author: HOUSTON, Justice.

text:
    S. Felton MITCHELL, Jr. v. FOLMAR & ASSOCIATES, LLP.
    1011572.
    Supreme Court of Alabama.
    Jan. 10, 2003.
    Rehearing Denied Feb. 21, 2003.

      Richard D. Horne and James J. Dailey of Horne & Dailey, L.L.C., Mobile, for appellant.
    George M. Walker and Lisa Darnley Cooper of Hand Arendall, L.L.C., Mobile, for appellee.
   HOUSTON, Justice.

S. Felton Mitchell, Jr., appeals from a judgment entered on a jury verdict against him and in favor of Folmar & Associates, LLP (“Folmar”), the plaintiff in this malicious-prosecution action. The judgment awarded $51,918.40 in compensatory damages, which was the exact amount of the attorney fees and costs Folmar expended in defending against Mitchell’s first counterclaim (the gravamen of Folmar’s malicious-prosecution action), and $103,836.80 in punitive damages, which is two times the amount of the compensatory damages.

Folmar is a partnership primarily engaged in developing and managing shopping centers. William M. Cagle, Jr., was one of three partners in Folmar before his death on September 25, 1997. Folmar advanced Cagle moneys against future distributions for many years before his death; as a result, at the time of his death Cagle owed Folmar a substantial sum of money. Folmar filed a claim against Cagle’s estate for $407,688.01 on April 24, 1998. The claim was satisfied by Folmar’s withholding the necessary amounts from Cagle’s estate’s share of distributions made to the partners of Folmar.

Approximately nine months after the claim had been satisfied, Mitchell, who had then been appointed as administrator of Cagle’s estate, filed an objection to Fol-mar’s claim and filed two counterclaims against Folmar. Counterclaim number two sought an accounting by Folmar, which Mitchell later conceded that he knew he, as administrator of Cagle’s estate, was entitled to as a matter of law. Counterclaim number one (“counterclaim one”), which is the basis for the malicious-prosecution action, alleged that Folmar had acted in combination with other persons to fraudulently obtain, or to obtain without valuable consideration, before Ca-gle’s death, Cagle’s signature on an amendment to the partnership agreement. Mitchell alleged that the amendment substantially diminished or damaged Cagle’s interest — and consequently his estate’s interest — in Folmar. Mitchell pursued that counterclaim in the Probate Court of Mobile County for at least 18 months before he voluntarily dismissed it.

' Several issues Mitchell raises on appeal relate to the trial court’s alleged error in denying his motion for a summary judgment. However, we do not review a trial court’s denial of a summary-judgment motion following a trial on the merits. See Grayson v. Hanson, 843 So.2d 146 (Ala.2002); Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994); see also Lind v. United Parcel Service, Inc., 254 F.3d 1281, 1283-84 (11th Cir.2001). Mitchell also filed a motion for a judgment as a matter of law at the close of all the evidence; the trial court denied the motion.

In Eidson v. Olin Corp., 527 So.2d 1283, 1284 (Ala.1988), this Court restated the existing law, as follows:

“ ‘Malicious prosecution is an action disfavored in the law.’ Cutts v. American United Life Insurance Co., 505 So.2d 1211, 1212 (Ala.1987). The reason for such disfavor is clear: ‘[Pjublic policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge.’ Boothby Realty Co. v. Haygood, 269 Ala. 549, 554, 114 So.2d 555, 559 (1959).”

Even so, because the jury found for Folmar, the evidence must be viewed in a light most favorable to Folmar. Hornady Truck Line, Inc. v. Meadows, 847 So.2d 908 (Ala.2002). Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152 (Ala.2002).

Mitchell is an attorney; he knew or should have known that fraud is a personal claim that abated with Cagle’s death, because Cagle had not filed an action to recover for fraud before his death. Ala. Code 1975, § 6-5-462. On August 18, 1999, six months after Mitchell filed counterclaim one, Mitchell testified at a hearing in the probate court that he filed the counterclaim alleging fraud even though he had no information at the time he filed the counterclaim indicating that Folmar had committed fraud against Cagle or that Fol-mar had misrepresented to or concealed from Cagle any fact. Mitchell also admitted that six months after that counterclaim was filed he still had no information indicating that Folmar had committed fraud in any respect. Mitchell also testified that he had no evidence or information indicating that Cagle was incompetent or incapacitated when he signed the amendment to the partnership agreement (although he alleged this in counterclaim one) and that Mitchell had no evidence indicating that the amendment to the partnership agreement substantially diminished or damaged the value of Cagle’s partnership interest.

On January 20, 2000,11 months after he filed the counterclaim, Mitchell again testified at a hearing in the probate court that he still had no evidence of any fact that was misrepresented to or concealed from Cagle in connection with Cagle’s execution of the amendment to the partnership agreement. Mitchell again admitted that he had no evidence to support his contention that Cagle was incompetent or incapacitated when he executed the amendment to the partnership agreement.

At the trial of this malicious-prosecution action, Mitchell testified that he knew Folmar’s claim against Cagle’s estate had been satisfied before he filed the objection to the claim and the counterclaims. He also testified that at the time of the trial he still had no knowledge of any fact that had been misrepresented to or suppressed from Cagle and that he had no knowledge regarding Cagle’s mental capacity at the time he executed the amendment to the partnership agreement. Mitchell conceded at trial that while he alleged that Cagle’s signature to the partnership amendment had been procured by fraud, he still had not talked with any of the persons present when Cagle signed the amendment. He also admitted that he had never calculated the purported diminution in value of Cagle’s interest in the partnership that he alleged in counterclaim one was caused by the execution of the amendment.

“In order to succeed in a malicious prosecution action, a plaintiff must prove that a prior judicial proceeding was instigated by the present defendant without probable cause and with malice; that the prior proceeding ended in favor of the present plaintiff; and that the present plaintiff was damaged thereby.”

Fina Oil & Chem. Co. v. Hood, 621 So.2d 258, 256 (Ala.1993) (citing Lumpkin v. Co-field, 536 So.2d 62 (Ala.1988)).

There was evidence from which the jury could reasonably have inferred that Mitchell filed in the probate court an objection to a claim he knew had already been satisfied and that he filed a counterclaim that he knew had already abated as a matter of law (Ala.Code 1975, § 6-5-462). When he filed counterclaim one — or at any time during the 18 months that elapsed between the filing of the counterclaim and the voluntary dismissal of the claim by Mitchell — Mitchell had no evidence to substantiate his allegation that Folmar had fraudulently obtained Cagle’s signature on an amendment to the partnership agreement during Cagle’s incapacity and final illness. The jury could have found that Mitchell acted with malice in pursuing the counterclaim and that there was a complete absence of evidence of probable cause to support a fraud action against Folmar. Alabama Power Co. v. Neighbors, 402 So.2d 958 (Ala.1981).

Mitchell voluntarily dismissed counterclaim one after it had remained pending for 18 months. The fact that Mitchell voluntarily dismissed the underlying action is sufficient to meet Folmar’s burden of proof that that counterclaim was disposed of in favor of Folmar. See Barrett Mobile Home Transport, Inc. v. McGugin, 530 So.2d 730, 735 (Ala.1988) (“[T]he requirement of showing a favorable termination may be satisfied by showing that the civil action in question was abandoned or dismissed.... [A] voluntary dismissal ‘without prejudice’ will suffice.”).

Mitchell contends that the dismissal was made on the basis of the “survival-statute issue,” and not on the grounds urged by Folmar. Even if that contention was relevant — and we cannot say that it was — the document Mitchell filed seeking to have counterclaim one dismissed cannot be located in the record. It does not appear on the pages Mitchell’s brief directs us to. The probate judge’s order provides:

“For due cause shown, it is ORDERED by the Court that the dismissal of counterclaim one as filed by S. Felton Mitchell, Jr., as Administrator of the estate of William M. Cagle, Jr., Deceased, be and the same is hereby filed and granted.... ”

There was substantial evidence of a termination of Mitchell’s counterclaim favorable to Folmar.

There was substantial evidence indicating that in defending against Mitchell’s counterclaim, Folmar incurred damages in the amount of $49,757 in attorney fees and expenses of $2,161.40. There was substantial evidence as to each element of malicious prosecution; therefore, the trial court did not err in denying Mitchell’s motion for a judgment as a matter of law.

“ ‘ “A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to judgment as a matter of law.” ’ ... In reviewing the denial of a motion for a judgment as a matter of law, this Court is required to view the evidence in a light most favorable to the nonmovant.”

Daugherty, 840 So.2d at 156 (quoting Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala.2000)).

The jury awarded punitive damages; it is therefore necessary to determine whether the trial court erred in permitting the issue of punitive damages to be decided by the jury, because Mitchell filed a motion for a judgment as a matter of law at the close of all the evidence.

At the discretion of the trier of fact, punitive damages may be awarded in a malicious-prosecution action where it is proven by clear and convincing evidence that the defendant consciously and deliberately acted with malice with regard to the plaintiff. Ala.Code 1975, § 6-11-20(a); see Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237 (Ala.2001), as it relates to § 6-11-20 and fraud. This calls for a purely objective determination of whether the party having the burden of proof has produced sufficient evidence to create a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a judgment as a matter of-law, this Court must view the evidence in the light most favorable to the nonmovant (in this ease Folmar), and must entertain such reasonable evidentiary inferences as the jury would be free to draw. See General Motors Corp. v. Bell, 714 So.2d 268, 274 (Ala. 1996). In this case, the trial court did not err in determining that it was for the jury to decide whether there was clear and convincing evidence that Mitchell consciously and deliberately acted with malice.

Mitchell contends that the trial court erred in failing to give his requested jury charge on the mitigation of damages. Mitchell requested the following charge, which the trial court denied:

“It is the duty of one damaged to exercise ordinary care to reduce his damages: he is bound to exercise such care as a reasonably prudent person would exercise under like circumstances to reduce or mitigate the damages. He can recover only such damages as would have been sustained had such care been exercised.”

Mitchell’s argument in support of the appropriateness of this jury charge is that most of the attorney fees were incurred by Folmar in defending against counterclaim one before Folmar filed a claim against Mitchell in the probate court under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. (“ALAA”), based on the survival statute, Ala.Code 1975, § 6-5-462. Mitchell contends that he should be liable only for the attorney fees and expenses incurred by Folmar from the time Folmar filed a claim under the ALAA until Mitchell dismissed counterclaim one. Mitchell cites no authority to support his contention, and we know of none. The trial court did not abuse its discretion in denying this requested charge.

Mitchell’s argument that the verdict is excessive is based upon the same contention he presented in support of his requested jury charge on mitigation. He presents no authority to support his argument, and we know of none. The trial court did not err.

AFFIRMED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ„ concur.

      . Pursuant to the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq., Folmar filed a motion in the probate court to recover from Mitchell reasonable attorney fees and expenses Folmar had incurred in defending against the allegations in Mitchell’s counterclaim. In this motion, Fol-mar alleged that Mitchell’s fraud action had abated at Cagle's death, which occurred before counterclaim one was filed.

      . Section 6-1 l-20(a)(4), Ala.Code 1975, defines clear and convincing evidence as:
      "Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."

      . Malice is defined at § 6-1 l-20(a)(2), Ala. Code 1975, as:
      "The intentional doing of a wrongful act without just cause or excuse, either:
      "a. With an intent to injure the person or property of another person or entity, or
      "b. Under such circumstances that the law will imply an evil intent.”


source: Caselaw Access Project

author: JOHNSTONE, Justice.

license: Public Domain

text:
    Paul FINEBAUM and Capstar Operating Corporation d/b/a WERC AM/FM Radio v. Richard Matthew COULTER.
    1000676.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      Warren B. Lightfoot and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; L. Graves Stiff III, Jeannie Bugg Walston, and Elise May Frohsin of Starnes & Atchison, L.L.P., Birmingham; and Lee Levine and Jay Ward Brown of Levine, Sullivan & Koch, L.L.P., Washington, D.C., for appellants.
    Robert Hayes and Jackie Swinford of Hayes & Swinford, Birmingham; and Sterling L. DeRamus, Birmingham, for ap-pellee.
    E. Cutter Hughes of Bradley Arant Rose & White, LLP, Huntsville, for amici curiae The Huntsville Times Co., Inc.; The Birmingham News Company; The Mobile Press Register, Inc.; Florence Times Daily; Gadsden Times; Tuscaloosa News; WHNT 19; Reporters Committee for Freedom of Press; Birmingham Post Herald; WCFT-TV; WJSU-TV; WBMA-LP; and The Montgomery Advertiser.
   JOHNSTONE, Justice.

Paul Finebaum and Capstar Operating Corporation d/b/a WERC AM/FM Radio (“WERC”) petitioned this Court for permission to appeal a trial court order denying in part their motion for a summary judgment. We granted their petition. We now reverse the partial denial of the motion for a summary judgment filed by Fi-nebaum and WERC, and we remand the cause for entry of an appropriate judgment.

Plaintiff Richard Matthew Coulter sued Finebaum and WERC for defamation, conspiracy, the tort of outrage, and invasion of privacy. The gravamen of each theory was a comment by Finebaum about Coulter, a sportscaster, during Finebaum’s December 15, 1998 radio talk show. Specifically, Coulter complained that, by comparing a conversation on Coulter’s own radio program between Coulter and another male participant with “oral sex,” Finebaum had, on his program, implied that Coulter “is a homosexual.”

Finebaum and WERC moved for a summary judgment on several grounds. The first was that, because Finebaum’s statement was an expression of opinion, it was not defamatory. The second ground was that, because Finebaum’s statement was “rhetorical hyperbole” protected by the First Amendment to the United States Constitution, the statement was not actionable. The third ground was that Coulter’s status as a public figure required him to prove that Finebaum made his statement with actual malice, which Coulter could not prove. The last ground was that Fineb-aum’s statement did not cause Coulter any physical or mental injury or any economic loss. The trial court granted summary judgment in favor of Finebaum and WERC on Coulter’s conspiracy claim, but denied summary judgment on Coulter’s other claims.

Finebaum was a sports journalist who hosted a daily sports talk radio program. Coulter was likewise a sports journalist who hosted his own radio talk program. Coulter had been a sports journalist, either on television or on radio, for over 20 years.

On December 15, 1998, on his radio program, Finebaum was discussing the motivation of college football recruiters and the deferential treatment that recruiters receive from sportscasters and coaches. Fi-nebaum took a telephone call from a caller identified as “Reg from Altadena.” The following colloquy occurred between Fi-nebaum and “Reg”:

“[Reg:] Paul, Pat [Dye] wasn’t by any means the first to ever reveal that about these recruiting people, uh, that’s been going on. Doug Layton used to hate to even have to have them on during recruiting season, and he said the same thing that Pat Dye said about them.
“[Finebaum:] Well, the difference is with Pat Dye, he had knowledge that this person had tried to hurt his program and tried to help Alabama.
“[Reg:] Now I don’t have any basis for what I was fixin’ to tell you, I think the guy that you had always talked to, Jeff Wineburger, I think he does the same thing in Tennessee.
“[Finebaum:] I’ve said before, after he’s been on, during conversations with him.
“[Finebaum:] Listen, I don’t believe any of these people. We have them on, as I mentioned, for entertainment purposes and I think they all, I mean, maybe, this is the first year we’ve had more than one on, I think it’s interesting to listen to them, and I think there can be some information weaned from them, but I....
“[Reg:] I really don’t, I’d rather listen to someone like you ..., those guys, they play off of the fans....
“[Finebaum:] Oh, they’re vultures....
“[Reg:] Yeah, they play off the fans, and I doubt that there is any football coach that would recruit based on what a recruiter says....
“[Finebaum:] Reg, you would be amazed at how many football coaches suck up to these guys.... [Y]ou’d be amazed at how close some of them are in proximity to where we’re talking right now and the reason they do is simple — so these people will go on their shows and talk about what great coaches they are, what great — I heard a program this morning that was easily the most embarrassing 30 or 40 minutes of radio I have ever heard in my life.
“[Reg:] Which one is it?
“[Finebaum:] It was on, I can’t, what’s the name of the show, Hey Tide, Tide something or other.
“[Reg:] Oh yeah, I don’t listen to that.
“[Finebaum:] It was Matt Coulter, and I can’t remember the other down, it, I mean, these two guys really slobbered over each other, I mean, I really thought they were going to start ■performing oral sex on one another, it was so sickening.
“[Reg:] Well, let me ask you a more important thing. Has there anything, any inkling what is going to become of this investigation on Alabama’s basketball team?
“[Finebaum:] We should know soon.
“[Reg:] Yeah, okay. Well you have yourself a good day.
“[Finebaum:] Thank you.
“[Bob Lochamy:] So, they got excited?
“[Finebaum:] Oh my goodness. This was the most repulsive thing I’ve ever heard. I mean, I just happened to flip on the radio to find something on, and these guys, I mean, you would have thought Alabama had just won its seventh straight national championship.
“[Lochamy:] Consecutive, yes.... ” (Emphasis added.)

Finebaum made no other reference to Coulter.

In Coulter’s deposition, he admitted that he had “been a public sports figure and analyst and sportscaster for ... seventeen to eighteen years.... ” In Finebaum’s deposition, he testified that his December 15, 1998 statement about Coulter’s radio program was “an attempt to satire, an attempt to humor, trying to characterize a little bit about our business, the business of sports and sports entertainment.” Coulter’s attorney asked Finebaum, “Did you make the statement with any animosity toward Mr. Coulter?” Finebaum replied, “Absolutely not.” Coulter’s attorney asked Finebaum, “So you were not saying that [Coulter] was gay?” Finebaum replied, “Absolutely not.”

“‘[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.’” Hustler Magazine v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

“ ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ Thornhill v. Alabama, 310 U.S. 88, 102 [(1940)]. Because the threat or actual imposition of pecuniary liability for alleged defamation may impair the unfettered exercise of these First Amendment freedoms, the Constitution imposes stringent limitations upon the permissible scope of such liability.”

Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 12, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (footnote omitted).

“Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.”

Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). A public figure

“cannot recover ¡for defamation] unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’ New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author [or speaker] ‘in fact entertained serious doubts as to the truth of his publication,’ St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or [that he] acted with a ‘high degree of awareness of ... probable falsity,’ Garrison v. Louisiana, 379 U.S. 64, 74 (1964).”

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991), and Sanders v. Smitherman, 776 So.2d 68, 71 (Ala.2000) (emphasis added).

“[P]ublic figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with ‘actual malice,’ i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not merely a ‘blind application’ of the New York Times standard, see Time, Inc. v. Hill, 385 U.S. 374, 390 (1967), it reflects our considered judgment that such a standard is necessary to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.”

Falwell, 485 U.S. at 56, 108 S.Ct. 876. When a public official or public figure alleges a defamatory meaning, a defamatory implication, or a defamatory innuendo, “[n]ot only must the plaintiff establish that the statement is susceptible of a defamatory meaning which the defendants knew to be false or which the defendants published with reckless disregard for its potential falsity, but also that the defendants intended to imply or were reckless toward the implications.” Saenz v. Playboy Enters., Inc., 841 F.2d 1309, 1318-19 (7th Cir.1988) (footnote omitted). See Dodds v. American Broad. Co., 145 F.3d 1053, 1063-64 (9th Cir.1998); Newton v. National Broad. Co., 930 F.2d 662, 681 (9th Cir.1990); Til-ton v. Capital Cities/ABC Inc., 905 F.Supp. 1514, 1523 (N.D.Okla.1995); Wor-rell-Payne v. Gannett Co., 134 F.Supp.2d 1167, 1176-77 (D.Idaho). See also Loveless v. Graddick, 295 Ala. 142, 148, 325 So.2d 137, 142 (1975). “ ‘[T]he most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.’ ” Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (quoting Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 63, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966)).

The First Amendment also protects mere rhetorical hyperbole or statements that cannot reasonably be interpreted as representing actual facts. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Letter Carriers, 418 U.S. at 284-86, 94 S.Ct. 2770; Greenbelt Coop. Publ’g Ass’n, 398 U.S. at 14, 90 S.Ct. 1537. See also Harris v. School Annual Publ’g Co., 466 So.2d 963, 965 (Ala.1985).

“We have also recognized constitutional limits on the type of speech which may be the subject of state defamation actions. In Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6 (1970), a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. A local newspaper published certain articles stating that some people had characterized the developer’s negotiating position as ‘blackmail,’ and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word ‘blackmail’ implied the developer had committed the actual crime of blackmail, we held that ‘the imposition of liability on such a basis was constitutionally impermissible — that as a matter of constitutional law, the word “blackmail” in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review.’ Id., at 13. Noting that the published reports ‘were accurate and full,’ the Court reasoned that ‘even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.’ Id., at 13-14. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988) (First Amendment precluded recovery under state emotional distress action for ad parody which ‘could not reasonably have been interpreted as stating actual facts about the public figure involved’); Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974) (use of the word ‘traitor’ in literary definition of a union ‘scab’ not basis for a defamation action under federal labor law since used ‘in a loose, figurative sense’ and was ‘merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members’).
“... [T]he Bresler-Letter Carriers-Falwell line of cases provides protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual. Falwell, 485 U.S., at 50. This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation. See id., at 53-55[, 108 S.Ct. 876].”

Milkovich, 497 U.S. at 16-20, 110 S.Ct. 2695 (emphasis added).

“ ‘[E]ven where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred.... ’ Garrison v. Louisiana, 379 U.S. 64, 73 [(1964)]. See also Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 [(1967)]. And the constitutional prohibition in this respect is no different whether the plaintiff be considered a ‘public official’ or a ‘public figure.’ Curtis Publishing Co. v. Butts, [388 U.S. 130 (1967)].”

Greenbelt Coop. Publ’g Ass’n, 398 U.S. 10-11, 90 S.Ct. 1537.

Addressing whether the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), actual-malice standard applies to a state-law claim for intentional infliction of emotional distress allegedly inflicted by an allegedly “outrageous” “ad parody” published in a magazine, the United States Supreme Court stated:

“Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.
“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ‘[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.’ Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions....
“The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are ‘intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’ Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring in result). Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U.S. 665, 673-674 (1944), when he said that ‘[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures.’ Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ New York Times, supra, at 270....
“Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (ruling that the ‘actual malice’ standard does not apply to the tort of appropriation of a right of publicity). In respondent’s view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.
“Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently ‘outrageous.’ But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment:
“ ‘Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.’ Id., at 73.
“Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.
“Respondent contends, however, that the caricature in question here was so ‘outrageous’ as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description ‘outrageous’ does not supply one. ‘Outrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An ‘outrageousness’ standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (‘Speech does not lose its protected character ... simply because it may embarrass others or coerce them into action’). And, as we stated in FCC v. Pacifica Foundation, 488 U.S. 726 (1978):
“ ‘[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.’ Id., at 745-746.
“Here it is clear that respondent Falwell is a ‘public figure’ for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not ‘reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.’ App. to Pet. for Cert. Cl. The Court of Appeals interpreted the jury’s finding to be that the ad parody ‘was not reasonably believable,’ 797 F.2d, at 1278, and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by ‘outrageous’ conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.”

Falwell, 485 U.S. 50-57, 108 S.Ct. 876 (footnote omitted; emphasis added).

“Whether a communication is reasonably capable of a defamatory meaning is, in the first instance, a question of law.” Camp v. Yeager, 601 So.2d 924, 926 (Ala.1992). “[I]f the communication is not reasonably capable of a defamatory meaning, there is no issue of fact, and summary judgment is proper.” Harris, 466 So.2d at 964-65. “However, if the trial court finds that the statement is reasonably capable of a defamatory meaning, ‘it is then for the jury to say whether [the statement was] in fact so understood.’ ” Yeager, 601 So.2d at 927 (quoting W. Page Keeton et al., Pros-ser and Keeton on Torts § 111, at 781 (5th ed.1984)). “[T]he test to be applied [by the court] in determining the defamatory nature of an imputation is that meaning which ‘would be ascribed to the language by a reader or listener of ordinary or average intelligence, or by a “common mind.”’” Loveless, 295 Ala. at 148, 325 So.2d at 142. Similarly, “ ‘[t]he question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.’ ” Milkovich, 497 U.S. at 17, 110 S.Ct. 2695 (quoting Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)).

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). “In a ruling on a summary-judgment motion in a defamation action involving a public figure, the trial judge must determine whether the plaintiff has shown by clear and convincing evidence that the defendant acted with actual malice.” Sanders, 776 So.2d at 71. “ ‘[I]n cases raising First Amendment issues ... an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” ’ ” Milkovich, 497 U.S. at 17, 110 S.Ct. 2695 (quoting Bose Corp., 466 U.S. at 499, 104 S.Ct. 1949, quoting in turn New Times Co. v. Sullivan, 376 U.S. at 284-86, 84 S.Ct. 710).

In the context of Finebaum’s December 15, 1998 sports talk radio program, Finebaum’s statement — “It was Matt Coulter, and I can’t remember the other clown, it, I mean, these two guys really slobbered over each other, I mean, I really thought they were going to start performing oral sex on one another, it was so sickening” — was not a statement that can “ ‘reasonably [be] interpreted as stating actual facts’ about [Coulter].” Milkovich, 497 U.S. at 20, 110 S.Ct. 2695. Fineb-aum’s statement is only rhetorical hyperbole, which the United States Supreme Court has held protected by the First Amendment. Moreover, Coulter did not present clear and convincing evidence that Finebaum intended to imply that Coulter is a homosexual. Saenz, supra. Finally, Coulter did not present clear and convincing evidence that Finebaum made the statement with actual malice. Accordingly, Finebaum and WERC are entitled to summary judgment on Coulter’s defamation, tort of outrage, and invasion of privacy claims.

Therefore, the trial court erred in denying the summary judgment motion filed by Finebaum and WERC as it applied to these claims. We reverse the denial and remand this cause to the trial court for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BROWN, Justice. JOHNSTONE, Justice

text:
    PARKWAY DODGE, INC. v. Ernest HAWKINS.
    1010898.
    Supreme Court of Alabama.
    Feb. 7, 2003.

      John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant,
    Jay Thompson, Birmingham, for appel-lee.
   BROWN, Justice.

Parkway Dodge, Inc., a defendant in an action pending in the Jefferson Circuit Court appeals from an order denying its motion to compel arbitration of the claims filed against it by Ernest Hawkins. We reverse and remand.

Facts and Procedural History

In September 1997, Hawkins purchased a used 1996 Chrysler Sebring- automobile from Parkway Dodge in Birmingham. Hawkins financed the purchase of the car through America’s First Federal Credit Union, a company organized and headquartered in Alabama. Hawkins alleges that, in an effort to entice him to buy the car, Gerry Grant, a salesman for Parkway Dodge, told Hawkins that the car was a “fíne automobile”; that it had been previously owned by the daughter of the owner of Parkway Dodge; and that if he purchased it he “wouldn’t go wrong.” In addition, Hawkins alleges that Parkway Dodge’s accountant, Mike Copeland, also assured Hawkins that the car was a “really good car” and that it had been previously owned by the owner’s daughter.

In conjunction with the purchase of the vehicle, Hawkins executed a retail buyer’s order. The retail buyer’s order contained an arbitration agreement; that agreement provided:

“Alternative dispute resolution agreement by binding arbitration: The Dealer and Purchaser(s) mutually covenant, stipulate and agree, in connection with the resolution of any dispute arising out of the contract(s) entered into by the parties of and concerning the within described motor vehicle as follows: That the vehicle described within was manufactured outside of Alabama; has operated and will continue to operate on interstate highways; has been traveling in interstate commerce; the manufacture, transportation, sale and use thereof has been and will continue to be regulated by laws of the United States of America; and, that the contracts) entered into by the parties concerning said motor vehicle evidence [a] transaction involving and affecting commerce. The undersigned agree that all disputes not barred by applicable statutes of limitations or otherwise barred by law, resulting from or arising out of the sale transaction entered into, (including but not limited to: the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services acquired by the purchaser (s); the condition of the motor vehicle; the conformity of the motor vehicle sold to the contract of sale; the representations, promises, undertakings, warranties or covenants made by Dealer in connection with the sale of the motor vehicle, or otherwise dealing with the motor vehicle; the terms of financing in connection therewith; any terms or provisions of any credit life and/or disability insurance purchased simultaneously herewith; or any terms or provisions of any extended service contract purchased simultaneously herewith); that Dealer and the purchaser(s) agree to submit such dispute(s) to BINDING ARBITRATION, pursuant to provisions of 9 U.S.C. Section 1, et. seq. and according to the Commercial Rules of the American Arbitration Association then existing.... THIS ARBITRATION AGREEMENT SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT, AND IN LIEU OF ANY TRIAL BY JURY.”

(Capitalization in original.)

In addition, as part of the sale transaction, Hawkins purchased a service contract from Chrysler Corporation, a foreign corporation, and a credit-life insurance policy provided by Resource Life, an Illinois corporation, the premium for which was also financed as part of the purchase of the automobile.

Hawkins alleges that after the purchase he experienced continued mechanical problems with the car and upon investigation he discovered that the previous owner of the car was Dollar Systems, Inc., a car rental agency. On October 12, 2001, Hawkins sued Parkway Dodge and Gerry Grant in the Jefferson Circuit Court, alleging suppression and misrepresentation. On November 27, 2001, Parkway Dodge answered the complaint and filed a motion to compel Hawkins to submit the dispute to binding arbitration. Along with the motion, Parkway Dodge attached the affidavit of Rick Holt, the president of Parkway Dodge. Holt stated, in pertinent part:

“As a part of the purchase of the vehicle, Hawkins purchased a service contract from Chrysler, a corporation foreign to Alabama. That service contract obligated Chrysler to provide specific services to Hawkins at any Chrysler dealership throughout the United States.
“As a part of the purchase of the vehicle, Hawkins also purchased a credit life insurance policy. That policy was a part of the sales transaction and was financed as part of the purchase. The company wh[ich] provided [the policy was] [R]esource Life[,] an Illinois corporation headquartered in Illinois.
“As a part of the arbitration agreement, Hawkins agreed to abide by the Commercial Rules of the American Arbitration Association.”

On December 14, 2001, Hawkins filed a response to Parkway Dodge’s motion to compel arbitration, but he did not offer any evidentiary submissions. On December 19, 2001, the trial court entered an order denying the motion to compel arbitration, finding that the “evidence d[id] not establish that the sale of the vehicle in Alabama substantially affected interstate commerce.” Parkway Dodge appeals.

Standard of Review

“Our analysis in this case is guided by the following standard of review:

“ ‘This Court reviews de novo the [grant or] denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that [the] contract evidences a transaction affecting interstate commerce. Id. “[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).”

Lewis v. Conseco Fin. Corp., 848 So.2d 920, 922 (Ala.2002).

Analysis

Parkway Dodge contends that the transaction at issue sufficiently involved interstate commerce so as to invoke the provisions of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”). Specifically, Parkway Dodge maintains that it met its burden of proving that the transaction had a substantial effect on interstate commerce by submitting the affidavit of Rick Holt, the president of Parkway Dodge. Holt states in the affidavit that as part of the- transaction, Hawkins purchased a service contract from Chrysler, a foreign corporation. In addition, Hawkins purchased a credit-life insurance policy from Resource Life, a corporation headquartered in Illinois, and the purchase of that policy was financed as part of that purchase of the car.

The FAA provides:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. “The federal policy favoring arbitration is so strong that, as a matter of law, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration....’ ” Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 463 (Ala.2002) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). However, “ ‘[t]o satisfy the interstate-commerce criterion, the involvement of, or effect on, interstate commerce must be substantial.’ ” Chesser v. AmSouth Bank, N.A., 846 So.2d 1082, 1085 (Ala.2002) (quoting Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)). The facts of this ease are identical to those in Chesser v. Amsouth Bank, supra. In that case, Chesser, an Alabama resident, purchased a used truck from an instate automobile dealer and obtained financing for the purchase from AmSouth, an Alabama corporation. Concurrent with his purchase of the vehicle, Chesser also purchased credit-life insurance, an extended service contract, and collision insurance, all purchased from out-of-state companies. Chesser, 846 So.2d at 1086.

Chesser underwent heart surgery and was unable to continue making the installment payments on the loan; his truck was repossessed. Chesser sued AmSouth, Protective Life, and the car dealer, alleging breach of contract, fraud, negligent failure to obtain insurance, wrongful possession and conversion, and bad-faith refusal to pay an insurance claim. AmSouth responded by filing a motion to compel arbitration. The trial court subsequently granted AmSouth’s motion, and Chesser appealed. Id.

In upholding the trial court’s order compelling arbitration, we found that Ches-ser’s purchase of credit-life insurance, the extended service contract, and collision insurance from out-of-state companies concurrently with his purchase of the vehicle was part of the same “transaction.” See Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 824 (Ala.2001) (“We cannot employ an unrealistically narrow construction of the ‘transaction’ concept so as to limit our scrutiny to the event transpiring at the time of the sale.”). Therefore, we held that because Chesser’s purchase of credit-life insurance, the service contract, and collision insurance substantially affected interstate commerce, the FAA was applicable. Id.

As in Chesser, Hawkins purchased the service contract and credit-life insurance from out-of-state corporations concurrently with his purchase of the vehicle. In addition, like Chesser, Hawkins financed the purchase of his credit-life insurance as part of the purchase of the vehicle. Based on the above, we hold that the transaction in this case substantially affected interstate commerce so as to invoke the application of the FAA. Accordingly, we reverse the trial court’s order denying arbitration and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MOORE, C.J., and JOHNSTONE, J„ dissent.

JOHNSTONE, Justice

(dissenting).

The Federal Arbitration Act (“FAA”) does not apply unless the contract containing the arbitration clause substantially affects interstate commerce. 9 U.S.C. § 2; Alafabco, Inc. v. Citizens Bank, [Ms. 1010703, August 30, 2002]-So.2d-, -(Ala.2002). The only contract which contains an arbitration clause in this case is the retad buyer’s order between an Alabama seller and an Alabama buyer for a car which “ ‘had come to a permanent rest,’ ” Ex parte Kampis, 826 So.2d 819, 823 (Ala.2002) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 543, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)) (emphasis omitted), in Alabama long before the inception of this transaction. Because these facts are like those in Tefco Finance Co. v. Green, 793 So.2d 755 (Ala.2001), we should follow Tefco and affirm the denial of the motion to compel arbitration.

The service contract between Hawkins and Chrysler and the credit-life insurance policy between Hawkins and Resource Life are entirely distinct from the contract containing the arbitration clause. Moreover, for aught that appears in the record, Chrysler is a foreign corporation only in the sense that it is incorporated under the laws of a foreign state. In any event, to maintain the fundamentals of constitutional federalism in judging the applicability of the FAA, this Court should decline to recognize interstate features in contracts distinct from the one containing the arbitration clause. See Ex parte Kampis, 826 So.2d at 822-23.

      . The record does not indicate where Chrysler Corporation is headquartered, only that it is a foreign corporation.

      . Grant apparently was never served; he is not party to this appeal.


author: PER CURIAM.

text:
    Shelby D. EILAND v. Bridget C. MEHERIN.
    2001219.
    Court of Civil Appeals of Alabama.
    June 14, 2002.
    Rehearing Denied Sept. 20, 2002.

      R. Jeffrey Perloff, Mobile, for appellant.
    William W. Watts III of Hudson & Watts, L.L.P., Mobile, for State Farm Mutual Automobile Insurance Company.
   PER CURIAM.

This is an appeal from the denial of an award of an attorney fee in an insurance subrogation case.

Shelby D. Eiland sued his automobile insurer, State Farm Mutual Automobile Insurance Company, and Bridgette C. Meherin, on September 1, 2000, alleging that Meherin had “negligently caused or allowed her motor vehicle to collide with the rear of a motor vehicle occupied by Eiland,” that at the time of the accident Meherin was an underinsured driver, and that at the time of the accident State Farm had issued to him policies of insurance that included underinsured-motorist coverage. Both State Farm and Meherin answered Eiland’s complaint. Before the action was filed, Meherin’s insurance company had tendered to State Farm its policy limits of $100,000 to settle the claims against Mehe-rin. State Farm, on July 31, 2000, advanced to Eiland the $100,000 policy-limits offer pursuant to Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991), in order to protect its potential subrogation interest against the tortfeasor Meherin.

On April 24, 2001, State Farm, pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), moved to “opt out” of the trial proceedings, acknowledging that it would be bound by the factual determinations made by the trier of fact. Eiland opposed State Farm’s motion, arguing that its motion was “untimely and did not come within a reasonable period of time.” Eiland further argued that if the court granted State Farm’s motion to opt out, the court should enter a declaratory judgment that State Farm had “waived its subrogation claims against the co-defendant, Meherin.” On May 16, 2001, the court entered an order allowing State Farm to opt out of the proceeding.

Following a jury trial, the court, on May 24, 2001, entered a judgment in favor of Eiland for $50,000. Meherin’s liability carrier paid into the court the amount of the judgment entered against her. On June 20, 2001, Eiland moved the court to enter an order directing that the funds paid into the court be distributed and that court costs be taxed to “the appropriate defendant.” State Farm opposed the motion, arguing, in part:

“[State Farm] advanced [Meherin’s] policy limits of $100,000 to preserve sub-rogation rights against [Meherin].... The jury verdict in this case having been rendered in an amount less than the sum advanced by [State Farm], [State Farm] therefore submits that it is entitled to full reimbursement of the judgment proceeds in the amount of $50,000.”

Meherin requested that all costs be taxed against State Farm. She argued, in part,

“3. This case was tried to a jury at the insistence of [State Farm], as State Farm refused to approve the settlement agreement reached between [Eiland] and [Meherin], through her liability insurance carrier. All said costs listed on ‘Exhibit A’ were incurred by [Eiland] as a result of the actions of [State Farm] and any costs ordered to be paid by this court should be paid by State Farm.”

On July 18, 2001, the court entered an order taxing a portion of the costs to Meherin and taxing State Farm a total of $1,264.33 in costs. As it pertains to the award of an attorney fee, the court stated, in part:

“With regard to the distribution of the funds, [Eiland] raises two issues. First, [Eiland] argues that State Farm has no right of subrogation to the $50,000 and therefore it is not entitled to the money. Alternatively, [Eiland] asserts that should State Farm be entitled to the $50,000, that sum should be reduced by a reasonable attorney fee since [Ei-land’s] work generated a ‘common fund.’
“After a review of the law and entertaining the argument of counsel, this court concludes that State Farm is entitled to subrogation rights arising from the underinsured motorist benefits paid in advance on July 31, 2000, for the accident made the basis of this suit. It is well settled that subrogation is based on two equitable principles: (1) That the insured should not recover twice for a single injury; and (2) That the insurer should be reimbursed for payments it made that, in fairness, should be borne by the wrongdoer. See Aetna Casualty and Surety Co. v. Turner, 662 So.2d 237 (Ala.1995).
“The parties stipulated that [Mehe-rin], through [her] insurance carrier offered its policy limits in July of 2000. [Eiland] sought, in addition to the policy limits of [Meherin], additional damages from State Farm, his underinsured motorist carrier. State Farm would not agree to a settlement that would discharge [Meherin] and allow [Eiland] to pursue a claim against it for additional underinsured motorist benefits. However, it advanced to [Eiland] and [Eiland] accepted an amount equal to the settlement offer made by [Meherin]. In short, State Farm did that which it was obligated to do pursuant to Lambert v. State Farm Mutual, 576 So.2d 160 (Ala.1991):
“Accordingly, the court finds that State Farm has protected its subrogation rights and it is entitled to receive the $50,000 paid into the court by [Meherin],
“Because this court finds that State Farm is entitled to all of the judgment paid into court, it finds that there is no ‘common fund’ to be shared between [Eiland] and State Farm. Thus, this matter is distinguishable from [Alston v. State Farm Mutual Automobile Ins. Co.], 660 So.2d 1314 (Ala.Civ.App.1995)(‘put another way, an attorney, whose efforts result in recovery of funds in which various persons have an interest, is entitled to payment from such funds of a reasonable fee for his representation of the common interest.’).”

Eiland appeals following the denial of his postjudgment motion.

The trial court correctly held that State Farm was entitled, as a matter of law, to the entire $50,000 awarded to Eiland. The trial court also held that State Farm was not required to pay any part of Eiland’s attorney fee. It reached that result by concluding that the $50,000 judgment was not a “common fund.” The court reasoned that a common fund is one in which multiple parties share an interest and, because only one party, here State Farm, had an interest in the $50,000 judgment, the judgment was, therefore, not a “common fund.” The trial court’s reasoning is at odds with the theory underlying the “common-fund” doctrine.

The common-fund doctrine in insurance-subrogation cases is based on the equitable notion that, because an insurer is entitled to share, to the extent of its subro-gation interest, in any recovery its insured achieves against a tortfeasor, the insurer should bear a proportionate share of the burden of achieving that recovery — including a pro rata share of the insured’s attorney fee. See generally Johnny Parker, The Common Fund Doctrine: Coming of Age in the Law of Insurance Subrogation, 31 Ind. L.Rev. 313, 320-25 (1998); Right of Attorney for Holder of Property Insurance to Fee Insurer’s Share of Recovery from Tortfeasor, 2 A.L.R.3d 1441 (1965).

“[T]he primary purpose of the [common-fund] doctrine is universally accepted as one which:
“ ‘provides that when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorney fees. The doctrine is employed to spread the cost of litigation among all beneficiaries so that the active beneficiary is not forced to bear the burden alone and the “stranger” (i.e., passive) beneficiaries do not receive their benefits at no cost to themselves.’ ”

31 Ind. L.Rev. at 321 (quoting Means v. Montana Power Co., 191 Mont. 395, 403, 625 P.2d 32, 37 (1981)) (footnote omitted). Perhaps a “common fund” is better conceptualized as a recovery in which more than one party has, at the outset of the controversy, a potential interest.

In this case, the insurer (State Farm) took no active part in the litigation between its insured (Eiland) and the tort-feasor (Meherin). Instead, State Farm relied on the efforts of Eiland’s attorney to protect its subrogation interest. State Farm was a passive beneficiary 'of the $50,000 judgment recovered through the efforts of Eiland’s attorney. The fact that State Farm was the only beneficiary of the $50,000 judgment does not mean the common-fund doctrine does not come into play; it means that State Farm’s pro rata share of Eiland’s attorney fee is 100 percent. It stands to reason that if an insurance company must pay a fee when its insured shares in the recovery, then it should pay even more of the fee (in fact, all of the fee — rather than none of the fee), when its insured does not share in the recovery.

The trial court’s reasoning — that whenever the insured is awarded a judgment against the tortfeasor for less than the amount its insurer has advanced by “buying out” the tortfeasor’s settlement offer, there’ is no “cómnlon fund” and, therefore, no obligation on the part of the insurer to share in paying the insured’s attorney fee — produces a “manifestly unjust” result. See Mathews v. Bankers Life & Cas. Co., 690 F.Supp. 984, 987 (M.D.Ala.1988). In Mathews, Chief Judge Hobbs, writing for the federal district court for the Middle District of Alabama, stated:

“[T]he attorney [for the insured] bears the risk of no fee if his efforts at recovery fail, but where he effects a recovery it is only fair that the insurance company pay a reasonable attorney fee on its part of the recovery. How in the name of fairness can it be said that the injured insured should pay a fee not only on his recovery but also on the recovery of the insurance company?
“This Court simply does not believe that such a rule is the law in Alabama or that the Supreme Court of Alabama would fashion such a rule.”

690 F.Supp. at 987-88 (emphasis added). According to one commentator, the Mathews court

“recognized the unfair impact that a [rule absolving the insurer from the payment of any part of its insured’s attorney fee] might have where the client’s recovery was less than, equal to, or slightly more than the amount owed the insurer. Under any of these circumstances the client would receive little if anything and still owe an attorney fee, while the insurer received full reimbursement at no cost.”

The Common Fund, 31 Ind. L.Rev. at 829 (footnote omitted).

Eiland contends that the trial court erred in distinguishing this case from Alston v. State Farm Mutual Automobile Insurance Co., 660 So.2d 1314 (Ala.Civ.App.1995), and that State Farm should be required to pay a pro rata share of attorney fees based on the common-fund doctrine. We agree.

Initially, we note that an attorney fee is recoverable only when authorized by statute, when provided for in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which the fee may be paid. Mitchell v. Huntsville Hosp., 598 So.2d 1358 (Ala.1992). In Alston, the tortfeasor offered to settle for its $20,000 policy limits and State Farm, the plaintiffs uninsured-motorist carrier, advanced that amount to the plaintiff. The jury returned a $26,574 verdict for the plaintiff. The trial court denied the plaintiffs request to require State Farm to pay a portion of his attorney fee. Alston argued on appeal that the $20,000 advanced to him by State Farm in order to preserve its subrogation rights constitutes a fund; that the efforts of his attorney in litigating the case led to State Farm’s recovery of the fund; and, therefore, that State Farm should be required to pay his attorney fee, because State Farm directly benefitted from his attorney’s representation.

In Alston, this court applied the “special equity” exception to the general rule that an attorney fee is not recoverable unless the attorney’s efforts have created a common fund. This court explained the requirements for applying the common-fund doctrine:

“ ‘As a general rule, the application of the “common fund” doctrine depends upon at least two requirements. There must be a “fund” from which to compensate the attorney, and the attorney’s services must benefit that fund. In addition, the benefit rendered must be a direct benefit, either to the fund or the party to be charged with the fee.’ ”

Alston, 660 So.2d at 1315, quoting Henley & Clarke v. Blue Cross-Blue Shield of Alabama, 434 So.2d 274, 276 (Ala.Civ.App.1983). This court further stated:

“The common fund doctrine is ‘an equitable concept that one person who assumes the risks and expense of litigation and has thereby secured, augmented or preserved property or a fund of money in which others are entitled to share, is due a contribution toward such expense from those sharing according to their interest.’ Blue Cross & Blue Shield of Alabama v. Freeman, 447 So.2d 757, 758 (Ala.Civ.App.1983). This court established the application of the common fund doctrine in subrogation cases:
“ ‘The rule is that where the holder of the subrogation right does not come into the action, whether he refuses to do so or acquiesces in the plaintiffs action, but accepts the avails of the litigation, he should be subjected to his proportionate share of the expenses thereof, including attorney’s fees. Put another way, an attorney, whose efforts result in recovery of funds in which various persons have an interest, is entitled to payment from such funds of a reasonable fee for his representation of the common interest....’
“Id., at 759 (emphasis added). ‘The “common fund” doctrine does not require a person (insurer) to pay for the costs incurred by another person (insured) in creating a “common fund,” if that person (insurer) has expended his own substantial costs to create the “common fund.”
“... ‘[A] mere appearance as an interve-nor by an insurer for the purpose of securing a conditional judgment for its subrogation claim against the amount recovered by its insured does not aid or assist in the recovery of the common fund.’ ”

Alston, 660 So.2d at 1315-16 (some citations omitted).

In reversing the trial court, this court noted that State Farm did not expend a substantial cost on the litigation and did not participate in the trial of the case; rather, “State Farm relied on Alston’s attorney to generate the benefits that it received from the common fund. Therefore, State Farm [was] obligated to pay its pro rata share of the cost of litigation.” Alston, 660 So.2d at 1316.

The result in the present case should be no different from the result in Alston. Here, there is no evidence indicating that State Farm expended any substantial cost of the litigation — in fact, State Farm chose to opt out of the trial proceedings. The fact that the Alston plaintiff realized a $6,574 recovery and Eiland, the plaintiff here, realized no recovery is immaterial when, in both cases, the plaintiff had at the outset of the litigation an interest in the potential recovery and the plaintiffs insurer received a benefit from the plaintiffs attorney.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

THOMPSON, J., dissents.


author: BROWN, Justice. HARWOOD,

text:
    Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (In re Shelby D. Eiland v. Bridget C. Meherin).
    1020040.
    Supreme Court of Alabama.
    Feb. 21, 2003.
    William W. Watts III of Hudson & Watts, L.L.P., Mobile, for petitioner.
    R. Jeffrey Perloff, Mobile, for respondent.
   BROWN, Justice.

WRIT DENIED. NO OPINION.

MOORE, C.J., and SEE and STUART, JJ., concur.

HARWOOD, J., concurs specially.

HARWOOD,

Justice (concurring specially).

I concur specially to emphasize that we are not told in this case whether the attorney for the insured received any fee out of the $100,000 advanced to his client by the insurer, State Farm Mutual Automobile Insurance Company. The petitioner State Farm adopts as its “Statement of Facts” the facts contained in the opinion of the Court of Civil Appeals, which are silent on that point. Eiland v. Meherin, 854 So.2d 1134 (Ala.Civ.App.2002). Therefore, we cannot evaluate how an allocation of an attorney fee out of funds advanced by the underinsured-motorist insurer might alter the outcome of a “fairness” analysis, based on the “equitable notion” of proportionally shared burdens of achieving recovery, coupled with the premise that insurance sub-rogation is designed to prevent a double recovery, as those concepts are interwoven in the opinion of the Court of Civil Appeals. For all that appears, the entire $100,000 advanced by State Farm to its insured was retained by the insured, without any allocation of a fee to his attorney.

If, however, we hypothesize a different scenario, whereby an attorney for an insured receives a fee out of both the insurer-advanced funds and the subsequent recovery from the underinsured tortfeasor, the outcome of an analysis incorporating all proper considerations might be different. For example, if we were to assume a 33#% contingent fee and assume further that the insured’s attorney received that percentage out of both the $100,000 advanced by the insurer and the $50,000 recovery from the tortfeasor, the breakdown of the respective shares going to the insured, the insurer, and the attorney, disregarding any reimbursement of the actual expenses of litigation, would be as follows:

Funds Insured Insurer Attorney
$100,000: $66.666.66 0 $33,333.34
60,000: 0 $33,333.33 16,666.67
TOTAL $66,666.66 $33,333.33 $60,000.01

I reserve the right to analyze de novo the special considerations such a scenario would implicate, when and if those considerations are presented. This case does not present those considerations.


author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    D.S.M., Jr. v. L.M. and D.M.
    2010021.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.

      R. Shan Paden and Matthew A. Reynolds of Paden & Paden, Birmingham, for appellant.
    J. Ronald Boyd and Charles H. Dunn of Boyd, Fernambucq & Vincent, P.C., Birmingham, for appellee L.M.
    Jon B. Terry of Bains & Terry, Bessemer, for appellee D.M.
   CRAWLEY, Judge.

D.S.M., Jr., appeals from a judgment finding him to be the father of K.M. and ordering him to pay $550 per month in child support. We affirm.

L.M. (“the wife”) and D.M. (“the husband”) were married in 1974. Three children were born during the marriage. The two older children have reached the age of majority. The youngest child, K.M., a 10-year-old girl, was born on October 1, 1991. In September 1999, shortly before KM.’s eighth birthday, the wife filed a complaint for divorce. While the divorce proceeding was pending, the wife informed the husband that he was not KM.’s biological father, that she had had an affair with D.S.M. eight years earlier, and that D.S.M. was K.M.’s father. On August 25, 2000, the trial court ordered the husband, wife, and child to submit to blood testing. The results of the blood tests were filed with the court on September 25, 2000. The tests excluded the husband as the father of K.M. At that point, the husband did not persist in maintaining the parental presumption of § 26-17-5(a)(l), Ala.Code 1975. D.S.M. voluntarily submitted to paternity testing; the test indicated that he was the biological father of the child.

The trial court appointed a guardian ad litem (“GAL”) for the child. The GAL moved to add D.S.M. as a third-party defendant, and the trial court granted that motion on February 6, 2001. Asserting a statute-of-limitations defense, D.S.M. moved for a judgment on the pleadings on February 23, 2001. The trial court denied that motion on March . 5, 2001. The trial court rendered a judgment of divorce on June 19, 2001. The judgment states, in pertinent part:

“That the third-party defendant, [D.S.M.], Jr. is the legal father of [K.M.] and the [husband, D.M.] shall have no legal responsibility towards her. This court finds that the purpose of paternity testing between the parties only arose after the [wife] informed the [husband] that he was not [KM.’s] father, and as such, was to establish the non-existence of a relationship between [K.M.] and [the husband] presumed on account of the ... marriage of [the' wife and husband] and as such, the five-year statute of limitations imposed pursuant to § 26-17-6(a), Ala.Code 1975, does not apply. Ex parte Jenkins, 723 So.2d 649 (Ala.1998).”

The trial court awarded custody of K.M. to the wife and ordered D.S.M. to pay $550 per month in child support. D.S.M. appeals, arguing that the five-year statute of limitations set out in § 26 — 17—6(a) bars any action to establish his paternity as to KM.

Section 26-17-6, as it read before the recent amendment, effective August 1, 2000, provides:

“(a) A child, a child’s natural mother, or a man presumed to be the child’s father under subdivision (1), (2), or (3) of Section 26-17-5(a), may bring an action within five years of the birth of the child for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26 — 17—5(a); or
“(b) Any interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) or (6) of Section 26-17-5(a).
“(c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 26-17-5 may be brought by the child, the mother, or personal representative of the child, the public authority chargeable by law with support of the child, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.
“(d) If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except service of process and the taking of depositions to perpetuate testimony.
“(e) If the child has been adopted, an action may not be brought.”

(Emphasis added.)

The trial court was correct in concluding that “the five-year statute of limitations imposed pursuant to § 26-17-6(a), Ala.Code 1975, does not apply” because the action was one to establish the nonexistence — rather than the existence — of the father and child relationship between the husband and K.M. Because K.M. was born during the husband’s marriage to K.M.’s mother, the husband is the man presumed, under subdivision (1) of § 26 — 17—5(a), to be K.M.’s father. When the trial court granted the GAL’s motion to add D.S.M. as a third-party defendant in the divorce between the husband and the mother, the action became one to declare the nonexistence of the father-child relationship between the husband and K.M. The five-year limitations period of § 26-17-6(a) applies only to actions seeking to declare the existence of a father and child relationship between a man and a child born during that man’s marriage to the child’s mother. See Ex parte Jenkins, 723 So.2d 649 (Ala. 1998).

“Section 26-17~6(a) expressly limits to five years after a child’s birth an action to declare the ‘existence’ of the father and child relationship presumed under § 26-17-5(a)(l), (2), or (3). Had the Legislature intended the same five-year limitations period to apply to an action to establish the ‘non-existence ’ of the relationship, it would have included the term ‘non-existence’ in § 26-17-6(á), as it did in § 26-17-6(b). The choice to exclude the word ‘non-existence’ in § 26-17-6(a) indicates that the Legislature did not intend to impose a strict five-year limitations period on actions brought to challenge a presumption of paternity.”

Jenkins, 723 So.2d at 653. See also J.N.H. v. N.T.H., 705 So.2d 448, 452 (Ala.Civ.App.1997) (holding that when the husband, who was presumed under § 26-17-5(a)(1) to be the father of the child, sought to establish the nonexistence of the parent-child relationship between himself and the child, the five-year limitations period did not apply). Cf. State ex rel. T.L.K v. T.K., 723 So.2d 69 (Ala.Civ.App.1998) (holding that when the State sought to establish the existence of a father-child relationship presumed under § 26-17-5(a)(l) because the child was born within 300 days of the man’s divorce from the child’s mother, the five-year limitations period barred the action). But cf. Ex parte State of Alabama ex rel. State of Ohio, 718 So.2d 669 (Ala.1998) (stating, in dictum, that when the State sought to establish the nonexistence of a father-child relationship between children and mother’s deceased husband, who was the presumed father under § 26-17-5(a)(1), the five-year limitations period would have barred the action, had it been raised as an affirmative defense); J.P.C. v. O.C.B., 797 So.2d 485 (Ala.Civ.App.2000) (holding that when the mother sought to establish the nonexistence of a father-child relationship between the former husband and a child born during the mother’s marriage to the former husband, the five-year limitations period barred the action); State ex rel. E.K.D. v. M.R.W., 662 So.2d 910 (Ala.Civ.App.1994) (holding that when the mother sought to establish the nonexistence of a father-child relationship presumed under § 26-17-5(a)(l), the five-year statutory limitations period barred the action).

As Ex parte Jenkins, supra, makes clear, the only actions barred by the statutory limitations period set out in § 26-17-6(a) are those seeking to declare the existence of a father-child relationship presumed under § 26-17-5(a)(l), (2), or (3). Therefore, based on Ex parte Jenkins and the unmistakably clear language of § 26-17-6(a), it is obvious that the present action was not barred by the five-year limitations period, as the trial court correctly determined. It is also obvious that this court’s decisions in J.P.C. v. O.C.B., 797 So.2d 485 (Ala.Civ.App.2000), and State ex rel. E.K.D. v. M.R.W., 662 So.2d 910 (Ala.Civ.App.1994), were incorrectly decided and should be overruled. See J.P.C. v. O.C.B., 797 So.2d at 491-95 (Crawley, J., dissenting). The statements in Ex parte State of Alabama ex rel. State of Ohio, 718 So.2d 669 (Ala.1998),. expressing approval of this court’s decision in State ex rel. E.K.D. v. M.R.W., were dicta.

The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

YATES, P.J., concurs specially.

THOMPSON and MURDOCK, JJ., concur in the result.

YATES, Presiding Judge,

concurring specially.

Historically, children born outside of wedlock were treated differently under the law than those born during marriage. See, e.g., Free v. Free, 507 So.2d 930 (Ala.Civ.App.l986)(noting the harshness of intestate inheritance rights as between illegitimate and legitimate children). The Legislature adopted the Alabama Uniform Parentage Act (“AUPA”) for the purpose of promoting full equality for all children, whether born during a marriage or born out of wedlock. Ex parte Presse, 554 So.2d 406 (Ala.1989). To accomplish this purpose, the AUPA sets out a procedure for establishing paternity of a child. Ritter v. State, 494 So.2d 76 (Ala.Civ.App.1986).

As Judge Crawley noted in his dissent in J.P.C. v. O.C.B., 797 So.2d 485, 492 (Ala.Civ.App.2000)(Crawley, J., dissenting), Alabama, like a number of other states, adopted a version of the 1973 Uniform Parentage Act (“UPA”). The drafters of the UPA and the Alabama Legislature, in its legislation adopting most of the UPA, included the presumption, originating from English common law, that a child born during the marriage was presumed to be the issue of the husband and the wife.

The presumed father has a choice whether he wants to “persist in the presumption that he is the father,” Ex parte Presse, 554 So.2d at 411, or to decline to assert the presumption, J.N.H. v. N.T.H., 705 So.2d 448 (Ala.Civ.App.1997). In Presse, the supreme court held that the biological father did not have standing under the AUPA to establish that he was the father of a child born during the marriage of the child’s mother to another man where the husband—the presumed father—persisted in asserting the presumption that he was the father of the child. The court stated:

“Being mindful that the [A] UPA espouses principles that seek to protect the sanctity of family relationships by providing a comprehensive statutory network through which a child may enforce its right of support against the presumed father, and because in this case the presumed father ardently wishes to fulfill this objective, we are constrained to hold that [the presumed fatherj’s presumption of fatherhood takes precedent over any presumption that [the biological father] might possess.”

554 So.2d at 412. In the presumed father did not persist in this presumption, and there was evidence indicating that the presumed father never recognized the child as his own.

In the present case, the presumed father is not persisting in his presumption of fatherhood as to the 10-year-old child born during his marriage to the child’s mother. My concern is that the courts, by allowing a presumed father, at his discretion, to accept a child he may have had little contact with, or to reject a child he has treated as his own, have given no consideration to the best interests of the child. A child may be psychologically damaged if the presumed father who has had less contact with the child than the biological father now asserts the presumption to the exclusion of the biological father, and there may be harm to the child if the man the child knows as his father suddenly abandons him. In short, the courts have allowed presumed fathers to have it both ways (i.e., those who want to maintain the father-child relationship are allowed to do so and those who want to disavow the father-child relationship are allowed to do so), without considering the child’s best interests.

Our court has also favored the presumed father in applying the five-year statute of limitations of § 26 — 17—6(a), Ala. Code 1975, to actions brought to prove the nonexistence of a father-child relationship. A presumed father who wished to disavow paternity as to a child born during the marriage of the presumed father to the child’s mother was not barred by the five-year time limit set out in § 26-17-6(a) for bringing such an action. J.N.H., supra. However, a natural mother pursuing a paternity action against a man she believes to be the biological father is barred by the five-year time limit from proving the nonexistence of a relationship with the presumed father. J.P.C. v. O.C.B., supra, 797 So.2d 485; State ex rel. E.K.D. v. M.R.W., 662 So.2d 910 (Ala.Civ.App.1994).

Although I believe that the best interests of the child should be given consideration in determining whether the presumed father can avow or disavow paternity, I agree that the five-year limitations period § 26-17-6(a) does not bar the action.

      . In Ex parte Presse, 554 So.2d 406 (Ala.1989), our supreme court held that as long as a man presumed to be the father by virtue of marital relationship persists in maintaining that presumption, no party has standing to challenge it.

      . Among other things, the amendments removed the five-year statute of limitations for actions brought pursuant to § 26-17-6(a). Subsection (a) currently reads:
      “(a) A child, a child's natural mother, or a man presumed to be the child's father under subdivision (1), (2), or (3) of Section 26~17-5(a), may bring an action at any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26-17-5(a), but for purposes of support, the action shall be brought before the child reaches the age of 19.”
      (Emphasis added.) Our disposition of this case makes any discussion of the effect of the amendment on D.S.M. unnecessary.

      . In Presse, 554 So.2d 406, the child lived with the mother and the biological father and referred to the biological father as "Daddy.”

      . I note, too, that a previously adjudicated father is not barred by the five-year time limit from reopening a paternity judgment based on scientific evidence that he was not the biological father. Ex parte Jenkins, 723 So.2d 649 (Ala.1998).

      . I concurred in the majority opinion in J.P.C. However, I now believe that the five-year limitations period does not bar an action to prove the nonexistence of the presumed father-child relationship.

      .I dissented in E.K.D. on the grounds that the Legislature did not intend the five-year limitations period to provide the biological father with a shield to avoid his duty to support his child. 662 So.2d at 913.


author: LYONS, Justice.

text:
    Ex parte D.S.M., Jr. (In re D.S.M., Jr. v. L.M. and D.M.)
    1012220.
    Supreme Court of Alabama.
    Feb. 7, 2003.
    R. Shan Paden and Matthew A. Reynolds of Paden & Paden, Birmingham, for petitioner.
    J. Ronald Boyd and Charles H. Dunn of Boyd, Fernambucq & Vincent, P.C., Birmingham, for respondent L.M.
    Jon B. Terry of Bains & Terry, Bessemer, for respondent D.M.
   LYONS, Justice.

Our action in quashing the writ of certio-rari in this case should not be taken as an expression of approval regarding the reasoning in the Court of Civil Appeals’ opinion.

WRIT QUASHED.

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