding Judge Robertson did not join the lead opinion, he concurred in the result, i.e., he agreed that affirmance of the trial court’s denial of the bank’s motions for a JML was correct. Thus, although two judges dissented as to the release issue in Vincent I, this court’s judgment of affirmance decided the issue of ambiguity in favor of Vincent, a judgment as to which the bank elected not to seek certiorari review in the Alabama Supreme Court.

“Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.”

Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). The trial court therefore could not on remand, based on the same facts, reverse its previous judgment and hold that the release was unambiguous. See Quimby v. Memorial Parks, Inc., 835 So.2d 134, 136 (Ala.2002). To the extent that the trial court based its summary judgment on the release, it erroneously went beyond the mandate of this court.

In contrast, the applicability of the doctrine of judicial estoppel was not litigated by the parties in the earlier appeal; neither this court nor the Supreme Court has yet addressed that issue. As we have stated, the Supreme Court, on certiorari review in Vincent II, reversed this court’s judgment affirming the trial court’s denial of Vincent’s motion for a new trial. On remand from the Supreme Court, this court reversed the trial court’s judgment and remanded the cause “for a new trial.” Vincent III, 770 So.2d at 97. Our general remand in Vincent III for a new trial did not limit the subsequent proceedings except insofar as this court and the Supreme Court in Vincent I and Vincent II had indicated the law of the case. See Sullivan v. Mihelic, 808 So.2d 6, 9 (Ala.2001) (where an appellate court held that the trial court erred in failing to grant a new trial, but did not limit the new trial to specific issues, the trial court erred in limiting the scope of the new trial). The bank asserted estoppel as a defense in its answer, and the trial court, in the exercise of sound judicial discretion, was authorized to permit the bank to argue that Vincent’s claims were barred by the doctrine of judicial estoppel. See Federal Land Bank of New Orleans v. First Nat’l Bank of Scottsboro, 237 Ala. 84, 88, 185 So. 414, 417 (1938); see also Stover v. Alabama Farm Bureau, Ins. Co., 467 So.2d 251 (Ala.1985) (affirming a summary judgment entered by the trial court based upon a ground not asserted by the movant until after the deliverance of the opinion in the earlier appeal).

However, on the merits, we cannot conclude that the doctrine of judicial estop-pel bars Vincent’s claims against the bank. Our Supreme Court, in Jinright v. Paulk, 758 So.2d 553 (Ala.2000), set forth the following pertinent principles that govern the application of that doctrine in Alabama courts:

“The doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system[,] while equitable estoppel focuses on the relationship between the parties to the prior litigation.’ The doctrine is applied to uphold the integrity of the judicial system. However, this Court has recognized a number of limitations upon the rule against asserting inconsistent positions in judicial proceedings.
“ ‘ “The following have been enumerated as essentials to the establishment of an estoppel under the rule that a position taken in an earlier action es-tops the one taking such position from assuming an inconsistent position in a later action: (1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; and (6) it must appear unjust to one party to permit the other to change.” ’
“Thus, a party may not claim the benefit of the doctrine of judicial estoppel unless the party can demonstrate that the party against whom the estoppel is sought procured a judgment in its favor as a result of the inconsistent position taken in the prior proceeding. Moreover, the party claiming the estoppel must have been misled by the conduct of the party against %vhom the estoppel is sought, and consequently changed its position to its prejudice.”

758 So.2d at 555 (emphasis added; citations omitted).

In this case, Vincent has admitted that he testified in depositions and in trial proceedings in a 1982 bankruptcy case involving a corporation Vincent owned and in a 1985 divorce action involving his marriage to Billie Vincent that he did not have the money he claims to have placed in the safety-deposit boxes at the bank. Specifically, Vincent did not report $500,000 in cash and cashier’s checks to the bankruptcy court, but concealed that money from that court and from his creditors and lied during a creditors meeting in that case because he wanted to retain those funds after the conclusion of the bankruptcy proceedings. Moreover, Vincent apparently informed Billie Vincent of his intent to defraud the bankruptcy court, but later, under oath in the subsequent divorce proceedings, denied having had that money and having had a safety-deposit box. Vincent’s position in this litigation with the bank is apparently in direct opposition to the positions he took in the bankruptcy proceedings and in his divorce litigation with Billie Vincent and arguably casts severe doubt upon his credibility.

However, as outlined by the Alabama Supreme Court, judicial estoppel applies only under certain limited circumstances. An inconsistent position, although necessary to the applicability of judicial estoppel, is not alone sufficient to invoke the doctrine. While the trial court opined that it did not believe that whether the bank was a party to the bankruptcy or divorce proceedings was material, Jin-right and its progeny are to the contrary. For example, in Dzwonkowski v. Sonitrol of Mobile, Inc., 854 So.2d 598 (Ala.Civ.App.2002), this court reversed a partial summary judgment in which a trial court had concluded that a president of a closely held corporation was judicially estopped from claiming ownership of more than one share of stock in that corporation in a de claratory-judgment action against his sons although the president had given deposition testimony in connection with his divorce that he owned only one share of stock. After quoting Jinright, we held that judicial estoppel did not apply because (1) the sons were not parties to the divorce action; and (2) the sons did not prove that they were misled by the deposition testimony or that they changed their positions to their detriment based on that testimony. Accord, Hoffman v. Truck Driving Academy, 777 So.2d 151 (Ala.Civ.App.2000) (holding that judicial estoppel did not apply where the defendant failed to demonstrate any prejudice arising from the plaintiffs failure to disclose assets to the bankruptcy court); Battle v. Alpha Chem. & Paper Co., 770 So.2d 626 (Ala.Civ.App.2000) (same).

Our holding as to this issue should not be taken as somehow rewarding or immunizing Vincent as to the conduct in question. Assuming that Vincent did, in fact, lie to two other courts concerning the existence of the $500,000 he claims was stolen from his safety-deposit boxes, nothing in this opinion prevents those courts or other appropriate officials from responding accordingly. Similarly, if the trier of fact in this case concludes that Vincent has lied about material issues, nothing in this opinion keeps Vincent’s actions from impacting the trial court’s credibility determinations and its liability and damage assessments. However, under the doctrine of judicial estoppel as it has been applied in Jinright and its progeny, neither the bank nor Betty Vincent is entitled to a summary judgment simply because Vincent claims to have lost, as a proximate result of the conduct of the bank and Betty Vincent, moneys that in collateral litigation he denied having had.

Based upon the foregoing facts and authorities, the summary judgment in favor of the bank and Betty Vincent is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . That release provided: "The contents of safety deposit box no. [130 and 131] having been removed, the box with 1 key is surrendered, and the bank is hereby released from all liability by the undersigned.” Vincent I, 770 So.2d at 90.

      . When a release is determined to be ambiguous, the fact-finder must receive evidence on the intent of the parties in order to give the release effect according to the terms and the intentions of the parties. Williams v. Nolin, 484 So.2d 428 (Ala.1986).

      . The Alabama Supreme Court has, on a number of occasions, considered multiple cer-tiorari petitions stemming from one appeal. See, e.g., Ex parte Certain Underwriters at Lloyd’s of London, 815 So.2d 558 (Ala.2001); Ex parte City of Tuscaloosa, 757 So.2d 1182 (Ala.1999).