author: HARWOOD, Justice.

text:
    Ex parte L. Robert MENDEL, DMD; Family Dental Associates; and Mobile Family Dental. (In re Jacqueline R. Previto v. L. Robert Mendel, DMD; Family Dental Associates; and Mobile Family Dental).
    1050045.
    Supreme Court of Alabama.
    May 12, 2006.

      Robert P. MacKenzie III of Starnes & Atchison, LLP, Birmingham; and John Peter Crook McCall of Starnes & Atchi-son, LLP, Mobile, for petitioners.
    David G. Wirtes, Jr., and David S. Cain, Jr., of Cunningham, Bounds, Crowder, Brown & Breedlove, Mobile, for respondent.
   HARWOOD, Justice.

L. Robert Mendel, DMD; Family Dental Associates (“Family Dental”); and Mobile Family Dental (“Mobile Family”) (collectively “the defendants”) petition for a writ of mandamus directing the Mobile Circuit Court to vacate its October 3, 2005, order compelling production of documents in an action brought against them by Jacqueline R. Previto. We grant the petition in part and deny the petition in part, and we issue the writ.

Facts as Alleged in Previto’s Complaint

Our sole source of information concerning the underlying events comes from the complaint Previto filed to institute her action. She avers in the complaint that on September 19, 2002, she sought the advice of Dr. Mendel regarding the possibility of remedying, through the use of dental implants, a dental condition from which she suffered. Dr. Mendel recommended dental implants as the best option and treatment for Previto’s condition. Dr. Mendel explained to Previto that although dental implants were more expensive than alternative dental-care options, the superior results would be worth the extra expense; he additionally represented to her that he was “as competent, skilled and capable of performing the various phases of the implant surgery as other dentists.” However, Dr. Mendel “at no time mentioned to [Previto] that his license had been suspended on numerous occasions by various dental boards in more than one state.”

Dr. Mendel performed the dental-implant surgery on Previto on November 25, 2002. She contends that during the procedure Dr. Mendel punctured the floor of her right maxillary sinus, that he incorrectly placed the implants in her mouth, and that he failed to complete the surgery. Finally, Previto alleges, neither Dr. Mendel nor his staff ever sought to correct or remedy the mistakes they allegedly made. She asserts that at all times Dr. Mendel was working within the line and scope of his employment with Family Dental and Mobile Family.

Previto sued Dr. Mendel, Family Dental, and Mobile Family in 2004, stating five “causes of action” for which she sought relief. The first “cause of action” was premised on liability under the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-480 et seq. and § 6-5-540 et seq., based on the defendants’ alleged numerous specified negligent acts or omissions. Among those alleged acts and omissions were the defendants’ failure to obtain Previto’s “informed consent” to undergo the surgery and their failure to “inform and/or disclose to [Previto] that [Dr. Mendel’s] license to practice dentistry had been suspended and/or revoked on multiple occasions.” Previto’s second cause of action was based on the defendants’ alleged breach of contract. The third cause of action was based on the defendants’ alleged misrepresentations to Previto regarding the care and competence with which the procedure would be conducted. Previto’s fourth cause of action was based on alleged “fraudulent misrepresentation” by Dr. Mendel, who, Previto argues, as her regular dentist “was under an obligation to communicate to [her] the fact that his license had been suspended in numerous States by governing dental boards and associations,” but who “at no time communicated to [her] that his license to practice dentistry had every [sic] been suspended and/or revoked for any period of time.” Previto asserted that that information constituted “a material fact,” which, had she known it, would have caused her to refrain from undergoing the surgery. Previto’s fifth and final cause of action was based on the defendants’ alleged willful misrepresentation of Dr. Mendel’s competence and willful failure to disclose that “he had been reprimanded by numerous dental review boards and had received suspensions and/or revocations in numerous states.”

Of particular importance to this petition are the portions of Previto’s complaint alleging that Dr. Mendel had failed to disclose to her that he had been reprimanded by numerous dental review boards and that his dental license had been suspended or revoked on “multiple occasions” in numerous states; thus, she says, he failed to obtain her informed consent to the surgery and misrepresented and/or suppressed material facts.

On December 22, 2004, Previto noticed her intent to serve a subpoena upon the Alabama Board of Dental Examiners (“the Dental Board”). That subpoena (hereinafter referred to as “the Dental Board subpoena”) would command the Dental Board to produce

“any and all reports, correspondence, memoranda, notes, complaints, files, and all other documents or materials of any type, kind or description, whether in written, printed or electronic form, which reference or in any way relate to [Dr. Mendel] and his practice of dentistry and/or implant dentistry and/or dental surgery, including, but not limited to, any and all complaints filed against Dr. Mendel, and all documents and materials of any type, kind or description which reference or in way [sic] relate to any such complaints.”

The defendants objected to the Dental Board subpoena and moved to quash it, asserting that the materials sought were “privileged and protected” under § 6-5-551 and § 6-5-333(d), Ala.Code 1975. Previto filed a response, with a supporting brief, to the defendants’ objection to, and motion to quash, the Dental Board subpoena, and the Dental Board filed its own “motion to quash and/or objection” to the proposed subpoena. Shortly after they moved to quash the Dental Board subpoena, the defendants moved for a partial summary judgment, contending that because a dentist has no common-law or statutory duty to disclose professional reprimands or licensure suspensions or revocations to his patients, Previto’s “licensure claims” did not represent cognizable causes of action and therefore were due to be dismissed.

The trial court denied the defendants’ motion for a partial summary judgment, as well as their subsequent motion to reconsider, and their motion to certify the underlying issue for permissive appeal pursuant to Rule 5, Ala. RApp. P.

On June 9, 2005, Previto noticed the video deposition of Dr. Mendel. In her notice, which contained a section labeled “duces tecum,” Previto requested that Dr. Mendel produce some 22 types of documents, including:

“18. Full and complete copies of any and all notes, memorandums, correspondence, e-mails, files, forms or other documents, whether in written or electronic form, which would in any way relate to any revocation, suspension or termination of any medical or dental license held by [Dr. Mendel] in any State or country.”

The defendants objected to the “duces te-cum” feature of the notice (referring to it as a “subpoena duces tecum”; the notice, therefore, is hereinafter referred to as “the Mendel subpoena”), and moved to quash it, or, in the alternative, for a protective order, relying in part, again, on § 6-5-551, Ala.Code 1975.

On June 27, 2005, the trial court denied in part the respective motions of the defendants and the Dental Board to quash the Dental Board subpoena stating, however, “that the [Dental] Board shall produce any formal notice of charges, final order or transcript of proceeding involving any matter resulting in formal discipline against [Dr. Mendel] or any non-privileged documents which resulted in a finding of a violation of the Alabama Dental Practice Act.” The court granted those motions “[i]n all other respects”; it did not address the defendants’ objection to and motion to quash the Mendel subpoena.

On July 1, the defendants filed a motion seeking a protective order relating to the June 27 order and a motion requesting that the court review in camera any documents produced by the Dental Board pursuant to that order to determine whether it should enter a protective order “relative to same,” referencing once again §§ 6-5-551 and 6-5-333(d), Ala.Code 1975. At some point, not identified by the parties’ submissions, the Dental Board produced certain materials for the court’s in camera inspection.

On July 7, 2005, the court conducted a hearing on the defendants’ motion for a protective order, their motion for an in camera inspection, and their still-pending objection to and motion to quash the Mendel subpoena. On October 3, 2005, the court entered an order denying the defendants’ motion for a protective order; that order states:

“[T]he defendants’ motion for protective order is hereby DENIED. Those in camera materials received from the [Dental Board] will remain within the court file, under seal. The [Dental Board] is ordered to produce those same materials, in compliance with this Court’s order of June 27, 2005, not before the seventh (7th) day after execution of this order.”

With respect to the Mendel subpoena, the order stated:

“After due consideration of the arguments by counsel for all parties, written briefs, exhibits, review of the court file, and an in camera inspection, the court finds and hereby orders that the defendants’ objection and motion to quash, or, in the alternative, motion for protective order is hereby DENIED.”

The court had implicitly granted the defendants’ motion for an in camera inspection and had conducted the inspection.

The defendants timely petitioned this Court for a writ of mandamus directing the trial court to vacate its October 3 discovery order and requiring “the lower court to enter a protective order regarding the proffered ‘licensure’ discovery, whether relative to the [Dental Board subpoena] or [the Mendel subpoena].” As they had in the trial court, the defendants contended that the discovery was precluded by §§ 6-5-551 and 6-5-333(d). We ordered answer and briefs on the issue “whether the trial court’s order ... disregarded a privilege.”

Standard of Review

“Mandamus is an extraordinary remedy and will be granted only when there is ‘(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1136 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).

Although this Court no longer routinely reviews discovery orders by way of petitions for an extraordinary writ, we do review such orders under a limited number of circumstances that indicate an exceptional case. Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810 (Ala.2003). One such circumstance is when a trial court grants discovery in disregard of a privilege. “This Court has recognized that review by appeal is inadequate when it is alleged that the trial court has improperly disregarded a claim of privilege or confidentiality.” Ex parte Gadsden Reg’l Med. Ctr., 904 So.2d 234, 235 (Ala.2004). The burden to prove that the petition presents such an exceptional case rests with the petitioner. Ex parte Ocwen, 872 So.2d at 814. As noted, in this case the Court has limited its review to whether the Mobile Circuit Court’s October 3, 2005, order disregarded a privilege.

Analysis

The defendants first argue that we should grant their petition because, they say, Ala.Code 1975, § 6-5-551, makes privileged all information concerning “any other act or omission” than the one on which the complaint is specifically based.

Ala.Code 1975, § 6-5-551, part of the Alabama Medical Liability Act, provides, in pertinent part:

“In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts.... Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

(Emphasis added.)

Rule 26(b)(1), Ala. R. Civ. P., provides, in pertinent part:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

(Emphasis added.)

Previto argues that § 6-5-551 does not grant a privilege to a party; rather, she says, the statute creates only a discovery “exemption.” (Previto’s brief, at 19.) Indeed, we explained in Ex parte Anderson, 789 So.2d 190, 195 (Ala.2000): “[i]f all conditions of [§ 6-5-551] are met, then any other acts or omissions of the defendant health-care provider are exempt from discovery.” (Emphasis added.)

Rule 26 contemplates only two circumstances that will render information nondiscoverable: either the information is irrelevant or it is privileged. There is a third possibility, however — the legislature can change the procedural rules by which the courts operate. For example, in State v. Bragg, 710 So.2d 417, 418-19 (Ala.1998), this Court compared Rule 26(b)(1), Ala. R. Civ. P., with Ala.Code 1975, § 18-1A-130, a statute that prohibits the discovery in an eminent-domain case of appraisal reports valuing another’s property. Although we did not conclude that the appraisal reports sought by the respondent were either irrelevant or privileged, we nevertheless found that the statute had supplemented Rule 26(b)(1) so as to “exempt[ ] appraisal reports in condemnation cases from discovery.” 710 So.2d at 419. In reaching our decision, we quoted § 6.11 of Amendment No. 328 to the Alabama Constitution 1901, which provides that the rules promulgated by this Court (e.g., the Alabama Rules of Civil Procedure) “‘may be changed by a general act of statewide application.’ ” 710 So.2d at 418. In Ex parte Ridgeview Health Care Center, Inc., 786 So.2d 1112 (Ala.2000), we again found that the legislature had carved out an exception to the discovery rules promulgated by this Court, this time in the Alabama Medical Liability Act of 1996, Ala.Code 1975, § 6-5-548(d), which declares, in pertinent part, that “[t]he limits of liability insurance coverage available to a health care provider shall not be discoverable.... ”

The term “privilege” is sometimes used to describe a relationship or transaction immunized by law so that no legal liability can result from the relationship or transaction; the term is sometimes used to describe written or oral communications, which, because of the nature of the relationship or transaction, are confidential and protected from disclosure; and the term is often used to describe the coexistence of both the relationship or transaction and the communications. In its broadest sense, a privilege is simply “[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.” Black’s Law Dictionary 1234 (8th ed.2004). In both Ex parte Norfolk Southern R.R., 897 So.2d 290 (Ala.2004), and Ex parte Alabama Department of Youth Services, 927 So.2d 805 (Ala.2005), proceeding under the Ocwen approach, we characterized the protection afforded trial-preparation materials under Rule 26(b)(3) as a “privilege,” despite the fact that this subdivision of Rule 26 first states that such materials must be “otherwise discoverable under subdivision (b)(1),” which, in turn, requires that discoverable material be “not privileged.” Rule 26(b)(3) goes on to state simply that a party may obtain discovery of trial-preparation materials only upon a showing of substantial need and that he or she is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Finally, Rule 26(b)(5) acknowledges the conceptual distinction between information that is “privileged” and information “subject to protection as trial-preparation materials.” Therefore, by our approach in Norfolk Southern and Department of Youth Services, we have elected, in the context of post-Ocwen mandamus review, to treat the conditional exemption from discovery of trial-preparation materials afforded by Rule 26(b)(3) as implicating a “privilege.” Given the absolute bar against certain discovery erected by § 6-5-551, we deem it appropriate likewise to treat the exemption from discovery offered by that statute as a privilege, for purposes of the Ocwen standard.

As noted, the trial court denied the defendants’ motion for a partial summary judgment on Previto’s “licensure claims,” i.e., those claims alleging lack of informed consent and fraudulent misrepresentation, and refused to certify the underlying question of law for possible interlocutory appeal pursuant to Rule 5, Ala. R.App. P. Accordingly, at this stage of the proceedings, those claims stand as acts and omissions pleaded pursuant to § 6-5-551 and, consequently, serve as a platform under that Code section for discovery “with regard to” the same. We are not in a procedural posture in this mandamus proceeding to assess the substantive viability of those claims. Consequently, we express no opinion whether a physician, in order to obtain the patient’s informed consent, may have an affirmative duty to disclose to the patient information regarding suspensions or revocations of the physician’s license. Under the express language of § 6-5-551, however, we look only to the “detailed specification and factual description” of those alleged acts and omissions, as pleaded by Previto, and any attempt by her to recharacterize those acts and omissions to the trial court or to this Court, without amending her complaint, must be disregarded.

Previto’s lack-of-informed-consent claim is expressly premised on Dr. Mendel’s alleged failure to inform or disclose to her that his “license to practice dentistry had been suspended and/or revoked on multiple occasions.” Similarly, her misrepresentation claims assert that Dr. Mendel affirmatively represented his competence and qualification to perform the implant surgery and, despite his status as Previto’s “regular dentist,” making their relationship a “confidential” one, that he failed to communicate to her “the fact that his license had been suspended in numerous States by governing dental boards and associations.” As an additional gloss, she alleges in her complaint as follows:

“[Dr. Mendel] did wilfully misrepresent that he was competent, capable, qualified and otherwise able to perform the aforesaid dental implant surgery in a non-negligent and professional manner on September 19, 2002. Further, [Dr. Mendel] wilfully failed to disclose the fact that he had been reprimanded by numerous dental review boards and had received suspensions and/or revocations in numerous states.
“The aforesaid representations were done in a manner so as to deceive and mislead [Previto] and to further induce [Previto] to enter into an agreement to have the dental implant surgery which began on November 25, 2002.
“[Previto] further alleges that as a result of the aforesaid misrepresentations, [Previto] elected to undergo the dental implant surgery. These representations were a material element in that decision.”

Therefore, the issue for this Court to resolve in applying the discovery exemption of § 6-5-551 to the acts and omissions pleaded in Previto’s complaint is whether the discovery ordered by the trial court is “with regard to” those acts and omissions.

“The elements of a cause of action against a physician for failure to obtain informed consent are: (1) the physician’s failure to inform the plaintiff of all material risks associated with the procedure, and (2) a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician. Fain v. Smith, 479 So.2d 1150 (Ala.1985); Fore v. Brown, 544 So.2d 955 (Ala.1989).”

Phelps v. Dempsey, 656 So.2d 377, 380 (Ala.1995).

“A physician is not required to inform the patient of each and every risk in a particular procedure; however, the doctor should inform the patient of the ‘significant perils’ involved in the procedure. Otwell v. Bryant, 497 So.2d 111, 118 (Ala.1986).” Craig v. Borcicky, 557 So.2d 1253, 1258 (Ala.1990).

Therefore, as controlled by Previto’s detailed specification and factual description in her complaint of Dr. Mendel’s alleged failure to obtain her informed consent, the discovery of information about previous suspensions and/or revocations of his license to practice dentistry is not prohibited by § 6-5-551 to the extent the information reflects multiple suspensions and/or revocations, and provided further that the revocations or suspensions relate to negligence or professional incompetence in the practice of dentistry. Discovery of any materials or information not having that direct relevance to the claim of lack of informed consent as pleaded by Previto is prohibited by § 6-5-551. See Ex parte Anderson, 789 So.2d 190, 195, 198 (Ala.2000); and Ex parte Ridgeview Health Care Ctr., 786 So.2d at 1116-17.

We next consider the effect of the discovery exemption in § 6-5-551 in light of Previto’s fraudulent-misrepresentation claims. In Johnson v. McMurray, 461 So.2d 775 (Ala.1984), this Court had the following to say concerning a patient’s claim of fraud against his doctor:

“This Court has determined that the relationship between a doctor and his patient is a ‘confidential’ one. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). The policy considerations for confidentiality in the doctor/patient relationship are grounded in the necessity on the part of the patient to fully disclose to his doctor all information essential to the patient’s proper diagnosis and treatment, and in the corresponding duty on the part of the doctor to fully disclose to the patient facts necessary to enable the patient to intelligently exercise his right to control, to the extent feasible, his own health care.”

461 So.2d at 778.

As noted, Previto charges in her complaint that Dr. Mendel misrepresented his competence and qualification to perform dental-implant surgery and suppressed information that his “license to practice dentistry has been suspended and/or revoked on multiple occasions” and that “he had been reprimanded by numerous dental review boards and had received suspensions and/or revocations in numerous states.” Given the procedural posture in which this case reaches us, we will assume, but need not decide, that Dr. Mendel owed Previto a duty to disclose “multiple” suspensions or revocations; reprimands by “numerous” dental review boards; or suspensions or revocations in “numerous” states. Only a quantity of such sanctions corresponding to the magnitudes specifically pleaded would qualify that information for discovery as being “with regard to” the detailed specifications and factual descriptions of the acts or omissions alleged in the complaint.

Therefore, given the scope of discovery arising from the specific acts and omissions pleaded by Previto, we hold that she may discover from Dr. Mendel the matters explained above with respect to her claims of lack of informed consent and fraudulent misrepresentation.

Section 6 — 5—333(d), Ala.Code 1975, provides:

“All information, interviews, reports, statements, or memoranda furnished to any committee as defined in this section, and any findings, conclusions, or recommendations resulting from the proceedings of such committee are declared to be privileged. The records and proceedings of any such committees shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records nor be available for court subpoena or for discovery proceedings. Nothing contained herein shall apply to records made in the regular course of business by a hospital, dentist, dental auxiliary personnel, chiropractor, chiropractic auxiliary personnel, physician, physician auxiliary personnel, or other provider of health care and information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.”

Previto argues that § 6-5-333 has no application to the Dental Board because, she says, its title refers to various types of committees without specifically naming the Dental Board, and its text does not otherwise reference the Dental Board. Section 6 — 5—333(d) declares that various information furnished to or generated by a “committee” as defined in that section is privileged, confidential, and not a public record or otherwise available for court subpoena or for discovery. Section 6-5-333(b) defines a “committee” for the purposes of § 6-5-333 as follows:

“[MJembers of a committee of dentists, chiropractors, or physicians licensed to practice medicine in Alabama formed or appointed to evaluate the diagnosis or the performance of services of other dentists or dental auxiliary personnel, chiropractors or chiropractic auxiliary personnel or physicians licensed to practice medicine in Alabama or physician auxiliary personnel when such evaluation is requested by a government agency, by the fiscal intermediary responsible for the administration of group health care programs, by the recipient of dental, chiropractic, or medical services, or by a dentist, chiropractor, or physician licensed to practice medicine in Alabama.”

The composition and some of the functions of the Dental Board bring it within that definition of committee. The Dental Board consists “of five dentists who shall have been actively engaged in the practice of dentistry in the State of Alabama for at least five years next preceding the date of their election” and one dental hygienist. Ala.Code 1975, § 34-9-40(a). Among its assigned “powers and duties,” the Dental Board is mandated to “[prescribe rules for qualifications and licensing of dentists and dental hygienists”; to conduct examinations to ascertain their qualification and fitness for licensing; to grant licenses to qualified dentists and dental hygienists; to “[c]onduct hearings or proceedings to impose the penalties specified in Section 34-9-18”; and to “[i]nvestigate alleged violations of this chapter and institute or have instituted before the board or the proper court appropriate proceedings regarding the violation.” § 34-9-43.

Section 34-9-18, in turn, authorizes the Dental Board to “invoke disciplinary action” and to impose sanctions, including license revocation or suspension, against any dentist who has been “guilty of gross negligence in the practice of dentistry” or “fh]as had his or her license to practice dentistry ... from another state suspended or revoked based upon acts similar to those described in this section.” Although Chapter 9 of the Alabama Code, entitled “Dentists and Dental Hygienists,” assigns various other powers and duties to the Dental Board, many of which would not relate to the functioning of a “committee” under § 6 — 5—333(b), the Dental Board does in fact have as an important part of its functions the evaluation of the performance of services of dentists. Accordingly, applying the plain language of § 6-5-333(b) to the composition and functions of the Dental Board, we conclude that it comes within the definition of a “committee” under § 6-5-333(b).

Previto also argues that under the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq., the workings of the Dental Board must be open and accessible to the public. She cites specifically § 41-22-4(a)(4), which states that agencies such as the Dental Board must “[m]ake available for public inspection and copying ... all final orders, decisions, and opinions ..., except those expressly made confidential or privileged by statute or order of court.” Section 6-5 — 333(d) expressly makes confidential and privileged materials that would constitute “final orders, decisions, and opinions” of the Dental Board.

Finally, Previto contends that even if § 6-5-333(d) is applicable to certain materials in the possession of the Dental Board, that statute would apply only to those documents that “were prepared in furtherance of the committee’s function,” citing Ex parte Anderson, 789 So.2d 190, 199 (Ala.2000). In analyzing the scope of discovery barred, and permitted, by § 6-5-333(d), the Court stated in Anderson:

“The clear import of this statute is that official committee documents, which would include information regarding whether [the defendant physician’s] privileges have ever been reviewed, restricted, or canceled, that were prepared in furtherance of the committee’s function, are privileged from discovery. However, records made in the regular course of business, exclusive of official committee functions, and otherwise available from their original sources, are discoverable and not privileged. Thus, [the plaintiff patient] is not entitled to discover records or documents prepared by a hospital or other health-care provider unless they were prepared in its regular course of business.... ”

In Anderson, the plaintiff patient, in seeking discovery directly from the defendant physician, requested that the physician acknowledge whether his ‘“medical, surgical or staff privileges have ever been reviewed, restricted or cancelled by any hospital or by any Medical Licensure Commission in any state in which [he has] been licensed....’” 789 So.2d at 192-93. This Court concluded that “discovery of information regarding [the physician’s] privileges is barred by § 6—5—333(d).” 789 So.2d at 199. The Court did note that under that Code section the plaintiff could discover records or documents prepared by a hospital or other health-care provider “in its regular course of business” and that the plaintiff was “not precluded from seeking the same from [the physician] as the original source.” 789 So.2d at 199. Obviously, “the same” refers to records or documents prepared by a hospital or other health-care provider in its regular course of business. As the Court had earlier explained, “records made in the regular course of business, exclusive of official committee functions, and otherwise available from their original sources, are discoverable and not privileged.” 789 So.2d at 199 (emphasis added).

The import of those statements in Anderson can best be understood in the context of two other opinions this Court also issued in 2000, concerning access from “original sources,” in connection with another statute, § 22-21-8, Ala.Code 1975. After declaring that “[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery,” § 22-21-8(b) states, in language quite similar to the language used in § 6 — 5—333(d), that “[¡Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery ... merely because they were presented or used in preparation of accreditation, quality assurance or similar materials.... ”

In Ex parte Krothapalli, 762 So.2d 836 (Ala.2000), the Court, construing that language, stated:

“[Section] 22-21-8 does not protect information if it is obtained from alternative sources. Hence, a plaintiff seeking-discovery cannot obtain directly from a hospital review committee documents that are available from the original source, but may seek such documents from the original source. Therefore, the trial court erred in ordering that these documents from the two hospitals be turned over to the plaintiff.”

762 So.2d at 839.

In Ex parte Qureski, 768 So.2d 374 (Ala.2000), the Court reviewed a trial court’s order requiring a hospital to produce documents pertaining to a defendant physi-dan’s “qualifications, training, education, and board certification in the field of orthopedic surgery,” 768 So.2d at 375, and correspondence between the hospital and the American Board of Orthopaedic Surgeons or any other institution or hospital, or documents received by the hospital from any such organization, pertaining in any way to the physician. Concluding that those materials were barred under § 22-21-8, the Court stated, “we note, however, that Krothapalli allows the discovery of these documents from the original sources.” 768 So.2d at 378. In directing the trial court to vacate its order requiring the hospital to produce those documents “that were received from outside sources,” the Court reiterated, “[n]either our decision in Krothapalli nor our holding here today prevents [the plaintiff] from obtaining documents that originated from sources other than [the hospital’s] credentialing committee.” 768 So.2d at 380.

The combined effect of these explanations in Krothapalli, Qureshi, and Anderson, is that we must hold that the trial court erred in ordering the Dental Board to produce the records specified in the court’s June 27, 2005, order, as to which the defendants were denied a protective order by the court’s October 3, 2005, order. Previto is entitled, however, to have Dr. Mendel produce in response to paragraph 18 of the Mendel subpoena all materials in his possession, as the original source, “which would in any way relate to any revocation, suspension, or termination of any medical or dental license held by [Dr. Mendel] in any State or Country,” but only to the extent that those materials reflect, “with regard to” the pleaded claim of lack of informed consent, that Dr. Mendel’s “license to practice dentistry has been suspended and/or revoked on multiple occasions,” or, “with regard to” the pleaded fraudulent-misrepresentation claims, that Dr. Mendel’s “license had been suspended in numerous States by governing dental boards and associations” or that Dr. Mendel “had been reprimanded by numerous dental review boards and had received suspensions and/or revocations in numerous States,” and provided further that the bases for such suspensions and revocations reasonably implicate the professional skills required for the competent practice of dentistry.

Conclusion

We grant the petition in part and deny it in part, and we direct the trial court to vacate its orders of June 27, 2005, and October 3, 2005, and to issue a protective order in favor of the defendants as to the materials Dr. Mendel produces, in conformity with our foregoing explanations and holdings concerning the permissible scope of discovery in this case.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Elisa Simmons PINIGIS, as executrix of the estate of Doris Porter Coyle, deceased v. REGIONS BANK.
    1041905.
    Supreme Court of Alabama.
    May 12, 2006.

      J. Mark Hart, Joseph L. Cowan II, and Khristi Doss Driver of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellant.
    Laurence J. McDuff and Elizabeth R. Floyd of Adams & Reese, LLP, Birmingham, for appellee.
   WOODALL, Justice.

Elisa Simmons Pinigis, as executrix of the estate of Doris Porter Coyle, deceased, challenges the summary judgments in favor of Regions Bank (“the Bank”) in her action against the Bank for its payment of unauthorized checks drawn on Coyle’s account and for its alleged conversion of certificates of deposit. We affirm in part, reverse in part, and remand.

I. Factual Background

On September 19, 2003, Pinigis sued the Bank. The complaint contained the following pertinent allegations:

“5. In 1993, Doris Porter Coyle opened a checking account ... with [the Bank], The signature card signed by Coyle when the account was opened clearly indicated that she was the only person authorized to draw funds on this account. Coyle also established a number of certificate^] of deposit[] with [the Bank], of which she was the sole owner.
“6. In late 1997, Coyle suffered a debilitating illness after which she was in a coma for approximately three weeks. Coyle was hospitalized and required extensive care as a result of the illness. Coyle was then age 90. Coyle’s health was severely affected as a result of the illness for the last years of her life.
“7. At the time of her illness, Coyle’s income was approximately $1,000.00 per month, deriving from two pensions and Social Security benefits.
“8. Shortly after Coyle’s illness, [Walter Massey and his wife, Laquana Massey,] began involving themselves in Coyle’s affairs. By promoting themselves as business owners, bookkeepers and family, the Masseys impermissibly and fraudulently gained Coyle’s confidence and exercised undue influence over her.
“9. After the Masseys became involved with Coyle, the expenditures from Coyle’s account with [the Bank] increased substantially. By January 1999 and perhaps earlier, the Masseys began writing checks out of Coyle’s account with [the Bank] and forging Coyle’s name to the signature line. From mid-1999 until Coyle’s death on January 1, 2003, the withdrawals from Coyle’s ... account noticeably and uncharacteristically increased, so that in excess of $257,000.00 worth of checks were written out of Coyle’s checking account during that period of time. These unusual expenditures included large amounts for food even though Mrs. Coyle’s diet was primarily made up of liquid supplements. The expenditures also included numerous checks for large individual amounts to Wal-Mart [discount department store], electronic gaming stores, sporting goods stores, gourmet markets, liquor stores, restaurants, fast food, Harley Davidson motorcycle shops, academic tutoring, acne medication, and lingerie, to name only a few. Further, the Masseys used Coyle’s funds to pay their MasterCard and Home Depot charge accounts. In 2002 alone, $16,700.00 was paid from Coyle’s ... account to the Masseys’ personal Sears MasterCard charge account. The Masseys also paid their utilities and their son’s truck insurance from Coyle’s account. Payments were also made from the Regions account to a McRae’s/ Saks credit card for purchases of jewelry, watches and menswear by and for the benefit of the Masseys. [The Bank] participated with the Masseys and honored those payments from Coyle’s account. The vast majority, if not all, of these expenditures were for the Mas-seys’ personal benefit.
“11. Due to the increased spending by the Masseys on Coyle’s account, Coyle’s account became overdrawn. Prior to the pattern of noticeable and uncharacteristic withdrawals beginning in the middle of 1999, Coyle had never overdrawn her checking account. After 1999, [the Bank] allowed the overdrafts and benefited from the overdraft fees charged to Mrs. Coyle.... [The Bank] participated with the Masseys in cashing a number of Coyle’s certificate^] of de-posite] in Coyle’s absence and without Coyle’s permission, which resulted in substantial early withdrawal penalties paid to [the Bank], and enabled [the Bank] to offer lower yields and interest rates on the remaining certificates of deposit.
“12. [The Bank] did nothing to question these increased expenditures, overdrafts, suspicious activity on the accounts, premature cashing of certificates of deposit, nor took any other steps to protect Coyle’s account. Further, [the Bank] allowed the Masseys to substantially deplete Coyle’s account of all available funds and further misappropriate the balance of her investment and certificates of deposit! ].
“14. On January 1, 2003, Mrs. Coyle died at the age of 95. Pinigis was appointed executrix of Coyle’s estate.
“15. Although [the Bank] was notified of Mrs. Coyle’s death as early as January 2, 2003, a number of checks written by the Masseys on Coyle’s account were processed after Coyle’s death, and after [the Bank] had notification of her death.”

(Emphasis added.) Pinigis sought to recover funds the Bank had “improperly charged Coyle’s account [for the allegedly forged checks], in violation of [the Alabama Uniform Commercial Code — Bank Deposits and Collections, Ala.Code 1975, §§ 7-4-401 and -405].” Pinigis also alleged that the Bank converted two certificates of deposit, which Pinigis attempted to redeem after Coyle’s death as property of the estate, and sought compensatory and punitive damages under a conversion claim.

The Bank answered the complaint on November 4, 2003. The answer stated, in pertinent part: “The plaintiffs claims are barred by the applicable statutes of limitations, including but not limited to the provisions of UCC Articles 3 and 4.” (Emphasis added.)

Subsequently, the Bank moved for a summary judgment directed chiefly to the claim asserting that the Bank had paid unauthorized checks. In that motion, the Bank argued that “Pinigis’s claim that Regions Bank is liable for paying unauthorized [checks] is absolutely barred by the statute of repose stated in the Alabama Commercial Code.” (Emphasis added.) More specifically, the Bank insisted that Pinigis had never “identified a particular check that was unauthorized,” and, consequently, that “[ujnder the authority of section 7-Jt,-í06(f) of the [Alabama Commercial] Code, Pinigis’s claims that [the Bank] improperly paid checks containing Ms. Coyle’s forged signature or that it paid checks not authorized by Ms. Coyle are absolutely barred.” (Emphasis added.)

In her response to that motion, Pinigis objected to the Bank’s reliance on § 7-4-406(f). She argued that “[a] statute of repose, such as § 7-4-406(0, is an [affirmative defense],” which the Bank was required to include in its answer, or it was waived. The Bank “did not plead the statute of repose” in its answer, Pinigis insisted, and, therefore, could not “avail itself of the affirmative defense for the first time in its motion for summary judgment.”

On May 2, 2005, the trial court entered a partial summary judgment in favor of the Bank. The court stated that the Bank “was not given any specific notification of the unauthorized signatures on checks until the instant lawsuit was filed ... almost nine months after the last unauthorized check was written.” The court concluded that, under § 7-4-406(f), Pinigis could not “hold the [B]ank liable for checks paid by the [B]ank more than 180 days prior to discovery and reporting.” The judgment left pending Pinigis’s claim alleging conversion of the certificates of deposit.

Pinigis filed a motion to vacate the partial summary judgment. The Bank filed a second summary-judgment motion directed to Pinigis’s conversion claim. On August 3, 2005, the trial court entered a final summary judgment for the Bank on the conversion claim, and Pinigis appealed.

On appeal, Pinigis first contends that the trial court erred in relying on § 7-4-406(f) to bar her claims alleging the wrongful payment of forged checks. Next, she insists that the “trial court erroneously concluded that under Alabama law a certificate of deposit cannot be the subject of a conversion claim.” Pinigis’s brief, at 52.

II. Section 7-I~I06(f)

The partial summary judgment for the Bank on Pinigis’s payment-of-unauthorized checks claim was based on § 7-4-406(f); the trial court concluded that Pinigis had defaulted on her statutory “duty to discover and report [an alleged] unauthorized signature or alteration.” Section 7-4-406 provides:

“(a) A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount, and date of payment.
“(b) If the items are not returned to the customer, the person retaining the items shall either retain the items or, if the items are destroyed, maintain the capacity to furnish legible copies of the items until the expiration of seven years after receipt of the items. A customer may request an item from the bank that paid the item, and that bank must provide in a reasonable time either the item or, if the item has been destroyed or is not otherwise obtainable, a legible copy of the item.
“(c) If a bank sends or makes available a statement of account or items pursuant to subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.
“(d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection (c), the customer is precluded from asserting against the bank:
“(1) The customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
“(2) The customer’s unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank.
“(e) If subsection (d) applies and the customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to loss, the loss is allocated between the customer precluded and the bank asserting the preclusion according to the extent to which the failure of the customer to comply with subsection (c) and the failure of the bank to exercise ordinary care contributed to the loss. If the customer proves that the bank did not pay the item in good faith, the preclusion under subsection (d) does not apply.
“(f) Without regard to care or lack of care of either the customer or the bank, a customer who does not within 180 days after the statement and the items or a legible copy or image of the items are sent to the customer, or within one year after the statement or items are otherwise made available to the customer (subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are sent or made available to the customer, discover and report any alteration on the back of the item or any unauthorized endorsement is precluded from asserting against the bank any such alteration or unauthorized endorsement. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under Section 7-4-208 with respect to the unauthorized signature or alteration to which the preclusion applies.”

(Emphasis added.)

Pinigis argues that the trial court’s consideration of § 7-4-406(f) to bar her claim is precluded by Ala. R. Civ. P. 8(c), which provides, in pertinent part:

“In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

(Emphasis added.) Pinigis contends that the limitations period in § 7-4-406(f) is an affirmative defense that the Bank failed to plead as required by Rule 8(c). She concedes that the Bank’s answer included a reference to “the applicable statutes of limitations, including but not limited to the provisions of UCC Articles 3 and 4,” but she argues that this reference provided insufficient notice of the Bank’s purported reliance on § 7-4-406(f) as an affirmative defense. This is so, because, she insists, § 7-4-406(f) is not a statute of limitations, but is, in fact, a statute of repose.

Regarding affirmative defenses, this Court has said:

“Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [Morse], 352 So.2d 1355, 1357 (Ala.1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown [Central] Petroleum Corp., 451 So.2d 793, 796 (Ala.1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT [Phillips] Drill Division, Inc., 445 So.2d 559, 561 (Ala.1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979); and Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (3d ed.1984). But, specifically, a defendant ‘cannot revive [the waived affirmative defense] in a memorandum in support of a motion for summary judgment’ Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976).”

Wallace v. Alabama Ass’n of Classified School Employees, 463 So.2d 135, 136-37 (Ala.1984) (emphasis added).

The Bank implicitly concedes that the affirmative defense of § 7 — 4—406(f) is waivable; that is, the Bank does not argue that the subsection is not an affirmative defense encompassed within the rules stated in Wallace, The Bank also implicitly concedes that § 7-4-406(f) is not a statute of limitations. In that connection, it says: “[The] Bank did not fail to plead its affirmative defense. The most that could be said is that [it] did not use a specific term of art, that is, it used the phrase ‘statutes of limitation’ as opposed to ‘statute of repose.’ ” Bank’s brief, at 35. If its answer is “ ‘liberally construed,’ ” the Bank argues, the pleading “more than sufficiently gives notice that [it] intended to rely on section 7 — 4—406(f).” Bank’s brief, at 35-36 (quoting Adkison v. Thompson, 650 So.2d 859, 862 (Ala.1994) (“Under modern rules of civil procedure, pleadings are to be liberally construed in favor of the pleader; the primary purpose of pleading is to give fair notice to adverse parties of a claim against them.”)). However, the Bank’s defense cannot be saved by liberal construction.

The Bank correctly concedes that § 7-4-406(f) is not a statute of limitations. That proposition is definitively stated in the Alabama Comment to § 7-4-406:

“The notice requirements in subsection (f) are the periods within which the customer must notify the drawee bank of the fraud or be absolutely barred from recovery. These notice requirements are in the nature of a statute of repose for reporting unauthorized signatures or alterations rather than a measure of time within which a suit to re-credit the account must be brought (a statute of limitations). A statute of limitations is now established under revised Section [4-111],
“Under present Alabama law customers must discover and report forgeries or alterations within 180 days and forged indorsements within one year from the time the statement and items are made available to the customer.”

(Emphasis added.)

Courts and commentators agree that the time limitation of § 7-4-406(f), also found in the codes of various other states, the Uniform Commercial Code, and corresponding predecessor sections, constitutes a “statute[ ] of repose,” Brian Patrick Perryman, Note, Checking Checks: American Airlines Employees Federal Credit Union v. Martin and the Amenability of Common Law Waiver to Deposit Agreement Cutdown Provisions, 10 Geo. Mason L.Rev. 551, 594 n. 84 (2002); a “statutory prerequisite of notice,” Euro Motors, Inc. v. Southwest Fin. Bank & Trust Co., 297 Ill.App.3d 246, 252, 696 N.E.2d 711, 715, 231 Ill.Dec. 415, 419 (1998) (citing cases); or a statutory “non-claim provision,” Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards ¶ 6.2[3][d], at S6-22 n. 62.2 (Supp.1987), rather than a statute of limitations. See also SpanCom Servs., Inc. v. SouthTrust Bank, N.A., 744 So.2d 931, 932 (Ala.Civ.App.1999) (“§ 7-4-406(f), which is in the nature of a statute of repose, absolutely bars recovery ... regardless of negligence”).

“A true statute of limitations prescribes a time period within which an action must be brought upon claims or rights to be enforced, and should be distinguished from nonclaim statutes, jurisdictional limitation periods, and statutes of repose.” 51 Am.Jur.2d Limitation of Actions § 7 (2000) (footnotes omitted). “Statutes of nonclaim and statutes of limitations ‘are separate and distinct, and embrace scopes of policy not commensurate, but, in many particulars, essentially diverse.’ ” Chumney v. Houston County, 632 So.2d 1328, 1329 (Ala.1994) (quoting Ivory v. Fitzpatrick, 445 So.2d 262, 264 (Ala.1984)). “ ‘The whole theory of [a non-claim] statute is to create a defense broader in its operation than the statute of limitations, not only barring remedies, but extinguishing debts and liabilities.’ ” Ivory, 445 So.2d at 264 (quoting Fretwell v. McLemore, 52 Ala. 124, 144 (1875) (emphasis in Ivory)).

The 180-day notice period in § 7-4-406(f) “is not a statute of limitations, but a statutory prerequisite to suit.” Euro Motors, Inc., 297 Ill.App.3d at 254, 696 N.E.2d at 716, 231 Ill.Dec. at 420. “[I]t does not give a customer [180 days] to bring suit. Rather, it simply requires the customer to notify the bank of an unauthorized signature or alteration within [180 days] in order to preserve the right to bring suit.” Id. See also 6B William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series § [Rev] 4-406:08 (Supp.1994) (“Section 4—406(f) is not a statute of limitations. As long as notice is given within the designated time period, the customer may commence his action any time within the applicable statute of limitations period.”).

By contrast, the actual statute of limitations for a violation of article 4 of Alabama’s version of the Uniform Commercial Code is three years from the accrual of the cause of action. Section 7-4-111. Because of these distinctions, the Bank’s answer, which raised only a statute-of-limitations defense, did not constitute sufficient compliance with Rule 8(c) insofar as the statute of repose of § 7-4-406(f) is concerned.

Although the Bank chiefly argues that it sufficiently pleaded § 7-4-406(f), it relies, in the alternative, on an exception to the pleading requirement stated in Wallace, supra, namely, that an affirmative defense is preserved if it “appears on the face of the complaint.” Wallace, 463 So.2d at 137. The Bank’s reliance on this exception, however, is misplaced.

This is so, because the bar of § 7-4-406(f) does not appear on the face of Pinigis’s complaint. Application of the statutory bar turns on the absence of notice, not on the date of commencement of suit. Section 7-4L406© simply bars a credit for any check containing an “unauthorized signature or alteration” that is not reported to the Bank “within 180 days after the statement and the items ... are sent to the customer.” Section 7 — 4—406(f). However, the complaint does not demonstrate whether — or when — notice was given as to any check. Moreover, paragraph 15 of the complaint avers that the Bank paid a number of checks after it was notified of Coyle’s death. The complaint does not demonstrate when these checks were paid, or if they were paid within 180 days of notice of “unauthorized signature[s] or alteration[s].”

In short, the Bank failed to plead § 7-4-406(f). Based on the arguments presented, we conclude that the trial court erred in applying the bar of § 7-4-406© to Pini-gis’s claim. The summary judgment for the Bank on Pinigis’s claim that the Bank had paid unauthorized checks is, therefore, reversed, and the cause is remanded for further proceedings.

III. Conversion

Pinigis contends that the trial court erred in concluding that Pinigis could “not state a common-law claim of conversion in this instance” and granting the Bank’s second summary-judgment motion. She concedes that review of her conversion claim does not require a factual analysis, but, instead, involves “only [a] discrete issue of law.” Pinigis’s brief, at 52 n. 18. Therefore, we review it de novo. Pritchett v. ICN Med. Alliance, Inc., 988 So.2d 933 (Ala.2006); Alabama State Bar v. Caffey, 938 So.2d 942 (Ala.2006).

The undisputed facts underlying this claim were succinctly stated in the trial court’s final judgment:

“At the time of her death, Ms. Coyle had on deposit with the Bank sums represented by Certificate of Deposit number 01-[for approximately $100,000] and Time Deposit number 48- [for approximately $10,000].
“2. Following Ms. Coyle’s death, [Pi-nigis] sought to redeem these deposits, but could not locate the original Certificate of Deposit number 01-. The Bank’s copy of the face of the Certificate of Deposit states as follows: ‘This certifies that this sum has been deposited with this bank and is subject to withdrawal at maturity with interest upon surrender of this certificate properly endorsed by [Doris Porter Coyle].’
“3. Because the whereabouts of the certificate [was] unknown, [Pinigis] could not surrender the certificate as required on the face of the deposit agreement, [and] the Bank requested that [she] execute an indemnity agreement and purchase an indemnity bond from a licensed insurer before the Bank would redeem the lost certificate. The Time Deposit, in contrast, was a newer account which did not require any certificate to be presented.
“4. [Pinigis] did not want to give a bond because it ‘seemed like an unfair requirement.’ [Pinigis’s] last written correspondence with the Bank on the issue is dated September 18, 2003, after which she ‘decided to let [her] lawyers deal with the whole issue.’ Given the complication of the indemnity requirement, [Pinigis] decided it was prudent to leave the smaller Time Deposit alone for the time being.
“5. Although [Pinigis] never found the lost certificate, nor purchased an indemnity bond, on April 17, 2005, following the filing of this action, the Bank voluntarily [paid] the full proceeds of Certificate of Deposit number 01-, plus interest, to [Pinigis]. The Bank also paid [Pinigis] Time Deposit number 48-in full, plus interest.”

(Citations to the record omitted; emphasis deleted.)

The trial court concluded—and we agree—that Pinigis’s conversion claim is controlled by SouthTrust Bank v. Donely, 925 So.2d 934 (Ala.2005). That case involved a dispute between Lisa Donely and SouthTrust Bank over five certificates of deposit (“the CDs”) owned by Donely and payable by SouthTrust. Donely sued SouthTrust, alleging conversion and breach of contract after she presented the CDs for payment and SouthTrust refused to disburse the funds. 925 So.2d at 937. The trial court denied SouthTrust’s motion for a judgment as a matter of law (“JML”) and submitted both claims to the jury, which returned a verdict in favor of Donely. 925 So.2d at 938.

On appeal, SouthTrust challenged the denial of its JML motion only as to the conversion claim. As to that claim, this Court reversed the judgment of the trial court. We held that a bank’s refusal to redeem a CD upon presentment of the certificate by the owner does not give rise to a conversion claim.

In so doing, we distinguished Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994); Alabama City Bank of Gadsden v. Vaughn, 413 So.2d 1053 (Ala.1982); Mann v. Bank of Tallassee, 694 So.2d 1375 (Ala.Civ.App.1996); and Stillwell v. Columbus Bank & Trust, 675 So.2d 433 (Ala.Civ.App.1995). We noted that, “in those cases, the actual certificate was held to have been converted, not simply the funds deposited in the bank to purchase the certificate or the amount due upon maturity of the certifícate, that is, the amount originally deposited plus the stipulated interest.” Donely, 925 So.2d at 942 (emphasis added). We explained:

“A certificate of deposit represents a contractual relationship between the issuer of the certificate and the purchaser of it. Failure of the issuer to make good on its contractual duty to pay is a breach of the contract. If, on the other hand, the certificate of deposit itself is wrongfully taken by another, the certificate has been converted. In this case, Donely alleges that when she presented her CDs to SouthTrust for payment, South-Trust refused to disburse the funds to her. Thus, Donely has alleged that SouthTrust has failed to pay her a debt, and the proper action for that claim is a breach-of-contract action, not a conversion action.
“... SouthTrust [merely] refused to pay Donely the funds represented by the CDs when she attempted to redeem the CDs in her possession. Therefore, ... the trial court erred in submitting Donely’s conversion claim to the jury.”

925 So.2d at 942 (emphasis added).

Pinigis contends that Donely was wrongly decided and/or that it is distinguishable from her case. We disagree that Donely was wrongly decided; we see no meaningful distinction between it and this case. This case, like Donely, does not involve an allegation that the “certificate of deposit itself [was] wrongfully taken.” Id. In both cases, the bank merely refused to pay the “funds represented by the CDs” when requested to do so by the payee. Id. The undisputed facts of this case fail, therefore, to establish a claim of conversion, and the trial court properly entered a summary judgment for the Bank on the conversion claim.

TV. Conclusion

In summary, the trial court erred in entering a summary judgment for the Bank on Pinigis’s claim of unauthorized payment of checks. Thus, the partial summary judgment in favor of the Bank is reversed, and the cause is remanded for further proceedings. The trial court did not err, however, in entering a summary judgment for the Bank on Pinigis’s conversion claim. That summary judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and LYONS, BOLIN, and PARKER, JJ., concur.

SMITH, J., recuses herself.

      . Therefore, for the purposes of this opinion, we will treat § 7-4-406(f) as an affirmative defense subject to waiver if not properly pleaded.


author: PER CURIAM.

text:
    Arthur Lee PERKINS et al. v. SHELBY COUNTY.
    2040409.
    Court of Civil Appeals of Alabama.
    May 12, 2006.

      Orrin R. Ford, Birmingham, for appellants Arthur Lee Perkins, Vicki Perkins, Robert Perkins, and Gail Perkins.
    Andrew Dean McConatha, Sylaeauga, for appellant Talladega County Economic Development Authority.
    Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for appellee.
   PER CURIAM.

Arthur Lee Perkins, Vicki Perkins, Robert Perkins, Gail Perkins (hereinafter collectively referred to as “the Perkinses”), and the Talladega County Economic Development Authority (“the TCEDA”) filed an action against Shelby County in which they sought a judgment declaring the Per-kinses’ rights in certain property purportedly transferred to the Perkinses’ predecessors in interest by Shelby County. Shelby County answered and counterclaimed.

Shelby County filed a motion for a summary judgment, and the Perkinses and the TCEDA (hereinafter collectively referred to as “the plaintiffs”) also moved for a summary judgment. The parties filed a stipulation of facts, and they agreed that “the [trial court] could consider the Stipulation of Facts and the Motions for a Summary Judgment and rule upon the same.” On November 19, 2004, the trial court entered an order in which it granted Shelby County’s motion for a summary judgment and denied the plaintiffs’ motion for a summary judgment. The plaintiffs timely appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In 1960, the Perkinses’ predecessors in interest, Solly H. Perkins, Jr., and his wife, Pearl Helen Perkins, executed a deed in favor of Shelby County that conveyed to Shelby County a 40-foot-wide right-of-way across their farm. The right-of-way extended eastward across Solly and Pearl’s land from Highway 28 to the west bank of the Coosa River. Shelby County paved the right-of-way and used it as a public road to connect Highway 28 to the west bank of the Coosa River; Shelby County also constructed a docking ramp on the property to accommodate a river ferry boat. Between November 1965 and November 1977, Shelby County and Tallade-ga County jointly owned and operated a ferry service across the Coosa River.

When the ferry service discontinued in November 1977, the Perkinses’ predecessors in interest requested that Shelby County reconvey to them the county’s interest in the right-of-way. On February 26, 1979, Shelby County issued a quitclaim deed returning the right-of-way to the Perkinses’ predecessors in interest, subject to the following conditions:

“1. The [Perkinses’ predecessors in interest] will not place any permanent buildings on said property;
“2. If at any time in the future, [Shelby] County should require said property for (a) the purpose of again operating a ferry, (b) the construction of a bridge, or (c) in any way need said property for the expansion of the transportation system in Shelby County, the property will be conveyed back to [Shelby County] at no cost.”

At approximately the same time Shelby County executed the 1979 deed, the Per-kinses’ predecessors in interest executed another deed in favor of Shelby County, granting Shelby County title to a circular parcel of land on which to construct a traffic “turn around.” That “turn around” is located at the western edge of the right-of-way that Shelby County returned to the Perkinses’ predecessors in interest pursuant to the 1979 deed; in other words, the “turn around” is located at the point at which Shelby County had, in 1960, begun paving the right-of-way to connect Highway 28 to the Coosa River. After 1979, Shelby County neither used nor maintained the right-of-way; Shelby County has maintained the “turn around.”

In 2003, the Perkinses entered into an option contract to sell the right-of-way to the TCEDA. According to the pleadings, the TCEDA intends to construct a bridge across the Coosa River to the “public roadway [i.e., the right-of-way] across the subject property.”

The plaintiffs filed the declaratory-judgment action that is the subject of this appeal seeking to have the trial court invalidate the conditions in the 1979 deed between Shelby County and the Perkinses’ predecessors in interest; the plaintiffs specifically maintained that the 1979 deed is valid. Shelby County answered and counterclaimed, seeking a judgment declaring the 1979 deed to be void.

In its motion for a summary judgment, Shelby County argued, among other things, that in issuing the 1979 deed it had failed to comply with the statutory requirements for closing and vacating a public road. See § 23-4-1 through -6, Ala. Code 1975. In the alternative, Shelby County argued that, assuming the 1979 deed is valid, the conditions in the deed are also valid and due to be upheld. In response, the plaintiffs argued that the deed is valid but that the conditions contained in the deed are invalid. The plaintiffs also argued, among other things, that, assuming that the statutory requirements for vacating a public roadway had not been followed, Shelby County had lost its interest in the right-of-way through its abandonment of the right-of-way for more than 20 years. See Barber v. Anderson, 527 So.2d 1296, 1297 (Ala.1988) (“A public road may be abandoned and thus lose its public character by nonuse by the general public for a period of 20 years.”); see also Bournes v. Winston County, 481 So.2d 362 (Ala.1985).

After considering the parties’ summary-judgment motions and the stipulation of facts, the trial court entered a judgment on November 10, 2004, in which it found in favor of Shelby County on all of the plaintiffs’ claims and in favor of Shelby County on all of Shelby County’s claims against the plaintiffs. In that order, the trial court declined to determine the validity of the 1979 deed. Instead, it concluded that the conditions contained in the 1979 deed are valid, and it detailed its reasons for reaching that conclusion.

We disagree with the trial court’s conclusion that it was not necessary to determine the validity of the 1979 deed. Based upon the November 10, 2004, judgment, it cannot be determined whether the Per-kinses have any interest in the right-of-way at issue in this matter. The validity of the 1979 deed is the central issue in this case, and the other issues are dependent upon the resolution of that issue. The trial court’s November 10, 2004, judgment does not specify whether it determined (1) that the 1979 deed is invalid, and, if so, whether the Perkinses have obtained some interest in the right-of-way (for example, through the purported abandonment by Shelby County of the right-of-way), or (2) that the 1979 deed is valid and that the Perkinses’ interest in the right-of-way is subject to the conditions in favor of Shelby County.

The trial court, in its November 10, 2004, judgment, failed to determine the primary issue between the parties. Therefore, we reverse the trial court’s judgment and remand the action to the trial court for it to determine whether the 1979 deed is valid and to resolve any issues that might be dependent on that determination.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.

      . It might be argued that this court could presume that in addressing the validity of the conditions in the 1979 deed the trial court concluded that the deed is valid. However, the trial court specifically stated that it did not reach the issue of the validity of the 1979 deed. Also, the parties sought a judgment declaring the Perkinses' and Shelby County’s rights in and to the right-of-way. In declining to determine the validity of the 1979 deed, the trial court failed to determine the extent of any rights the Perkinses and/or Shelby County might have in the right-of-way. Thus, further litigation would be required in order for those parties to obtain such a determination, if, for example, the prevailing party or parties wanted to transfer an interest in the right-of-way.


author: BRYAN, Judge. THOMPSON, Judge,

text:
    Beatrice R. ADAMS v. Terry Wayne ADAMS, Jr.
    2040402.
    Court of Civil Appeals of Alabama.
    May 12, 2006.
    Mavanee Routt Bear, Birmingham, for appellant.
    Charles A. Dodson, Jr., and Joseph D. Steadman of Dodson & Steadman, P.C., Mobile, for appellee.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala.R.App. P.; § 30-3-131, Ala.Code 1975; Ex parte Fann, 810 So.2d 631 (Ala.2001); Ex parte Devine, 398 So.2d 686 (Ala.1981); Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005); Gladden v. Gladden, 942 So.2d 362 (Ala.Civ.App.2005); Headrick v. Headrick, 916 So.2d 610 (Ala.Civ.App.2005); Smith v. Smith, 887 So.2d 257 (Ala.Civ.App.2003); C.J.L. v. M.W.B., 879 So.2d 1169 (Ala.Civ.App.2003); Baggett v. Baggett, 855 So.2d 556 (Ala.Civ.App.2003); McClelland v. McClelland, 841 So.2d 1264 (Ala.Civ.App.2002); J.H.F. v. P.S.F., 835 So.2d 1024 (Ala.Civ.App.2002); Moody v. Nagle, 811 So.2d 546 (Ala.Civ.App.2001); Segrest v. Segrest, 574 So.2d 821 (Ala.Civ.App.1990).

The appellant’s request for an attorney’s fee on appeal is denied.

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

THOMPSON, J., concurs specially, with writing.

THOMPSON, Judge,

concurring specially.

I concur specially. See my special writing in Lamb v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006), explaining my position regarding the need for express findings when, in a case like this one, the trial court awards custody of a child to a parent against whom allegations of domestic violence have been made.